If the 2016 presidential election cycle could be defined in just one word (difficult, I know), it might just have to be “precedent”. Or perhaps “unprecedented”, as the latter seems to be getting thrown around with careless abandon recently, and more specifically in the past 3 weeks since Donald Trump’s “unprecedented” victory over Hillary Clinton. For some political observers, media outlets and pundits (on both sides), pretty much every aspect of this election has been “unprecedented”, the term typically delivered with a notable amount of condescension and disbelief.
A female major party candidate winning the primary? Unprecedented.
A potential “first gentleman” instead of a first lady? Unprecedented.
Pending lawsuits waiting at the heels for a new president elect? Unprecedented.
NPR even went as far as to explain why the whole election was “unprecedented” in 65 different ways.
It’s all “unprecedented”, right down to Donald Trump’s confoundingly consistent combover and Hillary Clinton’s seeming inability to understanding, even as Secretary of State, how top secret labels on emails actually work. Heck, the word “unprecedented” reached its highest level of interest on Google searches since Google’s unprecedented introduction to the world with more people than ever before trying to figure out what the word even means.
Unprecedented, unprecedented, unprecedented. Maybe if we keep say the word, perhaps faster and with much more gusto, it will actually stop being the empty shell and veiled demand for a continuance of the status quo--or a rebuke of ideas we don’t like--that it really is. This year’s obsession with precedent has, in a way, shown our true colors. We Americans don’t want change. We want precedent. The problem is that both sides of the isle are fighting to preserve their idea of what that means.
Historical Precedent for “Precedent”
When did American media become so obsessed with precedent? It certainly wasn’t this election cycle, although, with so many “unprecedented” things happening this year, the term has certainly never enjoyed its moment in the spotlight so much. But its constant use is perhaps indicative that we Americans have forgotten that “precedent” is not how things work around here. Or at least, not how they should work.
Cycle back to June, 1776. The United States is coming closer to direct conflict with its not-so-benevolent masters back in England. Ever the champions of the enlightenment, America’s Founding Fathers pick Thomas Jefferson to draft a declaration that would inevitably give the proverbial middle finger to the British Crown and forever define what America actually represents. Jefferson, hands sweaty (we assume) with excitement and anxiety, puts quill to parchment and writes out these unprecedented words:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
At this time, the proclamation that one’s rights are not conferred by a government but are instead a matter of divine providence was -- wait for it -- unprecedented. Jefferson’s words would set forth a wave of unprecedented changes, not just for the colonists yearning to be free, but for much of the rest of the world. The rising tide of American-style democracy was a direct -- and unprecedented -- result of what Thomas Jefferson penned and what the signers of the Declaration of Independence confirmed.
The United States, our grand experiment, was founded on the idea that precedent is just a friendlier way of saying “let’s just keep doing things the way we’ve always done them,” a perspective that our country was founded to wholeheartedly reject.
Not My Precedent
Fast forward back to 2016. Somehow, we’ve turned “unprecedented” (e.g., “change”) into an ugly word. American jurisprudence now tends to heavily rely on precedent as a means of making tough legal decisions that affect individual lives and the of the entire country.
In a legal sense, “precedent” is generally defined as “ a case which establishes legal principles to a certain set of facts, coming to a certain conclusion, and which is to be followed from that point on when similar or identical facts are before a court.” In many ways, this helps streamline the process for judges and juries in making decisions for how to rule in complicated court cases. As far as efficiency is concerned, it’s an effective means of ruling on these tough cases. However, constantly relying on precedent in itself assumes a dangerous conclusion: that the “precedent” set down was actually correct in the first place.
There was precedent -- legally -- for the denial of human rights in the United States. Slavery was written into our laws and allowed to exist even after the founding of the United States and subsequent induction of new states into the Union as a matter of compromise, and all based on precedent. So it was that Abraham Lincoln’s emancipation proclamation was itself “unprecedented”. So, too, was his expansion of the unenumerated powers of the executive branch, something no president has sought fit to decrease over time.
Still, the reason why the precedent of slavery finally ended was not because most people believed it was wrong, but that enough people who held the right amount of power saw the error in that precedent and sought to change it. Even some of our history’s well-known slave owners, such as Thomas Jefferson (whom many at his own founded university now seek to wipe from the institution’s collective memory) had this to say on slavery:
There must doubtless be an unhappy influence on the manners of our people produced by the existence of slavery among us. The whole commerce between master and slave is a perpetual exercise of the most boisterous passions, the most unremitting despotism on the one part, and degrading submissions on the other. Our children see this, and learn to imitate it; for man is an imitative animal. This quality is the germ of all education in him.
Even the infamous Confederate General, Robert E. Lee was opposed to the institution. In a now-famous letter to his wife, he wrote:
In this enlightened age, there are few I believe, but what will acknowledge, that slavery as an institution, is a moral & political evil in any Country. It is useless to expatiate on its disadvantages. I think it however a greater evil to the white man than to the black race, & while my feelings are strongly enlisted in behalf of the latter, my sympathies are more strong for the former.
To be fair, he followed this statement with a rather demeaning explanation of why blacks were better off enslaved in the U.S. than free in Africa, and that the “painful discipline” of slavery was “necessary for their instruction as a race” in order to “prepare & lead them to better things.” However, his final conclusion leans toward the ending of slavery as a necessary and natural progression of things, and his admonishment of the institution, especially in the wake of the “mild & melting influence of Christianity” reveal the complexity of the issue at the time. Slavery was a bad precedent. Many people in power and influence and otherwise knew it. Its perseverance up until the 13th Amendment was bad precedent. It’s very public and very rapid deconstruction, however, was roundly unprecedented. And that was a good thing.
Yes, Jefferson and Lee were men of their time, hypocrites beholden to the precedent of slavery while also decrying its inhumanity. They did not enjoy it. Yet in today’s time, few people seem to question hypocritical adherence to precedent, instead deferring to it as a means of justifying their own preferred status quos.
So it is that when Trump surrogate and Great America PAC spokesperson Carl Higbie cited Japanese internment as a potential precedent for a Muslim registry, many in the media rightfully called foul, especially Fox News' own Megyn Kelly. Yet liberals and Democrats in America still fail to denounce the very man responsible for such a detestable precedent in the first place: Franklin D. Roosevelt.
When we create a villain out of Richard Nixon for his unprecedented wiretapping on political opponents, yet we allow our history books to still hold up as a savior to the people the president who took a page out of Hitler’s playbook to round up and imprison thousands of innocent Japanese-American citizens, we have to wonder whether our love of precedent is based on our desire to preserve the rights of everyone, or just our desire to coddle our own favored jurisprudential victories.
And when we start rejecting change we don't like simply because it's "unprecedented," perhaps it's time we start questioning our unwavering reverence for “precedent”.