Speech to the Johannesburg Bar Council
June 8th, 1966
We lawyers have not always been highly popular. When George Washington, the father of my country, prepared his will, for example, he refused to let a lawyer touch it, and he ordered that any dispute which might come up after he died be settled out of court by arbitrators. One early American judge charged a jury:
"Gentlemen, you have heard what has been said in this case by the lawyers, the rascals... a clear head and an honest heart are worth more than all the law and all the lawyers. . ."
But here I stand in the midst of a bar which has maintained a clear head and an honestheart:lawyers and judges alike, respected and honoured for your courage, your perseverance, and your dedication to the fundamental tenants of the law. No bar, anywhere in the world, holds a higher position.
I am pleased to be in South Africa. I am proud to stand here with you - and as a lawyer, I extend to you my deep thanks for the honour you bestow on the legal profession everywhere.
Obviously, I am not in a position to talk now about the law of South Africa. So as a former Attorney General of the United States, I thought to discuss with you some features of the American legal system; not as a professor, for I am sure most of you are familiar with our system; but in an effort to begin a discussion of our two legal experiences. I would hope that many of you might send me papers on your legal system - so that together we might examine what features of our system should guide our work for the ever-changing, ever-developing things we call the law.
There are now 300,000 lawyers and nearly 10,000 judges in the United States. Sixty percent of our Congressmen and 70 percent of our Senators are lawyers. Seven of our last twelve Presidents were members of the legal professions.
We should not be surprised. By training and experience, the lawyer is uniquely fitted to play a role in the leadership of democratic societies. His skill in solving disputes among people can be turned to the solution of disputes among groups. He knows that conflicts must be resolved - even when the answers will be neither easy nor perfect - and even when the result may not be completely satisfactory to either side. Above all, the lawyer understands the rule of law. He knows that law must begin with its observance by government. For, in the words of Justice Brandeis of our Supreme Court, "Government is the potent, the omnipresent teacher. For good or ill, it teaches the whole people by its example . . . If the government becomes a law-breaker, it breeds contempt for law: it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means . . . would bring terrible retribution."
This, the lawyer knows. And therefore he has a special responsibility to uphold the rule of law - to make it the voice of progress and justice, a repository of ancient ideals and a channel of peaceful change and progress toward these ideals.
These things the lawyer knows - and more. He knows that the old principle of the Golden Rule is not sentimentality but the deepest practical wisdom; that if men can suffer for one belief, others may suffer for the holding of others; that if men can be deprived because their skin is dark, others may be deprived because their skin is white. Only where the law protects all beliefs and all men is there safety for any belief or any man.
My country's government was established by men - lawyers - who understood the meaning of the rule of law. Out of 56 members of the Continental Congress which proclaimed American independence in 1776, 26 were lawyers, and 33 of the 55 men who wrote our Constitution had legal training. These men knew of the tools - the Star Chamber and the Inquisition - by which governments had been employed by some men to tyrannize others. These men knew that government must be limited; that it must be prescribed from arbitrarily interfering with the lives of its citizens. They knew they must exercise all of their imagination and skill to draft a basic charter that would last - documents that would make individual rights secure and immutable: that would ensure that changes in government would come, in peace and order; and that oppression and tyranny would never return. The drafters therefore established a system of checks and balances to ensure that no one branch of government - executive, legislative, judicial - would have more than the other. They protected the Constitution against hasty and ill-advised amendment by requiring that changes be made by two- thirds of both houses of Congress, and by three-fourths of the states. They gave an independent Supreme Court the power to interpret the document that they had drafted, and that court became the guardian of constitutional rights against governmental encroachment. No legislature and no government official, including the President is beyond the reach of this court's power of review.
Even in the midst of grave national emergency, the courts still sit to prevent arbitrary exercise of power by the government. During the Korean War, even as our armed forces engaged in combat, President Truman seized the steel mills to prevent a crippling strike. Within days, the Supreme Court found that he had acted beyond his authority and ordered the mills released. And without comment, the President of the United States obeyed. The court acted as it did - the President obeyed as he did because they knew that the rule of law may not be abolished or defied even in the midst of emergency; that to abandon the law would be to inflict on ourselves a defeat more severe than any enemy could inflict: that we would have sacrificed the substance of freedom in order to save its shadow.
To this Constitution was added a Bill of Rights - a series of guarantees against government interference with individual freedom. Its first provision was its most fundamental - to guarantee the freedom of speech and expression of press and religion, the right to dissent, the right to hold a different view. Time and again, we have reasserted our belief as a nation that speech can rebut speech - that the free debate of ideas will result in the wisest government policies - that free flow of ideas is the only stream on which orderly change and progress can sail.
The Bill of Rights contained other guarantees: the right to free movement of the person; the right to be safe in one's home; the right not to be subject to unreasonable searches and seizures by a persecuting Government.
The Constitution had prohibited the legislative branch from engaging in legislative trials, and from passing retroactive laws to punish conduct that was lawful when it took place. The Bill of Rights broadened these protections to prohibit any arbitrary legislative, judicial or executive act. And it provided, with special care, a full set of procedures to govern the rights, from arrest to acquittal or conviction of persons accused of crime; a right to be arrested only on sufficient cause; to be released on bail pending trial; to be indicted by a grand jury; to be brought speedily to trial; to be tried by a fairly selected petit jury; and to defense by counsel even where the defendant cannot afford to pay a lawyer.
Nor may a person be punished under a statue which is so vague that he could not have known his actions were illegal. The Supreme Court applied this principle to a statue which required Government employees to swear that they had never knowingly lent their "support" or "counsel" or "influence" to the Communist Party. The court held that this statue was fatally ambiguous, and said:
"Could a lawyer who had ever represented the Communist Party or its members swear with either confidence or honesty that he had never knowingly lent his counsel to the party? Indeed, could anyone honestly subscribe to this oath who had ever supported any cause with contemporaneous knowledge that the Communist Party also supported it? The very absurdity of these possibilities brings in to focus the extraordinary ambiguity of the statutory language.
No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statures. All are entitled to be informed as to what the State demands or forbids."
In all of these ways, the framers of the Bill of Rights sought to prevent the criminal laws of the nation from being used to serve the political ends of those in power at a particular time.
That, in brief, is the system which the founders of my country created. Theirs was a vision for all seasons, a vision which transcended their time, leaving with us a system that has lived and expanded within its essential documentary framework to this day.
Performance has not always equalled promise, nor always adhered to law. The promise of equal opportunity and equal treatment did not apply to Negroes and American Indians when the Constitution was written. The right to vote has been made truly universal only by a series of halting, sometimes painful steps. But we have moved forward. The path has been none too smooth. The end of the journey is not yet in sight; but its direction and the distance we have already traveled are clear.
The same progress and the same occasional failures have marked the protection of individual liberties. In times of stress and hysteria we have temporarily given in to the cries of those who have claimed that suppression can bring security. But each time the bench and bar have recalled us to the command of the Constitution, and sanity and restraint have returned to public affairs.
Legal systems are as varied and disparate as the many societies of man. Yet I think that in our experience there are two major lessons which all of us can draw for the future.
First is the role which entrenched fundamental law can play in facilitating orderly and peaceful change. Only when men know that basic rights are inviolate will they seek change peacefully; only when they know that basic rights are secure will they accept change which allows to other interests a share of the responsibility and power of government decision. And that security for change is essential in every land and nation. All around the world - within nations and between nations - the lives and fortunes, the very futures of men depend on the development and progress of the rule of law.
Deeply involved in that rule is the right of every individual to counsel - to the assistance of a lawyer, whatever his race, his alleged offence, or his ability to pay. And with that right goes a solemn obligation on every lawyer - to provide that assistance regardless of the personal, social, or financial difficulties that it brings.
In my own country, the Negro struggles to overcome two centuries of discrimination. His achievement of racial equality depends on the rule of law. And so does the peace and public order of the United States. We know that where the rule of law does not protect and channel social change peacefully, it is all too likely to come violently. And we know, as Locke said, that "where there is no law, there is no freedom." We are resolutely opposed to violence in the solution of social problems: we have no wish for cruelty and the injustice of violence. But we recognize the teachings of history - our own not excepted - that change will come whether we like it or not. Change and growth are the law of life. Those who command them to stop will be like Canute sitting before the waves; they will join those numberless societies that have long since lain broken on the sands of time. President Kennedy said to my countrymen in 1963: "A great change is at hand, and our task, our obligation, is to make that revolution, that change peaceful and constructive for all. Those who do nothing are inviting shame as well as violence."
The second lesson is that law can act as the arbiter and protector in contests between great social forces - that for the ingenious mind of the lawyer, almost no problem is too difficult to solve. Just in our Constitution, for example, are dozens of protections for the rights of minorities, absolute limitations in the power of a numerical majority to infringe the interests of the minority. The system of separation of powers, each checking and balancing the other; the federal system with many basic powers reserved to states; the deliberate inequality of representation in the Senate; the absolute prohibition of legislation in areas touching on sacred rights of speech, press, assembly, and religion: and the guaranteed freedoms of individuals - all these have enabled us, a people of wildly diverse origins, to grow unhindered to a position of unquestioned leadership in the world.
What greatness we have achieved has come not from the power of our government, but from its limitations, which have liberated the full creative energy of all the American people - of every political persuasion, every national origin, every race or color.And that, after all, is what we, you and I, mean by law and justice; not persecution but protection; not cruelty but compassion; not control of men by government, but the use of government by men as a way to work together for the fulfillment of the highest destiny of every man and woman.