America can’t have one law for Democrats and another for Republicans. Except that we do.

As I discuss in this video, we’re a nation with two sets of laws, one written and one unwritten.

The written laws are selectively enforced. And the unwritten laws of politics are the only ones that truly matter.

Can we have a country where only Republicans get tickets, but Democrats don’t? That’s what prosecutorial discretion and selective prosecution amount to. An equal justice system is one in which prosecutions are determined by laws, not by a desire to punish your political opponents.

And yet it’s transparently obvious that is how things work now.

A totalitarian state doesn’t have to be a place with a whole bunch of new laws aimed at suppressing the political opposition. All that’s really needed is the politically selective enforcement of existing laws.

But back to the question of “Can we have a country where only Republicans get tickets, but Democrats don’t?” The short answer is that we can and we do. Civil rights law has largely displaced the Bill of Rights so that the only selective prosecutions that are scrutinized tend to be those affecting minority groups.

And yet selective prosecution makes a mockery of the First Amendment. If political prosecutors can simply find a crime to charge political opponents with that they would never charge anyone else with, there is no longer a meaningful right to maintain a political viewpoint. And then the First Amendment is dead.