Clinical Law Prof Blog

Hamilton

I have not seen 'Hamilton,' the now legendary Broadway musical yet.  It doesn't look good either. My daughter now tells me that it doesn't matter anyway. Lin Manuel Miranda, the creator and star of the show, is no longer in the show so the show no longer matters.  I offered to get tickets  to see 'Hamilton' in Chicago (traveling show) but she declined.  The only show she would see was the real deal in New York City and at $800 a ticket, backed up for months, it just was not in the mix. I hear now that Manuel has stepped aside, prices have subsided.

With that said, it was 212 years ago today that Aaron Burr shot Alexander Hamilton in their famous duel. Hamilton died the next day.  Hamilton gone from the republic early had done much. He had been instrumental in the nation writing and ratifying our Constitution. He wrote 51 of the 78 Federalist Papers, which still provide scholars, judges and lawmakers with interpretations for our basic laws.  He is, as the Broadway show tries to show (so I have heard) a giant majestic figure in American history who is critically important to the basic ideals the country continues to struggle with today. 

Since his recent cultural ascent, I have wondered what it is about him that a clinician interested in equal justice and the rule of law could impress upon his students?

Well, for one, I could remind them that Alexander Hamilton was an immigrant, a man born on the island of Nevus in the West Indies, who convinces George Washington of the importance of a federal bank and financial policy controlled mostly by the federal government and not individual states acting outside of the federal government. This view, of Hamilton, that the federal government was ultimately the supreme power in the U.S. over certain affairs, was endorsed in 1819 in the case of McCullough v. Maryland long after his death.  That was when the U.S. Supreme Court held that the federal government ultimately had supreme authority over the nation's national bank rather than the state of Maryland. Maryland, the state, had been trying to impose its own laws upon the national bank; the U.S. Supreme Court nixed it. 

This ruling is one of the most important rulings in U.S. judicial history. For me, it says, there is a unspoken pact between the people and the federal government. It might be a metaphorical pact that has to be acted upon but ultimately, the governed, the people should have the last word on how the affairs of the nation will be conducted. If the Court does not make it clear who has the power for the people, there will be fifty separate nations in the U.S. and none of this will matter anymore.  

Lately, we haven't had such clarity.  Everything from interpretations of the Affordable Care Act to privacy rights, this subtle battle most of us take for granted goes on and on.  Texas tries to squeeze abortion rights.  States threaten to secede over immigration.  Individuals are killed in encounters with police and some of us scream for the Department of Justice to act boldly, to get more involved. 

Hamilton's concepts for a clinician like me are important and I plan to incorporate him in some way into my teaching. Equal justice for all is what guides my work. Hamilton, at least, provides possibilities.  It hardly matters if I agree with him in whole; what does matter is he believed in the whole rather than the individual pieces freelancing for their own selfish gain.  Everything from the Flint Water crisis to the current debate over infrastructure across the nation tells me, it is that unspoken pact which shall make our society great not selfish ideals.

Now, if only I can see that show somewhere.   

Teaching Law in an Age of Violence

In America, our founding principle is that all men are created equal, expressed within a legal document declaring independence from a sovereign who did not extend a voice to his subjects. Our pledge of allegiance binds us to a promise of liberty and justice for all. These are American ideals but so often are not American realities. America is and always has been a violent nation, and race and racism are deep in our spiritual, social, cultural, political and legal vernacular. In no season of our national history have we been at true peace, especially in matters of race and racism. 

In fits and starts, we lurch in anguish and hope toward harmony and reconciliation. Inevitably, when we take a step toward inclusion and justice, the forces of exclusion lash out in death throes. The South didn’t secede until after the country elected an abolitionist. The Klan didn’t form until after emancipation. Bull Connor didn’t unleash the dogs until people started demonstrating for justice and dignity. In our present age, we witness the persistent violence of exclusion as voices rise to demand inclusion of the bodies, minds, and souls of people so tired of waiting in oppression. 

This is also deeply American. “No taxation without representation!” was the rebels’ call for inclusion in the process of lawmaking and governance, and the demonstrators followed it up with war. When the sovereign refused to give his subjects a voice in making the laws that governed them, they rose up to toss off the sovereign. Then, tragically, the new republic founded for government of, by and for the people, systemically excluded vast members of the governed.

Those excluded people have taken patient centuries to call America to account for its aspirations, to illuminate the hypocrisy of exclusion in a republic founded for inclusion. Steeped in blood and struggle, they have brought America around to itself, little by little, kicking and screaming, mourning and grieving, insisting on inclusion, demanding dignity.

In lament and anguish, punch drunk, America stumbles toward its better angels, shaking off its ghosts, battling its demons, as we realize that inclusion is our only hope to keep the republic our ancestors won and handed down to us. Generous inclusion is national life. Reactionary exclusion is national suicide.        

When people are excluded, when America denies their dignity by telling them to comply without complaining, to thank God for their liberties, while murdering them if they dare to demand a voice, then the whole edifice will crumble. Who among us Americans wouldn’t object, maybe violently, if we were excluded from the system of laws that governs us? Who among us Americans would not create our own communities of dignity, power and self-determination if we were excluded from a state that makes false promises? Who among us is ever satisfied being governed in the third-person?

As law teachers, we have the privilege to observe and the obligation to train. We observe the law in its promise, success and failings, and we train lawyers to represent the people and their government, to make and improve the law, to sit in judgment with the law.

In an age of violence, what can we do to stem tides of death, cultures of fear, and cycles of vengeance? We can teach like we know how high the stakes are. We can observe exclusion and train for inclusion. We can refuse to ratify laws and systems that deny voice to the aggrieved, and we can train up lawyers who are alert, vigilant and ready to make the law better.     

Teaching civil rights is not academic abstraction; it is the lifeblood of a liberal, constitutional republic of limited government and individual liberty. 

Teaching cultural competence is not political correctness; it is the essential tool to promote inclusion of the excluded, to build bridges instead of bunkers, to make the law responsive, not exclusive. 

Teaching self-reflection is not coddling; it creates wisdom and awareness that will inoculate against blindness to the others outside our field of vision. 

Teaching ethics is not for passing an examination; it is to prepare students for a profession that must be much, much more than utilitarian and mercenary. 

Teaching alternative dispute resolution is not a trendy distraction from real lawyering; it equips peacemaking and creativity and dialog among opponents. 

Teaching critical thinking and criticism is not partisan; it is essential to conscious, thorough understanding of our laws, their sources, their effects, their realities.

Requiring pro bono is not charity; it is the transmission of a virtuous legacy of public citizenship that is historically necessary to the profession, demonstrating to law students the power of lawyers to empower the excluded.    

Morality and virtue are not electives. Justice is not secondary to power.     

Inclusion and plurality are necessary to democracy and justice. These are not liberal luxuries.  Diversity is not a vague objective of democracy but is an essential component of democracy.  The rule of law is sustainable only when everyone governed by the law has a voice in the law. The rule of law is only operable and just when the law embraces all of the governed with equity. 

In America, we are governed and government. We are subject and sovereign. We are citizen and state. When we neglect those roles, we invite violence. When we exclude any of our neighbors from law making, law enforcement, or the legal system, we dare the excluded to take care of their own social order, and that inevitably generates violence and oppression in the shadows of society. 

Not all problems are legal problems. The law exists within an ecosystem with constant cycles among culture, society, politics, religion, and economics. But we can do our part as law teachers with an obligation to our nation and communities.

We can train up lawyers who understand their critical role in sustaining our society and the rule of law in a liberal, constitutional republic.

We can study the law to improve it and promote inclusion.

We can promote access to justice, not as charity, but as civic morality.

We can illuminate weaknesses and places of exclusion and prepare our students to confront them.

We can listen and learn from those who are excluded and follow their lead in struggles for dignified inclusion.

We are necessary to building a trustworthy system of law. 

Our students become lawyers who become leaders, representatives, advocates and public citizens. We inherit an ancient project that will continue long after we are gone. The stakes are only as high as life and death and justice. 

Let’s teach like it.