With Liberty and Justice for Some Read Free Page A

rule of men,” even if we maintain a facade of laws and other trappings of a legal system, such as courts, legislatures, and judges. Indeed, it’s nearly impossible to find a definition of the rule of law that does not contain some requirement that the law be applied equally. As Judge Diane Wood, of the Seventh Circuit Court of Appeals, observes, the consensus view is that “there is no one in a society governed by law who is above the law or immune from some form of legal constraint.”
    This conception is practically universal, certainly in the West. In the early 1990s, the World Bank and International Monetary Fund announced that any states wishing to receive financial assistance were required to respect the rule of law, prompting debate over what exactly that entailed. In a 1998 essay in Foreign Affairs , Thomas Carothers of the Carnegie Endowment for International Peace articulated the standard used by the Western world to dictate to developing nations what the rule of law minimally demands. The rule of law, he wrote, is “a system in which the laws…apply equally to everyone.” Unless the political and financial elites are subject to the same laws as everyone else, he argued, there could be no rule of law—only its trappings. He cited Latin America, Asia, the former Soviet Union, and parts of the former Eastern bloc as examples of “the ruling elite’s tendency to act extralegally” wherever “legal systems remain captive of the powers that be.” The most crucial challenge in developing countries, as Carothers put it, is that elites “must give up the habit of placing themselves above the law.”
    We face a similar challenge in the United States today. For all the homage we pay to equality under law, we have virtually abolished it in practice. Indeed, beyond isolated, politically motivated rhetoric, we hardly even pretend to believe in its validity any longer. Instead, the United States now has the exact opposite of a single set of laws before which everyone is equal. It has an entrenched two-tiered system of justice: the country’s most powerful political and financial elites are virtually immunized from the rule of law, empowered to commit felonies with fullscale impunity and to act without any constraints, while the politically powerless are imprisoned with greater ease and in far greater numbers than in any other country on the planet.
    Over the past several decades, we have witnessed numerous examples of serious lawbreaking on the part of our most powerful political and financial leaders with no consequences of any kind. It is no exaggeration to state that the current consensus among journalists and politicians is that except in the most blatant and sensationalistic cases (typically ones in which other powerful factions are aggrieved—a Bernie Madoff here, a Rod Blagojevich there), criminal prosecutions are simply not appropriate for the country’s elites. Courtrooms, indictments, and prisons are there for ordinary Americans, not for the ruling classes, and virtually never for our highest political leaders.
    The central promise of the American founding—that all would stand equal before the rule of law no matter what other political and economic inequality was allowed—has been abandoned. Two features of contemporary American political life are particularly significant in this regard. First, the elites’ exemption from the rule of law has been strengthened at exactly the same time that the law has become an increasingly draconian instrument of punishment for the rest of Americans—particularly the poor and racial minorities. Not only does the law fail to equalize the playing field; it perpetuates and even generates tremendous social inequality.
    Second, though unequal application of the law has always been pervasive in American society, until recently such inequality was regarded as a problem: something to be deplored and, if possible, corrected. Today, however, substantial factions in our