The historic phrase “a government of laws and not of men” epitomizes the distinguishing character of our political society. When John Adams put that phrase into the Massachusetts Declaration of Rights he was not indulging in a rhetorical flourish. He was expressing the aim those who, with him, framed the Declaration of Independence and founded the Republic. “A government of laws and not of men” was the rejection in positive terms of rule by fiat, whether by the fiat of governmental or private power. Every act of government may be challenged by an appeal to law, as finally pronounced by this Court. Even this Court has the last say only for a time. Being composed of fallible men, it may err. But revision of its errors must be by orderly process of law. The Court may be asked to reconsider its decisions, and this has been done successfully again and again throughout our history. Or, what this Court has deemed its duty to decide may be changed by legislation, as it often has been, and, on occasion, by constitutional amendment.
But from their own experience and their deep reading in history, the Founders knew that Law alone saves a society from being rent by internecine strife or ruled by mere brute power however disguised. “Civilization involves subjection of force to reason, and the agency of this subjection is law.” The conception of a government by laws dominated the thoughts of those who founded this Nation and designed its Constitution, although they knew as well as the belittlers of the conception that laws have to be made, interpreted and enforced by men. To that end, they set apart a body of men, who were to be the depositories of law, who by their disciplined training and character and by withdrawal from the usual temptations of private interest may reasonably be expected to be “as free, impartial, and independent as the lot of humanity will admit.” So strongly were the framers of the Constitution bent on securing a reign of law that they endowed the judicial office with extraordinary safeguards and prestige. No one, no matter how exalted his public office or how righteous his private motive, can be judge in his own case. That is what courts are for.
United States v. United Mine Workers of America, 330 U.S. 258 (1947) (Frankfurter, J., concurring in the judgment).
One of our nation’s most distinguished First Amendment scholars, Professor Eugene Volokh of UCLA School of Law, has created an excellent video series–Free Speech Rules–about the First Amendment and free speech. He has produced three videos so far, all intended for a general audience, not law professors or attorneys. The videos are great for anyone in interested in contemporary free speech issues, but I think they are “must watch” for high school and college students. Click on the links below to watch them. I’ll post future videos as they are released.
- 7 Things You Should Know About Free Speech in Schools
- The Three Rules of Hate Speech and the First Amendment
- Fake News and the First Amendment
I’m pleased to announce–three months after the fact–that I’m writing a monthly column for The Connecticut Mirror. The column, “First Mondays,” is purely educational and is intended to enhance the general public’s understanding of the law and the legal system. As you’ve no doubt guessed already, the column will appear on the first Monday of each month. Topics so far have included:
- Bad Acts and Guilty Minds: The Twin Attributes of a Crime
- How a Case Gets to the U.S. Supreme Court
- Trial Courts vs. Appellate Courts: What the Difference?
I’ll post links to future columns as they appear.
My grandfather, the late Joseph Klau, was a Superior Court judge for many years before his death in 1988. He loved being a judge. For my entire professional life as an attorney I have aspired to follow in his footsteps. Yesterday, that professional dream became a reality when the General Assembly voted to confirm Governor Malloy’s nomination of me to become a Superior Court judge. (Thank you Governor Malloy!) To top things off, I was sworn in while wearing my grandfather’s robes. As you can imagine, I am beyond thrilled.
A few times over the past week colleagues have come by my office with questions about the final judgment rule. Seems like it might be a good time to reblog two videos I created on this very subject!
I’ve been a great fan of President Theodore Roosevelt since I was a child. I may have to revisit my admiration for Teddy, however, after reading law prof Jeff Rosen’s fascinating post about Teddy’s “demagogic attacks” on judicial independence–and how his successor, William Howard Taft, responded to them. Rosen writes:
Judicial independence was the cause to which Taft was most devoted, as President and Chief Justice. Taft fought the election of 1912 as a crusade against Theodore Roosevelt’s demagogic attacks on judicial independence. In February, 1912, Roosevelt alarmed Taft by attacking individual judges by name and endorsing the right of the people to overturn state court decisions as well as recalling state court judges.
Taft responded that “the charter of democracy” Roosevelt proposed “advocated a change in our judicial system” that “would be dangerous to the body politic.” The recall of judges and their decisions, he said, “would necessarily destroy the keystone of our liberties by taking away judicial independence, and by exposing to the chance of one popular vote, questions of the continuance of our constitutional guarantees of life, liberty and property and the pursuit of happiness.” After delivering this fervent address, Taft retreated to his private railway car and expressed anguish to a journalist, “Roosevelt was my closest friend,” he declared, with his head in his hands. And then he began to weep.
Judicial independence is under attack once again. How President, later Chief Justice, Taft responded to Roosevelt’s attacks on judicial independence is a lesson for how we should respond to similar attacks today.
From the shameless marketing department:
Please join former Supreme Court Justices Peter Zarella, Ian McLachlan and several noted appellate attorneys for an illuminating panel discussion on the value of including appellate counsel in your trial team.
When: April 26, 2018
Time: 11:00 am to 2:00 pm
Where: One State Street, Hartford, CT
The country awaits the U.S. Supreme Court’s decision in the Masterpiece Cakeshop case, which concerns whether a professional cake maker can refuse, on First Amendment grounds, to sell a wedding cake to a gay couple. Georgetown law professor Paul Smith has this moving post on the very real personal costs that members of the LGBTQ community will suffer if the court decides the case in favor of Masterpiece Cakeshop. Money quote:
People in this country have every right to personally disapprove of my marriage. But they should not have a right to translate those beliefs into exclusionary policies when they open a business like the Masterpiece Cakeshop. They can choose who to associate with in their private lives. But not when they open a business serving the public. That is where we have always drawn the line in this country, and that shouldn’t change just because a purveyor of really excellent wedding cakes asks for the right to refuse to serve us because of who we are.
As the parent of a child with a serious substance abuse problem, I probably should have purchased Narcan a long time ago. Narcan, or Naloxone, is an antidote to opioid overdose. If administered soon after a person has overdosed on heroin or prescription painkillers (e.g., Vicodin, Percocet, Oxycontin), Narcan can save the person’s life.
Yale Law School professor Jack Balkin has this interesting post on the enforceability of the nondisclosure agreement that adult film actress Stormy Daniels signed in exchange for $130,000, paid on behalf of President Trump. Balkin notes that such agreements are generally enforceable because people can voluntarily waive their First Amendment rights. But he argues that such agreements may, under certain circumstances, violate public policy. Money quote:
Daniels’ strongest argument is a public policy argument within contract law– courts should refuse to enforce some (but not all) nondisclosure agreements because they are against public policy. The public policy in this case is the public’s right to know about the private life of the President of the United States before he became President. In the alternative, there might be a public policy justifying a much narrower right of disclosure–namely, the right of the public to know whether the President and his allies violated campaign finance rules in order to keep Daniels quiet. There are plausible arguments for both of these positions, but they sound more in contract law than in First Amendment doctrine.