by Judge Stephen H. Anderson
Two hundred and thirteen years ago the American people solved the problem of reconciling liberty with order by choosing constitutional democracy. That system established a government of laws, including a judicial branch for protecting rights under the law. Ultimate sovereignty remained with the people. The aspirational principles of this system were set out in the Declaration of Independence and the preamble to the Constitution. They claim for each individual the right to life, liberty, justice and the pursuit of happiness; and for the nation, a more perfect union, a common defense, domestic tranquility, and promotion of the general welfare. The system rested on our mutual agreement to submit ourselves to the moral authority of the law. Thus, under and by the rule of law, we arranged for a responsible freedom in this nation. The Supreme Court has described this arrangement as ordered liberty.
We gather here today to celebrate that freedom, affirm our faith in the rule of law, and dedicate ourselves to meeting society's challenges in our own time in a manner consistent with the highest aspirations of popular government through the rule of just laws.
This is the 42nd anniversary of Law Day U.S.A. In 1957, the president of the American Bar Association, Charles Rhyne, envisioned a special day of recognition for the rule of law in America. The idea was embraced by President Eisenhower who proclaimed May 1, 1958, as Law Day U.S.A. - a national day to recognize and strengthen our great heritage of liberty, justice and equality under the law. In 1961, Congress officially designated May 1 as the annual date for celebrating Law Day U.S.A.
The date has special significance. It was picked at the height of the Cold War as our contrast to the May 1 celebration by communist governments of their idea of coercive state rule and ambition. On that date international communism paraded its missiles and armies and other instruments of internal power and aims of global expansion. One example serves to contrast the systems. In 1945 Aleksander Solzhenitsyn, a twice-decorated 26-year-old captain in a Russian artillery company, with a university degree in mathematics and physics, was arrested and sentenced to eight years in a forced labor camp because, in a private letter to a friend, he made derogatory comments about the man with the moustache - Josef Stalin. He had no hearing, no recourse, and no court to turn to for protection from the government. As Solzhenitsyn later described it in his book The First Circle, under Section 58, paragraph 10 of the Soviet Criminal Law, people could be imprisoned for disloyal utterances and even for unexpressed thoughts - that is out of mere suspicion of disloyal thought. Most were never informed of the charges, were allowed no hearing and no defense. It is thought that Stalin may have killed as many as 60 million Russians under his cynical and cruel regime of spies, informants, paranoia, and unchecked state power.
As the president of the A.B.A. put it in 1992 - and it is still true today - "In the end, the ideals of Law Day stand triumphant amidst the ruins of communism."
Of course we need not reach back 50 years to find contrasts which highlight the freedoms we enjoy.
In Zimbabwe, President Mugabe is defying rulings of that country's Supreme Court with impunity. Political opposition suffers death and persecution. Religious hardliners in Iran have shut down reformist newspapers. Dissent in Iraq brings torture and death. Law is nonexistent or disrespected in Kosovo, and even if an arrest is made, no court system exists to hear the case. Many nations have governments that are little more than criminal enterprises. In many countries citizens are caught between the calculated, unredressable cruelty of left wing rebels and right wing goon squads. Judges who stand up against government corruption or criminal syndicates are intimidated, fired, or murdered.
We are reminded by these contrasts that we have much to celebrate. But, we have nothing to be sanguine about. Popular government, that is government by and for the people, is still an experiment.
This year's Law Day theme is Democracy and Diversity: Celebrate Your Freedom.
It calls our attention to the fact that some Americans view the rule of law in our society today as a rule of harassment and injustice. We see demonstrations where groups of African-Americans and other minorities chant, "No Justice, No Peace." The media are full of news about claims of police abuse and unfair treatment of minorities. The same is true of claimed prosecutorial misconduct in many instances. Judicial attitudes, incarceration rates and sentences are similarly attacked, as is unequal access to the justice system. I need not detail recent examples; you know them. The outcry has been noisy, sometimes violent, certainly persistent.
According to polls, there is a pervasive view that our legal system does not treat each of us with the same degree of fairness and dignity. Fifty percent of respondents to a 1999 public opinion survey by the American Bar Association think police treat minorities differently from white people, and 47 percent said the same thing about our courts. Polls also show that most minorities think the system is biased against them while the majority of whites think it treats minorities fairly.
The theme of democracy and diversity also focuses our attention on the challenges presented to us in making those two words meaningfully work together in an increasingly diverse society. Some 75 million Americans now fall into various minority group classifications, and the number is growing. According to government statistics and projections there were 14 million resident Hispanics (I use that term in a broad general sense) in 1980. That number, 14 million, is expected to grow to 88 million by 2050. The number of African-Americans for that same period is 26 million in 1980, growing to 60 million in 2050 - and so on through a myriad of racial and ethnic groups.
Our challenge on this subject goes to the very heart of our democratic ideals. It is to live up to our history of inclusion, and the quest for equality under the law; and, to commit all our citizens in this diverse society to the democratic imperative of the rule of law.
I offer some thoughts for your consideration about the matters just described, about the justice system, and about our celebration of freedom.
First, I submit that the noise we hear from lawful protests, marches, meetings, speeches, demonstrations, and so on is not the death rattle of the body politic. That noise is the music of democracy. Lawful protest is itself a celebration of our freedoms: freedom to meet, speak, petition, agitate, campaign and vote. We, as a people, are often and loudly appalled. Ultimately, mostly to good effect. The genius of our democratic constitutional system is that people can and do debate and improve things over time. The rule of law evolves, as do standards of decency. Consider some further contrasts. In various respects through the 18th, 19th and early part of the 20th centuries law relating to people in this country was status based: African-Americans and other minorities, women and children, for example, were treated more by classification than by individual. Women could not vote, nor could slaves or former slaves in the South, and their rights to property were curtailed. The laws of master and servant had major discriminatory aspects. The robber barons in whiskey, steel, oil, transportation, sugar, and other areas of the economy ran amok, and scot-free. Unions were broken up by clubs and guns.
After innumerable speeches, marches, petitions, demonstrations, movements, and elections, as well as judicial decisions, these things and many other social arrangements have changed dramatically over time: from amendments to the Constitution to a multitude of civil rights and other Acts, the rule of law has changed. The 15th, 19th, 24th, and 26th Amendments to the Constitution, along with the Voting Rights Act, have vastly broadened the right to vote. Individual rights are more recognized and better protected by constitutional amendments, particularly the 13th, 14th and 15th Amendments, by statutes, and by judicial decisions. Economic justice and business regulation have advanced. Social Security, Medicare, welfare programs, educational grants and other benefits have been stablished. The right to unionize and bargain collectively has been secured, and so on.
The judicial process has also seen and mandated massive improvements. For example, forty years ago the Supreme Court declared a constitutional right to counsel in state criminal trials; and, through the 1964 Criminal Justice Act, funding for defense counsel in federal criminal cases was formalized. Today, taxpayers pay hundreds of millions of dollars for legal representation for the indigent in state and federal courts. This year's requested budget for defender services in federal courts alone is $444 million.
In short, we have improved and we can and will continue to improve if we all remain committed to democratic ideals.
Furthermore, while there are abuses of the rule of law, the rule of law also provides for vindication and redress.
As wrongs are exposed by tools and institutions of democracy, including a free press, cases have been reviewed, convictions overturned, and millions and millions of dollars have been paid out in damage suits. Wrongdoers have been put on trial. The system responds with improvement if for no other reason than that the financial risk is too great not to.
Second, the architecture of our system has provided America's great contribution to the art of government - an independent judicial branch. Despite the various criticisms I earlier alluded to, an independent judiciary is every individual's greatest sanctuary and shield against government intrusion on protected rights. It has power to say to the government: This is forbidden! It has the moral authority in our society to say to the Executive Branch one day, you may not deport Elian Gonzalez for now, and the next to tell one of the richest corporations in America it is violating the antitrust laws and must submit to a remedy. And subject to appeal, both government and business obey. In the past three years the federal courts, trial and appellate, have decided over one million cases resulting in about 275,000 pages of published opinions. State courts decide over 30 million cases a year. The judicial system is functioning.
In two separate 1999 polls, 80 percent of Americans either strongly agreed or agreed that in spite of its problems, the American Justice System is still the best in the world. It suggests a strong belief by Americans that where unfairness exists in the system, the system has the capacity to correct it and to continue to work toward the goal of equal justice under law.
Addressing the Tenth Circuit Judicial Conference a couple of years ago, the respected columnist Anthony Lewis talked about how Americans have gained enormously by having independent judges define the fundamental law under which we live. But he also noted that the value of a judge is not just for great constitutional issues. He gave as an example the Scottsboro case - the great 1932 case in which seven blacks were convicted on flimsy evidence of raping two white women on a freight train in Alabama. Defense lawyers filed a motion for a new trial, expecting nothing from it. But the Alabama trial judge, James E. Horton, Jr., read in court a lengthy opinion that began: "Social order is based on law, and its perpetuity on its fair and impartial administration." Injustice, he said, is visited on its perpetrators "through endless generations." Judge Horton granted the motion for a new trial. He knew when he did so that it would almost certainly cost him the judgeship, and it did; he was defeated at the next election. But 32 years later he said he still had no regrets. His family, he said, had a tradition expressed in the Latin phrase "fiat justicia ruat coelum" - Let justice be done though the heavens may fall.
One of our most cherished rights is trial by jury - one of the greatest levelers. In two separate polls in 1999, about 70 percent of Americans identified trial by jury as a very important part of the justice system. Major efforts have been made and are still continuing to improve and safeguard this cornerstone of justice.
Third, this country is blessed with a legal profession the members of which are strong and effective protectors of the rights of individuals, zealous advocates for their clients, and committed to the highest aspirations of the rule of law. From boundary line disputes to protection of intellectual property rights, to murder cases, lawyers make the machinery of the law work. In addition to their work as advocates to advance the rights of individuals and protect the rights of society, lawyers contribute massive amounts of time and money in a professional and public-spirited effort to improve the legal system, increase access to the system, make the community a better place to live, and otherwise connect democracy with diversity. Thus, for example, members of the Bar support law-related education in the schools, night small claims courts, free legal advice through the Young Lawyers' Tuesday Night Bar, and the year-old "and Justice for all" project which has raised hundreds of thousands of dollars in Utah to support the Legal Aid Society, Disability Law Center, Utah Legal Services and other providers of low- or no-cost legal services to the poor. The Bar, and particularly the Young Lawyers Division, also provides services to the public like these Law Day activities and much more.
The logo of the American Bar Association is "Defending Liberty. Pursuing Justice." I have been in the law for 40 years. Based on my experience with thousands of lawyers, I am convinced that the profession is in the front line of those advancing and safeguarding ordered liberty, those who will correct defects in the system of justice, and those who will meet the challenges of diversity.
Fourth, the subject of education is getting a lot of attention nowadays. Rightly so. Education ought to be a national obsession. Americans have always known that ignorance and apathy are toxic. Solutions to the challenges of diversity and equality in a democracy rest on the foundation of an educated, thinking, voting public. That education must teach the principles, responsibilities and aspirations of our constitutional democracy; the meaning of liberty in law. In Abraham Lincoln's words:
Let reverence of the law be breathed by every mother to the lisping babe. Let it be taught in schools, . . . seminaries and colleges; Let it be written in primers, spelling books and almanacs; Let it be preached from pulpits, and proclaimed in legislative halls and enforced in courts of justice; Let it become the political religion of the nation.
Education about the rule of law includes teaching respect for and obedience to the law. Teaching democratic principles to all our citizens is essential to prevent diversity from degenerating to division. It reminds us that diversity does not mean division over core values. The last time that happened the cost was civil war. As John Hancock told the Massachusetts Convention considering adoption of the Constitution: "We must all rise or fall together." We meet the challenges of diversity at the ballot box, through debate, through proper forms of demonstration. Not by violence. Education about democracy is the keystone in the arch of civic responsibility.
Finally, all these things - Constitution, courts, laws - are not enough to meet the challenge of equal justice under law in a diverse society. Our commitment to true equality begins in the heart.
In the book To Kill a Mockingbird, Atticus Finch's daughter Scout was puzzling over how a jury could find the black man, Tom Robinson, guilty of raping a white woman when the evidence clearly showed he hadn't. Then it became clear to her. As she put it:
How could this be so, I wondered, as I read Mr. Underwood's editorial - senseless killing. Tom had been given due process of law to the day of his death; he had been tried openly and convicted by twelve good men and true; my father had fought for him all the way. Then Mr. Underwood's meaning became clear. Atticus had used every tool available to free men to save Tom Robinson, but in the secret courts of men's hearts Atticus had no case. Tom was a dead man the minute Mayelle Ewell opened her mouth and screamed.
The teaching to us and all citizens was given two thousand years ago. It is the second great commandment . . . Love thy neighbor as thyself.
In the words of Judge Learned Hand: "Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it."
I return to what I said at the beginning. This is a time of celebration and commitment. You who know the importance of the rule of law in a diverse society bear a special responsibility.
There is a new book out entitled, "If God Meant for Us to Vote He Would Have Given Us Candidates." It's a handy proposition; but shifting responsibility to God for good elections won't work. You excellent professionals have always been involved, and I expect to see you on the front lines - celebrating your freedom, meeting the challenges of diversity and democracy. You lawyers, foremost of all citizens, understand the importance of those climactic words in the Pledge of Allegiance, "with liberty and justice for all."
I conclude using the words of the poet-philosopher, Carl Sandberg:
I see America, not in the setting sun of a black night of despair ahead of us; I see America in the crimson light of a rising sun fresh from the burning creative hand of God. I see great days ahead, great days possible to men and women of will and vision.