What has happened to our country, at its deepest level, is a simple issue of unequal law. Our nation was founded, and operated on the principles of general law in greater or lesser extents, but has never fully operated within the principle established within the attainder clause (article 1, section 9 and 10) in the Constitution.
The nature of law is a principle of force, and in that principle it operates. It does not cajole, it does not lead, it simply forces people into its path, and leaves in its wake destroyed lives, and destroyed homes. It is an essence of force, the power by which the majority often controls the minority, and the power by which slaves were made and maintained.
But it is a truth, a truth that may be denied, may be ignored, and may be mocked, but a truth none the less, that the only way slavery could be maintained was via the action of unequal law. Some would have to have different laws applied than others. With great irony, it was the British that pointed out this fallacy within our law, within their letters to each other, and it was recognized by the founders as a problem. It was not corrected until far after the time allocated for its correction.
And yet, today, we still have unequal law. We still have persons forced, by power of law, to be unable to leave or enter places, where others may legally enter and leave.
This is a far cry from the ideal of 'one law for all' 'equal under the law' 'inalienable rights'.
Unequal law is furthered in three major methods of unequal application, to wit: the power of the law to define the law in a way that affects a group, the power to execute the law unequally, and the power of the law to apply the punishment unequally.
Each of these cases were specifically prohibited. Each of them had specific recourse granted. But each of them still exists today, and recourse has been placed farther and farther from our hands, for reasons of lack of means, and lack of time.
Unequal law is the essence of arbitrary law. It is the very definition of that material, arbitrary law wherein there is no rhyme nor reason to the law, no pattern, and the law itself may fluctuate before any man knows the change.
The purpose of the limitations of government was to establish a system that prevent unknowable, arbitrary law, and thereby prevented the oldest recourse of all, re-establishing a government by force. That original right of self-defense was to be guarded from all takers, precisely to prevent the government from growing powerful enough... to take the other rights with impunity.
We have a protected property interest in that equal law. It is a thing, a physical property which has no possibility of a set value, and thus the only recourse is to restore it.
It is best said by Yick Wo v Hopkins:
When we consider the nature and the theory of our institutions of government, the principles upon which they are sup- [118 U.S. 356, 370] posed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power. Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. It is, indeed, quite true that there must always be lodged somewhere, and in some person or body, the authority of final decision; and in many cases of mere administration, the responsibility is purely political, no appeal lying except to the ultimate tribunal of the public judgment, exercised either in the pressure of opinion, or by means of the suffrage. But the fundamental rights to life, liberty, and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing the victorious progress of the race in securing to men the blessings of civilization under the reign of just and equal laws, so that, in the famous language of the Massachusetts bill of rights, the government of the commonwealth 'may be a government of laws and not of men.' For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself.
There are many illustrations that might be given of this truth, which would make manifest that it was self-evident in the light of our system of jurisprudence. The case of the political franchise of voting is one. Though not regarded strictly as a natural right, but as a privilege merely conceded by society, according to its will, under certain conditions, nevertheless it is regarded as a fundamental political right, because preservative of all rights. In reference to that right, it was declared by the supreme judicial court of Massachusetts, in Capen v. Foster, 12 Pick. 485, 488, in the words of Chief Justice SHAW, 'that in all [118 U.S. 356, 371] cases where the constitution has conferred a political right or privilege, and where the constitution has not particularly designated the manner in which that right is to be exercised, it is clearly within the just and constitutional limits of the legislative power to adopt any reasonable and uniform regulations, in regard to the time and mode of exercising that right, which are designed to secure and facilitate the exercise of such right in a prompt, orderly, and convenient manner;' nevertheless, 'such a construction would afford no warrant for such an exercise of legislative power as, under the pretense and color of regulating, should subvert or injuriously restrain, the right itself.' It has accordingly been held generally in the states that whether the particular provisions of an act of legislation establishing means for ascertaining the qualifications of those entitled to vote, and making previous registration in lists of such, a condition precedent to the exercise of the right, were or were not reasonable regulations, and accordingly valid or void, was always open to inquiry, as a judicial question. See Daggett v. Hudson, 3 N. E. Rep. 538, decided by the supreme court of Ohio, where many of the cases are collected; Monroe v. Collins, 17 Ohio St. 666.
Where are we going in our society? If it be, by fear, fraud, or mistake, further to unequal law... it would seem we make our own hell to live within.
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