A Nation Under Lawyers

We have become a nation of humorless aspiring lawyers. The bureaucratization of the American regime has affected the American soul in ways large and small—right down to how we think and act in the world around us.

Reams of regulations control our everyday lives, from the type of light bulbs we use to the number of gallons of water our toilet tanks may hold. Armies of lawyers pour out of our elite law schools every year, armed with the latest mutant creations of critical legal theory and identity politics.

In the public square we are only allowed to talk in sentences chiseled to the precision of those crafted with a diamond tool. Our chattering class views President Trump’s imprecise—and completely American—way of speaking as if he just ordered the launch of our entire nuclear arsenal. And they do this every time to the point of exhaustion. These purveyors of counterfeit seriousness look askance at obvious jokes and casual speech. Minor words and rhetoric are taken to be assaults on persons and their property at the same time as actual assaults on persons and their property in our inner cities are swept silently under the rug.

Campus speech codes and so-called “hate crime” legislation are all the rage today. The spread of “affirmative consent” or  “yes means yes” laws and curriculum standards that purport to regulate even the most minute details of sexual relations are popular with students in our colleges and universities—the massive chasm between the cries for these rules and the Left’s desire for total sexual liberation notwithstanding.

Such ideas culminate in the view that the resolution of every problem, real or imagined, lies with the courts. No longer can the normal problems of human interaction be worked out between trusting citizens of goodwill; they must instead involve legions of lawyers at every turn. This only inflames passions and frays the bonds of civic friendship beyond their breaking point.

The political manifestation of such legalism is the doctrine of judicial supremacy, the idea that the Supreme Court is the final arbiter of the Constitution. The Constitution, in this understanding, is the province only of judges and lawyers. All other Americans need not apply.

Even the Right has absorbed such lessons. The preferred argument of so-called “constitutional conservatives” is to call immediately into question the very constitutionality of policies with which they disagree. But not every policy disagreement touches on the higher law of the Constitution. For example, the Founders didn’t write the free availability of craft beer and wine across state lines into the Constitution. In fact, the 21st Amendment clearly allows the people of the separate states the freedom to decide such policies themselves. The Founders wrote the Constitution in a way that gives citizens wide latitude in determining what policies best secure their safety and happiness. But by turning every question of policy into a constitutional issue, conservatives show that they are far more comfortable making legalistic arguments than they are making arguments addressing the higher questions of justice. They prefer to see the Constitution only as a legal document, thus concealing its political nature and subtly deprecating the sovereignty of the people upon which the Constitution is grounded. As John Marini has argued, “Once the Constitution came to be understood only in legal terms…it became nearly impossible to make a rational defense of constitutionalism.”

The prominence of the legalistic mindset in the modern American mind is the result of the rise of the administrative state. The administrative state is best understood as a fourth branch of government comprised of a vast array of agencies and commissions that hold all three powers of government at once—an arrangement James Madison called “the very definition of tyranny.”

Government by administration has caused Americans to turn away from being self-governing citizens and to think of ourselves, instead, as subjects who are fully dependent on a specific class of Americans—namely lawyers—who, we imagine, can read the complicated language of modern regulations. All the while the power and oversight of judges increases as the administrative state metastasizes.

This is not to say no place exists for lawyers in a properly functioning republic. In Democracy in America, Alexis de Tocqueville argued that lawyers—especially in a democracy—“are called on to play the primary role in political society.” In Tocqueville’s argument, lawyers provide the stability in permanent institutions that is necessary to counteract the tendency of democratic societies to become inflamed with passions.

But what happens when the lawmaking process becomes unmoored from the Constitution rightly understood and a soft despotism (Tocqueville’s term for the administrative state) takes hold of the nation? What happens when legalese becomes not only the official language of politics but also colors every interaction between citizens?

The dominance of an overly legalistic mindset is an ominous sign for the future of American self-government. We must recover a “vigilant and manly spirit” which “nourishes freedom” if we are to rid ourselves of this legal pestilence that seeks to kill us with a thousand paper cuts.

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7 responses to “A Nation Under Lawyers”

  1. “Just because it’s Constitutional doesn’t make it a good idea.”


  2. The problem is quantity, as Tocqueville foresaw. It’s a Hegelian dialectic: worship of “the rule of law” leads to too many laws from too many different sources (Congress, federal administrative agencies, federal courts with their myriad, forever-ramifying doctrines, state legislatures, state administrative agencies, state courts with their myriad, forever-ramifying doctrines, city councils, city administrative agencies, etc.), which results in the rule of men. Men can rule through too few laws or too many. You can call such men “lawyers” if you like, but a law degree is mostly a mere credential, a necessary preliminary for those whose real desire is simply to rule.

  3. At one time, in the not too distant past, there existed a vast and unexplored territory.

    On one side of this wilderness lay the Things the Law Forbid Us to Do (murder, rape, robbery, etc); on the other the Things the Law Required us to Do (pay taxes, wear clothes, honor contracts). In-between was everything else. And as long as the Thing We Wanted to Do (whatever that thing might be) was not explicitly forbidden, we could do it, and by so doing we accepted (explicitly or implicitly) the risks thereby incurred.

    This wilderness, in other words, represented a certain kind of freedom.

    If I owned property I could put a shed on that property, install an above-ground pool; choose to not shovel my sidewalk. If I wanted to drive without seat belts I could. If I preferred incandescent light, I could buy the cheap bulbs that provided it. If I wanted to make and sell cribs with drop-sides, I was free to do so. If I was thirsty for a can of pop for lunch ( which I could purchase from a vending machine in the school cafeteria (which was there because lots of us wanted a can of pop for lunch)), we could just put in a quarter.

    But this vast territory has radically shrunk and continues to shrink. No longer can we trust ourselves or each other to behave in our own best interests (particularly if my best interests may produce an outcome which is demographically unbalanced). Far better, we have come to believe, if Right Behavior & Right Thought is simply mandated by Those Who Know.

    Can we be any more pathetic?

    I noticed, watching a women’s BBall team last night on TV, that the stands were mostly empty — much, much emptier than any men’s BBall game I’ve seen. And I wonder, given this Utopian Compulsion from which we suffer, how long will it be before we mandate Women’s BBall Game Attendance? Clearly it is neither right nor fair that more people ENJOY Men’s BBall when such enjoyment peaks attendance, drives investment, and yields, ultimately, higher salaries for the Kobe Bryants of the world and lesser for Whoever the Kobe Bryant Female Equivalent might be (and how illegal is it for me to not know the answer to that question?!). So how fair is that??? And think of the lawyers we could employ debating how many seats can hold how many rears at what frequency for how long to establish True Equality!

    The horror!

    • “And think of the lawyers we could employ debating how many seats can hold how many rears at what frequency for how long to establish True Equality!”

      As long as you still believe in the end principle, everything else you mention is guaranteed to come with.

  4. Well, said Mr. Sabo. In part, political actors have become less cognizant of the implications of the content and assumptions of their arguments. The penchant for leaping to ‘constitutionality’ as the center of argument suggests a failure to develop other resources for making one’s case.

  5. Most lawyers today are Democrats/Progressives, even Leftists. Some are Radicals, some are Socialists, some are Communists. Individual Freedom is meaningless to them.

    Here’s a passage from a book (rather long, but I don’t like to remove ‘context’ when quoting; omissions can be disingenuous at times). I tried to post this a couple of days ago in a comment at AG but Disqus flagged it as spam (this also happened to a comment I attempted to post on the March for Life). Anything Disqus flags as spam stays that way forever: an eternal limbo even though you’re told ‘they’re working on it’. Ha.


  6. I think I have figured out the problem, and it dates WAY

    John Adams- Lawyer

    Thomas Jefferson- Lawyer

    Alexander Hamilton- Lawyer

    Rufus King- Lawyer

    Edmund Randolph- Lawyer

    John Jay- Lawyer

    Samuel Chase- Lawyer

    Roger Sherman- Lawyer

    Abraham Lincoln- Lawyer