The first thing we do, let’s kill all the lawyers.
A line from Shakespeare’s Henry VI, Part 2, oft represented as antagonistic towards lawyers. In fact – or in opinion, if you will – William Shakespeare probably meant it as a compliment to the legal profession in that they held society together through the rule of law. A bulwark against anarchy. You’ll find that a common if not popular interpretation and it’s one that was presented to us neophyte law students pretty much on the first day of orientation. Law professors love Shakespeare.
But as I said, it’s not the popular interpretation. Most non-lawyers think it suggests that lawyers are a bane of society rather than a bulwark, and should be eliminated. Personal injury lawyers are ambulance chasers and the reason we have stupid labels on virtually every product made warning us against incredibly obvious dangers is because of lawyers. Why, wasn’t it lawyers who successfully sued McDonald’s because their coffee was hot? And the US Congress is chock full of lawyers and look how well that works. We should ban lawyers from Congress!
Well, no, we shouldn’t and that brings me to my point. Rather than ban lawyers, we should require law degrees of all our Congressional Representatives and Senators. Seriously.
Why? Because Shakespeare (if you subscribe to that interpretation) was right. We as a society are held together because of our respect for and adherence to the Rule of Law. Intentional caps. Without the rule of law, we’re just a bunch of savages trying to survive as best we can, taking what we need from whomever we can. A little harsh? You wouldn’t be like that? No, me neither. But what you and I would do is band together with like-minded folks and establish a society where the rights and liberties of all are respected. In other words, establish the rule of law.
I think – I hope – that’s a concept that most of us can agree with. The rule of law is a good thing. But that’s leaves us with two questions: one, what laws should we have and two, why do we need lawyers? Can’t reasonable people just agree on common sense laws that everyone can understand?
I’ll leave the first question alone – not because it isn’t as important (it is in fact much more important) but because the second one is the least understood, I think.
Let me make this statement: Law is hard. While it certainly isn’t beyond the grasp of most intelligent people, it is not a subject amenable to casual scrutiny by the even most intelligent among us. The concepts are often arcane, deriving from centuries of formulation and refinement. I reckon most people can’t so much as describe what is meant by the term Common Law much less apply it to the specific legal issues where it’s relevant. I know I couldn’t before going to law school. Yet it underpins our legal system, stemming from our country’s English heritage. And that’s just common law. Statutory law, while often easier to grasp, presents its own set of difficulties. Laws are written in a language that often defies common interpretation.
One such misinterpretation is the term ‘assault’. Ever wonder why a criminal charge is often termed ‘assault and battery’? Isn’t that redundant? No, because assault in legal terms doesn’t mean what it does in common English. It doesn’t mean to ‘attack’ someone physically. In legal terms, it means to create an apprehension and fear of bodily harm, coupled with the apparent ability to carry out the threat immediately. Assault is the (credible) threat; battery is carrying through with the threat. The two terms are necessary because each act constitutes a crime and one doesn’t depend on the other. You can commit a battery without assault, and vice versa. Laws are written just so and, as I said, often use uncommon language. Otherwise, ambiguities may arise making it difficult to determine what crime someone may have committed or whether they committed one at all. Legal terms are far more specific and defined than those we use in everyday language, and I argue they should be. Think about, say, banking law and imagine the complexities of terminology and concepts that go well beyond the average person’s understanding. Use of proper legal terminology and phraseology help define and constrain interpretations to what was intended. Laws shouldn’t be subject to challenge because – to use a popular internet meme – “I don’t think that word means what you think it means.”
Constitutional law presents a whole different array of difficulties to casual interpretation. Not only does one have to parse what the words mean, one has to determine what they meant two hundred years ago. One might have hoped the framers of our most important legal document would have written the thing in plainer language, maybe even provided some definition of terminology. It’s hard enough to apply an 18th or 19th century standard to 21st century reality when things the framers could not have imagined are part of our world today (say, the internet or well-funded political action committees) but it’s often difficult to determine what they meant when they wrote it. Equally important, does it matter what the framers were thinking? Maybe we should just go with what the words meant when they were written without regard to intent? Just this week, a controversy erupted over the 14th Amendment’s birthright citizenship clause with some interpreting it to only apply to the recently freed slaves. That interpretation has been repeatedly tossed into the historical dust bin but here we are again. And what exactly were the framers thinking with the phrase “A well regulated Militia …” anyway? We don’t have the sort of militias today that were in existence when the Bill of Rights was adopted. Does the 1st Amendment’s right to free speech really apply to corporate campaign contributions? Are corporations people?
These are questions the justices of the US Supreme Court grapple with in deciding cases based on constitutional law. Some prefer what is called the doctrine of ‘original intent’ and say the document doesn’t apply to issues not part of the 18th/19th century world unless they can be enveloped within the words as written back then, while some prefer to apply the constitution in the light of modern reality. There are valid arguments on both sides. But either way, the justices must interpret two documents to decide constitutionality: the constitution itself and the particular law in question. The justices, therefore, must be well-versed in the law and its terminology, roots and concepts. That’s the reason I think candidates for the Supreme Court should be required to have considerable legal and appellate judicial experience. Most do and have, but not all.
OK, but that’s the Supreme Court. What about Congress? Let me frame my answer by asking this: do you really want the Supreme Court working hard to figure out what exactly Congress meant when it drafted a law? Or would it be better if the law was well-crafted, legally speaking, in the first place? Even if it was, that doesn’t mean the law is constitutional but it would be far easier to determine constitutionality if it was written by legislators with legal training. Moreover, we need laws written by people who have at least a decent understanding of the constitution, using whichever doctrine they choose to interpret it. We need laws written in such a way that they conform to the language of our legal system and stand a better chance of not being challenged and possibly struck down by the Supreme Court. Lawyers, or at least those who have law degrees, are who we need to write laws. The idea of ‘citizen legislators’ might sound appealing, but on the national level, it often just results in having people who don’t know what they’re doing running the country. The Rule of Law only works if the laws are coherent.
One might argue that my point is invalid because Congress is already, as I implied above, ‘chock full of lawyers.’ That’s true, but it would be worse if fewer had legal training. Then not only would they pass laws that ignore or distort political, social, scientific and international realities (and they do that so often these days) but the language of the bills would more often not even carry out their intent, making a complete hash of things that the Supreme Court has to untangle.
Before anyone gets their hackles up and starts firing off inflammatory screeds in the comment section, keep in mind two other things. First, in order to get an ABA-approved law degree in this country, you must first have a bachelors degree in something. Doesn’t matter what. So all law school graduates (OK, there may be some exceptions) are also educated in some other field. That in itself considerably broadens the experience pool to virtually every academic field. Each congressional committee could comprise legislators that not only have legal acumen but relevant training in the subject matter. The Science and Technology Committees would be composed of people with science degrees who can better understand the technical issues and who have the legal training to draft coherent bills to implement the desired policy changes without stomping on people’s civil rights. So too with Banking Committees, Education Committees, Arts Committees, and so on.
Second, I’m only advocating that Congress comprise those who have law degrees, not necessarily have practiced law. I have never practiced law, for example, but I have a law degree. So I’m reasonably fluent in law and can interpret laws, the constitution and court decisions, certainly much better than I could before getting the degree (said fluency is diminishing over time, of course). Before I got the law degree, I was like you. I thought Shakespeare hated lawyers.
Not that I’m running for Congress.