The most basic tenets of the rule of law are being tested right now. Regardless of their political affiliations or legal philosophy, no lawyer could contest that the system of law is under massive stress. Judgments of federal courts are at risk of being ignored, public officials are calling for the impeachment of judges with whom they disagree, judges’ personal safety are being threatened, and heads of agencies are telling the public that they do not care what judges say—that they are “coming anyway.” Law firms are being stripped of security clearances, denied access to federal buildings, and barred, through executive orders, from representing clients seeking government contracting. Individual lawyers are being targeted by the government for representing political opponents of the administration.
These are not subtle moves; these are full frontal attacks on the fundamental system of the rule of law in America. Today, the Constitution of the United States of America, and the system of law that it undergirds, is in serious peril. If it’s not totally unprecedented in American history, it’s certainly close.
Win McNamee/Getty Images
The model rules of professional responsibility, posted on the American Bar Association’s website, include plenty of reasons for lawyers today to become zealous advocates in support of the rule of law. For instance, “A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process.” Every lawyer signed up for this job. That is why the chief justice, associates at big law, state attorneys general, constitutional law professors, and law school deans are speaking out. It is an affirmative duty for lawyers not to be silent in the face of an assault on the Constitution and the rule of law.
There is too much at stake should these assaults on the law continue without pushback. A collapse of the system of laws in America will rattle markets not just here but everywhere. It will make entering binding contracts much harder. If courts can be ignored, the costs of litigation will soar and the time to get disputes resolved will only grow longer. Commerce is not likely to thrive in America if the rule of law is gutted.
As the head of a major philanthropy, I can say without a doubt that the work my sector does to help the sick, eradicate poverty, and develop thriving communities can exist because of our nation’s strong rule of law tradition. We depend on the First Amendment, which provides the liberty to give money to those we choose. We enjoy the freedom to give to our churches, to hospitals, to food banks, to schools, to community organizations, and to those who are bringing about positive social change. We rely upon the liberty to invest our funds in the free market and to use the returns from these investments to give away more money. All of this we do fully within the bounds of the law—and in reliance upon those laws.
I no longer work day to day in the legal profession, though I periodically have the great privilege to teach a course as a visiting professor. Exams in law school are often known as “issue spotters.” The idea is to “spot the issue” in the law and then demonstrate how one might best address that issue. I think that the vast majority of the students I have taught would be able to spot today’s assaults on the rule of law coming a mile away. We may disagree about exactly what to do about it—and perhaps there are even multiple good answers to that question.
But I am certain that those same students would expect all lawyers to use their position and voice to advocate zealously for the bedrock principles of the rule of law. As the model rules of professional responsibility note, “As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession.” It is time for all lawyers to assume this responsibility, before the principles of the rule of law and our Constitution are eroded beyond recognition.
John Palfrey is president of the John D. and Catherine T. MacArthur Foundation.
The views expressed in this article are the writer’s own.
