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This essay is the seventh in a series exploring the role of professions in a modern, liberal democratic society and their effect on the civic culture of the nation. To read the other papers in this series, or for more information about AEI’s Program on American Citizenship, visit www.citizenship-aei.org.
To those of us who want to believe that The Federalist is the “true account of the Constitution and of the regime it was calculated to engender,” the early weeks of summer always put our faith to the test.
Every June, the Supreme Court concludes its year’s work by releasing many—maybe all—of the term’s most controversial decisions. That annual spectacle, in which judges and lawyers dominate political headlines for a week or more, often casts no little doubt on Publius’s famous prediction that “the judiciary, from the nature of its functions, will always be the least dangerous” branch of the federal government, exercising “neither force nor will, but merely judgment.” Whatever one thinks of the court’s decisions that term, one cannot deny that the court’s justices, and the lawyers that bring the cases to bar, wield enormous power in American politics.
The justices recognize that power, of course. Two decades ago, Justice Anthony Kennedy looked out his chambers’ windows to the end-of-term commotion on the marble plaza below and remarked to a reporter, “Sometimes you don’t know if you’re Caesar about to cross the Rubicon or Captain Queeg cutting your own tow line”; moments later, he and his colleagues entered the courtroom and issued their decision in Planned Parenthood v. Casey, controversially reaffirming the basic right to abortion first recognized in Roe v. Wade.
This year, Justice Kennedy stood once again at the center of the political maelstrom, writing the court’s opinion striking down the Defense of Marriage Act’s federal definition of marriage. Justice Antonin Scalia dissented from that decision and began his own opinion not with his views on the merits of the specific marriage-rights question, but with a broader denunciation of the court’s outsized role in American life:
This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former. . . . [W]e have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.
“We might have covered ourselves with honor today,” Justice Scalia concluded, “by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide.”
Let the people decide? This is the question that has challenged us since the founding: under the Constitution, which was intended to provide, in Publius’s words, “a republican remedy for the diseases most incident to republican government,” how much power should we commit to the countermajoritarian body of judges and lawyers? Stated differently, if the Constitution establishes a republican government under which the people’s “reason” would “control and regulate the government” yet the people’s “passions” would “be controlled and regulated by the government,” then how should judges and lawyers heed the people’s reason yet regulate the people’s passions?
While these questions have been considered by countless scholars and politicians, few have rivaled the insights offered by the “perceptive Frenchman”—as Justice Scalia called him, in another case—Alexis de Tocqueville. In Democracy in America, Tocqueville observed that “[t]here is almost no political question in the United States that is not resolved sooner or later into a judicial question.” Yet Tocqueville offered this not to criticize judges and lawyers, but to praise their habits of mind. To Tocqueville, lawyers and courts were the natural conservative force in civic society—our best brake against the “revolutionary spirit and unreflective passions of democracy.”
But whatever the merits of Tocqueville’s assessment in 1835, today we face a different state of affairs. Lawyers are no longer a conservative check on revolutionary political passions; quite the reverse. Indeed, as this essay attempts to explain, virtually all of Tocqueville’s particulars seem quaint in hindsight—and the legal profession’s evolution raises important questions on the place that lawyers ought to occupy in civic society today.
The views expressed in this brief are strictly my own; I do not write on behalf of my firm or any clients.
1. Martin Diamond, “The Federalist,” in As Far as Republican Principles Will Admit, ed. William A. Schambra (Washington, DC: AEI Press, 1992), 38.
2. Alexander Hamilton, “Federalist No. 78,” in Federalist Papers (May 28, 1788).
3. Terry Carter, “Crossing the Rubicon,” California Lawyer 12 (October 1992).
4. United States v. Windsor, 525 US (2013) (Scalia, J., dissenting).
5. James Madison, “Federalist No. 10,” in Federalist Papers (November 22, 1787).
6. James Madison, “Federalist No. 49,” in Federalist Papers (February 2, 1788).
7. Hein v. Freedom From Religion Foundation Inc., 551 US 587, 635 (2007) (Scalia, J., dissenting).
8. Alexis de Tocqueville, Democracy in America, trans. Harvey Mansfield and Delba Winthrop (Chicago: University of
Chicago Press, 2000), 252. For all uncited quotes from Tocqueville and for all section-heading quotes, see Democracy in America.
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