The word “legal” conveys a sense of precision and imperative in addition to the domestic purport of “official” as is a “legal document” or “make it legal”. Whatever the usage legality implies a system of rules governing human conduct. Some of our laws are expressions of common sense like those pertaining to driving. But in the event of mistake or misunderstanding, there developed a batch of laws called “equity” or what former kings of England ascribed to the pronouncements dispensed in the court of chancery. Equity had a distinctly ecclesiastical flavour and effectively overrode those laws which for some reason or by some previously unanticipated quirk of circumstance made it seem “unfair” to apply the so-called “strict letter of the law”. Hence the characteristic mystical or churchly theme. The common law was a set of precedents which established the expected habit of enforcement after repeated consideration of similar facts. Statutory law was a “codification” of laws which overcame precedent and was intended to reduce variation to a minimum. And if all that were not enough, many countries (but not England surprisingly) created Constitutions which were so broadly worded as to cover almost any eventuality yet insinuate the whole with what were perceived by the legislators to be ideal motives of governance.
Two things to keep in mind when interpreting law: 1) the laws were written by another human being; that is, the laws didn’t come from any other source; and, 2) we have an inherent “animal”nature to us which predicts both the creation and application of laws; that is, power and control are fundamental elements of law. This is the inherent and singular nature of humanity. It is the deciding weakness which has plagued both royalty and nobodies.
The people who make the laws often have their own interests at heart; and, even if they are democratic about the laws, they understand the necessity to control the conduct of the masses. As much as we may prefer to distinguish ourselves from ants, we’re just a colony of ingredients which of necessity must be ruled and contained for our mutual advantage. But the egalitarian objective requires direction and limitation – and, in spite of the fanciful ambition of fairness, there is always the need to consider the source of the proscription. It is for this reason for example that slavery was accepted by the religious-mouthing Puritans who waxed so eloquently about all men being born equal.
Nonetheless the law attempted to overcome lesser inadequacies. The “indenture” of servitude or apprenticeship was critically fashioned for the benefit of the Parties to the contract not simply to appease the acuity of its legal advisors. In the good ‘ole days when – as my late father jokingly liked to observe – “men smelled like horses and had a bath once a year whether they needed it or not” the production of legal documents was the domain of lawyers and the clergy (more of that alliance between secular and sacred). Reading and writing were feminine attributes. Certainly the uneducated serfs had no acquaintance with either. The gentry had better things to do than read or put pen to paper. The early evolution of the “X” as one’s mark was therefore commonplace. To deal with the instance of dispute between the Parties the document (naturally made in duplicate, one copy for each) was pressed one against the other then folded into an envelope size which was then cut with scissors up and down at the top. When the documents were unfolded they had the identical indentation at the top which assured both Parties of their possession of identical contracts. This ceremony at least preserved the notion of equality by ensuring both Parties were talking about the same thing. It did not however do anything to enlarge upon the substance of the contract. This affectation captures similar instances of propriety when in fact there is nothing of value contributed to the legal relationship between the Parties other than the similarity of their words. Ultimately the legal ramifications were governed by the underlying theme of power and control.
Engaging in even the most cursory comparative law analysis discloses the identical motifs of superiority and advantage. Regrettably there persists an argument in favour of this manipulation because very often the masses are not to be trusted – at least not by those who seek to profit from them. The legal ramifications are no more deductive than the people behind them from the start. And it should come as no surprise that the mercenary motives are as elemental to others as to us. The only difference between them and us is who’s in power and who’s in control. The tribal prejudices that existed in England in the 1600s against the Irish, the Catholics and negroes are not radically different from those that persist 400 years later. Our human inadequacies are that deeply embedded. That, my friend, is the real legal ramification. And I mustn’t forget to add the influence of the army with both the church and the state.
This is why the justices in the majority are so cavalier about rewarding the schemes of conservative activists to nullify constitutional rights. They are in the majority. They can say one thing now, and another thing later. These five justices can direct the destiny of the nation as they choose, without having to worry about reciprocation, because they can decide how legal principles are applied, or, if they choose, simply throw them out and invent new ones.
The Supreme Court Is Playing Constitutional Calvinball
Adam Serwer is a staff writer at The Atlantic, where he covers politics.