As many of you know, each year I try to identify a word or phrase that I deem to be most descriptive of the moment in which we find ourselves. It is an exercise I do at the end of each year to try to help me understand where our nation lies in the larger spectrum of history and where we, individually can begin to put this moment in time in some kind of perspective.
In past years, some of these words included “relevant”, by which I discussed how so many events were swirling around us that we needed to find some anchor or ethos to give us some guidance during difficult moments. One year my word was “meaningful” and I went to great pains with some friends and family members to explain that we all needed to perform truly valuable deeds, big and small, that return us to the basics of our existence and showed our inner civility in times of #MeToo, wanton illegal gun attacks on our schools and churches and other events that have eroded our own sense of right and wrong.
So, with a great deal of thought based on the events of our nation over the past year, I pondered a number of words and phrases that I thought were most appropriate to the year ahead. As I wrote in my final blog post of 2018, the past year was inexorably linked to 1968 – some 50 years earlier – that threw our nation into a different kind of tailspin.
After much reflection I hereby announce that the phrase of the coming year is: [drum roll] rule of law.
The rule of law is defined by the Oxford English Dictionary as:
"The authority and influence of law in society, especially when viewed as a constraint on individual and institutional behavior; the principle whereby all members of a society are considered equally subject to publicly disclosed legal codes and processes".
The phrase dates to the Magna Carta signed by King John in England in 1215. The king deemed it necessary to issue this pronouncement when a group of barons, powerful noblemen who supported the king in exchange for estates of land, demanded that the king sign the charter to recognize their rights. That document was written to ensure that the life, liberty, or property of free subjects of the king could not be arbitrarily taken away. Instead, the lawful judgment of the subject’s peers or the law of the land had to be followed.
So, what does this ancient document have to do with the year 2019? Quite a lot, it seems. The construct behind the phrase “rule of law” recognizes that a person’s fate should not be in the hands of a single individual—whether a king, a dictator or the president of the United States. Magna Carta planted the seeds for the concept of due process as it developed first in England, and then in the United States. Due process means that everyone is entitled to a fair and impartial hearing to determine their legal rights.
James Madison expressed this idea for us in Federalist Paper No. 51 (1788) when he wrote:
“If men were angels, no government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”
The framers of the U.S. Constitution addressed this problem by dividing power among the different branches of government (legislative, executive, and judicial). This framework for government, known as the separation of powers, ensures that no one person is able to gain absolute power and stand above the law. Each branch of our government has some level of control or oversight over the actions of the other branches.
When we talk about the rule of law, “we must understand that we are talking about a law that promotes freedom, that promotes justice, that promotes equality.” said former U.S. Supreme Court Justice Anthony Kennedy, who suggested in his writings that the rule of law has taken on special meaning for the people of the United States, based on our history of looking to the law to fulfill the promises of freedom, justice, and equality set forth in our nation’s founding documents.
One of my favorite movies is the adaptation of the story of Sir Thomas More whose life was memorialized in the Robert Bolt film, “A Man for All Seasons”. In the movie, Sir Thomas, played brilliantly by Paul Schofield, is faced with the mandate of the king that all citizens of the realm must swear an oath permitting the king to divorce his wife (against the dictates of the Catholic Church) and marry his lover, Anne Boleyn. More, facing false charges at his upcoming trial, learns from Richard Rich, his former protégé, that he will testify against More.
More’s son-in-law, Roper, demands that Sir Thomas find a reason to arrest Rich and charge him even though he hasn't broken any law. More explains to Roper, that he would give the benefit of law to the Devil, rather than arrest Rich on false charges.
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: Oh? And when the last law was down, and the Devil turned ‘round on you--where would you hide, Roper, the laws all being flat? 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? Yes. I'd give the Devil benefit of law, for my own safety's sake.
We should not doubt – nor let others convince us – that these are ordinary times. We are in the midst of a constitutional crisis that will determine the future direction of our nation and the future of each of its 323 million citizens. We need to raise the critical questions as to whether our constitution is the essential wisdom that governs us or whether a cult of personality shall be permitted to subsume those fundamental rights that we have fought so hard to preserve.
The rule of law was essential to the ethos of England from the time of the Magna Carta. It was deemed at the heart of the Founding Fathers belief that our nation be governed as one derived from man’s laws. It was essential to the constructs underlying our union when spoken so ably by Abraham Lincoln as he worked to keep our nation together after secession of the southern states. And, it was essential to the protection of our democracy in the dark days of Watergate that led to the disgrace and resignation of President Richard Nixon in 1974.
Today, we are as steadfastly in need of reliance on the rule of law as ever before in our history. We are a nation of laws. And it will be the laws that stand mightily to oppose any individual’s belief – whatever his place in our society -- that he or she is above the law.
Wishing each of you a prosperous and healthy new year.