The Difference Between Law and Justice

On May 13, POGO Board Member Mickey Edwards addressed the graduating class of the Oklahoma City University School of Law. Edwards, who served as a Member of Congress for 16 years and has been a lifelong advocate for preserving America’s constitutional republic, implored the new graduates to “take up the flag” of justice and seriously assume the responsibility of defending the rule of law.

Edwards emphasized the difference between law and justice, and encouraged the graduates to evaluate the difference between just and unjust laws with compassion. Like POGO and The Constitution Project have advocated for years, Edwards pointed out that there are times when the harm of breaking the law must be balanced against the public-interest benefits of doing so—as made clear by countless whistleblowers who have brought to light government abuse of power. On the other side of the same coin, POGO often shines a light on actions that may be legal but are nonetheless corrupt or unjust.

Read excerpts of Edwards’ address below.

Now the real work starts. So buckle your seat belts because you’re set to launch not a new career but a new life. A new challenge. And a new responsibility. Studying the law is one thing; being a lawyer is something very different because the moment you pass the bar—and pass it you will—the burden of preserving America’s constitutional republic...the rule of law, the rights of the people, every liberal construct handed down from the Magna Carta to the Declaration of Independence to the Constitution, will be your burden to defend and honor whether you work for the government or in private practice, whether you are a prosecutor or a defense attorney, whether you advise corporations or sue them, whatever your daily practice is like, defending the rule of law, defending due process, defending the liberties of the people and seeing that justice prevails, that is no longer somebody else’s responsibility. You are the champions of the law and if you don’t want that responsibility, you’ve chosen the wrong profession.

In America today many of the basic precepts of liberal democracy are under assault, whether you think the fault lies with the political party you identify with or with members of the other party, civil discourse has been eroded; trust is rare; news and data and facts that run counter to what we want to believe are dismissed as fake; large segments of the population have lost faith in the justice system; we have become a divided people. Studies show that an increasing number of young people around the world and here in America no longer believe that democracy is a good system or that civil liberties are important. They are still a minority but liberal democracy—the kind of democracy that defends free speech, fair elections, a free press, due process, independent courts, is under attack and defending it has now become your responsibility.

You didn’t cause this state of affairs—well, perhaps some of you may have helped it along if you’re among those too many Americans who have chosen to hang out only with people who think the way they do and only watch programs or read reports that seem to validate what they already think, and deny themselves meaningful interchanges with people who see things somewhat differently—but whether you’re the cause or not, you’re the potential solution because to ensure justice is now your calling, your responsibility, that’s what being a lawyer means.

From now on, it’s not about you. It’s not just how much money you can make or how much fame you can achieve; you are now among the elite, the people other people look to for leadership, and what you have to grapple with now is not just tort law or criminal defense but what do we as citizens owe to each other.

I hope none of you is or becomes a cynic—what you run into in practicing law can do that to you—but I hope you will be a skeptic. That you will think critically—evaluate and question what you hear, look for other points of view, understand where others are coming from. Do not lock yourself into an iron box of preconceptions or a cocoon of like-mindedness. You have been given license to be bold, to think outside the box, to think of the big picture and great causes.

I know you are now entering into one of the busier and most pressing times of your life: preparing for the bar, imagining a career—private practice, joining a business or government—and there’s not a lot of free time on your plate. But when the pressure lifts and you have moments to look elsewhere, I’d suggest that you immerse yourself in those things that make us truly human—not legal briefs or case law or hornbooks but the humanities, art, literature, philosophy, music, poetry. The best lawyers—and the best citizens—are those that are fully human, with insight and compassion and understanding. Justice Brandeis, believing he had made a mistake in a case, explained that he had thought about the question but he hadn’t thought through it. Think through the challenges; think deeply; get past the surface.

When the Founders created this nation of ours they did it with one central purpose in mind: throughout most of history there had been rulers and their subjects. Here we would not be subjects, we would be citizens, and the difference is that rulers tell their subjects what to do but citizens choose their leaders and through the ballot box, they hold the ultimate power. The problem is, in the ruler-subject divide, the only thing you as a subject need to do is mind your own business, don’t criticize the government, keep your head down, things that are not really in an American’s DNA, but in a government-citizen relationship, the citizen has immense responsibilities. What this country is, who we as a people are, how our neighbors are treated, is entirely on us.

We live within a set of common rules that set parameters on what government can do and on what we as citizens can use government for. Power is divided both horizontally—the Congress, article one—then the presidency and the courts. And power is divided vertically—the federal government and the states. Sometimes you will want one to prevail, sometimes another; that’s where we hash out our policy differences. There will be those who ignore the boundaries, who claim that what they desire or what they believe is required is sufficient to justify pretending that the laws and the Constitution itself are merely suggestions, that the Constitution is getting in the way. In the name of security they will justify the use of torture or the denial of habeas corpus and to many, that setting aside of the Constitution will seem okay because it might lead to the outcome they want. Presidents of both parties will stretch claims of executive privilege, stretch definitions of a unitary executive, stretch authorizations to use force in order to justify attacks against enemies that did not even exist when the authorizations were passed, and the Congress’s constitutional authority to decide when and if we will engage in war will be brushed aside. Congresses will abdicate their responsibilities as an equal branch of government. Sometimes courts will take it upon themselves to decide what the law should be and sometimes the courts will hide behind rules of standing that make legal redress impossible to achieve. You may be on one side of those debates or another—I’m not trying to tell you which side to take on in any of these debates—but you cannot ignore them because you are now the defenders of America’s constitutional democracy.

America is not just another country. American exceptionalism doesn’t mean that we are somehow better or wiser or more deserving than people from other places; what it means is that we are the inheritors of a particular system that elevates the people collectively to the top rank of society; collectively, the people of America have the power of emperors—to work through their representatives to determine everything from whether to go to war to how much to be taxed to what the government shall or shall not do. These decisions will be debated and if our system works, there will be discussions, deliberations, attempts to find consensus, to compromise if necessary to move the ball forward; not a touchdown on every play but another five yards toward the goal line of making America what you want it to be.

I want to leave you with one more thought, one more charge. To paraphrase James Madison, justice is the goal of government; it is the goal of civil society.

We are both a republic and a democracy but the end goal of both is to ensure justice. […] In our Declaration of Independence, that list of grievances that drove the Founders to break from the king and establish a new nation: The charge? Quote, “He has obstructed the administration of justice.”

And in the very first words of the preamble to the Constitution: “We the people of the United States, in order to form a more perfect union, establish justice,” etc. The pursuit of justice, the commitment to justice, was a big part of why this incredible country of ours was formed.

The rule of law, the means for ensuring justice, is now no longer some other person’s responsibility. And how you decide what is just will take a great deal of reflection; thinking hard about these questions is part of the burden of being an office of the court and a guardian of the law.

[…] I’m not trying to tell you how to feel about any of these things; that’s your call. But it’s not like trying to decide whether your favorite football quarterback should pass or run; this whole idea of justice—of the blend of justice, compassion, balance, is in your lap, and whether you practice tort law or maritime law or domestic law or criminal law, whether you work for the defense or for the state, do not let your “job description” step on your human pursuit of what is just and right.

[…] Be bold. Embrace the law not just with your mind but with your heart. If laws are unjust, it is on you to lead the work to change them.

Edna St. Vincent Millay, writing about the statue in the U.S. Capitol honoring the long-dead suffragettes who had won women the right to vote, ended her sonnet with these words: “Forget the epitaph; take up the flag.”

Justice is America’s flag. And now it’s your turn to take up the flag.

Thank you.