Dean Spencer Releases Statement on the Rule of Law
Editor's Note: Dean A. Benjamin Spencer published his articulation of the principle of institutional neutrality and a reminder regarding important principles pertaining to the rule of law in our society.
As a public university in the Commonwealth of Virginia, William & Mary is bound to the Constitutions of our Commonwealth and of the United States. Consistent with our educational mission, William & Mary embraces a culture of open debate, reflection and listening. Please read the University's Guiding Principles for Leadership Communications here.
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As the leader of a law school, I am the representative of an institution of higher education and, as such, I—on behalf of the institution—must rigorously adhere to a policy of institutional neutrality, a concept most succinctly and eloquently articulated in the Kalven Report of the University of Chicago, which I quote here at length:
“The instrument of dissent and criticism is the individual faculty member or the individual student. The university is the home and sponsor of critics; it is not itself the critic. . . . [A] university must sustain an extraordinary environment of freedom of inquiry and maintain an independence from political fashions, passions, and pressures. A university, if it is to be true to its faith in intellectual inquiry, must embrace, be hospitable to, and encourage the widest diversity of views within its own community.”
“Since the university is a community only for these limited and distinctive purposes, it is a community which cannot take collective action on the issues of the day without endangering the conditions for its existence and effectiveness. There is no mechanism by which it can reach a collective position without inhibiting that full freedom of dissent on which it thrives. It cannot insist that all of its members favor a given view of social policy; if it takes collective action, therefore, it does so at the price of censuring any minority who do not agree with the view adopted.”
“The neutrality of the university as an institution arises then not from a lack of courage nor out of indifference and insensitivity. It arises out of respect for free inquiry and the obligation to cherish a diversity of viewpoints. And this neutrality as an institution has its complement in the fullest freedom for its faculty and students as individuals to participate in political action and social protest. It finds its complement, too, in the obligation of the university to provide a forum for the most searching and candid discussion of public issues.”
Because of this policy, as long as I occupy the role of the leader of an institution of higher education, you will not see me sign mass statements of any group that purports to “condemn” this or that political action that some may find objectionable (and that others may not). Further, I can speak for myself and will do so when appropriate. As a result of the need to find language that is agreeable to most signatories, these group statements tend to lack the nuance, depth, and precision that these topics warrant, and more often than not betray an ideological bias that it would be inappropriate for an institutional leader to display. Thus, both as an institutional leader and as an ardent political independent, affixing my name to these kinds of statements is something I simply do not do.
Now, because I lead a law school, I will simply reaffirm for our students three important principles that they should understand and embrace as they think about contemporary developments and as they pursue careers as Citizen Lawyers.
The first is that an impartial and independent judiciary is vital to the rule of law in a classically liberal democratic republic. Although our system does provide for a strong executive on the federal level, as William & Mary Law School alumnus Chief Justice John Marshall wrote in Marbury v. Madison, “It is emphatically the province and duty of the judicial department to say what the law is.” To fulfill its responsibility to exercise “the Judicial power of the United States”—which entails the authoritative resolution of live disputes between litigants with conflicting views of the law and its application to a concrete set of facts—federal judges must be able to hear and adjudicate cases without fear or intimidation, faithfully applying the law to the best of their ability. If they get it wrong, then—as current Chief Justice John Roberts recently stated—“impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.” The judicial and appellate review processes are currently being employed and we all should await their outcomes, with the expectation that the resultant final determinations will be followed.
The second principle is that the right to counsel in most cases is a fundamental component of a system characterized by the rule of law. Before the government can deprive anyone of life or liberty, they must have the right to have a lawyer represent them in the matter. This right is enshrined in the criminal context in the Sixth Amendment to the U.S. Constitution, while various states and localities may extend a right to counsel in other legal contexts, including instances where property deprivations are at stake. A necessary concomitant of this right is the duty of lawyers to provide zealous advocacy for those whom they represent and their ability to take on the representation of clients who may be extremely unpopular in the eyes of the government, its leaders, or the public at large. No lawyer or law firm should face adverse, punitive actions from the government simply based on whom they have represented in legal actions, absent a determination of the violation of applicable ethical and professional rules of conduct. There are certainly occasions where lawyers abuse the legal process by taking frivolous or baseless positions; at the state and federal level there are multiple mechanisms available to courts and to licensing authorities that are in place to address those abuses. To the extent that those systems fall short, they should be strengthened to ensure that lawyers practice their craft ethically.
The third principle is that due process of law must accompany any governmental deprivation of life, liberty, or property in a society that adheres to the rule of law. This principle means, for example, that governmental actions such as extrajudicial killings of criminal suspects or their rendition beyond the United States outside of any legal framework are typically prohibited actions. But due process is a fluid concept, with the process that is due often depending on the circumstances, particularly if relevant exigencies are determined to exist, or if the context is some sort of international or non-international armed conflict. Thus, although the rudiments of due process typically include the right to a hearing before a neutral arbiter, whether that hearing precedes or follows the deprivation, the character of the neutral arbiter, and the participation rights of the person whose life, liberty, or property are in question rightly vary depending on innumerable variables. When the government acts to work a deprivation on a person in a manner that some may find objectionable from a due process perspective, the hope is that there will be judicial review of the matter and that an ultimate determination of the propriety of the deprivation and attendant process will be authoritatively resolved in that manner. That is the process we are currently witnessing on many fronts today; time will tell how it plays out.
I have written these words not to argue for one side or the other of contemporary political debates over the actions of the current federal administration. Rather, these thoughts have been offered simply to provide our students a clear statement of sound principles concerning the rule of law to which they should commit themselves and to provide a yardstick against which each of them can, for themselves, assess the actions they are witnessing with respect to the individuals suffering governmental deprivations, the lawyers who represent “controversial” litigants, and the judges who hear and resolve the disputes that are presented to them. My role as an educator is to teach my students how to think, not to tell them what to think.