Defending the Rule of Law

Today I read a commentary from a lawyer named Elden Rosenthal in a publication of the Southern Poverty Law Center. It is one of the most poignant expressions of the importance of the rule of law that I have read.

According to the publication, Rosenthal is an attorney in Portland, Oregon and a member of the SPLC Board of Directors. In 1990, he served as co-counsel in the SPLC's lawsuit against a white supremacist and neo-Nazi leader after the beating death of an Ethiopian student. He writes of how the defendant's closing argument to the jury (which the defendant delivered pro se) reminded him of the rhetoric that preceded the Holocaust.  Now, almost three decades later, he hears similar rhetoric coming from the current administration in Washington. In both cases, the neo-Nazi then and the administration now, attacked lawyers, blaming them for the worsening economic conditions of white Americans.  He writes:

Make no mistake about what is happening right now in America.  White nationalism is a growing political movement, and at the moment the movement has a firm toehold in the executive branch of our federal government. It is manifest in the ICE detention centers and in the immigration courts. It is manifest in decisions being made weekly by the Trump administration not only regarding immigration, but also in areas such as education and law enforcement.

Mr. Rosenthal challenges the popular belief that white nationalists cannot take over our country, i.e., that what has happened in other countries can't happen here. Given some of the racist episodes that have marred our national history, he calls for vigilance in combatting officially sanctioned racism.  Mr. Rosenthal points to the rule of law as "[o]ne of the redeeming threads that runs through American history," and something that must be adhered to in our present time. He concludes:

There is a political sea change and a sense of violence in the air. It is a potentially dangerous time. What has happened elsewhere when democratic values were overwhelmed by misguided leaders can happen here. The rule of law is our best protection against the darkness on the horizon.

Mr. Rosenthal's words ring true, and I commend his complete commentary to those who can find it. (I briefly searched for an electronic version online with no luck.) Those of us who are lawyers, as well as our clients, depend on the rule of law for our livelihoods. We assume, as we should, that legislatures will pass laws which courts will enforce, just as courts will enforce the federal and state constitutions and lawful contracts among private parties. That assumption is the basis on which our entire society, and our entire economy, is built, yet it is easy for us to take it for granted. Imagine what our country would be like if it were not so - if those in power could simply impose their will on the masses without courts to hold them to legal norms and lawyers to urge the courts to do so. We would live in chaos, our economy would falter, and our liberties would be curtailed. Those most at risk - minorities, the poor - would be threatened by what in the 19th Century was dubbed "the tyranny of the majority." In America's currently fractured state, the more apt phrase might be "the tyranny of the plurality."

In these perilous times, it is incumbent on us lawyers to defend the rule of law at every turn and in myriad ways. We must speak out when it is threatened, educate non-lawyers about it, support organizations that defend it, and support pro bono legal work that puts it in action. We are fortunate that we continue to have an independent judiciary that, with a fair measure of consistency, upholds the rule of law. Only sustained vigilance will preserve it.