Federalist No. 9 - “domestic faction and insurrection”
by Alexander Hamilton
The Union as a Safeguard Against Domestic Faction and Insurrection
Federalist No. 9 is all about how to prevent hyperpartisanship and political rancor. Hamilton explains how “a FIRM Union will be of the utmost moment to the peace and liberty of the States, as a barrier against domestic faction and insurrection.” It is indeed remarkable to observe the genius of American democracy, and our great luck (and responsibility) to live under it:
The regular distribution of power into distinct departments; the introduction of legislative balances and checks; the institution of courts composed of judges holding their offices during good behavior; the representation of the people in the legislature by deputies of their own election: these are wholly new discoveries, or have made their principal progress towards perfection in modern times.
This week I want to take a slightly different angle and explain to you why I think lawyers—yes, us!—are uniquely suited to support these incredible features of our government and defeat the “domestic faction and insurrection” that plagues our politics today.
At this week’s Omaha Bar Association Law Day Luncheon, I had the great privilege to make that case. And here, dear friends, is what I said:
There was a time that I thought a keynote speaker was supposed to be the smartest or most interesting person in the room.
Let me tell you about how I learned how untrue that is. It was 2014, I was on active duty with the Air Force, stationed in England. A group called the Air Cadets, like boy scouts for the Royal Air Force, wanted a speaker for their annual awards ceremony.
They asked our base commander if he could be the speaker, but he couldn’t do it. So they asked his deputy. He couldn’t do it. So they asked the senior lawyer on our base. And he couldn’t do it, so they asked me. These poor kids—they never knew I was sloppy fourths.
And so I went. It was at a beautiful church in York. I wore my service dress and prepared some remarks about the Air Force’s core values and how they aligned with the cadets’ own values. And they greeted me so warmly and treated me with such esteem and honor. I came into the ceremony last and was escorted by a small army of pre-teens to my seat at the very front next to some parents and grandparents. They read my biography for everyone and I was feeling quite good about all the wisdom I had to share with this crowd as an Iraq veteran a member of the world’s most lethal fighting force.
And then they took just a moment to recognize the grandparents sitting up front, and that’s when I realized that those were not in fact the cadets’ grandparents, but a dozen or so veterans of the Battle of Britain. And the utter absurdity of it all hit me like a ton of bricks.
As a quick reminder, the Battle of Britain was fought during the summer of 1940. Hitler decided by mid-summer that as soon as he had air superiority over the British Isle, he would order an amphibious assault across the English Channel. But these British aviators—many mere teenagers at the time—they took to the skies and fought relentlessly against what had seemed an invincible German air force. And they won.
And now, here they were in front of me. These men answered the call of Winston Churchill to defend their homeland against Nazi invasion. I answered the call of George W. Bush to help find weapons of mass destruction. It really was ridiculous. Had they hung a Mission Accomplished banner behind me I would not have felt sillier than I did in that moment.
But I learned that just because someone hands me a microphone, I can’t ever forget all the wisdom and gifts and character in the room, and I am truly, truly honored to be here.
And so thank you to Dave, the Omaha Bar Association, the Law Day Committee, to our honored guests and so many leaders of the bar and of our community. Thank you for inviting me here today and giving me the opportunity to share some thoughts. I am so grateful and I hope that I can do this occasion and this venue justice.
Speaking of weapons of mass destruction! One more quick story. The first time I went to Iraq was in 2008. Iraq at that time was just coming out of the worst of its civil war, but it was still torn apart with faction. Violence was pervasive. In many cases, tribal politics was more important than progress. Elected leaders and bureaucrats were often more concerned with gaining and preserving their power than serving everyday citizens.
The United States had thrown tanks and planes, and special operations raids, and soldiers and Marines at the Iraq problem, but one thing that Iraq was especially in need of was lawyers. There were lawyers at every echelon of command. There was a task force consisting of dozens of lawyers to conduct what we called detainee operations. There was even a “Law and Order Task Force” to train officials, uphold a competent judiciary, and build and preserve the rule of law.
Now it may occur to you, as it has to me in recent years, that some of the challenges we faced in Iraq nearly 20 years ago we now face at home. I can certainly say that I never imagined the basic tenets of freedom and democracy would be material voting issues here in the United States.
That’s the bad news. But here we are.
But there’s also some good news: here we are. You and me. The men and women of the legal profession.
Why us? What could we possibly bring to the fight for democracy? What is it that lawyers do? Well, you might have guessed that the answer to that last question has a lot to do with the theme of today’s event. It’s as true in Iraq as it is in the United States, that Cornerstones of Democracy are indeed Civics, Civility, and Collaboration—and the case I want to make to you today is that we, the members of the legal profession, are well-suited to lead in these areas in our communities today.
Let me begin with perhaps the greatest challenge to civic life in America right now, and that is our society’s tenuous relationship with objective fact. Today we struggle more than ever with just ascertaining the basic facts to agree or disagree on. And we can’t solve the challenges our country faces if we don’t know, or can’t be honest about, what those challenges are. Today 38% of Americans have zero trust in traditional news media, and so many of us turn instead to social media algorithms that feed us sensational, hyperpartisan posts and articles, if not outright fake news. A 2021 study centered around the US presidential election determined that news publishers known for putting out misinformation got six times the amount of likes, shares, and interactions as did trustworthy news sources, and Facebook whistleblowers have since revealed that algorithms favored posts that sparked the angry reaction emoji, even though that emoji was specifically tied to low-quality, junk news.
What an opportunity for attorneys. (And no, I don’t just mean plaintiffs’ lawyers.) I mean all of us—what an opportunity for men and women who are dedicated to facts and not conjecture. What an opportunity for those of us who care about saying what is true and not just what feels right or popular in the moment. What an opportunity to apply those facts with honesty and competence!
In his closing argument in defense of the British soldiers accused of perpetrating the Boston Massacre, John Adams famously observed that “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.” Keep in mind that Adams was not the John Adams in December 1770, he was a 35-year old defense attorney with the courage to do what was right.
Here’s our second challenge when it comes to civics. Even when we might be able to lead our community in discerning the truth, we live in a society where folks feel the need to make our views on that truth known everywhere. All the time. To everyone. We do well to keep in mind our professional standard of competence when it comes to those interactions: knowledge, skill, thoroughness, preparation, and judgment. We know how to practice competent communication in our professional lives, and we can use that in a way that directly benefits our communities: when addressing challenges in our political discourse and in civic engagement. We can moderate our response before we’ve had sufficient time to research an issue. We can hold off on forming an opinion until we gain greater expertise. We can simply choose to listen more than we speak.
Let’s turn to the second cornerstone of democracy: civility. Now I know much has been made of the importance of civility and collegiality in the legal profession—but I always appreciated how clearly the general and statesman Colin Powell put it: “Never let your ego get so close to your position that when your position goes, your ego goes with it.” What Powell highlights is that so often what we really need when we talk about civility is its close cousin: humility.
When we are humble, we experience what is perhaps our most incredible freedom—the freedom to be wrong. To know we are part of something larger than our own fragile little need to be right. Consider our professional duty of candor: “a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.” What a remarkable thing: a charge, even in our adversarial profession, that says we must have the humility to say “this thing is true, it doesn’t help me, and I’m going to let you know about it anyway.” Forget about the courtroom: what a wonderful, countercultural statement that would make on your social media feed or at your Thanksgiving table. When we when are humble and honest, when we are civil, we can start making real progress for our community.
Finally we turn to collaboration: working together towards a common mission. As lawyers and paralegals we serve individual clients, but above all we uphold the law. The model rules say that as a member of the legal profession, an attorney is completely and yet simultaneously “a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice.” Our collective mission, all the time, from which we never experience a conflict of interest, is the rule of law. Similarly, our collective mission, all the time, from which we never experience a conflict of interest, is the betterment of our communities. We aren’t adversarial when it comes to those missions. We are not enemies. We are certainly not at war, as some today would have us believe.
As Lincoln put it in his First Inaugural Address on March 4, 1861, “We are not enemies, but friends. We must not be enemies. Though passion may have strained, it must not break our bonds of affection.” In either our professional or our personal lives, we may have different interests, values, principles, or beliefs, but we are members of this legal profession. And we are members of this community.
Civics, civility, and collaboration form the foundation of the inheritance we have as a profession to protect and defend our democracy. What an incredible gift, and what a great responsibility.
Exactly 100 years after Lincoln’s First Inaugural, another president, from a different party, gave his inaugural address, and those are the words I leave you with today:
In the long history of the world, only a few generations have been granted the role of defending freedom in its hour of maximum danger. I do not shrink from this responsibility—I welcome it. I do not believe that any of us would exchange places with any other people or any other generation. The energy, the faith, the devotion which we bring to this endeavor will light our country and all who serve it—and the glow from that fire can truly light the world.
And so, my fellow Americans: ask not what your country can do for you—ask what you can do for your country.
My fellow citizens of the world: ask not what America will do for you, but what together we can do for the freedom of man.
Thank you for your time.