The purpose of legal education and the profession of law is to advance justice — the end of government and of civil society, as James Madison, father of the Constitution, instructed in Federalist 51. As gifted Harvard Law School enrollees, that devotion to justice in lieu of power, wealth, or celebrity is imperative. The Bible instructs, “To whom much is given, much will be required.”
During your legal education, always ask why a rule or doctrine exists before proceeding to its how of application. The law itself is morally flabby, and hormonally gravitates towards rewarding rather than challenging the prevailing distribution of power. Anatole France thus satirically observed, “The law in its majestic equality forbids the rich and the poor to sleep under bridges, to beg in the streets, and to steal loaves of bread.”
You should expect to encounter numerous legal doctrines that reflect the brutish principle that the strong do what they can and the weak suffer what they must. Take the doctrine of sovereign and presidential immunity. The American Revolution was fought to overthrow the tyrannical British doctrine as enshrined in Blackstone’s Commentaries that the King can do no wrong: “The King is not only incapable of doing wrong, but of ever thinking wrong; he can never mean to do an improper thing.” Thomas Paine, voice of the American Revolution, answered in Common Sense: “For in absolute governments the king is law, so in free countries the law ought to be free; and there be no other.”
Yet the doctrine of sovereign immunity as expounded by the Supreme Court of the United States generally prohibits damages suits against the federal government without its consent, including assassinations, torture, or kidnappings (with the exception of taking property without just compensation). Sovereign immunity turns law from an instrument of justice to an engine of injustice. A companion unjust doctrine declared by the Supreme Court of the United States in Nixon v. Fitzgerald shields the president from suit for damages for any presidential act, including playing prosecutor, judge, jury, and executioner to kill any person, citizen or non-citizen alike, based on secret unsubstantiated speculation that the target might threaten the national security in the future. This lawless power took the life of the teenage son of Anwar Al-Awlaki vaporized by a predator drone in Yemen while eating dinner in an outdoor restaurant at the order of President Barack Obama, former President of the Harvard Law Review, on October 14, 2011.
A companion to the sovereign and presidential immunity injustices is the state secrets doctrine. It leaves victims of assassinations, torture, kidnappings, wrongful detentions and other constitutional transgressions perpetrated by government officials or contractors without judicial redress if proving their cases would disclose state secrets, that is, anything the government secretly shares with the court that is said to carry the potential to disturb foreign policy or national security, notwithstanding the government’s notoriety for chronic lying. Remember weapons of mass destruction in Iraq, a second torpedo attack in the Gulf of Tonkin, and a racist-inspired claim of Japanese-American sabotage or espionage during World War II to justify herding 120,000 loyal, innocent civilians into concentration camps, among countless other prevaricate examples. HLS superstar and Assistant Secretary of War John McCloy dismissed the Constitution as “a scrap of paper.”
You are entering law school during the greatest constitutional crisis in the nation’s history featuring a President whose counter-constitutional incantation is, “I have an Article 2 where I have the right to do whatever I want as president.”
The Constitution — the crown jewel of our unity, history, and liberties — is off life support. Your duty is to give it a new birth out of gratitude for our heroic ancestors or forbearers and out of obligation to posterity.
Here is a small sample of evidence that the Constitution is dead:
The President, extending the records of many predecessors, has usurped the congressional war power inflicting unspeakable killings and cruelty around the world, squandering trillions of dollars, and crushing liberty at home. The Constitution’s framers unanimously agreed that only Congress could take the nation from a state of peace to war because the President would manufacture national security crises to aggrandize power and secure a place in history. The United States is now bogged down in unconstitutional presidential wars in Libya, Somalia, Yemen, Syria, Iraq, Afghanistan, and Pakistan, with Iran looming on the horizon.
The President has usurped the power of the purse spending billions of dollars to build a wall with Mexico that had not been appropriated for that purpose in violation of the Appropriations Clause and the Anti- Deficiency Act carrying criminal penalties.
The President has usurped the treaty power, making and revoking treaties without a two- thirds Senate majority.
The President has usurped the power to tax, suspending collection on his say-so alone.
The President has flouted his obligation to take care that the laws be faithfully executed, including multiple obstructions of justice and turning the White House into a crime scene with daily violations of the Hatch Act’s prohibitions on commandeering federal employees or government property to influence the outcome of an election.
The President has circumvented the Appointments Clause by appointing principal officers of the United States without Senate confirmation.
The President has thwarted congressional oversight of the executive branch indispensable for remedial legislation and deterrence of fraud, waste, and lawlessness by defying hundreds of congressional subpoenas and formal demands for testimony from Executive Branch officials.
The remedy for such presidential subversions of the Constitution is impeachment, conviction, and removal from office, the civilized substitute for tyrannicide according to Benjamin Franklin, delegate to the constitutional convention. Articles of impeachment were voted by the House Judiciary Committee against President Richard Nixon for obstruction of justice and flouting a congressional subpoena, which forced his resignation in the face of certain conviction.
What does that mean for your HLS Education?
It means petitioning for classes or seminars on the subset of impeachment of the President, Vice President, and principal Executive Branch officials.
It means petitioning for classes or seminars on congressional powers and derelictions based on how raw power and personal ambitions find expression in congressional nonfeasance and cowardliness, contrary to Members’ oaths to uphold the Constitution
It means tailoring your learning and endeavors to optimizing justice and the rebirth of the Constitution, sometimes at the expense of your personal ambitions. That is the expectation of the profession.
There is no higher calling.