[Congressional Record Volume 141, Number 108 (Thursday, June 29, 1995)]
[Senate]
[Pages S9338-S9339]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




            LAWYERS, GARDEN SLUGS AND CONSTITUTIONAL LIBERTY

  Mr. HEFLIN. Mr. President, I recently had the opportunity to read a 
commencement speech given on May 21, 1995 by my long time friend, the 
Hon. Loren Smith, chief judge of the United States Court of Federal 
Claims, to the graduating class of the John Marshall Law School, in 
Atlanta, GA.
  The title of the speech is ``Lawyers, Garden Slugs, and 
Constitutional Liberty,'' and its theme deals with the relationship of 
the lawyer in our society to the concept of constitutional liberty. 
Chief Judge Smith makes some significant points that I think are worthy 
of consideration by my colleagues, and I ask unanimous consent that it 
be printed in the Record at this time.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

            Lawyers, Garden Slugs and Constitutional Liberty

                          (By Loren A. Smith)

       A couple of years ago, I spoke at another law school's 
     commencement on the topic of our Constitution. Now this may 
     sound like a somewhat weighty topic, perhaps even an overly 
     academic one. After all, this day marks the end of your law 
     school career; not some guest lecture during the second year. 
     However, I thought it was an appropriate speech because the 
     Constitution is both the base and pinnacle of the legal 
     system in which you will spend the rest of your legal 
     careers. Every law you will ever deal with must be consistent 
     with the Constitution's commands. How's that for some heavy 
     thoughts on what will otherwise be a happy and well-earned 
     day of celebration?
       Well, I hope this speech will strike you as just right. And 
     what do I mean by just right? I am thinking of the Colonel 
     who gave his orderly a bottle of scotch for Christmas. After 
     the holiday he asked the orderly how it was. The orderly 
     replied: ``Just right.'' ``That's kind of a funny 
     expression,'' the Colonel responded, ``what do you mean?'' 
     The orderly noted: `'Well, if it had been any better you 
     wouldn't have given it to me, and if it had been any worse I 
     wouldn't have been able to drink it!''
       I hope my speech is not ``just right'' in that sense. 
     However, you have to drink it and for that I hope I won't 
     have to apologize to you.
       I believe that as important as the Constitution is as the 
     foundation of our legal system, it is far more important for 
     the central significance it has to American life. That 
     significance lies in the fact that the Constitution makes us 
     Americans. It is the very basis of our nationality.
       We the people of this land are not defined by race; we are 
     black and white, brown and yellow. We are not defined by 
     religion; we are Protestant, Catholic, Jewish and also 
     Moslem, Hindu and Orthodox. We are not defined by national 
     origin as all of our ancestors immigrated to this continent 
     from somewhere else. Even the first Americans crossed the 
     Bering land bridge from Asia. We are men, women and children, 
     English speakers, Spanish speakers and speakers of a thousand 
     other tongues. What makes us Americans, however, is a simple 
     concept expressed in a few words: we uphold, support and 
     defend Our Constitution. In
      no other Nation, past or present, has such a nationality 
     existed. All one has to do to be considered an American is 
     take an oath to support and defend the Constitution.
       This idea is a fitting topic for a law commencement speech 
     because each graduate joins a profession whose duty is to 
     give life to the rights, responsibilities, and promises found 
     in our Constitution and the laws enacted under it.
       Thus, it would be easy for me to read the same speech I 
     delivered in 1993, as I assume only a particularly weird 
     masochist would put his- or herself through two law schools, 
     and there isn't likely much faculty overlap with over 165 
     U.S. law schools. However, I won't give the same speech. On 
     this your last day of law school, you are entitled to 
     something new, after three years of reading used precedent 
     that is based upon even more used precedent.
       Thus, I have crafted two profound topics--Would you believe 
     stimulating? Would you believe the subject of possible 
     college term papers? Okay.
       Topic One: Why does the general public seem in recent years 
     to have the view that lawyers are somewhere on the 
     evolutionary scale between pond scum and garden slugs?
       Topic Two: What do we mean by liberty?
       Of course, you also want to know what is the relationship 
     between these two topics.
       With respect to the first topic, there has been a profound 
     change over the past 25 years in the way society views 
     lawyers. In the 1950s and 60s and for many earlier decades 
     lawyers were social heros. They were the trustees, who could 
     be trusted. They were the advocates of just causes who sought 
     and more often than not achieved justice. They were the 
     guardians who faithfully guarded our liberties.
       Lawyers were at the forefront of struggles for economic 
     liberty, for civil rights, for fair government, and for 
     protecting the rights of the unpopular as well as the 
     popular. They made the criminal justice system achieve 
     justice whether by convicting the guilty or acquitting the 
     innocent. And perhaps overlying all of this they were the 
     wise and practical counselors of our society. Prudence or 
     practical wisdom was their province. Calling someone a good 
     attorney meant they were a person of character.
       On TV they were the heros whether as Mr. District Attorney 
     or Perry Mason. President John F. Kennedy's book ``Profiles 
     in Courage'' is replete with lawyers. Lawyers crafted the 
     Constitution, achieved its ratification, and played a 
     critical role in the survival of our republic. Abraham 
     Lincoln was a very successful practicing lawyer, as were John 
     Adams, Thomas Jefferson, and James Madison. Alexis de 
     Tocqueville saw lawyers as America's aristocracy. And 
     Americans on the whole agreed with this view for most of our 
     history.
       What has happened to change this in the last 25 or so
        years? And when thinking about that question remember the 
     OJ trial has not been going on that long, but only seems 
     like it has.
       Here is perhaps where the second topic is related to the 
     first. What is the nature of liberty? It seems to me that the 
     proper definition of liberty must be contrasted with 
     government. Simply put, liberty is the state of 

[[Page S 9339]]
     being left alone by government. Now, this means more than not having 
     the government be able to bother you. It means having a 
     legitimate expectation that government will not interfere 
     with you as long as you meet some minimal conditions--such as 
     not interfering with other people's rights to be left alone. 
     In this sense liberty is an exclusively negative concept. It 
     is not a claim on government. It is not a right to have 
     government do something you want it to do. It is a ``right'' 
     to engage in the pursuit of happiness free from government 
     restraint except as already noted.
       The Framers of our Constitution talked about life, liberty 
     and property as fundamental, indeed natural rights. What they 
     meant by this was not three separate interests. Rather they 
     were referring to the fundamental integrity of the human 
     person. James Madison, perhaps the most influential figure in 
     our Constitution's birth and development, made this clear 
     when in 1792 he wrote, in an essay entitled, ``Property''.
       ``This term in its particular application means `that 
     dominion which one man claims and exercises over the external 
     things of the world, in exclusion of every other individual.'
       ``In its larger and juster meaning, it embraces every thing 
     to which a man may attach a value and have a right; and which 
     leaves to every one else the like advantage.
       ``In the former sense, a man's land, or merchandize, or 
     money is called his property.
       ``In the latter sense, a man has property in his opinions 
     and the free communication of them.
       ``He has a property of peculiar value in his religious 
     opinions, and in the profession and practice dictated by 
     them.
       ``He has property very dear to him in the safety and 
     liberty of his person.
       ``He has an equal property in the free use of his faculties 
     and free choice of the objects on which to employ them.
       ``In a word, as a man is said to have a right to his 
     property, he may be equally said to have a property in his 
     rights.''
       Life, liberty and property for the Framers meant the 
     protection of the fundamental integrity of the human person 
     against government. It sometimes meant that protection must 
     be maintained against the democratic majority. Liberty was 
     opposed to arbitrary power whether legislative, executive or 
     judicial. The system established by the Constitution was not 
     designed for efficiency, but precisely the opposite purpose, 
     to contain and control, to check and limit what was seen as a 
     very real threat to human happiness: government.
       This is not to suggest that the Framers were anarchists. 
     They were wise and practical people (and lawyers) who 
     perceived that fallen humans at times need the restraining 
     hand of government to protect them from one another. However, 
     they saw this as a purely negative role. While government 
     might prevent some unhappiness, it could never create 
     happiness.
       Now let me try to tie my two themes together. When lawyers 
     serve in the traditional mode as officers of the legal 
     system--and this means guardians of constitutional liberty--
     they are heroic figures. They keep the dangerous yet
      necessary leviathan of government within its proper sphere. 
     This is a role that gives dignity to the profession. It is 
     also what I contend has been responsible for the 
     extraordinarily good image the profession has had for most 
     of our history.
       This, of course, is a simplification. There have been 
     notorious examples of bad lawyers and judges throughout the 
     American past. In fact, like any group of human beings, most 
     lawyers and judges never lived up to the ideal. Of course, 
     very few human beings ever live up to their ideals, which is 
     the reason why real saints and heros are in short supply even 
     in free market economies. However, the ideal was a very real 
     part of our culture for much of our history. It ennobled the 
     profession and gave individuals something to strive for. 
     Lawyers had the role of guardians of the citizens' liberty 
     and property. Both lawyers and citizens accepted this role.
       Today, however, that image has changed. Beginning in the 
     later part of the 19th century, as has been noted by Dean 
     Anthony T. Kronman of Yale Law School in his book ``The Lost 
     Lawyer,'' the idea took shape and developed slowly through 
     the 20th century that lawyers were social engineers or power 
     brokers or the mediators between private and public 
     ``rights.'' The names changed with the years but the concept 
     was that the legal system's purpose was to reform and improve 
     society.
       No longer were lawyers the guardians against power, they 
     were the apparatchiks, to use a Soviet term, or the henchmen 
     of power. They had become the sorcerer's apprentices. 
     Increasingly, lawyers' incomes and economic prospects became 
     attached to the operation and growth of the administrative 
     state. Lawyers increasingly became the functionaries of that 
     state. To be sure, their ideal goal was to make that system 
     relatively fair and efficient. Still, they were no longer the 
     guardians who kept it in check or the knights-errant who 
     fought against it when necessary.
       This fundamental shift in the relationship of the lawyer to 
     constitutional liberty is, I would submit, the principle 
     reason for the drastic decline in the public's view of 
     lawyers over the last quarter century. The people have never 
     liked the king's agents, even when they have liked the king. 
     To manipulate power is not an ideal. In many ways it is a 
     curse. A hundred new model codes of professional conduct, 
     backed up by a thousand disciplinary boards, will not restore 
     the profession's sense dignity, status and self worth. 
     Stature comes not from self-regulation but from self-
     definition. And the choice of self-definition is fairly 
     simple: user of power or defender of liberty against 
     government.
       I should add, lest there be any confusion, this is not an 
     attack upon government attorneys. In fact, they are the 
     frontline guardians of liberty against government. Whether in 
     recent decades or before, their commitment to liberty against 
     government has been no worse, and sometimes better, than 
     nongovernment attorneys. Those in government often know best 
     the blessings of limited government and most clearly 
     understand the dangers of the leviathan state.
       What is to be done? That really is the challenge you face. 
     There are no immutable laws of history or culture as the 
     recent transformation of Russia has proved. Daily in this 
     nation and abroad we see what several decades ago was thought 
     impossible in science, medicine, economics or politics become 
     the facts of the nightly news. The historical junkyard is 
     littered with the ruins of many so-called ``laws of 
     history,'' which decreed how inevitable were their bleak and 
     sterile visions of the future.
       Each generation has the power to restore true values, and 
     more importantly each individual has the ability to determine 
     his or her own destiny and path toward salvation. The values 
     you hold and the goal of your life are within your power to 
     create and achieve. It's up to you. On this your graduation 
     day, as Holmes said--Sherlock that is, not Oliver Wendell--
     ``The game's afoot.'' May God speed and bless that game for 
     each of you. And may you each treat that precious degree, 
     stained with sweat and tears, and possibly highlighter and 
     beers, if not blood, as your sword and shield to guard, 
     defend and further liberty.
     

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