The fellow pictured here is not a judge; he's not even an American. He is, in fact, Marcus Tullius Cicero. Cicero may not have been the best lawyer Rome ever produced, but he is certainly the most famous. But there is an American tie-in: Our Founding Fathers were quite familiar with his work.
Our educational system has deteriorated to the point where you probably are not so familiar with Cicero. Maybe all you know about Cicero is that it is the north-south street at 4800 W on the Chicago grid map. Thanks to GPS, you might not even know that much.
So let me tell you: Cicero was elected as Consul of Rome for the year 63 B.C. (with Gaius Antonius Hybrida, Mark Anthony's uncle... and, at one point, his father-in-law as well). This was an astounding achievement for Cicero, not only because he was a novus homo -- a "new man," meaning that no one in his family had ever achieved this office -- but because, unlike most Roman politicians, he had a negligible military career. His rise to consular rank was entirely due to his prowess as a lawyer. And also his client base, of course.
You see, Cicero regularly represented other politicians in court, and very successfully, too, defending them against charges of bribery and corruption. By Cicero's time, it was pretty much customary to lodge charges of bribery or corruption against every politician leaving office. The late Roman Republic did not have political parties as we know them today, but there were always competing factions, and everyone had some enemies. Mark Anthony and Cicero were enemies, for example. Eventually, Anthony had Cicero proscribed -- murdered. Read the Phillipics if you want to know why.
But the point is, by the late Republic, when someone in your faction left office, someone in my faction would bring charges. Today, we call it "lawfare." And, of course, since our modern American society is almost entirely ignorant of history, most of us are blissfully unaware of the corrosive effect that lawfare had on the late Republic... and of the corrosive effect that it will have on our institutions as well, if allowed to continue.
But let's not get ahead of the story.
We're talking about lawfare in the late Republic. Most of you probably know that, in January 49 B.C., Gaius Julius Caesar started the Civil War which effectively ended the Republic, crossing the Rubicon with one of his legions. What most of you may have forgotten -- or, more likely, were never taught -- was that Caesar took this action to avoid lawfare.
I don't say this by way of making an excuse for Caesar. I say it because it was a fact.
Caesar had been elected Consul of Rome for 59 B.C. (with Marcus Calpurnius Bibulus). Again, there were no political parties as such at this time, but Caesar was identified with the populist faction, while Bibulus was one of the self-described boni, the good men, who saw themselves as the guardians of Roman customs and tradition. Conservatives. Marcus Porcius Cato Uticensis -- Cato the Younger -- a particular hero of George Washington, for one -- was one of Caesar's most implacable foes and one of the most prominent boni. Cicero became increasingly identified with the boni faction as time went on. Anyway, when Caesar was Consul, Bibulus did his best to frustrate his colleague's legislative program, a principal feature of which was a land settlement for the veterans of the legions of Gnaeus Pompeius Magnus (whom you may remember as Pompey), who had recently conquered large swathes of what we now call the Near East. Bibulus did not have TROs to work with, but he did invoke the unfavorability of omens on all occasions. Eventually, with Pompey's support, Caesar started to ignore his colleague and, Bibulus, sulking, stayed mostly at home (leaving local wags to refer to 59 B.C. as the consulship of Julius and Caesar). After his year in office, and again with Pompey's support, Caesar obtained a five-year governorship in both Cisalpine and Transalpine Gaul... and then, during the course of this term and a five-year renewal, gobbled up all the rest of Gaul (and, you may remember, conducted a foray into Britain).
By the end of 50 B.C., Caesar's time in Gaul was coming to an end. But -- 10 years' time having elapsed since he was elected to his first consulship, under the constitutional reforms initiated by the dictator Sulla -- Caesar was eligible to serve as consul again. He was also eligible for a triumph, having brought all Gaul under Roman sway. Under the law, he could bring his armies down from Gaul for the triumph, whereupon, if the usual course of action had been followed, they would have been disbanded. But Caesar could not cross the pomerium, the traditional city limits, while still in command of his armies and waiting for his triumph. And he could not stand for consul without appearing in the Forum (necessarily crossing the pomerium) unless he were granted the privilege of standing for election in absentia. Pompey had been allowed to do this -- but, by this time, Pompey had moved to Cato's side.
Here's where the lawfare comes in: Once Caesar laid down his command, he could be charged. And Cato had had 10 years to plan the trial. There was no dobut as to its outcome. If Caesar were elected consul in the interim, he could not be charged until that term of office expired. Caesar might forego his triumph (which was a big public spectacle, with games and free food, in addition to the triumphal parade itself) in order to become a candidate. But failing to hold the triumph would not endear him to the masses, or his troops, and he would be charged in the meantime. Maybe the election would happen before the trial... and maybe not. Cato had done his best (or worst) to foreclose every constitutional channel open to Caesar and he'd recruited Pompey to the boni and we are supposed to be surprised that Caesar acted unconstitutionally.
So... why am I going on about Roman history when I'm supposed to be talking about how we modern Americans need to stand up for the Rule of Law?
Thanks to our Founders' detailed knowledge of Roman history, we have a written Constitution. Yeah, your 'social studies' teacher may have told you that we have a written Constitution because the British did not, and this is also true, but woefully incomplete. You see, our Founders were trying to establish a Republic, and the only long-lived historical example they could point to was the Roman Republic (which lasted from 509 B.C. -- the traditional date -- until Caesar crossed the Rubicon -- or maybe until 27 B.C., when Caesar's great-nephew, Augustus, finally launched the Principate). The Founders were trying to invent institutions that would resist the pressures that brought down the Roman Republic.
Our Constitution is not a weapon to be deployed against our political opponents. Yeah, again, I know Hamilton and Jefferson were each accusing the other of violating the Constitution almost before the ink was dry. And each faction and party has made similar charges against its opponents ever since. That didn't make it right then, and it isn't right now either.
Nor is the Constitution an inconvenience that must be 'gotten around' in order to achieve some allegedly lofty goal. It is the glue that holds America together, hopefully much better than the blood ties that bind, or used to bind, the nation states of the Old World. Every legislator that expresses support for a proposed law that he or she knows, or should know, to be contrary to the Constitution violates their sacred and solemn oath of office... and undermines the necessary reverence our Constitution deserves.
The Rule of Law does not mean that, when I rule, I make the laws.
The Rule of Law does mean that we have to follow the law, even laws we don't like, even laws that are unpopular, so long as they are constitutional. We Americans have a hard time with this concept. See, Prohibition. See also, the War on Drugs. But we can do better.
Following the law does not mean ignoring laws one does not like. You don't like (to pick just one random example) immigration laws? Lobby to change them. Congress refuses to change laws that you don't like? Well, stop voting for the same Congresspersons over and over again. Vote for someone else who agrees with you and who is willing to legislate.
Yesterday's seminar speakers made a point of saying that we lawyers must support, and speak out for, judges who follow the law, even though (and especially when) they are portrayed negatively for so doing. I agree. We must also speak out against judges who fail to follow the law. Because that, too, is standing up for the Rule of Law.
And, please, please, please: We must find a way to avoid lawfare. It killed the Roman Republic. It will kill ours, too. We can't turn a blind eye to corruption or bribery, which some of our leaders will engage in as long as we elect humans to represent us. But we also can't turn every disagreement over policy or place into some fanciful charge of corruption or worse.
And, one more thing, as long as I'm making unreasonable asks: Can we find a way to be nicer to each other? There are, unfortunately, some among us, perhaps some even in our profession, who would elevate party over country, ideology over reality, and political expediency above the dictates of the Constitution. I would bet large sums that you -- whoever you are -- and I would probably have significant differences in what we think would be the best way to fix what ails the country. Or even what those ailments might be. But if the welfare of the nation is uppermost for you, we should be able to find common cause. For the good of the nation, we have to try.
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