3 days ago
As we mark D-Day's 51st anniversary, the rule of law wobbles in Kansas and the United States
Gen. Dwight D. Eisenhower addresses American paratroopers on D-Day, June 6, 1944. The night before, Eisenhower had penciled a note, to be read publicly and placing the blame on himself in the event the invasion failed. (U.S. Army/Library of Congress)
With the 81st anniversary of D-Day, my thoughts turn to the experiences of those Americans who fought in that final chapter of World War II — and one American in particular: my father, Donald Croston Smith, then a 19-year-old soldier in the U.S. Army. When his troop, the storied 82nd Airborne Division, liberated a concentration camp near the German village of Woebbelin, what they discovered there was beyond anything they had witnessed since landing in Normandy.
Not far from Hamburg, the Woebbelin camp imprisoned about 5,000 people in early 1945. By the time the 82nd arrived, only half were alive. The living conditions were so deplorable that the commanding general described the scene as more than a human being could stand. My father and his comrades ordered Germans in neighboring villages to walk past the burial sites. They claimed that they were not aware of the camp. They claimed they were not Nazis.
My father found those assertions absurd. He wondered how this could have been allowed to happen and why the rule of law did not prevail over the arbitrary whims of the Nazis.
After the war, he went to law school and practiced law in the state of Kansas for 30 years. He then served as a Kansas State District Court Judge for another ten years until 1989. He died in 2002. On several occasions, he told me about his incomprehension that a sophisticated society and country, which Germany certainly was in the 1930s, had become mesmerized with a leader and regime that completely bastardized the concept of rule of law. He was enormously troubled that a government's leadership could use 'the law,' as it defined it, to commit mass murder.
In the 1960s, we lived in a small western Kansas town, hardly an epicenter of the civil rights struggle. Nevertheless, my father spoke out repeatedly about the civil rights enshrined in the U.S. Constitution. He was part of a small group that provided housing for Black students attending the local community college. At one point, I asked whether he thought he might lose clients who disagreed with his stance. He stuck to his guns, insisting he had an obligation to act when he observed something wrong.
Whether and to what degree what he had witnessed in Germany — the direct result of the destruction of the 'rule of law' — influenced his later life is difficult to say. Yet what is abundantly clear is that he had seen with his own eyes what a ruthlessly depraved society had done under the pretense of 'the law.' One of the major reasons Hitler and his henchmen were able to do what they did was their replacement of the rule of law with the rule of power.
I wonder what my father would make of the unending attacks by the Trump administration against the rule of law and the judiciary. During this president's first months in office, we have witnessed countless examples of lawless and reckless actions that undermine law and order, from firing dozens of experienced federal prosecutors to letting Elon Musk and DOGE access sensitive data about tens of millions of Americans, to confiscating millions of dollars in congressionally appropriated funds from numerous federal agencies.
These are all examples of a president disregarding the law and the Constitution.
Last month, I joined other sons and daughters of survivors attending the 80th anniversary of the liberation of the concentration camp near the German village of Woebbelin. I did so out of remembrance for the prisoners and respect for my father and his fellow soldiers. I pondered how he would compare the destruction of the rule of law from 80 years ago to what we are seeing today.
My guess is that he would agree with former Federal Appellate Court Judge Michael Luttig, who recently wrote: 'For the almost 250 years since the founding of this nation, America has been the beacon of freedom to the world because of its democracy and rule of law. … Until now, that is. America will never again be that same beacon to the world, because the president of the United States has subverted America's democracy and corrupted its rule of law.'
Don C. Smith is an associate professor at the Sturm College of Law at the University of Denver. He specializes in environmental law, with an emphasis on environmental law and policy of the European Union. Smith formerly worked as a water policy advisor for Kansas Gov. John W. Carlin. After leaving Carlin's office, he served as the governor's appointee to the Kansas Water Commission.
