Pocket Constitutions, Warren Burger, and The Rule of Law

Pocket Constitutions recently got a lot of publicity. Some people had them and showed them off. Other people didn't have them but wished they did.

I've got a pocket Constitution. I got mine in 1986 from former Chief Justice Warren Burger. It was my first year at the Federal Judicial Center and Chief Justice Burger was working very closely with our director, Prof. Leo Levin, on planning the bicentennial celebration of the Constitution's creation in 1787. One night I was leaving the office and getting off the elevator in the Dolley Madison House lobby and met the CJ and Prof. Levin, who were on their way up. Leo introduced me to the Chief Justice, who was wonderfully gracious and, as he did in those days leading up to the bicentennial, reached into his coat pocket and handed me a pocket Constitution. I was honored and kept it in my top desk drawer for 30 years at the FJC, referring to it often.

Chief Justice Burger's love of the Constitution was deep-seated. That's why he spent so much of his time, energy, and stature chairing the bicentennial celebration, and that's why he handed out pocket Constitutions to everyone he met. To him, it was the glue that held the United States together and symbolized what made our country different: The rule of law.

What is "the rule of law?" Simply put it's the belief that the people of the United States and the government they formed respect the law, its institutions, and the decisions that are made through the legislative, executive, and judicial processes that the Constitution created. It means that every person is subject to the law, no matter what their position is. And it means that people follow the law, even if they don't agree with it.

Often during my years at the FJC we would get groups of visitors from foreign countries who came to the Center to learn about the U.S. judicial system. Many of these groups came from countries that were not governed by the rule of law but instead by the rule of powerful individuals, ideologies, or militaries. They did not understand what we meant when we talked about the rule of law. Many times, we would get asked questions about what happens if a president violates the laws. Surely, they would say, the president is above the law.

So we would tell them about 1974, when President Nixon was subject to removal from office for violating the law and when he resigned. "Voluntarily?!" they would ask with some amazement. "Yes," we would say. "Did you have to send in military troops to remove him?" they would ask. "No," we would say. "Well, did you have to call out troops to keep the peace and stop his supporters from rioting?" they would ask. "No," we would say. "How is that possible?" they would ask again in disbelief. "The rule of law," we would say quietly.

Warren Burger believed in the rule of law. The Supreme Court under Burger made one of the important legal decisions that directly led to President Nixon's resignation, ruling that audio recordings made of the president's discussions with his aides were not protected by "executive privilege" and had to be released to the public. Burger, who had been appointed Chief Justice by President Nixon, did not originally agree with that decision. But he joined it, in part so that the decision would be unanimous and there would be no question about its weight and authority. In his mind, that's what the rule of law required.

I think a lot about Warren Burger and the rule of law during these days when many people seem to question our institutions, their decisions, and their legitimacy. That scares me. As Warren Burger knew, the rule of law is really an implicit agreement between the people and the government: As long as government institutions follow the rules and procedures required by the Constitution -- what we call "due process" -- the people will respect the decisions it makes, even if they don't agree with them. But when the legitimacy of that process is constantly questioned and doubted, well, what then?

On my last day at the FJC I took the pocket Constitution out of my top desk drawer and put it in my briefcase. I keep it in my office at home, and take it with me when I travel. I still refer to it often. I wonder sometimes about the people who occupy our highest offices. I don't always agree with what they say and do. But as Warren Burger was trying to tell me when he handed me that little book almost 30 years ago, it's what has kept our country going all this time. And it continues to be our best hope for the future.