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We DO NOT Live Under a Rule-of-law … Period

We DO NOT Live Under a Rule-of-law … Period

No matter how many times you hear the mantra that America is governed by a rule-of-law – and that NO man (or woman, I presume) is “above the law” — that is so patently untrue that it is amazing that anyone would proffer that nonsense – and that anyone, with an IQ higher than a hockey score, would believe it.

Let me first concede that the United States – and many other democracies – have generally good legal systems.  They are better than the authoritarian system by far.  However, the implementation of the law is by men and women.  They rule.  Not the law itself.

The discretion to apply the law occurs at all levels of the legal system.  When a cop gives you a pass for speeding, he or she is not following the law but putting you … above the law. 

Prosecutors have what is called “prosecutorial discretion” – meaning they, not the written law, determine if you are to be held accountable or if you are … above the law.  That discretion means that the prosecutor, not the law, rules.

In courts, judges apply the law according to their opinion –or even ignore the law altogether.   THEY decide who is guilty and who is not – not the law.  They dismiss cases for both legal and personal or political reasons – putting the family, friends, and political allies … above the law.

From the cop on the beat to the Supreme Court, the written laws are applied inconsistently because different folks apply them at different places and at different times. If there were truly a rule-of-law we would not have the justice system operating with such different results along racial lines. 

Data clearly establishes that blacks receive harsher treatment – from arrests … prosecutions … convictions, and sentencing – than do white folks.  That is not possible under a true rule-of-law. That means that, that in many cases,  white defendants are arguably … above the law.  And think about that fact when racist Democrat officials ruled over the southern states.  Was there a rule-of-law?

There is also a generally accepted belief the wealthy and powerful are less likely to be held accountable. We have seen that time and time again.  Are they … above the law.

Presidents of the United States cannot be prosecuted for crimes while in office. That puts the President … above the law.  Members of Congress cannot be charged with slander and libel for anything they say on the floor – and they are officially exempt from many laws, such as equal employment. 

Members of Congress are … above the law.

Those in the news profession are not held to the same rule-of-law as we common folks.  They can acquire stolen documents, refuse to surrender them, or tell how they got them.  They do not get prosecuted for trespassing, harassment, and invasion of privacy.  They can defy court orders to produce documents. 

Journalists are … above the law.

As laws are enforced, prosecuted, and judged by human beings, they, more than the written laws, will have the greatest influence on justice – or lack thereof.  And that applies to civil and criminal cases.

There is a common practice among attorneys to “judge shop,” – referring to efforts to get the case before a judge more likely to be favorable to the client.  What better evidence is there for the fact that the rule-of-law is suborned by the person in the long black robe?

Yes, we have an incredible legal system – as good as any on Earth.  Maybe even as good as humanly possible.  But it is human beings who have the final judgment in interpreting and applying the law – and even ignoring it.  And no profession is more … above the law … than those who enforce it.

The law does not rule.  Those who rule essentially make the law.

Perhaps someday, Artificial Intelligence will take over the judicial system and make “judgments” strictly according to the written law – without the human traits of emotion, bias, prejudice, or …   Oh. But then, who programs the computer?

So, there tis.

About The Author

Larry Horist

So,there‘tis… The opinions, perspectives and analyses of Larry Horist Larry Horist is a businessman, conservative writer and political strategist with an extensive background in economics and public policy. Clients of his consulting firm have included such conservative icons as Steve Forbes and Milton Friedman. He has served as a consultant to the Nixon White House and travelled the country as a spokesman for President Reagan’s economic reforms. He has testified as an expert witness before numerous legislative bodies, including the U. S. Congress. Horist has lectured and taught courses at numerous colleges and universities, including Harvard, Northwestern, DePaul universities, Hope College and his alma mater, Knox College. He has been a guest on hundreds of public affairs talk shows, and hosted his own program, “Chicago In Sight,” on WIND radio. Horist was a one-time candidate for mayor of Chicago and served as Executive Director of the City Club of Chicago, where he led a successful two-year campaign to save the historic Chicago Theatre from the wrecking ball. An award-winning debater, his insightful and sometimes controversial commentaries appear frequently on the editorial pages of newspapers across the nation. He is praised by readers for his style, substance and sense of humor. According to one reader, Horist is the “new Charles Krauthammer.” He is actively semi-retired in Boca Raton, Florida where he devotes his time to writing. So, there ‘tis is Horist’s signature sign off.

14 Comments

  1. frank stetson

    I do understand that law, like most everything, faces the same issues. Life is easier in many ways when you are rich, powerful, well-known, or just freaking pretty. I can understand where Larry loses out on all that.

    I, myself, have the luck of the Irish which gets me out of many a pickle as well as bestowing advantages I truly don’t deserve. I favor charity in many of those occasions.

    Likewise, life is harder when you are poor, have little power, average appearance, and — a minority, especially one with a negative image like black, hispanic, and illegal alien (have an accent).

    Frankly, while I can understand Larry’s desire for a robotic, autocratic, justice system where one size fits all, IMO, he really does not want the results. If the law always reacts the same, then there is no need for the jury to ever assess punishment, nor a need for a range. You be guilty, here’s the time, every time. You young, you old, tough shit — same time. Pretty sure we see the problem there.

    I like discretion. We are humans after all, we need discretion. Machines don’t need discretion. Is this fair? Not always. Is it just, same answer. But if you give a machine discretion, you get nothing in return. If you show a human discretion, you may plant a seed that blossoms. Remember, “democracy is a government “of the people, by the people, and for the people.” At the same time, “Democracy is the worst form of government, except all those other forms that have been tried from time to time.”

    We are people, we are the longest living democracy ever. The American experiment is unmatched in the annals of human history. We may be cowboys, but we have heart. We get things wrong all the time, but we always strive to do better (so far). We DO LIVE UNDER THE RULE OF LAW, it is not perfect either, we do get things wrong, but we always strive to do better. We are willing to admit mistakes, take the punishment or cure, and try to do better. We love the underdog, and we love second chances. America is a second chance for the world. And our rule of law is of the people, by the people, and for the people; it is not perfect, we get things wrong all the time, but we always strive to do better.

    SO, in this one, I agree Larry. And I say good. Now let’s make it better, but lack of discretion is not it.

    • Tom

      I agree Frank! And life gets even more unfair when you got a GOP candidate screaming about the other guy’s disability as him being unsuitable for the job.

      Well said when you say, “Frankly, while I can understand Larry’s desire for a robotic, autocratic, justice system where one size fits all, IMO, he really does not want the results. If the law always reacts the same, then there is no need for the jury to ever assess punishment, nor a need for a range. You be guilty, here’s the time, every time. You young, you old, tough shit — same time. Pretty sure we see the problem there.”

      Like you, I feel the same that eliminating discretion is not the answer. And I don’t like eliminating umpires from MLB baseball. I like the imperfection that causes arguments about the call and kicking dirt onto the umpire (ahhh those golden days of Billy Martin and Gene Mauch). My personal feeling and way I have guided my life is by steering clear of the law by doing what is holy, right, and just and not making dumb decisions out of emotion that are illegal in their very nature and intent. This is the best way to avoid the pitfalls of any legal system in any country. I would be wonderful if we actually started to teach decision making courses in middle school and high school.

      Larry had a rough few days with us, we are tough on him as we readers should be. But I can see today has dawned another trifecta of joy and agreement!!! Praise God!!!

      • larry Horist

        Tom … Perhaps I was not clear enough. I would never desire to have AI handles courts court cases. I do have issues with cases decided by judges, but I like juries. But the entire systems could use a lot of improvement in providing justice across the board. Too often the legal system does not follow the law.

      • frank stetson

        Yeah, he’s in the comment closet and I hope he comes out soon… :>)

        I like Hawk Eye in tennis, but the chair ump can overrule. At speeds above 130, it’s tough for the human eye, even with the clay markings.

        Under two months until the French —- my official start of summer! AO was fun, joky hamming it up and still winning. hate the guy, love the athlete — think it’s a Larry-tennis sort of feeling :>) I hope the US lets him in the Open. Serve FL right for NY to get him. Make me smile at least. I may go this year, it’s been on the list.

  2. Tom

    Ok Larry.

    Your opening paragraph seems to confirm all that the Chinese CCP says about us!! Congrats! I am sure I will probably see your opening paragraph used by the Wumaos on “Quora.com”. Oh and by the way, you threatened Frank Stetson the other day, and I saw what you did! And you got away with communicating a threat which is against the law! And this is my Independent/Unaffiliated point of view! LOL

    I do not think the founders wrote discretion into the law so that it would mean people rule. I think what they were looking at was that there are reasonable exceptions and circumstances where “mercy” is best. On our dollar bill we say, “In God We Trust”, and that God we trust in wrote in His bible, “I desire mercy, not sacrifices!” (Matt 9:13 and 12:7).

    I do struggle in this piece to determine the target of your criticism, it seems to be the people, not the law itself. And if this is the case, I can agree with you on the basis that as a former quality manager I do not like seeing wide variation in a product, and that includes the law. And as we all know, there is nobody better at taking advantage of the variations in application of the law than that guy you do not like, Trump. But I digress……

    The case of journalists is a bit tricky because while there is no federally recognized privilege that allows reporters to keep their sources confidential, but the Supreme Court has found that “news gathering is not without First Amendment protections.” So for this we must blame the guys and gals who are the only branch of government that does not have ethics rules!! Clarence Thomas, GOP appointee and his 20 years of free vacations! LOL But seriously, your statement is too absolute and inaccurate based on this list at “https://www.rcfp.org/jailed-fined-journalists-confidential-sources/” where you can find many journalists whom were not above the law. But admittedly, this did take me two minutes of research. :>)

    By the way, Mike Pence was using this topic to not talk about Jan 6th, but now I understand he will not fight it anymore and will spill his guys. Good for Mike!!! Lets wait and see how much of his guts end up on the table!!!

    I fully agree with you on the comment about “judge shopping”. I did precisely this thing when I fought my child custody case since many of the family law judges are biased for females and anti-male. I found a visiting judge from another county who was pro father and was going to be hearing cases in my county. Her lawyer wanted to postpone, I told my lawyer if he did not go forward with this judge I would fire him and get a big postponement! I got the judge I wanted, I got the case resolved equitably and got joint custody! Amen to judge shopping for the defense!!! By the way, DA’s know very well who is the best judge for a particular kind of case! But you are correct, it is evidence of discretion over absolute rule.

    I do get your point though Larry. I agree, wealth should not matter if the scales are equal. But lets face it, this is a human/political/legal system we are talking about. Humans are flawed, politicians all have agendas, and lawyers are writing the laws in such a manner that they can wiggle out of them. So we just have to do the best we can with what we got. I cannot find a system that is any better but surely do see quality improvements we can make to our system. But lets not forget, in the end, there is still a jury of your peers that gets to hear the evidence and decide the verdict. Judges may be able to over rule verdicts based on blatant unfairness or procedural issues, but they do not decide the verdict – that is still we the peeps!

    As for AI being the judge, I feel the same way about this as I do AI replacing MLB umpires – keep the humans, constrain the AI. And when it comes to programming the computer, I think Independent/Unaffiliated programmers will be the best, most legally neutral programmers.

    • larry Horist

      Tom … I am mystified. You use the first graph as an overall and nasty attack on my thesis and then use the rest of your commentary to generally agree with me. And for a threat to Frank, I have no idea what you mean. The purpose of the commentary is to keep folks from buying into the Pollyanna view of the rule-of-law that spews from the media on a daily basis. As I noted, American as about the best legal system possible … and there is need for some serious reform.

  3. Mike f

    Larry, Greetings and best wishes on this third day of Passover! Not sure what your point was in pointing out the obvious-that laws are not applied equitably across the board. Of course you couldn’t resist a dig at democrats (and of course an opportunity to show your ignorance) when you slammed southern democrats (who are now republicans) for their role in inequitable justice. Of course, that is rather old history, so instead I will bring up a much more current event-the state of Tennessee legislature. Expelling two representatives this week (and allowing the third to stay because she is a white woman) certainly bears mention. Extreme overreaction on their part, at most a censure was warranted. But, from the right we hear cricket’s…. So there tis…

    • larry Horist

      Mike f … actually, I have just finished a commentary harshly criticizing the Tennessee House for expelling two members. You should see it in a couple of days. Keep an eye out. If my commentary covers the obvious, then you agree with me that we do not live under a rule-of-law as so many sanctimonious legal professional and politicians keep claiming.

    • Tom

      Good point Mike f, that mess in TN was wrong. Seems like every place where the GOP gets a super majority, it seems to me that the GOP is ready to take out the ax and slash Dems as well as laws they never liked. Looks to me to be a bit like retribution governance!

      • larry Horist

        Ac … It is frustrating to have your misstate my opinion in my commentaries. I have NEVER stated that I do not believe that systemic injustice does not exist — or system racism. Quite the contrary. This whole commentary is about the injustice in the legal system. I have FREQUENTLY described the existence of institutional injustice and racism. Are you intentionally misrepresenting my opinions as a straw man for you rebuttal or is is some reading comprehension issue?

  4. AC

    Larry,
    With all your points taking Law and Order to task relative to the same Laws being equally practiced in application across the board. Do you still believe, as commented on in this space, that systemic injustice does not exist in this country? When in facts (opinions) laid out in this commentary you make a case for its existence. Anyone with an IQ equal to a basketball game’s team score sees that.
    Rule of Law application varies, so justice varies. If all rules applied equally for all given the same circumstances, then why do defendants told they must dress and behave well in court in front of judge and jury. Opinions are known to matter. Opinion is bias and creeps in whether or not jury members are advised to disregard outside news coverage and certain witness testimony.
    Bias can be either negative or positive. Generally, bias is regarded as a negligible. Although, individuals themselves see their own biases in a positive light. Even with some degree of arrogance, individuals believe their opinion intelligent, learned, and right.
    Therefore, such as is their opinion correct, it should be a law unto itself.
    Therein is the rub. And, rightly there should be that rub, our Democracy being what it is meant to establish in this country.

    • Tom

      I may be missing something here but Larry has written several posts about systemic injustices do exist. He has often pointed to the systemic injustices in the FDR era. So I am not sure why you think he believes otherwise. Can you cite an writing of his where he believes otherwise, I would like to read it again.

  5. frank stetson

    Slight point of order Judge Indy….. Larry has said systemic injustice only exists in Democratic controlled cities.

    Therefore, Nashville has it, Tennessee does not. When they let the white woman stay, and booted the two young black men from the Statehouse, that was not systemic injustice, that was the wonderful white way. They not only expelled the two young black duly-elected representatives, they erased them from the House website; they have been vanished.

    Tennessee has their own Blacklist. Apparently these two young black ex-representatives now join their Tennessean brother expellee’s like the six confederates who refused blacks citizenship, one bribery guy, and one sexual deviant — all white. Their crime — non-violent protests about guns after the Nashville shooting.

    Republicans do not honor the rule of law when they have power to rule. They are out of control in Tennessee and smearing the State’s reputation for justice, the rule of law, and most important —- just doing the right thing. This is systemic racism, practiced outside Democratic cities, outside Democratic control, deep in the heart of Dixie, no longer the world of the Dixiecrat, but instead the world of the Republican Autocrat.

  6. Lawrence Quave

    Unequal justice? Here’s why: The Attorney General is the leader of the Department of Justice, whose job it is to enforce Federal law. The AG is appointed by the President with the consent of the Senate. The FBI is the principal investigative arm of the DoJ. The AG is supposed to enforce Federal law fairly (according to the guidelines of the Constitution) without political prejudice. So much for how the system is SUPPOSED to work. In REALITY, the AG takes his marching orders from the top leaders of the President’s political party, who effectively decide who will or will not get prosecuted. The AG can only be relieved of his duties by the President or by impeachment which requires a two-thirds vote of the Senate. Bottom line: Government corruption and incompetence can only be gotten rid of by the direct vote of the American voters. But if half of the American people are just plain stupid as they have demonstrated themselves to be time after time over the past many years, you’ll never get rid of the injustice brought about by our so-called two-tiered justice system. And that’s why America is the way it is now, and I hold no hope for it ever changing

  1. Horist: makes you wonder what Reagan did so poorly that moved him behind a couple of racists. Twas 154 scholars…

  2. Joseph S Bruder..... LMAO. Your list has the two most racist presidents of the 20th Century ahead of Reagan. FDR…