Justice News

Deputy Attorney General Rod J. Rosenstein Delivers Remarks at the Fondation Lafontaine-Cormier Annual Meeting
Montreal,
Canada
~
Monday, October 22, 2018

Remarks as prepared for delivery

Thank you, Senator Joyal for that generous introduction. I am grateful for the invitation to join you today.

Five years ago, I traveled to Quebec with my daughters. In Quebec City, we climbed the fortress walls, wandered through the Old City, relived history on the Plains of Abraham, toured the Citadel, and walked across Montmorency Falls.

We took a whale-watching cruise in the St. Lawrence River and spent a night at a First Nations Reservation.

In Montreal, we toured the Olympic Park, visited the Museum of Archeology, strolled through the Old City streets, enjoyed delicious crepes, and went on an amphi-bus tour. I remember passing this very building en route to Place Jacques Cartier.

On our final day, we stopped at a sugar shack and attended the magnificent Balloon Festival at Saint-Jean-sur-Richelieu.

One day that I spent touring Quebec is among the most memorable moments of my life. It was mostly about the opportunity to spend so much time alone with my children just before they reached adolescence. The fact that their smartphones did not get service here certainly helped. But it was in no small part a result of your province’s delightful warmth and charm. As Quebecois say, “Je me souviens.” I remember.

This is a distinguished audience, and I am honored by your presence. I particularly want to thank Chief Justice Hesler, Chief Justice Crampton, Chief Justice Bell, Chief Justice Richard, former Prime Minister Johnson, former Minister of Justice Cauchon, and United States Consul General Thomas.

I am also grateful to Justice Hilton for providing a superb tour of this beautiful building, now home to the Quebec Court of Appeal.

Montreal and Quebec hold special historical interest for me because my parents raised me in Montgomery County, Pennsylvania, and my wife and I raised our children in Montgomery County, Maryland.

Both are named for Richard Montgomery, an American hero who died in Quebec during the Revolutionary War. 

Montgomery was born in Ireland in 1738. He joined the British Army in 1756, at age 18. He traveled to Canada to fight for Britain against France, during the Seven Years’ War.

In 1772, Montgomery became a peaceful American farmer. But three years later, George Washington appointed him to serve as brigadier general of the new Continental Army.

Montgomery once again went to war in Canada. This time, he fought against his British homeland, as part of an effort to enlist the Canadian colonies in the American Revolution.

Montgomery battled his former colleagues with a deep sense of regret. In October 1775, he wrote, “I most earnestly request to retire…. I have not the talents or temper for such a command. I am under the disagreeable necessity of acting eternally out of Character …. I will bear with it for a short time, but I cannot support it long.”

Sadly, Montgomery did not bear it for long. His forces took Montreal in November 1775. But the following month, during the Battle of Quebec, he was shot and killed on New Year’s Eve.

An American prisoner who witnessed Montgomery’s funeral remarked that he “was beloved, because of his manliness of soul, heroic bravery, and suavity of manners.”

Montgomery fought valiantly for the cause of liberty. Almost two and a half centuries later, our nations can proudly reflect on our shared commitment to human dignity, a commitment that spread liberty and the rule of law throughout the world, and continues to do so today.

Indeed, that is our mission this evening.  Your Lafontaine-Cormier Foundation helps to preserve documents, objects, and buildings. And those documents, objects, and buildings help to preserve liberty.

The foundation is named for both a lawyer and an architect. Some may consider that an unusual combination. As a lawyer with business training, I understand how attorneys are sometimes viewed by businesspeople.  We frequently perform the unpleasant duty of delivering bad news.

There is a story about a client who is waiting anxiously to hear from his lawyer about the outcome of an important case. The lawyer sends a text message that reads: “Justice was done.”

And the client responds, “In that case, appeal immediately!”

The Property professor at my law school referred to the students as “budding transaction costs.” But good lawyers certainly do add value.

Former American Solicitor General John W. Davis eloquently conceded that lawyers “build no bridges.  We raise no towers.  We construct no engines.  We paint no pictures — unless as amateurs for our own … amusement.  There is little of all that we do which the eye of man can see.  But we smooth out difficulties; we relieve stress; we correct mistakes; we take up other men’s burdens and by our efforts we make possible the peaceful life of men in a peaceful state.”

Lawyers do not design magnificent buildings like this one, but our work creates the conditions that makes them possible.

Law and architecture share some features in common. Both fields involve a degree of creativity, at least in contrast to hard sciences with equations that can be precisely replicated.  We take the elegant truths of theory and apply them to the unpredictable and sometimes challenging realities that life presents.

Just as architects apply the principles of their art to each project, so too do lawyers apply legal principles to the facts of each case.

Law itself constitutes a type of invisible architecture.  It provides structure and order for society — from business relationships to property disputes, from the essential functions of government to the intricacies of international relations.

Law erects virtual walls to protect us from violence and fraud, and it places a solid floor beneath our feet.

Professor Randy Barnett analogizes the rule of law to a high-rise building. The floors, lobbies, corridors, stairways, escalators, elevators, and offices contribute to liberty by setting guidelines within which people enjoy freedom to pursue their goals. Without the structure of the building, the occupants would all collapse to the ground in chaos. But the structure also constrains peoples’ choices by setting boundaries.

The legislative process of drafting constitutions and statutes is about establishing the legal structure. The judicial process is about applying the rules, peacefully, to resolve disputes that arise over the boundaries.

In the United States, we celebrate Law Day on May 1st. This year, President Donald Trump’s proclamation mentioned, as our late great Supreme Court Justice Antonin Scalia often emphasized, that the rule of law is not simply about words written on paper. Some countries adopt written rights but do not honor them. The rule of law depends upon the culture of the society and the character of the people responsible for enforcing the rules.

When Alexis de Tocqueville visited the young American republic in 1831, he recognized that the nation’s culture underlays its success. “Laws are always unstable as long as they do not lean on mores,” he wrote. “[M]ores form the sole resistant and lasting power in a people.”

Although we share many values, the Canadian and American legal traditions differ in important respects.  In fact, one of the causes of the Revolutionary War was American anxiety about Quebec’s legal system.

In 1763, after the Seven Years’ War that brought Richard Montgomery to the New World, Britain annexed Quebec, pursuant to the Treaty of Paris. A Royal Proclamation sought to assimilate Quebec’s French Catholic population into Britain’s North American empire, with its common law legal system. 

When the expected influx of English colonists to Quebec did not materialize, Governor Guy Carleton warned his superiors that Quebec was a province unlike any other, and Britain should respect its distinctive circumstances.

Fearful that French Canadians might join the impending American Revolution, Parliament passed the Quebec Act, establishing a new provincial government.  It vested legislative powers in the governor and his council. And the King appointed the governor. 

The Act returned the province to the French system of civil law, while maintaining English criminal law.  The Quebec Act also granted French Canadians religious freedom.

While designed to win the loyalties of the Quebecois, the Act added to the complaints of the American colonists, who included it among what we call the Intolerable Acts.

The Act expanded the Canadian colony into western American territories. Moreover, it established what Americans regarded as an autocratic government, with no allowance for a local elected legislative assembly.

American patriot Alexander Hamilton, the son of a French Huguenot, condemned the Quebec Act. Hamilton wrote, “[S]ince the whole legislative, executive, and judiciary powers are ultimately and effectually lodged in the King, there can be no room to doubt that an arbitrary government has been really instituted throughout the extensive region now comprised in the province of Quebec.”

Americans were sufficiently offended by the Quebec Act that Thomas Jefferson listed it among the 27 grievances in our Declaration of Independence.

He wrote that the Act “abolish[ed] the free System of English Laws in a neighboring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies.”

So the Quebec Act played a significant role in spurring the American Revolution.

Today, Quebec employs a bijuridical system that draws from both French civil law and English common law.

Nonetheless, we share the common goal of justice. 

James Madison, a principal drafter of the American Constitution, wrote that “[j]ustice is the [goal] of government.  It is the [goal] of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit.”

So it is that the preamble to our Constitution sets forth, among its primary purposes, to “establish Justice.”

The preamble to the more recent Canadian Charter of Rights and Freedoms is even more explicit. It affirms that “Canada is founded upon principles that recognize the supremacy of God and the rule of law.”

A legal system can achieve justice only if participants respect the rule of law.

One of the inscriptions on the outer perimeter of our Department of Justice headquarters puts it this way, in a quotation that recalls Plato: “Justice in the life and conduct of the state is possible only as first it resides in the hearts and souls of the citizens.”

In 1838, a few years after Tocqueville visited America, future President Abraham Lincoln spoke about building respect for the law.

Lincoln said: “Let reverence for the laws, be breathed by every … mother, … — let it be taught in schools, in seminaries, and in colleges; — let it be written in Primers, spelling books, and in Almanacs; — let it be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice. [I]n short, let it become the political religion of the nation; and let the old and the young, the rich and the poor, the grave and the gay, of all sexes and tongues, and colors and conditions,” let them all honor the law.

The concept of the rule of law dates at least to Aristotle, who wrote that “[i]t is more proper that law should govern than any one of the citizens.”

If the people charged with enforcing the law uphold it faithfully, the result will be a high degree of consistency and predictability.  But following the rule of law does not mean that you will always be happy with the outcome. To the contrary, you know for sure that you are following the law when you are not happy with the outcome.

One of the finest defenses of the rule of law appears in Robert Bolt’s brilliant play about Sir Thomas More, A Man for All Seasons.  More’s son-in-law, William Roper, is angry that More would allow even the Devil to claim the protection of the law.

Roper insists that he would cut down every law, if necessary, in order to destroy the Devil.

More replies, “Oh?  And when the last law was down, and the Devil turned round on you — where would you hide, Roper, the laws all being flat?”

More concludes, “I’d give the Devil the benefit of law, for my own safety’s sake.”

More’s point is that we must defend the law even when it is not to our advantage, so it will be there for us when we need it.

Our governments are exceptional in their defense of the law.

I visited the nation of Armenia in 1994, when it was transitioning to democracy. I delivered a lecture about laws that prohibit public corruption in the United States.  When I finished, a perplexed student raised his hand and asked, “If you can’t pay bribes in America, then how do you get electricity?”

That pragmatic question illustrated how the young man learned to think about his society.  In the communist state where he grew up, corruption undermined law. It stifled innovation, created inefficiency, and inculcated distrust.

In contrast, we defend the principle that every citizen deserves equal protection. Our friends deserve it, and our enemies deserve it. They deserve it whether they are guilty or innocent. They deserve it whether they are rich or poor. As the American judicial oath states, we “administer justice without respect to persons.”

Former American Justice Anthony Kennedy explained that in a rule of law system, when you apply to a government clerk for a permit and you satisfy the objective criteria, you are not asking for a favor. You are entitled to receive the permit, and the clerk is obligated to give it to you. May it always be so.

I want to conclude with remarks delivered in 1942 by American Justice Robert Jackson. As World War II brought “dissension and lawlessness” to “much of the world,” Jackson discussed the role of lawyers in preserving liberty.

Jackson invoked a parable about three stonecutters asked to describe their job.  Tell me about your work? The first stonecutter focuses on how the work benefits him. He says, “I am earning a living.” The next worker narrowly describes his personal task: “I am cutting stone.” But the third man has a very different perspective. His face lights up as he explains what his work means to others. With a reverent voice, he says, “I am helping to build a cathedral.”

“[W]hether we are aware of it or not,” Jackson explained, lawyers “do more than earn [a] living[]; we do more than [litigate] [individual] cases. We are building the legal structure that will protect … human liberty,” for centuries to come.

Jackson understood that virtuous legal systems provide the framework necessary to establish liberty. 

Your foundation promotes respect for the law by teaching its principles, conserving its history and preserving the structures built to support it.

I commend you for helping to maintain the cathedral of justice, and to secure the blessings of liberty.

Merci beaucoup.

Updated October 23, 2018