Yesterday, more than ninety members of the Harvard Law School faculty issued a statement concerning the rule of law:
We are privileged to teach and learn the law with you. We write to you today—in our individual capacities—because we believe that American legal precepts and the institutions designed to uphold them are being severely tested, and many of you have expressed to us your concerns and fears about the present moment. Each of us brings different, sometimes irreconcilable, perspectives to what the law is and should be. Diverse viewpoints are a credit to our school. But we share, and take seriously, a commitment to the rule of law: for people to be equal before it, and for its administration to be impartial. That commitment is foundational to the whole legal profession, and to the special role that lawyers play in our society. As the Model Rules of Professional Conduct provide: "A lawyer is … an officer of the legal system and a public citizen having special responsibility for the quality of justice."
The rule of law is imperiled when government leaders:
• single out lawyers and law firms for retribution based on their lawful and ethical representation of clients disfavored by the government, undermining the Sixth Amendment;
• threaten law firms and legal clinics for their lawyers' pro bono work or prior government service;
• relent on those arbitrary threats based on public acts of submission and outlays of funds for favored causes; and
• punish people for lawfully speaking out on matters of public concern.
While reasonable people can disagree about the characterization of particular incidents, we are all acutely concerned that severe challenges to the rule of law are taking place, and we strongly condemn any effort to undermine the basic norms we have described.
On our own campus and at many other universities, international students have reported fear of imprisonment or deportation for lawful speech and political activism. Whatever we might each think about particular conduct under particular facts, we share a conviction that our Constitution, including its First Amendment, was designed to make dissent and debate possible without fear of government punishment. Neither a law school nor a society can properly function amidst such fear.
We reaffirm our commitment to the rule of law and to our roles in teaching and upholding the precepts of a fair and impartial legal system.
To be sure, this statement was not issued in the name of Harvard University, or the law school. But this statement was signed by a significant portion of the faculty. At quick glance, a few names are missing: co-blogger Steve Sachs, Jack Goldsmith, and Adrian Vermeule, among others. Quite fittingly, Vermeule has written a response.
