William C. Koch, Jr.
Supreme Court of Tennessee

Chattanooga, Tennessee - May 14, 2008

    Good afternoon to all of you. Permit me to begin by expressing my gratitude to President Cynthia Hall and the Board of Governors for inviting to participate in your Law Day observance today. I would also like to thank Lynda Hood for helping with the arrangements. Finally, I want to thank Chief Justice Barker for his generous introduction.

    It is always a delight for me to come to Chattanooga. Each time I do, I marvel at the stunning transformation of your City since I first visited it in 1969. The Tennessee Aquarium, the Hunter Museum of Art, and the International Towing and Recovery Museum are among my favorite sites. You should be rightfully proud of your city.

    It is a little known fact that I played a small role in Chattanooga’s renaissance. In 1975, Leroy Phillips, on behalf of Ernest Posey, and I, on behalf of the Alcoholic Beverage Commission, convinced the Tennessee Supreme Court to invalidate Chattanooga’s local ordinance limiting the location of package stores to downtown Chattanooga.1  I understand that this development will not be met with acclaim by all, and so I stand before you here today prepared to take either the credit or the blame for this development - whichever is most appropriate.

    There are many distinguished lawyers and judges here today who deserve recognition for the contributions to the Rule of Law. With their permission, I would like to single out one person here today.

    I have known three chief justices from Chattanooga in my legal career. I appeared often before two of them, and I have had the privilege of working with one of them. Each has left an indelible imprint on the law, and all of them deserve our admiration and respect. As you all know, however, our current chief justice, Mickey Barker, has announced his plans to retire from the Court on September 1, 2008. His humanity, good humor, and keen perception will be missed by both the bench and the bar. And so I hope that all of you will join me in recognizing Chief Justice Barker today and in applauding him for his service to the State for the past 25 years and in wishing him Godspeed.

    There is one more preliminary matter to address before I get down to brass tacks. As I stand here today, I am closing in on my first anniversary as a member of the Supreme Court of Tennessee. Serving on the Court is the culmination of decades of work and dreams, and I am deeply grateful to Governor Bredesen for giving me this opportunity.

    I am frequently asked about the difference between the Supreme Court and the Court of Appeals where I spent twenty-three years. The most significant differences are first that I am working with four new colleagues who, by the way, have been extraordinarily welcoming and generous. The second difference is that I am faced with the challenge of dealing with a broad range of substantive legal issues that are new to my acquaintance. I am grateful to members of the bench and the bar who are serving as my tutors in these matters, and I trust they are not ready to send me to remedial classes.

    But despite these changes, some things remain the same. This can best be illustrated with an anecdote about Frederick Smith - not Frederick Smith, the founder, president, and chairman of Federal Express, but Frederick Smith, the First Earl of Birkenhead. Those of you who have seen the motion picture "Chariots of Fire" might recall his brief appearance because he was one of the persons who negotiated the compromise that enabled Eric Liddle to avoid running the 100 meter race on Sunday and to run and win the later 400 meter race at the 1924 Olympic Games in Paris.

    Mr. Smith was a barrister who served eventually as Solicitor General, Attorney General, and Lord Chancellor of England. He was also a confidant of Winston Churchill, and he was known for his quick wit and oratorical skills. One day during an argument before a particularly nettlesome judge, the judge remarked to Mr. Smith,

            "I have listen very carefully, Mr. Smith, to what you have said, but I am none the wiser."

Mr. Smith responded:

            "None the wiser, perhaps, my Lord, but far better informed."

Like Mr. Smith’s judge, I stand before you today, none the wiser, but hopefully better informed.

    Now that the preliminaries have been dispensed with, permit me to return to the topic at hand - the Rule of Law. That phrase has entered the political and public lexicon. We hear it used frequently. But while we think we know what it means when we hear it, we should not lose sight of its technical meaning.

    The concept of the Rule of Law can be traced back to Aristotle. However, our modern view has been heavily influenced by Professor A.V. Dicey, a British jurist and constitutional theorist who wrote An Introduction to the Study of the Law of the Constitution in 1885. In Dicey’s view, the concept of the Rule of Law incorporated three elements:

(1) Supremacy of regular, ordinary law as opposed to arbitrary governmental power;(2) Equality before the law of all persons and classes, including government officials; and
(3) Incorporation of constitutional law as a binding part of the ordinary law of the land.

    Building on this foundation, modern theorists like Harvard political science professor John Rawls have elaborated on the concept. In A Theory of Justice written in 1971, Professor Rawls pointed out that the Rule of Law requires that

        (1) The legal system should reflect the precept that similar cases should be treated similarly;

        (2) The legal system should reflect the precept that the laws should be public and clearly written;

        (3) Statutes and other legal rules should be general in statement and should not be aimed at particular individuals; and

        (4) The legal system should provide fair and orderly procedures for the determination of cases.

With specific regard to the procedures for determining cases, Professor Rawls states that the Rule of Law requires legal systems to

        (1) make provision for orderly public trials and hearings;

        (2) adopt rules of evidence that promote rational procedures of inquiry;

        (3) provide a process reasonably designed to ascertain the truth; and

        (4) employ independent and impartial judges.

    At this point, we may ask, What values are served by the Rule of Law and why is the Rule of Law so important? Its primary importance is that it promotes predictability and certainty. In societies where the Rule of Law prevails, persons can plan their conduct to conform to the law. When the law is predictable and certain, it does a better job guiding conduct. It also promotes individual autonomy because it enables persons to act without fear of governmental interference. And finally, clear and certain laws minimize the risk of arbitrary actions by the government.

    Our Declaration of Independence, United States Constitution, and Bill of Rights, as well as the Constitution of Tennessee, reflect a longing for and commitment to the Rule of Law. The fifty-five persons who gathered in Philadelphia in 1787, like the fifty-five persons who gathered in Knoxville nine years later to draft Tennessee’s first constitution, had a vision of a country and a state that would be governed by the Rule of Law. While they were less than certain about the outcome of their grand experiment, all of them realized, as Thomas Paine explained it, that they had it in their power "to begin the world anew."2

    The vision of our early leaders was not perfect. The Declaration of Independence’s grand pronouncements "that all men are created equal [and] that they are endowed by their Creator with certain unalienable rights" did not apply to women or persons of color. It required a war between the states and the adoption of the Thirteenth, Fourteenth, Fifteenth, and Nineteenth Amendments to rectify this oversight. It also required the courage and commitment of lawyers, like those Leroy Phillips chronicled in his book about the United States v. Shipp case. 3

    Our Nation’s history tells us that the founders’ aspiration that citizens enjoy the rights and freedoms associated with living under the Rule of Law have not yet been accomplished. There is still much work left to be done before all of us receive equal justice under the law. Our constitutions do not provide answers for all the challenges that face us. They are, as Justice Stephen Breyer put it, "enabling and constraining" documents. They protect our freedom to choose the direction our Nation will take. They do not tell us what to choose - rather they force us, as a community, to solve our common problems ourselves under the Rule of Law.

    May I suggest that, even as we celebrate this Law Day, the Rule of Law in this Nation is being eroded and undermined by two trends.

    In 1820, Thomas Jefferson warned us that

    An enlightened citizenry is indispensable for the proper functioning of government. Self-government is not possible unless the citizens are educated sufficiently to enable them to exercise oversight.

    These words were echoed more recently by Justice Potter Stewart in 1971 in the Pentagon Papers case.4

    Despite these warnings, our Nation’s schools are failing to teach our children about our constitutional system, including the work of the courts. As a result, the popular understanding about the functioning of the courts is shaped more by the entertainment media than by reality. Today, many in our country believe that the courts exist for the rich and the powerful and that judgeships exist simply to provide prestigious positions for lawyers at the taxpayers’ expense. If civics, the purpose of the Rule of Law, and the operation of the courts were taught in our schools, the students would learn that independent and impartial judges exist to protect the rights of all citizens and to preserve the Rule of Law, not to guard prerogatives and the purse of the lawyers and the vested interests.

    The second trend is the increasing clamor against the courts by elected officials of all political persuasions. I am not talking here about the criticism of individual judicial opinions. Everyone in our democracy has the right to entertain his or her own views about whether particular cases were decided correctly and to express those views openly and freely. Rather, I am talking about the constant barrage of negative comments about the courts, particularly the appellate courts, that is intended to undermine popular support for the entire judiciary.

    This sort of criticism is not new. Shakespeare portrayed it in Henry VI. In that play, a beleaguered Henry VI is faced with both internal and external threats. One threat is an uprising led by Jack Cade whose supporters routed the King’s troops in the process of capturing London. Although Cade was initially welcomed by the Londoners, things took a turn for the worse when his men began looting and pillaging the city. It is in this context that one of Cade’s men, Dick the Butcher, exclaims "The first thing we do, let’s kill all the lawyers." Dick the Butcher’s reason for killing all the lawyers was to create tyranny - to do away with the Rule of Law.

    Today, we have our own twenty-first century Dick the Butchers who propose to "kill all the lawyers," not to create a better society, but to promote their own narrow self-interests. The threats they pose to the rights of ordinary citizens have never been greater. We must stand firmly against this corrosion because the viability of the Rule of Law in this Nation depends not just on the courts but also on the people themselves. Courts and judges must have the public’s support if they are to defend and preserve the Rule of Law. If these modern-day Dick the Butchers turn the will of the people against the courts and the Rule of Law, the people will, as Justice John Marshall warned in 1821, "unmake" the Constitution.5

    Despite these obstacles, the truth is that in our darkest hours, we have relied on the direction provided by the Rule of Law. It was an appellate lawyer from Virginia who wove it into the Declaration of Independence. It was a trial lawyer from Illinois who gave it meaning in the Emancipation Proclamation. It was a lawyer from Scott County, Tennessee who, during the Watergate scandal, gave it practical effect by establishing that no person, not even the President of the United States, is above the law.

    Some of you are of the age that you remember reading Walt Kelly’s cartoon strip called Pogo. It featured Pogo the Possum and other inhabitants of the Okefenokee Swamp, and it contained some of the most insightful political commentary of its time. In 1970, Pogo, in a take off on Commodore Oliver Hazard Perry’s famous words, reported that "We have met the enemy, and they are us."

    I suggest that Pogo’s remark has some bearing today.

    The Rule of Law is at the same time resilient and fragile. As Benjamin Franklin left Independence Hall on the final day of deliberations over the Constitution, a bystander asked, Well, Doctor, what have we got - a Republic or a Monarchy?" Dr. Franklin replied, "A Republic if you can keep it."

    And so, on this Law Day 2008, I end by paraphrasing Dr. Franklin’s words. The citizens of this Nation, the citizens of this State, and the citizens of this City will continue to live under the Rule of Law only if they collectively choose to keep it.

    Thank you for being such an attentive audience.

1 City of Chattanooga v. Tenn. Alcoholic Beverage Comm’n, 525 S.W.2d 470 (Tenn.1975).

2 Thomas Paine, Common Sense (1776).

3 United States v. Shipp, 214 U.S.386 (1909); United States v. Shipp, 203 U.S. 563 (1906); see also Mark Curriden & Leroy Phillips, Contempt of Court (1999).

4 New York Times Co. v. United States, 403 U.S. 713, 728 (1971) (Stewart, J., concurring).

5 Cohens v. Va., 19 U.S. 264, 389 (1821)