In 1971, left wing provocateur Saul Alinsky published Rules For Radicals, which remains even today, a half century later, a favored handbook for extremists intent on undermining our nation’s economic, civic, and legal foundation and rebuilding it in the image of a socialist society.
For the radical disruptor in Alinsky’s worldview, “everything is relative and changing”; in other words, to succeed as a revolutionary, existing values and norms must attacked and unanchored. Only by so doing can the new, radical ideas take hold and replace existing principles. This is precisely what the “woke” movement is doing, most disturbingly to our legal system.
At the most fundamental level, the “anchor” for our legal system is the Bill of Rights, which provides a set of substantive and procedural guarantees designed to ensure that fairness and objectivity attach to all aspects of the civil and criminal justice processes.
These well-known standards include among many others, the right to counsel, the right to be tried fairly by a jury of one’s peers, and the right to be considered innocent unless and until proven otherwise beyond reasonable doubt. These are not “relative and changing” standards, and if they were thus unmoored, legal chaos would prevail. Yet this is precisely what the “woke” movement is attempting to do to our judicial system and the legal profession.
How about the right to have a lawyer to represent you? The idea that even hated defendants have a right to be represented by competent legal counsel to ensure their rights are protected, predates the incorporation of that principle in the Bill of Rights. John Adams, one of our Founders and our second president, declared it was an important duty for him to have represented British soldiers accused of murder in the 1770 Boston Massacre.
Now, two and-a-half centuries later, times and perspectives have changed dramatically. The woke crowd objects to a prominent lawyer like David Boies representing the unpopular and distasteful Harvey Weinstein. Law school deans demand that lawyers associated in some manner with former President Donald Trump be disbarred, refused employment, or not welcome at law schools.
More fundamentally, top-tier law schools such as that at Georgetown University are demanding as part of their curriculum that students consider whether the law should any longer be considered and enforced neutrally. A law professor at Boston College of Law urges students to consider “scrapping” the Constitution.
Self-censorship is the order of the day. Nadine Strossen, a highly respected lawyer and constitutional law professor with the ACLU, has stated publicly that she “self-censors” due to wokeness “shutting down unpopular views.” Damage to our legal system resulting from such intolerance is cancerous and lasting.
Juries rendering verdicts contrary to the sensibilities of the woke movement, such as the acquittal in 2021 of Kyle Rittenhouse based on self-defense, are no longer accepted as evidence the “system” is working to deliver justice, but criticized as proof of “systemic racism.” Some lawyers now call for the principle of self-defense to be redefined and scaled back because of such verdicts. In a similar vein, many lawyers are suggesting that the burden of proof, always heretofore properly on the accuser in sexual assault cases, be shifted to the accused.
Such posturing turns the principle of “innocent until proven guilty” on its head.
This woke nihilism is infecting our regulatory processes. A member of the Federal Trade Commission (FTC), for example, has decided that anti-trust enforcement should no longer be handled objectively or according to neutral standards. Rather, the criteria on which a commercial merger is allowed or dis-allowed should be based no longer on traditional elements of “anti-trust,” but on “anti-racism.” Thus would some monopolies be permitted and others not, premised on subjective criteria.
Judges and prosecutors are no longer exempt from this slide toward subjectivism in legal proceedings, with sentencing now being based on whether a convicted defendant was engaged in socially acceptable pursuits when committing a crime. Thus, when a 2020 Minneapolis rioter pleaded guilty to arson that left an innocent person dead, the federal judge and prosecutor decided he had been legitimately “protesting” not “rioting,” and therefore deserved and was granted a far more lenient sentence.
These are but a few of the slippery slopes now in store for us when woke chaos takes hold of our legal system and the legal profession. A legal system unmoored from principles becomes a danger to us all.
Bob Barr represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003. He served as the United States Attorney in Atlanta from 1986 to 1990 and was an official with the CIA in the 1970s. He now practices law in Atlanta, Georgia and serves as head of Liberty Guard.