No One Is Above The Law. - Fact or Fiction?

There has been a remarkable and excessive resurgence of an old American political classic: No one is above the law. While it certainly has been used in any number of contexts, the prevalent source has originated around the Jan. 6th Congressional Investigation. Whether citing this democratic principle is being asserted by politicians, law-enforcement, lawyers, political commentators, the news media, or an ordinary citizen (even an extraordinary citizen) there is a sense of quasi-validity. What makes this essential and foundational axiom for a democratic system be seen as occasionally tenuous? There is no doubt that it is a premise of our nation, our government, and our society. Does that make it a fact?

Therein lies the opportunity for a Short American Intelligence Test.

Question 1: Is anyone above the law in the US?

Question 2: The US Supreme Court is viewed as the final arbiter of the law. If Justices can decide if a law is allowed to be enforce or not, or even what the ‘meaning’ or ‘intent’ of the law is then doesn’t that put the Justices above the law, at least in how they collectively rule?

Question 3: Is such a principle, even one acknowledged by everyone to be correct, the same thing as that principle being an operational reality (one that is applied versus aspired to be applied)?

Question 4: If a law is crafted to benefit a group/entity through unsavory (i.e., corrupt) means, does that law violate the “no one is above the law” principle?

Question 5: If political considerations are applied in our law-enforcement decisions about whether to bring a prosecution or not, is that consistent with the “no one is above the law” principle?

Answer to Question 1: It depends. You probably thought this was going to be a ‘yes’ or ‘no’ answer. It’s more complicated than that.

To properly answer one might need to deal with the contexts that can exist, not to mention with an agreed to definition and understanding of what it means for “no one” being above the law. In many cases, this is a generally true situation; but it’s those darn contexts that get hairy. We all agree that murdering someone will cause your action to be considered for prosecution and tried if determine to be warranted. But if a diplomat murders someone and they have diplomatic immunity, are they above our laws? Yes, one of our laws is that diplomats have diplomatic immunity, but isn’t that more a sleigh-of-hand than a true application of the “no one is above the law” principle?

What about businesses that are found guilty of being responsible for someone’s death, and are fined for their culpability but don’t suffer any substantive punishment? A utility can be negligent, or even outright disregard the harm their decisions make, in their operation and cause the death of one or more individuals. Yet, in being found guilty, the utility is fined a rather minor amount given their revenue stream, their funds come from the general public, and the public/users don’t have any real competition to turn to for the service the utility provides. Isn’t the actual lack of accountability a form of being ‘above the law’? The judicial system and lawyers would say no, but then do they have a real choice in their position? If they say this really does put those who run the utility above the law that won’t set well with lots of people.

And what about politicians themselves? There are many instances where they exempt themselves from the very laws that they pass. How is that not being “above the law”? Even their own actions within their elected office are judged according to their own ‘standards’ and rules. Isn’t that the very condition that the old fox guarding the hen-house adage warns against?

The “no one is above the law” principle is in fact aspirational. It is a standard that we attempt to use to compel authorities to follow but can’t directly require them to do so. The principle is vulnerable to being abused and creating instances where effectively someone(s) if only momentarily is ‘above’ the law.

Answer to Question 2: Yes, the Supreme Court is able to act ‘above the law’ while maintaining that they are acting in compliance within their defined Constitutional authority and under the “law”. This is another aspect of another aspirational principle: the Supreme Court being an impartial, non-partisan, and objective entity that follows our laws without violating the “no one is above the law” principle. This Supreme Court principle is very desirable and important for the continued sustainability of our democratic society; but it isn’t guaranteed to be true. History would teach us otherwise. Even some basic STEM-based assessments would argue against accepting this as an objective truth. I will say however that it has been a valuable myth for the Court, but perhaps a disservice to the public and nation.

Answer to Question 3: No. Both answers 1 and 2 should have also make this clear. We want our democratic system to operate according to the principle, and it is vitally important for us to both generally believe and accept that it does (or for the most part does). But it is also essential that we acknowledge and accept that while it is a principle of our society and government, it is foundational and aspirational and yet not completely realized in the imperfections of human activities.

We all know, or should, that wanting something to be true is not the same thing as it being true. The fairy tales we tell our children are not true no matter how much our children want them to be. America might be ready to leave its childish views of our society, nation, and government behind and see the advantages of living with the reality of the world and seek ways to move closer to the aspirations and aways from self-delusion of the myths.

Answer to Question 4: Yes, it does violate our “no one is above the law” aspiration. That doesn’t mean that the ‘law’ wasn’t specific and accounted for the action that occurs; but since the law was created specifically to advantage someone using means that erode not only the “no one is above the law” principle but other democratic principles that we depend on to sustain our society. There is nothing in the laws of physics that requires that a democratic society’s laws to be consistent with the principles of a democracy. This is partly due to the fact that the principles themselves are not guaranteed to be true or even adequately understood by those who contend that they are following them.

Answer to Question 5: No, it is not consistent. Of course, like so much of the “no one is above the law” question, it is not easy to just think that you can just follow the principle. If not acting due to political considerations violates the principle, then what is one acts because of political considerations? It is not inconceivable for deciding to undertake a prosecution for political considerations being as much a violation as not doing so. If humans had the ability to operate based upon facts alone, it might be easier to resolve this dilemma; but humans are prone to many errors when it comes to ‘facts’. There are frequent disagreements over what the ‘facts’ are. How often do our politician, political parties, partisan-aligned public disagree over ‘facts’? How often then does of partisanship perspective interfere with our ability to see the ‘facts’ which would determine whether we are applying our societal principles accurately, uniformly, and consistently with respect to the law?

SEEING THROUGH THE FOG

As a principle “no one is above the law” is a good and appropriate goal for our democracy. We should continue to advocate for it, defend it, and seek have it applied. The principle needs to be taught to our children such that they learn it is a goal but easily subject to abuse or our failure to expect if not demand it. America can take satisfaction in trying to live up to his goal. Yet, we also must acknowledge that we have a long way to go to make it a FACT.

This does not mean that it is a FICTION. However, we also must be aware that if we are lazy, inattentive, or careless in whom we listen to and follow we can enable the FACT to become a FICTION. There’s an interesting plot twist that you might have run across in any number of stories. It is even an often-used twist of logic used in riddles. In the Lord of the Rings, there are ‘ringwraiths’ called Nazgul, who cannot be killed by any living man. Yet, they are killed. What the Nazgul believed was true, but what they believed was limited in understanding the FACTS.