The Legal Profession – Attorneys & Courts – Bulwark Against Injustice

by Michael L. Fox, B.A., J.D. – Michael is a professor at Mount Saint Mary College*

Articles have been written about the importance of attorneys and judges in our civil, democratic society.  Speeches have been given.  Protests have been held.  Yet, to this day, attorneys are often scorned, and judges derided, by our citizenry, by our politicians, by our comedians – that is, until they are needed.

In 1788, Founding Father and fellow New Yorker, Alexander Hamilton,[1] wrote the following in defense of the newly proposed Constitution’s provisions on the judiciary: “there is no liberty, if the power of judging be not separated from the legislative and executive powers.”[2]  Secretary Hamilton, although concerned about the potential relative weakness of the judiciary as compared with the other two branches (lacking a military, lacking legislative authority), did speak of the judiciary and its unique position in government, as “in a great measure… the citadel of the public justice and the public security.”[3]  Furthermore,

The complete independence of the courts of justice is peculiarly essential in a limited constitution. By a limited constitution I understand one which contains certain specified exceptions to the legislative authority; such for instance as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice; whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act therefore contrary to the constitution, can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.[4]

It is submitted that the watch-fires of the gatekeepers and stewards of the law must never dampen, but rather must continue to burn brightly.  Judges and attorneys ensure that the actions of the other two branches of government remain in check, and remain constitutional.  Never more than now has a more noble mission been required in this Nation.  The rulings on the law and under the law, by the co-equal Judicial Branch (our “Third Branch” of government), protect the rights of the People of our Nation, and preserve the Constitution and its protections for all.

In the early 2000’s, during commencement ceremonies at Columbia University in the City of New York, each of the college deans would stand and request that the University President confer upon their graduating students the degrees earned, with all attendant rights and privileges. In May 2003, when then-School of Law Dean David Leebron stood, he requested that the President confer upon the Doctors of Law their degrees so they could go out into the world to preserve and protect the rights and privileges granted to all of the other graduates, in addition to protecting all members of society.  Dean Leebron’s sentiments should be recognized by a larger audience.[5]

Certainly, the bench and bar exist not to advance the interests of only the powerful or the majority.  They exist to protect the rights and privileges of all – including the minority, and those with unpopular views.  The U.S. Constitution itself was designed to protect both the majority and the minority – for those interested in originalist readings of the founding documents.  Look no further than at how the Founders, in their eminent wisdom, constructed a representative legislature that ensured representation of the populous states (in the House), and equal representation of the small and large states (in the Senate), following something in the Constitutional Convention that appears sadly lacking in government today – COMPROMISE.[6]  There have always been political disagreements and differences, but compromise often leads to a greater good.

One of the most offensive statements often uttered against attorneys is also most often taken out of context — the line from William Shakespeare’s Henry VI, Part II, Act IV, Scene II: “The first thing we do, let’s kill all the lawyers.”[7]  If any of the disparagers took the time to check the full context of Shakespeare’s work, they would see that the characters who were speaking were plotting to overthrow the king and the whole order of society. To succeed, the anarchists knew that the first thing they would have to do was “kill all the lawyers.” The legal profession — the lawyers, and from their ranks the judges — was recognized as one of the bulwarks of an ordered society of laws. Before the ordered society of laws could be successfully challenged, any potential challenger would first have to kill all the lawyers (and, therefore, the judges, too), because they are the guardians of law and justice.[8]

Physical assault and the killing of lawyers and judges is beyond reprehensible – but has been seen just recently in nations struggling with democracy and self-rule.[9]  The danger is not found in physical violence alone.  Review the news from just the past several months.  In these United States, legislation has been introduced in several states to limit or eliminate the role of the judiciary in the system of co-equal branches and “checks and balances”[10]; and baseless derogatory comments aimed at undermining and weakening the judiciary and judicial system – or certain members thereof who render what are deemed “unpopular decisions” – have been uttered by those holding the highest offices of our society.[11]  These items serve only one dangerous goal – a threat to the sanctity and stability of the Constitutional Republic that is the United States.

The very foundation of democratic society has been the Rule of Law – a government of law, not men.  The checks and balances of the three branches of government are the hallmark of the United States.  Attorneys had great influence on the drafting of the Declaration of Independence and the U.S. Constitution (as well as the Constitutions of the several States).  It seems that the first doctoral degree awarded in the course of human history was a doctorate in civil law in the 1100’s, in Bologna, Italy.[12]  Members of the legal profession should be proud of their professional lineage and shared historical roots.

Given the turmoil in society and government at the time of this writing, let us ruminate on a thought that should bring all Americans back to the table with revised vision of the past and for the future.  President Franklin Delano Roosevelt is quoted as having said:

The test of our progress is not whether we add more to the abundance of those who have much, it is whether we provide enough for those who have too little.[13]

This is a diverse country.  That is the historical perspective.  Respect, understanding, compromise, and concern for the interests of our entire country, majority and minority, are necessary.  This includes respect for the legal profession, for attorneys and judges who endeavor daily to ensure justice and equality, for the rich and the poor, for the majority and minority viewpoints.[14]  The Pledge of Allegiance is often recited at public gatherings, and political events.  However, take a moment to really focus on the words spoken at the end.  In its present form the Pledge concludes: “to the Republic,… one Nation, under God, indivisible, with liberty and justice for all” (emphasis added).[15]  Truly, “[i]njustice anywhere is a threat to justice everywhere.”[16]  That is where attorneys and judges find their calling – as society’s bulwark against injustice.[17]

Going forward in uncertain times, the Legal Profession and the Nation should recall the closing words of the Second Inaugural Address of President Abraham Lincoln.  While the currents of our modern affairs do not rival the horrors of the Civil War, the Nation should nevertheless proceed with the certainty that it has survived greater turmoil, and arisen all the stronger for it, with democracy intact, values purified, and the co-equal branches of government functioning as intended in 1787.  In the immortal words of President Lincoln:

With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation’s wounds; to care for him who shall have borne the battle, and for his widow, and his orphan—to do all which may achieve and cherish a just, and a lasting peace, among ourselves, and with all nations.[18] 

* Assistant Professor of Business Law, and Pre-Law Advisor, Mount Saint Mary College, Newburgh, New York.  Bachelor of Arts in Economics from Bucknell University, summa cum laude & Phi Beta Kappa; Juris Doctor from Columbia University School of Law.  Rated AV as a litigator by Martindale-Hubbell when in practice, he clerked in the federal courts, and has practiced law in Manhattan and Orange County, New York.  He is a Past Chair of the Young Lawyers Section, and currently serves as the Vice President for the Ninth Judicial District of the New York State Bar Association, and as a Member of the NYSBA Executive Committee and House of Delegates.  The opinions and thoughts expressed herein are those of the author alone.

[1] Alexander Hamilton, although born in the British West Indies, moved to New York early in his life.  He was educated at Kings College (now Columbia University) in New York City, and was the only representative from New York to sign the United States Constitution.  Furthermore, before and after serving as our Nation’s first Secretary of the Treasury, he was an attorney practicing in New York City.  See http://www.biography.com/people/alexander-hamilton-9326481 (last visited Mar. 21, 2017); https://www.archives.gov/founding-docs/constitution-transcript (last visited Mar. 21, 2017).
[2] Alexander Hamilton, Federalist 78 (1788).  See U.S. v. Lopez, 514 U.S. 549, 601 n.9 (1995) (Thomas, J., concurring) (citing to Federalist).
[3] Id.
[4] Id. (emphasis added).
[5] Mark D. Fox & Michael L. Fox, It’s No Joking Matter Our Profession Requires Greater Civility and Respect, 81 N.Y. St. B.J. 10 (Feb. 2009).
[6] “The Great Compromise” or “The Connecticut Compromise”.  See https://www.senate.gov/artandhistory/ history/common/briefing/Constitution_Senate.htm (last visited Mar. 22, 2017).
[7] William Shakespeare, The Second Part of King Henry the Sixth act 4, sc. 2. Among some modern versions are: “What is the ideal weight for a lawyer? — Ten pounds – but that includes the urn.”  See http://www. lawlaughs.com/short/observations.html (last visited Mar. 21, 2017).  “Where can you find a good lawyer? — In the cemetery.” See http://www.lawlaughs.com/short/simple.html (last visited Mar. 21, 2017).
[8] There is a competing line of thinking — that the Butcher and Cade were discussing how lawyers protected the landed and wealthy class, and how the new kingdom would feature an equality of all classes only achievable by ridding England of the lawyers who created contracts of serfdom. (Many across the Internet and other forums advance this argument.)  As charitably as can be stated, that argument is unsupportable. Taking Henry VI in full context, it is clear that while some lawyers in society may be less than altruistic, by and large attorneys are the ones who perpetuate an ordered civilization of laws, and who must be eliminated in order for traitorous mutineers or other dark souls to find success. Indeed, in other Shakespearean works — see, for example The Merchant of Venice act 4, sc.1 — attorneys (doctors of law) are accorded great respect.
[9]   Pakistani Lawyers Go On Strike Over Deadly Bomb Attack, available at http://www.huffingtonpost.com/entry/ pakistan-deadly-bombing-lawyers-strike_us_57a99c27e4b0b770b1a432e1 (Aug. 9, 2016) (last visited Mar. 22, 2017).
[10] See http://floridapolitics.com/archives/229469-lawmakers-override-judges-rulings (Dec. 27, 2016) (last visited Mar. 22, 2017); Amber Phillips, It’s Not Just Donald Trump Feuding with the Courts. States Are Doing It, Too, The Washington Post (Feb. 12, 2017), available at https://www.washingtonpost.com/news/the-fix/wp/2017/02/12/its-not-just-donald-trump-feuding-with-the-courts-states-are-doing-it-too/?utm_term=.45b01744e443 (last visited Mar. 22, 2017).
[11] Tristan Lejeune, Trump Attacks ‘So-Called Judge’ Over Travel Ban Ruling, The Hill (Feb. 4, 2017), available at http://thehill.com/homenews/administration/317899-trump-attacks-so-called-judge-over-travel-ban-ruling (last visited Mar. 22, 2017).
[12] See Milard King Roper, Jr., Lawyers & the Title “Doctor”, 6 Akron L. Rev. 83 (1973).
[13] President Franklin Delano Roosevelt Memorial, Washington, D.C.
[14] See Mapp v. Ohio, 367 U.S. 643, 663 & n.8 (1961) (Black, J., concurring) (citing Boyd v. U.S., 116 U.S. 616, 635 (1886)).  Justice Black agreed with the opinion of Justice Bradley in the Boyd case, wherein it was stated: “[C]onstitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of [the] courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.’”
[15] https://www.va.gov/opa/publications/celebrate/pledge.pdf (last visited Mar. 22, 2017).
[16] Aaron Couch, Martin Luther King Day: 10 memorable MLK quotes, The Christian Science Monitor (Jan. 17, 2011), available at http://www.csmonitor.com/USA/2011/0117/Martin-Luther-King-Day-10-memorable-MLK-quotes/ Injustice-anywhere (last visited Mar. 23, 2017).
[17] See Blyn v. Bartlett, 84 Misc.2d 394, 412, 379 N.Y.S.2d 580, 597 (Sup. Ct. N.Y. County 1975) (reversed on other grounds) (“throughout past crises, the work of the courts has gone on, as it must now go on, unimpaired and unhindered, in the interests of justice, and for the benefit of all. It is fundamental that our courts, the bulwark of our democratic form of society, are an intrinsic and independent branch of government, deriving their powers directly from the Constitution…. Therefore, the courts may not properly be directed, controlled or impeded in their functions by any other branch of government…. The court is the keeper of the conscience and the conscience is the Constitution. It must remain strong and independent—above the momentary storm—lest it be forever compromised.”); see also, generally, In re Markewich, 192 A.D. 243, 249 (1st Dep’t 1920).  The Markewich state court case concerned an attorney disciplinary matter.  Following his utterance of inflammatory statements about members of the judiciary, respondent thereafter recanted and stated upon arraignment before the U.S. District Court in a separate proceeding: “when disorder shows its threatening hand, that the courts stand out as the bulwark of orderly and organized society, and unfair and unjust criticism of the courts and judges at this time above all times cannot be productive of any good.”
[18] The Second Inaugural Address of Hon. Abraham Lincoln, Sixteenth President of the United States, delivered on March 4, 1865, available at https://www.ourdocuments.gov/doc.php?flash=false&doc=38 (last visited Mar. 22, 2017).  President Lincoln was, himself, an attorney and orator.