Opinion | Criminal Justice

A better response to political violence in America

The views expressed by contributors are their own and not the view of The Hill

Jan. 6, 2021 was a dark day in American history. Americans invaded a cherished public building, created havoc and caused five deaths. They tried to prevent Congress from accepting the results of an election after legal challenges had been uniformly rejected by state and federal courts.   

Accountability and prosecutions are essential. But how far should they go? Should the Senate be forced to spend all of its time trying a president who has left office instead of responding to urgent needs? Can it do both? Who should be prosecuted for misconduct other than those who caused or engaged in violence? 

A firm response is needed. But, as Rep. Jim Clyburn (D-S.C.) wisely suggested, too wide a net will interfere with President Biden's agenda. It would also unnecessarily provoke resentment.   

A balance must be struck based on our nation's experience and strengths, not on vindictiveness or despair. We must see this event in historical perspective so as not to overreact. We must take into account the former president's responsibility, the stress generated by the pandemic and the need to maintain at least our current level of success in pursuing our ideals.  

Historical perspective: Calling the invasion of the Capitol an "insurrection" or an "uprising" adds nothing to its relative significance in American history. America has had many "revolts," some more seriously intended, most more dangerous, than what happened on Jan. 6. Putting aside the Revolutionary and Civil Wars, we experienced:  

  • The Whiskey Rebellion from 1791 to 1794, when thousands of farmers refused to pay a tax on whiskey. Several lives were lost, and the revolt ended only when President Washington raised over 12,000 militiamen. He pardoned the few perpetrators brought to justice.   
  • The dangerous effort by Aaron Burr to foment a revolution in the Louisiana Territory. 
  • Several deadly attacks by White settlers and Native Americans against each other. 

      

  • The Dorr Rebellion from 1841 to 1842, aimed at expanding the right to vote in Rhode Island.  

      

  • Several slave revolts and, during Reconstruction, several attacks in which thousands of Blacks were killed, including two that resulted in the takeover of state legislatures.  

     

  • The New York City draft riots of 1863, which turned into attacks on Blacks, resulting in 120 dead. 

      

  • An attack at the Capitol in 1954 by four Puerto Rican nationalists who shot at members of the House of Representatives, wounding five congressmen. Their life sentences were commuted by President Carter. 
  • Many violent reactions to police brutality, including recent attacks by protestors on the federal courthouse in Portland and occupation of a neighborhood in Seattle.   

This partial list makes clear that violence has always been part of American life. That others have acted illegally - and more violently - does not excuse what happened on Jan. 6. But the record shows that we can manage and move on from such attacks, often with compassion.   

Celebrating the positive: In shaping our response to the Jan. 6 incident, we also must not sacrifice the significant consensus we have achieved as a nation on crucially important issues. On Jan. 5 Georgia voters - in a revolutionary development led by Stacey Abrams - elected a Black and a Jew to the U.S. Senate. Most Americans, including Republicans like myself, admire seeing the people of what during my own lifetime was a racist state achieve a new level of equality. Furthermore, the first woman vice president in American history has been sworn into office, the biracial daughter of immigrants.   

The conduct of some key Republicans has also been admirable: Georgia's Secretary of State Brad Raffensperger refused to compromise his duty to report the election's results; Gov. Brian Kemp refused to interfere; Vice President Pence refused to attempt to reject certified election results; and Senate Majority Leader Mitch McConnell condemned the riot and is exhibiting the institutional commitments of a true conservative.

Congress overrode the veto of a bill that establishes a process for removing offensive monuments. Mississippi has removed the Confederate flag from its state flag. Our constitutional system continues to move the nation towards long-held goals. A single-minded focus on punishment would be both disconnected with our historical experience and insufficiently appreciative of our continued progress.   

The claim that America has lost its innocence, its ability to lead and its capacity to set an example for the world is itself a myth. America's greatness rests on no such claim. We are not innocent. We do not always lead. We do not always set a good example. We are not a shining light to humanity on every issue. But we have saved the world from repression and continue to be committed to a level of freedom that is difficult to manage but gives us great strength. We know we have work to do, and most of us are ready to pursue what is right, including a program to respond to the divisions that have caused the current crisis.    

The balance we need to strike is clear. It is to preserve the rule of law in a manner that takes account of our history and is flexible and compassionate enough to maintain the communal solidarity to continue advancing our ideals.   

Abraham D. Sofaer is the George P. Shultz Senior Fellow Emeritus at The Hoover Institution at Stanford University. Sofaer has served as a U.S. district court judge and a legal adviser to the Department of State 

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