Monday, December 22, 2014

Should lawyers be barred from lawmaking?

Lawyers dominate the political landscape. According to one estimate, "Out of a total of 435 U.S. Representatives and 100 Senators (535 total in Congress), lawyers comprise the biggest voting block of one type, making up 43% of Congress. Sixty percent of the U.S. Senate is lawyers." A legal reform site says:
Since the time of de Tocqueville (1841), students of American government have noted the over representation of lawyers in American politics (se e.g., Hyneman 1940; Hurst 1950; Matthews 1954, 1960; Schlesinger 1957; Derge 1959; Eulau and Sprague 1964; Keefe and Ogul 1989: 117-18). And it seems that the more important the political office, the more lawyers who occupy that office.
I can't find equivalent data for state legislatures but they are probably more or less the same.

The percentage of lawyers holding legislative office doesn't tell the whole story. Every Senator and Congressman has at least one lawyer on the staff to draft bills or try to figure out the meaning of bills introduced by others. It would not be surprising if most legislators who go before a committee to argue for or against a proposed law had to be briefed beforehand to have the thinnest concept of what's in it.

There's more. The U.S. government was designed to have three branches that, it was hoped, would check and balance one another -- legislative, judicial, and executive. One hundred percent of judicial officeholders are lawyers. Currently, the clown who looks in his mirror and imagines he sees a president is a lawyer.

Lawyers win their reputations in combat against the other side in legal cases. (The exceptions are those who write wills and contracts, but they are generally not political candidate material.) That's not a criticism: it's their job to defend the interests of their clients aggressively. It can get ugly, but it's probably the best system that can be devised given human nature.

But what works for court cases does not work for the national good. A predilection for verbal mud wrestling works against sensible legislation based on reasonable accommodation among conflicting interests. In the past, legislative debate often took place between educated lawyers who knew about the history of government and could quote Solon, Cicero, and Gladstone. They made cases for their ideas. Today their rhetoric has degenerated into insulting other politicians.
Worse still, lawyers in government tend to live in a mental world where words substitute for content ("I would remind the honorable Senator that this bill includes language that specifies ... "). Language is the alpha and omega, rather than thought about the real-world consequences of legislation.

Lawyers are taught that the law is a society's defense against tyranny. Mmmm, yes and no. Good, sensible laws lubricate daily life and minimize friction. But laws per se are neither good nor bad. They can be stupid and put sand in the gears. And they can be way surplus to requirements. It is often noted that there are so many federal, state, and local statutes on the books that none of us can go a day without violating several of them. Most aren't enforced, of course -- unless a prosecutor wants to kneecap us.

Not long after our founders struggled to create a Constitution, Edmund Burke in Britain strenuously argued that laws cannot by themselves guarantee civil order. At most they define the limits of what is permissible; but relying on legal definitions imposes no internal sense among the population of what is proper in dealing with their neighbors and countrymen.

That sense has to arise from general agreement, sometimes not even spoken, in the realm of shared values. Those values are "enforced," so to speak, by assumptions of the culture and passed along through informal channels and private organizations. The more the government tries to legislate every question arising from individual behavior, the less responsibility individuals assume for their own ethical code. They gradually absorb the attitude that lawmakers will tell them what is right and wrong, and that's all they need to know. Accused of malfeasance, the standard reply is now, "I didn't do anything illegal."

Almost by definition, lawyers think passing new laws is progress. The opposite is true. We should have a principle that to institute a new law, an old one needs to be scuppered. There should be fewer, not more, laws.

But the lawyer mentality has seeped into the minds, if you can call them that, of the journalistic cabal. How many times have you read something like, "Congress failed to pass ... " as though not passing a bill, or rejecting it as bad policy, is shameful? 

Naturally, lawyers aren't going to vote themselves out of access to the trough, any more than they will go for term limits. Such reforms can only happen should there be a major upheaval in our national life. But the idea ought to be kept alive in case that happens.

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