In the wake of this summer's police brutality protests, President Donald Trump has in recent weeks tried to frame the election as a referendum on "law and order." In many ways he has succeeded; "Race and Violence in Our Cities" was a heated and lengthy section of Tuesday's first presidential debate. "The people of this country want and demand law and order ... and you won't even say the phrase," Trump challenged former Vice President Joe Biden. "I'll say it," Biden countered, claiming that he believed in "systematic injustice" while also supporting most police officers and opposing violence.
The term "law and order" is itself a natural fit for Trump's vocabulary: Widely associated with white reactionary politics, it has little to do with maintenance of the law.
The term "law and order" is itself a natural fit for Trump's vocabulary: Widely associated with white reactionary politics, it has little to do with maintenance of the law and more to do with fomenting racial resentment. As early as 1968, some began to understand the term as "a shorthand message promising repression of the Black community."
But recent polling in key states suggests that voters seem to narrowly prefer Democratic nominee Joe Biden on matters of law and order. Despite punditry to the contrary, it shouldn't be surprising that Biden leads on this issue; he's been running law-and-order campaigns since 1972. It is important to note, however, that Biden is also trusted in handling the protests and race relations. Together, this highlights one of Biden's political secrets to success. For the last 48 years, Biden's fortunes have rested on his ability to present himself as a champion of seemingly opposing issues. November's election will be a test of this decades-running formula.
Today, Biden is just weeks away from completing his 13th, and possibly final, bid for elected office. When he announced his candidacy for the Senate in the early months of 1972, his only political experience was a brief stint on the New Castle County Council. In fact, Biden was so young that at age 29, he was constitutionally ineligible for the seat during the entirety of his campaign (he turned 30 two weeks after the election).
Biden's first Senate campaign was an uphill battle. Still inexperienced, he was running against J. Caleb Boggs, a two-term incumbent senator and former governor. Covering Biden's announcement, The Morning News of Wilmington vaguely summarized his positions: Biden says "he is for the poor," "for the elderly," "for law and order, but also for justice." And then, most bizarrely, he was described as being both "for and against busing." (It's revealing that when juxtaposed, the opposite of law and order is not mayhem or lawlessness, but justice.)
The campaign would be fought in the shadow of a national debate over busing, which, while rooted in education, was also very much an issue related to racial unrest and "law and order" politics. Concerns over desegregation busing had been slowly building to a boil since 1959, but the Supreme Court's 1971 ruling in Swann v. Charlotte-Mecklenburg Board of Education made it a national talking point. The court found that busing meant to "eliminate racially separate public schools established and maintained by state action" was permissible, and a backlash ensued immediately. President Richard Nixon was strongly opposed, demanding that Congress pass a "moratorium" on the practice. The same day as Nixon's address, in Biden's home state, the Delaware state Senate defeated, by only one vote, a measure that would have outlawed busing. Many others called for a constitutional convention to ban busing nationally. Biden announced his senatorial bid five days later.
Biden had vowed not to "be a fence-sitter," but his position on busing was relatively murky. He claimed to be supportive of "busing children from bad schools to good schools" but opposed to "busing to balance schools racially." In general, Biden tried to minimize the issue, calling it "phony" and saying it allowed for "white liberals to sit in suburbia, confident that they are not going to have to live next to a black."
Biden had vowed not to "be a fence-sitter," but his position on busing was relatively murky.
During the September debates against Boggs, Biden used busing as an opportunity to attack Nixon, claiming that he was "misleading" the American public. Holding the Supreme Court's ruling in Swann v. Charlotte-Mecklenburg as a prop, Biden said the decision did not permit busing "for racial balance or to avoid de facto segregation," as Nixon made it out to have done — it was instead permissible only as a "remedy to de jure segregation." For Biden, busing to remedy "de jure" segregation did not qualify as busing, and consequently he could support those efforts, but busing to solve "de facto" segregation was actual busing, which he opposed. And just like that, Biden carved out his own definition.
After the debates, Biden's star started to rise. On Nov. 7, 1972, Biden beat Boggs by a little more than 3,000 votes; it was the first of his seven successful bids for the Senate from Delaware, and it was his closest election ever.
Less than two years later, 20 years to the week after the Brown v. Board of Education decision, the Senate erupted in fierce debate over busing. Sen. Ed Gurney, R-Fla., proposed an amendment that sought to make it virtually impossible. And while Biden didn't back Gurney's amendment (which failed by one vote), he did support a bill similar in sentiment. The Mansfield-Scott amendment, with Biden's support, was a blow against the practice; it limited funds and prevented courts from ordering busing unless it was a measure of last resort.
Yet when he returned home, Biden was lambasted by constituents for having failed to back the Gurney proposal. After that, Biden increasingly feared that the issue would become "a domestic Vietnam."
The judiciary only exacerbated his fears. The next year, a federal court authorized busing in Delaware (Evans v. Buchanan). The court was unequivocal in declaring that "de jure segregation in New Castle County was a cooperative venture including both city and suburbs." On appeal, the Supreme Court sustained the ruling, and busing was to be implemented in Delaware starting in the fall of 1978, just in time for Biden's re-election.
Post-Evans, Biden's position on busing was no longer muddled. He said the ruling "was tearing people apart." Exactly 45 years ago this month, on Sept. 17, 1975, Sen. Jesse Helms, R-N.C., proposed a bill that would have killed busing. The bill was tabled, but Biden himself offered an amendment that "stands up and supports, at least in principle, an amendment on the question of busing offered by ... the senator from North Carolina." Helms celebrated Biden's amendment, welcoming him to "the ranks of the enlightened." Other prominent liberals followed Biden's example, and the floodgates opened. The Washington Post noted that "if only a conservative like Nixon could open the door to mainland China, perhaps only a liberal like Joe Biden can slam the door on busing."
Sen. Edward Brooke, R-Mass. — the first African American ever elected to the Senate by popular vote — mourned the death of the civil rights coalition in the Senate, telling The New Republic that "it is just a matter of time before we wipe out the civil rights progress of the past decade." Biden, on the other hand, celebrated, proclaiming that he had "made it respectable for liberals to raise the questions that I've been the first to raise in the liberal community." In a fiery interview, Biden declared: "I don't feel responsible for the sins of my father and grandfather. I feel responsible for what the situation is today, for the sins of my own generation. And I'll be damned if I feel responsible to pay for what happened 300 years ago."
Anticipating the 1978 midterms, Biden began to fear that "busing might cost me my seat in the coming election." His Senate colleagues James Eastland, D-Miss., and Herman Talmadge, D-Ga., suggested that he return to Delaware and "demagogue the s--- out of the issue." In order to delay, if not entirely block, the prospect of busing in Wilmington, Biden and Republican William Roth (Delaware's other senator) proposed a bill that amounted to "a color-blind assault on school desegregation" efforts. The bill caused many of his colleagues to ask how "the racists had gotten" to him. Clarence Mitchell Jr., chief lobbyist of the NAACP, voiced his concern that Biden was motivated by racism. Whatever Biden's true feelings, the tactic worked, and he ultimately cruised to re-election.
Schools in America today are more segregated than they were when Biden certainly helped the lawmakers crusading against busing.
Schools in America today are more segregated than they were when Biden certainly helped the lawmakers crusading against busing. The Wilmington Morning News' assessment of Biden as both "for and against" busing is insightful, not just as a window into his thinking about a specific policy matter, but also as a distillation of his working political theory.
The logic of "for and against" explains how Biden can simultaneously proclaim that "Black Lives Matter" but not back most of the movement's primary policy objectives. "For and against" reveals how Biden can call for an end to mass incarceration but also run TV ads calling for the prosecution of protesters. This pattern repeats itself; in recent weeks. “For and against” explains why Biden has tried to argue to white voters that it is Trump, in fact, who is the presidential candidate who will defund the police and harm the suburbs. When pressed by Trump last night, Biden declared that he’s for “law and order,” but then quickly also invoked “justice.”
Ultimately, it's a mistake to read Biden as a fence-sitter or even a flip-flopper; he's just an especially savvy law-and-order candidate. His campaign rests on his ability to be trusted by voters who want to maintain much of the status quo, without resorting to demagoguery (as his segregationist colleagues once proposed). Biden's strategy has served him well for 48 years. This week's debate is only its latest test.