President Dwight D. Eisenhower designated May 1 as Law Day in 1958.1 The U.S. Congress declared it as an annual nationwide event in 1961. Its purpose is to raise public awareness of American law and justice and their impact on our lives.
The theme of this year’s law day event was “The Legacy of John Adams.” As an attorney, John Adams is best known for his representation, in two separate trials, of the defendants in the incident that we know as the Boston Massacre.
In 1770, a British captain, Thomas Preston, and eight British sailors killed five men when they opened fire on a shouting, cursing mob that was pelting them with snow.2 Adams, then 34, was asked to represent these British soldiers because no one else would. Adams accepted, as he was firm in his belief that no one in a free country should be denied the right to counsel and a fair trial.
For these two very high profile murder trials, he was paid eighteen guineas (each guinea being a pound plus a shilling). Eighteen guineas would be now worth the princely sum of $1,882. The captain was tried first and acquitted, and in a second trial, six of the eight sailors were acquitted, while two were found not guilty of murder, but guilty of manslaughter. These two were branded on their thumbs.
There was public outrage over the verdicts and over the following year Adams lost half of his law practice and feared for the safety of his family. Over time, Adams’ popularity increased and he became more respected for his unpopular, yet courageous representation of these despised defendants and their unpopular cause.
In his old age, he lived to be 90, and even after serving as our nation’s first vice president and second president, he would look back on this matter as “the most exhausting case he ever undertook,” but he would also characterize his role as “one of the most gallant, generous, manly and disinterested actions of my whole life, and one of the best pieces of service I ever rendered my country.”3
The motto engraved over the formal entrance to the U.S. Supreme Court building is “Equal Justice Under Law.” This and more generally, the term “Rule of Law” has been equated with the phrase first written by John Adams in 1774: “a government of Laws, not of men.”4
Adams recognized early on the importance of the role of courts in society and the importance of courts as the last protector of individual rights against the abuses and excesses of government. Since the early days of Adams’ law practice in the 1760s, the arena for colonial resistance to Britain was in the courts, where the British officials attempted to collect taxes and customs and colonial lawyers protested their oppressive tactics.
Adams spoke out vociferously against the use of Admiralty courts utilized by the British to enforce the provisions of the Stamp Act of 1765.5 He recognized that a jury of one’s peers or neighbors would provide protection against tyrannous prosecution of unfair laws or free expression.
I am proud to be able to report that our courts remain the protector of an individual’s rights and a balance against unjust laws. We address wrongful convictions and provide due process to civil and criminal litigants alike.
With his extraordinary grasp of history and philosophy together with his vast courtroom experience, Adams had an essential role in the crafting of two documents that together helped form the foundation of American democracy: the Declaration of Independence and the Constitution of the Commonwealth of Massachusetts. While Jefferson wrote most of the Declaration of Independence, he acknowledged that Adams contributed many of its legal theories.
In 1780, Adams single handedly wrote the Constitution of the Commonwealth of Massachusetts. This document greatly influenced the Philadelphia Convention in the drafting of our Constitution. Democracy was then a dirty word; and it was not mentioned even a single time in the Declaration of Independence; nor was it to be uttered in the Constitution nearly a decade later.
Adams recognized the need for separation of powers and the independence of the judiciary. He described this separation and independence “to be distinct from both the legislative and executive, and independent upon both, that so it may be a check upon both, as both should be checks upon that.”6 He had great respect for the judiciary and declared that the proudest act of his life was appointing John Marshall as Chief Justice of the Supreme Court.7 Adams also knew that when judges were the dependent tools of government, justice was elusive if nonexistent. In modern times, U.S. District Court Judge Jack B. Weinstein also observed that judges can do evil,8 as in Nazi Germany where they laid the groundwork for the Holocaust,9 and how even here in America, judges put their imprimatur on slavery, segregation10 and Jim Crow laws.
However, let us not lose sight of the fact that judges may be heroic simply by fulfilling their oath of doing justice.11 We need look only to the Supreme Court justices in Iowa, where in the past year, three justices including the chief justice, lost their recertification elections because of an unpopular decision regarding gay marriage.12
And who can forget Judge James Edwin Horton, Jr., who in segregated Alabama in the 1930s set aside the jury verdict against one of the nine young black men, the Scottsboro boys, being retried for allegedly raping two young white women as being against the weight of the credible evidence13 and by so doing, in effect, ending his career on the bench?
Can you imagine the reaction of the racists in the courtroom when they observed Samuel Lebowitz, a white Jewish lawyer from New York, who later became one of our own judges right here in Brooklyn, cross examine the southern white woman complainant?
Adams was amazed when the proposed Constitution did not contain a Bill of Rights. He wrote Jefferson, “What think you of a Declaration of Rights? Should not such a Thing have preceded the Model?” When the Bill of Rights was adopted, the Massachusetts provision on search and seizure which Adams authored was the most important of all state models and is the one that our Fourth Amendment most resembles.
John Adams wrote a Defense of the Constitutions of the Government of the United States of America which was in essence a defense of the experiment we now call representative democracy: “That the people, (that is, such as shall be successively chosen to represent the people,) are the best keepers of their own liberties, and that for many reasons. First, because they never think of usurping over other men’s rights, but mind which way to preserve their own.”14
Yet Adams was not a perfect civil libertarian. As president he signed into law the Alien and Sedition Acts of 1798 which, among other things, made it a crime to publish criticisms of the government.15 (The judiciary protects the rights of free speech of the citizens of our great democracy to criticize the government even though we as judges cannot respond to criticism of our own decisions.)16
By virtue of this legislation 25 men, most of them editors of Republican opposition newspapers, including Benjamin Franklin’s grandson, were arrested and their newspapers forced to shut down. These laws which also scrutinized aliens and facilitated deportation17 proved to be so unpopular that their enactment helped Jefferson defeat Adams in 1800. Although some portions of the Alien and Sedition Acts had sunset provisions and were not reenacted,18 the Alien Enemies Act remains law today and has been used in recent history and even now.19
As you can see, many of the issues and themes that Adam’s faced still exist.
Law Day is an opportunity for us to strengthen our great American heritage of liberty. Law Day is a national day to celebrate the rule of law and its contributions to the freedoms that Americans now enjoy. We must not take our freedom for granted and we must remember that freedom was not always ours to enjoy and not everyone enjoyed liberty throughout our nascent and growing democracy. There are persons domestic and foreign who want to dictate what we can say, how we should pray, and with whom we can play and stay. With the exception of certain missteps along the way, our justice system and our judges in particular, have been and remain the protectors of liberty and freedom.
John M. Leventhal is an associate justice of the Appellate Division of the Second Department. This keynote address was delivered on May 5, 2011 at the Law Day commemoration of the Supreme Court, Kings County.
1. Law Day Overview, Library of Congress, http://www.loc.gov/law/help/commemorative-observations/law-day.php (last updated April 28, 2011).
2. David McCullough, John Adams 65 (Simon & Schuster Inc., 2001).
3. McCullough citing Legal Papers of John Adams, III, 28.
4. Stuart M Speiser, The Founding Lawyers and America’s Quest for Justice: how American lawyers built the world’s only legal system that makes the rule of law work for all the people 13 (Pound Civil Justice Institute, 2010); see also John Adams, Novanglus Papers No. 7, in Works of John Adams 4:106 (Charles Francis Adams ed., 1851).
5. Leonard W. Levy, Origins of the Bill of Rights 226 (Yale Nota Bene 2001) (1999).
6. John Adams, Thoughts on Government, in Works of John Adams 4:198 (Charles Francis Adams ed., 1851).
7. Charles Warren, The Supreme Court in United States History 178 (1922).
8. Jack B. Weinstein, “When Judges Are Asked to Do Evil,” New York Law Journal, Oct. 28, 2004, at 17.
9. See Scott v. Sandford, 60 U.S. 393 (1857) (holding slavery constitutional).
10. See Plessy v. Ferguson, 163 U.S. 537 (1896) (holding separate but equal accommodations constitutional).
11. Jack B. Weinstein, “Every Day Is a Good Day for a Judge to Lay Down His Professional Life for Justice,” 32 Fordham Urb. L. J. 131 (2004).
12. A.G. Sulzberger, “In Iowa, Voters Oust Judges Over Marriage Issue,” N.Y.Times, Nov. 3, 2010, at A3; Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009) (state statute limiting civil marriage to a union between a man and a woman held unconstitutional).
13. Quentin Reynolds, Courtroom 295-296 (1950).
14. John Adams, A Defense of the Constitution of Government of the United States of America (1786) (defending existing state constitutions, but favoring lifetime appointments, even for elected officials).
15. Edith B Gelles, Abigail & John: Portrait of a Marriage 250 (2009).
16. Code of Judicial Conduct, 22 NYCRR §100.3(B)(8) (2003).
17. Alien Act, 5 Cong. Ch. 58; 1 Stat. 570 (June 25, 1798) (authorizing the president to expel, without hearing, any alien the president deemed dangerous to the peace and safety of the United States).
18. Sedition Act, 5 Cong. Ch. 74; 1 Stat. 596 (July 14, 1798) (expired 1801).
19. War and Natural Defense Act, Alien Enemies, Restraint, Regulation, and Removal, 50 U.S.C. §§21-23 (2011).