REPUBLICAN LIBERTY VS iDENTITY:

"All Americans are entitled to the evenhanded application of the law," Attorney General Merrick Garland assured Americans on August 11, 2022, following the FBI's execution of a search warrant at the home of former president Donald Trump. But partisan commentary surrounding the Justice Department's unprecedented step has twisted that very same principle. The refrain of Trump's supporters--"If they can do this to Trump, they will do it to you!"--sounds a lot like a threat. But it isn't a threat. In fact, it's a 1,500-year-old democratic promise.

What does "equality before the law" mean, where does it come from, and why does it matter? The ancient Greek term for Garland's sentiment is isonomia, a concept which was rooted in democracy itself. Is a former president subject to isonomia? If the rule of law means anything, the answer must be yes. The law must be applied without fear or favor--equally to all--and that includes the former president.

Historians trace the idea of "equality before the law" to the magistrate Cleisthenes, whose democratic reforms to the Athenian constitution in 509 BCE ended tyrannical and aristocratic rule. According to Aristotle, Cleisthenes ushered in what we think of now as the golden age of democracy, which flourished at Athens--despite a few oligarchic interruptions--for nearly 200 years.

While historians associate Cleisthenes with "democracy" (dêmos  = people + kratos = power), he called the government he created isonomia (isos = equal + nomos = law, custom). Isonomia for Cleisthenes seems to mean both the equal right to participate in making the laws and the equal application of the law to every Athenian citizen.

In fact, isonomia occurs in Greek political thought before democracy does--equality before the law is such an essential element of democracy that the political system could not exist without it. Herodotus, in the earliest known use of the word demokratia, invoked isonomia in an imagined debate defending democracy: Equality meant every citizen was eligible for office, all officers were accountable to the people, and all citizens had an equal right of free speech (isēgoría) in the Assembly. These were also the features of Greek democracy, essentially equating the two.

Trump has what we might think of as a "Pigpen" theory of the presidency. If we imagine him as the Peanuts character, Trump believes that a cloud of executive power continues to surround him, even though he left office over 18 months ago.

Political theorists and governments over the past 1,500 years have generally agreed. Cicero, then Livy, then British Whigs like James Harrington and Edward Coke and liberal political theorists like John Locke and David Hume, all invoked isonomia as fundamental to good order, political stability, and liberty. In 1960, the legal theorist and free-market economist Friedrich von Hayek explained how the concept moved from ancient Greece into the English common law tradition as the essential element of libertarianism--and the fundamental grounding of both British and American legal and political theory. In 16th-century England, Justicia--a.k.a. Lady Justice--began appearing with a blindfold, initially as a symbol of the judicial system's turning a blind eye to those who abused the law, but eventually evolving to symbolize impartiality before the law. And while the United States struggled to perfect racial equality in practice, the 14th Amendment to the Constitution, which was ratified after the Civil War, enshrined it as a democratic aspiration by guaranteeing, "No State shall...deny to any person within its jurisdiction the equal protection of the laws."

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