Thank you, Darby. I am very honored to be stepping into this position on the heels of your distinguished service. Thank you for your inspired leadership of AALS in 2020, which certainly was not the year you had anticipated. You did an outstanding job under the most difficult of circumstances.
In addition, I want to thank the members of the Executive Committee with whom I have worked over the past five years. It has been a privilege working with all of you. Please know how much I value your collegiality and wisdom. I also want to extend my deep appreciation to the AALS staff. Your hard work, every day behind the scenes, is what allows us to host these successful conferences year-after-year. You are an incredible team, and I look forward to our continued work together.
Of course, all of this great work is accomplished under the extraordinary leadership of AALS executive director Judy Areen. Judy, please accept my heartfelt thanks for your inspired vision. You have been a transformative figure for this organization, and I am looking forward to accomplishing great things with you in 2021. Finally, I want to thank all of my colleagues at BC Law for their patience, encouragement, and support. And last but certainly not least, thank you to my wonderful wife, Dr. Robin Kornegay-Rougeau, who has been my loving companion, my most trusted confidante, and my rock.
Throughout its history, AALS has risen to respond to numerous challenges posed by significant cultural, economic, and political moments in our nation’s history. This year’s Annual Meeting has occurred at another one of those times. When I sat down to write these remarks, I was thinking about the significance of our gathering in the first virtual Annual Meeting in the Association’s history, an extraordinary rethinking and reworking of this event brought on by the coronavirus pandemic that has ravaged the globe for the past year. Despite the hopeful arrival of vaccines in recent weeks, we currently find ourselves in one of the worst surges of infections, hospitalizations, and deaths since the pandemic began.
But during the meeting itself, yet another event has occurred that has left us shocked and shaken, and asking ourselves how this nation will move forward after we have witnessed an event of domestic terrorism in which a mob of our fellow citizens attempted to prevent the certification of the presidential election results by Congress through a violent invasion of the U.S. Capitol. What is worse, this desecration of the people’s house had the full knowledge and support of the president of the United States, and arguably, it occurred at his behest.
Vaccines now give us hope that COVID-19 will slowly allow us to return to many of our old routines, and most important, reunite us with loved ones and friends from whom we have had to physically distance ourselves for the last year. But there is no vaccine that will protect us from the enemies of democracy, who exist both around us and amongst us. We now are fully aware that, for better or for worse, the world we knew before the pandemic and the attack on our Capitol is a vestige of a different time.
These realities resonate with me deeply as I announce my theme for AALS in 2021, which is “Freedom, Equality, and the Common Good.” As we emerge from the pandemic and begin to address the social, economic, and political turmoil left in its wake, I believe this is the right time to explore these three concepts critical to our understanding of democracy and the rule of law. It is my hope that this theme will offer all of you an opportunity, from the perspective of your own areas of specialty, to consider how our legal system will engage the realities of a post-pandemic world.
Let’s begin by thinking about freedom. The past year has shown us that crafting a common understanding of what freedom means in a democratic society can be very complicated, particularly in the face of a crisis. In his November 2020 speech to the Federalist Society, Justice Alito asked a critically important question: What does the pandemic mean for the future of the rule of law? Although not diminishing the extraordinary threat COVID-19 posed to public health, he declared that the pandemic had “resulted in previously unimaginable restrictions on individual liberty,” and he noted that the COVID-19 crisis had served as a sort of constitutional stress test that has highlighted disturbing trends that were already present before the virus struck.
He went on to discuss a variety of potential challenges he saw to freedom in the United States including, the aggressive use of executive power employed by many state governors to enact sweeping public health restrictions during the pandemic, many of which, in his view, threatened to compromise core constitutional freedoms of religion, association, and speech.
Yet, while some have seen these actions as threats to our cherished freedoms through government overreach, we also have witnessed individual citizens, many acting in the name of exercising their freedom, ignore government imposed restrictions such as mask wearing and in-person gathering limits, resulting in an explosion of virus infections, hospitalizations, and deaths–deaths that have fallen disproportionately on the elderly, those of low and moderate income, and on communities of color. When we think about our freedom to act as we please and our right to be free from unreasonable government restraints on our actions, what role should countervailing responsibilities to our fellow citizens play in striking the balance? How can a democracy survive without empathy, mutual respect, and compassion?
Which brings me to the issue of equality and the struggles we face to realize its meaning.
One of the bedrocks of equality in a modern democracy is universal suffrage. Our most recent presidential election saw the highest voter turnout in a century, a milestone to celebrate and a sign of tremendous citizen interest in the future of our nation. We also saw, unfortunately, some of the most brazen attempts at voter suppression since the Jim Crow era, this time on a national scale. Yet, not even a violent attempt to subvert the will of the people through an act of insurrection prevented 147 members of the US Congress from voting to object to the certification of the people’s vote for president, based on spurious allegations of widespread voter fraud. The visible expression of the democratic value of equality represented in the broad availability of the franchise is still a contested notion in this country, and it is inextricably linked to our history of slavery and white supremacy.
A once-in-a-century pandemic could not suppress the symptoms of America’s chronic racism, and the most recent outbreak of this disease has brought a reckoning for the nation unlike anything we have seen in a very long time. In 2020, we were reminded yet again through numerous brutal killings of Black men and women by the police that our striving for racial justice has been insufficient and remains incomplete. Just a few days ago, we learned that no charges would be brought against the Kenosha, WI police officer who shot Jacob Blake in the back multiple times as he moved away, and questions now rage about the tepid police response to the overwhelmingly white mob that breached the Capitol.
The issue of race reminds us repeatedly that democracy and the rule of law in America are still deeply compromised by structural racism. Indeed, in a recent book that has upended traditional understandings of how we think about race in the United States, Isabel Wilkerson has suggested that the quest for racial justice and equality in this society has been disfigured by the endurance of a status-based economic and social order that cannot be undone by an emphasis on individual rights and freedoms, but is better understood through the concept of caste.1
Racial inequality continues to persist in a society where other forms of inequality have hardened and remain unaddressed. The data demonstrating the lack of social mobility and the chasm of income inequality in the United States continue to mount, and are impossible to ignore or explain away: The richest one-tenth of one percent of American households have the combined net worth of the bottom 85 percent, and that same group controls close to 20 percent of the nation’s total wealth. According to the World Economic Forum, in 2020 the United States ranked 27th in the world for social mobility. Of the G7 nations, only Italy ranked lower (34th).
The U.S. performs poorly relative to its economic peers on any number of other measures, including life expectancy, the percentage of children living in single-parent households, and educational outcomes. Life has gotten demonstrably worse for most Americans over the past 40 years. Consequently, we should not at all be surprised that we are seeing a surge in the appeal of authoritarianism, nationalism, and xenophobia, and an outburst of acts of mayhem and violence. As Michael Sandel has argued, for most people in this country, the American dream may well be best described as a ‘noble lie’–a belief, though untrue, that sustains civic harmony by inducing citizens to accept certain inequalities as legitimate.2 Problem is, the facts on the ground are becoming too obvious to ignore even for those who want desperately to believe otherwise.
We all know that rampant inequality is an enemy of democracy. So, if we care about the future of our republic what do we plan to do about it?
One possible approach might be to turn our attention to the concept of the common good.
The two great founding democracies of the modern era, the United States and France, share many things, and both have served as inspirations to countries around the world as they formed new legal systems and democratic governments. Both democracies sprang from what were in the 18th century radical ideals, and from revolutions that both broke explicitly with the old order of aristocratic hierarchy and inherited privilege. But one critical part of the French republican tradition that the United States does not share is the constitutional principle of ‘fraternity’.
The most widely known recent expression of this concept in French law was in 2018, when olive farmer Cedric Herrou was protected from prosecution after being charged with smuggling undocumented migrants across the French/Italian border. The French Constitutional Court ruled that Herrou had acted within his rights as a French citizen, noting that “the principle of fraternity confers the freedom to help others, for humanitarian purposes, regardless of the legality of their presence on national territory.”
Another way of thinking about ‘fraternity’ is through the concepts of social friendship and the common good. As a global religious leader, Pope Francis has emphasized these ideas and has made significant efforts to reach out to other faith leaders around the globe who share them. In a recent encyclical letter, which he addressed to all people of goodwill, he highlighted the inspiration for its writing that he gained from his meetings with Orthodox Patriarch Bartholomew and Grand Imam Ahmad Al-Tayyeb, and he offered a rich way of thinking about fraternity for democratic societies in a globalized world:
Fraternity is born not only of a climate of respect for individual liberties, or even of a certain administratively guaranteed equality. Fraternity necessarily calls for something greater, which in turn enhances freedom and equality. . . . Nor is equality achieved by an abstract proclamation that “all men and women are equal.” Instead, it is the result of the conscious and careful cultivation of fraternity. . . . The mere sum of individual interests is not capable of generating a better world for the whole human family. Nor can it save us from the many ills that are now increasingly globalized. Radical individualism is a virus that is extremely difficult to eliminate, for it is clever. It makes us believe that everything consists in giving free rein to our own ambitions, as if by pursuing ever greater ambitions and creating safety nets we would somehow be serving the common good. . . . Social friendship and universal fraternity necessarily call for an acknowledgement of the worth of every human person, always and everywhere. . . . People have this right even if they are unproductive, or were born with or developed limitations. This does not detract from their great dignity as human persons, a dignity based not on circumstances but on the intrinsic worth of their being. Unless this basic principle is upheld, there will be no future either for fraternity or for the survival of humanity.3
A democracy cannot function based on notions of freedom and equality that prioritize individual autonomy over those aspects of our humanity that may make us weak or dependent, or enrich us through our lives in community with others. We cannot construct a political and legal system that fails to understand us as persons and as citizens who are embedded in, and ennobled by, our relationships with our families, friends, neighbors, colleagues, and fellow citizens. Freedom and equality are inextricable from a meaningful engagement with the common good.
So, as I proudly assume the presidency of the AALS, I issue a challenge to all of you–my friends and colleagues in the American legal academy. What have we learned from this year of pandemic and this week’s violent attempt to rob the American people of the right to choose their leaders? What does it all mean for the work we will do as teachers and scholars going forward? How might we reimagine how freedom, equality and the common good can join together to strengthen democracy and rule of law in the years to come? I have every confidence that you will offer some compelling and inspired answers.
1Isabel Wilkerson, Caste: The Origins of our Discontents (2020).
2Michael Sandel, The Tyranny of Merit: What’s Become of the Common Good? (2020), 77.
3Pope Francis, Encyclical Letter Fratelli Tutti (2020), paragraphs 103-106.