The common law understanding that what judges do is a matter of finding the law is enjoying a welcome return.
Lawyers played an enormously important role in the political theory and practice of the early American republic. The legal profession was regarded by the authors of The Federalist and Alexis de Tocqueville as the anchor of the republic—a barrier to destabilizing innovation and a constraint on excessive democratic passions. Today, however, lawyers stand to the Left of other professions and as a group generally press for continual social transformation, interpreting old constitutional and statutory provisions as reflecting the progressive imperatives of the day. This change in an important class of citizens contributes greatly to the restless state of our republic. Lawyers as a group also pose the greatest obstacle to a revival of a sound jurisprudence, like an originalism that appropriately respects precedent.
What happened to move lawyers from being a bulwark of the republic to a dynamo of instability?
Lawyers Then: The Embodiment of Traditional Wisdom
It is hard to overemphasize the importance of the common assumption that lawyers would prove the ballast of the American republic. Tocqueville regarded them as “playing the primary role in the [American] political society that is seeking to be born.” They were a “privileged class” in possession of “special intelligence.” Tocqueville in fact compares them to aristocrats in Europe. Like European aristocrats, “they have a certain scorn for the judgement of the crowd,” although for lawyers that contempt comes from watching litigants act “by blind passion. “
According to de Tocqueville, the very nature of their profession renders lawyers particularly suspicious of innovation. “Men who have made the laws their special study,” he wrote, “have drawn from their work the habits of order, a certain taste for forms, a sort of instinctive love for the regular sequence of ideas which naturally render them strongly opposed to the revolutionary spirit of democracy.”
If Tocqueville saw the lawyers in practice as a mainstay of the conservatism necessary to republican order, the Federalist writers regarded the lawyers as essential to their theory of government. They praised the “learned professions” (who were principally lawyers) as having “talents” that would recommend them more to the confidence of the entire community than would other groups. According to Publius, professionals will also likely use their abilities to decide issues in a more “impartial” manner. This analysis nods to the professions’ role as an aristocratic, balancing element against democracy in a mixed regime, albeit one suitable to the New World rather than the Old.
In Federalist 78, Alexander Hamilton in fact assumed that lawyers’ devotion to the past as embodied in rules and precedent was a necessary foundation of judicial review. Hamilton wrote: “To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them . . . and must demand long and laborious study to acquire a competent knowledge of them.”
The Changes in Law and Government That Have Changed Lawyers
But as the republic matured, lawyers changed in their orientation. One important reason was the change in the nature of government. The reach of government was very limited in the early republic. As a result, most lawyers were engaged in either private law (perfecting the business arrangements among merchants) or family law (smoothing the passage of assets from generation to generation). This employment necessarily gave them an interest in a stable society.
But with the rise of the administrative state in the Progressive Era and the New Deal, the government became an important source of work for lawyers. The more the state expanded, the more opportunities for business for lawyers. It was but a short step for lawyers to recognize that their bread was buttered more from government than from private ordering. Of course, today private ordering is pervasively regulated by government and that is all the better for lawyers. They constitute a transaction cost, and have an interest in increasing that cost.
Even without the progressive change in the nature of government, changes within jurisprudence made lawyers more friendly to innovation. At the time of the Founding, common law itself was a conserving institution. Lawyers thought they were discovering the law, aided by the epistemic help provided by precedent. But the nature of the common law changed by the early 20th century. It became a more active policy calculus where courts could change the law if they thought the innovation could result in better rules.
That revision in jurisprudence permitted lawyers to try to shape the law themselves by their own litigation decisions. Not surprisingly, some scholars have found that lawyers shaped the law to be better for lawyers. The law expanded in scope even as it became less clear, requiring more litigation to settle matters.
Implications for Today
The changed nature of lawyers has important implications for the rule of law and for the nature of our regime.
First, it means that lawyers cannot be expected to police themselves, because their interests no longer coincide with stabilizing the regime. Thus the advent of so-called Missouri plans, which give the bar an outsized voice in choosing state judges, which in turn results in the seating of more judges who will transform the law in the interests of lawyers.
Second, this perspective shows the deep reasons why establishment legal organizations cannot be trusted to act as Tocqueville and the Federalist authors assumed they would. Given the change of outlook, it is not surprising that, in 1987, members of the American Bar Association standing committee rated Robert Bork unqualified despite that Bork had been a Yale Law professor, a renowned expert on antirust, and Solicitor General of the United States. The ABA wanted to keep the Supreme Court a dynamo of progressive legal change—change that would also be helpful to lawyers. Nor it is surprising that there is evidence that the ABA gives Republican lower court appointees lower ratings even when they have similar qualifications.
The ingrained progressive inclination of today’s lawyers can be countered only by an organization of lawyers that has ideological interests that constrain their professional interest. Hence the Federalist Society is centrally important, because it calls lawyers back to fulfill the functions that were assumed essential to the maintenance of the republic.
But the Federalist Society represents only a relatively small minority of lawyers. The bar as whole leans to the Left, and the idea-generators of law—the law professors—are much further Left as a group. For all the current success of the originalist movement, the transformation of lawyers as a class reminds us how easily the restoration of constitutional principle can be thwarted. Partisan political victories come and go, but most lawyers will be eager to put law back on a progressive trajectory. It was a flaw in the assumptions surrounding the Constitution that lawyers would remain an enduring anchor for the republic. Whether it was a fatal flaw remains to be seen.