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With Freedom and Justice for Some, Part 2

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Revealingly, the central function of the Constitution as law — the supreme law — was to impose limitations not on the behavior of ordinary citizens but on the federal government itself. The government, and those who ran it, were not placed outside the law, but expressly targeted by it. Indeed, the Bill of Rights is little more than a description of the lines that the most powerful political officials are barred from crossing, even if they have the power to do so and even when the majority of citizens might wish them to do so.

The vital aim of law, then, was to ensure that the powerful were subjected to its dictates on equal terms with the powerless. As Jefferson put it in an April 16, 1784, letter to George Washington, the foundation on which any constitution must rest is “the denial of every preeminence.” In his 1786 “Answers to Monsieur de Meusnier’s Questions,” Jefferson argued that the essence of America was that “the poorest laborer stood on equal ground with the wealthiest millionaire, and generally on a more favored one whenever their rights seem to jar.” Even Hamilton, who made no attempt to conceal his belief in a strong executive, argued in Federalist 71 that the president had to be “subordinate to the laws.” The notion of law simply makes no sense, and has no good purpose, unless all are bound by its dictates.

The dangers of abandoning this principle were well recognized. In Federalist 57, James Madison emphasized that equal application of the law to political elites was a prerequisite for a free and cohesive society (“one of the strongest bonds by which human policy can connect the rulers and the people together”), and warned that in its absence “every government degenerates into tyranny.” Perhaps most tellingly of all, the Founder who was the least philosophically inclined but the most practiced in the exigencies of governance — George Washington — vowed, in a letter written in December 1795, that there would never be immunity for wrongdoing by high government officials on his watch: “The executive branch of this government never has, nor will suffer, while I preside, any improper conduct of its officers to escape with impunity.”

Inequality and the Founders

What the Founders recognized was that unless the law were applied equally, subjecting all citizens to its mandates, the Constitution would simply consist of a set of guidelines or suggestions, compliance being optional. In view of that danger, equal enforcement was embedded in formal American jurisprudence from early on as the linchpin of the rule of law. The seminal 1803 Supreme Court case Marbury v. Madison is widely remembered for having established the foundation for how the U.S. government functions: Congress enacts laws, the president executes them, and the courts “say what the law is.” But the Supreme Court’s ruling was just as meaningful for what it signaled about how the principle of equality under the law would work in practice. The central dispute in Marbury was whether the courts had the authority to subject officials in the executive branch to their rulings — that is, whether officials who violated the law could be compelled to submit to judicial decrees. The Court’s unanimous decision announced that the judicial branch had not only the right but the duty to enforce the law on all citizens, including high-level officials in the executive branch. “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws,” the chief justice wrote.

What makes the Founders’ insistence on equality under the law all the more striking is that none believed in equality as a general proposition. Indeed, the opposite is true: they considered inequality on every level, other than in law, to be the natural, inevitable, and just state of affairs. Even Jefferson, one of the most egalitarian of the Founders, held that there was “a natural aristocracy” among men, based on “virtue and talents.” And he saw its existence as not only inevitable but desirable: “The natural aristocracy I consider as the most precious gift of nature for the instruction, the trusts, and government of society.” Similarly, for Adams, inequality was both inevitable and natural, even divinely ordained: “It already appears, that there must be in every society of men superiors and inferiors, because God has laid in the constitution and course of nature the foundations of the distinction.” Yet the Founders concurred that nothing constituted a greater threat to the Republic than to allow this inequality of wealth or political power to determine the treatment of citizens before the law. In particular, they disdained superior and inferior positions imposed by the state rather than determined by merit. Paine, for instance, loathed inherited titles on the ground that they doled out rewards based on assigned status rather unrelated to entitlement. He declared,

Nature is often giving to the world some extraordinary men who arrive at fame by merit and universal consent, such as Aristotle, Socrates, Plato, etc. They were truly great or noble. But when government sets up a manufactory of nobles, it is as absurd as if she undertook to manufacture wise men. Her nobles are all counterfeits.

To Paine, a system of legally enforced inequality would enable the elite to exploit the law to entrench unearned prerogatives or shield ill-gotten gains. And those counterfeit nobles would turn the law into a tool to promote and protect injustice rather than to correct it. Though Paine’s liveliest polemics were devoted to scorning the accumulation of wealth, he had no quarrel with income inequality provided that there was no such inequality under law. The rich could buy what they desired, dress and eat as they wished, and wallow in the most effete comforts and luxuries. But the law was the one realm where their money and property would count for nothing.

One point is vital to acknowledge: like all of the other principles espoused by the Founders, equality under the law was not always observed in practice. Indeed, it was often violently breached from the very beginning of the Republic. Slavery, the dispossession of Native Americans, the denial of voting rights to women, and the granting of superior legal rights to property owners are a few of the most glaring deviations.

But even when the principle of equal treatment was betrayed, American leaders in every era have emphatically affirmed it, not so much out of hypocrisy as out of aspiration. Indeed, for those who were devoted to justice, the persistence of inequality was precisely what made equality before the law so imperative. Over time, this principle would provide the road map for eradicating injustice. It was the impetus for the abolition of slavery; the enactment of the Fourteenth Amendment, with its overarching guarantee of “equal protection of the laws”; the enfranchisement and empowerment of women; the Civil Rights movement; enhanced protections for the poor in the criminal justice process; and numerous other legal and social reforms of the last two centuries.

Equality no more

Today, equal application of the law remains a sacrosanct principle among virtually all legal theorists. Contemporary scholars routinely emphasize that the rule of law cannot exist without legal equality. As the constitutional legal scholar Michel Rosenfeld argues, the rule of law is not merely weakened if “the ruler and his or her associates consistently remain above the law”; it ceases to exist by definition. When the powerful can effectively exempt themselves from law’s punishments, we live under “the rule of men,” even if we maintain a façade 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 political culture explicitly renounce the principle of legal equality itself. It is now quite common for American political discourse to include arguments expressly justifying the elites’ legal impunity and openly calling for radically different treatment under the law for various classes of people based on their power, status, and wealth.

Historically, our collective insistence on the principle of equality under law has been principally responsible for our forward progress, our ability to identify and eliminate major and minor transgressions. Conversely, our abandonment of that principle precludes such progress and, worse, shields legal inequality from reform. A society that demands equality under the law will move inexorably toward it. A society that renounces this virtue will move in the opposite direction. We have, manifestly, become a society that no longer even rhetorically affirms the necessity for this equality, and the outcome is exactly as dangerous, oppressive, and anti-democratic as the American Founders warned it would be.

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This is the introduction to his newest book, With Liberty and Justice for Some. Copyright © 2011 by Glenn Greenwald. Reprinted by permission. All rights reserved

This article appeared in the March 2012 edition of Future of Freedom.

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    Glenn Greenwald is a former constitutional lawyer and is currently a Contributing Writer at Salon, where he also writes the political and legal blog, Unclaimed Territory.