The Spirit of Liberty—Horace E. Read Memorial Lecture

Last year I wrote a guest essay for the New York Times about the media organizations that were paying Donald Trump obscene amounts of money to settle the feeble or frivolous lawsuits he’d filed against them during the presidential campaign. I pointed out that “the First Amendment gives American publishers and platforms rights that are the envy of their counterparts around the world.” I said it was “frightening and dispiriting” that so few of these organizations seemed to have the will or courage to assert those rights.

When I was invited more recently to deliver the Horace E. Read Memorial Lecture at Dalhousie University’s Schulich School of Law, I thought I’d take the opportunity to revisit and expand on some of the arguments I’d made in that essay, and to consider how other institutions important to our democracy—including the legal bar, cultural institutions, and universities—have responded to Trump’s threats. I thought I’d also try to understand better why so many of these wealthy, influential institutions have decided to accommodate Trump’s threats rather than resist them.

Below is the address I gave in Halifax on Jan. 28 at an event introduced by Dean Sarah Harding and moderated by Mary Lynk from CBC Ideas. The lecture was also aired by CBC Radio One on Feb. 11, and it’s available as a podcast here under the title, “Why Only the People Can Save Democracy.”

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The Spirit of Liberty
Horace E. Read Memorial Lecture
Schulich School of Law
Jan. 28, 2026

Thank you, Dean Harding, and thanks to all of you who were involved in organizing this event—especially to Elizabeth, Mary, and to everyone from the CBC. Mr. Read, it’s an honor to have the chance to deliver this lecture in memory of your father.

As Dean Harding mentioned, I grew up in Canada, but I’ve worked in the United States for twenty-five years, mostly litigating civil liberties and human rights cases in American courts. Because of the work I do, I know very well that American democracy is deeply imperfect, and that the Constitution’s promises, which were unevenly distributed from the start, aren’t always kept.

Still, the United States’ precipitous descent into illiberalism over the past year has been astonishing to me, as I’m sure it has been to many of you. A cult of personality has formed around President Trump, whose administration is nativist, corrupt, belligerent, and cruel. The President threatens war against America’s closest allies and talks entirely seriously of imposing martial law at home. The immigration enforcement agency—ICE—has been unleashed against non-citizens and citizens alike. Fear has taken hold basically everywhere—in newsrooms, universities and schools, cultural institutions, and immigrant communities across the country. American democracy suddenly seems at real risk of being extinguished altogether.

We all know that the United States would not be the first democracy to fade, or to flicker out. But even accounting for its defects, the United States is not just any democracy. It has a celebrated Constitution that divides power between three co-equal branches of government. The Constitution’s First Amendment gives robust protection to the expressive rights that leaders with authoritarian impulses try to stifle—including the freedoms of inquiry, speech, assembly, and the press.

The United States is also home to the world’s most influential media organizations, and to many of the world’s most respected universities. It has a formidable legal bar; a nearly-two-hundred-and-fifty-year history of judicial independence; a deeply rooted tradition of protest, political activism, and civil disobedience; and countless civil society groups dedicated to the defense of constitutional liberties.

How is it that authoritarianism has taken hold in this environment, and taken hold so quickly?

The title of this lecture, “The Spirit of Liberty,” is taken from the title of a speech that the American judge Learned Hand delivered in May 1944, as allied forces were readying themselves in Britain for the invasion of occupied France. Addressing an audience of more than a million people gathered in Central Park, Judge Hand wondered whether Americans had come to place too much faith in lawyers and legal institutions. This is what he said:

Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.

I’ve been thinking a lot about Judge Hand’s observation as the leaders of so many of the United States’ most storied civic institutions—law firms, news organizations, universities—have chosen to accommodate rather than resist President Trump’s illiberal agenda. By many measures, the United States’ democratic institutions are the strongest in world. It turns out this isn’t enough.

I.

Let’s start with this: Anyone who thought President Trump’s second term would resemble his first was very wrong. During his first term, Trump targeted minorities, immigrants, and the press, and he sometimes won the support of the courts, but his most ambitious attacks on democratic freedoms and institutions sputtered. The Supreme Court rejected his attempt to add a citizenship question to the census. Whistleblowers complicated his effort to strongarm Ukraine into investigating former president Biden. Some of the people he appointed to leadership positions in the military and intelligence agencies slow-walked, or simply refused to implement, his most extreme policies. Many of them left his administration and became vocal critics of it.

Trump’s effort to overturn the results of the 2020 presidential election was ultimately a failure, too, traumatic as it was for the country. He was impeached for it—his second impeachment, with the House of Representatives having already impeached him thirteen months earlier for obstruction and abuse of power.

But Trump and his advisors drew lessons from that experience, even if they weren’t the ones we might have wanted them to draw. In the first year of his second term, Trump issued more than 200 executive orders reshaping government policy on issues including immigration, energy, artificial intelligence, antisemitism, transgender athletes in sport, “diversity, equity, and inclusion,” and free speech. He installed loyalists to lead the most important federal agencies, and they in turn purged the agencies’ top ranks of anyone whose total devotion to the president couldn’t be conclusively established.

With dissent all-but eliminated within the executive branch, Trump turned to the elimination of dissent outside of it, sometimes through direct censorship but more often through intimidation and threats—threats of fines, sanctions, investigations, and even prosecutions. Attorney General Pam Bondi, who was previously Trump’s personal lawyer, has indicted some of Trump’s political enemies, including James Comey, the former FBI Director, and Letitia James, New York’s former Attorney General, on charges that are transparently pretextual. Trump has threatened the indictment of many more, including Jerome Powell, the Chairman of the Federal Reserve; Tim Walz, the Governor of Minnesota; and Jack Smith, the former Special Counsel who indicted Trump for trying to overturn the 2020 election.

Even more consequentially, Trump has mounted a sustained, multidimensional attack on the institutions that could in theory serve as checks on his power.

Soon after taking office, he imposed sanctions on elite law firms in retaliation for their representation of clients whom Trump viewed as political enemies. He suspended their security clearances, terminated their government contracts, and barred them from federal buildings. He threatened to impose sanctions on other firms if they didn’t agree to take on conservative clients, provide tens of millions of dollars in pro bono representation to causes he endorsed, and abandon hiring programs meant to address past discrimination.

Trump’s campaign against the media has been if anything even more far-reaching. One early move was expelling the Associated Press from the White House press pool for its refusal to call the Gulf of Mexico the “Gulf of America.” The message to other news organizations was clear: If you want to keep your access, you need to describe the world in our terms. For the past six months, reporters have been denied access to the Pentagon unless they pledge not to report government secrets. Pause for a moment to consider what journalism would look like if journalists agreed to that demand.

Famously thin-skinned, Trump demanded that CBS cancel Stephen Colbert’s show, and that ABC cancel Jimmy Kimmel’s. The Federal Communications Commission, now led by a Trump loyalist, has told broadcasters that it will pull their licenses and block their mergers if they can’t bring themselves to be more sympathetic to the President’s agenda.

Just a couple of weeks ago, the FBI raided the home of a Washington Post journalist and seized her phones and laptops in connection with an investigation into a national security leak that embarrassed the President and the Secretary of State. This was the first time in modern history that the FBI has searched the home of a journalist who wasn’t herself accused of a crime, and it was a major escalation in Trump’s campaign against the press—a warning not just to journalists but to their sources as well.

The Institute I direct, the Knight Institute, is housed at Columbia University, and so I’ve seen the Trump administration’s assault on higher-education up close. Citing universities’ diversity, equity, and inclusion programs and their purported indifference to antisemitism on campus, the administration froze or cancelled billions of dollars in research grants. It threatened universities’ accreditation and charitable status. It launched dozens of civil rights investigations and then demanded far-reaching and sometimes outlandish concessions that had no relation at all to the civil rights violations that purportedly motivated the investigations. Using federal funding as leverage, Trump demanded that universities suppress lawful protest, limit admissions of foreign students, stop issuing institutional statements about matters of public concern, shut down offices meant to support marginalized groups, and restrict the teaching of race and gender. The Trump administration is right now demanding that universities sign a so-called “compact” that would require them to abolish academic departments that “belittle” conservative ideas.

One especially noxious part of Trump’s assault on universities is a ruthless crackdown on foreign students who participated in campus protests relating to the war in Gaza. Fulfilling a promise he’d made to campaign donors, Trump directed the Departments of State and Homeland Security to arrest and deport those students on the ground that their political advocacy undermined U.S. foreign policy interests. ICE agents arrested Mahmoud Khalil, a Columbia grad student and green card holder—a legal permanent resident—who at one time had served as an intermediary between protesters and the university. Later, they arrested Mohsin Mahdawi, a Columbia undergraduate, when he appeared for a scheduled naturalization interview in Vermont.

Another student, Rumeysa Ozturk, a grad student at Tufts University, was arrested in Somerville, Massachusetts, because she had co-written an op-ed calling on her university to engage with students demanding that the university divest from Israel. You may have seen the video of her arrest, which shows masked agents appearing out of nowhere and surrounding her on the sidewalk as she screams in terror, apparently confused about the identity and authority of the men forcing handcuffs around her wrists and pushing her into an unmarked car. Over the course of a few weeks, the administration arrested and imprisoned a dozen students and summarily revoked the visas of hundreds of others.

As with the campaigns against the law firms and the press, the point of this crackdown on foreign students who were doing nothing more than exercising their First Amendment rights was to intimidate and silence, and the strategy was at least partly successful. Judge William Young is an 85-year old jurist who was nominated to the federal bench in Boston by President Reagan more than four decades ago. For the past nine months he’s been presiding over a case in which the American Association of University Professors—the AAUP—and the Middle East Studies Association—MESA—are challenging the constitutionality of the crackdown on student protesters. My institute has represented the AAUP and MESA in this case from the beginning, and we continue to represent them now.

At a trial over the summer, we presented testimony that foreign students and faculty had withdrawn from political activism out of concern that their expression or associations would result in arrest, detention, or deportation. Professors with green cards testified of being terrified that attending a protest, signing an open letter, or even publishing scholarship about Israel and Palestine would result in the upending of their professional and personal lives. The leaders of AAUP and MESA explained to the court that the arrests had created a climate of fear and repression on campuses across the country. In a blistering ruling issued after the trial, Judge Young held that the Trump administration’s policy of targeting the students violated the First Amendment. He characterized the government’s campaign against the students as a “scandalous” effort to silence constitutionally protected dissent. It strikes me that that phrase—“a scandalous effort to silence constitutionally protected dissent” provides a fitting description of much of what the Trump administration has been doing over the past year.

II.

This isn’t the first time that the United States has been down this road. Between 1917 and 1920, the U.S. government prosecuted more than two thousand anti-war activists under the Espionage and Sedition Acts and deported hundreds of foreign citizens thought to be communists or anarchists. The First Amendment as we know it today emerged during that period—the first Red Scare—in response to the realization that democracy wouldn’t survive if courts didn’t extend broad constitutional protection to political expression and association.

Judge Hand wrote one of the most important early First Amendment decisions. He wrote it in 1917, twenty-seven years before he spoke about the spirit of liberty in Central Park. The case involved a challenge to the Postmaster’s refusal to carry a magazine, called The Masses, which contained articles and political cartoons opposing the war. The Postmaster argued that the magazine violated the Espionage Act, but Hand interpreted the Act narrowly because he concluded that interpreting it more broadly would have dire implications for free speech.

Hand was only a lower court judge at the time, but his reasoning was influential, including with the Supreme Court Justices Oliver Wendell Holmes and Louis Brandeis. Beginning in 1918, Holmes and Brandeis wrote a series of dissents and concurrences that cast the First Amendment as the nation’s preeminent guarantor of the principle that the people are sovereign over the government, and not the government over the people. Over time, this conception of the First Amendment came to be embraced by the whole court.

Today, First Amendment doctrine provides powerful defenses against censorship and repression, for those willing to use them. For example, it prohibits the government from censoring the press, whether by prior restraint or criminal prosecution. It bars the government from punishing people because of their political viewpoints—from arresting them, imprisoning them, investigating them, or subjecting them to financial or other sanctions. It also limits the government’s power to use the denial of funding as a mechanism for silencing dissent. Of course, most other democracies—including this one—extend constitutional protection to free speech, too. But no society on the planet gives free speech as broad a scope as the United States does, and no society protects it as categorically.

It’s precisely because free speech is so well protected in the United States—so well-fortified by the constitution, laws, and courts, to recall Judge Hand’s trinity—it’s because free speech is so well-fortified in the United States that it has been so dispiriting to watch the leaders of the most powerful American institutions wither and shrivel in response to Trump’s threats.

Rather than assert their First Amendment rights in court—a task that literally no one was better situated to do—some of the most sophisticated and well-resourced law firms in the country simply agreed to Trump’s demands. They let Trump tell them who they could hire, who they could represent, and to whom they could provide their services pro bono. The leaders of some the country’s most respected universities—including Columbia, I’m sorry to say—entered into analogous settlements, agreeing to curtail academic freedom, admit fewer students from abroad, shut down diversity offices, and suppress student protests. Some law firms and universities have sued, and I’ll come back to that, but it’s important to understand that those cases have not been the norm. Resistance has been exceptional; surrender has been the rule.

I still find it astounding, to take one example, that no American university filed suit to challenge the arrest and threatened deportation of their students for their peaceful advocacy against the war in Gaza. That advocacy was controversial in some quarters, I know—but not even the Trump administration contended that the advocacy was illegal. So why didn’t the universities go to court? Even setting aside the universities’ obligations to their students, surely it should have been obvious to university leaders that their institutions can’t survive long if the government can summarily imprison and deport students for speech that’s protected by the Constitution. To their credit, the AAUP and MESA filed the case that universities didn’t, but it will be a permanent stain on American higher education that universities mainly left it to others to defend their students, and to champion the freedoms that are essential to the universities’ own survival.

I wish it were otherwise, but capitulation has been the rule for media and technology companies as well. Even before Trump returned to the Oval Office, technology moguls including Jeff Bezos, Mark Zuckerberg, and Sam Altman made huge donations to Trump’s inauguration fund in the hope of ingratiating themselves with the incoming president. In the days leading up to the election, the billionaire owners of The Washington Post and The Los Angeles Times, Jeff Bezos and Patrick Soon-Shiong, both vetoed editorials that would have endorsed Kamala Harris—not because they disagreed with the editorials but because they concluded that crossing Trump was just too risky.

Media and social media companies also paid obscene amounts of money to Trump to settle feeble lawsuits that he had filed against them during the presidential campaign. Trump claimed that ABC News’ star anchor had defamed him by saying on TV that a jury had found him liable for rape when in fact it had found him liable for sexual assault. Among First Amendment litigators, there was near-universal agreement that ABC would have won the case if it had defended itself in court, but ABC didn’t want to be adverse to Trump, so it paid him $15m to end the suit. CBS paid Trump $16m to settle a lawsuit in which he complained about innocuous edits that the network had made to an interview with Kamala Harris. Meta paid Trump $25m to settle an equally frivolous lawsuit over Meta’s decision to suspend Trump’s account after the events of Jan. 6, 2021.

All of these companies had the law on their side, but they folded. And once they folded, others folded, too—entering into their own settlements with the Trump administration or changing their practices preemptively in the hope that doing so would keep them out of the administration’s crosshairs.

Courage can be contagious, but it turns out that cowardice can be, too. Even today, the leaders of many of America’s most important institutions often seem to be engaged in a desperate, panicked effort to anticipate Trump’s next fixation and to conform to Trump’s preferences before Trump feels it necessary to state them. Here’s a social media company adjusting its content-moderation policies to accommodate white nationalists; here’s the National Portrait Gallery removing a biography of President Trump because it says, accurately, that he was twice impeached; here’s a tech company deleting an entirely lawful app from its app store because ICE has raised objections; and here’s CBS News nixing a story about the Trump administration deporting Venezuelans to a notorious prison in El Salvador because Stephen Miller, the president’s advisor, has declined to be quoted in the story.

Just a few weeks before he returned to the Oval Office at the beginning of last year, Trump told a reporter: “In the first term, everyone was fighting me, . . . [but] in this term, everybody wants to be my friend.” This isn’t entirely right, but it’s not entirely wrong, either. At least among the leaders of America’s elite civic institutions, no one wants to cross Trump. Fear is the spirit of the times.

I mentioned earlier that the FBI recently raided the home of a Washington Post reporter and seized her laptops and phone—a serious escalation of Trump’s effort to intimidate news organizations that report critically about his policies and decisions. Press freedom groups condemned the raid, but Bezos, the Post’s owner, made no public statement at all. To my knowledge, he still hasn’t made one.

III.

Perhaps it’s oversimplifying things to say that American elites have failed to defend their institutions, and to defend the freedoms that are important to their institutions’ flourishing. After all, all of the options presented to these leaders were bad ones. They had to make difficult choices under immense pressure. Surely they just made the decisions they thought would serve their institutions best, which is what it was their jobs to do. Let’s consider more carefully, in the time we have left, why so many institutional leaders have settled with Trump, and whether their decisions served their institutions well.

First, some leaders settled with Trump because they doubted that they could win in court. They concluded that some of Trump’s threats were too vague to be legally actionable; that some injuries were too diffuse; and that some injuries just weren’t susceptible to judicial remedy. They also doubted that district court judges would be willing to side with them against senior government officials, whose motives the courts are often reluctant to question.

Over time, though, it’s become increasingly clear that the courts—the lower courts at least—are ready to play their constitutionally assigned role. The law firms that sued when Trump revoked their security clearances and barred them from federal buildings—all of them won quick victories. Many universities settled, but Harvard sued over Trump’s decision to freeze federal grants, and it won. A slew of media organizations have reached settlements with Trump but the New York Times defended itself when Trump sued the paper over its reporting about his tax filings, and it won, too, with the judge even ordering Trump to pay the newspaper’s legal fees. The record of the past year strongly suggests that the institutional leaders who settled did so precipitously and unnecessarily.

Second, some leaders believed they could win in court but concluded that winning in court wouldn’t be enough. Their reasoning went like this: The federal government can punish a media organization in many different ways. It can deny reporters access to government officials or facilities; expel them from the White House press pool; search their journalists’ homes; threaten their broadcast licenses; investigate them for publishing national security secrets; and refuse to approve proposed mergers. Universities are similarly exposed. The government can freeze their funding; refuse them new grants; threaten their accreditation; deny visas to their foreign students; and investigate them for supposed violations of anti-discrimination law.

What good does it do to win a court order against one coercive action when the government has so many other coercive possibilities available to it? That reasoning led many institutional leaders to conclude that settlement was the better course.

What this line of thinking overlooked is that settlements with Trump turn out not to be worth the paper they’re printed on. He just doesn’t honor them. To the contrary, he views any concession as a sign of weakness and as an indication that there’s more value to be extracted. And so universities that expected that their settlements would end their conflict with the administration have been subjected to continuing pressure campaigns. The same has been true of the news organizations that paid Trump millions of dollars to withdraw his frivolous lawsuits.

Meanwhile, the costs to the institutions that settled—not to mention the costs to our democracy—have been profound, even if they’ve been difficult to measure. CBS was once the most respected news organization in America thanks, ironically, to its fearless coverage of McCarthyism; now it’s a punchline on the late-night talk shows. The law firms that capitulated to Trump have lost not only their credibility as advocates but also some of their clients, partners, and associates. The leaders of these institutions were absolutely right to conclude that litigation would be risky, costly, and insufficient. But we know now that litigation, for all of its drawbacks, was preferable to the alternative.

Third, some institutions settled with Trump because they were sympathetic to his administration’s agenda, or to parts of it. Some university leaders were sympathetic to the Trump administration’s criticisms of affirmative action and DEI, and they shared the view that elite universities had become hostile to conservative viewpoints and to white men. Some university trustees and alumni thought the arrests of foreign students who had participated in pro-Palestinian protests were not just justified but overdue. Some trustees, administrators, faculty, and advocacy groups saw in the Trump administration’s hostility to higher education an opportunity to institute changes that they themselves had been advocating for many years. I said earlier that universities had capitulated to the Trump administration but in some cases the dynamic was more collaboration than capitulation.

I think we’ve already seen that this strategy was short-sighted, too. The Trump administration has seized on concerns relating to antisemitism and DEI to justify a much broader and still-expanding attack on higher education. Judge Allison Burroughs, who presided over the case in which Harvard successfully challenged the cancellation of its grants, wrote that the Trump administration has used antisemitism as “a smokescreen” for its own unrelated policy agenda. That assessment seems exactly right to me. The Trump administration is similarly using “free speech” as a smokescreen for all kinds of censorship. For example, in the name of free speech it’s revoking the visas of researchers who study misinformation, investigating news organizations for exercising editorial judgment, and (as I mentioned already) demanding that universities abolish departments that belittle conservative ideas. Those who have tried to make common cause with the administration on issues relating to equality and free speech have been used.

Finally, some institutional leaders just thought it would be better if other institutions did the fighting. This is always the dynamic with bullies, of course. There’s always the hope that, if one keeps one’s head down, the bully will focus his attention on someone else. And there’s always the hope that someone else will do the difficult work of putting the bully in his place. Courage is a public good, and so it’s undersupplied.

In describing the atmosphere in the United States in the years immediately after the Second World War, Norman Mailer wrote that “a stench of fear ha[d] come out of every pore of American life”—that the nation was suffering from “a collective failure of nerve.” He lamented that “the only courage, with rare exceptions, that we have been witness to, has been the isolated courage of isolated people.”

The landscape in the United States now is similar, and for similar reasons. Most of the leaders of the United States’ elite universities, news organizations, law firms, and cultural institutions understand very well that Trump poses an extraordinary threat to the democratic freedoms and values that are essential to their own institutions’ thriving and indeed survival. But there is a collective failure of nerve. The leaders of the United States’ elite institutions haven’t been willing to use the tools that the constitution, the laws, and the courts afford them. They seem also to lack the political structures and human relationships that would allow them to organize a coordinated, collective response to the threat that Trump poses.

Judge Hand delivered his “Spirit of Liberty” speech on May 21, which at that time was known as “I Am an American Day.” It was a naturalization ceremony, a celebration of immigrants and of all they contribute to American life—the kind of celebration that Mohsin Mahdawi, the Columbia student, might have attended had he not been arrested when he arrived for his naturalization interview. The speech is about courage. Hand celebrates immigrants who had “courage to break from the past and brave the dangers and the loneliness of a strange land.” He wonders, “what was the object that nerved us, or those that went before us, to this choice”? And then when he asks them to pledge their faith in “the glorious destiny of our beloved country,” he tells them that the America of their aspirations will never come into being except as “the conscience and courage of Americans create it.” So leaving one’s home requires courage, but creating the nation of one’s aspirations, and defending it—those tasks require courage, too. He pays tribute to the “young men who are at this moment fighting and dying” for an America that has not yet come into being.

The spirit of liberty is still easy to find in the United States, but you have to look beyond the leadership of elite institutions. Among ordinary citizens, there’s no scarcity of civic courage. The No Kings Day rallies over the summer drew around 5 million Americans to demonstrations in 2000 cities and towns across the country. Thousands of Americans protested President Trump’s deployment of the national guard in Portland, Los Angeles, Chicago, and Washington. Government lawyers have resigned rather than participate in corrupt investigations and prosecutions. You’ve all seen the footage of Americans around the country trying to protect their immigrant neighbors from ICE, even as ICE raids have become increasingly violent and Vice President Vance has assured ICE agents, falsely, that they enjoy “absolute immunity” for actions taken in connection with their duties. The tens of thousands of American students who participated in peaceful demonstrations and encampments meant to assert the humanity of Palestinians—those students also exhibited an admirable civic fortitude, a willingness to pay a personal price for the defense of human rights.

One of the people who testified in the case I mentioned earlier—the case in which the AAUP and MESA are challenging the arrests of student protesters—is a guy called Bernard Nickel. He had come to the United States as a student from Germany three decades earlier, and then stayed on to teach philosophy, first at Tufts and then at Harvard. When the trial began, he’d just completed a three-year term as chair of Harvard’s philosophy department. Professor Nickel is a green card holder, not a U.S. citizen, but until very recently he felt that he and his family were secure in the United States, and he didn’t hesitate to speak out publicly on controversial political issues. He assumed that the First Amendment protected him. The arrests of foreign students in the spring of 2024 made him suddenly aware of his own vulnerability. Watching the video of masked ICE agents arresting Rumeysa Ozturk, the Tufts student, was a particular shock. He testified at trial that he decided, after he saw that video, that he would “keep my head down completely. I would not go to protests. I would not write, I would not sign on to public letters, and any other potential forms of publicity I would just avoid.”

On cross-examination, a government lawyer asked Professor Nickel why, if he was really so afraid of government retaliation, he’d agreed to testify in a case which ICE was a defendant. If he’d resolved not to sign on to public letters and engage in public advocacy, why was he here in court testifying against the government? This is what he said in response:

You know, anybody can sign on to an open letter. Anybody can go to a protest. My sense was that, in this trial, somebody in my specific situation, somebody who is a senior scholar with a secure position at Harvard . . . , I don’t know that there are that many people who could have done this. So I thought this is something that’s worth it. . . . This is . . . where I live, and I want this to be a country and a nation of laws, not of men. . . .  I believe in these kinds of processes and procedures. . . . [T]his is me doing my part.

Other faculty, from universities around the country, offered similar testimony. They were fearful that their participation in the lawsuit would provoke government retaliation, but they participated nonetheless out of a sense of obligation—to their American families and friends, their students, and to the democracy they had made their own. They did their part.

If the United States is going to return from the brink of this abyss, it will be because ordinary people—citizens and non-citizens alike—still care deeply about their democracy even if so many elites have shown themselves unprepared to defend it. Americans reclaimed their democracy after the first Red Scare and again after the second; perhaps we’ll reclaim it again after this one. Learned Hand was surely right that it will require more than constitutions, laws, and courts.

FEATURED IMAGE: The Statue Of Liberty against a clear sky (via Getty Images)