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The title of this column is a Shakespearean quote people often use in jest as a trope to belittle the legal profession. It is, like many quotes, taken entirely out of context. The quote is from Act IV, Scene II of Henry the Sixth, Part Two. The quote comes from a dialogue between two characters, Jack Cade and “Dick the Butcher,” who are plotting a rebellion against the King and to take control of England. To effectively control the population, they must dispose of those who understand the law and are its greatest guardians — lawyers. Justice John Paul Stevens acknowledged this context in his dissent in Walters v. National Association of Radiation Survivors.{1} 1 473 U.S. 305, 371 n.24 (1985). This concept is not news to those of us who daily act as guardians of the rule of law, but it seems lost upon people who feel it is an anachronism and, at worst, an impediment to political goals or accretion of power.
Many of our critics swore oaths to support and defend the Constitution, yet they increasingly dismiss, castigate, or threaten us — the nation’s Criminal Defense Bar and the courts — with sanctions for exercising and protecting that same Constitution. Quoting the New York Times Editorial Board, we are at a point when we must ask, “Who Will Defend the Constitution’s Defenders?”{2} 2 Editorial, Who Will Defend the Constitution’s Defenders? N.Y. Times, March 23, 2025. We naturally look to every national, state, and local bar association, along with the associations of district attorneys and individual civil firms, hoping they would join in such a defense. However, as I write this column, the responses have been limited. It is notable that NACDL has taken a public position on numerous issues, including the threat to take away security clearances for lawyers engaged to defend potential criminal charges against former government officials and prosecutors, roundups, deportation and imprisonment abroad of noncitizens without due process, and the government’s assertion that it is no longer bound by orders of a court.{3} 3 50 U.S.C.A. Sec. 21. Also, read NACDL’s press releases on these issues. These positions put NACDL in direct opposition to a philosophy espousing that the constitutional protections of the Bill of Rights are now subservient to the whims of the Executive Branch.
The potential application of the Alien Enemies Act{4} 4 Id. — which authorizes, upon the declaration of a president, the arrest, relocation, or deportation of any “citizens, denizens, or subjects of a hostile government being of the age of 14 years and upward” — is something we, especially as criminal defense lawyers, must face. Before March 14, 2025, presidents invoked the Act only three times in U.S. history.
President James Madison invoked it during the War of 1812 against British nationals. President Woodrow Wilson invoked it during World War I against German nationals, and President Franklin Roosevelt invoked it against the Japanese, Germans, and Italians during World War II. Roosevelt would later go further when he issued Executive Order 9066, which precipitated the roundup, forcible removal, and incarceration in various concentration camps of approximately 112,000 Japanese Americans from the West Coast of the United States.{5} 5 Our government would later acknowledge that the primary motive for this executive order and the internment of the Japanese Americans was racial prejudice and not military necessity. President Gerald Ford signed a proclamation to this effect on Feb. 19, 1976. Notably, there was no removal of the Japanese population in the Hawaiian Islands, where the war began for the United States on Dec. 7, 1941, when the Japanese Navy attacked Pearl Harbor. The author attended junior high school and high school with the children and grandchildren of Japanese Americans who were forcibly removed and interned during the war.
As of March 13, 2025, the Alien Enemies Act had been invoked only during times of war. The term war, however, is no longer limited to its original meaning. Depending on one’s age, one may have lived through a “war on poverty,” a “war on drugs,” and a “war on terror.” What is defined as war is limited only by the imagination of the president declaring such war.
People who defend the accused have other potential concerns. It is not uncommon for lawyers to defend criminal accusations against charges brought under RICO, for money laundering, alleged support of terrorist organizations for those who provide funds for NGOs involved with humanitarian relief, or those who speak out at public forums in support of unpopular causes or against governments aligned with a particular administration. Is it possible those of us who undertake such a representation might find ourselves subject to criminal investigation for asserting the constitutional protections that should apply to our clients? The diminishing respect for constitutional norms suggests this might not be beyond the realm of possibility. When the government is no longer averse to violating the Constitution, we must remain vigilant. When the government opposes the Constitution as a governing principle, we must remain doubly vigilant. This is the slip, as put by Jamelle Bouie, “From Unconstitutional to Anti-Constitutional.”{6} 6 Opinion, Jamelle Bouie, From Unconstitutional to Anti-Constitutional, N.Y. Times, March 23, 2025.
The question remains: Who will defend the defenders? The obvious answer is that we shall. Thus far, no one else has seen fit to stand up for us, the criminal defense bar. NACDL will be there, but we will need help. More than ever, we need everyone, regardless of political affiliations or beliefs, to recognize the nonpartisan but existential threat to a viable defense function in our beloved country. As never before, we need everyone to recruit others to join NACDL and help protect our Constitution. Now, more than ever, we must push our state, local, and specialty bars to take a stand.
I look forward to all of us working together to accomplish this goal. Finally, like all of us, I did not expect to live in a time when we would have to fight for and reinforce the Bill of Rights that was ratified 233 years ago. I am, however, incredibly proud to do so with all of you.
About the Author
Christopher A. Wellborn is a founding member and past president of the South Carolina Association of Criminal Defense Lawyers. He practices in state and federal courts, representing clients facing all types of misdemeanor and felony charges, including drug charges, traffic offenses, white collar crimes, and juvenile offenses. Wellborn is sought after nationwide for his experience with unwarranted charges of shaken baby syndrome and child abuse.
Christopher A. Wellborn (NACDL Life Member)
Christopher Wellborn PA
Rock Hill, South Carolina
803-366-1065
cawlaw@comporium.net
www.wellbornlawfirm.com
