Extralaw and Disorder: Political Culture of State Risk

In the United States, the later half of the 1960s is commonly seen as a period
fraught with social, political, and cultural disruptions. Most analysts of the era have
been transfixed by the smoldering of Vietnam as the prime cause of the fracture of
the traditional consensus politics of JFK and Lyndon Johnson. There were,
however, other disruptions that led to this splintering, many of them supremely close
to home. The conflagrations of napalm along the Ho Chi Minh Trail mirrored the
intensity of social discord as race riots exploded across the United States’ major
urban centers every summer from 1964 on. This issue of civil disorder, which came
to be signified as the lapse of ‘law and order’, reveals a fundamental disruption in
American thinking as the White House passed from Lyndon Johnson to Richard
Nixon. For the first time since 1932, conservatism had won a presidential victory.
Rather than reaching for a Great Society for the future, citizens had voted to protect
their lives today. They had voted to fundamentally change the way that government
related to them.
In this paper, we explore how domestic disruptions both immolated an old
political culture, and birthed another from its ashes, that remains with us today.
Indeed, though many historians have examined the disruptions in these citizens’
political thinking, this paper aims to explore them through a unique lens: risk.
Emerging from sociology, studies of risk have increasingly been applied to history, in
areas far removed from economics. In 1992, Ulrich Beck published his theory of the
“Risk Society”, in which he observed the development of “modernization risks” in the
latter half of the 20th century. Modern society thus defines its relationship to
government in terms of government’s ability to manage dangers, particularly ones
that affect all members of a given society, such as crime. Based on the principles of
early political theorists, individuals come together into a body politic to secure greater
liberties. Through the prism of the risk society thesis, one such greater liberty is
insurance, or risk-spreading, that allows individuals to have greater individual
opportunity. The liberal welfare state thus aggregates citizens in various risk pools so
that “at risk” groups are protected against catastrophic risks. The goal of the welfare
state is equality of opportunity, particularly for the disadvantaged. Specialists do
calculations to determine who indeed ought to be a “policy holder”; statistical
calculation, data, and number crunching, now more than ever, are emblematic of the
welfare state.
Historically speaking, liberal risk-sharing principles have been pervasive in
world politics since the Great Depression, when the modern welfare state coalesced.
This tendency to liberal governing principles only became stronger in the ruins of
World War II, with Social Democratic Parties becoming successful acroossed
Europe. Even the United Nations was an international risk-spreading body, allowing
individual nations’ risks to be spread to non-affected peers.
Thus the project of modern liberal government is to use statistical
methodology to manage “at risk” groups to level the playing field. But shortcomings
quickly emerge. The effect of aggregation and subjection of the individual to
membership in the various risk pools can be seen as alienating. Liberalism’s
expansiveness does represent a threat to the ability of individuals to create and
affirm their community/personal values. This fear of usurpation of individual spaces
and identities surfaces most aggressively when the terms of the liberal social
contract are not met, leaving people dissatisfied with the status quo. Nineteen SixtyEight was an incendiary year worldwide, from Tokyo to Mexico City. It seems this
was largely because liberal regimes around the world were challenged by the Left,
due to the Left’s disaffection for the rigidness of these liberal technocracies. In the
United States, however, the existence of a strong conservative party allowed for a
challenge from the Right.
The America populist Right saw the liberal commitment to risk-sharing,
particularly in crime-policy, as eminently wrong-headed. Generally, liberal
government sought not to punish wrongdoing, per se, but to manage the risks of
those predisposed to crime. Welfare has been argued against in conservative
circles as a “moral hazard”: rather than using aid to work themselves out of poverty,
“at risk” groups will simply use it as a handout, remaining under the poverty line to
continue collecting. Further, liberalism does not seek to end crime through
destroying criminal risk groups, for they see crime risk as being spreadable.
However, “average” citizens often have a different methodology in constructing what
theorist Ian Hacking calls their “risk portfolios.” Risks enter portfolios due to the risks’
ability to corrupt and undermine purity: they are pollutants. These “non-distributable”
risks cannot be insured because what is at risk is not anything tangible per se, but
rather the abstraction of purity: they hold symbolic peril which no premium can cover.
Thus, the conservative populist goal in clamoring for punishment is not to
rehabilitate, but to “defile the defilers” through revocation of membership in the social
body.
Clearly, the way “average people” perceive risks is vastly different from the
actuarial methods of liberal government. Consequently, ‘pointy-headed” liberals so
called by VP Spiro Agnew were out-of-touch technocrats that contaminated the
social body with polluting freeloaders. This popular voice came to be represented by
neoconservatism, part of new Right. Largely based on the teachings of University of
Chicago Professor Leo Strauss, neocons deny relativism, for it leads to moral
nihilism and anarchy. Douglas Murray coined the phrase “revolutionary
conservatism” to describe the neoconservative mood: not reactionary,
neoconservatives advocate the reversal of insidious social developments, while
protecting valuable modern institutions. As such, neoconservatives encourage the
suppression of toxic social behavior to reestablish moral clarity.
In the 60s, the great enemy of the neocon was the Great Society. On May 22,
1964, Lyndon Johnson stated his goals at the University of Michigan commencement
ceremony, outlining an idealistic vision of a type of “Risk Society” utopia. Like all
welfare states, his model was redistributive in nature: the nation’s material
prosperity, harnessed through tax income, was the bedrock upon which the Great
Society rested. But not only was the Great Society an attempt to redistribute wealth,
but also risk. The Great Society anticipated a raft of social insurance programs to
achieve its goals: Civil Rights, Medicare, Medicaid, etc. all mitigated risks associated
with being an American. The Great Society was consistent with the model of the
risk-managing welfare state. Its goal was to manage “at risk” citizens’ risk portfolios
and consequently allow them to arrive at universal abundance and liberty.
Two months later, Johnson’s Republican opponent offered a strong critique.
On July 16, 1964, Barry Goldwater took the stage at the Republican National
convention, as a virulent opponent of Great Society redistributionism. Goldwater
tried to take advantage of the inherent disconnect in risk assessment between
liberals and conservatives. Tying the liberal welfare state to a corruption of moral
values, Goldwater accused the Johnson administration of creating a society of
dependency. Johnson would create moral decay by rewarding civil disobedience
with the moral hazard of welfare, rather than emphasizing personal responsibility.
Further, welfare redistributed resources to those who actively created hazard
through agitation, malfeasance, and crime. Law-abiding citizens were then left
without any recourse to risk-managing resources, forced to subsidize the “criminal
class.” By claiming that liberalism was the root cause of the many disparate social
problems of the mid-60s, a populist simplification, Goldwater condensed complex
social issues into a lack of law and order. In this way, he portended “revolutionary
conservatism.”
Despite Goldwater’s best efforts to show that the Great Society risk-spreading
encouraged moral turpitude, Johnson rode a landslide to reelection in 1964.
Johnson effectively cast Goldwater as a crazed extremist whose policies were far
outside the mainstream. In 1964, urban race riots had not yet become as prominent
as they would in the latter half of the decade. But Goldwater’s call for law and order
served as a portent of the powerful silver bullet that Nixon would ultimately fire.
Crime had indeed been on the rise since 1961, property crimes would include
damage caused by riots. Johnson recognized the need to address this issue that
clearly could and would be capitalized on by Republicans during the next national
cycle. It is telling that in July 1965, a few months after his second inauguration,
Johnson announced the creation of the President’s Commission on Law
Enforcement and the Administration of Justice. Johnson’s effort was motivated to
expand his War on Poverty to address the crime issue. A committed liberal, he
believed them to be part of the same set of structural problems. Johnson’s
convocation of this Commission was a classically liberal move: the panel would
make suggestions for legislation to address crime via social justice.
The liberal commitment to share a community with reformed lawbreakers is
evident by Johnson’s explicit goals for the War on Crime as a corollary to the Great
Society. In 1967, Johnson quoted his Crime Commission. The administration’s
strategy lay in managing “at risk” groups, with the view that by equalizing risk
portfolios, crime would become a thing of the past. Since the 1930s, liberal
universalism had promised a wide consensus among the electorate, creating a
robust political coalition. Despite Johnson’s best efforts to find consensus on his
War on Crime, however, nothing could alleviate the racial violence that occurred
every summer from Newark to Detroit. This suggested liberal failure. But even in
the face of vast “disensus”, from the New Left that rejected liberal institutionalism,
and the Right that was increasingly successful at using domestic unrest to discredit
the liberal risk-sharing agenda, Johnson persisted in his commitment to welfare as a
vehicle to create national consensus.
One can see disruption threatening the liberal monolith as the 60s wore on.
As one author notes, liberals tried to stress the uncertainty surrounding the crime
statistics and the complex nature of the problem: “It was an honest answer, typical of
the constant search for accurate information by liberals who put their faith in social
science…[but] the fear was real…rather than address that fear in emotional terms,
liberals offered an intellectual response that was dismissive of what many Americans
had experienced.” Again, the elemental disconnect between liberal actuarialism and
populist, pollution-based risk assessment. This created fissures, and Republicans
jumped to fill them.
As the next presidential election loomed, conservatives did their best to take
advantage of this ideological momentum. The standard of law and order had fallen
to Nixon in 1968, a year when many Americans were increasingly galvanized against
the liberal risk-sharing project. While Vice President Hubert Humphrey clung
desperately to the liberal agenda, Nixon offered his view on law and order, most
pithily shown in his campaign ad, “The First Civil Right.”
The ad appealed to the white ethnic voters of the Silent Majority who feared
the defilement of civil disorder. In language that implicitly rejected the civil rights
movement’s disobedience, Nixon tapped into racial resentments that had simmered
as a result of the urban riots and welfare expansion. The ad evokes the fear of
pollution: the female mannequin particularly brings to mind the idea of sexual
violence, traditionally associated with racial fears. Republicans did not preach Jim
Crow racism, as many liberals suggested, but more subtle racial-tinged ideas that
blacks had fundamentally betrayed the social contract by urban defilement, and as
such, did not merit reward. In this ad, Nixon reasserted the terms of the social
contract and firmly defined the boundaries of the body politic: condemning all
manner of defilers, Nixon invokes core civic values and promises a renaissance of
stability, or in effect, “revolutionary conservatism.”
After years of gradual disillusionment, culminating in the nightmares of 1968,
Americans had finally been seduced to the Republican cause by the populist allure
of law and order. On Election Day 1968, Nixon won with 43.4% of the popular vote:
law and order had given him the Presidency. The Great Society and national
liberalism were routed by 1968 due to Republicans’ efficacy in harnessing the
theoretical separation between liberal risk-assessment methods and those of the
Silent Majority. Despite the polls’ illustrations of the importance of national
leadership, however, 78% believed that law and order was much more a local
problem than a national one. Thus, these same debates about risk persisted on the
municipal level.
It was stated that the Mayor of New York had the second toughest job in
America due to the sheer size, diversity, and complexity of the nation’s largest urban
center. In the late 60s, the job was second toughest because of the same
ideological disruptions that plagued liberals on the national stage. Johnson’s
counterpart in New York was John Lindsay, who had been elected mayor of in 1965
on the Liberal Party ticket. At the time, New York was a “City in Crisis”, rife with
fiscal problems, racial unrest, poor education, and growing crime rates. Lindsay
campaigned on liberal approaches to fix social ills.
Welfare as crime prevention was one realm where liberal risk spreading
tainted the Lindsay mayoralty. In 1967, Lindsay was tapped to vice-chair President
Johnson’s new National Advisory Commission on Civil Disorders. Lindsay quickly
proved to be the most liberal voice in the group, demanding aggressive language
that explained the status of blacks in America as due to white neglect and racism,
and advocating a risk-spreading approach; the goal was “[r]emoving the frustration of
powerlessness among the disadvantaged by providing the means for them to deal
with the problems that affect their own lives”. As Mayor, Lindsay did much to
redistribute risk: an expansion of welfare to counteract poverty underscored
Lindsay’s commitment to liberal principles. This led to an increasing strain on the
city’s budget and taxpayers. High taxes translated into higher rates of corporate
relocation and deindustrialization, making the quality of life in the city take a plunge.
Unfortunately for Lindsay, data did not support his policies. Further, due to welfare
outlays, by 1973, there was a city budget crisis on the horizon.
Consequently, Lindsay did not get much affection from outer borough white
ethnics, the same disaffected citizens who were Nixon’s Silent Majority, seen in Pete
Hammill’s article of April 1969. The administration never chose to engage with the
ethnic neighborhood, with its set of shared morals, customs, and values. Rather, the
Lindsay liberals expected their elite method of crime control to be palatable to those
who inherently did not agree with their methods of determining risk.
Following Lindsay’s term in office, New York was increasingly seen as riddled
with blight, moral, economic, and structural, abandoned to wallow in filth, both literal
and metaphorical. By the early 1970s, individuals increasingly perceived liberal
crime principles at both the Federal and municipal level to be disdainfully failing
them. In New York City, both Lyndon Johnson and John Lindsay had let citizen
down. NY’s municipal crisis was made prominent in the national mind thanks to one
of Lindsay’s more lasting contributions to the city. Lindsay, a failed actor, had
created the Mayor’s Office of Film, Theatre, and Broadcasting in 1966 to offer
opportunities to portray the city in popular media. However, New York films of the
1970s almost never conveyed the city in a positive manner. A new generation of
directors desired to fundamentally remake American cinema by incorporating film
theory, European film styles, and a penchant for realistic depictions of urban life.
This “New Hollywood” movement created films that “showed” New York as “the last
days of American civilization,” according to New York Times film critic Vincent
Canby.
Lindsay’s liberalism caused a pall of violent desperation to descend over the
city: citizens craved redemption. As seen in Hamill’s piece, vigilantism represented
an alluring populist myth. Citizens could defend their neighborhoods from the
disorder that came from the moral hazards of liberal welfare, and in so doing,
recreate an America that held promise for them. Vigilante films offered beleaguered,
New Yorkers a way to vicariously redeem their country.
Nixonian, neoconservative rhetoric was utilized in Death Wish to induce fear,
and the gratuitousness of Kersey’s violent escapades offered the ability for average
citizens to have a sense of catharsis. In an article entitled “What Do They See in
Death Wish?” Judy Klemestrud profiled the film, particularly the fact that despite
mixed reviews, people continued to line up to see the film, and applauded and
cheered as the body count rose. Said one woman “I think what Bronson did is
right—no one else is doing anything…Our system just isn’t working today. So you’ve
got to protect your own self.”
Overall, risk is a powerful totem that concentrates much of society’s psychic
energy, often without them realizing it. It serves to concentrate fears about pollution,
purity, morality, and social fabric. By utilizing it as a historical lens, we are thus
empowered to see American political disruption in a unique way. While on the face
of it, it may be easy to state that law and order politics served as a destructive,
disruptive force, understanding risk seems to suggest that “revolutionary
conservatism,” similar to the race riots that smoldered each summer in the 1960s,
offered certain citizens something constructive. In the most contradictory of ways, it
offered hope to those who ostensibly had little to hope for. It promised the
opportunity to have a society that once again made sense, one in which citizens
were protected from crime, rather than being subjected to it by a dysfunctional
government.
In this way, the risk-assessment dispute of the 1960s and 1970s has had a
profound effect on American politics. In 1968, Nixon offered many voters the chance
to have government consistent with their ideological underpinning, and which spoke
directly to their fears, and this law and order rhetoric contributed to conservative
dominance of the White House until Barack Obama took office in 2008. Municipally,
with the near 30 years of neoconservative mayoral administrations in New York, until
the recent election of Bill De Blasio, New Yorkers have also rejected liberalism in
favor of neo-conservatism. Very recently, commentators on the Right have
denounced the liberal policies of Baltimore City Hall as the root cause of the racial
unrest there.
As we have seen, this rhetoric of disruption is unfortunately not new. It seems
that civil disruptions will continue until the central ideological disruption, a difference
in reading risk, is addressed. Many, on both the Left and Right, have been mugged
countless times by reality in the past 50 years, and have demanded satisfaction,
sometimes in the form of violence. Rather than appealing to extralegality, those who
have felt victimized can only be healed through the catharsis that can come from the
sharing of grievances, the management of feelings of alienation, and from creative
collaboration. In this way, our modern political culture of disorder may be disrupted.