I am honored by the invitation to contribute to this blog dedicated to matters of faith and law. In this inaugural post, I would like to consider whether our nation is losing its faith in law. In many respects, law is our national religion. We are “one nation under law” (to borrow from a recent PBS series). Are we losing our religion (to borrow from R.E.M.)?
Confidence in the rule of law was the idea that gave birth to our nation. John Adams famously enshrined confidence in the institution of law in the text of the Massachusetts Constitution. The Massachusetts Constitution separates governmental powers so that Massachusetts “may be a government of laws and not of men.” The founders justified signing the Declaration of Independence by highlighting King George III’s lawless (and tyrannical) conduct. Those who signed were patriots defending the rule of law rather than traitors destroying it.
The idea that ours is a nation of laws is still frequently referenced. Senator Harry Reid, for example, recently noted that “we are a nation of laws, not of men and women.” Donald Trump’s stump soundbites frequently describe our nation as a “country of laws.” But many now question whether the rule of law is threatened. Some question whether the rule of law ever existed, insisting instead that “law” is really just power disguised.
The rule of law is an idea having inspired many to study law and enter the legal profession. John Adams’s service as a lawyer, and particularly his representation of the British redcoats, propelled him into public life. Abraham Lincoln, similarly, was prepared for public as a lawyer. Throughout our nation’s history, many of our best and brightest have pursued professional careers in law.
But this also seems to be changing. In the past five years, for example, the number of applications to American law schools has fallen by more than 40 percent. Bar passage rates are falling. According to the National Conference of Bar Examiners, this downward trend in passage rates reflects a weaker pool of examinees. Some professors agree, explaining away poor bar performance by pointing to weaker students enrolling in American law schools.
These trends may be nothing more than reflections of an ailing economy and a stagnant legal market. But it is possible that these trends also reflect diminishing confidence in the rule of law. Why study law if the path of law leads nowhere?
Not long ago, I attended a Christian Scholars Conference hosted by a Christian liberal arts institution in Nashville. The conference dedicated an entire day to the question of immigration law and policy. After hearing from a state university president, a federal judge, and several other policy advocates, I asked a question about the rule of law. There was not much interest. Instead, the conversation returned to questions of fairness and concern for social justice.
Others are suspicious of the “rule of law” because the phrase is being used as a hammer to stamp out dissent. Kim Davis comes to mind. As do the Little Sisters of the Poor.
As this blog unfolds I look forward to examining our commitment to the rule of law, and what this commitment does and does not mean for men and women of faith.
Rob McFarland
Robert L. McFarland is Associate Dean of External Affairs and Associate Professor of Law at Faulkner University’s Jones School of Law.
