Jeff Flake: 'You can go elsewhere for a job, but you cannot go elsewhere for a soul', Harvard Law School - 2018

23 May 2018, Harvard Law School, Boston, Massachusetts, USA

Dean Manning, graduates, class marshalls, families and faculty:

It is such an honor to stand before you today, on this very special day of celebration and accomplishment for you and your families, in this annual season of advice-giving. That is why I am here. I am very much hoping you can give me some advice.

I’ll soon be in the job market myself.

I feel truly privileged by your invitation. Congratulations to the Harvard Law Class of 2018! To be here in this place that has produced so many of our nation’s leaders and our finest legal minds is deeply humbling. An institution that gave the world Oliver Wendell Holmes, a majority of the current Supreme Court, and not only Barack but Michelle Obama, too — well, it all has me wondering if I didn’t somehow receive this invitation by mistake.

I’ll always remember the decadent celebration after graduation at my beloved alma mater, BYU. Bowl after bowl of rocky road, double fudge chunk and butter pecan. Hey, when you’re Mormon, ice cream is all you’ve got.

I am not only humbled by this place, I am also humbled by this moment in the life of our country. You see, you are set to inherit the world in just the nick of time.

I am also especially humbled given the fact that I come to you today from the political class. In utter seriousness, it is I who could benefit from listening to you today rather than speaking to you, as I am not so sure that there is much distilled wisdom to be imparted from Washington these days, given what has lately become the tawdriness of my profession. I am here today as representative of a co-equal branch of our federal government — which is failing its constitutional obligations to counteract the power of the president, and in so doing is dishonoring itself — at a critical moment in the life of our nation.

And so, with humility, let me suggest that perhaps it is best to consider what I have to say today as something of a cautionary tale —

-about the rule of law and its fragility;

-about our democratic norms and how hard-won and vulnerable they are;

-about the independence of our system of justice, and how critically important it is to safeguard it from malign actors who would casually destroy that independence for their own purposes and without a thought to the consequences;

-about the crucial predicate for all of these cherished American values: Truth. Empirical, objective truth;

-and lastly, about the necessity to defend these values and these institutions that you will soon inherit, even if that means sometimes standing alone, even if it means risking something important to you, maybe even your career. Because there are times when circumstances may call on you to risk your career in favor of your principles.

But you — and your country — will be better for it. You can go elsewhere for a job, but you cannot go elsewhere for a soul.

Not to be unpleasant, but I do bring news from our nation’s capital. First, the good news: Your national leadership is… not good. At all. Our presidency has been debased by a figure who has a seemingly bottomless appetite for destruction and division and only a passing familiarity with how the constitution works.

And our Article I branch of government, the Congress (that’s me), is utterly supine in the face of the moral vandalism that flows from the White House daily. I do not think that the founders could have anticipated that the beauty of their invention might someday founder on the rocks of reality television, and that the Congress would be such willing accomplices to this calamity. Our most ardent enemies, doing their worst (and they are doing their worst), couldn’t hurt us more than we are hurting ourselves.

Now, you might reasonably ask, where is the good news in that?

Well, simply put: We may have hit bottom.

(Oh, and that’s also the bad news. In a rare convergence, the good news and bad news are the same — our leadership is not good, but it probably can’t get much worse.)

This is it, if you have been wondering what the bottom looks like. This is what it looks like when you stress-test all of the institutions that undergird our constitutional democracy, at the same time. You could say that we are witnesses to history, and if it were possible to divorce ourselves from the obvious tragedy of this debacle, I suppose that might even be interesting, from an academic perspective. The way some rare diseases are interesting to medical researchers.

But this is an experience we could and should have avoided. Getting to this state of distress did not occur naturally. Rather, this was thoroughly man-made. This disease of our polity is far too serious to not be recognized for what it is, the damage it threatens to do to our vital organs is far too great for us to carry on as if all is well. All is not well. We have a sickness of the spirit. To complete the medical metaphor, you might say that we are now in critical condition.

How did we arrive at a moment of such peril, wherein a president of the United States publicly threatens— on Fox & Friends, historians will note — to interfere in the administration of justice, and seems to think that the office confers on him the ability to decide who and what gets investigated, and who and what does not? And just this week, the President — offering an outlandish rationale, ordered an investigation into the investigation of the Russian attack on our electoral process — not to defend the country against further attacks, mind you, but to defend himself. Obviously, ordering investigations is not a legitimate use of presidential power.

I pick this egregious example of recent presidential conduct not because it is rare in terms of this president’s body of work, but because it so perfectly represents what we have tragically grown accustomed to in the past year and a half. Who would have thought that we would ever see encouragement coming from the White House for chants at rallies calling for the jailing of a defeated political opponent. When you don’t even know that there are limits on presidential power, then you might not even care when you are abusing that power.

How did this happen to us? And what might we learn from it? How did we get swept up in this global resurgence of the authoritarian impulse, which now has democracies teetering on the brink, strongmen placing themselves above the law, and in our own country a leader who reveres some of the most loathsome enemies of democracy in our time?

Have we really grown tired of democracy? Are we watching its passing, cheered on by the America First crowd even as we cast aside global institutions that have fostered freedom, prosperity and peace for more than a half-century?

For just a moment, let us marvel at the miracle that is the rule of law. We have seldom been moved to pause for such an appreciation, as we have been too busy taking it for granted and assuming its inviolability — like gravity. But unlike Newton’s Laws, the rule of law was neither innate nor inevitable. What goes up must come down is a piece of cake compared to curbing the impulses of man and asking free people to abide rules and norms that form a country, and foster civilization.

It took centuries of war and sacrifice and social upheaval and more war and great civil rights struggles to establish the foundational notion that no one is either above the law or unworthy of the protections afforded by a robust legal system, a system that took us from feudal servility to a constitutional model that is the envy of the world. And will continue to be, with your help.

We trace the beginnings of this radical egalitarianism — of the awesome and leveling effect of the law – to the Glorious Revolution of 1688, which saw the death of the divine right of kings, as even the monarch from that point forward would be subject to the law — and the parliament even threw in a bill of rights for good measure.

But we are now testing the durability of this idea that William III first had the good sense to agree to, an idea which was then forged and tempered over the ensuing centuries. And we are seeing its vulnerabilities. In other parts of the world where democracy’s roots are not so deep, we are seeing it being torn down with sickening ease and shocking speed. And worse, we are seeing the rise of simulated democracies, Potemkin democracies, democracies in appearance and affect only.

Rule of thumb: If the only acceptable outcome in a matter of law or justice is a result that is satisfactory to the leader, then you might live in a democracy that is in trouble. If the leader attacks the legitimacy of any institution that does not pay him obeisance — say, the independent judiciary, or the free press — then you might live in a democracy that is in trouble. Further to that point: when a figure in power reflexively calls any press that doesn’t suit him “fake news,” it is that person who should be the figure of suspicion, not the press.

It will be the work of your generation to make sure that this degradation of democracy does not continue — to see to it that our current flirtation with lawlessness and authoritarianism does not become a heritable trait to be passed down from this presidency.

The rule of law is an elemental value, a value that preceded and gave rise to our Constitution. It is not an ideology subject to the pendulum swings of politics, or something to be given a thumbs-up or thumbs-down in a call-in to your favorite morning show. It is the basis of our system of self-governance. America without the rule of law is no longer America.

I am a conservative Republican, a throwback from the days when those words actually meant something, before the collapse of our politics into the rank tribalism we currently endure. My sounding this alarm against a government that was elected under the Republican banner and that calls itself conservative makes me no less Republican or conservative. And opposing this president and much of what he stands for is not an act of apostasy — it is, rather, an act of fidelity.

Because we forget this fact far too often, and it bears repeating a thousand times, especially in times such as these: Values transcend politics.

As a conservative Republican, I dare say that my idea of government may differ with the beliefs of many of you here today. I will be thoroughly presumptuous and assume that in terms of policy prescriptions, we disagree on much. (Call me crazy.)

But I have long believed that the only lasting solutions to the problems before us must involve both sides. Lawmaking should never be an exercise in revenge, because vengeful people are myopic, self-interested, and not fit to lead. I believe that our government should include people who believe as I do, just as I believe it must include people who believe as my friend Tim Kaine does, or as my friend Cory Booker does, to name but two.

The greatness of our system is that it is designed to be difficult, in order to force compromise. And when you honor the system, and seek to govern in good faith, the system works.

Which brings us back to our current peril. It is a testament to our times — and to the inflection point that we face — that I am here today. For, setting aside the usual requirements of politics, and the usual ways that politics keeps score, the things that normally divide us seem trivial compared to the trials that have now been visited upon our democracy.

In the face of these challenges, we agree on something far more important than a legislative program, even more important than our thoughts on the proper role of government in the economy and in the lives of individuals: We agree on the need to safeguard the health and survival of constitutional democracy in America and the preservation of the American idea itself — at a time when the values underpinning our constitutional system and that extraordinary idea are under threat, from the top.

The values of the Enlightenment that led to the creation of this idea of America — this unique experiment in world history — are light years removed from the base, cruelly transactional brand of politics that in this moment some people mistakenly think is what it means to make America great.

To be clear, we did not become great — and will never be great — by indulging and encouraging our very worst impulses. It doesn’t matter how many red caps you sell.

The historian Jon Meacham, in his splendid new book, The Soul of America, reassures that history shows us that “we are frequently vulnerable to fear, bitterness, and strife.” The good news, he says, “is that we have come through such darkness before.”

Perhaps. But not with both nuclear weapons and Twitter. And certainly not with such an anomalous presidency as this one. But I take your point, Mr. Meacham, and am heartened by it.

We will get through this, of course. But at the moment, we are in it, and we must face it squarely. Because too much is at stake for us to turn away, to leave it to others to defend the things we hold most dear.

A culminating event such as the election of our current president scrambles normal binary notions of politics, and I am as disoriented as many of you are at this dealignment. We find that many of the day’s biggest issues simply don’t break down neatly to familiar ideas of left v. right, but rather more along these lines:

— Do you believe in democracy, or not?

— Are you faithful to your country, or to your party?

— Are you loyal to the law and the Constitution, or to a man?

— Do you reflexively ascribe the worst motives to your opponents, but somehow deny, excuse, or endorse every repulsive thing your compatriot says, does or tweets?

These questions have sent some of us wandering into the political wilderness. And it is in that wilderness where your wonderful letter of invitation reached me.

Well, the wilderness suits me fine. In fact, I so love the way Washington has become that in recent years, during congressional recesses, I have taken to stranding myself on deserted islands in the middle of the ocean to detoxify all these feelings of love out of my system. I am not kidding.

I once spent a week alone, voluntarily marooned, on a tiny island called Jabonwod, a remote spit of sand and coconut trees in the central Pacific, about 7,000 miles from Washington.

As penance, and determined to test my survival skills, I brought no food or water, relying solely on what I could catch or collect. That, it turned out, was the easier part. More difficult was dealing with the stultifying loneliness that set in on the first night and never left me.

By day three, for companionship, I began to mark the hermit crabs that wandered through my camp with a number, just to see if they would reoccur. By the end of the week I had 126 numbered friends. I still miss number 72, who rarely left my side after developing an addiction to coconut scraps. I was less fond of number 12, who pinched my big toe.

Now, I would not recommend such drastic measures to escape your situation, but I hope that should you be presented with the hard choice, you too will eschew comfort and set out into the wilderness rather than compromise your conscience.

From my cautionary tale to you today, I urge you to challenge all of your assumptions, regularly. Recognize the good in your opponents. Apologize every now and then. Admit to mistakes. Forgive, and ask for forgiveness. Listen more. Speak up more, for politics sometimes keeps us silent when we should speak.

And if you find yourself in a herd, crane your neck, look back there and check out your brand, ask yourself if it really suits you. From personal experience, I can say that it’s never too late to leave the herd.

When you peel off from the herd, your equilibrium returns. Food tastes better. You sleep very well. Your mind is your own again. You cease being captive to some bad impulses and even worse ideas.

It can strain relationships, to be sure, and leave you eating alone in the senate dining room every now and then. But that’s okay. To revise and extend a remark the president himself may recognize: You might say that I like people whose minds weren’t captured.

That one was for you, Senator McCain. We’re all pulling for you.

Politically speaking, I have not changed my beliefs much at all. But my goodness, how I have changed. How can we live through these abnormal times and not be changed?

Our country needs us now. Our country needs you.

We need each other, and it is a scoundrel who would prosper politically by turning us against each other.

From our time, let us send a message into the future that we did not fail democracy, but that we renewed it. That a patchwork of populist resentments and authoritarian whims that for a while succeeded in its cynical mission of discord had the ultimate effect of shaking us from our complacency, reminding us of who we are and of our responsibilities to each other. Of reawakening us to our obligations as citizens.

Let us be able to say in the future that we faced these forces that would threaten the institutions of our liberty and tear us apart and that we said: NO.

I leave you today with more good news and bad news. This time I will start with the bad news, which is: All of this is yours to fix. All of it.

And that of course is also the good news: All of this is yours to fix, and our country could not be more fortunate than to have people of your high character, strong principle and awesome talent soon taking the helm.

I grew up as a kid on the F-Bar Ranch in rural Arizona, and if we needed to gauge the condition of the range or to measure the damage after a flood, we would find the highest hill or butte and ride our horses to the top. From such a vista we could dispatch cowboys to gather cattle, machinery to shore up roads, or workers to repair fences — to restore some semblance of order.

There are no tall buttes in Washington. But it is nonetheless our obligation to assess the condition of our politics, then to mitigate and repair the damage.

It is the story of America, though, that we will be better for the hard lessons of this experience. We are much better and more decent than Washington shows us to be. We are a good people. And we are a deeply resourceful and resilient nation, and our greatness is based on no one man — no one man who “alone can fix it,” but rather on enduring ideas of self-governance and the rule of law that have been a model for the world for centuries. Ideas that can be mocked, but not marred.

No, there are no high buttes in Washington, but still we must gain the high ground, and survey the damage. And the thing about gaining the high ground is from up there you can see beyond the damage, too. You can see everything. Everything that is good and decent.

That is the job before us — to get through this, and beyond it. And you’re just the ones to take us there.

Thank you. And once again, congratulations to the Harvard Law Class of 2018!