Date22 June 2021
AuthorNicholson, George

We cannot play ostrich. Democracy just cannot flourish amid fear. Liberty cannot bloom amid hate. Justice cannot take root amid rage. America must get to work. In the chill climate in which we live, we must go against the prevailing wind. We must dissent from the indifference. We must dissent from the apathy. We must dissent from the fear, the hatred and the mistrust.... The legal system can force open doors and sometimes even knock down walls. But it cannot build bridges. That job belongs to you and me. (1) Our nation and our people are strongly but fairly evenly divided. Both sides claim the high ground. Too many of us irrationally despise and demonize one another, including those we have never met. Even for those of us with the mind, heart, and will to do so, the challenge of helping to mitigate the division and demonization looms large. It is a daunting, but consuming task.

Judges, especially, appellate court and supreme court judges, are among those best able to help calm this social and cultural storm. Why is that so? Because judges are role models for those in and out of the legal profession, and they are our nation's neutrals, cloaked with community standing, credibility, prestige, and power. I humbly and respectfully suggest we share a duty, which we can pursue in ethical ways, to leverage our temporary, lofty circumstances to help rekindle good will, common sense, and common decency among our conflicted factions.

This special issue of The Journal of Appellate Practice and Process is one attempt to suggest potential ways and means judges may help. As you read the distinguished authors who have contributed articles, you may wish to intersperse readings of three of Abraham Lincoln's most memorable and eloquent orations: his "House Divided Speech" and his first and second inaugural addresses, especially their soaring final paragraphs. (2)

Countless major and minor problems complicate our attempts to utilize "the better angels of our nature" (3) and to hold "malice toward none; with charity for all; with firmness in the right, as God gives us to see the right." (4) And, of course, difficulty in applying Lincoln's humility is compounded by the COVID-19 pandemic and how to rise from it.

An underlying complication to building bridges that began long before the pandemic involves the fundamental question of whether we have one or two Constitutions. The first is the "founders' Constitution--written in 1787 and ratified in 1788, grounded in the natural rights and practical wisdom of the Declaration, interpreted in The Federalist, and expounded in their best moments by subsequent American jurists and states-men." (5) The second is called the living constitution. "The term implies the original Constitution is dead--or at least on life support, in which case, in order to remain relevant to our national life, the old frame of government must continually receive life-giving infusions of new meaning, and along with them new duties, rights, and powers." (6)

The two constitutions dispute has brought confusion and consternation to our people and, for almost thirty-five years, dismaying, ad hominem disunity and negative role modelling to judicial confirmation proceedings in the United States Senate. (7) This implicates the question of whether Chief Justice John Roberts was right or wrong when he said, "We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them." (8)

A young law professor, Aaron Tang, suggests a solution to the two Constitutions dilemma may lie in a novel "harm-avoider approach." He points to numerous cases in which the courts have ruled, not on precedent, but based on which group will suffer least if the court decides against it. (9)

The issues involved in and related to that fundamental question of whether we have two constitutions are among the most contentious of our problems. (10) Even the founding of our nation and its founders are subjects of fierce and widespread, contemporary dispute. (11) Similarly, the work of administrative agencies run by unelected bureaucrats in the executive...

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