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.