YO U R M O N T H LY C O N S T I T U T I O N A L By: Stewart Harris Lincoln Memorial University Duncan School of Law
ABANDONING THE RULE OF LAW Count me among the hundreds of millions of people profoundly saddened and outraged by the recent insurrection at the United States Capitol. My heart goes out to the family of Capitol Police Officer Brian Sicknick, who died during the assault. As lawyers, we take a solemn oath to defend the Constitution. Tennessee’s oath begins: “I . . . do solemnly swear or affirm that I will support the Constitution of the United States . . .”1 I am proud that, consistent with this solemn obligation, many attorneys, in Tennessee and elsewhere, have condemned the actions of those who tried to tear down our government. In an email that we have all received, KBA President Cheryl G. Rice wrote that “[t]he Knoxville Bar Association denounces the violence that took place at our nation’s Capitol yesterday. Our sworn obligation as attorneys is to uphold and honor the Constitution and the rule of law . . .” LMU’s Law Dean Matt Lyon penned a heartfelt message in which he recounted his personal experiences on 9-11, when his Washington office was evacuated. He continued, “Our legal system is not perfect. The many inequalities in this country have been laid bare over the past year, no more so than on Wednesday when we saw how easily a mob, incited into violence, was able to defile the heart of our democracy. But we have also seen this year that in our judicial branch, certain central tenets remain strong thanks to lawyers and judges of both political parties. These include: the importance of facts, supported by evidence; the language of our Constitution and state and federal statutes; the value of legal precedent; civil discourse; and robust, non-violent debate and dissent.”2 But while I am inspired by Cheryl and Matt, I am equally dismayed by a few attorneys who seem to have given up on the rule of law. I recently had a troubling exchange on Facebook with one of my former students—not an LMU alum, I’m glad to say. After a number of references to violent revolution, this licensed attorney asked me whether secession is constitutional. I answered “no,” citing Texas v. White, in which the Supreme Court held that secession is “undoubtedly, unlawful, for the acts which it contemplated are, within the express definition of the Constitution, treasonable.”3 The attorney wrote a lengthy reply, which began, “so you’re saying there are no LEGAL means of redress against a tyrannical government.” Well, yes, I was talking about legal means. Of course I was. But before I could remind him of the many legal methods of redress—free speech, peaceful protest, and the ballot box come to mind—this former student of mine wrote: “Hopefully, before the guns are confiscated, there will be enough patriots to rise against the oppression as the founders did. Just like then, there seems to be no other redress available for the kinds
of oppression we’re seeing the beginnings of now. History shows that no empire lasts forever. British, Mongol, Ottoman, Roman...they’re all long gone. Perhaps our time has come too. Sad...” Yes, it is sad. It’s sad to abandon the rule of law. It’s sad to give up on the American Experiment. And it’s entirely inappropriate for an attorney to even hint at support for armed rebellion. Our majoritarian system is flawed—as flawed as the humans who operate it. However, as noted by a great parliamentarian, “[m]any forms of Government have been tried, and will be tried in this world of sin and woe. No one pretends that democracy is perfect or all-wise. Indeed it has been said that democracy is the worst form of Government except for all those other forms that have been tried . . .”4 Essential to the democratic process is the willingness to lose— on issues, in court, and in elections. When I’ve lost prominent court cases, I’ve offered a standard response to the press: “We respectfully disagree with the court’s ruling, and we will consider further legal options.” That’s it. If you lose, you lose, especially once you’ve exhausted all your appeals. I’ve also lost a local election. My statement to the press was, essentially, that “the people have spoken, and I respect their decision.” That’s it. That’s how democracy works. When one person, or group, refuses to accept the rule of law, especially when that refusal is violent, well, then, the very foundation of our nation is under attack. And that foundation is worth defending. As my university’s namesake explained in a far more perilous time: “Fellow-citizens, we cannot escape history. We of this Congress and this administration, will be remembered in spite of ourselves. No personal significance, or insignificance, can spare one or another of us. The fiery trial through which we pass, will light us down, in honor or dishonor, to the latest generation . . . We—even we here—hold the power, and bear the responsibility . . . We shall nobly save, or meanly lose, the last best hope of earth.”5 The last best hope of earth. That’s something worth defending. And, like Abraham Lincoln, we’ve taken an oath to do so.
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Tennessee Rule of Professional Conduct 6 (4). Dean’s Message, January 8, 2021, via email. 74 U.S. 700, 733 (1868), overruled in part on other grounds by Morgan v. United States, 113 U.S. 476 (1885). Winston S. Churchill, debate in the House of Commons, November 11, 1947, available at https://api.parliament.uk/historic-hansard/commons/1947/nov/11/ parliament-bill. Abraham Lincoln, Annual Message to Congress, December 1, 1862, available at: http://www.abrahamlincolnonline.org/lincoln/speeches/congress.htm.
Stewart Harris is the host of Your Weekly Constitutional, available for streaming and downloading on iTunes and Spotify. February 2021
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