Pulling back the curtain on legal double standards

It’s time we stop lying to ourselves. The lying has gone on much too long and every time the lie is repeated, we are all the worse for it. The lie is that in America, everyone is equal under the law.

It’s time to pull back the curtain on this lie, but in order to do so, first, we must have an understanding of what “law” actually is.

In its most basic form, “law” is a process of authoritative control whereby certain members of a particular community establish and maintain a specific public order.

This definition may seem like a mouthful, but history can help us unpack it. Nazi Germany had anti-Jewish laws, the racist regime of South Africa had apartheid laws and the southern states in this country had Jim Crow laws.

The Nazis, the Afrikaners, and the Southern segregationists all had authoritative control over their respective national and state communities. With that control, they each ordered their societies in the manner they desired.

In each of these instances, it is not difficult to identify those community members who sought to maintain a specific public order, nor is it difficult to identify the “specific order” they sought to maintain.

For Blacks in South Africa and the segregated southern United States, subjugation was the public order. And in the case of Jews living under Nazi control, it was extermination. For these people, those were the laws.

A law need not be just or fair or benign to be the law. Law, like a gun or any other tool, can be used for good or for evil.

To disguise the fact that laws can be cruel, unjust and designed to harm certain members of our community, the myth of “blind justice” was created. It fostered the notion of a fair legal system in America, but observations in most American courtrooms will instruct us that what passes for justice in this country is not color-blind.

American laws are written with high-sounding words, full of dignity and sensibility — but words are not deeds. And, as in courtrooms, the long arm of the law, embodied in the form of law enforcement officers, reaches out into the streets and neighborhoods where we witness the double standards that are applied in enforcing our laws written in lofty language.

Even though the 13th Amendment to the U.S. Constitution ended slavery more than 150 years ago, people of color are still forced to wear the proverbial shackles of the double standards in our country’s legal system. Bigots and racists use our system of laws and law enforcement to police Black and Brown bodies, making it clear to people of color that we are neither welcome nor expected to exist in White spaces.

Ohio maintains a specific public order that allows Whites to walk the streets with automatic rifles unmolested by the police but justifies gunning down a Black man who is purchasing a BB rifle in an open carry state. It also finds no fault in a police officer executing a 12-year-old Black boy for playing with a toy gun in a park. This is the law in Ohio.

Many other cities and states maintain a specific public order that targets people of color for fines and the confiscation of property in order to fund local and state governments.

Ferguson, Mo. was proven to use the disproportionate levying of fines on people of color to fund their municipal activities. That was the law in Ferguson.

South Carolina’s civil forfeiture law allows police to confiscate money and property from people merely suspected of having committed a crime. This is often done without a trial, and in some instances, without even an arrest.

Black men are subjected to this law at a rate vastly disproportionate to their numbers in the general population. A statewide journalism project in South Carolina titled “TAKEN” reports that while comprising only 13 percent of that state’s population, Black men represent 65 percent of all citizens targeted for civil forfeiture. This is still the law in South Carolina.

The slave codes, the Fugitive Slave Act, and the Jim Crow laws of years past and the gutting of the Voting Rights Act just a few short years ago are all part of a process of authoritative control by certain community members to establish and maintain a specific public order that keeps people of color in shackles. There are many more laws that do this, but the list is too long to discuss in this short commentary.

We must pull back the curtain to determine the true public order purpose of each law governing our lives and to identify those community members who seek to establish and maintain them. Once we do this, then we can ask ourselves, if this is the America we want for ourselves. And if not, what are we going to do about it?

Oscar H. Blayton is a former Marine Corps combat pilot and human rights activist who practices law in Virginia.