Violence and Political Incivility - David Lyons

• Jurisdiction: United States,Federal
• Publication year: 2012
• Citation: Vol. 63 No. 3

Violence and Political Incivility

by David Lyons*

The charge to our panel refers to "the deterioration of the political conversation," to "deep . . . divisions in society," and to recent vio-lence-especially the tragic events in Tuscon.¹ It asks us to identify "the virtues required for our common life as citizens in a democracy and for civil democratic conversation."² I shall offer observations and conjectures on each issue, stressing the historical background.

Let me suggest, first, that the nonconstructive and increasingly abusive character of our political discourse may be relatively mild manifestations of an even more troubling malaise of our society-commonplace unlawful violence. I wish to draw your attention to a neglected aspect of that problem. When violence is addressed, we usually focus on practices that are condemned and targeted by public officials and fail to consider the illicit role that officials themselves have often played. A central feature of our civilization since the earliest colonial times has been unlawful violence that is tolerated, encouraged, or engaged in by public officials.

Let us go back in time. Land and labor were the two great needs of early English colonists in mainland North America. Land was needed to accommodate increasing numbers of immigrants. Labor was mainly sought by those colonies, such as Virginia, that developed economies, and ultimately social systems, built upon the production and export of cash crops such as tobacco and cotton. The latter also created a demand for agricultural land.³

* Professor of Law and Law Alumni Scholar, Boston University School of Law; Professor of Philosophy, College & Graduate School of Arts and Sciences, Boston University. Harvard University (Ph.D., 1963; M.A. 1963); Brooklyn College (B.A., 1960).

1. See Purpose Statement, Mercer Law Review Symposium 2011, Citizenship and Civility in a Divided Democracy: Political, Religious, and Legal Concerns, Mercer Law (Oct. 7, 2011), http://www.law.mercer.edu/content/law-review-symposium-2011.

2. Id.

3. For all aspects of the colonial period, see generally Gary B. Nash, Red, White, and Black: The Peoples of Early North America (5th ed. 2006).

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Native Americans, or Indians, although ambivalent about the newcomers, allowed them to establish a settlement and, more importantly, food when the latter faced starvation. The colonists thereafter acquired land in various other ways, but mainly by force. As European immigration accelerated and diseases carried by the newcomers swept devastatingly through the nearest tribes, colonial settlers soon greatly outnumbered their indigenous neighbors. So when the colonists' aggressive expansion led to Indian uprisings, Indians were unable to drive the colonists out. The colonies imposed treaties under which tribes ceded most of their territories.⁴

Treaties between colonies, and later between the United States, and Indian tribes, usually stated that the newly demarcated and reduced Indian lands would be guaranteed forever. But the guarantees were rarely, if ever, respected. That was standard colonial practice and became standard U.S. government practice, which continued into the twentieth century.⁵

That coercive, often violent process began in colonial Virginia. It continued, for example, in colonial New England-most tragically when colonists from Massachusetts, seeking control of Connecticut, massacred Pequot women, children, and elders in Mystic-and in the trans-Appalachian West when the colonies did nothing to stop violations of the Royal Proclamation of 1763. The unlawfully violent process continued after Independence during "Indian Removal" from the Eastern states-when the Cherokees, for example, were evicted from their territory and forced onto the devastating "Trail of Tears," although the law required their consent;⁶ in the newly established state of California where Indians were displaced, enslaved, and decimated;⁷ in the newly acquired Southwestern territories, which had been taken by force from Mexico;⁸ and in the new Northwest.⁹ The violent seizures of land continued in the Great Plains (partly by destroying millions of buffalo as a means of starving the resistant and resourceful tribes) and was

4. See generally id.

5. See generally Cohen's Handbook on Federal Indian Law (Nell J. Newton ed., 2005).

6. See generally Stuart Banner, How the Indians Lost Their Land 191-227 (2005).

7. See generally Robert F. Heizer & Alan J. Almquist, The Other Californians

(1971).

8. See generally Juan Gonzalez, Harvest of Empire 27-57 (rev. ed. 2011); Malcolm

Ebright, Land Grants and Lawsuits in Northern New Mexico (2d prtg. 1996).

9. See generally Chief Joseph, The Fate of the Nez Perces Tribe, 1879, in Great Documents in American Indian History 237 (Wayne Moquin & Charles Van Doren eds., 1973).

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punctuated, though not quite ended, with the massacre at Wounded Knee.¹⁰

Violence was applied outwardly too, though it was not always so blatantly unlawful. For example, the U.S., as already noted, provoked a war with Mexico in order to seize half of its neighbor's territory. American planters and missionaries, with the illicit aid of U.S. Marines, seized control of the independent nation of Hawaii so that it could be annexed by the U.S.¹¹ During the same period, Puerto Rico and the Philippines were taken from Spain by force. The Filipinos had nearly achieved independence from Spain and resisted U.S. colonization. In order to overcome their resistance, the U.S. Army was obliged for several years to conduct a war upon that population.¹² In view of popular American sympathy for the Cuban revolution, which had all but succeeded against Spain prior to American intervention, the U.S. refrained from formally making Cuba its colony. However, the U.S. Army forced the Cuban Constitutional Convention to accept the substance of the Platt...