President’s Message: Lucky Number 78

Dear Members:

The theme for this issue is International Law. Therefore, I thought it fitting to discuss the very quality that makes our American judicial system the envy of the modern world, an independent judiciary. The precursors of what became our three separate, but co-equal branches of government can be found in Alexander Hamilton’s 1788 Federalist 78. It was in this paper that Hamilton discussed the essential need for an independent judiciary to safeguard the soon-to-be-ratified constitutional rights of our fledgling country. Hamilton wrote:

This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. THE FEDERALIST No. 78 (Alexander Hamilton).

It should come as no surprise that at least part of this sentiment predated Hamilton and can be found in Shakespeare’s 1591 Henry VI, Part 2. In Henry VI, Act IV, Scene II of Part 2, the dastardly character Dick the Butcher, in furtherance of his rebellion against King Henry, decrees, “The first thing we do, let’s kill all the lawyers.” WILLIAM SHAKESPEARE, Henry VI act 4, sc.2, l. 2. Overtime, as our collective memory faded, many incorrectly presumed Shakespeare’s hatred for the legal profession. However, history indicates that Shakespeare likely intended this statement to be a compliment to lawyers. It was believed that so long as lawyers existed to protect the rights of those who would be disenfranchised, institutional efforts to quash liberty would not be possible. Justice Stevens also discussed this Shakespearean quote in his written dissent of Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305 (1985):

Dick’s statement (“The first thing we do, let’s kill all the lawyers”) was spoken by a rebel, not a friend of liberty. As a careful reading of that text will reveal, Shakespeare insightfully realized that disposing of lawyers is a step in the direction of a totalitarian form of government. Walters, 473 U.S. 305, 371 n. 24 (Stevens, J., dissenting) (internal citation omitted).

And so it goes that our separate, but co-equal judicial branch (and the lawyers that participate in the business of the judiciary) are what make our modern legal system the envy of the world.

Now, I would be remiss if I did not note that I am writing you this message soon after an alarming rise in negative public rhetoric about our federal judges, who are valued members of our organization. You do not have to look far to find some news article reporting on the ever-increasing divide in our country, which unfortunately now impacts our judiciary. Throughout history, nearly every generation of Americans have declared that the societal problems under which they toil are unique and the “first” of their kind. This generation is no different. The purpose of this message, however, is not to call into question the veracity of this belief, but rather to reinforce that our divisiveness is not new. Indeed, it is this divisiveness that has made our country what it is today.

While each generation’s challenges may be different, I believe that we, as a country, have been here before. Without question, our nation has endured through numerous periods of political division, but we nonetheless persisted. We survived the atrocities of slavery and the Civil War. We survived the heightened economic inequality and political violence of the Gilded Age of the early 1900s. We survived McCarthyism in the 1950s. We survived the significant political strife brought about by the Vietnam war and Watergate in the 1960s and 70s. The list goes on and on.

So, what distinguishes us? What has allowed our modern form of government to survive when other countries have failed? Personally, I believe it is our unique and balanced form of government, providing for the three separate, but co-equal branches. In particular, I believe the independence of our judiciary has helped us through the difficult times of our country’s past and will assuredly shepherd us through our difficult present.

One of the cornerstones of our democracy is respect for the rule of law and the preservation of an independent judiciary. The Federal Bar Association remains committed to protecting these pillars of our constitutional government and to that end continues to work to obtain funding for judicial security and to respond to the federal caseload crisis in many courts through enactment of legislation aimed at creating sorely needed new judgeships in many districts and states. I am hopeful that as our government tackles current challenges, respect for the rule of law will remain undiminished and the processes that helped define our society will continue unabated.

Until next time,
Glen R. McMurry
Federal Bar Association National President