If the descendants of the Africans who were imported to the Americas thought that equal treatment would assure better treatment and a higher quality of life, they were disabused of that notion at least twice. First came Plessy v. Ferguson, the Supreme Court decision which made segregation legal wherever it seemed attractive throughout the land. Then came Brown v. Board of Education to, effectively, write finis to the idea that equal treatment is even related to quality. As the subsequent decades have clearly shown, there is nothing to prevent 99% of the people from being equally and routinely deprived of their rights.
I used to call it the "swimming pool syndrome" after the response made by some of the Southern states to demands that they integrate their public swimming pools. Instead of letting every person in, as long as there was room, the facilities were shut or sold to private clubs whose property rights trumped human rights.
Which, when you come to think of it, is not very different from how the City of New York is responding to inconvenient people, on foot and in cars. The powers that be just shut down the streets. (That a private/public park has to provide 'round the clock access is somewhat ironic.
But, that's not the point, is it?
In addition to the obvious fact that equal treatment, despite being demanded in the Constitution and affirmed by various amendments, does not guarantee that either our civil rights or our human rights as natural persons are respected. The rule of law, after all, has no enforcement powers.
Justice Anthony Kennedy is a major proponent of the rule of law. He's thought it through and gives lectures. In 2006, after the Hamdan v. Rumsfeld decision, Kennedy explicated the rule of law for the annual ABA assembly.
I suggest that the rule of law has three parts. The first is that the law is binding on the government and all of its officials. This may seem a rather self-evident matter, but it’s a proposition that most government officials in most countries do not fully understand. If an administrative agency and an administrator in that agency is charged with giving you a permit, the permit is not given to you as a matter of grace; it’s given to you because you are entitled to it and because it is his or her duty to give it to you. Very few countries in the world understand this. The rule of law binds the government and all of its officials. This is an essential lesson that must be taught, if the corruption and the greed and the graft President Greco referred to are eliminated.
The second part of the rule of law is there for you on the little slip. It is, in a sense, I think, the most troubling for me. I am not sure that it’s complete. It says that the rule of law must respect the dignity, equality and human rights of every person. And then there’s a second sentence and the second sentence says that the people have a right to have a voice in the laws that govern them. So, there’s a process element, but it isn’t just process. Because the right to participate in government is nothing less than the right to shape your own destiny. And the framers of our Constitution made it very clear that each generation has a share, has a chance to determine its own destiny, to determine its own direction.
...
My third suggestion (and it can only be a suggestion–it would be presumptuous to say I can define the rule of law), my third suggestion for you to think about surprised me when I wrote it. And it was this: that every person has the right to know what the laws are and to enforce them without fear of retaliation or retribution. This is almost a process-sounding precept, but it’s again substantive, as well. It’s part of your identity, it’s part of your self-definition to know the laws that protect you, to know the laws that are respected by your neighbors and friends and family. This is part of who you are. And you’re entitled to know this. And you’re entitled to enforce them.
Now, Kennedy was speaking in the context of promoting the rule of law to a laggard global community. He also said, in the part I left out above:
And people have a right to improve their lives, to gain basic security, without corrupt governments depriving them of the very means of existence.
Which does not, perhaps conveniently, address one's recourse when private, rather than public, corporations employ financial engineering to deprive 99% of the population of a living, unless they kowtow to someone's dictatorial rules.
Nor does Justice Kennedy specify how we the people are to enforce the law when our agents of government evade the prohibitions in the Constitution by allocating the majority of public assets and resources to private corporations (artificial persons), which the SCOTUS then declares to have inviolate rights, just like individual natural persons, and against which ordinary citizens are no match.
How do we insist that public servants carry out their obligations under the Constitutional and respect the prohibitions, never mind providing for the public welfare? How do we reverse the traditional pattern of property rights being given preference over human rights (made necessary by the legalization of slavery) and even used as a sop to disguise the deprivation?
If the 2004 decision in WALL STREET GARAGE PARKING CORP v. NEW YORK STOCK EXCHANGE INC. is predictive, then the courts aren't going to be much help. Not because they have no enforcement powers, anyway, but because the plaintiff, in seeking to enjoin a deprivation of his and his customer's rights not to be impeded in their lawful enterprise:
By this proceeding, plaintiff seeks to enjoin the defendant from blocking access to Exchange Place in lower Manhattan and to prevent the stop and inspection of vehicles exiting from plaintiff's parking garage.
had his property rights rebuffed with a ruling that the harm he suffered was no greater than that suffered by anyone else.
Well, actually, that was the appellate finding and the original judge who'd found for the plaintiff then reversed his decision. Which, in effect, reduces the prior preference accorded to property rights and makes the owners of property more equal, under the law, to the natural person who has neither property nor rights.
See, equality is a slippery slope.
But, I don't think it's hopeless. Human rights have enjoyed some successes. Oddly enough, it was foreigners, Salim Ahmed Hamdan and Lakhdar Boumediene, which moved the SCOTUS in the direction of securing the rights of the person over those of the amorphous "nation" the Bush Administration was claiming to protect. Indeed, Justice Kennedy wrote the decision for the majority in Boumediene v. Bush.
And in New York itself we have that wonderful precedent on behalf of the press, New York Times Co. v. United States, in which the principle of no prior restraint was invoked on behalf of the distribution of public information. While the Pentagon Papers case had an element of property rights (the NYTimes is a commercial enterprise with a proprietary interest in producing is information for sale), unwarranted restraint or detention directed towards a person should be considered as of, at least, equal importance to restraint of trade. If the public can't walk, sit and stand on their own land, how exactly is liberty going to be defined?
Again, deprivation under cover of law has been with us for a long time. Indeed, children, being considered the property of their parents, still have no human rights. But, that doesn't make it right.
When the law is used as an instrument of coercion and subjugation, there is no justice. When everyone is equally harmed under the law, then the very spirit of the Constitution is defiled. The City of New York needs to be enjoined from violating human rights, for a start.
What are human rights? Justice Kennedy is uncertain.
What are human rights? Is it the right to subsistence, the right to enough to eat, the right to breathe clean air, the right to an education? At this point, the rule of law, as we, I think, would want to define it, may depart from the ideal of a model constitution. These are two different things.
Perhaps we should help the SCOTUS clarify that the object of the rule of law is to insure human rights.