3.09.2010

Equal Justice Under the Relevant and Applicable Subsection of the Law

Here's what it says atop "our" [note: I'm no longer using collective pronouns unselfconsciously.] nation's Supreme Court building:

The phrase strikes me as hollow rhetoric, and I'm curious whether it always had that ring. The phrase has its own Wikipedia page, featuring an oration by Pericles and a citation of the supposed modern origin of the quote (an 1891 case, Caldwell v. Texas).

The Wikipedia page on "Equal Justice Under Law" links to the Wikipedia page on the Fourteenth Amendment to the United States Constitution. That article begins (March 9, 2010, 9:45am):
The Fourteenth Amendment (Amendment XIV) to the United States Constitution, as well as the Thirteenth and Fifteenth Amendments, was adopted after the Civil War as one of the Reconstruction Amendments on July 9, 1868.Your mom is gay. [bold added for emphasis]
So I don't know how reliable all of this is. But really, the 14th Amendment is sort of built around the due process clause, I'm learning. Due Process requires that the government must respect all of the legal rights that are owed to a person according to the law.

And maybe this is the root of the problem for me. There seemed to be, in the past, an assumption that this principle of due process was important because there was one law, and it should be applicable to everybody. As one of those pages mentions, this stuff about Due Process and Equal Justice Under Law was the foundation for the important Brown v. Board of Education desegregation case.

But it seems to me that now, "Law" (especially Federal) is willing to divide and subdivide itself, so that different categories of people are governed by different sub-laws. The tax-code is the most obvious offender here, requiring different obligations of citizens based on arbitrary legal divisions. So the phrase "Equal Justice Under Law," at least with regard to taxes, has become an absurd notion, hasn't it?

6 comments:

pure_sophist_monster said...

My short response (as I assume, Socrates, you would not like me to give a long speech) is that "justice," equal or not, exists only under the "law." That is, any notion of justice is contingent upon a notion of law. While certainly it might be nice if we had a transcending justice that organized our law, it seems (yes, yes, "for better or worse") that justice exist only in so far as we are able to formalize it legal rhetoric. Indeed, it strikes me that "under the law" is the only thing that keeps "justice" from being empty rhetoric.

This is not say we cannot debate the law as it relates to just; it is to say, however, that these are debatable matters.

Casey said...

I agree with you here. But do you buy my point about how "Law" itself seems to be increasingly interested in treating "segments" of the public, rather than treating the public as a whole under one law?

And maybe it's always been this way? Certainly Leviticus has certain laws for certain groups under certain conditions... but it does seem like something like a flat tax would answer my objection about "different justices."

Casey said...

But anyway, more interestingly, re: your point:

Every semester I tell my students all about what was going on before slavery was made illegal. I tell them about how churches supported it as an institution, and how the law did. I always ask them, "Then how--from what vantage point--would you recognize the injustice of slavery?"

See, it seems to me that you're suggesting that if something is "the law," then it's justice. But haven't you read "Civil Disobedience?" Aren't there bad laws? How do we know them? How do we recognize a bad, unjust, law?

I mean, you really have to refer me to something here, don't you? Even if you say something vague like "Conscience," I'll be satiated. But to say nothing makes no sense at all, to me.

pure_sophist_monster said...

We can certainly debate the law as it now stands (to my mind it becomes increasingly and disproportionately defined by corporate interests - fairly powerful segment of the public). This is why, however, we need to define justice in terms of the law - it grants us at least the possibility to address and redefine justice.

There are certainly "bad" laws, but those are bad relative to other laws we might imagine. Certainly, we all have an idea of what justice is and we draw on that "personal" sense of justice (and by personal I mean informed by particular sets of affiliations). Slaveholders not only saw what they were doing as legal they say it as just. That is, they too appealed to a higher JUSTICE.

However, those (competing) senses of justice need adjudicating, and that is were the law (which I see as a procedure rather than a thing) comes in. I guess my response is that as there are many laws there are many notions of the just. And appealing to a Justice which transcends all law doesn't get you out of the work of rhetoric.

Casey said...

I can see it that way, but I can't let go of the fact that exceptional laws like affirmative action laws and tax-credits-for-married-people laws and $1,500 credits if you've bought a house twice and are trying to sell it at a loss of more than 12.5% within two years of your purchase, or whatever.... can't let go of the fact that those laws seem to defy my understanding of what law should do.

But here I don't really think defending a libertarian view of law (negative rights, etc.) will be to any avail.

Jon Sealy said...

Casey, I asked my wife about this and got a 20-minute answer. In short, you're right. There are local laws, state laws, and federal laws, all written by legislatures and interpreted by judges, the entire process subject to human analysis.

On the federal level, it seems like the Supreme Court handles mainly procedural questions, and, depending on what kind of justices are seated, seem inclined to kick cases back to state courts. So if my state passes a smoking ban, and I get arrested for smoking, I could keep appealing that up to the federal level, and argue that the state's smoking ban was in conflict with some federal statute about freedom to smoke. But the Supreme Court would likely kick that case back to the state and say, "Yes, there is a tension between state and federal law, but with this specific case it's not our place to rule on a state issue." But if the police violated my due process by not reading me my rights or something, the Supreme Court might rule on that, because they wouldn't be overturning state law, but rather ruling on a procedural question.

It gets tricky, because if the tension between state and federal law reaches a certain point, the Supreme Court will address it. So if Mississippi decided to pass a law allowing slavery, a person could take that to the Supreme Court, and the court would then overrule state law. Where that line is, though, is up to very human interpretation and depends largely on who's in power. (Justice Alito versus Justice Ginsberg, for instance.)

So yes, the law is a messy, messy thing. Someone once said that laws are like sausages, that you're better off not knowing how they get made. Did you ever read Jeffrey Toobin's THE NINE?