On October 8, Brooklyn Law School Ruth Bader Ginsburg Professor Susan Herman gave the I. Leo Glasser lecture. (Judge Glasser at 101 was present for the lecture.) Professor Herman was the 2008-21 president of the American Civil Liberties Union. The following is an edited version of her remarks. As a law professor and as ACLU president through President’s Trump’s first term, Professor Herman was particularly qualified to mount a defense of the Rule of Law. In her talk, “A More Perfect Union,” she stated in part as follows:

Neutral Principles Under the Constitution

The idea that reasonable people can and do differ – an idea that is under siege today – is fundamental . . . to the Constitution. The First Amendment posits that there is no one correct view of religion or of politics. We, the People, not government officials, all get to make our own choices – which means that our union was always expected to embrace a range of divergent viewpoints. The Constitution provides unity through the neutral principles that it places beyond politics and individual preference. As the late Supreme Court Justice Robert Jackson put it in West v. Barnette, 

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

[T]hese foundational principles – free speech, due process, equal justice for all – are a lot like the golden rule. If I want to speak my truth or not be deprived of my freedom without a fair hearing, I should treat others the same way I would have them treat me. Not everyone perceives that rights are a two-way street. . . . In these days of hyper political polarization, too many people are willing to ignore our constitutional golden rules because they regard their political adversaries as enemies or predators – as something less than human, as “scum” – and therefore not entitled to human rights or even respect. 

The First Question Posed by the Professor: Can Our Union Survive Under These Conditions?

[O]ur revered founders – Federalists and anti-Federalists, abolitionists and anti-abolitionists – bitterly disagreed about profound issues like the acceptability of slavery and the scope of federal supremacy. Think John Adams and Thomas Jefferson, lifelong adversaries. But nevertheless the framers managed to agree on the contents of the Constitution. [T]hose delegates, divided as they were, were nevertheless able to forge a compromise document that all of them were willing to sign.

Her Second Question: Can You Even Imagine That Kind of Compromise Happening Today?

The way the framers found common ground was by focusing primarily on process and structure rather than results: they hammered out rules for choosing the people who would make the hard policy decisions in the future, rather than trying to resolve all of their disputes once and for all time. They created an elaborate system of checks and balances to ensure that no one faction could monopolize the government. And they agreed to live together and continue the debate despite their differences. 

Our national union is feeling more endangered every day because we aren’t willing to listen to and compromise with one another. 

A Third Question: How Deep Are Our Divisions? 

Do we all still believe in the same fundamental constitutional values – free speech, due process, equal justice for all? I think we do, at some level, but too many of us are willing to make exceptions to those principles for particular results we view as really, really important – like shutting down speech we find very offensive. Free speech for me, but not for thee? Or skipping due process before deporting people we’ve been told are barely human and are putting the country in danger. What happened to the golden rule? 

A Fourth Question: How Did the Courts Come to be the Guardian of the Constitutional Principles That Protect Us From One Another?

The professor referred back to the Founding Fathers starting with John Adams who may have believed in the First Amendment, but when he was elected as the second President of the United States, his administration enacted the Sedition Act of 1798—allegedly to promote national security by shutting down seditious speech. James Madison and Thomas Jefferson both declared in their Virginia and Kentucky resolutions that the Sedition Act violated the First Amendment. But when Matthew Lyon, a Vermont Congressman, was convicted of sedition and imprisoned for mocking Adams (saying, for example, that Adams had “an unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice”), the states did not have the power nor the courts the will to protect his right to dissent. 

It was not until the 20th Century that the Supreme Court, through a series of cases involving the speech of union organizers, pacifists, anarchists, Communists, and KKK supporters, decided that it should be the job of the courts to protect the right to express unpopular viewpoints. I’m sure many of you know at least some of this story, which features Justices Holmes and Brandeis – and the ACLU. Under the doctrine developed in those cases, a court today would be obliged to dismiss any attempt to prosecute someone for mocking the President or for saying things that many or even most Americans find offensive. 

Justice Jackson also stated in West Virginia v Barnette that:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us. 

That is our tradition at its best. The First Amendment, in the words of Oliver Wendell Holmes, guarantees “freedom for the thought that we hate.” Unpatriotic speech is not an exception. Mockery of the President is not an exception. Hate speech is not an exception.

Current Events and the Experience of the District Courts During the Second Trump Administration

District court judges across the country are currently finding themselves at the constitutional barricades once again. Donald Trump has been trying to do exactly what Barnette prohibited: trying to “prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.” I am not going to try to give you a bill of particulars of the ways in which the Trump administration has been defying the Constitution and laws – there too many examples to fit the time I have available – and I think you all know enough to have your own opinions about whether or where President Trump has overreached. 

The prevailing opinion in our district courts is that the administration has been violating the Constitution and laws in many areas: like deportations without due process, feeding entire agencies created by Congress to the woodchipper, stripping babies born in the U.S. of their constitutionally guaranteed birthright citizenship, imposing tariffs Congress has not authorized or delegated. According to the Just Security litigation tracker, in the past eight months, the federal district and circuit courts have issued injunctive relief against Trump administration actions in over 140 cases and denied relief in 38. The judges who have been upholding the First Amendment, due process, the rule of law, are appointees of Democratic and Republican Presidents alike, including appointees of Donald Trump. Our judges, true to their oaths, are protecting and defending the Constitution and the laws of the United States.

At least since Marbury v. Madison was decided in 1803, it has been the job of the courts to say what the law is and to require the President to follow the law. Whether or not you think the law should change, whether you admire or detest this administration’s goals, these district judges are right to preserve the status quo – unless and until Congress or the Supreme Court changes the law.

The Supreme Court

The Supreme Court, while reversing some grants of temporary injunctive relief, has been mostly leaving the job of saying what the law is to the lower courts – for now. But here’s what our courts are up against in upholding the rule of law. People who don’t like the courts’ results are threatening and trying to intimidate judges. They have pizzas delivered to the homes of judges to show that they know where those judges live. Members of Congress have suggested impeaching judges who impede the Trump agenda. 

Three Examples of Attacks on the Independence of the Judiciary From Within the Administration

(1) In March, Attorney General Pam Bondi filed a misconduct complaint against District of Columbia Chief Judge James Boasberg, who was presiding over a case regarding peremptory deportations to El Salvador. At a judicial conference, Boasberg shared his concern about the administration’s willingness to comply with his orders – the administration had already disregarded his order to bring deportees on their way to El Salvador back to the U.S. pending disposition of the case. The Attorney General accused Boasberg of “undermin[ing] the integrity and impartiality of the judiciary” by impugning the administration and asked that he be investigated for possible sanctions, including impeachment, and reassignment of the case. A few months later, a Washington Post analysis of hundreds of lawsuits filed against the administration concluded that the administration had engaged in defiance, delay, and dishonesty in one third of the cases studied. 

(2) When the federal district judges in Maryland united in a standing order to pause deportations pending habeas corpus litigation about the legality of those deportations – for a consistent two days – the Trump administration brought a lawsuit against all 15 of the judges. Because all of the Maryland judges were defendants, a judge was brought in from Roanoke, VA, to hear the case. That judge, Thomas Cullen, a Trump appointee, wrote a scathing 39-page opinion dismissing the case and excoriating the government for other attacks on the independence of the judiciary. 

(3) Most alarming of all are the suggestions from within the administration that the courts have no business deciding what exercises of presidential power are “legitimate.” Ever since Marbury v. Madison and U.S. v. Nixon, it has been generally understood that complying with federal court orders is not optional. 

Another Problem With Our Reliance on the Courts: The Lawyers

However steadfast judges are in the face of threats, you can’t have litigation without lawyers and plaintiffs. But potential lawyers are being intimidated and the potential plaintiffs who could best afford litigation – major law firms, universities, television networks – are frequently choosing to settle rather than litigate, sometimes because they are intimidated, and sometimes because winning a lawsuit could nevertheless be costly. 

The president’s blatant attempts to punish and disarm law firms whose lawyers have opposed his interests at any point in the past –- by denying the firm’s lawyers security clearances and access to government buildings – is also a way to dissuade other law firms and lawyers from representing people the President regards as enemies. Now, imposing partisan restrictions on lawyers violates the First Amendment. The four law firms, including Perkins Coie, that have taken their constitutional claims to court have won legal victories. But the nine firms that folded and made deals with the administration rather than stand on their rights may turn out to have made a better bet economically if they’re picking up clients who don’t want to provoke the administration. It’s not yet clear, as lawyers and clients move to and from the targeted firms, what the final balance sheet will show. 

Is it too much to expect lawyers, like judges, to stand up for the rule of law, even if it costs them something to do so? 

Colleges and Universities

The same kind of dilemma – profit versus principle – has roiled colleges and universities. What are Harvard and Columbia willing to do to preserve their federal grants and avoid government obstruction and interference? Like the law firms, universities are not likely to be made whole economically by litigating, even if they do have winning First Amendment or other claims. 

The Media

And then there’s the media. When Donald Trump sued ABC and CBS for the content of their news coverage, I think the networks also had winning First Amendment claims. But both networks paid Trump large amounts of money to settle those cases. Why? They evidently did not want to alienate the administration and risk approval of potential mergers. Any victory in litigation would have been slow in coming, expensive, and incomplete.

Unlike the iconoclasts in the 20th century First Amendment cases, the prominent organizations now in the government’s crosshairs – major law firms, universities, media networks – are entangled in an economic relationship with a vengeful government. 

Where Else Can We Look? 

So, in sum, we cannot count on the courts alone to check or balance the Trump administration. Any potential dissidents or moderating forces within the executive branch are rapidly being purged or neutralized. The states have limited powers of resistance. But even if states and cities can withstand the heavy hand of federal supremacy trying to obliterate their local policies and autonomy, federalism can only result in a crazy quilt of a country instead of a union.

The Best Strategy

Our strategy has to be to remember the words of Judge Learned Hand: “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it.” Americans who have lost their faith in or their commitment to constitutional liberties – and structures – will not support the judges, the lawyers, the organizations or the individuals who try to limit the President’s “unbounded thirst” for power, to quote Matthew Lyon. And they are unlikely to care about our union. 

But one source of hope is that red and blue Americans alike actually do agree on the importance of neutral principles and following rules – in sports. Perhaps we can build on that agreement and build a politics that values process and not just results at any cost.

The Most Urgent Question: How Can We Reignite Liberty, Respect for the Golden Rule of Law, and Hope in the Hearts of Today’s Americans?

There’s an anecdote about a woman who approached Benjamin Franklin and asked him what kind of government the new Constitution had established: a republic or a monarchy. Franklin replied, “A Republic, madam, if you can keep it.” If you can keep it – not only if judges or elected officials can keep it. If we can keep it.

So I will end where I began, and where the Constitution began: We, the people, are the ones who need to find a way to keep our republic and to form a more perfect union.