What happens when the rule of law increasingly bows to the whims and violations of unaccountable public officials?
In the United States, we are seeing the rule of law eroded by those at the top levels of our government. We are witnessing the dismantling of the guiding principles of justice and the rule of law. Our legal system has been gamed to preferentially serve the needs of the few rather than those of the many.
The rule of law should be a persistent guard against -- rather than an instrument of -- unfair advantage or injustice for those with power, money and influence.
Our elected officials have failed in their duty to uphold the rule of law. This malfeasance has led to secret law, secret courts, secret evidence, secret budgets and secret prisons under the guise of "national security." There is surveillance of attorney-client communications, unauditable secret expenditures for foreign military exploits, dragnet snooping of electronic and telephone data and even redacted published judicial decisions.
Habeas corpus has been tarnished by the inhumane and unjust treatment of prisoners in Guantanamo Bay including many already cleared by the government but still jailed. Infinite detention has tarnished our legal system. Some dictocrats even argue that American citizens should be subjected to indefinite imprisonment.
Drone attacks in foreign nations are justified by secret legal memos. The president, without any Congressional authorization, can target any "suspected terrorist," including American citizens.
Who has the power to stop this descent into a nation of reckless leadership and lawlessness?
The million lawyers of America do. Lawyers know how to apply law to power. They know how to use the courts and how to lobby. They can cut through the jungle of legalese. They know when the laws are being violated and the remedies for the victims. They know how to draft legislation. They have contacts and resources. It's only a matter of more of them utilizing these powerful tools.
Being a lawyer is about much more than billable hours. Consider the differentiation of the terms lawyer and attorney. An attorney represents their clients; they represent the more vocational side of the law. It is this side of the legal profession that is driven by the big-client imperative, those profitable corporate industries that dominate the time and talent of many in the legal field.
On the other hand, a lawyer represents the professional side. A lawyer's duties extend beyond the needs of their clients to the vital needs of the public interest and the justice system. Lawyers are deemed "officers of the court." They can and should be sentinels and guardians for the just rule of law.
Although law school curriculums have improved greatly since the 1950s -- when they were largely shaped by the job market and business interests -- there is still an immense need for law professors to instill idealism in their students.
Three points every current law student should take to heart.
1. You can act as a positive force in society as a lawyer. A lawyer's role can be to advance systems of justice, to enlarge the peoples' access to justice and to improve the administration of justice.
2. You can make a difference to society today as a law student. Find a public cause and devote some time to advancing justice.
3. Do not allow law school to break your idealism. The legal profession will tempt you with money and the illusion of prestige. Our country needs more lawyers working to preserve the rule of law, rather than serving clients who subvert it.
Being a lawyer should include public service. Our nation is in dire need of more lawyers speaking out to uphold their oath of office and working to restore constitutional authorities and legal facilities and boundaries.
The million-plus practicing lawyers and their many bar organizations should be on the ramparts defending against the insidious rejection of due process, probable cause, habeas corpus and privacy that come out of our Constitution.
(Autographed copies of my latest book Told You So: The Big Book of Weekly Columns are available at Told-You-So.com)