David Bernthal/Off the Bench: Celebrating the rule of law on May 1

David Bernthal/Off the Bench: Celebrating the rule of law on May 1

When I was a lad, the first day of May was commonly celebrated as May Day. Children would pick flowers, put them in baskets and secretly deposit the baskets on the front porch of the nice lady who always gave the best Halloween candy. It was also the day the Soviets celebrated themselves by parading missiles and soldiers through Red Square. While the former was nice, the latter was downright obnoxious to Americans — so we countered with Law Day.

We wanted to celebrate the rule of law, a sharp contrast to the rule of the Communist Party. In 1957, American Bar Association president Charles S. Rhyne championed the idea of designating a special day to celebrate our legal system. The following year President Dwight D. Eisenhower established Law Day as a day of national dedication to the principles of government under the law. Thereafter Congress designated May 1 as the official date for celebrating Law Day.

Each year, a theme is designated to call attention to a specific aspect of the law or legal process and the way in which it affects our lives. In 2017, that tradition continues. "The Fourteenth Amendment: Transforming American Democracy" has been announced as the theme. American Bar Association President Linda Klein wrote about the theme, saying it "... commemorates the important contribution this historic constitutional change made to the understanding of what it means to be an American and how closely liberty is tied to equality and justice."

While today's column does not allow an in-depth look at this important element of our constitution, a few basic aspects can be pointed out. The amendment was ratified on July 9, 1868, and was one of three Reconstruction Amendments. It greatly expanded civil rights protection to all Americans.

One hundred forty nine years after its ratification, this amendment still is central in civil rights litigation. While the amendment has five sections, the first is the one courts deal with the most.

That section provides

All persons born or naturalized in the United States, and are subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The first sentence clarifies citizenship. This was particularly significant for people coming out of the Civil War and remains so today. The second sentence confirms that states cannot deprive citizens of rights established by the constitution. Thus, the protections of the constitution such as that prohibiting unreasonable search and seizure can be enforced not only against federal actors but also those of the states.

The remaining clause is commonly referred to as the due process clause. Two concepts have been identified by courts. Procedural due process guarantees that a person facing criminal punishment or loss of property has a means of challenging the action. The best example is the right to a fair trial for someone prosecuted for a criminal offense. People tend to debate whether a particular result is fair. Courts must be vigilant in making sure the process is fair and all rights are protected.

The second concept is known as substantive due process. This principle empowers courts to protect individuals from government actions that interfere with certain fundamental rights.

The final clause deals with the concept of equal protection. The clause prohibits states from discriminating against individuals or groups and promotes constitutional equality.

It is amazing to think how much is packed into this paragraph length section. These are powerful words that profoundly impact the relationship between citizens and those who wield governmental power.

Even though I have been involved in litigation dealing with due process and equal protection throughout my career, I admit experiencing a sense of awe as I sat down to think about the Fourteenth Amendment in preparation for writing this column. Perhaps that is what those who chose this year's theme had in mind. As Stephanie Parker, National Law Day Chair for the American Bar Association, stated in her message, the theme "... recognizes the milestone anniversary of this transformative amendment that serves as the cornerstone of landmark civil right litigation, the foundation for court decisions protecting fundamental rights and a source of inspiration for those who advocate for equal justice under Law."

Happy Law Day.

David Bernthal, who lives in Mahomet, is a retired 21-year federal magistrate and before that an eight-year associate circuit judge in Vermilion County. He is Of Counsel with the Webber & Thies PC law firm and serves as senior mediator and arbitrator with ADR Systems. His email is askthejudge1@gmail.com.

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