A test of civic faith

In this tough season for hope for a more righteous country, lawyers have taken starring roles in resisting rot. Donald B. Verrilli Jr was the U.S. Solicitor General under Obama; that means he was the government's lawyer, arguing the government's cases for good or ill at the Supreme Court. Last week he described our condition at graduation at Loyola Law School, Los Angeles.

... Of course, our Constitution and our laws are just words on a page. And the courts that enforce our laws are just human institutions like any other. The world’s most oppressive regimes have constitutions. They have laws. They have courts. And very often their constitutions and their laws proclaim the same commitments to human rights and to the rule of law as ours do. What ultimately distinguishes us from those kinds of regimes is whether we really believe in those words on the page and whether we make the sacrifices that a genuine commitment to these values demands. What matters is whether we have faith.

Let’s not mince words. Our civic faith is undergoing an extreme test.

I am not talking about disagreements over policy. In our democratic system we will always debate and disagree about policy, and we should. That is how we learn and grow and prosper as a nation. Something much more important is at stake.

We have a President who tries every day to undermine the public’s confidence in the rule of law – who sows doubt about the integrity of the women and men of the Department of Justice and the FBI (women and men whose integrity and commitment to public service I saw up close every day for the better part of eight years when I was in the government), a President who demands that his political adversaries be thrown in prison, who attacks the integrity of judges when they rule against him.

We have racists and Nazis marching with torches in Charlottesville Virginia chanting “blood and soil” like they did in Germany in the 1930s, and a President who refuses to call them what they are.

We have unprecedented attacks on the free press, criticism dismissed as “fake news” and critics threatened with financial ruin.

And some version of this occurs virtually every day, to the point that it is now defines what is normal in our political discourse.

And it’s not just the President. Our political leaders routinely forsake compromise, demonize opponents, and sell out the long term health of our constitutional system in order to gain maximum short-term partisan advantage.

This is taking an enormous toll. More and more people believe that the system is rigged, that our institutions are corrupt, that our Constitution and laws are just words on a page – just tools to be manipulated in the service of selfish interests. This is a test of faith.

Of course, it is overdoing it to sacralize the U.S. Constitution. As the abolitionist William Lloyd Garrison insisted in 1832, by accommodating continuation of slavery, that Constitution amounted to

the most bloody and heaven-daring arrangement ever made by men for the continuance and protection of a system of the most atrocious villany ever exhibited on earth.

Memorial Day was originally called Decoration Day -- a day set aside to place flowers on the 600,000 some casualties of the Civil War that ended slavery. That war led to amendments to the Constitution that made U.S.-born males of color full citizens. Women had to keep agitating for another half century. And wherever some could and can, some people who have enjoyed power have tried to constrain the emerging citizenship of their neighbors.

Our test of faith remains: can we make the laws and the Constitution an instrument for greater justice and wider democracy? In our history, when laws have served grander purposes, it has been because we the people made it so. It remains as it did in Garrison's time, up to us.

H/t for the Verrilli speech to Paul Rozenzweig at Lawfare.