The US's Forever War around Rule of Law
Yes, we're talking about the immunity case, but in the context of Black civil rights
When I first heard about the dreaded SCOTUS verdict on July 1—a decision delayed not only to the very last slot on the very last day in session, but also kicked down the pipe by many months, when a simpler question put before the Supreme Court of the United States could have been answered near the beginning of the year—I’d just finished reading up on Martin Tabert, a 22-year-old killed under brutal conditions in a system of convict licensing common to the “post” slavery era.
And I’ve been waiting ever since for some acknowledgement in mainstream discourse that the “rule of law” has always been a terrible, cruel, and fickle thing in the US.
But we’re not quite there yet.
The shock of the initial presidential immunity verdict hasn’t settled, and people haven’t finished getting their sillies out, by imagining all the decisions President Joe Biden could now take with the immunity wrongly vested in his office by SCOTUS.
Now, obviously, the SCOTUS decision on July 1 was devastating to US democracy on many levels. Justice Roberts’ main opinion was chock-full of egregious openings for criminal activity sheltered from prosecution; Barrett’s slightly dissenting concurrence only illustrated how far discourse among the six right-wing justices had veered from the practical matter of what a criminal charge even means and what is presumed by its issuance; and Thomas’s concurrence carved out a whole other space for ongoing criminal investigations to be delayed by questions of constitutional legitimacy around the office of the special investigator (and specifically, to whom it ultimately answers).
Heck, even the grounds on which Roberts started his opinion are entirely removed from reality, because somehow US presidents have managed just fine for almost 250 years without an express guarantee of immunity—and yet, according to him, the president cannot function as effectively as he must without an explicit, preemptive guarantee of immunity for all acts that fall within the purview of that office. This is perhaps one of the most blatantly ahistorical claims ever made by these “originalists.”
And although Sotomayor’s dissent was crystal clear with respect to the greater, ruinous implications of this ruling, Roberts’ counter to her dissent also managed to ring false within mere hours of the decision dropping—because that’s all the time it took for an emboldened past president to post even more overt promises of vindictive “official acts” against all his political enemies after re-election in November.
In other words: it was an awful, grim day for the US—and one that promises many more awful, grim days in the months ahead.
That night, I listened to US conservative, liberal, and leftist legal analysis of the Court’s assessment of presidential immunity, and even my go-to conservative podcast, Advisory Opinions, was at a loss for words at some junctures. The hosts were stunned by the lack of textual backing or historical reading introduced by Roberts to make his case, and confused as to why Roberts had created an expansive reading of “official acts” covered and protected from investigation and prosecution, when he needn’t have gone so far at all, simply to answer the initial question before the Court.
Now, obviously, these “moderate” conservatives still found ways to spin the ruling in deference to their politics. This is a pair that last week smugly suggested Democrats should want the Chevron deference knocked down, because it would leave less in the hands of the executive branch in case of a dreaded second term (completely missing or refusing to care about the deeper point, that there are far too many technical matters in our intricate world for us to expect or want judicial and legislative authorities to rule on related case law without access to special panels of topical experts).
So I wasn’t surprised when their analysis closed with a reading of a quote from John Adams: “Our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” Those hosts concluded with the idea that people should simply not elect criminals, if they don’t want criminals in office—and that the Constitution was never supposed to offer protections against a population that chose to vote in a tyrant. That’s the best the “moderate” conservatives could say.
Cheerful stuff, right?
Today, though, I still find myself waiting for the other shoe to drop in US analysis—and in the liberal and leftist wings of commentary especially.
Because it’s an important shoe.
It might even be the shoe that helps the US survive its latest attack on democracy.
But it all hinges on whether or not US citizens are ready to accept their ugly history.
Has the US ever really had rule of law?
Many are reeling, rightly, over the brazen dissolution of a core principle often bandied about in discussions about what makes the US special. In the great myth of ’Murica, what makes the republic so wonderful is that no one is above the rule of law. There are no kings in the US: only men, to whom the law of the land is expected to apply equally.
But while summary after summary of this latest SCOTUS verdict repeated the idea that the US rule of law had been “lost” on July 1, with the essential crowning of a president for all official acts in office, I couldn’t help but think about all the US citizens for whom that grand principle has never been meaningfully true in practice.
Even Martin Tabert, who died under brutal chain gang conditions in 1922, only drew attention to the horrors of a “post” slavery world because he was white, and from a northern family able to push for investigation into his death in Florida. The Pulitzer-prize-winning reporting on sordid details of his whipping certainly helped to generate enough public horror to see the practice ended in 1923—but let’s not pretend that the idea of a white person being treated the way Black people had been treated for generations wasn’t a huge part of the reason readers were outraged by these reports.
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This brutal practice of “convict licensing” was part of a long series of exceptions granted under the Thirteenth Amendment, the 1865 adjustment to the US Constitution that strove to correct the implicit lie in the opening lines of the 1776 Declaration of Independence, that “all men are created equal” and “endowed by their Creator with certain unalienable Rights”. Much as history books like to tout the Thirteenth Amendment as “abolishing” slavery, it only did so with a loophole:
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
And in that loophole entered a whole host of bad-faith actors, especially in the South, who continued slavery by new means for decades more—before it entered its modern variation, though a number of legal practices that encourage state and private actors to keep incarceration rates high to sustain access to cheap labour. (Chattel slavery also existed in some regions until 1963. 1963! That’s when Mae Louis Miller was freed, 100 years after the Emancipation Proclamation. She died in 2014.)
Before the American Civil War, there had been heinous SCOTUS rulings highlighting the different tiers of justice that existed in US society—not least of which being Dred Scott v. Sanford, an 11-year battle concluding with the decision that enslaved people were not US citizens, and could not expect any legal protections from the federal government or its courts. Congress also could not ban slavery from a federal territory.
Up until July 1, 2024, Scott v. Sanford was a strong contender for the worst SCOTUS decision ever—and it’s not surprising that the US entered into a civil war just four years after its issuance. The whole promise of the US, as a place where all men might be treated as equals before the law, had been revealed as less important than the “right” of some men to hold other men in bondage. A subsequent Southern struggle to defend that “right” against northern states (which were refusing to return to bondage any enslaved men who made it to their territory) led to the bloodiest conflict in US history: a gaping wound of an internal schism between people who’d never left European notions of hierarchy entirely behind, and those still striving to “perfect” a Union that had been legally imperfect since its start.
And yet, even after that bloody war, the US struggled mightily to fix the legal failings in its state project. One patch job was the Thirteenth Amendment, with a terrible loophole that sanctioned many more decades of brutal abuses of human life and liberty, and which disproportionately affected Black members of US society.
The other was the Fourteenth Amendment: a document of critical importance to another case involving the past president this year, Trump v. Anderson, in which SCOTUS ruled that only Congress had the right to enforce Section 3—not state voters trying to refuse a presumed insurrectionist access to an initial party ballot.
The Fourteenth Amendment is a very strange document, though.
At the same time that the US was attempting to rectify its blatant failure to extend equal personhood under the law to Black members of society, it was also trying to establish consequences for insurrection that protected all future formations of US government from the inclusion of people involved in rebellion against the state. More so than any other part of the Constitution, the Fourteenth Amendment sought to address questions of criminal action in conjunction with holding political office.
But those are two tall orders to try to address in the same law—and that split purpose is a huge part of why the Fourteenth Amendment just wasn’t good enough: not to defend against problems in its own era, or to protect against trouble down the line.
Congress in the mid-1860s simply couldn’t anticipate the depths to which future generations might sink, when trying to return insurrectionists to office in their own time. It was too busy trying to defend against the immediate losers of the American Civil War, while also fighting an ongoing battle for Black people’s rights after the end of official wartime hostilities. The Fourteenth Amendment was ultimately a reactive document, even when it was trying to be proactive around notions of US citizenship and the requirements for participation in future state and federal politics.
For all its failings, though, the context of the Fourteenth Amendment’s construction might still offer some comfort to those reeling from the latest SCOTUS verdict.
Because as awful as it might be to remember that the US was never a “more perfect union”, and that its rule of law always had egregious exceptions, this very fact might be what’s needed to fortify actors of good conscience, when trying to defend against the worst of their fellow citizens, and to carve out a path to a better world.
The US has always been at war for its rule of law.
This is, historically speaking, just the American way.
Two big fights for the Fourteenth Amendment
On April 30, 1866, a group of Irish and Black men down in Memphis, Tennessee got into an argument that would unravel into a full-on race riot the next day, when Black ex-soldiers showed up to stop Irish policemen from arresting a Black man. In the wake of the American Civil War, the population of this town had quadrupled, with two groups in heated tension: African American war veterans, who were not going to cede their homes after helping to defeat the Confederacy; and recent Irish immigrants, whose whiteness gave them access to positions of authority, and who resented what they saw as competition from Black residents for local jobs and homes.
Over the next three days, 46 Black residents were killed, along with two white people. White police and firemen destroyed property and killed Black men, women, and children far from the original site of conflict, out of a broader sense of racialized hate.
Twelve weeks later, the New Orleans riot would continue this brutal work of white retaliation for Black civil rights gains. During a march where Black men, women, and children had gathered to show their support for the promise of a more interracial democracy that lay with the Fourteenth Amendment, another body of police and firemen (mainly white supremacists and ex-Confederates) attacked the parade. In the ensuing slaughter some 50 people—mostly Black—were killed.
In between those horrific events was, of course, the advancement of the Fourteenth Amendment itself. This was always a diminished document, mind you, because despite Congressman John A. Bingham and Senator Jacob Howard trying to nationalize the Bill of Rights in the process, Congress simply couldn’t agree to make personal rights from the first eight amendments binding to all states through the fourteenth. This meant that, even though the Fourteenth Amendment was groundbreaking because it established the State as an entity prohibited from “depriv[ing] any person of life, liberty, or property, without due process of law”, this was a concession. The Fourteenth Amendment could have and should have gone a lot farther, to entrench equal rights for all citizens of the “United” States, wherever they might reside.
Nevertheless, on June 13, 1866, this hobbled document passed in Congress and began a two-year road to ratification that was still fraught with local push-back. 28 of 37 states needed to agree to what was already a greatly diminished proposal, and a couple tried to renege on ratification along the way. (Ohio only re-ratified in 2003.)
This struggle for ratification also involved the other half of the Fourteenth Amendment, though, and highlighted a serious problem with the whole approach taken by Abraham Lincoln, then Andrew Johnson, as war and postwar presidents.
Here was Congress, trying its darnedest to enact an amendment that would not only repair the egregious neglect of civil rights for Black members of society, but also set severe political restrictions upon those insurrectionists who’d tried to tear the country apart to protect their “states’ rights” to own other people, and to force states without slavery to return whatever “property” had made it to free territories.
But there was a huge problem for Congress in this effort, because the original US Constitution was also a defensive document, and instead of creating positive entitlements for Congress to act against rebellious members of society, it spoke of treason only in ways that would limit congressional authority to act against it.
Thus, in Article III, Section 3, we get this dilly of a pickle:
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
In fancy old-speak, that second clause is addressing limits to the inheritance of penalties from treasonous acts within families, but both clauses were a major contributing factor to how Lincoln and Johnson thought about what to do with the rebellious elements of US society during and after the American Civil War.
Johnson was ultimately of the opinion that “reconstruction” wasn’t really needed, because the force of war had already brought rebellious elements back under the umbrella of the Union. He advocated instead for a graceful reintegration of divided peoples, with military oversight of their territories only until they fulfilled certain conditions of return, including the ratification the Fourteenth Amendment—at which point they could go about rebuilding self-rule like any other state in the Union.
Ironically, though, this generous offer only fomented more resentment, because many in the South felt that they were being forced to accept the Fourteenth Amendment, instead of freely allowed to decide on its terms. (In other words, what was the point of calling it a “ratification” process if the other alternative, for losing states after the civil war, was to remain under the military rule of Union representatives forever?)
You’ll often see the Fourteenth Amendment talked about as a missed opportunity to force more Confederates to stand trial and face real punishment for their insurrection. Johnson is similarly criticized by some for issuing thousands of pardons in generous sympathy to the losing side of this war. In many left-leaning analyses of US history, that whole mess of a postwar period is routinely configured as the beginning of the end of the US project, because of how messily the whole business was done.
And there is some truth in that!
The parts of the Fourteenth Amendment that were supposed to entrench equality under the law to all US residents were a miserable shadow of what could and should have been—especially if the Bill of Rights had been nationalized at the same time.
Meanwhile, the parts of the Fourteenth Amendment intended to protect against future political participation by past insurrectionists were significantly undermined by the president’s conciliatory gestures, wiping the criminal slate clean for many ex-Confederate citizens who would go on to entrench themselves bitterly and divisively in Southern US state politics in the coming decades.
But the fact that Johnson, like Lincoln, was mindful of the reactive nature of Article III, Section 3 in the original US Constitution also made the errors of the 1860s well in keeping with a series of flaws that existed from the start in this whole state project.
Could it ever have been otherwise?
With Article III, Section 3 written to differentiate the US from Great Britain with respect to rules for treason, rather than to imagine the best possible guide to government proceedings in general, I think not. The Framers were—like everyone after them—simply reacting to the political paradigms of their moment. They could only see and respond to the problems that surrounding government systems presented.
To expect them to anticipate the problems that would face US citizens centuries later is ridiculous. So too is expecting a postwar Congress to be worried about anything beyond trying to regain some semblance of social stability after so horrific a fracture in the Union—and at such an ongoing cost to the lives and liberty of US citizens.
Most countries around the world have recently rebooted their constitutions, or added significant new guiding principles to them, for precisely this reason. Their revised social contracts are overwhelmingly about the establishment of positive rights, instead of forever trying to patch up the gaps in an old, negative-rights-driven document.
The US remains atypical, in clinging to a very old text shaped around negative rights and as a defensive contest between different branches and levels of government.
And all the while, the US Constitution has never represented a coherent commitment to the rule of law, as something under which all men are equally subject.
BIPOC citizens (Black, Indigenous, and other Persons of Colour) have always known this to be true about the US project. For long stretches of this country’s history, what has it really mattered if the President thinks he’s above other people, when people much closer to home (e.g., the white folks who run local police and fire services, or who own most property, and fill up most seats of local government) think themselves above you? And when they have a constitution that backs them in such thinking, too?
What SCOTUS decided on July 1 is reprehensible, and it makes this next election even more important for any effort to preserve what remains of US democracy.
But it’s also important to remember that the US didn’t “lose” rule-of-law on Monday. It simply saw rule-of-law’s absence reach even more of its citizens than ever before.
And so, just as other citizens have had to fight every step of the way for anything even resembling the achievement of true equality under US law, now will the rest of this struggling Union have to fight tooth and nail for similar.
I’m rooting for you, though, US readers: may the reclamation of your democracy come through the polls, and not through further bloodshed on the streets. Enough has been spilled already, one would think; our brutal histories have no need of one drop more.
Be well, be kind, and seek justice where you can.
ML