Thomas Jefferson, principal author of the Declaration of Independence, wrote: “I am not an advocate for frequent changes in laws and constitutions. But laws and institutions must go hand in hand with the progress of the human mind. “As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.”
Those words ring true today, as they have throughout the history of America. They are inscribed on the southeast interior wall of the Jefferson Memorial in Washington. D.C.
Our 250-year-old American democracy should never be taken for granted.
We can and must continuously reinvigorate democracy. It is not self-effectuating. This is the lesson of democracies that have died, first gradually, then suddenly.
The good news is that the reverse is also true. Democracies can be restored, as evidenced by what so many sacrificed and accomplished in the American Civil War to reunite a divided nation.
The survival of democracy has always required the effort of many good people to sustain, defend and repeatedly refound the ground rules for living together in a free society. Abiding by these laws and policies enable people to enjoy peace, prosperity and progress by virtue of their synergistic differences, strengths and weaknesses, not despite them.
It is not redundant to say that we must and can refound democracy again. It is axiomatic. Due to inevitable reversals, over time the effort can feel like a Sisyphean labor. The upward arc of progress also is infinitely asymptotic because perfection is elusive. The best we can strive for is forming an ever more perfect union. As Martin Luther King Jr. and other drum majors for justice taught us, progress requires endurance.
The famous Preamble of the Declaration of Independence states: “… it is the right of the people to alter or to abolish …, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect [sic] their safety and happiness.”
President Abraham Lincoln prescribed a potent formula for healthy changes of the structure and function of government: “The legitimate object of government is to do for a community of people whatever they need to have done, but cannot do at all, or cannot so well do, for themselves.”
Mining American history, as we should do more often and deeply, unearths the precious shining metal of all the good lawyers who have brightly served the common good of free people in the splendidly ordinary professional quotidian work of our chosen profession. It also lays bare the cautionary example of those who chose a different twisted path.
The best lawyers work every day to uphold the pillars of democracy which are truth, justice, equality, respect for the dignity and well-being of all people and the natural world we share.
In the toughest times, in generationally recurring winters of discontent, lawyers have served as the guardians and often unrecognized, underappreciated guides from darkness back to brighter days alongside the anxious journeys of troubled people on their own contemporary “Road to Emmaus.”
This requires lawyers who are facing a dilemma to make the right choice; a choice between good and bad, a choice between the rule of law on one hand, versus on the other, the unfettered pursuit and abuse of power, self-interest, immorality, ethical impropriety and corruption.
Standing up for fairness, individual rights and liberties and the common good sometimes requires withstanding withering pressure, risk and personal cost. Illegality that is purportedly justified by higher purposes or in the name of urgently needed expediency can be seductively tempting, or too worrisome to refuse.
Nostalgia for never so golden as remembered times, and the obvious canard that past traditions and laws are immutable, are shortsighted excuses for washing one’s hands of responsibility for legally righting wrongs. Complacency and inaction are the enablers of injustice.
President John F. Kennedy included in a speech a quote attributed to Edmund Burke: “The only thing necessary for the triumph of evil is for good (people) to do nothing.”
That certainly was not the case for the 56 signers of the Declaration of Independence of whom more than half studied law and as many as 34 worked as lawyers. The political landscape of the revolutionary era was shaped by colonial lawyers who recognized the fight for independence as a legal battle.
Affixing their names to what amounted to an indictment of a tyrannical monarchy risked their reputations, livelihoods and property as well as the safety and lives of themselves and families. Many of the signers and their loved ones paid a heavy price during the war for independence.
Who can be your hero to emulate? Perhaps Sir Thomas More, who made the ultimate sacrifice for his belief in law and his faith. John Adams courageously defended the British soldiers in the Boston massacre case. Mild mannered Boston attorney Joseph Welch, the special counsel for the U.S. Army gently, civilly and effectively stood up to the scare mongering demagoguery of U.S. Sen. Joe McCarthy and his serpentine Chief Counsel Roy Cohn in riveting 1954 televised hearings. Disgraced and censured for his reckless cruelty and disregard of truth, McCarthy’s influence evaporated. Cohn’s legal career eventually ended when New York’s highest court disbarred him for fraud and gross ethical misconduct.
U.S. Attorney General Elliot Richardson resigned rather than derail the Watergate investigation of President Richard Nixon. Do not forget the Republican Congressional leaders who delivered the message in person to Nixon that he would be impeached if he did not resign. Think of that.
Other role models include the lawyerly persistence of female suffragettes working to secure voting rights for women at a time they themselves were unable to earn a law license.
So are the lawyers on both sides of the Gore v. Bush contested 2000 presidential election. Their professionalism, skill and civility, not to mention the selfless concession of the losing candidate when the U.S. Supreme Court ruled against him, is a stark contrast a generation later of the bad behavior of far too many lawyers who know better.
There is a pantheon of lawyers to mirror. They might be named Lincoln, Gandhi, Mandela or Thurgood Marshall. For inspiration we might look up to trailblazing Black lawyers Robert Morris; Charles Hamilton Houston, known as “the man who killed Jim Crow”; and Jane Brolin, the first Black female judge in the U.S.
A majority of female law students might look to U.S. District Judge Constance Baker Motley and U.S. Supreme Court Justices Sandra Day O’Connor, Ruth Bader Ginsberg, Sonia Sotomayor, Elena Kagan, Amy Coney Barrett and Ketanji Brown Jackson and the many women law school deans in America.
A worthy hero may well be the lawyer behind a desk down the hall from you, a judge you clerked for, a professor whose words you see in your mind’s eye and especially the people and causes you work for who remind you why you became a lawyer in the first place.
Law school deans, including this dean, are lifted, energized and rewarded by our students’ eager questions, strong answers, purposeful learning and training and genuine desire to serve others, often voluntarily.
Today we face enormous technological change, which paradoxically is nothing new. That was so, for example, when Benjamin Franklin, who was everything but a licensed lawyer, became the most famous person in the world by studying electricity. When the telegraph was introduced in the mid-1800s it precipitated every bit of societal changes as the Internet did, and that now that Artificial Intelligence is doing.
Think about in times of war and peace the impactful advent of steamboats, railroads, automobiles, airplanes, rockets, photography, motion pictures, radio and television. Think about healthcare advances such as antiseptics, vaccines, penicillin, insulin, birth control, cardiac bypasses, cancer and AIDS treatments, organ transplants and so much more, but alas, not so much for baldness.
Consider the automation of physical labor that led to the Industrial Revolution, inventions of efficiently effective means of destruction, mayhem and killing, mind-boggling advances in agricultural production, energy generation, molecular biomedical discovery and now our ability to reach for the stars by venturing deeper into space.
All of these innovations test the limits of existing law as forecast by Jefferson’s words carved in stone.
AI is affecting the practice of governing as profoundly as the printing press did. We cannot imagine the Declaration of Independence producing the American Revolution if the first 200 Dunlap print “broadsides” were not circulated to all the colonies. Similarly, the widespread use of AI, as proved to be the case with the telegraph and the telephone and all forms of wired and wireless communication and computer digital networks, requires government to lean in and use technology in the effort to fulfill human capabilities.
There are new threats and problems of a magnitude never before encountered. The big challenge before us is to continue to embrace the ideas that launched our country and other democracies while recognizing the promise of “unalienable” [sic] rights and freedom we never extended universally to all people, including people of color, women and native Americans.
That includes the legacy of slavery. That indelible stain marked the soul of Thomas Jefferson. He and his work were flawed. This is so for all of us sinners. We can seek reconciliation. We can ask and give forgiveness.
In constitutional democracies, laws are written and sculpted in the past, stretched to meet the present and already late for the future. Ultimately, they are laws “by, for, and of the people” and require the consent of the governed.
Consequentially, democracy is a dynamic symphony in which free people play their legally scored parts in harmony, organized dissonance and even improvise around the theme, beat and key of previously composed laws. They are free to do so until they yield their rights and the vibrant sometimes jarring music of democracy ends.
In order to keep our democratic republic, it is imperative that we do a better job to educate people and demonstrate by our own conduct how our democratic way of life and imperfect form of government are supposed to work.
Remember, every lawyer is both a teacher and a lifelong student of law. We are blessed with good reason to have hope and faith that we have the right stuff to defend and sustain the liberties that so many people have worked for so long and so hard and often at such great personal sacrifice to preserve.