The Rule of Law is often described as lying at the cornerstone of our democracy and our American way of life. And certainly, it does—the concept that ours is a nation of laws, and that no one is above the law, is one of our most closely held guiding principles. In any reckoning of our society and our history, however, we are called upon to consider the interplay between these inspiring, fundamental, foundational principles and the unfairness we see. We must then reflect on the fact that merely being a nation of laws does not, in fact, guarantee that the laws we create, uphold, and are governed by will be just. So, how do we reconcile the role of the Rule of Law in lawful discrimination, when that cornerstone has supported structures of enslavement, inequality, disenfranchisement and lawful discrimination? Although we have seen some of those structures torn down, chipped away or replaced, over time, we are reminded that a solid foundation, although necessary, does not itself guarantee the soundness of the structures it ultimately upholds.

In the course of my own ongoing education about our society and history, I recently participated in an event hosted by the American Bar Association’s Real Property, Trusts and Estates Law Section discussing the book, “The Color of Law: A Forgotten History of How Our Government Segregated America” by Richard Rothstein. While I had been generally aware of our nation’s history of legal discrimination, and its painful legacy in so many communities today, Rothstein has presented this analysis with great clarity and detail. He identifies policies that have existed at every level of government, such as Black families’ ineligibility for mortgages to purchase suburban homes, the availability of government subsidies for the development of white-only suburbs, the enactment of race-based zoning laws siting undesirable industrial activities in predominantly Black neighborhoods, the establishment of segregated public housing, and myriad other statutes, regulations, ordinances and government programs that have systematically disadvantaged people of color. The author then connects these historical instances of government-sanctioned racism to the plight of many communities and individuals today—revealing the historical barriers to the accumulation of wealth, status, education and other opportunities which are inextricably connected to the fact that currently, the typical white family possesses nearly 10 times as much wealth as the typical Black family. Kristin McIntosh, et al., Examining the Black-white wealth gap, The Brookings Institute (Feb. 27, 2020). And it bears noting that this book addresses just one facet of a complex history of injustice; the inequities discussed coincide with others, such as those within our criminal justice system, which have had their own devastating impact, and the harm done by government actors or with the imprimatur of law against Asian-Americans and other communities of color, women, indigenous people, the LGBTQ+ community and other historically marginalized classes of citizens.