Is the rule of law dead in the US?

Great Debates
1

The law exists in its application.

I know some folks here at the dope can be pedantic, so I want to define my terms. By dead, I don’t mean we live in Somalia or are currently riding historic on the Fury Road; I mean the application of the law in the US seems to have been corrupted and it is increasingly hard to believe that the system is not rigged against ordinary Americans. The laws do not seem to be applied equally or fairly.

I am not even sure if corruption is the correct term. It is hard to point at just one thing and declare “here is what is wrong with our system,” but examples of this “corruption” are manifest:

  • Wage theft vs. property crimes: The Economic Policy Institute estimated in 2014 that wage theft in the United States could be as high as $50 billion per year, far outstripping the $14 Billion the report attributed to all robberies, burglaries, larcenies and motor vehicle thefts combined in 2012. Yet wage theft is barely prosecuted and employers often just receive a slap on the wrist. The maximum civil penalty for failure to pay minimum wage or overtime is $1,100 per violation while the US sentencing commission reports the average sentence for theft, property destruction and fraud is 24 months in prison. Not only that, but only ~2% of these stolen funds are recovered. While my stock portfolio has been doing great the last 20 years, it hardly seems fair to me that businesses and their owners can profit this way off theft and pay little consequence.

  • Qualified immunity: We all know about this. It’s been all over the news. While I think the majority of people can agree that police and government workers need to have some protections while doing their jobs, it seems to have risen to a level that is ridiculous. For instance:
    Jessop v. City of Fresno, 936 F.3d 937 (9th Cir. 2019) - Police stole hundreds of thousands of dollars while executing a search warrant but were granted immunity under the clearly established prong (i.e. the law was not clear enough at the time that a reasonable officer would understand that stealing was wrong - really).
    Young v. Borders, 850 F.3d 1274 (11th Cir. 2017) - After chasing a motorcycle speeding though a city, a sheriffs deputy knocked loudly on an innocent mans door at 1:00 in the morning while holding their drawn weapons and without announcing who they were. When the homeowner opened the door with a legally owned gun in his hand, a deputy immediately shot and killed him. The police were adjudicated to have done nothing wrong.
    Lech v. Jackson, No. 18-1051 (10th Cir. 2019) - While trying to capture a criminal that had hidden inside an innocent families home, the police did hundreds of thousands of dollars in damage to the home using explosives, tear gas, and an armored excavator to rip holes in the walls to get inside the house. Police claimed (and the courts agreed) that they were perfectly within their rights to do this and the homeowner was not entitled to any compensation.
    I could go on and on and on. There are hundreds of cases like this that you can find and read about if you google qualified immunity. We are supposed to have the right in this country to be secure in our homes, effects, and persons and also have the right to have guns to defend ourselves, but government officials often face no consequences when they ignore these rights and take our property or even kill us if they even suspect we have a gun.

  • Civil asset forfeiture: I am too tired to even continue typing about these things. But if you want to know more, the Institute for Justice released a report (Policing for Profit: the Abuse of Civil Asset Forfeiture) detailing how local, state and the federal government has seized over $68 Billion dollars in cash and property over 20 years from citizens without charging them with a crime. This is all good.

  • Private prisons and regulatory capture: Financial incentives for imprisoning fellow citizens is an abomination. Full stop. Yet private prisons are here to stay and make billions in revenue every year. This is has led to cases of judges getting kickbacks to incarcerate people and companies spending millions of dollars lobbying for harsher sentencing standards. There is even evidence (see the linked report) that these companies work not to rehabilitate criminals but to keep them as repeat customers. An abomination I tell you.

  • Immunity of the politically connected and the elite: Donald Trump. Ted Kennedy. Tom Delay. Paul Manafort. Ken Paxton. Bob Menendez. Matt Gaetz. Even Hunter Biden. There are so many cases of justice delayed and justice denied when it comes to the politically connected. And our newly elected president is the perfect poster boy for this. Nuff said.

  • The exclusion of our peers from the criminal process and prosecutorial escalation: This is a real problem and is close to the heart at what I think is wrong with the rule of law in this country. Article 3 of the constitution gives us the right to trial by jury for all crimes but >95% of criminal cases in this country are pled. Prosecutors regularly threaten to increase charges to coerce alleged criminals to avoid trial. People then escape jail time but end up with a criminal record which will be used against them if they ever are charged with a crime again. And so the cycle continues. The US incarcerates more of our population than any country by huge margin, and I am not even touching the amount collected from citizens in fines and court costs.

  • Affluenza and the structure of the courts: It is almost as hard to imprison a rich man as it is to get a camel through the eye of a needle. Prison is for the poors.

    The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread. - Anatole France

Is it any wonder that people are angry? Is it any wonder that anti-government / anti-society movements like sovereign citizens, anti-vaxxers, birthers, and climate change deniers are ubiquitous? Should we be surprised when CEOs are gunned down in the street. I think the causes of MAGA, the Tea Party, and Occupy Wall Street all come from the same root.

What has happened to this country? Am I the only one that sees how broken everything is? Is there anything we can do to fix this?

Other related problems:

  • The fine print and forced arbitration
  • Usury and profiteering
  • The enshittification of the media. All the media.
  • The weakening of consumer protections
  • The weakening of labor rights

Sorry for the long and rambling topic, maybe I should just get a blog…

2

Too much? Maybe I should try one topic at a time.

3

It was ever thus. That does not mean the rule of law has ended. We had rule of law during the 1950s, when millions of Americans were denied the vote because of the color of their skin. The system was rigged against too many Americans at the time. But we still had rule of law. This isn’t pedantry: it’s conceptual clarity.

4

Yes, that was a lot in one place.

A comment I have on it is bringing up a common maxim about inequality in our societies, that from the point of view of some dominant sociopolitical groupings, it is just the way it is that there are those the Law binds but does not protect, and those the Law protects but does not bind, and to them, their version of Rule of Law means this order is enforced to their benefit. There has always been that in the mix (as Measure_for_Measure points out the easiest exampe to bring up is the segregated South pre-1960s).

Just happens that for a long time the privileged expected one another to keep up proper forms in polite society and to play by a set of mutually understood rules and norms, but more lately the trend has been more towards “but what if we don’t?”

5

To the OP, I would add the steady erosion of our protection under the Bill of Rights. You can now be arrested for exercising your Constitutional rights and sure you get released 4 - 6 hours later. But the cops and the courts treat this as a no harm no foul and by the way you can’t sue anyone for it.

6

I do think some things have changed.

It has been the case for many decades that the courts (and thus the justice system) work better for you if you can spare the time and money it takes to pursue a case to its conclusion. Many people have neither. I know I lost the one case I was involved in simply because I didn’t have the money to fight any longer: I had to give up.

What is new in the last couple of years is that people seem to have digested that. Between the various Trump and Biden cases, it is clear that the justice system is not blind, nor immune to rhetoric or personal agenda, and are thus not nearly as neutral as they purport to be. Look at how Trump and Hunter Biden have escaped prosecution and / or sentencing and / or jail time for their crimes and alleged crimes: two very different methods of evading the justice system, but nevertheless two high-profile examples of powerful people (or those connected to powerful people) evading justice.

I think it is now stunningly obvious that people with access to a certain level of power, and its proxy, wealth, are not subject to the law the way that less powerful people are, and that’s without considering the racial aspects of the US justice system, whose inquities are pretty well known,

7

This is a good point and one I had forgotten when I was typing out my blog post.

8

The “rule of law” is about the idea that the laws, be they fair or foul, are applied relatively evenly to everyone.

About 90% of the OP’s rant is about laws that are designed unequally. That will have unequal effects if applied evenly.

So although laws designed to promote an unequal society are objectively(?) bad, and certainly IMO bad, that has nothing to do with “rule of law”.

9

Don’t forget Roger Stone. Convicted of witness tampering (they have the texts in which he asked Randy Credico to lie) and still Trump pardoned him.

11

Moderating:

This really was too much and too wide ranging.

As per the GD and P&E rules:

12

You got it in your first sentence. And that applies to Constitutions.