The Constitution bestowed upon the American lawyer a constructive political function; and this function has been confirmed and even enlarged by American political custom and practice. The work of finally interpreting the Federal Constitution has rarely been either conceived or executed in a merely negative spirit. The construction, which successive generations of Supreme Court Justices have placed upon the instrument, has tended to enlarge its scope, and make it a legal garment, which was being better cut to fit the American political and economic organism. In its original form, and to a certain extent in its present form, the Constitution was in many respects an ambiguous document which might have been interpreted along several different lines; and the Supreme Court in its official expositions has been influenced by other than strictly legal and verbal reasons—by considerations of public welfare or by general political ideas. But such constructive interpretations have been most cautiously and discreetly admitted. In proclaiming them, the Supreme Court has usually represented a substantial consensus of the better legal opinion of the time; and constructions of this kind are accepted and confirmed only when any particular decision is the expression of some permanent advance or achievement in political thinking by the American lawyer. It becomes consequently of the utmost importance that American lawyers should really represent the current of national political opinion. The Supreme Court has been, on the whole, one of the great successes of the American political system, because the lawyers, whom it represented, were themselves representative of the ideas and interests of the bulk of their fellow-countrymen; and if for any reason they become less representative, a dangerous division would be created between the body of American public opinion and its official and final legal expositors. If the lawyers have any reason to misinterpret a serious political problem, the difficulty of dealing therewith is much increased, because in addition to the ordinary risks of political therapeutics there will be added that of a false diagnosis by the family doctor. The adequacy of the lawyers' training, the disinterestedness of their political motives, the fairness of their mental outlook, and the closeness of their contact with the national public opinion—all become matters of grave public concern.
It can be fairly asserted that the qualifications of the American lawyer for his traditional task as the official interpreter and guide of American constitutional democracy have been considerably impaired. Whatever his qualifications have been for the task (and they have, perhaps, been over-estimated) they are no longer as substantial as they were. Not only has the average lawyer become a less representative citizen, but a strictly legal training has become a less desirable preparation for the candid consideration of contemporary political problems.
Since 1870 the lawyer has been traveling in the same path as the business man and the politician. He has tended to become a professional specialist, and to give all his time to his specialty. The greatest and most successful American lawyers no longer become legislators and statesmen as they did in the time of Daniel Webster. They no longer obtain the experience of men and affairs which an active political life brings with it. Their professional practice, whenever they are successful, is so remunerative and so exacting that they cannot afford either the time or the money which a political career demands. The most eminent American lawyers usually remain lawyers all their lives; and if they abandon private practice at all, it is generally for the purpose of taking a seat on the Bench. Like nearly all other Americans they have found rigid specialization a condition of success.
A considerable proportion of our legislators and executives continue to be lawyers, but the difference is that now they are more likely to be less successful lawyers. Knowledge of the law and a legal habit of mind still have a great practical value in political work; and the professional politicians, who are themselves rarely men of legal training, need the services of lawyers whose legal methods are not attenuated by scruples. Lawyers of this class occupy the same relation to the local political "Bosses" as the European lawyer used to occupy in the court of the absolute monarch. He phrases the legislation which the ruler decides to be of private or public benefit; and he acts frequently as his employer's official mouthpiece and special pleader.
No doubt many excellent and even eminent lawyers continue to play an important and an honorable part in American politics. Mr. Elihu Root is a conspicuous example of a lawyer, who has sacrificed a most lucrative private practice for the purpose of giving his country the benefit of his great abilities. Mr. Taft was, of course, a lawyer before he was an administrator, though he had made no professional success corresponding to that of Mr. Root. Mr. Hughes, also, was a successful lawyer. The reform movement has brought into prominence many public-spirited lawyers, who, either as attorney-generals or as district attorneys, have sought vigorously to enforce the law and punish its violators. The lawyers, like every class of business and professional men, have felt the influence of the reforming ideas, which have become so conspicuous in American practical politics, and they have performed admirable and essential work on behalf of reform.
But it is equally true that the most prominent and thorough-going reformers, such as Roosevelt, Bryan, and Hearst, are not lawyers by profession, and that the majority of prominent American lawyers are not reformers. The tendency of the legally trained mind is inevitably and extremely conservative. So far as reform consists in the enforcement of the law, it is, of course, supported by the majority of successful lawyers; but so far as reform has come to mean a tendency to political or economic reorganization, it has to face the opposition of the bulk of American legal opinion. The existing political order has been created by lawyers; and they naturally believe somewhat obsequiously in a system for which they are responsible, and from which they benefit. This government by law, of which they boast, is not only a government by lawyers, but is a government in the interest of litigation. It makes legal advice more constantly essential to the corporation and the individual than any European political system. The lawyer, just as much as the millionaire and the politician, has reaped a bountiful harvest from the inefficiency and irresponsibility of American state governments, and from the worship of individual rights.
They have corporations in Europe, but they have nothing corresponding to the American corporation lawyer. The ablest American lawyers have been retained by the special interests. In some cases they have been retained to perform tasks which must have been repugnant to honest men; but that is not the most serious aspect of the situation. The retainer which the American legal profession has accepted from the corporations inevitably increases its natural tendency to a blind conservatism; and its influence has been used not for the purpose of extricating the large corporations from their dubious and dangerous legal situation, but for the purpose of keeping them entangled in its meshes. At a time when the public interest needs a candid reconsideration of the basis and the purpose of the American legal system, they have either opposed or contributed little to the essential work, and in adopting this course they have betrayed the interests of their more profitable clients—the large corporations themselves—whose one chance of perpetuation depends upon political and legal reconstruction.
The conservative believer in the existing American political system will doubtless reply that the lawyer, in so far as he opposes radical reform or reorganization, is merely remaining true to his function as the High Priest of American constitutional democracy. And no doubt it is begging the question at the present stage of this discussion, to assert that American lawyers as such are not so well qualified as they were to guide American political thought and action. But it can at least be maintained that, assuming some radical reorganization to be necessary, the existing prejudices, interests, and mental outlook of the American lawyer disqualify him for the task. The legal profession is risking its traditional position as the mouthpiece of the American political creed and faith upon the adequacy of the existing political system. If there is any thorough-going reorganization needed, it will be brought about in spite of the opposition of the legal profession. They occupy in relation to the modern economic and political problem a position similar to that of the Constitutional Unionists previous to the Civil War. Those estimable gentlemen believed devoutly that the Constitution, which created the problem of slavery and provoked the anti-slavery agitation, was adequate to its solution. In the same spirit learned lawyers now affirm that the existing problems can easily be solved, if only American public opinion remain faithful to the Constitution. But it may be that the Constitution, as well as the system of local political government built up around the Federal Constitution, is itself partly responsible for some of the existing abuses, evils, and problems; and if so, the American lawyer may be useful, as he was before the Civil War, in evading our difficulties; but he will not be very useful in settling them. He may try to settle them by decisions of the Supreme Court; but such decisions,—assuming, of course, that the problem is as inexorable as was that of the legal existence of slavery in a democratic nation,—such decisions would have precisely the same effect on public opinion as did the Dred Scott decision. They would merely excite a crisis, which they were intended to allay, and strengthen the hands of the more radical critics of the existing political system.