Monday, September 10, 2018

The rule of law, my ass!

I agree with the idea of rule of law.  But, I don't believe in the rule of law as it is.  What if, as Dickens described it, the law is an ass?

Think about this: Slavery was legal for a long time.  Yes, slavery was legal.  The Constitution as it was framed did not even consider blacks to be fully human!  Will we be happy with the rule of law as it was?

The rule of law also requires a constant critical examination of what is wrong with the law.  We humans are imperfect, and the laws we craft will be imperfect.  It is up to us to make laws less imperfect.

Last spring, we watched a documentary that taught us about yet another imperfection, which remained the law for a long time.  It was about the Chinese Exclusion Act.  The details in that completely floored me.  The law not only made it illegal for Chinese to come to America, it even denied the citizenship of those who were already in America.

The rule of law is not sacrosanct because the laws can be awful.

The challenge to the law went all the way to the US Supreme Court.  In 1889, the Court upheld this law.  And was the law for six decades.

Remind me again why the rule of law is sacrosanct!

In the recently concluded hearings at the Senate regarding the nomination of brett kavanugh to the Supreme Court, Kamala Harris asked the nominee about what he meant as settled law, which kavanaugh touted often.
In the 1889 Chinese Exclusion case, the Supreme Court permitted a ban on Chinese people entering the United States. The court said Chinese people are "impossible to assimilate with our people" and said they were immigrating in numbers "approaching an invasion." This case has never been explicitly overruled. Can you tell me was the United States Supreme Court correct in holding that Chinese people could be banned from entering our country,” Harris asked.
Even to a non-law person like me, it was obvious that the question was not really about the Chinese Exclusion Act per se. So what was the question really about?

It was about trump's Muslim Ban.

Go back to that Kamala Harris question, and make the following substitutions: Muslims in place of Chinese, and 2017 in place of 1889.  It becomes deja vu all over again, right?

Should such a case go up to the Supreme Court, what would kavanaugh do?

So, what was kavanaugh's response about the 1889 ruling?

It was pathetic. Awful. Disgusting.

Watch for yourself.

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