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The State of the Law in American Democracy

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By David Schultz
December 9, 2014

Something is wrong with the law if those entrusted to enforce it repeatedly violate it.

This is the troubling story of race and Ferguson, Missouri, choke holds in Staten Island, New York and police brutality in Cleveland, Ohio. But these three examples raise even more profound stories about the role of the law in a democratic society regarding whose legal norms are enforced and how.

Over the last two years this column has tried to make a simple point that the law matters. It matters in the sense that the law regulates behavior. It matters because it enforces a series of norms and values about what our society finds acceptable. It matters because the law is one of several ways to make decisions and constrain the discretion of government officials. It matters because the law and impartial and fair adherence to it are supposed to be the essence of what a democratic society represents.

Legal scholar Lon Fuller declared once in his The Morality of the Law that the law is must have some minimum moral content for it to be considered just. Rules can have a formal appearance of justice but unless they substantively embody some values or moral content acceptable to the public, the law is a sham. The Nazis had rule of law but no one would ever contend that they had justice. Their law lacked legitimacy.

Legal legitimacy is a major problem facing American society. On one level Ferguson, Staten Island, and Cleveland are certainly about race and how the law embodies a white Caucasian perspective. This should be no surprise. Racism seems woven in the fabric of this country from its birth.

W.E.B. DuBois’ 1903 book, The Souls of Black Folk, declared “the problem of the 20th century is the problem of the color-line.” Forty years later sociologist Gunnar Myrdal’s The American Dilemma echoed that theme, contending that African-Americans were largely excluded from the promise of American democracy because of Jim Crow and racial segregation. Rosa Parks sitting at the front of the bus, the Supreme Court’s 1954 Brown v. the Board of Education, Martin Luther King, Jr.’s March on Washington and the civil rights legislation of the 1960s supposedly ended this exclusion.

With the 2008 election of Barack Obama, we entered a post-racial world. Race, especially as it intersects with class, remains as salient and divisive an issue as ever. Surveys point to very different reactions among Whites and people of color when it comes to judging the Ferguson and police behavior in general.

But it is not just about race. Talk to feminists and women’s activists who contend with much cogency that the law embodies a male perspective. From issues of rape, sexual harassment, pregnancy, disability and job discrimination, to the persistence of women making 77¢ on the dollar compared to men, the law continues to treat the two sexes differently.

Or consider class. There is a plethora of evidence which shows the gap in wealth and income between the rich and poor in the United States has been at record levels for the last century. The law favors the affluent, from their ability to hire good lawyers or to make excessive political contributions. Not too many rich people get the death penalty or see prison time for their crimes. The current Supreme Court seems hell bent on turning corporations into full-fledged citizens and it is blind or deaf to the plight of the poor. The law equally appears to allow the rich and poor to sleep under the bridge.

There is also something wrong with the law that sanctions repeated police use of excessive force. I used to teach a class on police criminal and civil liability under state and federal law, including what is called §1983 violations. It is not easy to win these claims. The law and the public favor the police. Maybe once that was appropriate, but knowing that we have scores if not hundreds of police shooting Michael Browns per year leads one to question whether the law has tipped too far in favor of the former.

Finally, consider public officials who hold themselves as above the law. A day does not seem to go by when some story of public corruption appears in the news or some elected official seeks to get a favored lobbyist, contributor, or friend an exemption from the law, or enforcement of a rule is delayed for partisan or political purposes.

What all of these stories have in common is that for law to really matter it must be viewed as legitimate. Yet racial, gender and class polarization is undermining the collective support and legitimacy that the law should have. Law itself cannot create order; it must rely upon a preexisting or coterminous set of values regarding what the content of the law should be. In a democratic society such as the United States those values should be widely shared, equitably enforced and obeyed by all, including those who enforce the law.

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2 Responses to The State of the Law in American Democracy

  1. M Staley Reply

    December 11, 2014 at 9:05 am

    “Legal legitimacy is a major problem facing American society. On one level Ferguson, Staten Island, and Cleveland are certainly about race and how the law embodies a white Caucasian perspective..”

    “… the law embodies a male perspective…the law continues to treat the two sexes differently.”

    “The law favors the affluent, from their ability to hire good lawyers or to make excessive political contributions.”

    “The Nazis had rule of law but no one would ever contend that they had justice. Their law lacked legitimacy.”

    David Hamilton poses a Marxist point of view here as he argues that “the law” favors the privileged – inferring perhaps through the premise of racism and gender that, as usual, it is white males who oppress all others with “their” laws. This is the typical liberal academic fodder heard ad nauseam the past several years.

    To conflate the events of Ferguson, Cleveland, and Staten Island as a systemic problem of racism in law is a fallacy. In Ferguson, a suspected felon attempted to forcibly separate a peace officer from his firearm. Mr. Hamilton, the penal code that applies to this offense pays no deference to race or gender. It is a code that is necessary for the safety of the citizenry. The subsequent shooting was unfortunate but would have happened to anyone who committed battery on a police officer and pursued that officer with steadfast force.

    Anyone who is approached by a peace officer – white, black, man, or woman – should cooperate with that officer. 99% of cops want to perform their jobs safely and return home at night to their families. They are not the Sturmtruppen promoting the interests of rich white men who want to keep blacks, women, and the poor downtrodden.

    Yes, the police make mistakes. But, America is the greatest society with the best (yet imperfect) system of laws.

    Can blacks and women get a great education, succeed in their vocations, and make millions in America. Can they, in fact, become elite in that respect. I don’t know. Ask President Obama and Hillary Clinton.

  2. David Hamilton Reply

    December 10, 2014 at 12:55 pm

    Excellent article. Thanks for writing this piece.

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