How Lawyers Protect America’s Democracy and Rule of Law

For centuries, lawyers have been leaders in establishing and protecting our democracy and its cornerstone, the rule of law. They have challenged tyrants, whether it be King George III in our nation’s founding or President Trump, a wannabe king, today.

Lawyers swear to do this in an oath, which is a condition of admission to the bar, to “support the Constitution of the United States.” This sworn duty continues a centuries-old tradition.

Twenty-five lawyers signed the Declaration of Independence (of fifty-six signatories). The chief author, Thomas Jefferson, was a lawyer. Signing took considerable courage. That act was treason under English law, punishable by death or imprisonment, and it put the signatories’ lives, families, and estates at great risk.

The Declaration was an indictment of “tyrant” King George III, listing twenty-seven specific grievances. It is best known for recognizing the people’s fundamental rights (to “Life, Liberty and the Pursuit of Happiness”); declaring the independence “of the thirteen united States of America;” and especially for its statement that governments “deriv[e] their just powers from the consent of the governed.” This concept of popular sovereignty is the foundation of our democracy.

Lawyers and those with legal training also helped draft and secure the adoption of the U.S. Constitution (twenty-three of the thirty-nine signatories in 1787 were lawyers or legally trained), the Bill of Rights (the first ten amendments to the Constitution), and later Constitutional amendments. For centuries, lawyers have invoked the structural provisions of the Constitution (especially those creating checks and balances) and the amendments to protect the lives, liberty, and property of American citizens and residents from arbitrary and vindictive governmental actions.

Throughout our history, lawyers have also challenged “popular tyranny” and angry mobs, even when representing those hated by the community has imperiled their practices, families, and community standing. One historic example was the defense by future president John Adams, at age thirty-four, of eight British soldiers and their officer in what is known as the 1770 Boston Massacre, in which five colonists were shot and killed.

Adams was a strong patriot and staunch critic of the Crown, but he accepted this representation, knowing that public hatred of the soldiers would extend to his defense of them. Based on Adams’ defense of self-defense (from the angry rock-and ice-throwing crowd), the jury acquitted the officer and six soldiers and convicted two others of manslaughter (with, as punishment, an “M” branded on their thumbs).

Adams said later that this was “one of the best Pieces of Service I ever rendered my Country." He was celebrating his role, the lawyer’s role, in assuring that the rule of law was applied under the most trying circumstances in our embryonic nation.

We need to call on these traditions today. Our president and his executive branch are attacking our democracy and the rule of law in ways that have no parallels in our history. In a very incomplete list of unconstitutional actions, they have appropriated powers constitutionally committed to Congress; sought to federalize elections, although the Constitution unambiguously commits the control of elections to state and federal legislatures; and punished law firms, individuals, and many organizations for actions protected by an array of constitutional provisions.

The worst, however, for many has been the seizure of the Department of Justice. The president has converted this once quasi-independent and well-respected defender of the rule of law into his personal law firm and committed its leadership to his angry and legally meritless campaign of revenge.

What can lawyers do today to fight back and honor our long tradition? They can join Lawyers Defending American Democracy. LDAD offers a menu of activities that draw on the distinct skills of lawyers across the full range of practice areas.

As a lawyer, you can educate your community on legal ethics and further the public's understanding of and confidence in the rule of law. This educational function is critically important today. Justice Brandeis, dissenting in Olmstead v. United States, said:

Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.

Lawyers need a counter-teaching campaign to make it clear to all that today’s law-breaking federal government is not even within the outer limits of acceptable norms. It is an extraordinarily dangerous aberration that rejects the rule of law and seeks to nullify our legal and traditional commitments to democracy.

Where can lawyers do this? Through newspaper opinion pieces and letters to the editor, on social media platforms and in talks, for example, at public libraries and before civic and neighborhood groups, fraternal organizations, and church groups, among others.

If lawyers do more, whatever that may be, their work will echo John Adams' words that it was “one of the best pieces of service I ever rendered my country."

This series from Lawyers Defending American Democracy connects the words of the Declaration of Independence and the Constitution to current events that threaten democracy and the justice system. Each piece highlights the unique responsibility lawyers carry—through their oath, professional obligations, and roles in their communities—to help the public understand what’s at risk and to speak out when democratic principles are under threat. LDAD’s call to action is straightforward: as the Founders once did, we must recognize threats to constitutional values, demand accountability, and act to defend them.

Michael Millemann is co-lead of the Maine chapter of Lawyers Defending American Democracy and is a retired lawyer and law professor. Shortly before retiring, he developed and taught a course for first-year law students on the lawyer's role in protecting democracy.