• Brady Hummel

The Return of Law and Order in America

Updated: Nov 24, 2021

[This story was originally published in The Policy on July 17, 2016.]


The ghost of conservatism past is still alive and with us today.


In response to the startling number of incidents of both police brutality and brutality against police in the United States, presumptive Republican presidential candidate Donald J. Trump declared himself the “law and order candidate” first at a campaign rally on Monday in Virginia Beach, VA, then again while “introducing” his pick for running mate, Governor Mike Pence of Indiana.

“We must maintain law and order at the highest level or we will cease to have a country,” he implored. “We are the law and order candidates…and with a law and order party, there will be respect again for law and order.”

To quote a cultural icon, Trump keeps using that phrase, but I do not think it means what he thinks it means.

Or, maybe he does know.

 

Goldwater, Reagan, and Nixon: The Triumvirate of “Law and Order”

The phrase “law and order” has been a foundational part of the American conservative lexicon since Senator Barry Goldwater (R-AZ) asserted in his acceptance speech at the 1964 Republican National Convention that it was just one of many of government’s “inherent responsibilities,” along with “maintaining a stable monetary and fiscal climate [and] encouraging a free and competitive economy.”

Business, business, and social order; that was the message shouted on high by Goldwater and countless Republicans that followed him.

Although Goldwater was objectively creamed by President Lyndon B. Johnson (D-TX) in 1964, he laid the ideological framework of the Republican Party for the following generation of conservatives.

In the 1966 midterm elections, former Hollywood actor Ronald Reagan, who was heavily involved in the ’64 Goldwater campaign, picked up the baton during his campaign for Governor of California. Reagan was launched into the national political spotlight with his “A Time for Choosing” speech that enumerated the option facing the American people in 1964:

“The Founding Fathers knew a government can’t control the economy without controlling people. And they knew when a government sets out to do that, it must use force and coercion to achieve its purpose. So we have come to a time for choosing…You and I are told we must choose between a left or right, but I suggest there is no such thing as a left or right. There is only an up or down. Up to man’s age-old dream — the maximum of individual freedom consistent with order — or down to the ant heap of totalitarianism.”

Reagan had two main pillars of his ’66 gubernatorial campaign: first, “to send the welfare bums back to work,” and second, “to clean up the mess at Berkeley,” referring to the student protests happening that year at the University of California at Berkeley. This platform proved to be enough to win Reagan the election, and he was sworn in the following January.

While “law and order” was still not at the forefront of Reagan’s or the GOP’s platform, it was lurking in the background, festering until it rose to the surface and burst with the presidential campaign of former Vice President Richard Nixon (R-CA) in 1968. It was a tumultuous year, with the assassinations of civil rights leader Rev. Martin Luther King, Jr. on April 4 and Senator Robert F. Kennedy (D-MA) on June 5 and the civil unrest that was seen in cities after these assassinations, on college campuses, and at the Democratic National Convention in 1968.

If Reagan picked up the baton from Goldwater in ‘66, then Nixon grabbed it and ran with it for miles and miles in ‘68. It became a cornerstone of his campaign rhetoric, as he aimed to (and successfully so) paint his Democratic opponent, Hubert Humphrey (D-MN), as soft on crime and unable to handle the turmoil that cast fear into the hearts of Americans all around the country every night during the evening news broadcasts. He even ran a political ad that is clearly fear-mongering, stating over pictures of riots in the streets and bloody citizens that:

“It is time for an honest look at the problem of order in the United States. Dissent is a necessary ingredient of change, but in a system of government that provides for peaceful change, there is no cause that justifies resort to violence. Let us recognize that the first civil right of every American is to be free from domestic violence. So I pledge to you, we shall have order in the United States.”

Nixon won 43.4% of the popular vote and was elected President in the 1968 election, proving to other conservatives that running on a hard stance on crime and promising “law and order” was a winning ticket.

 

Bringing Down the Hammer: The Policy Manifestations of “Law and Order”

Once in office, Nixon got the ball rolling on building a system of mass incarceration in the United States to get supposed criminals off the streets. However, as notably argued by Michelle Alexander, associate professor of law at Ohio State University, in her book, “The New Jim Crow: Mass Incarceration in the Age of Colorblindness,” this system wasn’t targeting crime; it was targeting African Americans.

The litany of prominent policies historically passed in the name of “law and order,” namely mandatory minimum sentences for drug offenses, the “three strikes” law for repeat drug offenders, and legalizing stop-and-frisk procedures by police officers with scanty probable cause, were all subtly crafted to disproportionately discriminate against African Americans both in their communities and in the criminal justice system.

These policies were paired with stricter labor market restrictions on ex-cons coming back into the workforce after being incarcerated, as many were allowed to be legally denied gainful employment, home ownership, and many of the other basic tenets of “normal” American life. This, as Alexander described it, put these individuals in a criminal, racial “under-caste” in the United States that kept them on a perpetual circular loop between prison and poverty.

[For more on how unfair these policies were in targeting African American communities or on how structural racism was allowed to reign free in America, read The New Jim Crow: Mass Incarceration in the Age of Colorblindness and watch her 2013 lecture at the University of Chicago.]

There’s a popular saying in politics: “Legislation is like sausage. You don’t want to see how its made.” The same can be said about the motivations behind Richard Nixon’s War on Drugs policies and his tough criminal justice reforms. Earlier this year, a previously unreleased interview with John Ehrlichman, Nixon’s White House domestic affairs advisor and Watergate conspirator revealed these motivations:

“We knew we couldn’t make it illegal to be either against the [Vietnam] war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.”

Pretty damning words from a very credible source. This was the motivation behind Nixon, Reagan, and Goldwater touting “law and order” on the campaign trail and mobilizing it while in the White House.

During Reagan’s tenure, crack cocaine was the main method by which predominately black communities were unfairly targeted by the criminal justice system. Reagan had proclaimed that “we can fight the problem, and we can win,” even though only two percent of Americans had reported thinking there even was a drug problem in our country.

After the President’s public proclamation, the media began running supremely racist and highly emotional, evocative stories about the apparent crack cocaine crisis. Almost none of them told stories of white crack users or white crack dealers.

This painted a picture in the American public conscience that fulfilled the prophecy set before it: crack cocaine use skyrocketed, and Reagan responded by signing, “with great pleasure,” the Anti-Drug Abuse Act in 1986, which put in place mandatory minimum sentences that were 100:1 more severe for crack users and dealers than powder cocaine, saying that:

“The American people want their government to get tough and to go on the offensive.”

Conveniently for him, he did not make clear against whom this offensive should be aimed.

 

Was There Really a Crime Problem, Though?

The whole background context behind the political right’s “law and order” argument was that there was a ravaging problem of crime in America that needed drastic attention and pragmatic solutions to solve. Goldwater, Reagan, and Nixon all promised as much, were elected on as much, and governed on as much.

Data Source: FBI UCS Annual Crime Reports


Looking at the data, however, crime was at its lowest point in the past half century in 1964 when Goldwater first invoked the need to return to “law and order” in America. As shown in the graph above, the total crime rate per 100,000 citizens grew almost threefold during the heyday of federal “law and order” policies under Presidents Nixon and Reagan; the violent crime rate has only slightly increased over the past fifty years, and it still only comprises a small sliver of the total number of crimes committed in the United States.

This completely and universally counters everything that Goldwater, Reagan, Nixon, and other conservatives say when they tout “law and order” as an effective anti-crime policy prescription. It seems like these types of policies should only be used if we want to increase crime rates in America.

And yet, we see Donald Trump is bringing out the golden oldies and decrying the need for “law and order” in America in the face of terror attacks and interactions with law enforcement gone wrong. However, he doesn’t mean it in the same way as it was used in the 1960’s, 1970’s, and 1980’s; he doesn’t (necessarily) want to “go on the offensive” against African Americans, but, rather, immigrants, Muslims, and “terrorists.”

He fully understands, however, the history and implications that come with the phrase. He’s just using it because he knows that it works with the voters whom he is trying to court, and because it will allow him the latitude to be able to pursue whatever policies he seeks to put into place once in the White House.

Hopefully, for the country’s sake, we won’t get to that point.

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