In the winter of 1858, Abraham Lincoln answered an admirer seeking advice on the study of law. Where should a beginner start? Lincoln replied by citing a basic library of works by four authors. Two were American; two were English. Lincoln did not assert an “Anglo-American legal tradition.” He took it for granted, as has every American lawyer and judge before and since.
Such basic concepts as “torts” and “felonies” are English—other legal systems are organized quite differently. The conception of the judge as a disengaged regulator of a trial, rather than an active participant in it, is English too. Not only sheriffs, but also bailiffs and grand juries originated in England. U.S. constitutional law is derived from Great Britain: The “cruel and unusual punishments” clause of the Eighth Amendment of the U.S. Constitution is reproduced verbatim from England’s 1689 Bill of Rights.*
As a reader of The Atlantic, you surely already know all this. I would fear that I’m wasting your time by repeating these basics of American history—if we had not just emerged from a 36-hour social-media rage-spasm against Attorney General Jeff Sessions for merely referencing these incontrovertible and familiar facts. “The office of sheriff is a critical part of the Anglo-American heritage of law enforcement,” Sessions said in a speech.
“Do you know anyone who says ‘Anglo-American heritage’ in a sentence?” Senator Brian Schatz tweeted in response. “What could possibly be the purpose of saying that other than to pit Americans against each other? For the chief law enforcement officer to use a dog whistle like that is appalling.” That storm has subsided, as social-media storms so often do. I sense that some of the participants now feel a little sheepish about the whole thing. But maybe it’s worth talking about it a little longer, because there are some authentically valuable lessons to be learned from the episode.
One of the great positives of the Trump presidency is the way that it has forced a confrontation with wrongs and evils too often shrugged off. The overwhelming visibility of President Trump has projected his lifelong cruelties and brutalities onto the world’s hugest Jumbotron for all to see—and from that sight, millions of decent Americans have decently recoiled.
But if the recoil is powerful enough, it can propel those feeling the recoil to extremes where they would never have voluntarily traveled. Taking offense at mention of the Anglo-American legal heritage is merely absurd. For Conan O’Brian to rebuke Trump’s “shithole” comments by posing with a tropical drink in the aquamarine water of a Haitian resort is to pass from the absurd to the insensitively cruel. Fewer than half of Haitians have reliable access to water, the World Bank reports; almost 10,000 have died of cholera since 2010.
And the worst of the anti-Trump political reactions may wait ahead. In reaction to Trump, many Democrats are speaking as if immigration enforcement is inherently immoral, as if every Trump voter is a deplorable racist, as if the proper response to Trump's ethnic chauvinism is an equal and opposite counter-chauvinism.
The most hopeful possible outcome of the Trump presidency would be that it jolts America to its better self—that it reaffirms democratic norms, recalls Americans to civility and character, and reinvigorates the political center. The most dangerous alternative outcome would be that Trump’s pendulum swing to one kind of illiberal extreme generates momentum for an extreme swing in the opposite direction. Speaking of Britain, we’ve seen in the United Kingdom that anti-system political energy has flowed toward Jeremy Corbyn’s Labour Party, flecked by anti-Semitism. In Germany and Italy, the ultra-left has grown in tandem with the far right. It could happen here too. It may be happening here too.
It’s a supremely important question for the future whether anti-Trump energies restore moderation—or instead inspire counter-radicalization. The overheated reaction to the Sessions non-gaffe demonstrated how the question can be answered wrong. Deep breaths and calmer second thoughts, please.
* This article originally stated that the "cruel and unusual punishments" clause was in the Fifth Amendment. We regret the error.
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