The United States currently faces challenges to the Constitution and rule of law that are unprecedented in its 246-year history due to divisions among its citizens, said the Hon. J. Michael Luttig at the University of Michigan’s annual Constitution Day commemoration on September 22. He therefore called upon the citizens of the country to come to the aid of a struggling America by focusing on what unites us.

“We need to rediscover the truths that we once believed to be self-evident,” he said. “We need to rediscover and reexamine, if need be, the ideals, the truths, the values, the principles on which our country is founded and has flourished for almost two and a half centuries.”

Judge Luttig served for nearly 15 years on the US Court of Appeals for the Fourth Circuit, following his appointment by President George H.W. Bush. He also was assistant attorney general in charge of the Department of Justice’s Office of Legal Counsel. In his Constitution Day speech hosted by the Law School, “American Democracy in Peril,” he pointed to several signs that America is plagued by division. 

“On this Constitution Day, our country, our institutions of government and governance, the institutions of our democracy, and our institutions of law and law enforcement are under vicious, unsustainable, and unendurable attack from within our own country,” he said.

He cited a recent Quinnipiac University poll showing that nearly three-quarters of both Republicans and Democrats agree that democracy is on the verge of collapse. Other polls show plunging respect and support for other institutions, including the US Supreme Court. For example, according to the Pew Research Center, only 48 percent of the public view the nation’s highest court favorably, and 49 percent view it unfavorably. The rating is as negative as at any point in more than three decades of polling. The White House, Congress, and the media, he added, fare little better and usually worse. 

“Is even a figurative civil war to be our generation’s legacy to posterity?”

Judge Luttig is known for the open letter circulated by then-Vice President Mike Pence on January 6, 2021, in response to calls from President Trump and his supporters that Pence reject the Electoral College votes from swing states and invalidate the 2020 presidential election results. The vice president’s letter quoted the judge’s assertion that the “only responsibility and power of the Vice President under the Constitution is to faithfully count the Electoral College votes as they have been cast” and not “to alter in any way the votes that have been cast, either by rejecting certain votes or otherwise.”

The judge spoke about the impact of that day on the country. 

“On January 6, 2021, had then-Vice President Pence not defied the demands of the former president, the United States would have been plunged into a paralyzing constitutional crisis,” Judge Luttig said. Almost two years later, he added, many believe that the United States remains on the cusp of a constitutional crisis.

With political violence on the rise, he noted, some believe that even civil war is imminent. In his June 2022 testimony before the House Select Committee on the January 6 Attack on the Capitol, Judge Luttig asked, “Is even a figurative civil war to be our generation’s legacy to posterity?”

The country is still divided on whether the attack on the Capitol was good or bad, right or wrong, needed or not needed, he said. 

“If one of the two political guardians of our democracy cannot even agree as to whether the violent riot and occupation of the United States Capitol that obstructed and prevented the constitutionally prescribed counting of the votes for the presidency of those same United States was reprehensible insurrection or legitimate political discourse, we all can agree on nothing, nor should we.”

“To steal an election in the United States of America is to steal America's democracy”

Judge Luttig—who, with a group of judges, US senators, and politicians and lobbyists, co-authored the July 2022 paper, “Lost, Not Stolen: The Conservative Case that Trump Lost and Biden Won the 2020 Presidential Election”—reminded the audience that the former president and his political allies still claim that the 2020 presidential election was stolen. 

“The 2020 election was not stolen from the former president, but if one of our national elections is ever stolen from us in the way that the former president attempted to steal the last presidential election, our democracy will have been stolen from us. To steal an election in the United States of America is to steal America's democracy.”

Judge Luttig said that the war for America’s democracy that was instigated on January 6 was just the next battle in the cultural war for America’s heart and soul that has been ravaging the country for years.

“America can withstand attacks on our Constitution and our democracy from without, but she is helpless to withstand them from within.”

“We the People of the United States”

He did, however, issue a call to action for Americans who yearn for unity. That begins with people civilly talking together as fellow citizens who have the same belief in America rather than politicians who, he said, live in a fictional world of divided loyalties between party and country. 

“So, our political leaders having failed us, to whom do we turn?” he asked. “The answer lies in the first seven words of the Constitution written by the prophets of our nation’s founding. We turn to ‘We the People of the United States.’ We ourselves must come to the aid of our struggling America.” One opportunity to do that, he noted, presents itself in the upcoming midterm elections. 

Judge Luttig also argued that Americans must resolve who we want to be and what we want America to be. 

“We need to find our lost perspective, refocus more on the much that matters that we agree upon and that unites us, and focus less on the comparatively little of importance that we disagree upon and that separates and disunites us today.”

“Vow that it will be the law that triumphs over politics”

He challenged the law students in the audience to commit to these actions, noting that lawyers have always been the guardians and stewards of the Constitution and rule of law. For example, he said, 35 of the 55 delegates to the Constitutional Convention in 1787 were lawyers or had legal training, 32 of the 55 framers of the Constitution were lawyers, and four of the five writers of the Declaration of Independence were lawyers.

“This Constitution Day, students of the University of Michigan, one of your moments of calling has come. Perhaps it is the first, but if it is, it certainly will not be the last. You, as are all Americans, are being summoned to stand, bear witness, and affirm that you believe in America and that you believe in our democracy,” he said. “I challenge you to vow that it will be the law that triumphs over politics and not politics that triumphs over the rule of law. If you do this, you will rise to what is your high calling.”