Hearsay
By Stephen Anderson
Editor
The Rule of Law Day
The most succinct perspective on the Rule of Law that comes with American Bar Association materials on promoting the 50th anniversary of Law Day is attributed to President Theodore Roosevelt.
The ABA paraphrases T.R. speaking softly: “Ours is a government of liberty by, through and under law. No man is above it, and no man is below it.” That’s the short of it.
The longest description may be the content of Article XXX of the Constitution of the Commonwealth of Massachusetts, as written in 1780 by John Adams, to wit:
“In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.”
Whew! Take a deep breath and marvel at such thorough, incontrovertible doctrine – and perhaps wonder why some specificity about separation of powers didn’t find its way into the U.S. Constitution that was drafted only seven years later.
Vague exclusivity is assumed from the “vested” sentences that open each of Articles I, II and III. Perhaps over the centuries it has proven sufficient to tell our three branches of government what they can do, rather than what they can’t do.
The courts generally have had the last word, beginning with Marbury v. Madison in 1803, when the power of judicial review was confirmed. In Illinois, a decade ago, the Supreme Court spiked ill-advised legislative tinkering with the shapes of judicial circuits and districts.
The court, as far back as the tenure of Justice Daniel Ward, had called attention to growing disparity in the populations of four judicial districts, and many circuits within them, outside of Cook County.
But what the legislators ground out impetuously in 1997 was worse than the typical sausage. The remap, devoid of input from the bench and bar, was an intimidating effort to position political partisanship above judicial independence.
ISBA President Todd Smith, who argued the resulting appeal, wrote in a President’s Page that “The linchpin of an accessible justice system is an independent judiciary that does not fear reprisal when deciding cases and remains free from executive and legislative control.”
A game of paper-scissors-rock
Presently, the prerogatives of the three federal branches are being tested in a simmering matter that began in 2006, when several U.S. attorneys were summarily fired and Congress wanted to know why.
The legislative branch summoned two members of the executive branch (Harriet Miers and Josh Bolten) to testify. Both cited executive privilege. The House voted last month, 223 to 32, to hold them in contempt.
House Speaker Nancy Pelosi asked new Attorney General Michael Mukasey to open a grand jury investigation, or else a civil lawsuit would be filed against the administration. On Feb. 29, he refused to refer the contempt citations to a grand jury, calling the proposal “truly contemptible.”
Pelosi immediately authorized the House Judiciary Committee to plunge this legislative-executive impasse into the judicial arena, where the rule of law could be expected to prevail before elections render the issue moot.
Getting back to Teddy Roosevelt, here is a more complete version of his take on the subject. In his third annual message to Congress, given Dec. 7, 1903, he said:
“No man is above the law and no man is below it; nor do we ask any man’s permission when we require him to obey it. Obedience to the law is demanded as a right, not asked as a favor.”
As reasonably accurate as that statement was a century ago, and may still be, the philosophy verges on the kind of autocratic principle that can rub people the wrong way. That’s why Law Day each year seems a more important opportunity for the profession to iterate the intangibles.
Government is accountable to laws. Laws protect fundamental rights. Laws must be enacted intelligently, administered fairly and enforced compassionately. The Rule of Law matters to every citizen, and the role of the lawyer includes explaining why.
But some laws shall be ignored
When Roger Clemens testified in Congress about the abuse of banned substances in baseball, he signed autographs on request for some of our lawmakers. Somebody suggested that a Clemens autograph could be a thing of value, in conflict with the House ethics ban on soliciting.
But that was before the FBI began parsing Clemens’ testimony for perjury. Perhaps those autographs will prove to be of little value after all.