David Bernthal/Off the Bench | Understanding the significance of Law Day

David Bernthal/Off the Bench | Understanding the significance of Law Day

We are frequently reminded that time does fly. I experienced one such reminder when I sat down to write my May column. Since May 1 is Law Day, I had an obvious subject. But I hesitated, thinking I had written about Law Day just a few months ago. Well, a few turned out to be 12. It is no wonder there are so many candles on my birthday cake.

As you may recall, the American Bar Association promoted the idea of designating a day to celebrate our legal system. In 1958, President Dwight D. Eisenhower established Law Day as a day of national dedication to the principles of government under the law. Later, Congress designated May 1 as the official date for celebrating Law Day.

While there are no parades, picnics or fireworks, it is an occasion to be observed given the importance of law in our democracy. For starters, our United States Constitution provides the foundation for the relationship between the government and the governed. Furthermore, it defines the role of each of the three branches and serves as the basis for the system of checks and balances that we all learned about in school.

Each year, a theme is chosen for the Law Day commemoration. This year, it was "Separation of Powers: Framework for Freedom."

The Founders had not had a good experience with the king. Accordingly, they did not want to give one person or component of the government too much power. In Federalist No. 47, James Madison declared, "The accumulation of all powers, legislative, executive, judiciary ... may justly be pronounced the very definition of 'tyranny.'"

As a result, the Founders chose to avoid consolidating power by splitting authority among three distinct branches and in doing so created the checks and balances noted above. This year's theme encourages us to pause and reflect on this separation of powers as fundamental to our Constitution's purpose.

Article I of the Constitution establishes the legislative branch, which consists of the Senate and The House of Representatives. This branch is responsible for writing and passing our nation's laws.

Article II is responsible for the creation of the executive branch which has, among other powers, responsibility for enforcement of federal laws.

Article III is the basis for the judicial branch. The article created the Supreme Court and gave Congress the power to establish lesser courts. Circuit courts of appeal and district courts were brought into being under this power.

I do not think you will find the term "checks and balances" in the language of the constitution. However, the allocation of power among three separate branches achieved that result.

Space permits only a few examples. While the president, as head of the executive branch, can veto bills and nominate federal judges, Congress can override vetoes and holds the power to impeach. Nominees submitted by the president must be confirmed by the Senate. Courts have the power to rule on the constitutionality of executive actions or laws when challenged.

While the Founders set it up, each generation is responsible for understanding the system and working to preserve it. As noted by Hilarie Bass, president of the American Bar Association, "A workable structure for the government alone, however, is not sufficient to protect the rights and liberties of the people. For that to occur requires an engaged citizenry. Each of us as individuals has a responsibility to act to ensure that our government works properly and protects the freedom of the people. Making the effort to be an informed citizen; contacting your local, state and national representatives about issues that are important to you; attending town hall meetings; and most importantly, voting; all help to ensure that all levels of our government serve the people."

It is clear that the American Bar Association intends to use Law Day to educate the populace and, further, to challenge us to avoid complacency.

In addition to the words of Bass noted above, ABA National Law Day Chair Jacqueline Becerra said, "Our Law Day 2018 theme, 'Separation of Powers: Framework for Freedom,' takes a nonpartisan look at checks and balances and how that applies to our government. The 2018 Law Day theme intends to go a step beyond what we learn in textbooks in order to underscore the importance of this system of government set forth by the Founding Fathers."

The concept of separation of powers among three branches of government and the resulting checks and balances on the authority of each is as important to our democracy today as it was when created. Let us do our best to understand it and work hard to protect it.

David Bernthal of Mahomet is a retired 21-year federal magistrate. He is a 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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