Legal Ethics and Reform

Are Lawyers and Judges America's Aristocracy? True or False?

Some Background Material

Russell Kirk in his book The Conservative Mind discusses society's need for an aristocracy to mute, channel, delay, and/or even frustrate the urges of a democratic majority. Kirk acknowledges that the checks and balances built into written (and unwritten) constitutions can do some of the work of an aristocracy, but over time majoritarian instincts and the emotions of the voters will tend to compromise these checks and balances. Once these checks and balances are weakened or destroyed the society's aristocracy will be left to do its job unaided. It is therefore essential that an aristocracy have a clear understanding of the precepts which should guide its actions.

According to Kirk, aristocracies can be legitimate or false depending upon whether or not they adhere to certain precepts: 1) that the religious traditions of the society are supported, and not undermined, 2) that the historic traditions of the society are respected , 3) that  the needs of future generations be considered, 4) that any change be made slowly, that it be incremental, and be made only in the face of a real need, and 5) that any change take into account the legitimate needs and historical positions of all groups in society not just the majority or moneyed interests. Kirk repeatedly emphasizes the importance of private ownership of property (particularly land), the right to freely enter into contracts (and the right to have contracts enforced by society), the importance of religious faith to reinforce society's interest in promoting right behavior by its citizens, the importance of keeping power where possible in the local community where people know each other and can easily understand and sympathize with each others needs, and the importance of keeping people connected to their families and  communities.

Society's which lack an aristocracy tend to descend into chaos and then turn to a dictator to restore order. Kirk points to the French revolution which began in 1790 as a  reaction to the corrupt French nobility (aristocracy), then progressed to unchecked shouts of "liberty, equality, and fraternity", and ended with the installation of a dictator, Gen. Napoleon Bonaparte, a decade later. Societies with functioning aristocracies move through the decades changing slowly but steadily to meet society's needs  but the outward form of government doesn't change dramatically. Kirk points to Britain and the United States of America as examples where such gradual change has occurred. This does not say that the aristocracy in either country is true or false but it says that in each an aristocracy exists.


The American Situation

Alexis de Tocqueville in his famous book Democracy in America has a chapter (Ch 8 in Part II) explaining how lawyers and the legal system temper democracy in America. He pointed out that lawyers and judges function as aristocrats in America.  Tocqueville was right then and if anything this  group has more rather than less power today. In Tocqueville's day the Supreme Court was just learning how to exercise its great power under Marberry v. Madison .  In this 1803 decision the Court gave itself the right to determine if a law was Constitutional (or Unconstitutional).  Later in 1954 the Supreme Court in Cooper v. Aaron simply stated that the "Constitution says what we say it says".  Recently the Supreme Court in Missouri v. Jenkins allowed a local Federal judge to not only take over the Kansas City  school system but also to double  local property taxes against the expressed will of the taxpayers who had voted against this tax increase, a vote which was required by Missouri Law. Taxation without representation had thus returned to America. The power of America's legal establishment led by the Federal judiciary to act as an aristocracy is without question.


A True or a False Aristocracy?

Now the discussion must turn to the question of whether or not America's aristocracy is a true or false aristocracy. Using  Kirk's five criteria the analysis follows:

1)  Do the  courts act in accordance with the Christian beliefs which animated the founders of this nation and which are widely held in America today? The  Courts have decided that no-fault divorce is acceptable, that abortion in all stages of pregnancy is acceptable, that the Ten Commandment may not be displayed in Court Rooms or public school buildings,  that sexually explicit material that degrades women will be widely available, and that teachers in public schools may not open their classes with a prayer.

2) Do the Courts uphold the traditions handed down from earlier generations? The traditional idea that a man's property is his to use as he sees fit has been greatly changed as the Court has approved various regulations which (without compensating the landowner) make it illegal for certain landowners to do such things as: drain a swamp on his own land, or build a home on his own land, or grow crops such as wheat on his own land, or possess a hand gun in his own home for self defense, etc. The traditional idea that a businessman might pick and choose which parties he wishes to serve (or otherwise contract with ) in his own establishment has been struck down by the Courts. The idea that historical events, like the Irish Catholic St. Patrick's Day Parade in New York, might retain their unique flavor has been changed by Courts forcing organizers of such events to accept marchers such as gay and lesbian activists.

3) Do the Courts require that current legislation consider the needs of future generations?  The propensity of the Congress to deficit spend and provide guarantees for the long term financing of favored quasi government programs (i.e. Fannie Mae, Sallie Mae, Freddie Mac, IMF, World Bank, etc.)  was challenged and the courts refused to stop these activities knowing full well that generations yet unborn will have to deal with this debt and these financial guarantees. The wholesale destruction of youngsters in abortion clinics was authorized by the Courts even though ultrasound picture of babies undergoing abortion clearing indicate that these babies want to live and become part of the next generation.

4) Do the Courts slow down the pace of change allowing only truly necessary changes to take place? The racial integration of America was accomplished in a very short period of time despite the long history of acrimony including a Civil War and a century of Court approved segregation. In less than ten years schools, public accommodations, welfare rights, voting rights, and employment practices were all reformed while racial quotas were established and other positive programs to force the mixing of the races were instituted. The dislocations and animosities thus engendered are very real today and will last for decades.

5) Do the Courts take into consideration the interests of all groups or just those with lots of votes or money? Here the Courts have a better record during the last few decades. Blacks,  gays, inmates,  Hispanics, and  atheists all minority groups in society are favored groups and all have experienced considerable  success with the Courts. Property owners, unborn babies, the Boy Scouts, small business owners, state legislatures, and property tax payers are some of the groups which have not had much luck before  the Courts particularly when the Federal government or some member of the Court's favored groups (i.e.  blacks, gays, Hispanics, atheists, inmates, etc.) was on the other side of the case.

Does America have a "false" or a "true" aristocracy?  Ultimately everyone is free to set their own criteria and do their own judging, but using Kirk's criteria America's aristocracy  must be labeled a "false" aristocracy.  According to Kirk a society with a "false" aristocracy will 1) gradually sink into a depraved state where religious belief is pushed aside and men lose touch with their God, where the rights of private property are eroded or completely destroyed, where the right to voluntarily enter into private contracts and have those contracts enforced is lost, where the special status of the family will be compromised, and where the quality of education together with the needs of the young will be sacrificed to the wants of their parents and teachers, 2) massive displays of decadent and degenerate behavior are likely, and 3) violent upheavals may occur as this process of decay goes forward. However,  so long as the "false" aristocracy remains willing  to apply repressive force to  revolutionary elements, the society will probably avoid a complete breakdown as occurred during the French revolution.  How far has America progressed down this road? A fair analysis would say very far but not so far that reformation is out of the question. After all only one third of unborn babies are aborted, only about half of all marriages end in divorce, not all property rights have been destroyed, not all contacts are interfered with, and about a  third of self identified Catholics and Protestant still attend Church on Sunday.


Dissenting Voices

There are many dissenting voices which disagree with one or other of the points made above, some of these are discussed below:

Some might argue that it is wrong to include lawyers with Judges in this analysis. It is true that the struggling lawyer who writes wills, advises the local school board about the legality of various proposals,  and represents clients before traffic courts certainly does not feel himself a member of an aristocracy, but even he has taken the necessary steps to make it to the first rung of the nation's aristocratic ladder. He attended law school, he accepted the doctrine which says that dissimulating by lawyers is an essential part of the justice system, and he agreed to be bound by the Supreme Court Rules which among other things take away a lawyer's right to publicly criticize a judge or judicial process. So, like the 22 year old in the former USSR who was invited into the Communist Party and agreed to attend meetings and have dues deducted from his paycheck, this young lawyer in America has joined the country's "false" aristocracy as a young Knight errant, as an aspirant to power.

Others might alternately argue that the checks and balances built by our founding fathers into our federal and state constitutions are still adequate and still perform the role of an aristocracy. These provisions, with citizens scrutinizing all government activity, with the state governments checking the federal government, with the three branches of the Federal government checking each other, might have been adequate originally,  but consider all the checks and balances which have been jettisoned: The civil war eliminated the right of the states to succeed from the union, which was the most important check which the state governments possessed over the Federal government. The 17th Amendment to the Federal Constitution eliminated the power of the state legislatures to elect US Senators.  The Courts allowed the size of Congressional districts to increase from 30,000 to 600,000; this eventually made it impossible for people to run for the US House without first collecting huge amounts of money. The Supreme Court's decision including "recent immigrates -  non-citizens - non voters" in the Congressional apportionment process meant that voters in areas where low income citizens dwelled amongst non-citizen immigrants were advantaged relative to voters in areas where established home owners lived. The Federal Estate tax has made it nearly impossible for property owners to accumulate and pass on  significant holdings from generation to generation. The Federal Income tax has forced middle class people to take second jobs rather using their extra time to get involved in government as the founders envisioned. The Supreme Court's decision requiring the states to apportion their state senates using the "one man one vote" rule eliminated the fine work of the state founders who had sought stability by favoring the rural land holding interests in one legislative chamber while allowing the other chamber to be controlled by the populous towns and cities. (It is ironic that the composition of the US Senate which violates the "one man one vote rule" remains while the states' have lost the right to have similar legislative bodies.)

Another group of dissenting voices, lead by Joseph Sobran, say that these actions by the Courts and politicians are just a manifestation of the will of a cultural elite who, acting as a "hive" and (without any conspiratorial communication among them),  have set in motion liberal agendas involving entertainment, education, gun control, birth control, abortion, suburban sprawl, the environment, zoning, the roles of the sexes, affirmative action, etc. Sobran contends that these agendas are promoted and kept alive by certain elite colleges professors, writers for elite publications,  scholars at "think tanks", Hollywood activists, etc.  who just follow each others pronouncements. Sobran's theory is that the "bench and bar" and politicians are followers of these elite members of the "hive" who influence campaign contributions and public opinion. Of course, it is one thing to speculate on ideas as members of Sobran's  "hive" no doubt do; it is quite another to have the power to implement. The title "America's aristocracy" if it is going to have any historical relevance to the dictionary definition of aristocracy must go to the group that has the ultimate power to say what will and what will not happen. The legal establishment with the Federal judiciary at its top is clearly America's aristocracy.

Finally there are those who would argue that this analysis does not give adequate weight to the power wielded by elected Federal officials and their policy shaping appointees. Aren't Congressmen, Senators,  Presidents, and Cabinet members part of America's aristocracy. There are three  reasons why these people can not be considered part of the aristocracy. First, they do not have any of the identifying features of aristocrats. For instance, they lack life tenure or life membership, in the same sense as a lawyer spends his whole life in the legal system; additionally, Congressmen, Senators, Presidents and Cabinet members do not submit themselves to a multi-year formative process which shapes their life view in the same way that lawyers are the products of law school training. Second, although all these officers take oaths of support of the Constitution, in actual practice they all defer to the Supreme Court's decision about what "the constitution" means. In other words they abrogate their sworn duty and let someone else decide what they will be supporting. This is seen in the daily debate on the floor of the U S House where Congressmen (usually lawyers themselves) stand up and pronounce that certain provisions in the bill being debated have to be discarded, or changed, because the Supreme Court has indicated that this or that legislative approach is unconstitutional. So a Congressman's ideas of what loyalty or support for "the constitution" means is subordinated to the Court's idea. Third, there is a failure of members of this aristocracy (lawyers) who have been elected or appointed to high Federal office to fully accept as equals non-aristocratic citizens (non lawyers) who have also been elected to or appointed to high Federal office.  Mark C. Miller, Ph.D. in his book The High Priest of American Politics: The Role of Lawyers in American Political Institutions has documented that  lawyers in Congress take on a "attitude of superiority" toward their non-lawyer fellows. Even staff members who happen to be lawyers show a marked willingness to discriminate; these staffers fully brief lawyer-members while giving non-lawyer-members only superficial briefings. Evidently lawyers, whether they are members of Congress or just staffers,  feel that non-lawyers are unable to fully grasp all the aspects of the legislation and regulations before them.


A Closing Thought

This essay is both long and frustrating. It presents a lot of analysis with no concrete proposals for change. Perhaps this failure rests with an over reliance on the framework for societal/political analysis presented by Russell Kirk. Perhaps not! Lew Rockwell of the Mises Institute has observed that Kirk leaves the reader aware of many problems but offers no solutions except perhaps a withdrawal from the world with a quaint longing for the stability of the past. Hopefully future essays at this web site will offer concrete solutions for the problems identified.

Take Me To:

...The Next Page... The Prior Page....The Home Page