To be or not to be the land of the free and the home of the brave? That is the question of the day for lawyers to answer because they are needed now as much as ever to be the guardians of society.
Shakespeare’s most famous quote, Hamlet’s existential question, is well known all around the world even to schoolchildren.
Sadly, our long-standing beautiful constitutional republic is struggling with a contemporary version of the Danish prince’s conundrum. That is, can democracy in the U.S. suffer the slings and arrows of outrageous fortune and survive?
It is nothing short of astonishing that there is a palpable chance it all could come to an end.
Almost 250 years ago shots heard round the world were fired at Lexington and Concord. Then 55 brave people, including as many as 34 who were lawyers, risked losing their reputation, livelihood, property and even their lives by signing the Declaration of Independence.
They boldly broke away from an oppressive regime and created a new form of government for the American people. Suddenly two and a half centuries later, to bowdlerize Wynonna Judd’s lyrics, a little bit of that love of country could go a long, long way.
We awake each day to learn of new assaults on constitutional principles and norms, such as the separation of powers to name a glaring example. Another is that the recent executive orders explicitly seeking retribution and punishment of individual lawyers and law firms for past work on behalf of clients and their hiring decisions are without statutory authority.
That is because Congress is explicitly prohibited in Article I of the Constitution from enacting any laws empowering the executive branch to enforce bills of attainder or ex post facto laws like the recent punitive “blacklisting” and penalizing of five major highly respected law firms with the promise of more to follow.
In the brief span of a little more than two months there have been cascading actions that strike at the legal foundations of liberty, freedom of speech, press and association, the right to counsel and the due process rights that every American has long been blessed to depend upon.
Compounding this frontal attack to remove the legal guardrails that protect people from the abuse of government power is a concerted effort to undermine the rule of law by disparaging, disrupting and denying the authority, integrity and impartiality of courts, and silencing all forms of dissent inside government or from the public.
That includes intimidating and threatening to punish lawyers, law firms and educators who are advocates for those who disagree with the political orthodoxy underlying what feels like the start of a Great Repression.
In these dark troubling days, it is also worth re-examining Shakespeare’s most often misunderstood line: “The first thing we do, let’s kill all the lawyers.”
We all have seen that line on T-shirts, coffee cups and heard it smirked in between lawyer jokes. Like Shakespeare, who was almost as prolific in litigation as in iambic pentameter, many people dislike lawyers except their own, especially when they need one.
However, the bloodthirsty exhortation to a mob of insurrectionists to kill all the lawyers spoken by Dick the Butcher in Henry VI, Part 2, Act IV, was actually a backhanded compliment to lawyers. It was a villainous acknowledgment that in order to install tyranny in place of the rule of law it is necessary to get rid of lawyers who are the champions of people and advocates for their rights.
As Justice John Paul Stevens explained in an opinion concerning the right of veterans to hire attorneys to obtain benefits, “Shakespeare insightfully realized that disposing of lawyers is a step in the direction of a totalitarian form of government.”
Another possible interpretation of the butcher’s murderous words is that they emerged from class warfare between the rich British establishment who could afford unethical lawyers to act as hired legal guns and mouthpieces to suppress the rights and aspirations of everyday working people.
Both interpretations seem frighteningly similar to what we are witnessing daily. Yet our tragic experience is playing out in real life rather than in a fictional drama on stage.
The unbridled and venomous attacks on judges, lawyers, law firms, law schools and law school regulators by the incumbent administration in executive orders and public pronouncements are unprecedented, unjustified and dangerous. Although this is madness there is method to it when done by people who should know better.
The assault on the legal profession in my opinion is part of a concerted effort to strip away, one by one, the protections vital to the survival of democracy under our Constitution. The acquiescent acceptance and worse, the surrender to bullying by a large powerful law firm is a shameful mistake. Any law firm that is unwilling and unable to defend itself against an unprecedented and baseless attack should not be attractive to clients who need skillful, vigorous representation in tough cases.
Trying to buy the favor of the incumbent regime is a misguided abandonment of the professional responsibility of lawyers, especially those who do very well, to do good.
Negotiating with constitutional terrorists will irreparably sully a firm’s reputation, involving swallowing and accepting unenforceable promises, and only encourage those who seek to destroy the temple of law.
A feeble payoff of protection money in the form of millions of dollars of free legal work representing the administration, not only is the cynical antithesis of real pro bono work that is properly intended to serve the less advantaged, but it will likely create a conflict that prevents a firm from standing up for anyone who needs help dealing with the federal government.
There must be a sense of urgency, and it is time to stand up and speak out. That is beginning to happen in a big way.
Chief Justice Roberts, judges, practitioners, law deans, faculty and their professional associations and regulators across the country and from all points of the political compass have been agreeing to an extent they rarely do about anything. They agree that essential fundamental constitutional law and precedents must be upheld and are publicly asserting their views in droves.
More is needed, especially at the time when Congress seems supine in the face of blatant overreach by the executive branch into legislative constitutional prerogatives. More professional, civic and grassroots activism is needed at a time when the judiciary, which itself is under attack, cannot be expected all on its own to be the last bastion of liberty.
Maintaining a democracy is difficult. Our democracy is hardly perfect. It often is noisy, messy, complicated and surrounded by chaos.
As Winston Churchill observed, “democracy is the worst form of Government except for all those others that have been tried from time to time…”
It is a fair question to ask why realistically we can hope to do better without giving up our freedom and our foundational rights to be different and to disagree. Without doubt, we will have to navigate through serious challenges to preserve our democratic republic.
Long ago a great teacher taught us an important lesson with a simple story about a barren fig tree. He spoke of the owner of a fig tree, who was disappointed that after three years the tree bore no fruit.
The landowner ordered his gardener to chop down the tree. Instead, the gardener convinced his boss to be patient and that with hard work and effort, he would cultivate the soil and fertilize it and care for the tree with hopes that someday it might begin to bear fruit through his efforts.
It is that kind of spirit that should guide us and motivate us at this difficult time. After all, what is our alternative? We have no choice but to believe, as I sincerely do, that we are not yet at the end of our brilliantly engineered self-correcting constitutional federal system of limited government.
But we can see the end from here and it’s time to act now. Each of us, and collectively with colleagues, must try to do what we can, joyfully, proudly, civilly, courteously, vigorously and persistently.
We educators can thank heaven for being involved and inspired by so many students who remind us of our purpose. They give us good reason to believe that the future will be in good hands.
In the great unending symphonic debate about the future of America and indeed the world, America’s law schools, I am proud to say, can play an important part as the field hospitals for our wounded democracy.