"Let a crown be placed thereon, by which the world may know, that so far as we approve of monarchy, that in America THE LAW IS KING. For as in absolute governments the King is law, so in free governments the law ought to be King; and there ought to be no other." [1]

Thomas Paine wrote those words in 1776. Found in his spectacularly successful pamphlet Common Sense, they capture what many American revolutionaries hoped would define their new nation. Paine and others hoped that in this new land of liberty even the most powerful would have as much to fear from breaking the law as did the average man. This hope for a republic ruled by laws instead of men was expressed in the constitutional order they created: the fundamental innovation of a written constitution is the idea that even legislatures and presidents should be bound by a higher law.

Though the roots of "the rule of law" run deep in American thought, it is an ideal Americans have often fallen far short of. From the very beginning American society has seen many of its citizens break the law, get away with it, and at times even be celebrated for doing so. However, both the laws which were broken and those who were allowed to break them have varied greatly one generation to another. Understanding who feared the law and who flouted it is essential to understanding who has held the seat of power across America's history. 


*

Daniel Walker Howe and Lawrence Kohl both devote a chapter of their most famous books (What God Hath Wrought: The Transformation of America, 1815-1848 and Politics of Individualism: Parties and American Character in the Jacksonian America) to antebellum attitudes toward the rule of law. They rightly see this as one of the major themes of the era. Never again in American history was the law so publicly venerated and yet so flagrantly broken by such a large percentage of the population. [2]

Mr. Howe relates a revealing example of these attitudes at work:

"The militia gradually ceased to function because most male citizens resented it as an imposition, and hated serving in it so much that they either refused to show up for the musters and drills, or if they came made a mockery of the occasion. Since the men who defied the militia laws also constituted the electorate, politicians dared not attempt to coerce service. White male democracy would successfully defy the law, as squatters defied landlords and Indian treaties. Militia units continued to function only in those few places where the men took pride in participating in them." [3]

Those who refused to comply with the Federal Militia Act of 1792 fit the pattern that matches most of those who broke the law during antebellum times. They were not the rich, powerful, or well connected, but ordinary folk living in scattered agricultural communities across the United States. When they defied the law or acted outside its bounds, they usually did so as a community. Politicians who tried to impose laws against the popular will of these communities could not stay in office.

Antebellum Americans did not just disregarded the rule of law when dodging unpopular impositions. Visiting America during the 1830s, Frenchman Alexis de Tocqueville described his surprise at how common vigilantism was in the young Republic:

"In America, the means available to the authorities to uncover crime and to arrest criminals are small in number. There is no administrative police force; passports are unknown. The United States criminal police force cannot be compared with ours in France.... However, I doubt whether crime evades punishment less often in any other country. The reason for this is that everyone feels involved in providing evidence of the offense and in apprehending the offender.

During my stay in the United States, I saw the inhabitants of a county where a major crime has been perpetrated spontaneously form committees with the aim of arresting the guilty man and handing him over to the courts. In Europe, the criminal is a luckless fellow, fighting to save his life from authorities; the population, to some degree, watches as he struggles. In America, he is an enemy of the human race and has everyone entirely against him." [4]

Tocqueville describes this vigilantism in a positive light, but it had a sinister side. Often criminals these vigilantes caught were killed without due process. More ominous was the tendency of vigilantism to escalate into full blown mobbery, with communities tarring, burning, and killing minority groups like Mormons or free blacks. (Occasionally mobs formed for more benign purposes, such as those formed in New York to protect runaway slaves from federal agents). In most cases, authorities were helpless to stop these mobs. Often they joined them.


A mob gathers to kill Joseph Smith, Mormon prophet.
Image Source.

Why did a society that celebrated liberty, law, and popular government so often fail to keep the rule of law? Most Americans of the time did not see a contradiction. "Vigilantes conceived of their violence as a supplement to, rather than a rebellion against, the law." [5]  Americans of the antebellum really believed that they were in control of America. The important question was whether or not the will of the people was enacted. How it was enacted - by mob or town committees - was less important than ensuring that self governing communities were allowed to do as they wished. Of consequence, "the rule of law obtained only in places and on subjects where local majorities supported it." [6] It did not take great leaps in logic for antebellum Americans to conclude that a man empowered to make the law should be empowered to take the law in ones own hands. [7]


*


Glenn Greenwald begins one of the chapters of his book, With Liberty and Justice for Some: How the Law is Used to Destroy Equality and Protect the Powerful, with the story of Martin Joel Erzinger. In July 2010 Mr. Ezinger, manager of a billion dollar hedge fund, hit a cyclist with his Mercedes Benz and then fled from the scene. Hit-and-runs are a felony in Colorado, but the local district attorney decided not to charge Mr. Erzinger with a felony, but with two traffic misdemeanors. The district attorney justified this decision on the following grounds:

“Justice in this case includes restitution and the ability to pay it.” 
Hurlbert [the District Attorney] said Erzinger is willing to take responsibility and pay restitution. 
Felony convictions have some pretty serious job implications for someone in Mr. Erzinger's profession, and that entered into it,” Hurlbert said. “When you're talking about restitution, you don't want to take away his ability to pay.” (emphasis added) [8]

Mr. Greenwald published his book in 2011. Sadly, the number of national headlines made by these types of stories has only increased since then. Perhaps the most shocking story to break this year concerned mega bank HSBC. A Senate Permanent Subcommittee on Investigations report revealed that the bank - one of the world's largest - had laundered more than $881,000,000 into the hands of Mexican drug cartels. The bank also lent money to Middle Eastern financial institutions that were closely linked with terrorist groups. [9]

The U.S. Department of Justice decided not to indite the bank, opting instead to fine HSBC  $1.92 billion. The fine's size broke records, and Stuart Gulliver, HSBC's chief executive officer, sounded penitent: 
We accept responsibility for our past mistakes. We have said we are profoundly sorry for them, and we do so again. The HSBC of today is a fundamentally different organization from the one that made those mistakes.” 
Announcing the fine, Assistant Attorney General Larry Breuer declared the "HSBC is being held accountable for stunning failures of oversight." [10] Skeptics were quick to point out that HSBC's fine represented just 4 weeks of the bank's pre-tax income (if it had a significant effect on the bank, there is no sign - Mr. Gulliver just received a £2 million bonus). [11] Nor were any of the bank's employees or officers to face the prospect of jail for abetting organized murder. Mr. Breuer described why:
If you prosecute one of the largest banks in the world, do you risk that people will lose jobs, other financial institutions and other parties will leave the bank, and there will be some kind of event in the world economy?[12]
It seems that our financial elite are not only  too big to fail; they are too big to jail.

These are not isolated occurrences. However, I suspect that readers are much more familiar with modern America's failure to maintain the rule of law than they are with the antebellum's lawlessness, so I will not relate any more of those stories. (Mr. Greenwald's book is an excellent starting point for those less familiar). The broader pattern is clear: for a decade government officials, corporate executives, and financiers have been allowed to break laws without fear of facing the legally mandated consequences of doing so. The same cannot be said of ordinary Americans - a greater number of them dwell in prison cells than members of any other country (the People's Republic of China included). [13]


*

The contrast between the America of the 1830s and the America of the 2010s is instructive. Both display a contempt for the rule of law. In both eras those who wielded power were able to escape the law's "long" reach. In both eras those with greatest influence in the crafting of laws did not feel bound by them. What made the two eras so different is who those people were.

In 21st century America the people are not equal before the law. This inequality is one clearest indications that America has separated into two distinct political classes - one that rules and one that is ruled. There was once a time where the American people could really say that theirs was the seat of power. The same cannot be said today. 




[1]Thomas Paine. Thomas Paine: The Rights of Man, Common Sense, and Other Political Writings. ed. Mark Philip. (Oxford: Oxford University Press). 1995. p. 35.

[2] The full citations are: Daniel Walker Howe. What God Hath Wrought: The Transformation of America, 1815-148. (New York: Oxford University Press). 2007. pp. 411-446 and Lawrence Kohl. Politics of Individualism: Parties and American Character in the Jacksonian America. (New York: Oxford University Press). 1989. pp. 145-177.

[3] Howe, What God Hath Wrought, p. 492.

[4] Alexis de Tocqueville. Democracy in America. trans. Gerald Bevan. (New York: Penguins Book). 2003. p. 113.

[5] Howe, What God Hath Wrought, p. 435.

[6] Ibid, p. 422.

[7] As with so much else, Tocqueville was sagacious on this point. He notes:

"Anyone living in the United States learns from birth that he must rely upon himself to combat the ills and obstacles of life; he looks across at the authority of society with mistrust and anxiety, calling upon such authority only when he cannot do without it....

[By way of example,] should an obstacle appear on the public highway and the passage of traffic is halted, neighbors at once form a group to consider the matter; from this improvised assembly an executive authority appears to remedy the inconvenience before anyone has thought of the possibility of some other authority already in existence before the one they have just formed." Alexis de Tocqueville, Democracy in America, p. 220.

[8] Glenn Greenwald. With Liberty and Justice for Some: How The Law is Used to Destroy Equality and Protect the Powerful. (New York: Metropolitan Books). 2011. pp. 101-103; quotation is from Randy Wireck, "Alleged Hit-and-Run May Not Face Felony." Vail Daily. 4 November 2010.   

After receiving more than 1,000 letters in protest, the district attorney published a more elaborate defense of this decision. "Vail Valley Voices: DA Explains Controversial Bargain Plea." Vail Daily. 9 November 2010.

[9] Matt Taibbi offers a colorful account of these events in "Gangster Bankers: Too Big to Fail." Rolling Stone. 14 February 2013. A more reasoned and mature critique of the DoJ is found in Sarah Coxin. "What's in a Fine?" The American Interest. 5 February 2013. The executive summary of the Senate report can be found  
here

[10] Both quotes are found in Peter Finn and Sari Horwitz. "Justice Department Outlines HSBC Transactions With Drug Traffickers." Washington Post.  11 December 2012.

[11] Nils Pratley. "What Does it Take For a Bank to Get Prosecuted?" The Guardian. 11 December 2012; Nils Patley. "HSBC: Banking to a Different Set of Rules Reaps Dividends and Stability." The Guardian. 4 March 2013.

[12] Peter Finn, "Justice Department Outlines."

[13] BBC News In Depth: World Prison Populations

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