Law and Order

Adam McDuffie

Tear gas outside the United States Capitol on January 6th, 2021 by Tyler Merbler. CC BY 2.0.

This article is part of our “Chaos at the Capitol: Law and Religion Perspectives on Democracy’s Dark Day” series.
If you’d like to check out other articles in this series, click here.

Over the last several months, the Republican party and its current leader have consistently trumpeted their strong commitment to law and order. Especially during this summer’s Black Lives Matter protests (and riots), as well as in response to calls for greater oversight of and a more limited role for police forces, many Republicans, political conservatives, and the President have loudly declared their commitment to a law and order society deferential to law enforcement officers and opposed to unlawful means of protest and expressions of collective dissatisfaction with the societal status quo. Yet it is undeniable that these same politicians and pundits have displayed a somewhat flexible interpretation of what law and order means and to whom it applies. After the events of the past week, the supporters of Donald Trump confirmed what many observers already knew: the party of law and order has very little respect for either.

This has been clear for some time, but we could begin our analysis with the 2020 presidential election and the Republican Party’s nationwide effort to limit voting opportunities.

As votes were counted, anger mounted. Donald Trump described the fact that his opponent received more votes than he did as an “egregious assault on our democracy.” Why is the actual democratic process of counting votes an affront? Why is it that votes counted in majority-minority metropolitan population centers raise the most suspicions? Why is it such an unthinkable impossibility that Trump lost? 

The welcome news for someone displeased with these developments, but who is also dedicated to the preservation of law and order, is that we have a well developed and well functioning court system designed to address such concerns. If, as the Trump campaign and Republican Party have continually asserted, voter fraud had been committed on such a broad scale as to overturn the largest number of ballots cast for a presidential candidate in American history, a path exists to bring that fraud to light and allow the legal system to do its work in preserving the democratic rights of the American voting populace. The courts have done just that at various points in our political history, and the President and his supporters insisted early on in the post-election hullabaloo that they were confident in the courts doing so again here. As we all now know, the President did indeed take his claims of election fraud to the courts; and the courts did their job, heard these cases, and disposed of them accordingly. Law and order won the day. 

The rhetoric of an election is cause enough for division and a need for restoration of unity, but the additional strain on our society caused by the ever-present pandemic even further necessitates a reminder of common national purpose.

One would think the party of law and order would recognize the importance of concession and transition to the American democratic system. From the standpoint of law, the Constitution demands it. The Electoral Count Act of 1887 includes clear guidelines for when the Electoral College must meet, and the safe harbor deadline provides a cutoff for election disputes to be filed to allow sufficient time for objections to be considered and resolved prior to that meeting. The Twelfth Amendment lays out a clear process for the Electoral College to conduct its duties, and for the Senate and House of Representatives to jointly meet and certify the results. The Twentieth Amendment further establishes that the term of the sitting President ends on January 20th. With such a long transition period (one may even argue, particularly in light of recent events, too long of a transition period), acceptance of results is necessary to ensure the uninterrupted operation of American governance.

From the standpoint of order, the norms of American civil religion  anticipate a smooth and peaceful transition culminating in the inauguration ceremony, itself a ritual binding of wounds in the wake of painful election years. The rhetoric of an election is cause enough for division and a need for restoration of unity, but the additional strain on our society caused by the ever-present pandemic even further necessitates a reminder of common national purpose. The gathering on stage of Presidents past, present, and future, along with a host of politicians from both sides of the aisle, projects, for those brief moments, unity and a common higher purpose. However scripted and meaningless it may seem, the image of the incoming and outgoing Presidents traveling down Pennsylvania Avenue to the Capitol in an embodied transition of power means something in representing America’s readiness to move forward in a new era with a new administration.

Unfortunately, the actual administration of law and order did little to quell the law and order party. Continual efforts to hamstring typically purely performative stages of the electoral process, from attempting to alter electoral votes to convincing members of Congress to object to the certification of these results, were backed by increasingly heightened rhetoric. That rhetoric culminated in calls to violence in Washington, D.C., on January 6, a day highlighted by Trump and his supporters as their last best chance to #StopTheSteal. The President’s lawyer, Rudy Giuliani called for “trial by combat,” and Trump quite simply told the crowd to “walk down to the Capitol,” reminding them “you will never take back our country with weakness.” And so, they did, making their way up Capitol Hill, overrunning Capitol police, busting through doors and windows of the Capitol to roam the building essentially unchecked.

As long as Donald Trump remains in office, and the majority of the insurrectionists are free from charges, the result of this coup is the establishment of a precedent for ignoring laws and norms with no consequences.

Among the mob were prominent QAnon conspiracy theorists, Neo-Nazis, and other far-right and white supremacist actors. Some even live-streamed the affair for a fee, profiting from their invasion of the Capitol. Chillingly, some came equipped with zip-tie handcuffs, ready to take prisoners as they searched high and low for Mike Pence and Chuck Schumer, with guidance from some Capitol Police officers. This was not a First Amendment protest to save democracy; people stormed the Capitol with the intent of doing harm and instilling fear in an act of domestic terror. On Wednesday, a gallows was constructed in the shadow of the Capitol’s West Front as the Confederate flag was borne through its halls.

Law and order, indeed.   

As clear-cut as the images in the Capitol appeared, prompting immediate condemnation from Democrat and Republican members of Congress, there were nonetheless predictable attempts to defend the violence even as it was underway. Some conservative commentators were quick to equivocate on the Capitol violence by trotting out that well-known, yet oft-misapplied, quote from Rev. Martin Luther King, Jr.: “A riot is the language of the unheard.” The foremost difficulty in applying that quote to this situation (and there are many), is straightforward: For this to be the case, a party must first have been unheard at some point. The Trump campaign’s legal challenges were heard in courts across the country. The legal system worked, it heard these challenges, assessed them, and handed down its answer. The problem is not the grievances of a downtrodden, unheard mass. The problem is that Trump losing simply does not compute for too many of his supporters. Trump is too central to too much, and for the system to decide he lost must mean the system itself is broken. 

The Republican Party purports to be the party of constitutionalism, but whatever remnants of that core actually lingered have been replaced by a Trumpian worldview. If this wasn’t already the case, it became all the clearer in the party’s decision to “continue to enthusiastically support the President’s America-first agenda” instead of the drafting of an actual party platform at the Republican National Convention in 2020. The rhetoric of those who gathered to march on the Capitol reflects that centrality, as illustrated by Jeffrey Goldberg of The Atlantic, who reported frequent depictions of Trump as an agent of God or the fulfillment of biblical prophecy. Trump has become the sacred totem for his followers, who wear his hats and bear his flags year-round and define and understand themselves through their relation to him. He is their epistemological key, their legal and moral grounding. The only logical explanation for a Biden victory is that the election must have been stolen because there’s no possible way Trump lost. Trump’s loss is not a result their theology is prepared to explain, he has become too firmly ensconced at the center. So, how do they respond? By storming the Capitol. 

This coup was shocking to behold, but not at all surprising. On the one hand, it was quite literally predictable because of the immense volume of social media chatter in the weeks leading up to January 6. In addition to public planning on Parler and other corners of the internet dominated by right-wing voices, Donald Trump himself urged his followers to come to DC as he “all but circled [the date] on the nation’s calendar,” in the words of the New York Times. This chatter was enough to convince D.C. Mayor Muriel Bowser to impose a curfew on D.C. residents and prepare for the worst, although it apparently was not enough to prompt Capitol Police or other federal authorities to make necessary preparations for what was coming. Such a violent outcome has been predictable for far longer, however, in light of the consistent rhetoric of Donald Trump and his supporters. 

Furthermore, this result was not only predictable, it’s merely the latest instance of an American tradition of  accepting illegal violence when it involves the perceived loss of white hegemony. Consider for example the 1898 Wilmington coup, in which white supremacists violently overthrew Black and white political leaders who had been duly elected and replaced them with white supremacists. Black-owned businesses and property were destroyed, along with the office of the Wilmington Daily Record, the town’s Black newspaper. The number of Black citizens murdered in the uprising is unknown, although it estimated that as many as 300 may have been killed. Colonel Alfred Waddell, a former Confederate officer who led the coup, was quoted in The Weekly Star announcing a resolution that the Constitution had not “anticipate[d] the enfranchisement of an ignorant population of African origin” and “did not contemplate for their descendants a subjection to an inferior race.” So, the white citizens of New Hanover County declared that they would not “be ruled, and will never again be ruled, by men of African origin.” They disagreed with the results of the democratic process and turned to violent retribution to install a government of their own choosing. All the while, they placed themselves within the Revolutionary lineage of the Founding Fathers, arguing that the Constitution had never intended a democracy for all.

The insurrection at the Capitol on January 6, 2021 followed a similar template. Dismayed with the loss of the presidency and the news that Republicans had also lost the Senate majority as a Black preacher and Jewish filmmaker had been elected by Georgia voters, many turned to violence. Reminiscent of racist insurrections past, we again see gestures to the Founding Fathers and Revolutionary tradition as legitimation for overriding democratic norms. Rush Limbaugh responded to those calling for an end to the violence by expressing gratitude that “Sam Adams, Thomas Paine, the actual Tea Party guys, the men at Lexington and Concord didn’t feel that way.” In the aftermath of the mob’s surging through the Capitol, countless Americans–including President-elect Biden, responded by saying, “This is not who we are.” However, the reality is that it is who we are. White America has long turned to violence when it has seen its power and privilege slipping from its grasp. This was merely the most recent manifestation of that violent lashing-out to hang on with all its might.

…Countless Americans–including President-elect Biden, responded by saying, “This is not who we are.” However, the reality is that it is who we are. White America has long turned to violence when it has seen its power and privilege slipping from its grasp.

Religion played and continues to play an integral part in this white supremacist violence. From the arrival of European colonizers on these shores, Christianity has been deployed as a means of legitimizing violence and destruction. The system of slavery, the violent response to Reconstruction, and the enforcement of segregation, all found ardent support in Christian circles. The system of white supremacy in the United States is difficult to separate from its Christian theological foundation. That same religious legitimation was on display as a mob burst its way into the seat of the U.S. government. Jason K. Allen, president of Midwestern Baptist Theological Seminary, noted with seeming shock the coexistence of crosses and “Jesus Saves” signs alongside Confederate flags and nooses. ‘Twas ever thus. It is particularly surprising that a Southern Baptist leader would be so surprised to see these symbols alongside one another, given the denominational body’s history as a body born in support of slavery.

We should, however, take a moment to ponder what comes next. In the refusal to concede defeat by Trump and his followers, are we witnessing the emergence of a New Lost Cause? Or perhaps simply a reemergence and adaptation of the Lost Cause that never truly faded away? Donald Trump and his followers, for all their blustering to the contrary, have no respect for law and order. They have no respect for the institutions of this nation. Trump has interest only in preservation of himself, and his followers will apparently stop at nothing in service to those whims. As long as Donald Trump remains in office, and the majority of the insurrectionists are free from charges, the result of this coup is the establishment of a precedent for ignoring laws and norms with no consequences. What awaits us on January 20th? Or in the years to come? Only time will tell. ♦

Adam McDuffie is a third year PhD student in American Religious Cultures at Emory University. His work probes the intersections of religion, politics, and law, with a particular focus on the place of soldiers and soldier bodies in American civil religion.

Recommended Citation

McDuffie, Adam. “Law and Order.” Canopy Forum, January 11, 2021.