Rule of Law Revisited

While in the process of my grand plan to update all my posts to a larger font, I found three posts from 2018 about the Rule of Law. Rather than provide links to them as I usually do, I decided to revisit them, and with a few tweaks, present them word for word in this post, then comment at the end.

Here is the first, and again, these were all posted within about three weeks of each other, two in June, one in July, 2018, about two years into Trump's first term.

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There has been a lot of talk lately about the Rule of Law, how it is fundamental in our democracy, and for some, how the Trump Presidency seems to be a threat to both the basic tenets of its importance and the underpinnings of the ideals which created our Constitution and Bill of Rights.

Heady stuff!

But after reading the Lapham's Spring edition, called Rule of Law, I find my belief in the founders perspective that all men are created equal, their insistence on the three branches of government as a protection against tyranny, and the noble concept that everyone is equal in the eyes of the law, somewhat questioned.

This is not to say that I doubt the importance of the founders' grand experiment with democracy, nor their belief that rule by the people is preferable to rule by divine right.  It is clear, that some form of democratic rule in which the people have a say in the direction of their country is a far better system than one without such inclusion.

But what, exactly, were the founders' main concerns when they created those incredible documents during the tumult of our nation's birth? 

We often forget that most of those great men were land owners and/or men of business, with education and wealth beyond the vast majority of their fellow colonists.  They understood the history of property rights, were well versed in the meaning of the Magna Carta, and knew very well that commerce, personal property ownership, and laws which protected one's ability to create and sustain that wealth, were threatened by a government that found it all too easy to take without asking and tax without representation.  Was it merely about money and land?  Certainly not, but lets not be naive to think that they did not abhor taxes, at least partly, because it cut into their profits, and less so because of the morality of the issue.

In Lewis Lapham's preamble, he describes very succinctly the distinction between values which enable a democratic society to prosper as compared to values which embody a capitalistic society, especially those capitalistic values reflected in the various forms of trickle down economics that basically say that "money ennobles rich people making them healthy, wealthy and wise;  money corrupts poor people, making them lazy, ignorant, and sick."  It is this driving force that exults in tax cuts that transfer upwards of 80% of the advantage to those already rich, while justifying cuts to the safety net programs that stave off poverty, starvation and death of the less advantaged.

This is not to say that the framers wanted our country to fall to a state where only the rich have power and influence, but it is a result of their core belief that possessions and wealth must be protected from the government's grasp, and it is perfect justification for a populist leader who can manipulate that message to turn the everyday citizens against any government regulation that restricts individual rights regardless of whether that restriction protects them against polluted air and water, the destruction of the environment, or the creation of a "corporation" that has all the power of a person but no responsibilities for those people who create it when that entity breaks laws or engages in immoral acts.

When the government becomes the enemy of the people, there must be recourse for the citizens to retake rule and create a new form of government.  It is a rallying cry that was as apparent and powerful today as it was 242 years ago.  

But what do we do when the government is run by people who have perverted the rule of law to only favor those with wealth and influence, who set themselves above the law while using its tenets to control the population?  And, who do so, not through force or deceit (Mueller's probe not withstanding), but by convincing the citizenry, through attacks on the free press, government run propaganda outlets, and a constant stream of divisive tweets that divert our attention by demonizing those who disagree, are of different color or country of origin. Who then use the foundation of our unique government, the executive, legislative and judicial branches, to create a fortress of laws that will protect their wealth at the expense of the people.   

What do we do when the rule of law has been altered so insidiously that it no longer seeks justice for the many, but prosperity for the few?

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I ended my last post with the following question:

What do we do when the rule of law has been altered so insidiously that it no longer seeks justice for the many, but prosperity for the few?

Some might think it is specifically directed at the policies of the current administration, and certainly there is reason to be alert when one considers the changes that have been implemented in the area of environmental protection, consumer fraud protection, and worker's rights, to name a few.

But, after reading The Rule of Law edition of Lapham's Quarterly, it is painfully obvious that the law has been fashioned far too often to benefit those with the most, to the detriment of those in the minority or without resources.  In other words, that this is nothing new.

Two effective illustrations to that point are Lie of the Land from I Saw the Sky Catch Fire by T. Obinkaram Echewa, and an excerpt from Jill Leovy's Ghettoside.

I Saw the Sky Catch Fire consists of memories told by the grandmother of the narrator about the Women's War of 1929 in Nigeria.  It details the process by which the residents of the small villages in Nigeria slowly lost their rights, both as landowners and citizens.  To put it bluntly, "the while man made and broke laws as he went along, shook hands to treaties he had no intention of keeping, violated oaths the same day, week or month that he swore them."  Similar to how we treated the native American Indian here in North America, the law was used without concern to gain whatever those with the power and the arms wanted to gain.  When the law was violated by a native to the land, he was punished swiftly and violently.  When it was violated by someone in power, the law was changed to provide justification for whatever atrocity might have been committed.

(I could mention here the recent justification of separating illegal immigrant children from their parents, a cruel and horrendous policy that has been defended by citing, not only the rule of law but the Bible as well, but I will resist the desire to pick such low hanging fruit.)

Jill Leovy's piece reflects the research she did in the early 2000's while working as a crime correspondent for the LA Times.  For me, it addresses two salient points.  First, the wonderment of many in the white community about why law abiding citizens in minority communities, especially African American communities, do not more actively help the police turn in those criminals that live among them, and second, how those in minority communities perceive the law and the police. 

If I had a nickel for every time I heard a white, right leaning pundit dismiss statistics about the disproportionate representation of blacks in the judicial system who are arrested, charged and incarcerated with the statement, "well, they are criminals, so they should be put in jail", I would have a bunch of nickels.  The fact that most research shows a race bias in our criminal justice system, from the perception of the everyday officer, straight through to the judges on the bench, seems easily ignored.  

Sadly, there will not be a time in their lives when a white man will be transported back in time to his teenage years as a black man, to live the same life he did again with a darker skin.  Assuming he was an average youth, he most likely will have 2-3 brushes with the law, only this time his parents won't be called, he will be arrested, his bail won't be met, he will be remanded to await trial, and his sentence will be executed to "send a message", not suspended since "boys will be boys".   

Is it any wonder then, why some in black neighborhoods who have experienced first hand the effect that having a darker skin has during a police interaction, not to mention the very real possibility that they have heard family stories handed down by their parents and grandparents which describe the Jim Crow laws of the early 20th century and the complicity of the police in the lynchings of that time, might be less than encouraged to cooperate with the police? Past history indicates less than positive future results.

Leovy came to believe that inner-city violence was occurring at the level of a "public health catastrophe" and began a website to track the murder victims, which listed over 1100 in the LA county area alone in 2004.  Truly an epidemic!  But, rather than doubling down on efforts to address the problem, cops patrolling these areas often heard the phrase "one time" to reflect the fact that they seemed to prefer one short visit to a black neighborhood, along the lines of "been there, done that" as opposed to making a real effort to address crime.  One might even conclude the white majority who controlled the law, preferred a high murder rate; less of them to worry about.

Contrast that, and the crack cocaine epidemic of that time which claimed the lives of still more African American young people, or the HIV epidemic of the late 20th century that resulted in tens of thousands of deaths in the gay communities, with the current opioid epidemic which is getting so much more attention since it is effecting white communities, and perhaps we might get a glimpse as to why minorities not only distrust white laws and its corresponding system of justice, but, as Leovy discovered, might gravitate to a ghettoside "law" which while also ruthless at times, better reflected the everyday existence of the residents of the area.  Or put more directly, was one they understood and felt was consistent, as opposed to the white man's system that always leaned towards a prejudiced and impersonal result.

Attempting to govern a free people via the Rule of Law, is certainly progress over a ruling class limited by birth or income or political ideology.  But we must not forget that the rules are created and enforced by people, and thus subject to the best and worst of our species.  History is replete with laws that seem barbaric today, and there are undoubtedly some current laws that will be viewed by future historians with befuddlement, just as I (hope) we view white only bathrooms and water fountains of the mid-20th century today.

The challenge is to walk that tightrope between obedience of the Rule of Law so as to avoid chaos and anarchy, while always staying alert to those laws which demonize other humans, create or encourage non-equal treatment of those in the minority, and which are used to justify crimes that violate the Big Rule that transcends religion and nation; Do unto others as you would have them do unto you.

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This will be the last post on this topic, at least for now.

First, there were a few more amazing essays in the Lapham's spring edition called Rule of Law.  One was by Joan Cocks, professor emeritus at Mount Holyoke College, called Immune From the Law? and the second by Ralph Nadar called Land of the Lawless. 

Cocks' essay discusses various outlying organizations that reject the most basic understanding of our society and the rules which have been established by society, which admittedly, attempt to balance the level of individual freedoms with the need for laws that limit such freedom.  She details a few of these organizations using history to describe other times when tectonic shifts in society created an environment that produced philosophies and reactions similar to that which we are seeing today in light of the growing fear of globalization.  As I read my summary, I realize I am not giving her essay true justice, but found it extremely fascinating and helpful in understanding the wave of nationalism (populism) that exists in the world today.

Nadar's essay focuses on what I can only label as a rebuke to the belief that America operates under "the rule of law" and that "nobody is above it".  Again, an enlightening piece, notwithstanding the possible scenario should Robert Mueller subpoena President Trump.  Nadar delves into many examples of how the rule of law is skewed most severely to benefit those with resources which the average person does not have access to, resulting in laws that do more harm than good, if good is measured as the most benefit for the most people. 

As a connection to this essays, and perhaps, a way to illustrate how the points made by these two thinkers can be linked to current events, I did some research on illegal immigration.

First, are you aware that President Reagan signed the Immigration Reform and Control Act of 1986 (IRCA)?  And, that this law, among other things, required employers to attest to their employees immigration status, made it illegal to hire and recruit illegal immigrants as workers, legalized certain seasonal agricultural illegal immigrants, and (hold on to your hats) granted amnesty to about 4 million illegal immigrants who had entered America before 1982, lived continuously in America since then, had committed no crimes, admitted their guilt of illegal entry, paid a fine, and possessed a minimal understanding of English and American history, etc.  Then, as a follow up to address the children of said illegal immigrants, signed an executive order in 1987 legalizing children whose parents qualified under IRCA, thereby creating a blanket deferral of deportation for these children.

The law was intended to address the illegal immigration problem by focusing on one of the main reasons people were entering America - jobs - with some of the onus placed on the employers who, it was thought, would significantly help stem the tide of illegal immigration if they stopped hiring the immigrants.

That law is still on the books.  It is still illegal to hire an undocumented worker, or help an undocumented worker obtain false identities so as to obtain work.  And, since then, E-Verify has been created, which is an internet-based system that compares information entered by an employer from an employee's Form I-9, Employment Eligibility Verification, to records available to the US Department of Homeland Security and the Social Security Administration to confirm employment.

Unfortunately, the law is unequally enforced.  The recent images which were splashed all over the media, while embarrassing the president to back off the separation of children from their parents did not change his belief in a zero tolerance immigration policy.  After all, those people were breaking the laws his supporters are all too eager to note.

But what about the employers who are hiring undocumented workers?  Most estimates put the number of illegal immigrants working in our country at 8 million individuals.  How many of those employers are in jail today, separated from their children?  Where is the zero tolerance policy on them?

You see, the law was not meant to punish employers.  There were some years under Bush (1) that an aggressive approach to identify businesses was employed, but the simple fact was that some industries are dependent on employees who will work long hours for low pay and no benefits.  And, of course, some of those industries have friends in Congress so the actual working of the law only requires a "good faith effort" by employers.   If someone produces a SS card and driver's license and is willing to work 12 hour days in the blazing heat or close quarters of a meat processing plant, the employer can quite easily avoid the  responsibility of checking the employee's eligibility to work by blaming the employee who presented false documents, especially since there has been no federal law passed to make E-Verify mandatory. 

President Trump does support E-Verify, and has indicated he would sign a bill making it mandatory.  Such bills have passed through committee, but as far as I can tell, have never received a floor vote.  Democrats have resisted its passage without addressing a path to citizenship for those who have lived and worked productively in America for multiple years, without criminal activity, and those children who were brought to America illegally by their parents.  Similar to the handling of illegal immigrants by President Reagan and Congress in 1986.  I am not sure why some GOP representatives do not support it, but could conclude that their votes are effected by campaign donations from industries that depend on undocumented workers to turn a profit.  Or perhaps they represent the constituents in the states whose economy is more dependent on undocumented workers.

Why our elected officials can't do both, help stem the tide of illegal immigrants by removing one of their main reasons for entering illegally, while also establishing a path to citizenship for those who have proven themselves to be productive law abiding people since their arrival, speaks to the essays mentioned above.  

The fact is, there is a small but vocal minority of Americans who wish our country to be white again, and resist granting citizenship to so many brown skinned people, while there is even a smaller but far more powerful group of people who have lined their pockets via the sweat and blood of workers who allow them to avoid paying certain taxes (or worse, collect the taxes from the workers but don't turn them in), that there are far too many Americans who seek simple answers to complicated questions, and too many politicians, who are more concerned with getting re-elected, or making pretty speeches, than they are with actually solving the immigration problem.  And, sadly, that a partisanship wall has polarized our country into an us vs them mentality.  It is as if cooperation has become a bad word.

So, employers are generally immune from the law while undocumented workers and illegal immigrants are treated with zero tolerance.  Our President calls for cooperation from the Democrats while demonizing them personally, and ridiculing them at every turn for their past efforts.  And, those with the most continue to reap the benefits of our great country as demonstrated by the recent tax reform effort and the ongoing attacks on programs that help the least fortunate.

Certainly, justice has never been blind, and perhaps will never be as long as humans are in charge of the system which determines right and wrong.  And, if my choices are having a system of rules and laws that are followed by most people, at least most everyday people, rather than no system, then I choose the former.  Thankfully, we have people who will continue to remind us that the Rule of Law is a concept that requires fairness in the creation and execution of the laws which encompass it, and that we need to be always on guard when our body of laws tilts too far in one direction or, worse, viewed as a method of controlling the populace while rewarding those in power.  

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OK, that's the three posts, with a few alterations. 

First, what a stark revelation to be reminded that Reagan was president when some humane immigration laws were passed, policies that treated immigrants, legal and illegal, as people, not vermin, as our current president likes to call them.  

Second, the good news is that we are still talking about the Rule of Law in America, still debating why people who knowingly engaged in, or knew about but ignored the activities related to Jeffrey Epstein have generally not paid any price whatsoever for their immoral and illegal abuse of young women. 

That we are still debating why people who attacked the Capitol building of the United States of America, caused millions of dollars in damage and threatened the lives of the VP as well as all the members of Congress, were pardoned by the president.

That we are still discussing why the current president was never put on trial for his alleged misconduct in taking classified documents that did not belong to him, then lying about having them, and for his role in instigating the January 6th riot which was intended to disrupt the certification of the 2020 election. 

That we are openly weighing the legality of the firing of hundreds of FBI agents and DOJ lawyers simply because they investigated those "patriots" who attacked the Capitol.

Of course, the bad news is that we don't seem to have made much progress since the posts I wrote in 2018; in fact, we seem to have regressed. Far too much illegal activity in which this president has and continues to engage in, has been normalized so that there is very little chance for accountability. He has worn us down through a shock and awe program of grifting, lying, and abuse of the norms of what we previously deemed to be presidential demeanor.

In fact, I would argue that we have taken a step backwards considering how much influence is being afforded to the super rich in America today. When the most visible people at a presidential inauguration are the richest people in America, one might rightfully assume that their presence indicates who has the ear of the president, who will most profit from the soon to be executive order onslaught, and who will be left bearing the cost of allowing those with the most control the reigns of power. 

In some ways, and despite Trump's obvious affinity to autocrats and strongmen, we seem much closer to an aristocracy than an autocracy, although in this case, the autocrat is one of the aristocrats.

As I said in one of the above posts, the Rule of Law in America has always been applied unequally, always favored those with the most resources to find loopholes and skirt justice. But, while there was some progress in this area, some recognition that people born without a Y chromosome, or with darker skin, or who were placed on Earth by God to inhabit a country not called America, we seem to have stalled in that progress in the last decade. 

While that regression does somewhat align with that famous escalator ride in 2015, it is only because the voters of America chose to elevate such a person to the White House. Whether history will prove this decision, these two decisions, as a just another step in the decline of America, or the ultimate expression of an electorate which has lost its way, lost its moral foundation, lost its belief that America succeeds when we all succeed, not when just a small minority does, may one day be known.

For now, there is no time but the present to revisit how the Rule of Law should work, how it was conceived by the founders, and how it should continue to evolve so that justice, while not completely blind, still results in some form of accountability for everyone.