Were I of a more entrepreneurial bent, I might go into the statuary business. I would specialize in those statues of “Justice” one sees, or used to see, decorating the façades of courthouses. The old-fashioned, now deprecated models featured a berobed and blindfolded female figure holding aloft a pair of scales. The symbology, now on its way to the graveyard of discarded ideas, was simple but noble. Justice was blindfolded because she was no respecter of persons. Neither rank nor party nor sex nor ethnic origin would figure into her calculation of guilt or innocence. She held scales to emphasize her devotion to impartiality.
Since those ideals have long since been superseded, my thought was to go into business producing new statues of Justice. The figure could still be female, or at least identify as female, but it should probably be obese and sport dreadlocks. She—or “she”—should not be wearing a robe but rather a T-shirt and dungarees. Instead of a blindfold, this new figure of justice would sport a pride-flag pin and a WinBlue membership card. She would still brandish scales, but one side would be loaded down with affidavits, subpoenas, and indictments.
I expect I could do a brisk business with those new, postmodern statues.
At least since the excellent adventures of Robert Mueller and the Russia Collusion Delusion, I have been struck by the erosion of the rule of law in America. As many observers have noted, that erosion is deeply implicated in the emergence of what has come to be called the “administrative state,” the essential extra-legal bureaucracy that, with tenuous accountability, actually runs the governmental machinery of our society.
The evolution of this new state of lawlessness can be traced back many decades and has a variety of fathers. The growth of the entitlement state, brilliantly analyzed by Christopher Caldwell, traces one source of paternity. Taking off from Caldwell and others, I had something to say about this development here. The bottom line is that, for decades now, the Constitution has had important rivals to its authority as the law of the land, something that has contributed mightily to the spread of lawlessness.
Then there was COVID, or rather the totalitarian, all-of-government response to COVID. Leave aside the breathtaking assault on individual liberty that blanketed the country with economic ruin, forced vaccinations, and a stunning array of mindless social prohibitions. The advent of this novel respiratory virus, dangerous to a minuscule part of the population, was also the pretext for the illegal bypassing of state legislatures in last-minute changes to voting procedures in several swing states, changes that may have played a decisive role in swinging the 2020 election to Joe Biden.
But mention of Biden brings me to the primary goad to the present state of our two-tier system of justice, Donald Trump. Trump was never supposed to be president. In 2016, the people who made up the reigning consensus were convinced that he would be handily beaten by Hillary Clinton. They were disappointed in the assumption. And they vowed to prevent a reprise “by any means necessary.” In 2020, they succeeded, just barely. Will they succeed again in 2024? Only a rash man would venture a prediction.
But what we have seen in the meantime is a cavalcade of lawlessness in the pursuit of their unholy grail of neutralizing Trump as a presidential candidate. Trump’s own litany of legal woes provides the most arresting spectacle of lawlessness. Minions from Biden’s Department of Justice in multiple states compete to come up with ever more excuses to indict the former and possibly future president. As has been detailed in this space many times, Trump faces felony as well as civil charges in multiple states. I and others have picked over this breathtaking exhibition of lawfare—here, for example, and here, here, here, and here.
The partisan weaponization of the prosecutorial power of the state is a hydra-headed beast. It has swept up thousands of innocent people (along with a handful of guilty ones) in the fabricated hysteria over the January 6 protest at the Capitol—a protest, we now know, which was to a very large extent organized and choreographed by federal assets and Democratic lawmakers. It has identified concerned parents or pro-life advocates as “domestic extremists,” whose every move is tracked by the FBI. And of course, it has entered the names of anyone who has worked for Donald Trump on the modern version of a proscription list. Their careers are ruined, and many are subject to groundless indictments. The case of the constitutional scholar John Eastman is only one of many, many instances of this abuse.
All this is becoming increasingly well known. But my point is that what seemed like hyperbole a couple of years ago now seems like a widely acknowledged reality. The rule of law is inoperative in the United States. With every passing day, it becomes more obvious that we live under a two-tier justice system. But “two-tier justice” is a contradiction in terms. It is not justice, but a form of injustice.
The actual reality of “Our Democracy™” circa 2024 was given robust articulation yesterday by the commentator Mark Steyn in his conversation with Conrad Black. Both have had their celebrated struggles with American “Justice.” I note Steyn’s encounter here, Conrad Black’s here, for example, and here. The title of their exchange sums up the current state of play: “Conrad Black on the Dirty Stinking Rotten Corrupt US ‘Justice’ System.” The entire exchange is worth listening to, not least for Conrad Black’s uplifting prognostication about the 2024 election. But what struck me as especially memorable was his observation that “You can’t suck and blow at the same time. You can’t steal elections and profess to be the world’s greatest democracy.”
Bingo. Yet that is exactly what we—and by “we,” I mean “they”—do and do with increasing brazenness every day. That is one reason why my embryo business suppling new-form statues for American courthouses might just take off. The robust prosecution of lawfare, as distinct from enforcing the law, requires a new look and new symbols. Why shouldn’t I be the man to run that concession?