Law Day reflections

OPINION:

It was 50 years ago this month that president Dwight Eisenhower proclaimed the first “day of national dedication to the principle of government under law,” or Law Day, as it’s become known. A barely recognized holiday that breezes past as we’re more focused on that highly regarded Monday-off for the first unofficial day of summer. But just as Memorial Day commemorates the military men and women who died in service to our country, it is also fitting to pay homage to the laws that preserve the freedoms they fight for.

As Mr. Eisenhower stated in his proclamation: “I especially urge the legal profession, the press, and the radio, television and motion picture industries to promote and to participate in the observance of that date [Law Day].” From the press standpoint, I am using the power of the pen to do just that. And in doing so, I want to make a few observations about where we’ve come as a nation of laws. The study of law is a fascinating one for me. It was my undergraduate minor and while I haven’t attended law school, my favorite law course was (surprise) Constitutional Law. I am in awe of the Founders and our history as a nation. I’ve also been impressed as of late that a few of our Supreme Court justices have made themselves uncharacteriscally available for press interviews (okay, so they have books to sell).

The first laws given to govern man’s conduct, of course, were the Ten Commandments. While still accessible in public places, the present-day arguments over their display couldn’t be more disappointingly contentious. Those who crafted our laws were guided by the same principles you find in the Ten Commandments (e.g Thou Shalt Not Kill), in developing our own system of rules for a free and democratic society. “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.” The Federalist Society sums it up quite poignantly: “The architects of our nation took great care to constitute a limited government founded on personal responsibility and individual liberty.”

It is also worth observing that our current structure of law is a derivative of the systems established throughout the Bible. Romans 13:1: “Let every person be in subjection to the governing authorities.” And the law envelops every fabric of our society, as the liberal French politician Alexis de Tocqueville observed: “Sooner or later almost ever interesting or controversial question becomes a legal one.” We’ve certainly seen our share of controversial decisions that, though rare, inevitably make their way to the High Court. Capital punishment is one recent example. Also rooted in a Biblical foundation, it was recently reaffirmed by the Supreme Court, when it upheld Kentucky’s lethal injection process (Baze v. Rees). Scripture reference of Exodus 21:12 [Amp] states: “Whoever strikes a man so that he dies shall surely be put to death.” And Numbers 35:16 [Amp] states: “But if he struck him down with an instrument of iron so that he died, he is a murderer; the murderer shall be put to death.”

Justice Clarence Thomas’ concurring opinion to Baze stated that: “[A] method of execution violates the Eighth Amendment only if it is designed to deliberately inflict pain.” And while ultra-conservative Justice Antonin Scalia also concurred, to the chagrin of many conservatives (myself included). Mr. Scalia, the “originalist,” says he considers the death penalty “irrelevant” today. He explained in a recent television interview that that was the only penalty at the time of the law’s framing, so it made sense then. And his concurring opinion reflects the apparent paradox: “I take no position on the desirability of the death penalty, except to say that its value is eminently debatable and the subject of deeply, indeed passionately, held views — which means, to me, that it is preeminently not a matter to be resolved here. And especially not when it is explicitly permitted by the Constitution.” I say, what was good then, is just as good now. If it was good enough for God, it’s good for me.

This is the Law’s current conundrum. Despite Justice Scalia’s misgivings about its “relevance,” it is imperative that the justices follow the letter of the law. As originalism affirms, the Constitution has a fixed and knowable meaning, which was established at its time of drafting. Hyperbole aside. Preservation is the principal component to our set of laws. The only question before the Court is: “You ask what did it mean by the people who wrote it,” says Justice Scalia. A similar response offered by Justice Thomas to an interviewer earlier this year: “My job is to write opinions. I decide cases and write opinions. It is not to respond to idiocy and critics who make statements that are unfounded.” Truer words were never spoken.

While you may have missed the May 1st commemoration of Law Day, it’s not too late to embrace Mr. Eisenhower’s proclamation: “It is fitting that the people of this Nation should remember with pride and vigilantly guard the great heritage of liberty, justice and equality under law which our forefathers bequeathed to us; and it is our moral and civic obligation as free men and as Americans to preserve and strengthen that great heritage.”