> However, also in practice the faction in power gets to capriciously enforce what it wants selectively, usually to solidify standing.

aka as "the rule of law".

From a continental European perspective, the US stance in rule of law seems a bit dubious as well, with the president pardoning his friends, or the enormous sentences afflicted to people once, but only once, they end up in bad public standing, or elected states attorneys incentivize to look hard on crime to their constituents.

I'm not sure how your examples illustrate your point.

For instance the power to pardon is defined within the constitution with a singular exception added to it. It doesn't say a president can't pardon their friends. That might be socially unacceptable but it is a power delegated to the president nonetheless. If the constitution made no such mention of that power and the president was pardoning their friends - or indeed anyone at all - then that would be a good example of capricious use of power outside the rule of law.

To give an extreme counter-example, imagine you had a constitution that legally gives unlimited supreme powers to a single person (which has happened, e.g. Germany during the Nazi years).

I wouldn't describe that as the rule of law, but rather as despotism. I think you can have a constitutional system that has powers codified that still violate the goals and ideals of the rule of law, without being technically illegal. It's not a black and white thing.

Does that make sense?

While pardoning friends is certainly distasteful, that power is explicitly defined in the Constitution and is plenary. The only potential exception is a self-pardon.

There are plenty of examples of embarrassing pardons, but it's not a rule of law failing.

> The only potential exception is a self-pardon.

I believe the exception is impeachment. Articles of Impeachment can be brought against any civil official. There's nothing stopping Congress from impeaching and removing the Ambassador to China, a Supreme Court Justice, or pretty much anyone else operating under the authority of the federal government.

It's rare for this to happen of course, but this list of impeachments is interesting reading: https://history.house.gov/Institution/Impeachment/Impeachmen...

As recently as 2010, a district court judge was impeached, convicted, removed from office and barred for perjury.

Also, as far as I'm aware, it is within the power of the Presidency to pardon themselves. If by some chance someone were elected President who had previously been convicted of a federal crime, they can pardon themselves of that crime. In theory, they could even be in prison at the time of election! I would love to say that's unlikely in the extreme, but in 2015 I watched Joe Morrissey win re-election to the Virginia House of Delegates while serving a prison sentence: https://www.reuters.com/article/us-usa-virginia-election-idU...

There are a couple of opinions that say charging a sitting president with a federal crime would be unconstitutional, but I don't believe they're technically legally binding, nor do I understand that it was ever been decided in court.

Self-pardon's have never been attempted, but I believe there's some dicta suggesting it would raise Constitutional issues (though it's true that it's not explicitly barred by the Constitution). There's a whole separate issue over whether or not you can actually charge a President, but it wouldn't prevent a President from being charged with a crime related to actions taken prior to assuming office (or the extreme case of a President who had been convicted prior to assuming office, although I think that may prevent running in the first place).

Impeachment isn't a criminal process. It's a political process that rests entirely within the Legislative branch. So it's not as much an exception as a wholly separate proceeding.

so you're saying Europe doesn't have this sort of cronyism?

(sarkozy, berlusconi, vw emissions, etc)

I'm afraid we are pretty much in the same bucket here

Law doesn't automatically hold, as long as it still require enforcement. Those sort of errors are kind of unavoidable. That is a program requires user input at every step and people do that.

That is the opposite of "rule of law".

Uh, yes indeed :-)

That's interesting. How would you change it?

The Executive having the power to pardon (or to refuse to prosecute) for crimes is meant as a check on legislative power to make life miserable through imposition of bad law. Just throwing that check away seems a bit destabilizing.

I mean, I'm with you on the the American justice system being capricious in terms of minor crimes being able to ruin a person's civil standing like marijuana possession has done; and rampant abuse of overclassifying certain types of crime as felonies, thereby disqualifying someone from participation in the civic process (something I genuinely have begun to abhor as I've gotten older, because of the perverse second-class citizen caste it creates with minimal if any remedy for restoration of rights without an absurd amount of pressure being applied by someone who has paid their debt to society).

However, it is putatively rule of law. Just rule of law with the assumption of input by men. Law is in itself a tool. A tool is nothing without the hand that wields it.

What angers me more is that we don't come down harder on those that maliciously attempt to use the tools of law against other tools of law. I.e. attempting to circumvent Constitutional rights through judicial review, or passing laws that everyone knows violate one Amendment or another and relying on the small number of Supreme Court justices and their auspices to just ignore passing a final decision on a case.

Frankly it seems like a somewhat intractable problem, but nevertheless, I can't deny that the United States at least puts up a good fight in terms of trying to make it work nevertheless.

Anyway, would love to hear your thoughts on it.

I think it's less about what formal powers the different branches of government have, and more about how they use them in practice. As a parent comment said, the USSR constitution was good on paper, but not so much in practice. On the other hand, here in the UK, the queen technically has supreme power over everything (and even ignoring that, our Prime Minister is head of both the executive and the legislature), and yet in practice this doesn't get abused too much (arguably recently that has changed a little).

The UK is a bit weird though because of its “unwritten constitution”, which acknowledges that the Queen’s power is in fact very limited (to the point where she doesn’t even publicly express opinions). It mostly works due to the specific history and culture of the UK.

TL;DR Politics is downstream of culture.

> the US stance in rule of law seems a bit dubious as well

I think I agree with where you're coming from with this statement, but not necessarily with it being a negative attribute.

Yes, the US is "a nation of Laws, not of Men". That only goes so far, though. Pretty much all of the US system is set up to allow individuals to apply the law in a way that they feel to be fair. This is manifested in everything from prosecutorial discretion to jury nullification.

> the enormous sentences afflicted to people once, but only once, they end up in bad public standing

The US Constitution specifically prohibits laws that apply directly to individuals, i.e. "Bills of Attainder". In theory at least, public opinion should inform the laws that apply to everyone equally. Those laws may be capricious and draconian, but the whole idea of the American system is that laws should represent the will of the people. The absurdity of some of our laws (sentencing in particular) is nothing if not a reflection of that.

> the president pardoning his friends

This isn't an unlimited power; the president is subject to oversight by Congress. That is the implicit rationale behind the impeachment process being very loosely defined:

Article II, Section 4: "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."

Basically, "other high Crimes and Misdemeanors" means whatever Congress says it means. If they believe the President has abused their power through improper pardons, they can respond by impeaching and convicting them. This not only removes them from office but also bars them from public office in perpetuity.

Note also that the president only has the power to pardon federal crimes. They have no power to pardon someone convicted under state law.

> elected states attorneys incentivize to look hard on crime to their constituents

That's pretty much the nature of US law - "by the People, for the People". If a prosecutor is overzealous, then ostensibly that's the will of the people who elected them. If not, they're free to vote them out of office during the next election in favor of someone who will act in accordance with their wishes. In extreme cases there is usually (always?) a process in place for elected officials to be recalled immediately and a special election held for their replacement.

As a disclaimer, the above is representative of my understanding of US law; it's how I would explain what is, not what I believe should be.

Drawing the line to Software Engineering, it's not just about extensive planning and design, but probably mostly about feasibility and ease of use...

While I see this comment as unnecessarily partisan, I agree in principle. The US Constitution's limits on federal authority have been being weakened since the day it was written.

Or, in the words of Lysander Spooner: "But whether the Constitution really be one thing, or another, this much is certain - that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist."

oh come on. At least give some anicdote to back your claim.

One thing I find concerning is that the president seems willing to use his pardoning powers for his allies. I guess Clinton did the same with Marc Rich. It certainly doesn’t look good.

And, less politically troubling, but perhaps more blatant, his half brother's cocaine conviction on his last day of office.

At least consider the illiberal nature [0] of the way the current administration is rooting out the corruption, compared to following established norms to lay bare the corruption for all to see. For example, consider if during the current administration's first two years they welcomed oversight from the Republican House and Senate (a co-equal branch) to investigate and clear the President of the same things the Mueller investigation was charged with -- and then that branch (not the executive) investigated the origins of the Mueller investigation, to root out corruption. That kind of co-equal power play would have been a lot stronger than the reality of a bully executive branch trying to wade into doing everything with, what seems to be, little regard for what all future presidents can now do due to precedent, so why didn't that kind of cross-power oversight happen with a Republican-controlled executive and Congress?

[0] https://cjslep.com/c/blog/illiberalism

BS. But with the Trump presidency we're definitely taking a step in that direction, and it's a pretty good stride.