Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, January 15, 2021

A question for our polarized age: which riots should upset us more?

The most frequent objection I’ve seen to expressions of concern about last week’s attack on the U.S. Capitol is some version of, “Why weren’t you so outraged about all the riots last summer?” The insinuation is that those who were upset by last week’s events don’t want to talk about the riots because they are associated with a cause they support (racial justice), while the U.S. Capitol attack is associated with a cause they dislike (Donald Trump). It’s a fair question – here’s my answer.
To begin, I would not endorse a blanket assertion that the U.S. Capitol attack was “worse” or “more harmful” than last summer’s riots. If you are an immigrant who had worked for years to build a small business on Lake Street in Minneapolis, only to see it destroyed in one night by arsonists, and you then come to learn that insurance won’t come anywhere close to covering the cost of rebuilding, the U.S. Capitol attack sure doesn’t feel worse. In the Twin Cities, more than 1,000 buildings were damaged or destroyed after George Floyd’s death. The bulk of these losses occurred in neighborhoods inhabited by working-class people of color and recent immigrants. Many residents who do not own cars were left without easy access to grocery stores and pharmacies. Rioting and property destruction are wrong and should be condemned, period.
That said, the attack on the U.S. Capitol was dramatically worse in one important respect: it was the culmination of a weeks-long challenge to the rule of law by the President of the United States. I reach this conclusion for four reasons:
First, no one is above the law. The rule of law prohibits arbitrary power, which means that the lawgiver also must be subject to the law. That’s why the peaceful transfer of power is so important: by willingly stepping down from power and cooperating in the transition to his successor, the President honors the duly enacted procedure for deciding elections, thereby showing that he is also subject to the law. Yes, it’s fine to challenge the election in court, but President Trump did more than that, working to discredit our institutions in the eyes of the public in order to benefit himself. Months before the election, President Trump was already signaling that he was not going to give up power without a fight. To the surprise of no one, he is not going to concede the election or attend the inauguration. That’s not just bad manners – it’s in significant tension with the rule of law.
Second, we cannot change laws retroactively in order to maintain power. The rule of law requires that laws are prospective and consistent, which allows laws to guide conduct. (E.g., the legislature can’t punish you by passing a law criminalizing something you did two weeks after you did it.) Many of the President’s “stolen election” claims challenged practices that had been explicitly authorized by state legislatures and election commissions in order to facilitate voting during the pandemic, long before November 3. As courts pointed out, the Trump campaign had plenty of time to challenge those procedures before the election but chose to wait until after he lost. Trying to change the election rules after the results are known is not just being a poor sport, it’s violating a fundamental premise of the rule of law.
Third, words matter. The rule of law’s viability is never guaranteed; it requires the support of each generation of Americans. As such, symbolism and rhetoric matter a great deal. President Trump and his team have been claiming that our election system is corrupt, that everyone who disagrees with his fraud claims is either a coward or dishonest, and that true patriots will “fight” to keep him in office. Rallying his supporters as Congress was (literally) engaged in the peaceful transfer of power, and telling the crowd to march to the Capitol to continue the fight, that “we will never concede,” and that if they give up, the “country will be destroyed,” is dangerously irresponsible rhetoric for a leader tasked with stewarding the rule of law.
Finally, the rule of law will not last long in a country where willful ignorance is a successful political strategy. Since November 3, President Trump has let loose with a steady stream of falsehoods about the election. The “stump speech” he developed about election fraud was filled with claims that had already been disproven repeatedly. Even at the January 6 rally, he criticized Vice President Pence for not rejecting the electoral votes from several swing states. The Vice President does not have that power, and no reasonable person who understands the Constitution believes he does. Even Pence recognized that he did not have that authority (which then led people at the Capitol to chant, “Hang Mike Pence!”). If we care about the rule of law, we have to care enough to spend time learning about our system of government. The ease with which our President misled his followers is deeply concerning.
And the riots in Minneapolis this summer? Yes, they did horrendous damage to our city and the livelihoods of many residents. They did not threaten the rule of law. Our elected leaders repeatedly condemned the rioters. Hundreds of people were arrested. Law enforcement officials have spent thousands of hours scouring surveillance video, and serious charges for arson and destruction of property are still being filed. The criticism of our leaders in Minnesota is that they waited too long before intervening with significant force (criticism that I find reasonable), not that they encouraged – much less invited – the rioting.
Last summer’s riots were heartbreaking, especially to the extent that they distracted Americans’ attention from the hundreds of totally peaceful protests that urged us to take racial injustice seriously.
Last week’s attack on the U.S. Capitol was heartbreaking, especially to the extent that it is a harbinger of dark days to come for a country that may not recognize the rule of law's fragility.
In our broken world, both are unmistakably true.


Vischer, Rob | Permalink