By John Weston Parry, J.D.
The rule of law practiced fairly and justly is essential to any democratic society. That is why it is hailed by so many legal scholars and historians as being a necessary building block for freedom, liberty, and human rights. The rule of law posits that the people of a nation should be governed by clear and well-established rules and standards, as opposed to the arbitrary or self-interested exercise of power.
In a democracy laws are suppose to derive from a rational consensus about what is right and wrong. The rule of law is supposed to stand for the principle that people cannot choose which laws to obey or disobey. All laws should be obeyed, unless they are changed legislatively or by a court of law. Thus, there is no room for civil disobedience under the rule of law, except if the perpetrators are willing to accept the lawfully ordained penalties for doing so.
Life, however, is not so black and white, especially politics and government. Complexities abound. When the consensus about right and wrong breaks down or is manipulated by unprincipled or irrational forces bad things can happen to—and because of—the rule of law. Major problems have arisen with exceptions to and uneven applications of the rule of law in order to satisfy privileged special interests or to control or punish devalued citizens and residents. Merely because a law has been properly enacted does not mean that it is wise, just, or fair.
In the United States we constantly congratulate ourselves on our Constitution and our allegiance to the rule of law. We widely export our democratic legal principles, often at considerable expense, in order to help other nations to be as great as we think we are. At the same time, the United States is unwilling to bestow those same legal protections that our nation brags about on foreigners and illegal immigrants in our custody. Under this self-centered American legal construct, the rule of law tends to take precedence over human rights, both internationally and domestically.
In world politics and foreign policy the rule of law often appears to mean whatever the American President and his advisors say it means. Furthermore, we have the temerity to cite the rule of law as the reason the United States chooses to ignore human rights and environmental protections adopted by other nations, unless Congress has enacted them into law as well, which rarely happens. In America international law has become an oxymoron. Thus, Canadian-born Ted Cruz can decry the violation of the “`rule of law’” by illegal immigrants, while promising, if he should becomes President, to “`carpet-bomb [ISIS] into oblivion.’” For many American politicians the rule of law has become whatever is politically expedient.
Domestically, the ugly fact remains that much of our own criminal and civil justice systems do not function fairly or justly, despite our many self-congratulatory pretenses to the contrary. Like our so-called free market economy, the rule of law means different things for different people. It unfairly protects those who are favored by our society, most notably the wealthy and those who are perceived as providing security to this nation, and disadvantages those who are devalued, feared, or poor.
The rule of law can be liberating by creating a more open and diverse society, or it can serve as an anchor on human rights perpetuating a more closed and less diverse society. Like nuclear power the rule of law is a force, which depends on people, regulations, and policies to harness its benefits and control its excesses. The rule of law can be productive or counterproductive. Too often in our legal system the rule of law is unfair, unjust, and even abusive. It can be manipulated and distorted by money, self-interest, fear, and personal beliefs imposed on other people.
Injustices and the Rule of Law
Anyone who has read these essays, or the book upon which many were based, knows that I have focused much of my attention on the legal injustices in America to people with mental disabilities, which I believe are among the very worst examples of the rule of law gone awry. This does not mean that there are not other comparably tragic examples of injustices perpetrated in our country under the rule of law. It does mean, however, that unlike many of those other circumstances, which eventually come to light in the media, what happens to people with mental disabilities, who are presumed or misperceived to be particularly dangerous, is unique. There is no cry for justice for them as there is for people who are black or Muslims. The silence is deafening. The response is disheartening.
Nonetheless, deficiencies in the rule of law negatively affect far more people than just those who have severe mental disorders or are perceived as having such disorders. The rule of law tends to disadvantage every devalued group in this country, especially those people whose existence creates fear or anxiety amongst the general populace. In turn, the rule of law favors the wealthy, the privileged, and those law enforcement officers and officials who provide security against those who are feared or despised.
For those people and entities whose interests are favored, the rule of law becomes something that should be obeyed without question, so that their self-interests can continue to prosper. Like the so-called free market economy, the rule of law is supposed to have self-correcting mechanisms that ensure fairness and justice for all. But in reality the American version of the rule of law has produced far too many injustices in recent years. Conservative political theory notwithstanding, there have been few if any invisible forces or self-correcting mechanisms, which have spurred actions to provide the necessary improvements for those who are being legally shortchanged or abused. People have to improve the rule of law themselves, hopefully through democratic means.
Unfortunately, our democratic means are faltering due to the influence of money, privilege, fear, and various deeply ingrained prejudices. The remarkable benefits that the rule of law can generate for a society depend in large measure on fairness, justice, and human rights. There is no doubt that certain aspects of the legal system continue to improve, incrementally, and those improvements are hailed as examples that should be followed. But overall the rule of law has continued to deteriorate. The Constitution has become a document that is supported and enforced selectively, depending upon the provision. Except for the Second Amendment, which has been misinterpreted, the provisions of the Bill of Rights are often treated as expendable impediments to religious and subjective beliefs and economic determinism.
There is an assumption that the rule of law is an inherently good thing because over time it has proved to be much better than the totalitarian alternatives. While it is difficult not to agree with that conclusion, this does not mean the basic premise about its inherent goodness is sound. Nor does it mean that what constitutes goodness cannot be interpreted in different ways to the detriment of society based on a particular set of beliefs or economic self-interests.
Furthermore, the very notion that the rule of law is inherently beneficial and thus should not be tampered with is based on a fallacy. The Nazis, for example, in their own ways were publicly committed to the rule of law, no less than the Americans, British, or French. They enacted and enforced unjust laws that brutalized those segments of society they devalued. Under their laws enacted in order to benefit the state and most Germans, Jews, Gypsies, blacks, and individuals with mental disabilities, among others, could be exterminated, experimented on, or tortured, or have their body parts harvested after they were killed. The Nazis also ignored the rule of law at their convenience making their crimes against humanity much worse.
The point is that the rule of law is only as good as the laws that have been enacted, and how they are implemented. Human rights, which can be defined in many different ways, have to be incorporated into a legal system in order to ensure that the rule of law is fair and just. Democratically enacted rules are insufficient by themselves, especially when the democracy is malfunctioning. In the United States, the rule of law is continually ignored or misapplied in the name of homeland security. Outside the United States the American rule of law takes a back seat to foreign policy.
Legal Equality Is No Longer Highly Valued
One of the most important principles of our Constitution and legacy for human rights worldwide is that the rule of law should be applied equally to all groups of people. Once needless exceptions are made to provide greater or lesser protections for specific groups based on whether we perceive them as deserving legal preferences or greater condemnations, the protections for everyone are threatened. Different laws for different people are a very risky proposition.
There should be exceptions of course, such as special laws to protect children and reasonable accommodations for people with disabilities. Generally, however, the need for these exceptions should be demonstrated convincingly. Such divergences from equality should be based on empirical and other objective evidence, not subjective beliefs or self-interested preferences, no matter how seemingly well-intentioned.
Legal equality is no longer highly valued in America. Money and political influence have perverted justice, which has never been totally blind, but is becoming more predetermined every day. For each special interest that is provided with additional protections or benefits for what is valuable to them, there are other entities in society that are promoting interests that may be disagreeable or abhorrent. Special laws for those who are religious compete with special laws for women who need family planning assistance. Special laws for police officers compete with special rules for paroling or commuting the sentences of non-violent offenders. Special laws to control people with mental disabilities compete with laws promoting civil liberties.
The major difference in the comparable worthiness of such policies is how the costs and benefits of those special laws and rules are calculated by those who promote the need for this type of legal specialization. The underlying and often unstated principle, however, is the same: certain groups deserve to be treated better or worse in our legal system. Also, in order for these special interests to exist, money has to be spent on staffing, publicity, and other expenses. Thus, money becomes disproportionately important in determining outcomes. Normally the deciding votes about who should be treated differently are cast by those with the most money and political influence. This includes billionaires, corporations, news organizations, and special interests such as the National Rifle Association, the Catholic Church, and the National Football League.
Once these special laws are enacted, the rule of law helps to guarantee that they are enforced. Sometimes that enforcement goes well beyond the letter of the law, especially when interests are being promoted. As such enforcement can become indistinguishable from the rule of law. Both are hailed as an absolute virtue, which like motherhood, the American flag, servicemen, or a Christian God become something that patriotic Americans should support. Unfortunately the rule of law and its enforcement, like nuclear power, can be a productive or counterproductive force in our society.
In the American legal system, there have been many examples in recent months of the rule of law having gone awry, or being on the verge of going awry. Four of the more glaring examples have involved the special rules of engagement we have for police officers; proposed immigration restrictions and surveillance authority targeting Muslims; exemptions to allow religions and their followers to break the law based on their beliefs and practices; and involuntary custodial detention of people who are homeless and presumed to be mentally ill.
Rules of Engagement for the Police
In recent years, there have been heated and sometimes violent protests over needless killings by police officers during stops and arrests involving suspects who were black, mentally ill, or just in the wrong place at the wrong time. This has been happening for a long time now, but came to a head this past year. Incidents in Ferguson, Baltimore, Staten Island, and Cleveland made national headlines and provided plenty of support for the Black Lives Matter movement. Not surprisingly, there was no corresponding Lives of People with Mental Disabilities Matter movement, even though proportionately they appear to be killed or seriously injured by police at least as frequently. Mostly there has been apathy toward these victims with mental disabilities, unless they also happen to be black.
Even in wartime our troops have strict rules of engagement that are supposed to protect rights of innocent civilians as well as our enemies. The rule of law may not always be obeyed in wartime, but it is there to constrain the worst instincts of our soldiers and to demonstrate that our democratic principles have meaning. Generally the lax rules of engagement for police officers when they are making stops or arrests allow them to use almost any amount of force, including killing those they stop, if they could conceivably perceive a threat to their well-being, no matter how remote or unlikely. Shooting a helpless suspect five, ten, or twenty times is not viewed as an overreaction. Instead of demanding that those who we authorize to carry firearms and use force to uphold the law are held to higher standards than other citizens, we permit them to operate under standards that are much lower. Thus, a police officer can shoot and kill a teenager for playing with a toy gun in a park or suffocate a confused and largely helpless adult for acting like a person who has a mental disorder.
As a nation we are so anxious and fearful of crime that we will allow these types of deaths to go unpunished as a cost of doing police business. The problem is that police officers, like many other people in our society, harbor prejudices and these loose rules of police engagement allow those prejudices to be manifested in deadly actions without consequences. Instead of demanding that police officers be highly trained to deal with such situations, and disciplined and prosecuted if they ignore or pervert their training, police departments, prosecutors, and juries generally give them a pass when these unnecessary killings or serious injuries occur.
As two Yale Law School instructors pointed out in the Washington Post Christmas Day, “the existing rules of engagement for police… invite violence, not just when officers act abusively but also when their conduct falls clearly within the limits of the law.” The purpose of a stop or arrest “is not punishment: After all, there has been no conviction at that point. The purpose… is to prevent crime and to aid in prosecution. The steps taken to secure arrests therefore must, at every point, be proportional to the suspected crimes that underlie the arrests.” The “current police rules of engagement violate these basic principles at every turn,” often tragically.
Proposed Immigration and Security Laws for Muslims
Thanks to Donald Trump what many Americans believe should be done to Muslims based on their religion’s presumed association with terrorism has become part of the presidential political discussion. The fact that the association with terrorism is much, much stronger for those who possess and stockpile rapid fire weapons and other munitions is conveniently ignored or deflected. In this country gun ownership is protected by the rule of law, while the Muslim religion is widely devalued as compared to Christianity.
According to Trump and many of his followers, there are two legal measures that should become the rule of law in order to control the perceived “Muslim menace.” First, we should prohibit anyone who is a Muslim from immigrating to the United States and revoke the visas of any foreign national who is a Muslim. And of course, if they are here illegally, Muslims should be deported along with Mexican “illegals,” who Trump views as being mostly criminals preying on Americans. Second, we should place all Muslims in the United States under heightened surveillance.
Trump has justified these proposed rights violations as being like what President Roosevelt, the military, and various state governments did during World War II, sending Japanese citizens and residents of the United States to internment camps. Not surprisingly, Trump conveniently forgot, or simply did not know, that those actions are widely viewed as a stain on Roosevelt’s otherwise magnificent record and eventually were overruled by the U.S. Supreme Court.
After WWII a similar scare, this time about communism, produced totalitarian policies aimed at anyone who was perceived as being a communist, including those who were considered to be “left-leaning” or socialists. As Richard Cohen wrote in The Washington Post, Trumpism may soon trump McCarthyism. Instead of asking people whether they are or have ever been a communist, we will now ask them whether they are or have ever been a Muslim.
Special Laws and Privileges for Those Who Are Christians
Those who are religious, especially if they are Christians, enjoy special protections and privileges under the American rule of law that those who are secular in their beliefs do not. Under the auspices of these legal differences, organized religions and their followers are able to openly violate statutes that are suppose to protect Americans from discrimination and other violations of their rights. Also, in many states religious exemptions are granted vaccination requirements, which threaten the public health of every American.
Yet, certain religious groups still complain that their ability to intrude upon the rights of other people is not broad enough. They feel angry and put upon because their concept of a closed society is not being adhered to. And certainly as compared to how other religions are practiced in certain nations, especially to marginalize the rights of women, these Christian religions may have a point that their religious prerogatives are nowhere near as expansive.
On the other hand, the freedom to practice one’s religion in America was not intended to be a license to limit the rights of others. It has just evolved that way due in large part to the rule of law. What has failed to evolve is the right not to practice a religion. Secular freedom constantly gets shortchanged. This has been true throughout American history, but particularly since the mid-1950s.
At that time, during the McCarthy anti-communist crusade, the Pledge of Allegiance was changed to mandate the addition of the “under God” language. Congress legitimized the negative association that was being made between those who did not worship God and those who were communists supposedly trying to overthrow the government and destroy the American way of life. In a number of states, including Virginia, parents could lose custody of their children if they did not send them to Church.
Today, the religious battleground has been expanded from the right to practice religion freely in one’s home, church, and church-sponsored events, to the right to use one’s religious views as a justification for breaking laws, which they believe conflict with God’s laws as they perceive them to be. In addition to refusing to be vaccinated, certain religious groups have used their religious prerogatives to try to prevent women, mostly poor, from engaging in family planning and to discriminate against gays and lesbians for their sinful behaviors.
Furthermore, certain owners and employees of public establishments have cited their religions as excuses when they have violated the rights of their customers. Also, in various parts of the country Christian prayer sessions continue to be sanctioned as appropriate activities during school-sponsored events for students, most notably on football teams. Thus, in order to play high school football in some jurisdictions, players either have to be Christians or be willing to be proselytized by Christians.
In many different ways, the American rule of law supports the principle that there should be different rights for people based on whether they are religious or secular. Those differences, however, almost always favor Christians, while they shortchange those whose beliefs are secular or non-Christian. We are repeatedly told by certain politicians and religious interests that this is a Christian nation. This is not just, fair, or true.
Special Laws for Homeless People Who Have a Mental Disability
There is an implicit consensus in America, a divergence from the social contract, that it is better that large numbers of people with mental disabilities be locked away, or otherwise placed in the custody of the state with their freedoms and liberties curtailed, than to use limited resources to provide them with the means they need to live in ways that approach a humane existence. New York City has demonstrated what can be done to substantially improve the plight of the homeless by focusing housing, treatment, and other community services on the needs of homeless veterans, many of whom have serious mental impairments. The New York Times recently reported that in the past six years the number of homeless veterans has decreased from 3,689 to 760, which means that nearly four out of five now have safe and humane living environments. Moreover, even greater gains for homeless veterans have been reported in Houston, Las Vegas, and New Orleans.
But why do we only focus on veterans who are homeless? No comparable effort is being made to provide such housing and services to people with similar problems, especially severe mental impairments, who are not veterans, including homeless children. Instead New York, Governor Cuomo told the Times that in general “the homeless street population is increasing and… is worse than it’s been in years….” In response, the Governor did not order more and better housing and services for this population. In fact, Cuomo in recent years has cut funding for the homeless. Instead Cuomo indicated that by executive order he was implementing a statewide policy that would “compel the police, state agencies and social service providers to seek out and in some cases forcibly remove homeless people to shelters when the temperature falls below 32 degrees.”
Underlying the devalued status of people with mental disabilities, who are presumed or misperceived as being particularly dangerous to others or themselves, is the rule of law that justifies and perpetuates these travesties of justice targeted at them, or people perceived to be like them. Of all the human beings in the United States, who could conceivably be perceived as being particularly dangerous, only people with mental disorders have special laws passed against them that allow governments to deprive them of their rights and entitlements.
In New York, the compulsory detention of people who are homeless seems to have been based on the state’s power to civilly commit people, who have mental or intellectual disabilities, when they are diagnosed as being potentially dangerous to themselves or others. That is why Norman Siegel, a former civil liberties lawyer, pointed out that Cuomo’s “`premise is faulty.’” It “seemed to conflate the danger of choosing to brave cold weather with mental illness.” Governor Cuomo’s office responded to this criticism by explaining that the new order would not “`mandate involuntary commitment for competent individuals,’” leaving only those who are, or perceived as, mentally ill to be involuntarily sheltered due to cold weather.