The recent uproar over whether the Democrats’ machinations against President Donald Trump are comparable to a lynching has died down, as uproars surrounding our 45th president always do. But further exploration of the question may yield something useful, not only to Trump but to the nation.
People have called what’s happening to Trump a witch hunt, a silent coup, a kangaroo court, a Star Chamber, a vendetta, a jihad—but for him to call it a lynching? As Illinois Democrat Bobby Rush bellowed, “What the hell is wrong with you?”
Rush’s point is that “lynching” connotes much more than just the absence of due process, which is what Trump was complaining about. To Rush, it means the murder, often with gruesome torture, of “people who look like me.”
My counterpoint was that lynching historically involved a great deal of activity that was not directed at blacks and had nothing to do with race. And I urged everyone to view this and all public issues from a broader perspective than just what it means to “people who look like” themselves.
Some American Greatness readers thought I went too far, by seeming to minimize the horrific history that animates Rush’s outrage. I wouldn’t want to do that, so let’s look at it some more.
President Theodore Roosevelt famously said to “speak softly and carry a big stick.” Here is something he said that’s not so famous. In 1903, he wrote to Governor Winfield Durbin of Indiana, commending him for the strong stand he had taken against lynch mobs in his state:
My Dear Governor Durbin: Permit me to thank you as an American citizen for the admirable way in which you have vindicated the majesty of the law by your recent action in reference to lynching. . . .
All thoughtful men must feel the gravest alarm over the growth of lynching in this country and especially over the peculiarly hideous forms so often taken by mob violence when colored men are the victims, on which occasions the mob seems to lay most weight, not on the crime, but on the color of the criminal.
Just how hideous? Consider the story of Henry Smith, who was lynched in Paris, Texas, in 1893. According to several witnesses—who never testified at the trial Smith never received—he had abducted, raped and murdered a 3-year-old girl as revenge on the girl’s father, a sheriff’s deputy who had recently clubbed and arrested him for being drunk and disorderly. (Read the details of what happened to Smith. Take your time. It’s rough going.)
Smith’s guilt appears to have been pretty well established. But I thought burning went out with Joan of Arc. Not even the Salem witches were burned at the stake.
Continuing with Roosevelt’s letter, it reads almost as if he was thinking of Henry Smith:
In a certain proportion of these cases the man lynched has been guilty of a crime horrible beyond description; a crime so horrible that as far as he himself is concerned he has forfeited the right to any kind of sympathy whatsoever. . . .
Every effort should be made under the law to expedite the proceedings of justice in the case of such an awful crime. But it cannot be necessary in order to accomplish this to deprive any citizen of those fundamental rights to be heard in his own defense which are so dear to us all and which lie at the root of our liberty.
Roosevelt objected especially to the torture that frequently accompanied such lynchings:
There are certain hideous sights which when once seen can never be wholly erased from the mental retina. The mere fact of having seen them implies degradation. This is a thousandfold stronger when, instead of merely seeing the deed, the man has participated in it. Whoever in any part of our country has ever taken part in lawlessly putting to death a criminal by the dreadful torture of fire must forever have the awful spectacle of his own handiwork seared into his brain and soul. He can never again be the same man. …
Surely, no patriot can fail to see the fearful brutalization and debasement which the indulgence of such a spirit and such practices inevitably portend. Surely, all public men, all writers for the daily press, all clergymen, all teachers, all who in any way have a right to address the public, should, with every energy, unite to denounce such crimes and to support those engaged in putting them down.
As a people we claim the right to speak with peculiar emphasis for freedom and for fair treatment of all men without regard to differences of race, fortune, creed or color. We forfeit the right so to speak when we commit or condone such crimes as these of which I speak.
What’s remarkable about this letter is the fact that Roosevelt—who didn’t shrink from killing, whether it be enemy soldiers on San Juan Hill or wild beasts on safari in Africa—formerly had been keen on vigilantism.
In 1884, as a young rancher in Dakota Territory, he and a friend sought to join Granville Stuart’s vigilantes in neighboring Montana. (They were turned down as “too socially prominent” to belong to a secret society.) Two years later, on the other hand, Roosevelt and two others pursued and captured three fugitives who, fearing Stuart’s vigilantes, had stolen Roosevelt’s boat and fled downriver in it. Having caught up with them and taken them without a fight, he delivered them to the nearest sheriff, at considerable strain and risk to himself, with the help of a wagon driver who, TR later wrote, “could hardly understand why I took so much bother with the thieves instead of hanging them offhand.”
A chronicler of that incident wrote that “such magnanimity” toward captured outlaws “was uncommon in his time and place.”
Not that Teddy had suddenly gone soft. When in 1891 the nation was abuzz about the lynching in New Orleans of 11 Italians suspected of being involved in a Mafia hit on the local police chief, Roosevelt wrote to his sister, “Personally I think it rather a good thing.”
As I’ve noted previously, putting the fear of God into the Mafia may indeed have been a good thing for the public officials who have to go toe-to-toe with it. Even so, Americans “as a people” no longer commit or condone lynching. White Americans, in particular, are highly unlikely to form a mob over anything. Not even 9/11 provoked us to run riot.
Regrettably, however, mob violence has not gone away altogether. I remember this tragic event, which happened just up the highway from me in Austin:
A crowd of Juneteenth partyers outside an East Austin housing project turned violent with several beating a man to death after the car he was riding in apparently struck a small child. A veteran police official said Wednesday that he never had seen such a “spontaneous” eruption of mob violence. Witnesses reported that several males attacked David Rivas Morales, 40, who was riding home from a painting job with a co-worker . . . [and] stepped out of the vehicle to defend the driver from the angry crowd. . . .
No arrests have been made. Police declined to identify the toddler who was struck in the parking lot Tuesday night, but said he was not seriously injured.
One man was later convicted on reduced charges in Morales’ death, and a 16-year-old boy admitted to manslaughter in juvenile court. Both got probation.
Let’s compare and contrast the deaths of Henry Smith and David Morales. Both involved a young child; both involved a mob of one ethnic group and a victim of another. But what happened to the child in the first case was a fiendish crime, which she did not survive; in the other, it was a traffic accident in which the child was not badly hurt. The first case is an example of something—the infliction of summary justice by whites on blacks—that has passed into history; the other is an example of something—an eruption of violence by blacks on Mexicans, on whites, on Asians or on one another—that remains an ongoing problem.
Neither case resulted in meaningful punishment for the mob. And in the latter case, the law’s powder-puff treatment of the perps is precisely the sort of thing that drove Americans, once upon a time, to take the law into their own hands. That’s the problem that needs to be fixed today. Is there no golden mean between what happened to Smith and what didn’t happen to the killers of Morales?
How to put the force back into law enforcement? Here is what Roosevelt recommended in his letter to Governor Durbin:
It certainly ought to be possible by the proper administration of the laws to secure swift vengeance upon the criminal; and the best and immediate efforts of all legislators, judges and citizens should be addressed to securing such reforms in our legal procedure as to leave no vestige of excuse for those misguided men who undertake to reap vengeance through violent methods.
Men who have been guilty of a crime like rape or murder should be visited with swift and certain punishment, and the just effort made by the courts to protect them in their rights should under no circumstances be perverted into permitting any mere technicality to avert or delay their punishment. The substantial rights of the prisoner to a fair trial must, of course, be guaranteed, as you have so justly insisted that they should be; but, subject to this guarantee, the law must work swiftly and surely, and all the agents of the law should realize the wrong they do when they permit justice to be delayed or thwarted for technical or insufficient reasons. We must show that the law is adequate to deal with crime by freeing it from every vestige of technicality and delay.
That recommendation is something we should take up today. I quoted TR’s letter on the eve of President Trump’s inauguration as pointing toward a solution to the seemingly insoluble problem of how to fulfill his campaign promise of an abrupt end to the crime and violence too many Americans still endure.
I argued that the fulfillment of Trump’s promise implicitly requires some version of the legal reforms Roosevelt advocated and that such reforms can come only through an alteration of the Supreme Court’s doctrine regarding law enforcement in general and the death penalty in particular.
I emphasized that whatever we did to challenge that doctrine must get quick results, or we would make a liar out of the man who vowed to restore public safety “very soon.” I accordingly suggested we forget what we’ve been doing since Earl Warren’s day, which is to try to appoint enough law-and-order justices to the court to bring about a reversal in its policy. That hasn’t worked in 50 years.
I quoted also James Madison, who insisted that what is today called an “originalist” interpretation of the Constitution is the only legitimate means of construing it, and Benjamin Cardozo, who derided and rejected the “exclusionary rule,” the epitome of what Roosevelt condemned as justice-thwarting technicalities.
I adapted the words of Madison, Roosevelt, and Cardozo, respectively, into three sentences that comprise the text of the constitutional amendment I believe is the only likely way of effecting the rapid change our long-suffering crime victims—and all who heard Trump’s campaign promise and took it seriously—have a right to expect:
The sense in which this Constitution’s eighth article of amendment was accepted and ratified by the nation shall be the guide in expounding it, precedents to the contrary notwithstanding.
So that the perpetrators of violent crimes may meet with swift and certain retribution, the courts’ effort to protect them in their rights shall not be perverted into permitting any mere technicality to avert or delay their punishment.
Rules governing law enforcement shall be so designed as to protect the individual without imposing a disproportionate loss of protection on society.
That much I wrote for National Review. Since then, most of what I have written for American Greatness has, in one way or another, developed the case for achieving the goal Roosevelt prescribed, Trump promised, and only a constitutional amendment can deliver.
We are no longer working under the pressure, as in Roosevelt’s time, of persuading vigilantes to stay their hands and let the law run its course. All the more reason why we “as a people” should take effectual steps to make the law itself come (as one early beneficiary of vigilante intervention put it) “to the Assistance of the Innocent and Helpless.”
Can anyone doubt that achieving a radical reduction in crime would be of tremendous benefit, not only to the country but to the fortunes of the president and his party? It’s a political weapon, lying there in plain sight, waiting for anyone to seize it. Someone needs to get the word through to the boss: “Mr. President, here is a ‘big stick’ with which you can lay waste to the Left. You’ve glanced at it often enough. Now pick it up and use it!”