Articles & News 2006

Carlucci Cited for Law Day Speech

Bill CarlucciLLA member William P. Carlucci has been awarded second place by the American Bar Association Standing Committee on Education in the 2006 Judge Edward R. Finch Law Day Speech Award competition.  The honor was awarded for the speech Carlucci delivered at the LLA Law Day reception honoring members of the Superior Court.  His topic: Three Co-equal Branches of Government – A Formula for Freedom.  Carlucci is the Immediate Past President of the Pennsylvania Bar Association.

The Judge Edward R. Finch Law Day Speech Awards were established in 1968 by Edward R. Finch, Jr., in memory of his father, a member of the American Bar Association Adjunct Committee on Law Day and a Justice of the Supreme Court of New York for many years. The awards encourage speeches that help the public understand the rule of law and appreciate the positive role law plays in our society.

The ABA highlights winning speeches on its website and in next year's Law Day planning guide.  Read the speech below:

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Three Co-equal Branches of Government – A Formula for Freedom

William P. Carlucci - May 2, 2006

Since May 6, 2005, it has been my privilege to serve the 28,000 women and men who are the Pennsylvania Bar Association, as their President. While I have been occupied with the duties of that office, the birthdays of two important lawyers have passed us by.

September 24, 2005 was the 250th anniversary of the birth of Chief Justice John Marshall. Marshall served a stint in the Continental Army, including encampment at Valley Forge. After his discharge from military service, he embarked upon a legal career. Even though he had very little formal legal training, Marshall became a very successful practitioner. He also became a leader in the Federalist party in Virginia, which put him at political odds with fellow Virginians Thomas Jefferson and James Madison. His close friends in the Federalist Party included President John Adams. In January, 1901, after Adams lost his re-election bid to Thomas Jefferson, he appointed John Marshall Chief Justice of the United States. In those waning days of his presidency, Adams also appointed 42 Justices of the Peace. Although the Federalist Senate confirmed the appointments, not all of the commissions were delivered by the time that Thomas Jefferson took office. President Jefferson directed his Secretary of State, James Madison, to withhold the commissions from 17 of those Justices of the Peace appointed by Adams. Four of those appointees, including William Marbury, applied to the United States Supreme Court for a Writ of Mandamus, to compel Madison to deliver their commissions.

Chief Justice John Marshall was not only a bright, self-taught lawyer, but also an accomplished politician. He understood that a Writ of Mandamus would be ignored by Madison, making the new United States Supreme Court appear powerless. Worse, a decision by the Court not to issue the Writ of Mandamus would be regarded as an act of cowardice by the new Court.

Marshall responded by authoring an opinion that was both legally sound and politically astute. He wrote that Marbury was legally entitled to his commission under the Judiciary Act of 1789, but that the Judiciary Act itself exceeded the authority of the United States Supreme Court under Article III of the United States Constitution. In so holding, Marshall observed, “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.” . . . “If then the courts are to regard the Constitution; and the Constitution is superior to any ordinary act of the legislature; the Constitution, and not such ordinary act, must govern the case to which they both apply.”

By this brilliant legal maneuver, Marshall not only avoided a fateful confrontation with the Executive Branch, but established the Federal Courts of the United States as the final authority on questions of Constitutional interpretation.

July 29, 2005 was the 200th anniversary of the birth of Alexis de Tocqueville of France. After de Tocqueville completing his study of the law in Paris, de Tocqueville was appointed to the post of juge auditeur. That post provided him with the opportunity to travel to the fledgling United States of America, for the stated purpose of investigating the prison system.

De Tocqueville and his companion, Gustave de Beaumont, arrived in New York City on May 11, 1831. For the next ten months, they toured the United States, studying its people, and their grand experiment in self-government. They returned to France early in 1832. Shortly after their return, De Tocqueville published the first of two separate volumes on the subject of their trip, which became know collectively as the work Democracy In America. Among the eighteen chapters of Book I, de Tocqueville describes at Chapter XVI “Causes Which Mitigate The Tyranny of The Majority In the United States, including his description of the American judiciary:

“Armed with the power of declaring the laws to be unconstitutional, the American magistrate perpetually interferes in political affairs. He cannot force the people to make laws, but at least he can oblige them not to disobey their own enactments and not to be inconsistent with themselves. I am aware that a secret tendency to diminish the judicial power exists in the United States; and by most of the constitutions of the several states the government can, upon the demand of the two houses of the legislature, remove judges from their station. Some other state constitutions make the members of the judiciary elective, and they are even subjected to frequent re-elections. I venture to predict that these innovations will sooner or later be attended with fatal consequences; and that it will be found out at some future period that by thus lessening the independence of the judiciary they have attacked not only the judicial power, but the democratic republic itself.”

It is widely reported that high school students in the United States know little about our founding documents, and less about the people who wrote them. I deeply regret that failing in our educational system, because I believe that Jefferson and Madison and Marshall and Adams and others of their time discovered a magic formula for freedom in our system of three co-equal branches of government; each of which is set in good natured tension against the others.

Spanish born philosopher George Santayana is quoted as saying, “Those who cannot remember the past are condemned to repeat it.” I fear that our collective failure to educate our children about the history of world tyranny may condemn them to repeat it.

A small but vocal group, led by a former California resident, has undertaken to promote a national campaign, called the “Judicial Accountability Initiative Law” (J.A.I.L.), which they call “JAIL for Judges”. They advocate statewide referendums patterned after an unsuccessful initiative originally advanced in California. Under the “JAIL for Judges” initiative, judicial immunity would be sharply curtailed.

Further, statewide grand juries would be impaneled to consider civil and criminal actions brought against judges by those who disagree with their conduct or decisions. Jurors on these special grand juries would judge all facts and law with regard to civil and criminal actions against judges. The qualifications to serve on a “special grand jury” include: (1) having reached the age of 30, (2) nine years as citizen of the United States, and (3) two years a citizen of the state. Excluded from service would be judges, law enforcement personnel, elected or appointed officials, and lawyers, among others.

Angry citizens, untrained in the law, sitting as judge and jury of those who they despise. To me, this sounds remarkably similar to the Committee for Public Safety that was the de facto government of France during the Reign of Terror of the French Revolution. That comparison might not be appreciated, however, by high school students who know everything about Julia Roberts, but nothing about John Roberts.

To those of us who understand and respect the rule of law, “JAIL for Judges” sounds like the stuff of a late night comedy monologue. The joke may be on us, however, since this very proposal is listed for a referendum vote in South Dakota in November of this year.

Our celebration of Law Day must include more than saluting our flag, and polite dinner conversation. As citizens, and particularly as lawyers, we must reaffirm our commitment to the rule of law, and to three co-equal branches of government. We must speak out, and speak out loudly, against any attempt to weaken our third branch of government. If we fail, we may learn that de Tocqueville was right, and that, by lessening the independence of the judiciary, we have attacked the democratic republic itself.