BY MIKE MAGEE

Former President Donald Trump’s indictment this morning reinforces most Americans’ belief that “No man is above the law.” But few of us have taken the time to explore what that statement means when it comes to building a healthy nation, and why we believe it.

How do you create a healthy nation? 

This is at once a very simple and a very complex question. It is at the heart of successful and failed nation building. 

It applies equally to a self-assessment of our approach to rebuilding Germany and Japan as part of the Marshall Plan after WW II, and to our own struggles with autonomy and disparity in America where our very beginnings were (and continue to be) marred by a history of enslavement of blacks, forced migration and cultural destruction of Native Americans, and subjugation of women.

The law, a blend of agreed upon rules, regulations and boundaries, arose in layers over time, and reflected the communities where they emerged. Our own American legal system, on which we relied to launch this nation-building exercise in 1776, is dynamic and continues to evolve to this day. 

As legal historian Lawrence Friedman wrote, “Despite a strong dash of history and idiosyncrasies, the strongest ingredient in American law at any given time is the present – current emotions, real economic interests, and concrete political groups.” It is then “a study of social development unfolding through time…”

When building a nation, some countries like France and Germany, relied on written codified rules, statutes or “rational instruments” on which they leaned to create order and to base decisions. But our laws, upon which this nation was built, if they have a basis, were descendant from British law.

Common Law in England was pluralistic, showing some variance in design and execution by geography. This is because Common Law was not “imagining the future” but “happening in the present” in response to real-life disputes that appeared as cases to be adjudicated and resolved by a judge. 

Complexity of decision-making made the emergence of lawyers inevitable. They negotiated the space between citizens and rulers of the various communities. The “bar” (the lawyer collective) gave rise to the “bench” (the collective of judges) filled with local men of power and influence largely drawn from the bar. Together the bar and the bench formed a single guild that defined local justice by their rulings and kept the wheels of government moving.

Common Law became the law of the land in America by the Judiciary Act of 1789.  Today it is sometimes referred to as “Case Law.”  While Common Law derives from actual disputes and their decisions, it does not “make law.” A separate branch of our tripartite government, the Congress, is empowered to create a new law, which must be signed by the President for an Executive branch stamp of approval, to become official. 

But what is the recourse for a decision or law that is deemed unjust? How is that challenged? That requires “litigation”, that is a challenge or “appeal” to a decision with request for a review and action by a higher “appellate” court. In America, the chain of appeal under our Constitution leads to the Supreme Court, the highest Court in the land. By action of the Supreme Court in Marbury v. Madison in 1803, the Supreme Court claimed the right to declare an existing law unconstitutional and so it has remained, last exercised in the recent Dobbs case.

When John Adams and his contemporaries were contemplating “nation building”, they were already aware that a range of legal practices, dating back to the British and Puritan derived customs of the early 17th century, were already wildly out of date, and that “one size fits all” might not work well for all 13 British colonies.

 As legal historian Lawrence Friedman noted, “The legal needs of a small settlement run by clergyman clinging precariously to the coast of another known continent were fundamentally different from the needs of a bustling commercial state… Necessity was the supreme law maker for the colonies and niceties came later…”

Health was hardly a priority, or even an understood or workable concept, at the beginnings of this nation. Law on the other hand was “a utilitarian tool” to advance prosperity, enterprise and growth. After the signing of the Constitution in 1787, 11 of the 13 states rapidly drafted and approved their own state constitutions to replace their King’s charters. Not that these were in any way permanent or static. Louisiana for example is on its ninth constitution.

But what these actions did do in many of the states was to severely restrict the right to vote and “legalize” a solution to their labor needs on large plantations, legalizing a “slave code” already a century old. As early as 1662, in Partus Sequitur Ventrem  (“offspring follows the womb”) the Virginia colony had affirmed that children of slave mothers were slaves themselves regardless whether their father was white and free. In 1671, Maryland courts declared that Christian conversion did not have the power to affirm “free status” on slaves…and so on down the line. The “slave code”, and the 3/5th of a person chattel status was there at, and before, and in some form ever since the birth of this nation.

Our culture defined our laws, and our laws reinforced our culture – with its residual racism, misogyny, gun violence, and cruelty (even to the point of separating immigrant children from their parents) – continue to undermine our health.

So when we ask the question “How do we make a healthy America?” in these modern times, we are forced to retrace our beginnings, and especially our legal beginnings, to untangle how “our social development has unfolded over time.” 

The British law, from which our’s was derived, took pain to reinforce that laws and ordinances should take care not to be “contrary or repugnant” so as to avoid loosing the faith and confidence of those governed. The over-turning of Roe v. Wade, extreme gerrymandering and voter suppression, legalizing citizen possession of weapons of war, and obstruction of sensible immigration reform like the Dream Act all take us in the wrong direction.

The indictment today of Donald Trump perhaps announces the beginning of a legal course correction.

Mike Magee MD is a Medical Historian and the author of CODE BLUE: Inside the Medical-Industrial Complex.