The ru(l)e of law!

Think about the US as 1799 was coming to an end.  The end of the 18th century.  The dawning of the 19th century.  A new country with a brand new constitution.  A couple of democratic elections and peaceful transfers of power.  A land that was ready to launch its own industrial revolution.

What an awesome time, right?

Of course I am setting you up to remind you that having a constitution, holding elections, and ensuring peaceful transfer of power--important aspects of what we refer to as rule of law--is by no means any indicator of an awesome time.  It was an awesome time if you were a white protestant male with property.  It was hellish for the enslaved and the nearly-wiped out Native Americans.

What good was the constitution and the rule of law then?  A constitution that did not even treat the enslaved humans as human beings, but lawfully protected slavery for three generations from the time it was adopted!

Historians and constitution scholars certainly engage in hair-splitting discussions on whether or not the document was pro-slavery. 

Americans and their leading historians still find it hard to account for how their Revolution, considered as a quarter-century of resistance, war, and state-making, both strengthened slavery and provided enough countercurrents to keep the struggle against it going. Tougher still is understanding how the work of 1787 constitutionalized slavery—hardwired it into the branches, the very workings, of the federal government. Given the subsequent history of disfranchisement and policing in this country, it’s not a stretch to say that it is hard-wired there still.

But, let's cut to the chase.  Apply Occam's razor principle.  What the hell does rule of law mean when the very body--the constitution--allowed for humans to be enslaved and treated as property?

It is a straight line that links the constitution and the three-fifths compromise with Black Lives Matter and the electoral college.

Bryan Stevenson points out that even the modern day policing has its roots in the era when the runaway enslaved had to be returned to the white property owners!  And how the police were instrumental in enforcing the law that treated blacks as less than equal:

Even before the Civil War, law enforcement was complicit in sustaining enslavement. It was the police who were tasked with tracking down fugitive slaves from 1850 onwards in the north. After emancipation, it was law enforcement that stepped back and allowed black communities to be terrorized and victimized. We had an overthrow of government during Reconstruction, and law enforcement facilitated that. Then, throughout the first half of the twentieth century, it was law enforcement and police and our justice system that allowed people to be lynched by white mobs, sometimes literally on the courthouse lawn, and allowed the perpetrators of that terror and violence to engage in these acts of murder with impunity. They were even complicit in it. And, as courageous black people began to advocate for civil rights in the nineteen-fifties and nineteen-sixties, when these older, nonviolent black Americans would literally be on their knees, praying, they were battered and bloodied by uniformed police officers.

I will bring the following again to your attention:

I do not believe that the meaning of the Constitution was forever “fixed” at the Philadelphia Convention. Nor do I find the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today.

Those words are from ... wait for it, Thurgood Marshall!

So, tell me again why the rule of law matters?

I yield the rest of the space here to Marshall:

What is striking is the role legal principles have played throughout America’s history in determining the condition of Negroes. They were enslaved by law, emancipated by law, disenfranchised and segregated by law; and, finally, they have begun to win equality by law. Along the way, new constitutional principles have emerged to meet the challenges of a changing society. The progress has been dramatic, and it will continue.

The men who gathered in Philadelphia in 1787 could not have envisioned these changes. They could not have imagined, nor would they have accepted, that the document they were drafting would one day be construed by a Supreme Court to which had been appointed a woman and the descendant of an African slave. "We the People” no longer enslave, but the credit does not belong to the Framers.