Mario Cuomo gave a speech on the Wednesday before Thanksgiving to 2,000 of the most influential lawyers in NYC. The program didn’t give a title for the speech, but Gov. Cuomo repeatedly invoked, as if she were some kind of Catholic saint, “Our Lady of the Law.”
He called out “power seeking presidents” who engage in “efforts to throw off constitutional restraints” through various means. He decried in particular
“signing statements,” “secret White House task forces,” and the “unprecedented politicization of the Department of Justice.”
But of all the overreaching by presidents, the one that came under Gov. Cuomo’s harshest criticism was
“the seizing by presidents of the power to declare war.”
Cuomo said flat out that the AUMF “violates the Constitution.” He pointed out that under our Constitution the Congress’ power to declare war is non-delegable.
It was one of those smack yourself on the forehead moments. It’s so obvious now that he has said it. He went into some history involving litigation about the Viet Nam War and pointed out that SCOTUS has never ruled one way or the other whether or not the Korean police action, Viet Nam, Kosovo, etc., etc., etc. are legal or not. SCOTUS has neither condemned nor approved of the president engaging in war absent a Congressional declaration of war.
I lost count of how many times he used the word Monarch in his speech—but it was a lot. He said,
“There is a time to be silent and a time to speak. This is the time for lawyers to speak.”
Later, the following line caused quite a few members of the audience to interrupt the speech with spontaneous applause when he made reference to a march by lawyers that had taken place in NYC the previous week to express solidarity with the lawyers protesting in Pakistan:
“If US lawyers are marching in the streets in support of the rule of law in Pakistan, why aren’t we marching in support of the rule of law here?”
(meaning in support of the rule of law in the US)
He said that Our Lady of the Law had endured for 200 years because we had upheld her, but now a timid Congress was throwing away the Constitution with both hands and that
“We have no heroes. We are not even sure what we want to make of ourselves as a nation.”
which I took to mean that he thought somehow we, as a nation, were failing to effectively communicate to Congress what our vision for ourselves as a nation might be. Not that we aren’t trying, heaven knows, but it is obvious that our message is not getting through to them. Cuomo said we have to make them understand that we are after
“something sweeter than the taste of partisan victory”
The clear message was that he fully expected that it was the obligation of lawyers everywhere to speak up in support of the Rule of Law or as he persisted in calling it “Our Lady of the Law.” That he expected us to take to the streets, to the OpEd pages, the airwaves, and to every other medium available to us (I hope blogs count).
He even at one point mentioned litigation that had occurred apparently challenging the legality of the Viet Nam war. Unfortunately, he never mentioned the name of the case, though it was before a Judge Judd [sp?] and there was some intervention involving Justice Douglas. If anybody has clue what that refers to, I’d like to know. There may be some instruction in the history of that case that we can learn from. [Edit: Holtzman v. Schlesinger, 414 U.S. 1304 (1973)]
You know early in his speech, he went into how his grocery store owning immigrant parents were soooo impressed when he became a lawyer. And how they never wanted him to be “a crooked politician,” they wanted him to be a judge.
There is some prestige and deference that people throw your way just because you’ve got that sheepskin. However, that honor comes with responsibility. Shakespeare’s famous “first let’s kill all the lawyers” line was uttered by a character who wants to end the rule of law.
That character believes that lawyers are more than machine operators who know how to manipulate the cogs and levers of the law. We are meant to be its guardians and protectors as well. So, if you want to end the rule of law, you must first silence the lawyers.
His final call to action was this:
“If not the lawyers, then who? If not now, when?”