A Message to Students: Fight for Democracy (Guest Post by Kent Greenfield)

 [Editor's note: The following essay is an edited version of Boston College Law Professor Kent Greenfield's final lecture this past semester to his first-year constitutional law students. It is cross-posted at the WBUR website.]

Today completes my 30th year teaching law. You’ve been wonderful this semester. Thank you.

But It has been a difficult time to teach constitutional law, and it must have been a difficult time to learn it. We are in a dangerous moment.

How do we make sense of the law right now? Of our profession?

Lately I have been thinking about Joshua Chamberlain, the Bowdoin professor-turned-Union army officer who led the 20th Maine Volunteers during the Civil War (and eventually became governor). On the pivotal second day of the Battle of Gettysburg, his regiment guarded the leftmost edge of the Union line atop a hill called Little Round Top. Union generals expected the fighting to be elsewhere that day, and the Maine men were few. But Confederate troops had secretly amassed below, hoping to turn the Union flank. If they succeeded, they could trap the Union army to its north and march on Washington. The South could win the war.

After a day of fierce fighting, Rebels girded for a final assault. Chamberlain’s exhausted troops were almost out of ammunition. The professor shouted a command. “Fix bayonets!”

His men charged down the slope and turned the tide. They saved the country.

There are turning points in history. And in those moments, individuals with the knowledge of what to do and the courage to do it can make the difference.

We are at a turning point now, and you have been developing the expertise this semester to recognize it. As you have learned, our constitution is vague and abstract; it depends more on norms than hard rules. Our democracy relies more on the good faith and integrity of our leaders than you might have realized before you came to this class.

We have discussed how the breadth and brazenness of President Trump’s illegalities are unprecedented. How far will he go? We do not yet know. But we have already seen a de-legitimization of courts, a disregard for due process, and a weakening of checks and balances. We have already seen the dehumanizing and cruel use of government power to separate families and muzzle dissent. We have already seen the rendition of innocents to torture prisons. We have already seen attacks on the freedom of universities to teach and research free of government coercion.

Our nation’s characteristic optimism — our “let’s go to the moon,” can-do attitude — can blind us to the fragility of our democracy. We Americans are prone to magical thinking about the strength of our institutions. But you now know that history records pivotal moments when the wrong choice led to long-term horrors.

We discussed the disputed election of 1876, which came less than a decade after the promises of equality and liberty were enshrined in the Fourteenth Amendment.  Backroom deals allocated the presidency to Rutherford B. Hayes, supported by northern states. In exchange, federal troops would leave the South, reconstruction would end, Jim Crow could be put in place, and the South could act for a century like they won the war. The Fourteenth Amendment was depleted of meaning for many of those it was written to protect.

That was a turning point for the country, and the costs of the nation’s mistake were immense. How many thousands of lives lost? How many lynched? How many robbed of their right to vote? Of their right to live free of oppression?

That turning point may have been obvious at the time. Others are less so.

In early 2020, for example, medical professionals began warning the world about the dangers of a possible coronavirus pandemic. Most of us did not have the expertise to discern the risks. They were the experts and the rest of us had to decide whether to trust their expertise or not.

Now, ours is the profession charged with sounding the warning. We are the ones with the knowledge and expertise to recognize the dangers.

That is why Trump’s attack on law firms is the second most troubling thing happening now. Democracy depends on our profession’s willingness to give voice to those at risk — federal workers, scientists, journalists, universities, immigrants, students, protestors, voters. The constitution is not self-enforcing. Lawyers must voice its promises and limits.

If the attacks on law firms are the second most troubling thing, here is the first: the capitulation of certain law firms. Some firms have agreed to end their diversity, equity and inclusion (DEI) programs, to stop fighting against the president’s illegalities, and even do pro bono work for Trump-approved causes. Trump boasts that those firms will negotiate his trade deals. Shame on those firms. This is a time when our profession must stand up, not bend the knee.

This crisis among your future employers is only one of the reasons why it must be especially hard to be a law student in this moment. Like medical students five years ago, you have to learn the basics and also recognize and prepare for an emergency. In an average academic year, law students like you are trying to learn how to read a contract, analyze a torts case, and argue before a jury. But now the constitution seems weaker than you had reason to expect. And the fabric of law is fraying. And you, like me, are charged with recognizing the dangers facing our democracy and profession.

So here is my message to you: nothing is more important than doing exactly what you are doing. Keep going. Keep it up. We need you.

Ours is the most crucial profession in America today. Whether we be lawyers, law professors, or students, we have the power to capitulate or to fight.

So let’s fight. Let’s fight for our profession. Let’s fight for our democracy.

Fix bayonets.