kba president
Magna Carta and the Rule of Law
J
une 15, 2015, is the 800th anniversary of Magna Carta.
I can’t help but think about the importance of the rule of law
Much has and will be written concerning this historic as I have observed the debate over how Kansas Supreme Court
English document, as the anniversary date approaches. I justices are selected. The Kansas Bar Association has consis don’t profess to be either a scholar or historian; a fact those tently supported the existing method of selecting our Supreme
who know me best can readily attest to (though I do admit Court justices. The KBA supported merit selection for the
to being a history major in college and had then at least a Court of Appeals, but statutorily, that process was changed two
passing knowledge of Magna Carta’s importance). Others, far years ago. I testified during the 2015 legislative session on two
more qualified than I, have written
occasions before the house judiciary
about Magna Carta, such as Univercommittee, in support of merit selecsity of Kansas School of Law profestion. While I don’t agree with some of
sor, Mike Hoeflich, in April’s Jourour legislators on this issue, I have the
nal. The American Bar Association
utmost respect for their service to the
is featuring Magna Carta for law day
state of Kansas. I am fully cognizant
this year. And as the anniversary date
there are those legislators and citizens
draws closer, I expect we will hear
alike, who have disagreed with one or
more and more about it. In light of
more of our Supreme Court’s deciwhat has been said and will be said,
sions—decisions they genuinely feel
I want to take this opportunity to reare wrong. But the real test for the rule
flect for just a moment upon my obof law is how we, collectively as a state
servations regarding the significance “Magna Carta being signed by King John, 1215,” by John Leech, and as individual citizens, respond
Magna Carta has had on our present 1875. The image shows caricatures of King John and the
to those decisions we may think are
day legal system. It is a significance I barons in an informal setting. Source: Wikimedia Commons.
wrong.
have come to appreciate far more than from my early introAs an attorney, having appeared before both our trial and apduction to it in my Western Civilization class over well, let’s pellate courts, like all attorneys before me and those that will
just say, considerable years ago. It is an appreciation that has come after, I have won some cases and lost some cases. Some
developed far beyond just theoretical concepts, but from the decisions I have agreed with, and some I have disagreed with.
practical, day to day practice and application of the law.
Some even strongly disagreed with. But as attorneys, the rule
Regarding Magna Carta and its significance almost 800 years of law demands that we accept those decisions, even those with
later, its importance is often phrased in terms of the foundation which we disagree. And that principle holds true not just for
of democracy and the cornerstone for the rule of law. President attorneys, but for our clients, the citizens of this state and counFranklin D. Roosevelt, in his 1941 inaugural address, stated, try, and those who help draft and pass our laws. Dissatisfaction
“The democratic aspiration is no mere recent phase in human with some decisions is inevitable. But the framers of both our
history. It is written in Magna Carta.” It was the first legally federal and state constitutions envisioned just such a scenarbinding document to limit the power of the king over his sub- io, in creating three branches of government and appropriate
jects. Its influence is found today in our Declaration of Inde- checks and balances. But dissatisfaction with individual decipendence, our Constitution, and our Bill of Rights.
sions, when that dissatisfaction results in efforts to change laws
The importance of the rule of law in this country cannot regarding how we select our appellate judges, the age at which
be overstated, and for that matter, in many other countries as judges must retire, the necessary vote to retain a justice in a
well. As U.S. Supreme Court Justice Steven Breyer observed retention election, or similar matters, then we are not honoring
in an address to the 2014 American College of Trial Lawyers the rule of law or spirit of Magna Carta. It is not honoring the
Annual Meeting in London, of the many differences and divi- very foundation upon which our democracy is based.
sions that exist among the sovereign states that make up the
As we prepare to celebrate the 800th anniversary of Magna
many nations of this world, the real divisions are “between Carta, I urge all of us to embrace the rule of law, even when
those who believe in a rule of law and those who don’t.” Jus- we don’t really want to. The rule of law is what distinguishes
tice Breyer, in that same address, reflected upon the rule of law us as a country and state from those who don’t believe in or
and the fact that despite sometimes controversial decisions by support it. It is what I am most proud of as an attorney and as
our highest court – decisions that many feel strongly were a citizen of the United States and of Kansas. n
wrong, and even in fact may have been wrong (as an example,
Justice Breyer cited to Bush v. Gore) – there has been a lack of About the President
a resulting insurrection or rioting in the streets. That reality
Gerald L. “Jerry” Green is a member of the
goes to the very core of the rule of law. As a country, it is the
Hutchinson law firm Gilliland & Hayes LLC. He
citizens that have to ultimately accept the rule of law, and the
currently serves as president of the Kansas Bar
fact, as Justice Breyer observed, how it is worth it to accept an
Association.
important decision that affects their lives, even though they
[email protected]
may think it is wrong. Succinctly put, “That is what the rule
(620) 662-0537
of law is about.”
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The Journal of the Kansas Bar Association