The presidential election of 2016 ended with a stunning upset. The result left many people concerned about the future. As a law professor, I think I have a special responsibility to think about those concerns, because my students are becoming lawyers at a time when our nation may need lawyers more than ever.
This fall, I’ve taught a small group of first-year students. We’ve worked on much more than civil procedure doctrine; we’ve worked on lawyering. Students have to attempt uncomfortable arguments, analyze in unaccustomed ways, write “like lawyers,” and attend to details of facts and procedure.
Before the election, I’m not sure I’d explained why lawyering matters. As John Adams said in 1780, this is “a government of laws and not of men,” that is, a government of laws and not of individuals. If, as many fear, President-Elect Donald Trump acts as though he does not understand what a government of laws means, we can despair, or we can do what lawyers do: use our power to keep government within the law and not use government power in pursuit of individual gain or to injure some groups while helping others.
Law students sometimes lack an appreciation for the primacy of law. When we examine the Constitution, some are surprised that Article I is about the Congress, the body charged with enacting laws. Article II concerns the executive branch, which is charged with carrying out the laws. While students (and many lawyers) think the courts are more important, we only hear about them in Article III. The creation of law comes first; execution, interpretation and enforcement come later.
The idea that federal government officials use their power solely as authorized by the Constitution and by laws enacted by Congress is plainly an aspiration and not always the reality. The smaller the gap, the more confident people feel that we are protected from government going awry.
Students in civil procedure read many cases in which government goes awry, starting with Pennoyer v. Neff. The Supreme Court said no when a court allowed a plaintiff to use government power to limit a defendant’s rights in his property without giving the defendant notice in advance. Even a court is not permitted to use power except consistently with the law. No government official or government institution is permitted to act illegally – not the president, not the Congress, not a judge, and not a police officer.
Over the course of my career, my colleagues and I have frequently had to insist that government officials act legally. Some of these officials have been Democrats and some have been Republicans, but all are subject to the law. We’ve argued and won child custody and family violence cases by demanding that the judge decide the case based on the law and not out of gender bias. We’ve persuaded courts not to convict a defendant unless the state has demonstrated beyond a reasonable doubt that the defendant is guilty of a crime. We’ve forced state government agencies not to deprive poor people of Medicaid when federal law says that Medicaid is due.
Because we are a government of laws and not of individuals, people can be asked to believe that government officials try to act within legal boundaries. When government fails, people have the right to demand an end to illegality.
What do law students need to know about lawyers, law and power? My students learned from Buffalo Creek that residents of a flooded valley believed they would never be compensated for their devastating losses. They were convinced that the coal company which caused the flood possessed all the power and that they would be denied justice.
Some residents asked a lawyer to help. Why a lawyer and not a minister or a legislator? Because the lawyer’s job is to make the system work for all, to insist that we have a government of laws, not of individuals. That kind of government is fair and unbiased. Under that kind of government, a coal company cannot make courts to do whatever is good for the company, regardless of law and facts. With the help of a lawyer and his firm, the residents won, and the coal company lost.
Imagine that you are an African-American who has concluded from this presidential campaign that nobody is standing up for you. When you say that racism is behind police killings in your community and that your right to vote is attacked because of racism, you are told that only racists accuse people of racism. Imagine that you are an immigrant or a refugee. You are told you don’t belong here, and you are told that you will be thrown out. Imagine that you are a woman who objects to being groped and demeaned. You are told you are overly sensitive and that nobody does those things; they just talk about them. Imagine that you are Jewish or Moslem. You are told that you cause more trouble than you are worth to this society. Imagine that you are disabled. You are told that you are a freak who can be mocked with impunity.
I am not imagining these threats. What prevents people from concluding that our next group of government officials will not be scrupulous about fighting the threats and complying with the law? What hope do people under attack have in the aspiration that this is a government of laws and not individuals?
As lawyers-to-be, my students need to understand that they will have power to share. As lawyers, we are entrusted with knowing the law. We see when government officials are overstepping their boundaries. We can help educate the public, we can offer help, and we can put our knowledge and skills to work. I hope my students have learned some lawyering this semester. Even more important, I hope they appreciate the power of lawyers to enhance the lives of others who need our nation to have a government of laws and not a government of individuals.