What does "to follow the law" really mean?

What good is the law if not applied equally, across the board? Men are not mere machines that respond to written words, without sense. We are, currently, in a fight with those who claim they want to interpret the Constitution according to its "plain meaning.” But there is nothing "plain" about the Constitution. We all know that.

Are we really to believe that we can read the words, "nor shall any state deprive any PERSON of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws," and believe that the drafters intended that they apply to no one but "freedmen"? Were the drafters not cognizant of the fact that one day, someone other than freedman, or corporations protecting their "property," would want to avail themselves of said laws? Was it not foreseeable, to them, that the unequal application of law would also reap havoc if allowed to occur with respect to members of other classes? To ignore the plausibility of this interpretation, is to ignore the words, "All men are created equal," by deeming them not applicable to those not included in that "small circle of friends" extant at the time of the writing. A nation cannot survive like this, "divided," if it does not protect the whole of its populace, in the same way, uniformly; hence, the need for a Supreme Court that adheres to the "supremacy" of law; law that can override local custom and prejudice, if necessary, in order to guarantee the just interpretation and application of the same.   

In Slaughterhouse, the Court withheld its hand. The events that produced the decision included "over 400 members of the Butchers' Benevolent Association joined together to sue to stop Crescent City's takeover of the slaughterhouse industry" (Slaughter-House Cases).

The butchers argued:

"This statute is denounced [by the butchers] not only as creating a monopoly and conferring odious and exclusive privileges upon a small number of persons at the expense of the great body of the community of New Orleans, but it is asserted that it deprives a large and meritorious class of citizens—the whole of the butchers of the city—of the right to exercise their trade, the business to which they have been trained and on which they depend for the support of themselves and their families, and that the unrestricted exercise of the business of butchering is necessary to the daily subsistence of the population of the city" (ibid).

They lost. But what the butchers taught us is that no segment or class is immune to a sense of fairness. Economic rights opened up the pathways to personal rights, because in a sense, they are both the same. Just as the expansion of the power of the Commerce Clause resulted as a natural outgrowth of an ever expanding and diverse commerce, the need for things to remain uniform across States, so did the expansion of the Due Process Clause, with respect to criminal procedure and takings, and with respect to personal rights (travel, voting, privacy), civil rights, fair trials, and the Equal Protection Clause. To have ignored these rights in light of our ever increasing diversity, would have been, and would be, to invite anarchy.

The Court ruled somewhat differently in Lochner. The case involved upholding the economic rights of bakeries, citing due process, overruling state law which prohibited bakers from working more than ten hours per day, or 60 hours per week. Eventually...The courts came to realization that due process protected not only economic rights, but also personal or individual ones. This is what some are screaming about today. They believe that Courts have exceeded their power; that they have become "a perpetual censor upon all legislation of the States" (Gutzman, 2007). They would have us believe that this practice is contrary to the practices of early Supreme Court justices; that somehow, we have become more "liberal," and that society is spinning out of control.

The fact is, it is just the opposite. True law, law that is interpreted in the way that it's supposed to, is law that responds to the needs of a growing and changing populace, and its respective practices. The attempt by some to bring us back to a more absolute or totalitarian interpretation, "zero tolerance," if you will, despite the claims that the law is being read or interpreted in its "original" sense, is futile. And witnessing what we are witnessing at the border, we are living proof. Absolute measures do not create order. They create chaos. The law becomes inflexible. Eventually, it snaps.

Chief Justice Marshall, in his conclusion to Gibbons, wrote, "Powerful and ingenious minds, taking, as postulates, that the powers expressly granted to the government of the Union, are to be contracted by construction, into the narrowest possible compass, and that the original powers of the States are retained, if any possible construction will retain them, may, by a course of well digested, but refined and metaphysical reading, founded on these premises, explain away the constitution of our country, and leave it, a magnificent structure, indeed to look at, but totally unfit for use." And James Iredell, another early Jurist, an associate justice of the newly created Supreme Court, said, "A Constitution in America was not only 'fundamental law but also a special, popularly created 'law in writing...limiting the powers of the Legislature, and with which every exercise of those powers must necessarily be compared" (Hobson, 1996).

What became, in effect, a pronounced abuse of economic power at a local level, would become, an abuse of social power at a local level, consisting of the mistreatment of minorities, including their most vulnerable members: women and children. The Court could not continue to fold its hands, in light of abuses by local governments (or government agencies), given our history: Scottsboro (fairness, representation), Yick Wo (discriminatory application of law), Korematsu (internment, civil rights), cases involving prolonged interrogation, Guantanamo (torture, non-adjudication, perpetual imprisonment).

What we had learned, what Jurists sitting on the Supreme Court were trying to tell us, through the opinions that they had left behind, is that law cannot be an empty chamber. It must not come from the mouth only, nor even, exclusively, from the head, but reverberate from the whole, so that it's meaning could be understood by all, and applied predictably and uniformly.

In "The Abolition of Man," C.S. Lewis tells a tale of how man becomes separated from God. We create a structure, a superficies, and then rather than familiarize ourselves with the how and why, behold the graven image before us, in its untransitory and immovable state, and apply it in somewhat the same way. But that is not how laws are lived (thought about, applied, followed):"The head rules the belly through the chest — the seat, as Alanus tells us, of Magnanimity, of emotions organized by trained habit into stable sentiments. The Chest-Magnanimity-Sentiment — these are the indispensable liaison officers between cerebral man and visceral man. It may even be said that it is by this middle element that man is man: for by his intellect he is mere spirit and by his appetite mere animal."

Martin Luther King also advanced this belief that laws had to make sense. He said, in "Letter from Birmingham Jail," "Let us turn to a more concrete example of just and unjust laws. An unjust law is a code that a majority inflicts on a minority that is not binding on itself. This is difference made legal. On the other hand, a just law is a code that a majority compels a minority to follow, and that it is willing to follow itself. This is sameness made legal. Let me give another explanation. An unjust law is a code inflicted upon a minority which that minority had no part in enacting or creating because it did not have the unhampered right to vote."

The intention of strict constructionists, originalists, or states' rights activists, is to restrict the application of individual rights, such as "privileges and immunities"; to perhaps revert back to the time when say, privileges and immunities was restricted to: "the right to travel to the federal capital, the right to seek federal government protection, the right to work for the federal government, the right to use American ports, the right to federal protection when traveling on the high seas, and other rights of a similar nature as rights of federal citizenship" (Gutzman, 2007). But what if one were to veer off on a minor excursion on the way to the capital? And what if travel other than "on the high seas" was the case? As society becomes more complex, so does the need to apply the law in ways that are deemed both just and practical.

If society is to grow, and not regress, like some in Washington are wanting to push us back, it must also grow in its care of not just citizens, but persons. What some seem to overlook is that marketing, apart from negotiating, is also a business strategy, and that currently, under Trump, we are failing at that. Thomas Paine said, "One of the strongest natural proofs of the hereditary rights of kings, is that nature disproves it, otherwise she would not so frequently turn it into ridicule by giving mankind and ass for a lion"... What Donald Trump is giving us, and will have given us, his greatest contribution, is his being, his having been, a non-example.

It appears to me that we are in the fight of our lives. It is a fight for the very soul of America. Those who believe that they will somehow be excluded from any sort of injustice by virtue of their nativist origins, have something to learn from history. This sort of predisposition, more often than not, turns on itself. People begin to find out that exclusionary practices do not stop at hair color. Eventually, they expand to other areas that may form the basis for contentiousness, and then exclusion.

Klaas (2017) tells the story of the “unemployed father of two (in the Philippines) who had succumbed to drug addiction, but he had worked hard to quit and he was finally clean.” Rodrigo Duterte had taken power the previous year, and under his “no tolerance” policy of ridding the country of any and all “drug abusers,” Benjamin Visda, the father, who had finished enjoying celebrating a birthday party with his family, was hauled off and killed, his lifeless body found outside a police station. I thought about the Central Park Five: What if Donald Trump had had his way, and the five convicted juveniles, put to death? What if Trump could enforce the laws in the same way that Duterte can enforce his? We're willing to gamble with Trump because we take for granted what we have. We are too quick to hate. We should pause, be thankful, repent. WE should not be so willing to play with or experiment with fire, and we need to rectify our misplaced confidence right away. The moral of the story is this: If we are willing that certain “undesirables” lose their rights, there is no guaranteeing that we (the majority) will not lose ours. In fact, it’s almost a certainty.

One of the fairest interpretations of what the law should be, that I have read, was written by then Senator Obama, in describing what immigration laws should seek to accomplish: "We have a right and duty to protect our borders. We can insist to those already here that with citizenship come obligations-to a common language, common loyalties, a common purpose, a common destiny. But ultimately the danger to our way of life is not that we will be overrun by those who do not look like us or do not yet speak our language. The danger will come if we fail to recognize the humanity of (immigrant families)-if we withhold from them the rights and opportunities that we take for granted, and tolerate the hypocrisy of a servant class in our midst; or more broadly, if we stand idly by as America continues to become increasingly unequal, an equality that tracks racial lines and therefore feeds racial strife and which, as the country becomes more black and brown, neither our democracy nor our economy can long withstand" (Obama, 2009).

God bless.

References:

Full text of "The Abolition of Man". (n.d.). Retrieved from https://archive.org/stream/TheAbolitionOfMan_229/C.s.Lewis-TheAbolitionOfMan_djvu.txt

Gutzman, K. R. (2007). Politically Incorrect Guide to the Constitution. Regnery Press.

Hobson, C. F. (1996). The great chief justice: John Marshall and the rule of law. Lawrence, Kan.: Univ. Press of Kansas

Klaas, B. (2017). The Despot's Apprentice: Donald Trump's Attack on Democracy. Skyhorse Publishing: New York.

Obama, B. (2009). The audacity of hope: Thoughts on reclaiming the American dream. Random House: New York.

Slaughter-House Cases. (2018, July 12). Retrieved from https://en.wikipedia.org/wiki/Slaughter-House_Cases

Wood, G. S. (2012). The idea of America: Reflections on the birth of the United States. NY, NY: Penguin Books.