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The Bar Bulletin
Jax Daily Record Monday, May 7, 201809:36 AM EST

From the President: The separation of powers we have an obligation to educate

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I know that being critical of democracy is (by definition) never popular.

By Tad Delegal, JBA President

This year’s Law Day theme was the separation of powers among the executive, judicial and legislative branches of government established in the U.S. Constitution. 

That might seem like a pretty dry concept. We have come to take it for granted, but it’s critical to our system of government.

I know that most of us have heard senior attorneys and judges talk about the brilliance of our constitutional system, but it really is true that the folks who set up our system in 1787 did a pretty good job. We have to recognize, though, that the system that has worked for 231 years is always at risk of falling victim to the danger that has always threatened it: unbridled democracy.

I know that being critical of democracy is (by definition) never popular, but at its heart democracy is “two wolves and a lamb voting on what to have for lunch.”

You’ll find that statement on the internet as being attributed to Ben Franklin, but apparently it was coined in the 1990s, along with the corollary: “Freedom comes from the recognition of certain rights which may not be taken, not even by a 99 percent vote.”  

Democracy is a great idea, but without some reasonable constraints, it has historically failed. The 18th century French democracy fell to mob rule; Weimar Germany fell to the tyranny of racist populism; and a supposedly democratic Soviet system fell to the predominance of a single party that took strength from a popular revolutionary uprising. 

The British system has worked with a common law separation of powers, which apparently works with a population more deferential to tradition than our unruly, self-reliant country.  

I’m going to say something else unpopular: We are a bunch of elitists. 

By definition, highly educated attorneys who practice in a system of deference to a tradition-bound court system and judiciary are part of the elite.

Elitism is not always bad. I don’t think that any of us want folks who aren’t part of the medical elite performing surgery on us, or not part of the accounting elite giving us tax advice.

As part of the legal elite, we provide specialized and educated service in the law, but we also must play a vital role in educating the public and maintaining the system of separation of powers that makes our system of government work.

Expertise is certainly not in vogue, as we see from the self-proclaimed experts who feel themselves able to opine intelligently on any subject on Twitter, Facebook and other electronic platforms.

Perhaps the devaluing of expertise is what has fueled recent disdain for a seemingly clunky system of government that doesn’t respond to each and every popular whim. It is that very clunkiness, though, that has prevented short-term thinking from derailing our stability.

A system of checks and balances saves us from our good impulses, but also from our bad ones. 

As attorneys, we take for granted that the courts have power to invalidate actions by legislatures or executives. Educating the public about the value of the separation of powers is not easy, but organizations like the American Bar Association, American Board of Trial Advocates and the Jacksonville Bar Association play a valuable role in maintaining a successful system of government.

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