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EDITOR'S NOTE: The following is a speech given by the author at a Law Day Banquet this year. It is reprinted here with the author's permission because of the
timeliness of the subject.
I am honored to be here on Law Day, a day in which we celebrate the rule of law. As you may know, the origins of the celebration are of fairly
recent vintage, and its original purpose was to provide a foil to the communist world's celebration of May Day. For my remarks, however, I would like to go back in time past the Cold War,
and even past the founding of the American Republic. I would like to take us back in time to the 16th century, the time of St. Thomas More, the patron saint of lawyers and politicians.
With you, my favorite "lawyer play" is A Man for All Seasons, written in 1960 by Robert Bolt. Like you, my favorite passage in that play is the dramatic scene where More
rebuffs his family's plea that Richard Rich be arrested because he is a "bad man" even though he has broken no law. You can probably recite from memory More's stirring rebuke of
his passionate future son-in-law William Roper:
ALICE: (Exasperated, pointing after RICH) While you talk, he's gone!
MORE: And go he should, if he was the Devil himself, until he broke the law!
ROPER: So now you'd give the Devil benefit of law!
MORE: Yes. What would you do? Cut a great road through the law to get after the Devil?
ROPER: I'd cut down every law in England to do that!
MORE (Roused and excited) Oh? (Advances on ROPER) And when the last law was down, and the Devil turned round on you -where would you hide, Roper, the laws being flat? (He leaves him) This country's planted thick with laws from coast to coast - man's laws, not God's - and if you cut them down - and you're just the man to do it - d'you really think you could stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake.
Robert Bolt, A Man For All Seasons, 37, 38 (1962).
My guess is that this colloquy is one of the most oft-cited passages in literature among lawyers. It stirs us. It explains
in a powerful fashion why we do what we do. It even gives us license to represent some pretty nasty folks including the Devil himself. (By the way, I am beginning to learn that when one
represents a church-affiliated entity it is not good practice to begin one's advice with the phrase, "Well, for a moment, let me be the Devil's advocate.")
For my remarks
this evening, however, I will focus on the dialogue between More and Roper that immediately precedes and follows this better- known passage because I believe it contains an insight into
the rule of law that is profound and important. Again, to set the stage, More's family wants Richard Rich arrested simply because he is "a bad man":
MORE: There is no law against that.
ROPER: There is! God's law!
MORE: Then God can arrest him.
ROPER: Sophistication upon sophistication!
MORE: No, sheer
simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal.
ROPER: Then you set man's law above God's?
MORE: No, far
below: but let me draw your attention to a fact - I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in
the thickets of the law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God É
Id. at 37.
Then comes the famous passage that I have already quoted, which is followed by this dialogue:
ROPER: I have long suspected this; this is the golden calf; the law's your god.
MORE (Wearily): Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very
bitterly) subtle ... I don't know where he is nor what he wants.
Id. at 38.
Now, a word in defense of Thomas More the saint before an audience that might take these last words of More as a sign of a spiritual deficiency in his character. Thomas More was first and
foremost a passionate churchman, a devoted servant of God. Listen to this description by his most recent biographer, Peter Ackroyd, of, quite literally, the last moments of More's life,
on the scaffold immediately before he was beheaded:
The steps of the scaffold were not firm and one of the officers present steadied him as he climbed to the block. "When I come down again," More is supposed to have said,
"let me shift for myself as well as I can." His words to those assembled have been variously reported but it is known that, according to the king's will, he spoke only
briefly. He asked the crowd "to bear witness with him that he should now there suffer death in and for the faith of the Holy Catholic Church", according to William Roper;
but a contemporary account suggests that "Only he asked the bystanders to pray for him in this world, and he would pray for them elsewhere. He then begged them earnestly to pray
for the King, that it might please God to give him good counsel, protesting that he died the King's good servant but God's first." He knelt down before the block and recited the
words of the psalm which begins "Have mercy upon me, O God, according to thy loving kindness".
Then he rose and, according to custom, the executioner now knelt to
beg his pardon and his blessing.ÉMore kissed him, and is reported to have said, "Thou wilt give me this day a greater benefit than ever any mortal man can be able to give me.
Pluck up thy spirits, man, and be not afraid to do thine office."
Peter Ackroyd, The Life of Thomas More 405-406 (1998).
This is neither the conduct nor the words of a person who does not know God. How then to explain the seeming
agnosticism in More's words to Roper that he loved and used the law because he had little confidence in his ability to know God's will?
I know that some of you are already nervous
that someone from BYU will turn this event into a church talk. Let me assure you that I am not going to do that. (I have done that elsewhere with these materials, but I do have some sense of the time and the place.) What strikes me about More's view of the law that is important for us almost 500 years later is that, in his mind, the system of law that we now refer to as the rule of law was created out of a sense of humility. In More's case, he lacked the confidence that he, on his own, despite his piety and erudition, could determine God's will in any matter that would define relative rights and responsibilities among competing claims. Judge Learned Hand captured this sense of humility best by quoting Oliver Cromwell, who said, "I beseech ye in the bowels of Christ; think that ye might be mistaken." Judge Hand commented, "I should like to have that written over the portals of every church, every school, every courthouse, and, may I say, of every legislative body in the United States." Eugene C. Gerhart, Quote
It Completely!: World Reference Guide to More Than 5,500 Memorable Quotations From Law and Literature, 739 (1998).
Elsewhere, Judge Hand wrote, "The spirit of liberty is
the spirit which is not too sure it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which
weighs their interests alongside its own without bias." Quoted in Anton Scalia's, "How Democracy Swept the World," Wall Street Journal, September 7, 1999, A 24.
We need the rule of law because we should lack confidence in our own ability to know what is right. We should recognize that we "might be mistaken." And so we turn to a
process - the rule of law - that helps guide us to correct principles. We may not have confidence in our ability, but we have supreme confidence - even faith - in the collective
enterprise. And now, after hundreds of years of experience with this process, we can see the fruits of that faith everywhere around us. We may not have reached what Francis Fukayama so
provocatively called "the end of history," The End of History and the Last Man (1992), but we have enough experience to know that limited government committed to individual liberty, free markets, and governed by a written constitution that separates concentrations of power is a vehicle that creates a material wealth that can end cycles of poverty, unleashes human potential for creativity, and allows men and women to pursue, express, and achieve their innermost need for spirituality. My optimism reflects the views of Justice Scalia who has described his "belief that [in the American experience with republican government] we have finally managed to get the kinks out of the system." Scalia, "How Democracy Swept the World." "The principal kink" according to Justice Scalia, "is that majorities É want to have their own way and can be as tyrannical as a dictator, which is what their excesses will ultimately produce." Id. The American solution is a system of checks and balances informed by a fear of concentration of power that also reflects a sense of humility, a lack of confidence that any one individual or branch of government can "get it right" acting independently.
At the heart of the rule of law is this sense that somewhere beyond us and our own parochial views are true principles that best describe who we as humans are and what should be
our proper relationship to others. As lawyers, that commitment to the rule of law is manifest in at least two ways. First, as we give advice to clients, we must use our skills to help
identify the substantive principles expressed in the law and then counsel our clients to follow those principles. I reject the role of a lawyer attributed to one of the robber barons:
"I don't hire lawyers to tell me what I can't do. I hire lawyers to tell me how I can get done that which I want to do." This view of lawyer as a tool or instrument is not
benign. It is dangerous to the rule of law. In a thoughtful article that analyzes the competing views of law set forth by the characters of Thomas More and his arch-nemesis Thomas
Cromwell in A Man for All Seasons entitled "Who's Afraid of Thomas Cromwell?", Duke University law professor H. Jefferson Powell writes,
The political community necessarily is made up of finite, ignorant, and sinful creatures, and for its preservation it requires a medium through which the common good can be debated,
social controversies articulated, and political disputes resolved, in human terms. Law provides such a language, and its efficacy depends on the ability of all of society's members to
see the law as a shared enterprise that belongs to all rather than as a mechanism for the exercise of someone's (anyone's, even everyone's collective) will.É Cromwell is a bad lawyer
because he thinks the law is nothing but an instrument or a weapon. He has no feel for the law as a social bond that unites us even when we invoke it to resolve our disputes.
74 Chicago-Kent L.Rev. 393, 404 (1999).
Now granted, there are times when it isn't clear which principles should guide the resolution of an issue. That is when we litigate. Even here, however, the rule of law demands that we submit to a process that reflects fundamental values that are true: notice and an opportunity to be heard. Submitting ourselves to the rules that govern that process is another act of humility. And following the process is critical. We know that from our American constitutional experience. Montesquieu, Hamilton, Madison, and Jay were right. Justice Scalia referred to that experience as "the most significant development in the law over the past thousand years." Scalia, "How Democracy Swept the World." It is through the process that we can achieve justice so long as the process respects those fundamental values.
I have come to appreciate the value of the rule of law most as the result of my involvement with emerging democracies. While I was Senate Legal Counsel, the chief legal officer of
the United States Senate, I had opportunities to meet with visiting foreign dignitaries who had come to the Senate to learn more about that unique and peculiar institution. On one
occasion, I was able to spend the better part of the day with approximately 20 members of the then-newly created Palestinian legislative authority. Doctors, lawyers, carpenters,
pharmacists, businessmen; most of them had been in prison the year before as participants in the Intafadah. They were in Washington, D.C., trying to learn what it means to be a
legislature. They posed the following question. "We love Chairman Arafat. He has been our George Washington. But now, he is a tyrant. He gives the legislature no authority and no
respect. From the American experience, what does our legislature need so that we can create a democracy among our people?" I could have given them a copy of The Federalist Papers, but that isn't what they were looking for. They wanted a succinct answer to their serious question. How would you answer them? After some reflection, I volunteered two points. First, make certain that your legislature has what is referred to as the "power of the purse" - control over the amounts of money the Executive can spend. That power comes from article I, sections 7, 8, and 9 of the U.S. Constitution. Second, make certain that your legislature has the power to subpoena the Executive on matters for which it should be held accountable to the public. Unlike the power of the purse, this power of oversight is nowhere expressly stated in the Constitution, but is implied in the broad statement of article I, section 1 that "All legislative powers herein granted shall be vested in a Congress of the United States." I served as Senate Legal Counsel during a time in which the Congress, under Republican control, exercised that power in a fulsome manner against an Executive Branch headed by William Jefferson Clinton. There are, as there should be, significant limits to this expression of legislative authority, but it must exist in some form. Both the power of the purse and the power to question are manifestations of the rule of law and serve as important checks on executive authority.
Nowhere can one gain an appreciation for the value of the rule of law quite so quickly, I believe, as working in former communist countries. For several years now, I have served
on the National Advisory Board of the American Bar Association's Central European and Eurasian Legal Initiative - CEELI. Our Executive Committee is comprised of a cast of distinguished
American lawyers and judges, including Justice Sandra Day O'Connor; Abner Mikva, the former chief judge of the United States Court of Appeals for the District of Columbia Circuit, White
House Counsel to President Clinton, and Democratic member of Congress; and my professional mentor and former White House Counsel to President Reagan, Fred Fielding. CEELI sends volunteer
American lawyers and judges to live and work in former communist countries in Eastern Europe and Eurasia on a pro bono basis. Typically, these volunteers serve abroad for one to two
years. They work with ministries of justice, bar associations, and judges' groups to help promote the rule of law in former communist countries. Each summer for the past three years, I
have traveled with members of the Executive Committee to visit the CEELI volunteers and to see and hear first-hand the remarkable work they are doing. I have never been more inspired than
when I have been in the presence of these American lawyers who have put to one side for the time being the comforts of home and family, to say nothing of the remuneration to which they
have grown accustomed in the United States, and work instead with the first generation of lawyers and judges in former communist states, reformers who are working to build democratic,
market-oriented societies for the benefit of their children and grandchildren.
These experiences with newly emerging democracies give me great hope. Permit me, however, three
personal stories that illustrate how difficult it is to abide by the rule of law here in the United States. The first, from my days as Senate Legal Counsel, offers some measure of hope
that the rule of law can be appreciated even in a highly charged political atmosphere. The last two stories are less hopeful. I apologize in advance for the personal nature of these
stories. The cynics and skeptics among you will recognize that I am the "good guy" in each of these stories. If you can, please look beyond the personal bias. I think the
principles are valuable.
The position of Senate Legal Counsel is a rarity in the federal government. Created by statute as the last of the Watergate reforms, the office is meant to
be comprised of non-partisan lawyers giving out non-partisan advice to individuals and entities in a body that is very partisan and growing more so every day. One of the greatest
challenges of being Senate Legal Counsel is to try and help those who have a time horizon based on a daily media cycle understand that there are issues that impact the long-term
institutional interests of the Senate. In short, part of our charge is to explain the rule of law and how it might work in an institution that is often driven by partisan concerns. As you
can imagine, our efforts weren't always appreciated. For example, you may recall that the 1996 Louisiana Senate election was extremely close. The victory of Senator Landrieu was
challenged. The defeated candidate brought a complaint before the Senate contesting the validity of the outcome declared by the governor of Louisiana. The Constitution grants to the
Senate the final determination of who may be seated. U.S. Const., art. I, section 5.
The matter was referred to the Senate Rules Committee. Now, of all the partisan matters that
drive the Senate, it is hard to imagine a more potentially divisive issue than determining whether a seat will be held by a Republican or a Democrat. This particular matter was the source
of great controversy and acrimony. In anticipation of a key meeting of the Senate Rules Committee, my office was consulted over the meaning of a critical Committee rule. We used our most
dispassionate legal analytical skills and ventured an opinion on the provision. We shared that opinion with all who asked. As we anticipated, the Committee meeting was contentious, and as
we feared, there was a pitched battle over the meaning of the provision upon which we had opined. The warriors were Senator Robert Byrd for the Democrats and Senator Rick Santorum for the
Republicans. That it was these two Senators who had taken up the cudgels added to the acrimony because there had been a history of difficulty between them.
Even though my personal
political views are closely aligned with those of Senator Santorum and I have great admiration for him, on this rather technical matter, my views on the disputed language supported the
position taken by Senator Byrd, and he asked that we put those views in writing in a memorandum. Reluctantly, we did. I signed the memorandum, and immediately called the Office of
Majority Leader Trent Lott to give his staff a heads up. I knew that they would be disappointed with my views, but I didn't want them to be surprised by them. They graciously thanked me
for the call. The next day, however, I got a phone call from the Majority Leader's office. My friend on the line said, "Tom, this is not a happy phone call. The Leader would like to
see you in his office in 10 minutes." As I arrived in Senator Lott's office, Senator Santorum was leaving. He was upset. He had in his hands a copy of my memo. I could see red marks
all over it. In my mind, I began planning how to spend the money I would soon be making upon my return to private practice. I was escorted into Senator Lott's conference room and sat
midway down the long side of the table. Senator Lott came in and took his seat at the head of the table. He then began to chew me up one side and down the other. As he did so, I tried to
remain calm and look at his face. I noticed that my view of him was framed by a large window behind him through which I had a spectacular view out the north front of the Capitol, down the
National Mall to the Washington Monument, and beyond that the Lincoln Memorial and Arlington Cemetery. My somewhat unsophisticated thought was, "How cool is this? I am seated in the
conference room of the Majority Leader of the Senate in the Capitol of the United States, looking at this marvelous view, and he's going to fire me! This is going to be a great story for
my children!"
Well, he didn't fire me. In fact, although it was evident that he strongly disagreed with my view, he treated me with a great deal of respect. It was no fun
being the object of the ire of the Majority Leader, but in many ways the experience increased my respect for Senator Lott. That unpleasant meeting with the Majority Leader was followed by
a series of meetings and memos with his staff and others in the Senate leadership. I held firm to our view of the meaning of the provision because I honestly believed that we were right.
We had dispassionately identified the neutral principle that governed the controversy and applied it to this case. The answer didn't please the client, but we held firm. The rule of law
demands that.
Now, for the rest of the story. Eighteen months later, Senator Lott was facing his greatest challenge as Majority Leader to that point in time: the second impeachment
trial of a President of the United States in the history of the Nation. Senator Lott's political advisers were telling him to pursue one course. The most conservative members of his
caucus were telling him something quite different. And everyone involved had a sense that this was an important moment for the long-term interests of the Senate and the Nation. Senator
Lott needed help. He needed an office that could advise him on how the Senate should approach this issue. Upon the advice of his staff, he called upon the Office of Senate Legal Counsel
and brought us into the center of the planning for and execution of the impeachment trial of President Clinton. I like to think that part of the reason he did so was because we gained his
respect by the way we handled the Louisiana contested election matter. Whatever the reason, I am grateful for his decision to bring me in to the trial in such a critical manner. It won't
surprise you to hear me say that I gained a great deal of admiration for Senator Lott during the trial. I know there are those who disagree. My own congressman Chris Cannon, for whom I
have much admiration, is chief among them. But I think the Senate acquitted itself well in the impeachment drama. More about that some other time.
Now, the stories that worry me.
Several years ago, then Governor of Virginia Jim Gilmore asked me to serve as general counsel to the Advisory Commission on Electronic Commerce, a commission created by Congress to study
and make proposals how Congress should approach the thorny issue of whether states should be allowed to tax the purchase of goods over the Internet. The Commission was comprised of 19
distinguished individuals including two governors (Governor Leavitt was an outspoken and articulate member of the Commission), the chairman of AT&T, the president of America Online,
the president of MCI-WorldCom, the president of Time-Warner, the president of Charles Schwab, and the president of Gateway. (At the time, this group had the luxury of considering such
important matters of public policy. Since then, many have been forced to spend their time on more immediate concerns.) The work of the Commission garnered much national attention, and its
concluding meeting was contentious. As general counsel, I was called upon to offer my opinion at that final meeting on a divisive topic. The opinion I offered gave support to a position
that Governor Gilmore had pursued and that was vigorously opposed by a minority on the Commission, including Governor Leavitt. I came under some heavy public criticism by some of those
Commission members. The controversy was reported widely in the media, and my name was mentioned in a New York Times article in a way that I thought unfairly characterized what had taken place. The day the article appeared, I went and spoke with the reporter. I explained what had taken place and tried to place it in a larger context that would help him see the error of what he had written. He listened respectfully and said, "Tom, it isn't anything personal. I know what you were doing. Lawyers are hired guns, and you were doing what was necessary so that your client, Governor Gilmore, could do what he wanted to do." Without boring you with the details, you'll need to trust me that this assessment was flat-out wrong. I tried to explain to him why he was wrong, but I had the distinct impression that he was not persuaded. In his mind, I was a "hired gun" willing to do anything to help the client do what he wanted.
That is the popular perception of lawyers, and it is harmful. It breeds a cynicism about the rule of law that is dangerous. That cynicism is manifest today in the battles we see
over the President's appeals court nominees. Nominees who argue that their representations of particular clients in individual matters are not insights into how they would act as judges
are found by some to be unbelievable. People cannot imagine that a lawyer or a judge would act out of any motive other than personal interest and bias. The legal realists, the advocates
of critical legal studies, and the deconstructionists seem to have won the battle. Unfortunately, activist judges have given them grounds to make their cynical arguments.
And
finally, just this week, I had yet another run-in with the reality that the rule of law is not well-understood in America. Last summer, the United States Secretary of Education, Rod
Paige, asked me to serve on a commission to look into the progress of men and women in intercollegiate athletics since the passage of Title IX, which mandates equality of opportunity in
higher education. The commission finished its work this February and issued a report recommending modest reforms in the interpretation and enforcement of Title IX. As you may have
noticed, the work of the commission was controversial. Our meetings were picketed by those who charged that we were considering dismantling Title IX and were intent on undermining the
significant gains women have made in intercollegiate athletics. Since the commission has completed its work, a number of the commissioners have been invited to speak in different places
about our experience. This last week, I spoke to an NCAA conference.
Now, I am a relatively careful person, and I thought that my work on the commission reflected that care. I have
been conditioned long enough by my Washington experience to imagine that everything I say and do may be reviewed one day by a Senate committee. (I admit that I have fallen prey to this
strange type of Judgment Day scenario familiar mostly to neurotic Washingtonians with over-inflated views of their possible future contributions to the Nation.) My concerns about the way
Title IX has been enforced were related to, not surprisingly, the rule of law. When Congress enacted Title IX in 1972, one thing was clear, and it was explicitly addressed in the language
of the statute. There could be no use of preferential or disparate treatment to redress gender imbalances. And yet, over time, the Department of Education has adopted policy
interpretations of Title IX that do just that. Legal officers at colleges and universities will tell you - and they told this to the commission - that when enforcing Title IX the
Department of Education is interested primarily in numbers. In fact, the Department has created, in its own terms, a "safe harbor" for colleges and universities if the ratios
between men and women in their intercollegiate athletics programs is "substantially proportionate" to the ratios between men and women enrolled at the university. Well, I am not
comfortable with this interpretation given the clear expression of congressional intent in the language of the statute.
That concern formed the basis for most of my comments
during the work of the commission. To me, the development of the Department of Education's interpretation of Title IX goes beyond the authority it has been delegated by Congress. In our
society, we have a process by which the federal government intervenes in our activities. We are all taught this in high school civics. It's called "How a Bill Becomes a Law." It
requires bicameral passage of legislation and presentment to the Executive, who is then charged with executing the law. Over the last 70 years, the federal judiciary has recognized the
right of the Congress to delegate some of its lawmaking authority to the Executive; but the Executive may not, indeed it cannot, make law on its own. It can only make law if it has been
granted authority to do so by the Constitution or by an act of Congress. That is the speech I have given over and over again in connection with my work on the Commission as I have
criticized the process by which the Department of Education has arrived at its enforcement policies regarding Title IX. I tried to explain that concern to the attendees at the NCAA
conference just this week.
It was not well received. That doesn't trouble me. What troubles me is that no one would engage me on that topic - how we create laws in our society -
and whether the appropriate process has been followed in this instance. Instead, it was assumed that because I was critical of how we got to where we are, I was also hostile to Title IX
itself and to equal opportunities for women in athletics, and no amount of effort on my part to explain my concerns seemed to dislodge people from their views of what was driving my
concerns. To them, it was all about whether you were for moving forward in helping women or going back to a time none of us wants to revisit. To them, my points, based, I believe, on
concerns regarding the rule of law, were nothing more than, in the words of Roper to Thomas More in A Man For All Seasons, "Sophistication upon sophistication." Bolt, 37.
This lack of understanding of the rule of law is everywhere evident in American culture. It manifests itself in an increasingly negative view of lawyers, on the floor of the
Senate in debates over judicial nominees, and in demonstrations on the steps of the Supreme Court. As lawyers, we bear some of the blame, perhaps most of the blame, for this cynicism. In
response, we must model and explain to others the value of the rule of law. Near the close of his splendid biography of Thomas More, Peter Ackroyd wrote, "He embodied law all his
life, and he died for it." Ackroyd, 400. That is a challenge worthy of each of us.
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