GOVERNOR MARIO M. CUOMO RECIPIENT OF THE
FEDERAL BAR COUNCIL’S EMORY BUCKNER MEDAL
FOR “OUTSTANDING PUBLIC SERVICE”
WEDNESDAY, NOVEMBER 21, 2007
Like most of you, I have a lot to be grateful for on this Thanksgiving Day eve… family, friends, health, fond memories and continuing prospects.
And I am especially grateful for the privilege of being an attorney for more than half a century.
And so, thank you Mark for that generous introduction.
My parents would have been pleased to hear it although my Mother, as well as my Father, was never as pleased with me as she might have been.
And she told me so.
When I became a lawyer, my parents were ecstatic; it was more than they had hoped for. But some years after that, when I announced I was entering politics, they were indeed shaken.
All they knew about politics and politicians was that ─ except for Franklin Roosevelt ─ politicians didn’t seem to be worth much.
Trying to find a way to soothe my parents, I told them: “Don’t feel bad, this is the way I can get to be a judge.”
Well, that relieved them considerably. My Mother said ─ in Italian ─ “Mario, now you’re making sense.”
Somehow she had concluded that being a judge was a whole other thing. The judge was special: the judge was respected… that’s why the judge wore a robe, but politicians just wore suits.
Then I lost a couple of elections, won a couple and found myself standing on a platform with my Mother next to me, Pop was gone, and the person at the microphone, introducing me on an exciting, improbable election night said, “Mario Cuomo is the first Italian-American ever to be elected to a full term as Governor of the State of New York….”
I turned to my Mother, put my arm around her and said “Mama, what do you think now?” She said, “Is not bad. But when you gonna be judge?”
In those days at least, my Mother wasn’t far from the dominant view of other Americans about their judiciary. Most believed there was indeed something special about the people in robes and the work they did. And surely that’s how the Founding Fathers felt it should be: that’s inescapably clear from the care they took in describing the role of the judiciary in the Constitution.
They wrote two main parts: a political side ─ the Congress and the presidency ─ to which voters would elect people they expected would reflect their ideas and desires on a day-to-day basis. And to anchor and stabilize the nation, a second part: a Supreme Court and a federal judicial system to assure that the decisions and rules made by the political branches complied with the Constitution. They made sure the judicial branch would be immunized from the importunings of the two political branches by giving the judges lifetime terms. The judges would be guided by the Constitution and the facts of the specific case or controversy before them and not by the wishes of the Congress or the president. They were to remain beyond the reach of politicians but be always available to interpret and declare the meaning and applicability of the words and intent of the Constitution as to which they ─ and not the Congress or the president ─ were to have the last word.
Without that Constitutional Rule of Law our great experiment in democracy would have failed.
And, it would fail today! It’s clear from current world experience that elections don’t create democracy; it’s the Rule of Law that creates and assures democracy, and serves as the foundation of the miraculously successful democratic republic we have become.
As Benjamin Franklin noted: “Only by keeping the Constitution and its Rule of Law intact, would we continue to have a republic instead of a monarchy.”
That is not to say the Constitution was not made adaptable to significant changes in the nation’s circumstances.
In Article 5, the Founders provided for needed amendments although, eager to keep the Constitution strong, they required difficult to achieve approvals from both the federal government and the states. The use of that prescribed process over the last 200 years has accommodated changing conditions in America in a difficult but orderly and legal fashion, at the same time that the Founders’ basic rules for a national government remained intact.
In recent years various political individuals and groups have proposed ─ and continue to urge significant changes in the Constitution. Some argue we should amend the Constitution to provide that any judicial decision, including the Supreme Court’s, should be subject to being overridden by a majority vote of each House of Congress. That, to many of us, is an alarming position. It suggests an entirely different America from the one we have enjoyed for more than 200 years, and it would be a giant step backward and downward. If popular sentiment as enacted by a simple majority in Congress could have overruled the Supreme Court, would the Congress of the time have overruled Brown v. The Board of Education thereby restoring segregation? Almost certainly. Would today’s Congress ─ so eager to do what the polls say is currently popular ─ wriggle its way past the First Amendment into extensive censorship, all in the name of “family values”? Perhaps. Would surveys showing large majorities of the public wanting to get rid of the presumption of innocence, lead to its repeal?
Would the sound of “Gideon’s Trumpet” be silenced, freedom of the press chilled? Some statistics suggest it would.
Fortunately so far, that drastic proposal hasn’t become popular enough to persuade Congress or the states to activate the Constitutional amendment process: we’re apparently not ready for the “future shock” of an America built on changes like the ones I’ve noted, especially with regard to our vital justice system.
But that does not mean that we ought not take seriously Ben Franklin’s caution by protecting our Constitution and especially its Rule of Law from being depleted, distorted and weakened, not just by the prescribed Constitutional amendment process, but de facto, particularly by power-seeking Presidents and inadvertent or unwise members of Congress.
We should keep in mind that in allocating Constitutional power the Founders deliberately and carefully limited the powers of the presidency. The oppression they had suffered at the hands of the British king had turned their love of liberty into a passionate concern about excessive power in the executive. The language they chose makes that clear. They knew what kings could do ─ because in fact kings had done them. Nevertheless, ambition is difficult to restrain and despite the Founders’ intent, in recent years efforts have been made by both Democrat and Republican presidents to throw-off Constitutional restraints written by the Founders and enhance presidential powers in ways that the Founders would certainly have found objectionable.
“Signing statements” have been used to defy legally adopted laws; secret White House task forces; presidential orders to hold non-combatants in jail for as much as five years without charges against them; unprecedented politicization of the Department of Justice, government spying on Americans without court supervision, as well as other excesses, have combined to inflate the presidency into unconstitutional shape and power.
And perhaps the most egregious presidential excess and the most costly, has been the seizure by both Democrat and Republican presidents of one of the most dangerous of all government powers… the power to declare war.
For obviously good reason, the question of who should have the power to declare war was treated by the Founding Fathers as one of the most serious to be dealt with in the Constitution.
How much more serious must it be today in this age of nuclear weapons and the threat of instant obliteration they pose?
The language chosen by the Framers was unambiguous. Article I Section 8 gives Congress ─ not the President ─ “the power to declare war.”
Most of the Framers were opposed to giving the power to a single leader because of the fear that ambition, ignorance, poor judgment, misinformation or inadvertence could produce an unnecessary and unwise war.
Abraham Lincoln described the Framers’ rationale for choosing Congress cogently and concisely when he said “allow the President to invade a … “nation whenever he may choose to say he deems it necessary, and you allow him to make war at pleasure” … “no one man should hold the power to bring this oppression upon us.”
That observation seems chillingly prescient after more than four years of war in Iraq.
Despite the clarity of the constitutional language, since the Second World War timid Congresses have combined with eager presidents on several occasions to violate the clear language and intention of the Constitution by handing over this non-delegable power passed by Congress to the President. Remember Korea and Vietnam?
In fact that is precisely what happened with respect to Iraq. Congress, without itself declaring war, said they approved of the President doing it if he chose to. In so doing they defied the strong view of the Founding Fathers made plain in the clear language they chose. They violated the Constitution!
The Supreme Court has never approved of those actions by our Congress and President in Iraq or in previous similar situations. The only way it could have would have been to deem in effect, that persistent evasion can repeal the plain language of the Constitution, and that would reduce the Constitution’s Rule of Law to nothing more than an anemic collection of suggestions.
But the Supreme Court has never condemned the illegal actions either and lower federal courts have been reluctant to because they suspect the Supreme Court considers the “war power” question to be what some justices have called a “political question” not suitable to be addressed by the courts.
This “political question” theory is not explicitly written in the Constitution. Indeed, Alexis de Tocqueville observed that most political questions in the United States usually became judicial issues. And he was right.
Remember Bush v. Gore?
At the very least it must be said that the refusal by the federal courts to intervene because the war power issues are considered to be “political” in nature produces an awkward result: it denies us the vitally important review of the conduct of the Congress and the President with respect to one of the most serious questions ever to face the nation ─ the decision to start a war… the decision to start killing people and having our own people killed perhaps by nuclear weapons, from one side or the other or both!
Who is to blame for this most recent departure from constitutionality in Iraq?
Certainly the Congress ─ Republicans and Democrats ─ who ignored their clear obligation to make the decision themselves.
Certainly the President who seduced them into ignoring that obligation.
Certainly the press that failed to make an issue of what was happening.
And I believe it is fair to say we must share the blame ─ all of us who are privileged to be lawyers with all the advantages that gives us, and all the opportunities it provides to assist the rest of our society with our special knowledge and ability to communicate.
“There’s a time to be silent and a time to speak” and I believe this was ─ and remains ─ a time for the nation’s lawyers to speak… loudly and clearly.
Even if it is as a practical matter too late for the courts to prevent the loss of lives and treasure in Iraq, it is not too late to avoid other possible unconstitutional military actions by our President and an unconstitutionally compliant Congress, in Iran, Pakistan or elsewhere.
Bar Associations should examine these issues and practices and their leaders should energize litigation of the type that led to Supreme Court decisions concerning military tribunals, torture and Guantànamo in 2006.
Declaratory judgment litigation should be instituted to bring the Congress and the President into conformity with the Constitution, calling on the Supreme Court and other federal courts to assert their authority and decide the issues raised here to restore the people’s right to have Congress determine our wartime destiny.
The urgency of these actions is underscored by our government’s efforts to link Iran’s actions in Iraq to Al Qaeda and attacks on our troops in Iraq. Unless there is a judicial intervention, it is painfully conceivable that the President might claim authority under the 2001 and 2002 congressional resolutions to launch ─ or to be complicit in launching ─ a nuclear attack on Iran with unimaginable consequences.
As officers of the Court, the burden of persuasion is on us to make the case for the Constitution.
But it is a burden that we should carry with delight because in making the case for proper use of our Constitution and our judicial system, we will be making the case for the lawyers who helped design the system, helped implement it, and have sustained it ─ as judges and as advocates ─ for 200 years.
After all, it was the lawyer’s passion for predictable and equitable standards that taught our ancestors in this country to make the political system subject to the legal system, so as to assure, as nearly as possible, that politics would be required to serve the ends of justice, instead of justice having to bow to politics. Yes, there have been setbacks.
At times the law has protected slavery, permitted segregation, discouraged unions, tolerated exploitation, injustice, unfairness.
At times, lawyers have manipulated the law, using it to further their own ambitions or their clients’ greed.
But if our ranks have included a quota of rogues, they have also included a far greater number of heroes — real heroes. Thousands-upon-thousands of men and women who have defended the helpless, the dispossessed, the disenfranchised, who’ve bucked popular opinion and faced even death to insist that the law take precedence over prejudice, over privilege, over revenge. Even if the people they were defending were impoverished, uneducated Americans.
Let me conclude with one final, fundamental observation.
Surveys tell us that we believe our nation is not heading in the right direction and we have no clear notion as to how to change course.
It’s more than just the war in Iraq and threats of still another war that concerns us.
We have no heroes, no heroines, no soaring ideologies.
We are tired of, and frustrated by, political answers that seem impertinent, too shallow, too short-sighted or too harsh.
We are not even sure what we wish to be as a nation. We’re tempted to see ourselves as 300 million disassociated individuals struggling for survival and dominance in a dog-eat-dog world, instead of seeing ourselves as a fully integrated society, interconnected, interdependent, growing stronger together.
Some of us are frightened by 9/11 and terrorism into thinking we can be saved by a more powerful presidency even at the risk of creating the kind of monarchial power the Founding Fathers sought to protect us from in the Constitution.
We need something more ─ something better to believe in. To hold onto. To be guided by.
Something wiser than our own quick personal impulses.
Something sweeter than the taste of a political victory.
It would take more than the time we have now ─ and perhaps more than the wisdom that resides here today ─ even in this very gifted group ─ to find and to describe all we must do to relieve this profound discomfort.
But there is one thing we lawyers know will help relieve the unsureness that troubles us.
And that is “Our Lady of the Law,” as she comes to us in our Constitution ─ the nation’s bedrock.
Our 200 year old legacy of law and justice has been the foundation on which we have built all that is good about America. We must not allow that foundation to be weakened or even defaced by a political system whose claim to morality is the latest urge of the American people ─ however distracted, however mislead we may be on occasion.
We must not allow our eager presidents and timid Congress people to combine to weaken our system of checks-and-balances and threaten our republic by allowing a single individual to exercise monarchial powers.
For 200 years “Our Lady of the Law” has proven stronger than the sins of her acolytes and has made us better than we would have been.
Now she must be lifted above the political melee and the confusion before she is brought down and her guiding light is no longer visible to us.
Someone must lend their shoulders in the effort to do that.
If not, the lawyers, then who?