Miseducation and the Law in America, Part II
(Read Part I here.)
As Marxism, Leninism, and Maoism stalked the globe in the 1950s, Alexis de Tocqueville’s Democracy in America (1835/40) boosted morale in the U.S. by defending freedom without whitewashing the lack of civil rights in the South. Tocqueville’s defense of American democracy was solid, and he also forced her lesser evils and powerful advantages to prevail by paying serious attention to her flaws.
A generation before the Civil War, Tocqueville declared the South both antidemocratic and lacking in its cherished honor. He then looked into the future, warning that egalitarian tyranny and material satisfaction would unleash Orwellian and Huxleyan dystopias. These warnings about America’s blind spots and excesses—the arrogances of freedom, as it were—make his book the key to renewing civic education in the U.S. The book also forces us to ponder the costs and dangers particular to democracy both as a political form and a social structure.
Basic reasons for reading Democracy in America include the author’s multicausal explanations of the traditions, customs, and habits driving the history of the early republic; his magnificent presentation of the different cultures in the North and South that would lead to the Civil War; and his overviews of the Constitution and The Federalist Papers. Tocqueville was wrong about the Civil War, by the way; he did not think it would happen. But here’s an important lesson to all of us: his analysis of the period prior to the Civil War remains spectacular. You can be wrong about something and still contribute to its investigation and evaluation.
Democracy in America also offers an even playing field. The Left gets to have its conversations about gender, race, and class. Tocqueville even frets over capitalism. These elements of society actually inform the generic and thematic trajectories of Democracy in America. Most of volume one is a review of geography, history, culture, and law as factors in the nation’s origins; but then matters are muddled by significant costumbrist sketches and sorrowful sociological musings on nature, women, children, Indians, blacks, Texans, Mexicans, Englishmen, Frenchmen, and Russians. Volume two looks at contrarian, amorphous, and nightmarish topics like art, ambition, and war.
Stop. Back up. Before identity politics, then, the keystone of American democracy is the law, without which the historical and cultural causes of our democracy and the desires of future generations cannot interest us. Here Tocqueville spies a monstrous mix of liberal and aristocratic virtues as a nation’s lawyers replace nobles: “The major reason for the superiority of the federal constitution is the very character of the legislators.” We must note this other antidemocratic singularity: a post-revolutionary crisis made Americans elect serious men to write their new governing text. They voted differently that time: “In such extreme circumstances the people chose, not perhaps men they loved most but those they held in the highest esteem.”
Given the transitory nature of civic commonsense, the primary focus of the new legal nobility turned right back to the problem of how to guarantee domestic order: “a final revolution was over; henceforth, the perils which threatened the nation could arise only from abuses of liberty.” Basically, men like Hamilton, Madison, and Jay knew how to proceed, for they had studied law. At another level, when Adams defended British soldiers accused of murder in Boston, he signaled that America was ready for self-rule. At a cosmic scale, Jefferson advised citizens to study law because freedom dies without it. At its inception, the nation’s builders, edifice, and philosophy were all jural and oriented toward justice.
If the law is the keystone of liberty, its logic is forged in the jury trial. Tocqueville’s brilliant inset piece in DA 1.2.8 hammers home this point. Here is the republic at work, a forum for contemplating and deciding serious matters: “Thus, the jury, the most energetic method of asserting the people’s rule, is also the most effective method of teaching them how to rule … the jury is above all a political institution; it must be considered as one form of the sovereignty of the people … The jury is the section of the nation responsible for the execution of the laws, just as the legislative assemblies are the section responsible for making them.”
By this governing logic, not by the rightness or wrongness of any single verdict, are we to consider the compounding threat of injustice. It’s the danger of mobs that gets amplified by whimsical legal systems, especially in a democracy where majorities exert crushing influence. This is why a democratic social order must prioritize the antimajoritarian notion that nobody should be judged for going against the mob. Rule number one for juries in consequential cases: all votes are needed to convict. Rule number two: arguments can be made for as well as against that absolute majority.
These are critical lessons. Eleven voting citizens are allowed to see you as an obstacle, and vice versa. A mob sees you as a scapegoat, and that is the end of it. Blood libel on the fly, a mob is the utter inversion of in dubio pro reo (when in doubt, rule for the accused). Time and reason are what make the dry, methodical experience of trials into an antidote to the majoritarian frenzy that both comprises and threatens democracies.
A jury is thus an essential political institution by virtue of being a pedagogical one: “In this way, it enters the very business of life; it molds the human mind to its procedures and becomes bound up, as it were, with the very conception of justice.” It’s the nation’s campus: “Juries, especially civil juries, help to instill into the minds of all the citizens something of the mental habits of judges, which are exactly those which best prepare the people to be free. They spread respect for the courts’ decisions and the concept of right throughout all classes. Remove these two ideas and the love of independence will merely be a destructive passion.” Passions control mobs; by contrast, juries generate the mindful responsibility that sustains freedom: “Juries teach all men not to shirk responsibility for their own actions … By forcing men to concern themselves with something outside their own affairs, they challenge that personal selfishness which rusts the workings of societies.”
The jury “must be looked upon as a free and ever-open classroom in which each juror learns his rights, enters into daily communication with the most learned and enlightened members of the upper classes and is taught the law in a manner both practical and within his intellectual grasp by the efforts of advocates, the opinions of judges, and the very passions of the litigants.” Tocqueville sums up his case for juries with one of his typically counterintuitive flourishes: “I believe one must attribute the practical intelligence and good political sense of Americans primarily to their long experience of jury service in civil cases. I do not know whether juries are much use to litigants but I am sure that they are of great use to those who judge the case. They are, in my view, one of the most effective means available to society for educating the people.”
A final lesson taught by a trial, which remains more implicit in Tocqueville, is this: lawyers are not our friends. Recognizing this, Tocqueville says the quality of judges increases as dependency on them decreases: “As you gradually introduce the jury into public business, you are able with some ease to cut down the number of judges, which is a great advantage.” Through contact with the legal caste, juries serve as the watchtowers that keep it from us. At the same time, civilization’s epic judgment between good and evil moves further inside each citizen, which provides further grounds for civil society to persist.
In view of the personal responsibility that emerges at the site of the experience of judgment, the Supreme Court’s ruling that the Constitution says nothing about abortion is hopeful. The same might be said of a Wisconsin jury’s decision to affirm the right to self-defense. In our daily lives, when we sacrifice our immediate interests by disregarding liars with whom we might agree in order to accept the word of people we find sincere if misguided, we are applying an ethics of reciprocity in circumstances of delegation and cooperation. We prefer interpersonal respect and equality as opposed to collective guilt, right, or privilege. Civil society ends when and where its legal system dissolves. Thus, it’s not a positive sign that ours is breaking into two different systems with outcomes contingent on identity and party. Nor is it good when a legal system miseducates the public about the law.
Thus, we stumble with the law in the late republic. The O. J. Simpson case (1995) indicated a staggering disconnect over the law’s meaning. One group saw it as a way to exact collective revenge; the other saw it as the way to punish an individual. Norm Macdonald relentlessly targeted the Simpson jury’s “nullification” for what it was: reverse racism, the new blood libel, a bold attack on civil society.
I miss Norm. But at least the Simpson jury indicated doubt related to the supposedly racist intentions of the Los Angeles Police Department. The case made by Robert Mueller against President Trump (2019), at one with the House’s impeachment campaigns, was unique because it stooped no further than to cast doubt on a person’s innocence—not attempting to prove his guilt—and it disallowed cross-examination. As the recent FBI raid on Trump’s estate in Florida shows, it’s also unique because it never ends. The lesson is that all trials are political, but impeachment trials are the most political of all. Impeachment hinges on the votes of senators, so it discloses no truth other than the national mood. For this reason, too, nobody is punished for distorting our view of the legal system during an impeachment trial.
That does not change, however, the deeply unsatisfactory nature of the lesson taught to us by a gaggle of impeachment lawyers. In part, Trump’s fate reflects the damage done by the Simpson trial. The “fine people” hoax just revives blood libel, which then legitimates the FBI and DOJ attacking political opponents. But it’s worse. With the government paying the bill, Andrew Weissmann and nineteen partisan lawyers found nothing against Trump and then declared him not innocent: in dubio pro populo.
In sum, the mob has decided that guilt relates to identity categories and, further, that the accused must prove his innocence. Weissmann’s inversion of the legal principle of in dubio pro reo should shock us more than the Simpson verdict. However, is not such an inversion the essence of politics? As a nation, we are now and often have been a long impeachment trial punctuated by ugly elections to decide which party is winning. Most of us always vote against the other party, so we never need any evidence beyond our instincts or dogmas.
The ultimate saving grace of our constitutional beast, however, has always been that we can change our verdict in the Republic’s next election. The national jury gets to think again and again about the trial taking place before it. Anyone care to vote for nullification?
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