By JANICE HYDE
A Law Day panel of distinguished jurists and scholars was convened at the Library on May 1 to discuss and debate how well the government's congressional, executive and judicial branches are balancing power.
The program, "Separate Branches, Balanced Powers: Madison's Legacy," appropriately held in Madison Hall, was part of the Leon Jaworski Public Program series devoted to examining the law and the role of lawyers in American culture.
This year's program was organized by the American Bar Association (ABA) Standing Committee on Public Education and the ABA Commission on Civic Education and Separation of Powers. Partners in organizing the program included the Law Library of Congress, the ABA Standing Committee on the Law Library of Congress, the League of Women Voters and the Federation of State Humanities Councils.
ABA President Michael Greco welcomed the audience and set the stage for the evening's program by quoting Leon Jaworski: "When dictators and tyrants seek to destroy the freedoms of men, they first target the legal profession and through it the rule of law."
Peter Kalis, ABA chairman of National Law Day, observed that the rule of law is part of the national endowment and asked the audience to take some time to reflect upon the "wisdom of the framers' design."
On behalf of Law Librarian Rubens Medina, Harry Yee, director of workforce development, welcomed the audience to the Library. He noted that although the Law Library is generally thought of as a collection of books, its interest in substantive programs such as the Law Day program is based on the Law Library's role as "a global legal research institute, providing not only access to the law but also analyses and research products to all three branches of government, [which contributes] to an accurate understanding of the scope and depth of detailed and complex foreign legal sources in foreign languages and from different legal cultures."
Jeffrey Rosen, a professor at George Washington University Law School and the legal affairs editor of The New Republic, moderated the panel discussion. He referred to the panelists as the "Madisonian dream team" and offered each five minutes to make opening remarks.
The first to speak was Abner Mikva, former chief judge of the U.S. Court of Appeals for the District of Columbia Circuit and White House counsel during the Clinton administration. He now is the Schwartz Lecturer at the University of Chicago Law School. In his opinion, the separation of powers is "the greatest idea that came down any pike in history." He stated that the "constructive tension" that comes about from the interaction of the three branches of government, each with its own power, is one of its best features.
Richard Matthews, chairman of the Lehigh University Department of Government, offered several quotes from Madison, including this 1822 statement that "knowledge will forever govern ignorance." According to Matthews, Madison believed that the balance of power was affected by the separate branches of government as well as an enlightened citizenship.
Whether the separation of powers works well depends in part upon the issue, observed Ruth Wedgwood, the Edward B. Burling Professor of International Law and Diplomacy at the Johns Hopkins University School of Advanced International Studies. Speaking about the judiciary, she lamented that oral arguments before the Supreme Court are limited to 30 minutes for each side rather than the days-long discussions as in the past. She suggested that the court return to a more leisurely, discursive process.
Gary Rosen, managing editor of Commentary Magazine, noted that many factors have contributed to an expansion of executive authority, including engagement in war and national security. Rosen noted the lack of certainty and clarity among the Founders themselves, who spoke of the early government as an "experiment." In the end, Rosen suggested, the U.S. constitution and form of government constitute an "invitation to struggle."
Patricia Wald, former judge of the International Criminal Tribunal for the former Yugoslavia and former chief judge, U.S. Court of Appeals for the District of Columbia Circuit, asserted that America's constitutional framework of separation of powers is unique in the world. Most other nations have chosen parliamentary systems of government, she said. In her opinion, an independent judiciary is the single most "exportable constitutional item." She said she fears that the judiciary is in danger of becoming marginalized. In her estimation, secrecy poses a real challenge. "Can checks and balances work in the dark?" she asked.
Panel moderator Rosen asked Judge Mikva, "Which branch is the most dangerous?" Mikva replied, "Congress." He explained that money is a key element in the balance and suggested that Congress works best when it stands up to the executive branch and refuses to allocate more money.
Mikva's comments sparked a debate about the relationship between the current Congress and the executive branch. Matthews said that criticism should be leveled at the House and Senate for not defending their territory. Judge Wald declared that when Congress and the executive go "head to head" the executive always wins. She cited inaction on the part of Congress to deal with the situation of the detainees in Guantánamo Bay. Gary Rosen suggested that Congress as a whole will not step up and put an end to things such as wiretapping unless it is extremely unpopular. Until there is major, popular discontent, he said, there will be no resistance from Congress.
Judge Mikva reiterated a point he made in his initial remarks that "Congress will act" if something is really important. Wedgwood replied that Congress may be risk-averse and suggested that presidents in the past have often dealt in the "currency of acquiescence," by which it was easier to take action and ask forgiveness later, rather than to seek permission first.
Jeffrey Rosen then asked the panelists to consider the international perspective. Since Sept. 11, 2001, many European countries have passed laws that "make the Patriot Act look tame," he said. "Is it a matter of political culture?" he asked. Judge Wald replied that the United States has had a steady tradition of civil liberties, but many countries in Europe do not share the same history. Wedgwood noted a tradition of a powerful executive in Europe that would be out of place in the United States. Gary Rosen commented that "you can put our institutions in other places to poor effect," and he underscored Wald's point that America's tradition of civil liberties has helped to curb executive power. Finally, Matthews mentioned that the states also serve as a counterbalance to a strong federal state, which Madison recognized as well.
ABA President Michael Greco offered closing remarks. He suggested that the real danger to democracy is an uninformed population and stated that a recent poll found that half of all Americans could not identify the three branches of government. Civic education, he argued, is critical. "If people don't know what their rights are, it is easy to take them away," he concluded.
Janice Hyde is a program specialist in the Law Library of Congress.