One of the most difficult things that I have had to understand is that the US legal system is about theory and not a clear legal framework for all. A lawyer postures a legal theory and if the judge on the case buys into the theory, up the legal chain it goes, sometimes falling back down and then going all the way up to the Supreme Court. It’s a game, bought and paid for by money, with serious consequences to those unfortunate enough to get caught in its web. It is also inherently unfair.
The rule of law is supposed to be about the equal treatment of all. The classic definition of “the rule of law” is that arbitrary laws, or rules, are not imposed by individual officials. Yet, one lawyer proposes a theory and it holds until another court rules against it, or the Supreme Court makes it the law of the land. Most US citizens will happily proclaim that US jurisprudence is the best in the world. Almost everyone reading this today is thinking that I am completely wrong about my stance that there is no rule of law in the United States. Two recent Supreme Court rulings make my point for me.
You are likely aware that the United States Supreme Court struck down the Texas abortion law. The Court also vacated Bob McDonnell’s conviction on public corruption. Those of you in El Paso know that public corruption is a serious problem. These two cases prove why there is no rule of law in the United States. Let me explain.
Both Supreme Court rulings either corrected a legal mistake or made things worse, depending on your point of view. However you look at the issues is immaterial because the thing that is most important to understand is that the legal gamesmanship has consequences for those caught in it. In the case of abortion, the consequences were that abortion clinics were forced to shut down. There were material expenses and business lost, not to mention that abortion was put into even more conflict. Forget for a moment on whether you are for, or against abortion and focus on the lost business and income someone suffered as a consequence of the Texas abortion law.
In the case of Bob McDonnell, although convicted, he was not imprisoned as the 4th Circuit Court of Appeals ordered that he remain free pending the appeal. When McDonnell lost his appeal and further appealed to the US Supreme Court, the Court ordered that he remain free pending that appeal. The Court vacated his conviction.
However, prior to the Court vacating his conviction, McDonnell lost his teaching job and was a convicted criminal, until the conviction was vacated by the Supreme Court. There were also a personal and professional costs to his conviction.
In other words, in both cases, the abortion ruling and the vacating of the conviction there were consequences to various individuals based on a “theory of law.” There are individuals that were jailed or are currently in jail under the same legal theory, in regards to public corruption. They have paid a price for that legal theory.
This is not about whether they are corrupt or whether abortion is moral, but rather about the consequences suffered by those who pay the price for an interpretation of the law that is later found to be wrong.
How is it that public corruption, under the theories that many were convicted under, including Bob McDonnell, were criminal before the US Supreme Court ruling, and now they are not?
That is the underlining problem, that the US legal system is not equitable for all. Someone is a criminal one day, and the next day, under the same exact circumstances, they are not. That is the pure definition of inequality.
As such, and as demonstrated by these two rulings, there is no “rule of law” in the United States. Instead, there is law by theory. A legal theory that makes on person a criminal and another theory that does not. Two individuals doing the same thing, but only one is a criminal. When you accept such uncertainty, it leads to problems like people buying the best get of jail cards that money can buy, while others sit in jail for the exact same thing.