Lawmakers: Above The Law They Create?

The idea that laws do not apply to those who make them is a common perception. However, the reality is more complex. While it is true that lawmakers may enjoy certain privileges and immunities, the concept of the rule of law dictates that everyone, including those in positions of power, should be bound by the same laws. In the United States, for instance, the Constitution serves as the ultimate source of law, and it applies equally to all citizens, including those in the legislative and executive branches. This does not mean that exceptions don't exist; for example, police officers are allowed to direct traffic, and soldiers can perform actions that would typically be criminal offences. Nevertheless, the principle of equality before the law remains fundamental to a fair and just society.

Laws that apply unequally

While the ideal of a democratic nation is that all citizens are governed by the same laws, there are instances where laws apply unequally. This can occur when certain individuals or groups are explicitly excluded from having to obey a particular law. Here are some examples:

Laws with Exemptions

In the United States, the Speech and Debate Clause of the Constitution grants immunity to members of Congress, exempting them from arrest or questioning outside of specific circumstances, such as treason, felony, or breach of the peace. This privilege ensures their freedom of speech and debate within their respective houses.

Laws with Specific Applications

Some laws are designed with specific applications in mind and, therefore, do not apply universally. For instance, it is generally illegal to stand in the middle of an intersection and block traffic, but a police officer directing traffic is exempt from this restriction. Similarly, possessing eagle feathers is prohibited for most people, but Native Americans are allowed to possess them for tribal customs.

Laws with Prescribed Exceptions

Certain laws have built-in exceptions that exclude specific groups from adhering to them. For example, while it is typically illegal to possess controlled substances, individuals with a valid prescription are exempt from this prohibition. Likewise, while shooting someone is unlawful, self-defence can be a justifiable exception.

Laws with Varying Interpretations

The interpretation and application of laws can vary depending on the context and the specific circumstances of a case. For instance, while foul language may be offensive to some, it is not explicitly illegal. On the other hand, narcotics, which are generally prohibited, are a subject of debate, with some advocating for their legalisation.

Laws with Evolving Nature

Laws are not static and may need to be updated to reflect changes in society. For example, laws addressing bullying and stalking have had to be amended to include considerations for cyberbullying and cyberstalking on social networking sites, which were not a factor when the original laws were established.

Immunity for official acts

The US Supreme Court ruled in July 2024 that former presidents are entitled to some degree of immunity from criminal prosecution for official acts carried out during their time in office. This was a landmark decision that expanded presidential power and set a precedent for future presidencies. The ruling was in favour of former President Donald Trump, who was facing four charges stemming from an alleged effort to subvert the transfer of power to President Biden after the 2020 election.

The Supreme Court's conservative majority (6-3) found that presidents were protected from prosecution for official actions that extended to the "outer perimeter" of their office, but could face charges and be tried for unofficial or private conduct.

Chief Justice John Roberts wrote the opinion for the majority, dividing presidential conduct into three categories:

• Official acts that are part of presidents' "core constitutional powers" - absolute immunity.
• Other official acts outside their "exclusive authority" - presumptive immunity.
• Unofficial acts - no immunity.

Roberts stated that "the president enjoys no immunity for his unofficial acts, and not everything the president does is official. The president is not above the law".

The ruling further clarified that to defeat presumptive immunity, it must be shown that charging a former president would "pose any dangers of intrusion on the authority and functions of the Executive Branch".

The decision to grant immunity for official acts was not without criticism. Justice Sotomayor, joined by Justices Kagan and Ketanji Brown Jackson, wrote a scathing dissent, stating that the decision "reshapes the institution of the presidency" and accused the conservative majority of inventing an "atextual, ahistorical, and unjustifiable immunity that puts the president above the law".

The immunity ruling significantly delayed Trump's trial, with the lower court needing to determine which of the former president's alleged acts were official or unofficial. This process will likely result in further appeals and delays, potentially impacting the upcoming presidential election.

Laws for different people

Laws are rules that bind all people living in a community. They protect our general safety and ensure our rights as citizens. These laws exist at the local, state, and national levels. For example, food safety laws at the state and local levels are implemented by health departments, which have guidelines for restaurants to store and prepare food in a healthy manner. At the national level, the Department of Agriculture and other federal agencies inspect food production plants to ensure food safety. Speed limits and traffic laws are also in place to ensure safe driving.

However, it is important to note that not all laws apply to everyone. There are instances where certain laws apply to specific groups of people. For instance, it is illegal for most people to stand in the middle of an intersection and block traffic, but a police officer directing traffic is exempt from this rule. Native Americans are allowed to possess eagle feathers, which is generally prohibited. Prescriptions for controlled substances are another example of how laws can vary for different people. While it is illegal to own these substances without a prescription, those with a valid prescription are exempt from this law.

The legislative branch, through the lawmaking process, creates statutes or written laws. These statutes are then interpreted and applied by the courts on a case-by-case basis. The judicial branch, on the other hand, interprets the laws but does not pass them. This process is based on stare decisis, a Latin term meaning "let the decision stand."

The Constitution is the ultimate source of law in the United States, providing the boundaries within which common law and statutory law operate. The legislative branch updates laws as needed, while the judicial branch interprets them to ensure their fair application in society. This dynamic nature of the law allows for necessary changes, such as updating laws on bullying and stalking to include cyberbullying and cyberstalking on social networking sites.

Law-making powers

In the United States, the Constitution is the ultimate source of the law. However, it does not address every specific legal question. Within the boundaries of the Constitution, there are two primary sources of law: common law and statutory law.

Statutory law is created by the legislative branch through the law-making process. Statutes are written, discussed, argued, and voted on in Congress or in the legislature of a state. The courts then apply and interpret these statutes on a case-by-case basis.

Common law, on the other hand, comes from the judicial branch. Although the courts do not pass laws, they do interpret them. This means that the judiciary bases its legal decisions on what is written in the Constitution and on previous court rulings in similar cases. This process is called stare decisis, which in Latin means "let the decision stand".

The legislative branch of government must update laws as needed, and the judicial branch must interpret the laws so that they apply fairly to society at the time. For example, laws about stalking have been updated to consider cyber stalking and social networking sites, which were not factors when the original laws were written.

The laws of a nation generally arise from shared values and morals. In the United States, there are laws at both the national and state levels. As citizens, we tend to be most familiar with state and local laws, as these are the laws we encounter most frequently in our daily lives. These laws protect us against crimes like murder, robbery, rape, and assault, and they also ensure that we don't drive too fast, that we mow our lawns, and that we keep our dogs on leashes.

At the national level, there are laws about internet crime, narcotics, treason, copyright, and patents. These laws are made by Congress, which has the power to pass laws that apply to all US citizens. However, there are some laws that do not apply universally. For example, it is illegal for most people to stand in the middle of an intersection and block traffic, but it is not illegal for a police officer to do so while directing traffic. Similarly, it is illegal to possess eagle feathers, but this does not apply to Native Americans who possess them for use in tribal customs.

The US Constitution also grants certain powers and immunities to the President. For instance, the President has immunity from criminal liability when carrying out powers granted by the Constitution. This means that Congress cannot make it a criminal offence for the President to exercise a power granted by the Constitution.

In summary, law-making powers in the US lie with the legislative branch of government, which creates statutory law through the process of writing, discussing, arguing, and voting on statutes. The judicial branch interprets these laws and applies them to specific cases, creating common law. While most laws apply to all citizens, there are some exceptions, such as laws that only apply to certain groups or individuals with specific powers or immunities.

Law enforcement

The Principle of Ignorantia Juris Non Excusat:

The Latin maxim "ignorantia juris non excusat," or "ignorance of the law excuses not," forms the basis for holding individuals accountable for their actions, regardless of their knowledge of the law. This principle assumes that laws are properly promulgated, published, and distributed so that individuals within the jurisdiction can reasonably be expected to be aware of them. The rationale is to prevent individuals from evading liability by claiming ignorance, ensuring that everyone is presumed to have knowledge of the laws that govern them.

The Challenge of Selective Enforcement:

The notion of "when laws do not apply to those who make them" undermines the very essence of equal justice and the rule of law. In a democratic society, laws are intended to apply universally, treating all citizens equally before the law. However, there are instances where certain individuals or groups may be exempt from specific laws. This selective enforcement can lead to a perception of injustice and privilege, eroding trust in the legal system.

The Role of Lawmakers and the Legislative Branch:

Lawmakers play a crucial role in shaping the legal framework of a society. They are responsible for creating, amending, and repealing laws through the legislative process. While lawmakers are subject to the laws they create, there may be instances where they enjoy certain immunities or privileges that set them apart from the general public. For example, legislative immunity protects them from arrest in certain situations, and they may have exclusive powers granted by the Constitution that cannot be criminally prosecuted.

The Importance of a Robust Judicial System:

A robust and independent judicial system is vital to upholding the rule of law and ensuring that laws apply equally to all citizens, including those who make them. Courts interpret and apply laws, resolving disputes and holding individuals accountable for their actions. Judges and juries play a critical role in deciding whether laws have been broken and ensuring that justice is served without bias or favoritism.

Exceptions and Special Circumstances:

While the principle of "ignorantia juris non excusat" prevails, there are exceptions and special circumstances where ignorance of the law may be considered. For instance, in criminal law, ignorance may not clear a defendant of guilt but can be a mitigating factor during sentencing, especially when the law is unclear or the defendant sought advice from authorities. Additionally, in civil law, the difficulty of staying informed about all laws may be considered, taking into account the lifestyle of the average citizen.

Public Perception and Legitimacy:

The perception of selective law enforcement or the notion that "laws do not apply to those who make them" can have significant ramifications for the legitimacy of the legal system and the governing bodies. It can foster a sense of distrust, cynicism, and discontent among the public, undermining the social contract between citizens and their government. Therefore, it is imperative that law enforcement agencies act with transparency, accountability, and consistency to maintain public trust and uphold the rule of law.

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