The framers of the U.S. Constitution feared the concentration of power, so they set up a separation of powers doctrine that decrees the executive, legislative and judicial branches of government are equal. But is the separation of powers still providing the balance today that the Founding Fathers intended?

That is the question being considered on May 1, Law Day.

Charles S. Ryne, who served as legal counsel for President Dwight D. Eisenhower and American Bar Association president in 1957-58, urged the creation of Law Day as a national dedication to the principles of government under law.

President Dwight D. Eisenhower established the special observance, and in 1961 Congress designated May 1 as the official date.

Each year’s celebration explores a different theme central to our democracy. Recent themes include the Miranda decision, the 14^th Amendment and the importance of Magna Carta. This year, American Bar Association President Hilarie Bass has chosen to explore the separation of powers.

Law Day programs — put on by bar associations, courts, schools and community organizations across the country — are aimed at students as well as adults, and are designed to help everyone better understand how a particular aspect of law or the legal process works. 

Opportunities for lawyers to volunteer

At its core, Law Day presents an opportunity for lawyers to share their knowledge of how the legal process and our government work. Writing in the Winter issue of TYL, the magazine of the Young Lawyers Division, Erik Carlsen-Landy, a staff attorney at the Kentucky Department of Education, offers some tips for how lawyers can help students go beyond Law Day and further engage in civics education:

• Volunteer at your local school. Carlsen-Landy suggests coaching debate or moot court teams, through which you can provide “insight on the importance of these processes in the real world.”
• Ask your state or local bar about volunteering opportunities. Bars such as the Oklahoma Bar Association and the New York City Bar have law-related educational programs in place that you can volunteer to be a part of, writes Carlsen-Landy.
• Look for national organizations promoting civics and legal education. Carlsen-Landy cites Juvenile Justice Jeopardy, “where lawyers teach kids and teens about the juvenile justice system, their legal rights in and outside of school and how to have positive interactions with the police.”

Available resources

The ABA Division for Public Education offers a wide-range of resources to assist volunteer efforts. Among them:

• 2018 Planning Guide offers information on how to plan, organize, and host a successful Law Day event, including lesson plans for elementary, middle school and high school students; and suggested additional learning resources.
• Conversation starters, called Law Day Dialogues, provide lawyers, judges, teachers, and other community leaders with tools to facilitate discussions with community members and students on the 2018 Law Day theme. Each starter includes a framing question, backgrounder, discussion topic, and related case studies and supporting resources.
• Artwork and themed products to help publicize volunteer efforts.
• Social media tools to engage people in online discussion of Law Day and the separation of powers theme.
• Reflections on the Law Day theme from prominent figures in the legal profession.

Observance in Washington

In addition to producing useful resources for Law Day each year, the ABA Division for Public Education holds the Leon Jaworski Public Program in Washington, D.C., which is recorded and available for viewing on their website after the event.

This year, the Jaworski program features a debate on the following resolution:  Separation of powers is “essential to the preservation of liberty.”

Stephen Wermiel, professor of practice of law at the American University Washington College of Law, will moderate the debate. Speaking for the resolution will be Mickey Edwards, vice president of The Aspen Institute and former U.S. Representative from Oklahoma; and Victoria Nourse, professor of law and director of the Center on National Security and the Law at Georgetown University Law Center. Speaking against the resolution will be Edward L. Rubin, University Professor of Law and Political Science and former dean of Vanderbilt University Law School; and Laura Donohue, professor of law and director of the Center on National Security and the Law at Georgetown University Law Center.

The format will be a modified two-on-two parliamentary debate, with constructive and rebuttal speeches for and against the resolution, and time reserved for questions from the audience.

Among the questions to be posed are:

1. What is the purpose of separation of powers? Is it the best means to achieve this end? Are there better means?
2. Is there a distinctly American form or application of separation of powers? Does it require checks and balances? Does it depend on tripartite government (separate legislative, executive and judicial institutions)?
3. Is separation of powers an essential characteristic of what American government is, or should be? Both? Neither?
4. Are there effective checks and balances outside the traditional model of tripartite government and even “within” the branches? What and where are they?
5. Does the metaphor of “branches” best represent the contemporary functions and forms of American government? Are there better metaphors?
6. Has separation of powers proven sufficiently adaptable to changing times and circumstances, such as the development of the modern administrative state?
7. Is separation of powers “essential to the preservation of liberty”? (Federalist No. 51)