The Fragility of the Rule of Law

In the aftermath of the Dallas ambush, I had originally decided not to write about it immediately because virtually every other editorial column and political blog would also be writing about it. However, as horrible as the ambush and murder of five white policemen is, there are larger forces at work here that must be discussed.

What we are witnessing is a breakdown in the Rule of Law in America. The Rule of Law is supposed to be one of the cornerstones of the American Social Contract and as it crumbles American society begins to be ripped apart. The breakdown of the rule of law is not confined to the black community's confrontation with police although this is an area where the problem is most acute. In other areas the rot advances almost unnoticed while creeping into all sectors of society and reaching even into the White House.

The Rule of Law is based on several essential principles.

The law must be reasonable. Tyrannical regimes have tyrannical laws. America’s Declaration of Independence asserts the right to resist such tyrannical and unreasonable laws. Lengthy, complex, contradictory laws impede the ability of citizens to understand the law and therefor undermine the Rule of Law.

The law should be applied equally to all citizens. A 77,000 page tax code (besides being lengthy and incomprehensibly complex) is an insult to the Rule of Law because elites and large corporations are treated differently than regular folks. If everyone were treated equally the tax code would be much shorter. Examples of unequal treatment abound. If you smoke crack (mostly black teenagers) you get thrown in jail while if you snort cocaine (Hollywood types and sports figures) you get a slap on the wrist.

The Rule of Law must be enforced. There can be no impunity. I have lived in countries that are thick with laws that were rarely enforced or only partially enforced. An unenforced law is just so many words written on paper. People hold unenforced laws in contempt and hate the authorities that allow elites and politicians to break the law with impunity.

The black community would be justified in having little respect for the Rule of Law because for hundreds of years the principles of the Rule of Law were not applied to them. Centuries of slavery followed by Jim Crow segregation left the black community outside the American Social Contract so it is no surprise if they do not respect laws that victimized them rather than protected them.

This led them to form their own culture and norms of behavior that differ from those of mainstream society. How could it be otherwise? It is only since the civil rights era that they have had the possibility of becoming fully integrated into American society. There are some (perhaps many) people in the black community that don’t want to integrate into mainstream society. After centuries of rejection it is not unreasonable to feel some resentment for a culture that treated them with such disrespect.

The amazing thing about black culture is that it is not as different and alienated as might have been expected. There are many blacks who truly believe in the hope provided by American principles despite continuing suspicion and harassment by law enforcement (as described by Senator Tim Scott, a black Republican, on the Senate floor - Senator Scott had been pulled over by police seven times in one year - me none). There are many who proudly serve in our nation's armed forces and many more that serve as police and other first responders. It was interesting to note that the chiefs of both the Dallas police and the Dallas transit police were black men. The grief they felt was genuine. The skin color of the fallen officers was not relevant to their feelings.

It is only with the participation of everyone that our country can be truly whole. I would still assert, however, that the enlightenment principles on which America is based are best for all peoples; black, white, brown, red, yellow or whatever else there is (despite having been first written about by dead white men). There may be better principles on which to base a society but I haven’t run across them yet. The problem wasn’t the principles; it was the faulty implementation of those principles by flawed human beings that created problems.

It is the alienation from the American Social Contract and the Rule of Law that one sick mind used to justify vigilante action to kill those he viewed as his oppressors. Anecdotal evidence would tend to support this view that police are out to get black men (especially those that were unarmed). Reliable statistics are hard to come by but Bureau of Justice statistics that I have seen indicate that police kill more whites than blacks. Of course, blacks represent a smaller percentage of the population than whites so proportionally they are more likely to be killed by cops. But blacks disproportionally account for crime, which makes them more likely to be confronted by police.

A recent study (An Empirical Analysis of Racial Differences in Police Use of Force) by Roland G. Fryer, a black economics professor at Harvard, found no racial bias in the case of lethal force (even though there was more use of non-lethal force against blacks). It is ironic that the police ambush occurred in Dallas. The Dallas police have been in the forefront on training police to de-escalate confrontations and on improving relations with all communities. There were no confrontations between police and the marchers that night. Everything was peaceful until the shots rang out.

It will not be easy to build up the Rule of Law to include all peoples and to have the black community fully participate in the American Social Contract. It is the work of a generation. Many blacks will resist. There are groups and so-called leaders in the black community whose existence is dependent on the continued alienation of blacks and whites. Black children are bullied by their peers as being too “white” if they do well in school. The welfare state has destroyed the black family and warped black culture.

It will take changes in both the black and white communities to close this gulf of understanding and acceptance. In a period of change events appear chaotic and disorganized. I believe many of the events we are seeing are part of this disorderly change. It is in these times that we must rely on our most basic principles. America’s founding principles are still valid. We just need to make sure they work for everybody.

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