Law Day is Tuesday, May 1.
Law Day was invented as a Cold War-era response to May Day. It was first observed in 1958; the date was recognized by statute in 1961.
Area lawyers have received a special issue of the
Chicago Daily Law Bulletin every year just in time for Law Day, but other than that I can't think of too many ways in which Law Day has been celebrated in this country.
I think that's a mistake.
Forget about the Cold War origins of the day, or that Law Day was set up to compete with May Day for the hearts and minds of future American workers. Law Day has been set aside to commemorate the importance of law in America, and there's nothing more important than the law in the development and history of our nation.
To talk about the singular import of law in America is to acknowledge American exceptionalism. The so-called doctrine of American exceptionalism has more or less been hijacked by some on the political right in this country, to justify all sorts of behaviors, interventions, or attitudes. (For example, the attitude that 'we need not join with other nations in international agreements because we are different from – better than – other nations.')
But, if that's what you think of when you think of American exceptionalism, you're just wrong, wrong, wrong.
What makes America the exceptional nation is the way the law binds us together as a people.
All countries have laws, of course. But every other nation on the earth has been defined in terms of a particular people in a particular place. A motherland. A fatherland. And the people there? All one tribe. All one ethnicity. No outsiders need apply. So after the fall or Rome, we find all sorts of Franks gathered in former province of Gaul, and
voilà, we have the Frankish kingdom. And, 1,500 years later, we have France -- and North Africans segregated in French ghettos unable to meaningfully assimilate into the French nation, unable to hope for full participation in the life of their adopted homeland.
A westerner can live in Japan. He can learn Japanese. He can eat Japanese foods. If he can hit a curve ball he may even become a hero to Japanese baseball fans. But he can not become Japanese. He will always be a
gaijin. In the current issue of the
Wilson Quarterly, in an article entitled "Japan Shrinks," Nicholas Eberstadt observes that, in 2009, Japan naturalized only one-third as many new citizens as Switzerland. And Switzerland has "a population only six percent the size of Japan's and a reputation of its own for standoffishness."
America is different; we can not be pigeonholed as a particular people living in a particular place. America itself has been a dynamic nation, growing by leaps and bounds from the original 13 Colonies, and a citizen from Massachusetts is no more an American than any citizen from Alaska, Hawaii or California.
Of course, George Washington, in his Farewell Address, wrote that his fellow Americans "have the same religion, manners, habits, and political principles," with only "slight shades of difference."
Washington had his reasons for stressing unity -- in his time he would not have seen any reason to 'celebrate diversity' -- but what he said about all Americans having only 'slight shades of difference' wasn't all that true in 1796 and it certainly has gotten less and less true in the centuries since.
Except in the area of political principles.
As Jefferson wrote in the Declaration of Independence, "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed." Or, as Lincoln paraphrased the Declaration of Independence at Gettysburg: "Four score and seven years ago, our fathers brought forth on this continent a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal."
As John Adams wrote in the Massachusetts Constitution, in America, our Founding Fathers formed "a government of laws and not of men."
One's original tribe, or nation, or people -– none of that is important to becoming an American. A person can come to America and -- if he or she embraces these foundational principles -- he or she can realize their greatest individual potential. The only limitation we put on the foreign-born is that they can not be President of the United States. But the son of a man from Kenya can become President.
Just before his death in 1919, Theodore Roosevelt wrote, "we should insist that if the immigrant who comes here in good faith becomes an American and assimilates himself to us, he shall be treated on an exact equality with everyone else, for it is an outrage to discriminate against any such man because of creed, or birthplace, or origin."
I realize that America has not always treated immigrants fairly -- and that not all immigrants have at all times and all places been fully welcomed into the American mainstream. Nevertheless, these are our ideals. Even if we have not always -- even if we have not often -- been perfect in our observation of and adherence to these principles, is that an intelligent basis upon which to reject our ideals altogether?
I get tired of cultural relativism, the idea that we're 'just as bad' as everyone else. In the summer of 2010, for example, you may recall the media circus over the proposed construction of the so-called 'Ground Zero Mosque.' Yes, there were loud, emotional protests. Bigots bellowed, but it wasn't just know-nothings and right-wingers. Some relatives of persons killed in the September 2001 attacks thought that the proposal was a provocation or, at best, insensitive.
But no house of worship, of any denomination, gets built anywhere in this country without some controversy. Any property on which a church is built comes off the local tax rolls, and somebody always has a question about parking or traffic. And there's often whispers about what might happen after the church is built. What happens later on if Fr. Murphy decides to open a soup kitchen or the Rev. Jones decides to make her sanctuary a sanctuary for the homeless, too?
You can tsk-tsk all you want about how opposition to church or synagogue or mosque-building is narrow-minded, selfish, even bigoted. But, please, tell me -- how do I find the Roman Catholic Cathedral in Riyadh?
Oh, wait, open Christian worship is
illegal in the Saudi kingdom. In 2008 there were some 800,000 Catholics in Saudi Arabia, mostly Indian and Filipino guest workers,
and not a single Catholic church to minister to their spiritual needs. A Saudi who converts to Christianity is courting death as an apostate. (And, remember, these are our gallant Saudi allies, not the Taliban.) Meanwhile, Wikipedia says that
a 4,000 square foot Islamic community center opened at the 'Ground Zero Mosque' site in September 2011, and that the developer still hopes to go forward with plans for the 13 story building originally proposed.
Our "intolerance," though real enough, is a pretty weak strain, compared with the varieties found elsewhere in the world. Just today, according to this Reuters report,
carried on the Huffington Post, gunmen opened up on Christians worshiping in a university lecture hall in the northern Nigerian city of Kano, killing 15 and wounding many more. According to the article, "Radical Islamist sect Boko Haram, which wants to carve out an Islamic state in northern Nigeria, has killed hundreds in bomb and gun attacks this year." No group has yet claimed responsibility for this attack, however, the article reports.
Christians worshiping in the Kenyan capital of Nairobi were attacked during a service by a grenade throwing man who had disguised himself as a congregant,
according to another Reuters article posted today by the Chicago
Tribune. The article says one man was killed; 16 other persons were injured. Again, no group has claimed responsibility, but the article reports that al-Shabaab, a Somali group that has ties to al-Queda, is angered by Kenyan intervention in support of the Somali government, which al-Shabaab is trying to overthrow.
No one can deny that we have our problems, but America really is an exceptional country.
Where else in the world can the mere embrace of certain 'self-evident truths' even potentially make you a fully integrated member of society except in America?
What makes America unique –- exceptional -– is that we are bound by our shared embrace of principles, not by kinship or religion or blood.
In other words, we are bound by law. By laws.
Thus, Law Day, whatever its artificial origins, should be -- and is -- a big deal.
And Law Day is a particularly appropriate time for us to remember and reflect upon the dangers confronting American belief in the rule of law –- which, as I’ve tried to show, ultimately, is our common, unifying thread as a people.
When we say we believe in the rule of law, we mean that we should be obedient to the law. We should respect and obey the law.
That has not always happened. Prohibition, for example, was a great American tragedy on many levels, and we here in Chicago suffer particularly from the legacy of Prohibition. But the Volstead Act was unevenly enforced (or not enforced at all) in American cities generally. It was not just thirsty urban working people and the bootleggers who supplied them that defied the law. Many in the upper classes thought the law was meant to apply to their workmen –- but never to them. As a law that could not be enforced, and was not enforced evenly –- as a law that a significant portion of the American people routinely ignored -– Prohibition undermined Americans' respect for the law generally.
There are a number of other, subsequent examples of this, perhaps not all as uncontroversial as the Volstead Act. But I suggest that, whenever we pass a law that we do not mean to enforce, or that we can not enforce evenly and fairly, we undermine respect for all laws –- and thereby jeopardize our national unity and, ultimately, our freedom.
Law Day is a good time to remember that we should encourage the passage only of laws that can be uniformly and fairly applied and enforced.
But although we say we want people to respect our laws, we also know that unthinking blind obedience to the law can itself be a great evil.
We have just finished our national observation of the
Days of Remembrance, the days set aside by Congress each year to reflect upon the Holocaust.
One thing that has often struck me about the Nazis is how the Hitler regime papered over every outrage with a figleaf of legality. Hitler came to power in a legally constituted coalition government. There was a law passed to grant Hitler absolute power as dictator. The dissolution of the Reichstag was "legal." The persecution of Jews was all done under color of German law. Even the death camps were "legal" under German law. How many Nazis stood in the dock at Nuremberg claiming apparently genuine confusion that they should be prosecuted for following orders –- for simply following the law?
But those laws were evil. They violated basic norms of human civilization. They were certainly not worthy of anyone's respect.
That may be the most extreme illustration possible but perhaps it serves as a useful reminder of how blessed we are to live in a country with a constitution, a constitution that is deliberately difficult to amend.
And our Constitution provides a means of keeping a runaway legislature in check. At least since
Marbury v. Madison in 1803, our Supreme Court has had the power to declare laws "unconstitutional," even ones that are passed by a "strong majority." My fellow Chicago attorney -- I won't name him, so as not to embarrass him -- was thus flat out wrong when
he said recently:
Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I'd just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint -- that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I'm pretty confident that this Court will recognize that and not take that step.
My fellow Chicago attorney feels quite strongly about the passage of a law that may become emblematic of the success or failure of his administration for generations to come. I express no opinion about that law here, and certainly no prediction about how the Supreme Court will assess that law. But it is important to remember that, in this country, no law, no matter how popular, or passed by how large a majority, can survive if it violates our Constitution. While we may disagree in good faith on particular cases, the principle itself is a wonderful thing, and part of what makes America exceptional.
Law Day is a good time to remind ourselves that the mere fact that a law has been passed by Congress or the General Assembly does not itself make that law either constitutional or worthy of respect. When we ask people to respect the law, we must always remember, in return, to make only laws that we, in good faith, believe to be constitutional -- and worthy of respect.
And one thing more -– in order to follow the law, in order to maintain our national respect for the law, our laws must be reasonably simple and understandable.
Americans who joined wagon trains heading west could carry with them only a few cherished possessions with which to start building their new life. If settlers brought with them only one book, it was probably a Bible. But if they brought two books, the other was probably a statute book -– all the laws of their state or territory compiled in a single volume.
There's no such thing as a statute book (book, singular) these days.
We've only just passed the end of this year’s tax season, so let's use tax law as an example. It appears to be a fact that the Internal Revenue Code now amounts to some
3.8 million words, more than four times the
roughly 900,000 words that Shakespeare needed for every one of his known works –- all the comedies, all the tragedies, all the histories – even the sonnets.
We who are interested in politics and policy talk about taxation and who should pay what, and how the burden of taxation should be distributed but, sad to say, for the most part, we're all speaking from ignorance. I would go so far as to say that there is no one CPA or tax lawyer who has mastered each and every detail of the tax code -- and, even if such a triumph were possible, it would be of fleeting duration. The tax code will change next year. It changes every year.
I’m not picking on tax laws for anything other than seasonal reasons. The point is that our laws generally have become so cumbersome, so unwieldy, so specialized, so picayune, that it is impossible to claim knowledge of them all. We used to say that ignorance of the law is no excuse. But why isn't it? Lawyers don't always know the law; judges don't always know the law.
We lawyers laugh it off by saying 'that's why we call it practice -– because we never quite get all of it' – but it’s not really a laughing matter.
For a society where law, not blood, is the sinew that binds us together, the growing opacity, complexity and prolixity of our law is a real problem. How can we maintain our national unity through law, when the law which binds us together as a people becomes a more impenetrable mystery in each passing year? There is an increasingly urgent need to simplify and streamline our law so that it can continue to be worthy of the people's respect. That which can not be understood can surely not be applied fairly or evenly.
So Law Day really is a big deal for all of us. Don’t let it slip by unnoticed! We all have a part to play in helping insure that the United States will remain a nation of laws -- for ourselves and for our posterity. What will you do?
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