Unequal Laws: A Broken System's Impact

The concept of equal application of the law is a fundamental principle in any democratic society. The idea that everyone, regardless of their position or status, is subject to the same laws and regulations is essential for maintaining social order and ensuring fairness and justice. However, there are often discrepancies in the way laws are applied and enforced, leading to situations where certain individuals or groups are exempt from or unequally impacted by the law. This can manifest in various ways, from explicit exemptions granted to specific groups to more subtle forms of inequality stemming from biases and power dynamics within the legal system. In the United States, for example, there have been instances where members of Congress have exempted themselves from certain laws, such as Social Security taxes, or where the interpretation of laws has been influenced by the financial resources of those involved. Additionally, the American Civil Liberties Union (ACLU) has faced criticism for its defense of free speech rights for white supremacists, reflecting the complex nature of rights discourses and the potential for laws to be applied unequally based on ideological interpretations. The equal application of the law remains an ongoing challenge, requiring constant vigilance and efforts to address systemic biases and inequalities.

The interpretation of laws

For example, in the United States, the American Civil Liberties Union (ACLU) has been criticised for its defence of free speech rights for white supremacists while simultaneously protecting the civil rights of marginalised groups. The ACLU's position, rooted in the US Constitution's First Amendment, reflects a belief in equal application of laws regardless of viewpoint. However, critics argue that this approach fails to acknowledge the systemic violence and historical context associated with white supremacist speech and symbolism. The interpretation of "neutrality" and "equality" in free speech laws can result in a militant approach to equality, treating privileged and oppressed groups similarly without considering the power dynamics at play.

Additionally, the interpretation of laws can be influenced by the legislative body's self-interest. For instance, the US Congress has the ability to pass legislation that pertains only to itself or exempts itself from certain laws, such as social security taxes and age discrimination laws. While efforts have been made to remove these exemptions, there is still a push to amend the Constitution to permanently disallow such exemptions. This dynamic illustrates how laws can be interpreted and applied unequally based on the interests of those in power.

Furthermore, the interpretation of laws can be influenced by societal values and ideologies. For instance, rights discourses, which emphasise individual freedoms and a utopian future, can overlook historical injustices and the ongoing impact of colonialism and slavery. This results in a narrow focus on the present and an inability to address systemic inequalities. Interpretations of laws are shaped by the dominant ideological frameworks, which may prioritise certain values over others and fail to recognise the lived experiences of marginalised communities.

To ensure a more equal application of laws, it is crucial to acknowledge and address these interpretations and the underlying power structures that influence them. This includes critically evaluating the work of liberal institutions, rights frameworks, and legal systems to ensure they actively confront historical and systemic injustices, rather than perpetuating a superficial notion of equality that fails to recognise the unique challenges faced by different groups.

In conclusion, the interpretation of laws plays a significant role in determining whether laws are applied equally. By examining the social, political, and ideological factors that shape legal interpretations, we can better understand and address the complexities of ensuring equal treatment under the law. This requires a commitment to challenging power structures, acknowledging historical injustices, and prioritising the needs and perspectives of marginalised communities in the interpretation and application of laws.

The influence of money on legal outcomes

In a fair and just world, the law would apply equally to everyone, regardless of their social or economic status. However, in reality, money often plays a significant role in influencing legal outcomes, especially in countries like the United States, where most state judges are elected. Wealthy individuals and corporations can use their financial resources to sway elections and promote their agendas. This can result in laws being applied unequally, favouring those with money and power.

The influence of money on judicial outcomes is a growing concern in the United States. A recent book by Michael S. Kang and Joanna Shepherd, *Free to Judge: The Power of Campaign Money in Judicial Elections*, provides empirical evidence that reelection pressures and campaign donations influence judicial decision-making. The book examines the impact of money on judicial elections and how it can affect the impartiality of judges.

One notable example mentioned in the book is the case of Marsha Ternus, the first Iowa state supreme court justice to be voted out of office after a well-funded, out-of-state money campaign against her. This campaign was launched in response to a decision made by Justice Ternus and her colleagues in a same-sex marriage case. This is just one instance of how money can be used to influence legal outcomes and remove judges from office if their decisions do not align with the financial interests of wealthy donors.

The book also presents evidence that fundraising pressures can impact justices' decision-making, whether consciously or unconsciously, creating a form of judicial bias. Judges may feel compelled to rule in favour of their donors or avoid making decisions that could lead to negative repercussions, such as losing financial support or facing aggressive attack ads during reelection campaigns. This dynamic gives wealthy interests disproportionate power in shaping the composition of state courts and the interpretation of laws.

To address these concerns, some have called for campaign finance reform and even the replacement of judicial elections with other selection methods. However, judicial elections are deeply ingrained in the US political system and are unlikely to be abolished. As an alternative, limiting judges to a single, lengthy term in office could help reduce the influence of reelection pressures and decrease the potential for bias. Strengthening recusal rules and disclosure laws could also mitigate the impact of money on judicial independence and integrity.

Civil rights and free speech

The First Amendment to the U.S. Constitution protects the freedom of speech, religion, and the press. It also protects the freedom to assemble peaceably and to petition the government. These rights apply to young people as well as adults.

The First Amendment played a significant role in the Civil Rights Movement, as protestors drew upon several First Amendment freedoms—primarily speech, assembly, and petition—to protest racial injustice and promote racial equality. The U.S. Supreme Court strengthened these First Amendment freedoms through its rulings in court cases arising out of the Civil Rights Movement. For example, in NAACP v. Alabama (1958), the Supreme Court recognized the right of association within the First Amendment and protected membership lists against state investigation.

The First Amendment also guarantees the right to free expression and free association, meaning the government does not have the right to forbid people from expressing their opinions and ideas, whether spoken or written, or from forming clubs and organizations. However, this does not mean that individuals may say whatever they wish, wherever they wish. For example, the First Amendment does not protect speech that incites people to break the law, including committing acts of violence.

The First Amendment's protections extend to protests. Protestors' rights are strongest in "traditional public forums," such as streets, sidewalks, and parks. Counterprotestors also have free speech rights, and police must treat protestors and counterprotestors equally.

The First Amendment does not always apply equally to everyone. For example, the American Civil Liberties Union (ACLU) has defended the free speech rights of white supremacists, arguing that if one group is silenced, it is only a matter of time before the government could silence any group that opposes it. While the ACLU's position on free speech may be legally sound, there is something deeply troubling about their conceptualization of equality. This is especially true given that black bodies are treated differently compared to white ones.

In conclusion, while the First Amendment guarantees certain civil rights and free speech protections, there are exceptions to these protections, and the application of these rights is not always equal for everyone.

Equality before the law

The concept of equality before the law is a fundamental principle of justice, holding that the law should treat everyone the same and that no person or group is above the law. This principle is enshrined in various constitutions and legal systems worldwide, including in the US Constitution, which states that "all people are created equal".

However, in practice, the ideal of equality before the law is often not fully realized. For instance, in the United States, the American Civil Liberties Union (ACLU) has been criticized for its defence of free speech rights for white supremacists while simultaneously failing to address the systemic violence and historical context that underpin white supremacist ideologies. This has led to a sense that the laws are applied unequally and that the legal system treats people differently based on race.

Furthermore, it has been observed that the interpretation of laws can be influenced by factors such as the quality of legal representation one can afford. This can result in unequal outcomes, even when the law itself is ostensibly equal. For example, in the US, Congress has historically exempted itself from certain laws, such as Social Security taxes, creating a perception of unequal treatment between lawmakers and citizens. While efforts have been made to address these discrepancies, they highlight the ongoing challenge of ensuring true equality before the law.

Achieving genuine equality before the law requires recognizing and addressing these disparities. It entails challenging discriminatory practices, interpreting laws without bias, and ensuring that all individuals, regardless of their background, are treated fairly and impartially by the legal system. Only then can the ideal of equality before the law be fully realized and public trust in the justice system be strengthened.

Exemptions for lawmakers

There have been instances where lawmakers have sought to exempt themselves from certain laws, leading to a perception of unequal application of laws. One notable example is the Congressional Accountability Act of 1994, which was amended in 1998 to remove several exemptions that Congress had previously granted itself. These exemptions included age discrimination laws, sexual harassment laws, and occupational safety laws. Despite this, Congress has been criticised for creating exemptions for itself, such as the exemption from Social Security taxes, where members of Congress did not have to contribute to the Social Security Trust Fund. This exemption was removed in 1984 due to public backlash.

In another instance, the Republican plan to repeal and replace the Affordable Care Act, or Obamacare, included an exemption for Congress from the effects of state waivers. This exemption was not due to a desire to protect the insurance of members of Congress but was instead aimed at easing the passage of the bill. The bill's amendment, penned by New Jersey Rep. Tom MacArthur, would have allowed the Senate to pass the legislation with a simple majority of 51 votes, rather than the 60 votes required to avoid a filibuster. However, a stand-alone bill was proposed by Republican Rep. Martha McSally to eliminate this exemption, demonstrating bipartisan support for healthcare laws to be applied equally to members of Congress.

The push for equal application of laws extends beyond specific instances. There is a cyclical effort to amend the Constitution to permanently disallow exemptions for lawmakers. This proposed amendment aims to ensure that any law applying to citizens of the United States also applies equally to Senators and Representatives and vice versa. Such an amendment is generally seen as benign and necessary to uphold the principle of equal application of laws.

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