‘Law and order’?

The central argument of Donald Trump’s campaign for re-election is that Trump will return ‘law and order’ to a conflicted and violent United States. In the wake of a turbulent summer of protests and civil disorder concerning racism and policing in the US, Trump has seized the moment to declare that he stands with law enforcement in the pursuit of ‘law and order’. This strategy is reminiscent of his successful 2016 campaign, when he defined himself as ‘the law and order candidate’ and anchored most of his convention acceptance speech in that rhetoric.

Trump’s framing is not a new one in American politics – and it could succeed again. To understand Trump’s victory in 2016 and the tone of the 2020 campaign, it is important to understand the history of law and order politics at the federal level. Trump is building on a longstanding war on crime rhetoric that emerged with the 1960s Civil Rights Movement, and it is no coincidence that he deploys this rhetoric so successfully at another moment of widespread protest and dissent over American racism.

The expansion of federal crime control

Crime and disorder have long been American preoccupations. In 1789, founding father Benjamin Rush remarked on the tendency he diagnosed as anarchia in post-revolutionary America. Anarchia was a disorder characterized by uncontrollable conduct that flagrantly violated the rule of law. Rush, who was a penal reformer and one of the key figures behind the US adoption of mass penitentiary punishment, saw American criminality as pathological. Crime and disorder continued to be important points of social tension in the nineteenth century, but much of the struggle over concepts of ‘peace’ and ‘order’ was conducted at a local scale (for example, see Laura Edwards’s study of the Carolinas). Most day-to-day policing and ‘order maintenance’ in the US are performed at the state or county level. Although there were certainly national debates, particularly over slavery and the attendant criminal law questions it raised (was capturing a former slave who was now in a free state an act of kidnapping or an act of law enforcing?), criminal justice politics have long been local politics in America.

In the early twentieth century, the federal policing apparatus expanded significantly. As it did, so too did people increasingly turn to the federal government for protection, which vindicated this expansion. This was a complex process of capacity-building that involved too many turns to list here. The creation of the FBI in the first decades of the century deserves mention. Another critical event was the constitutional amendment for alcohol prohibition, which legitimized a major federal campaign of criminal law enforcement and expanded the reach of the FBI. An additional crucial development, as Naomi Murakawa argues, was claims to federal protection against state violence or negligence. After the civil war, some US states adopted a segregated legal order known as Jim Crow, during which police engaged in massive brutality against Black and Latino citizens. At the same time, some state law enforcement turned a blind eye to white vigilante violence and lynching that grew increasingly pervasive. One response was to demand protection from the federal government – a strategy that unwittingly entangled civil rights and federal policing while further legitimizing national federal law enforcement. By the 1930s, as Ronald Wright observes, the National Commission on Law Enforcement and Observance wrote that ‘more than one large city now relies on the federal prosecuting machinery to maintain local law and order’.

The war on crime

The coevolution of federal civil rights and policing exploded in the 1960s. During that decade, the US saw a sustained mass movement for civil rights and racial equality. Most famous is Martin Luther King, Jr. and associated Black Southern civil rights groups, but the American Indian Movement, Chicano youth movements, and an Asian American protest coalition all surged in this period. The result was some of the most important advances in civil rights in American history, most notably President Lyndon Johnson’s signing of the Civil Rights Act of 1964 and the Voting Rights Act of 1965. However, as the historian Elizabeth Hinton observes, the protests and struggles in this movement produced more than 250 incidents labeled as ‘riots’ across the five summers of Lyndon Johnson’s presidency. Johnson faced not only pressure from the Civil Rights Movements, but from anxious whites and a panicked establishment. And as Johnson understood, the other side of federal civil rights was order and security. The same summer he signed the Voting Rights Act, Johnson declared what he hoped would be the more famous legacy of 1965: the beginning of the ‘war on crime’. Johnson made crime a central feature of his campaigning, and the next president – Richard Nixon – did the same, promising above all to ‘wage an effective war’ against disorder.

If Johnson saw the war on crime as a way to guard against criticisms of his presidency during the Civil Rights Movement, Nixon perfected the art of using crime to campaign, and to govern. John Ehrlichman, a Nixon policy advisor, offered a surprisingly honest and transparent summary of the strategy for the 1968 campaign and later for securing support while in office: ‘We knew we couldn't make it illegal to be either against the 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.’ By the 1970s, law and order had become not only a shield against critiques of the turbulence of social progress, but a way to suppress political opposition.

During the 1970s and after, the imagery of law and order only became more central to American presidencies. In part, as Jonathan Simon shows, this was a response to the collapse of (or failure to develop) the American welfare state. In the absence of offering meaningful services and entitlements, what the state could legitimately claim to offer was crime control. Policing became the valid mark of state intervention and presidents used the imagery of prosecution, justice, and law and order to explain the moral legitimacy of their leadership. From Johnson to Nixon to Reagan, the expansion of a federal apparatus for policing was increasingly moralized, connected to local justice systems, and campaigned on. By the late twentieth century, American politics was law and order politics.

What happens next?

If law and order politics is a distinctive style of American campaigning, Trump is an expert at it: he has a long history of these stances that predates his 2016 run. From Trump’s call to ‘bring back our police’ and execute the Central Park 5 in 1989 to his claim that he stands against the disorder of mass protest, Donald Trump has mastered the art of American law and order politics. The 2020 election will be a test of this strategy’s current strength in the wake of renewed global consciousness and concern about the dark sides of hardline policing.