I had the opportunity recently to attend an educational conference that was outstanding. Throughout the year, I find myself speaking at numerous conferences and writing about the law. It is rare that I find the opportunity to sit in an audience and listen. This conference featured many outstanding speakers and compelling topics. But, I was most impressed with a presentation by Irving Roth, a Holocaust survivor. He was born in Czechoslovakia and lived through arrest, internment at Auschwitz, slave labor, and the death march to Buchenwald. I had a brief moment to speak to him after, and it was an honor.
In his speech, Mr. Roth was compelling. He described the rise of totalitarianism in Germany. He noted that one of the panelists from this program had earlier noted a quote from Justice Scalia that a Bill of Rights does not make the United States special:
“Every tin horn dictator in the world today, every president for life, has a Bill of Rights,” “That’s not what makes us free; if it did, you would rather live in Zimbabwe. But you wouldn’t want to live in most countries in the world that have a Bill of Rights. What has made us free is our Constitution."
That resonates. Any government can aspire to promote and support a free society. But words are merely words without the commitment that is required of them. The structure of the Constitution, its foundations, and its separation of powers are the foundation that has sustained us for almost 250 years. Of course, some question whether that success can continue.
Mr. Roth suggested that the Nazi rise to power had much to do with both the absolute power of a single person and the corresponding failure of other critical elements of government. This includes the lack of balancing force in the legislative and judicial branches. In a constitutional sense, it is important to remember that the United States has a constitutional separation of powers (horizontal balances). As important, there is a vertical balance of powers between the national and state governments, Federalism, that also has periodically been invoked in reigning national government. However, Federalism has clearly eroded over a period of decades; in some obvious instances, and in others more subtle.
Mr. Roth was also critical of the many citizens who knew of the open and obvious efforts to destroy the Jewish people, as well as other minority populations. The society and very people of those countries were knowledgeable and acquiescent in this epic criminal tragedy. His words reminded me that our government is "of the people, by the people, for the people," as so eloquently phrased by Abraham Lincoln. As clarified by the people in the Tenth Amendment:
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
It was the people of this country and the states which they had formed, that constructed and empowered the United States, and its government. It is perhaps easy to forget that. Ultimately, in this nation, the very people ruled must be recognized as primary. That construct remaining clear is an important aspect of our Constitutional Republic.
Mr. Roth was compelling and inspirational. His message was a needed reminder that while there is rightly significant discussion of the separation of powers, the complexity of the U.S. separation is greater than many acknowledge. The focus on horizontal separation between federal branches is discussed. However, the role of our states and our individual responsibilities are worthy of periodic consideration and reinforcement.
As President Lincoln's closing words at Gettysburg remind us, it is our personal and collective responsibility that "government of the people, by the people, for the people, shall not perish from the earth." In our appreciation and respect for the separation of powers, we each owe the duty to understand and respect the Constitutional structure implemented by our forebears. We periodically need to be reminded of the framework of our Constitution, and the words of the likes of Justice Scalia, Abraham Lincoln, and Irving Roth.
It is unlikely that we, individually or collectively, will be flawless in our nationhood or personhood. But, as the Florida Supreme Court recently demonstrated, mistakes can be acknowledged and corrected. See Stare Decisis, Death Penalty, and Workers' Compensation. Similarly, we could each individually use the periodic opportunity to consider our path and posture. Do we appreciate the construct provided us by the Constitution? Do we value and appreciate the freedom with which we are blessed? Are we cognizant and conscious of the past, such that we will not be doomed to repeat it?
A great speech. An uplifting yet sobering experience. As the years pass, a day is coming when you will no longer have the chance to be privileged to hear directly from a Holocaust survivor. I was enriched by the experience. History is our teacher, and to meet those who have survived it is a true honor.
