The future is not ours if we do nothing to safeguard it
The former lawyer looked out past the grimy tent flap fluttering in the wind. A keening arose a few structures over – another shantytown resident hadn’t made it through the night. Starvation? The disease? The lack of desire to go on? Who knew. So much death in the camp… and too little opportunity to take care of anyone but oneself. If the former lawyer didn’t hurry to the line, the troopers would come around to provide “motivation.” That was the last thing the former lawyer wanted. The “motivated” rarely lasted a day. As the former lawyer thought back to life before all this, it seemed staggering how the country turned so quickly.
This column focuses on the legal practice. Today we examine the aegis under which we practice – our attorney oath and our duties. An important concept, as our democracy faces a looming constitutional crisis. California Rules of Court Rule 9.4 reads in part, “I solemnly swear that I will support the Constitution of the United States…” (Emphasis added.) Attorney oaths vary from state to state but share a commonality – a commitment to support the Constitution. What does support mean? Edmund Burke stated that the only thing necessary for the triumph of evil is for good people to do nothing (not a direct quote since I fixed a gender issue in it for Mr. Burke.) Supporting the Constitution in the immediate future will be neither academic nor armchair support. It will be hard-fought; in the courts, in the court of public opinion, on the streets, and in the halls of power.
Everyone has their calling in this democratic fight. Some form up as Walls of Moms to separate troops from protesters. And some defend the Constitution using the skills learned during their legal practice. That will be our duty as we go once more into the breach, attempting to contain an autocratic power grab before it rends our Constitution asunder.
States of exception
What is a state of exception? It is a notion put forward in the 1920s by Nazi theorist Carl Schmitt. It is the idea that the rule of law can be transcended for the public good. A pandemic exists? We should delay the presidential election then (even though it has never before been delayed – not during world wars, not during the Civil War.) People are tearing down Confederate statues? We’ll issue an executive order protecting them, along with federal buildings and monuments, and then use that as a reason to deploy federal troops domestically.
Lawyers are well positioned to confront states of exception. For inspiration, look to what lawyers have done in the past. When borders were closed to Muslims, lawyers showed up at airports and in court to fight. When protesters headed into federal trooper-controlled zones, they inked National Lawyers’ Guild phone numbers on their forearms in case of arrest. When polls were closed and voting rights threatened, lawyers used the law and the courts to make sure voting rights were not suppressed. When all else fails, we lawyers can join the picket lines just like anyone else – although a Wall of Lawyers may not yield the same result as a Wall of Moms…
Not every Constitutional protection requires big action, however. We are trained in the art of persuasion. So, persuade. Persuade people that if they want to remain free, a President-for-Life is not freedom. A government whose definition of law and order consists of deploying federal troops, troops who ignore the states’ demands that the troops leave – that government comes for the citizens’ guns next. That government ignores states’ rights. Regardless of your beliefs on gun ownership, abortion, social justice, or what have you – a dictatorship takes away all debates, all rights, all freedoms.
Back to our former lawyer. Every night, that former lawyer thought about the actions that could have been taken and weren’t. An old quote shook the former lawyer every time it rose from the murk of a muddied mind.
First they came for the socialists, and I did not speak out – because I was not a socialist. Then they came for the trade unionists, and I did not speak out – because I was not a trade unionist. Then they came for the Jews, and I did not speak out – because I was not a Jew. Then they came for me – and there was no one left to speak for me.
Martin Niemöller’s quote about inaction during Nazism’s rise shook the former lawyer because things could have been different. A person is like a rivulet. As those rivulets come together they become a stream, and with more, then a river. And more, and more, until a flood sweeps through, a flood with the force necessary to sweep evil from the land.
We know what our future could be if we do nothing. We know how to prevent it. We are sworn to support the Constitution. Our time is now. What are you going to do this week to support your oath?
Miles B. Cooper is a partner at Emison Cooper & Cooper LLP. He represents people with personal injury and wrongful death cases.
In addition to litigating his own cases, he associates in as trial counsel and consults on trial matters. He has served as lead counsel, co-counsel, second seat, and schlepper over his career, and is a member of the American Board of Trial Advocates. Cooper’s interests beyond litigation include trial presentation technologies and bicycling (although not at the same time).
2020 by the author.
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