The Rule of Law and Justice
“Quod Rex non debet esse sub homine, sed sub Deo et lege” (“That the King ought not to be under any man but under God and the law”–Lord Edward Coke, quoting Henry Bracton, 1607
Fiat justitia ruat caelum:
“Let justice be done though the heavens fall.”
1. A woman walks into a room
It’s Monday evening. A woman walks into a room.
Just an ordinary Black woman, wearing a beige dress, carrying a sheaf of white papers in her left hand, though as she clears the doorway it’s clear she’s not alone–she is trailed and mostly surrounded by uniformed and armed cops. You’d think she was carrying copies of the Gettysburg Address; or the Declaration of Independence.
As well she might be. Though this declaration is seemingly quite a bit longer.
She walks up to a podium, and a desk, at the end of the room. There’s a white man standing behind it, not just any man, since he’s dressed in a judge’s robes. He’s otherwise also quite unassuming, with a an unassuming look, a little lanky. In a 1930’s movie, he’d be the guy that Katherine Hepburn turns down when Cary Grant comes knocking.
There’s no sound in the crowded room, except that of flashbulbs going off. The woman hands the judge the sheaf of papers. He looks at the top page a moment, opens the sheaf, looks at a few more here and there: no biggie. He hands them back to the woman, and makes a note on a paper on the desk. Something has happened. If you’d watched enough episodes of “”Law and Order,” you’ know that a chain of custody has been established.
The woman turns, and walks back toward the door she came in from, trailed by the cops, carrying that sheaf of papers. A collective shuffling sound fills the room, and someone from the MSNBC stable starts talking–quite unnecessarily.
2. Gideon’s Trumpet
From my perspective, something very strange has happened. My eyes are tearing up. I’m the kind of man who never in his adult life has cried–except at the end of certain movies! I confess. Later, I thought of a movie, as we Hollywood romantic types always do.
You didn’t see it. It was a made-for-TV movie, starring Henry Fonda, clearly toward the end of his career. It’s title was, is, Gideon’s Trumpet.
It’s not about a jazz musician. It’s about a two-bit crook named Clarence Gideon, locked up a in a Florida prison in the 1950’s for some petty crime, and with the usual lousy representation that poor guys get–if any. A real guy, with a really bad life.
Gideon was barely literate, but he’d got hold of a law book, and read in it, and got the idea of writing a letter. He’d seen the name of some hot-shot lawyer in a newspaper maybe, and addressed the letter to him, not with any particular hopes: Abe Fortas, Esquire, Washington DC.
Otherwise known as Vice-President Lyndon Johnson’s best friend, partner in the most powerful of all DC firms, Arnold Fortas and Porter, and he got the letter, oh yes. He had friends on the Court–to which he’d some day be appointed by LBJ, and later resigned under threat of impeachment for not reporting a gift that Clarence Thomas would throw in the wastebasket–and he passed it on to one of them: maybe Thurgood Marshall. And it got it on the docket, and not too long after that it came down on some Monday or other, with a name attached to it: Gideon v. Wainwright., the latter being the Florida AG, or something like that.
And it had a decision, an unanimous decision: Clarence Gideon had been denied the assistance of counsel, and every accused person in the whole damn United States was guaranteed “The Assistance of Counsel,” under the 6th Amendment. And it came down to the release from prison of Clarence Gideon: and many more like him, then, and since, have learned that name.
But that’s not the end that had me tearing up. No, the movie ends with Henry Fonda!-walking down a muddy walkway that runs between two chain-link fences: and every con in the prison is lined up, on one or the other side, and every single one of them is banging his mess kit on the fence. In the only way they can, they’re saluting Clarence Gideon, and the warden and his assistants start shouting at them, stop it shut the fuck up–and they bang louder.
Sort of like the end of To Kill A Mockingbird, when Gregory Peck, having of course lost the case, starts walking back up the aisle, and all the black people up in the balcony stand up, and the Reverend Sykes turns to Scout, and says, “Stand up girl, you’re father’s passing.”
But that’s fiction. So probably was the end of Gideon’s Trumpet, but think of it this way: it was fictional, and so too was Henry Fonda as a convict, but Clarence Gideon was real: and a hero. He didn’t run into a burning building to rescue a baby; he didn’t land a plane when the pilot had a heart attack; but he wrote a letter, and the world changed.
3. The Rule of Law and Justice
And why do I remember this story, and repeat it? Because on Monday I was watching history being made: and the history of what? Of the Rule of Law. Nothing sensational. She–nameless for all us watchers–was in no danger, and she wasn’t a hero, but she was embodying the most important thing about American democracy, now nearing the verge of extinction, in my lifetime. And yours. And you know she knew it, because you couldn’t be in that room or watching it and not know that.
And I teared up because we could all have stepped on a land-mine, and she was our living testimony that it has been put out of commission–at least for now. The Rule of Law has held. For now at least, the would-be King has been beaten back. And we should all remember the Rule of Law in Georgia: if Trump is convicted there and imprisoned, he can never be pardoned by any President of the U.S.
And why at last do I proclaim Justice? Because there are social and jurisprudential theorists who think the Rule of Law is just a bourgeois trap, and it’s Justice that must be achieved. And I’m sorry, but that’s so wrong. Justice is the beyond; the overcoming; what must step in, so to speak, when the Rule of Law has failed, or been traduced, or subverted; or been enforced so literally that fairness has been denied.
In any social order, demands of the Law will at some point become too rigid; as Melville shows us in “Billy Budd..” Justice then is a demand to surpass the limit of the Law. But without the Rule of Law as a floor there is no Justice, no guideline, but just a battle of wills.
As Jamelle Bouie put it in today’s Times, “The thin line between Trump’s success and failure is why, despite the protests of conservative media personalities and Republican politicians, this indictment had to happen. There was no other choice.” Let’s hope.
