In 2022, retired federal judge J. Michael Luttig published an essay that he characterized as “the most important words I ever expect to write.” It was around the time of the congressional hearings on the January 6 riots at the Capitol, and the topic of his essay was heroism.
On Monday, he told the more than 125 students packing the Great Hall for a special Batten Hour event celebrating Constitution Day that there comes a time in every person’s life “where you are summoned, and you are called upon to stand and affirm what you believe and what you do not believe.”
Luttig, a conservative who served on the U.S. Court of Appeals for the Fourth Circuit, denounced the country’s leadership failures in recent years which he has repeatedly labeled a “threat to American democracy.”
The anecdote captures the focus of Monday’s event, which brought together Luttig and John Hardin “Jack” Young, chair of the American Bar Association Task Force on American Democracy Advisory Commission, in a discussion moderated by UVA Batten Dean Ian H. Solomon. The event was co-hosted by the Karsh Institute of Democracy, the American Bar Association, the Karsh Center for Law and Democracy and the Batten School and sponsored by the Virginia Law Foundation.
The two speakers, both of whom are UVA Law alums, agreed that free elections and the nation’s rule of law are under threat in today’s political climate.
Watch the full episode here.
“For the first time in those 237 years [since the signing of the Constitution], both democracy and rule of law are in grave peril for reasons we all know,” Luttig told the audience. The judge pivoted to an 1838 address by a young Abraham Lincoln calling for a revival to the Constitution and rule of law lest America’s institutions of law and democracy perish.
“That was a time of political violence in America, just as today is a time of political violence in America,” Luttig said. “We too, need – arguably more than people did in that day – a revival of the Constitution and rule of law.”
Both Luttig and Young chided the nature of the nation’s partisanship and pointed out how the founding fathers feared political parties, demagoguery and self-interested politics.
“That’s different from campaign challenges,” Young said. “Now, we see attacks on our very democracy, which we didn’t see in the 1800 election between Jefferson and Adams. What happens if the team starts playing outside the field of play?”
Luttig has been outspoken in his criticism of the U.S. Supreme Court’s ruling in Trump v. United States this summer that presidents have immunity from criminal prosecution when carrying out official acts, saying it inflicted “structural violence” to the Constitution. “It’s reprehensible.”
Asked after the event if the ruling weakened his faith in the judiciary, the former judge emphatically said no. “I will never lose faith in America’s institutions of law and democracy, and none of us can lose faith in those institutions. But I have, as I explained recently, profoundly disagreed with the decisions of the current Supreme Court with respect, and only with respect, to the cases that were brought by Donald Trump.”
Both guests agreed the road to redemption, and what this year’s Constitution Day is about, starts at the ballot box by divesting elected representatives of the power loaned from “we the people” — the famous first three words of the document — if they are no longer serving the interests of those they are elected to represent.
“We the people have to insist and demand that our representatives put our country above their personal and partisan interests and represent we the American people instead of their respective political parties and even their personal political interests,” Luttig said.
An audience member asked the former judge – appointed by George H.W. Bush, legal counsel to Ronald Reagan and law clerk for then-judge Antonin Scalia – if endorsing Democratic presidential nominee Kamala Harris was a difficult political decision. He rebuked the premise, retorting that his lengthy letter of endorsement was a statement about the Constitution, rule of law and American democracy.
“From the beginning, we’re taught right from wrong; we are not taught right from left,” Luttig said. “In my faith, I believe that I would have to answer for my silence if I stood silent on that endorsement. There’s no politics in that at all.”
Young echoed the call to action, noting the resiliency of the country’s institutions and what the nation has weathered since its founding, including the war between states, two world wars and the civil rights movement.
“And I have a faith in America that we will get through this, but it’s going to be scary, and yes, democracy will be at risk,” Young said. “But I think America is strong enough, if American citizens and voters decide they’ve had enough.”
NOTE: On September 18, actress Mia Farrow cited this article on her X account which has some 480,000 followers.
