The measure of a democracy

The Thinker by Rodin

Here in America we are trained to look down on our lawyers. We assume that lawyers are just petty ambulance chasers. We think they are eager to bend justice for their clients but only if it also obscenely increases their fortunes. We do not understand how anyone can justify billing rates of $200 or $300 an hour by doing something as dry as reading dusty old law books. Sometimes we grudgingly express appreciation for those lawyers who attempt to provide equal justice to the poor. We do so while sometimes also expressing unhappiness if their justice was purchased with our tax dollars.

On Capitol Hill, the Republican Party seems to have an animosity toward trial lawyers. This is curious since the ranks of Congress are rife with lawyers. Nonetheless, when trial lawyers are successful suing corporations for what are perceived to be excessive punitive damages, Republicans tend to get their dander up. Tort reform is usually near the top of their agenda, right after tax cuts. Greed may be good on Wall Street, but not when their actions affect stock values.

We want to believe that lawyers are simply unnecessary. We want to think that we should be able to reach agreements without having to legalize it with these complex paper instruments we call contracts. The reality is that we need lawyers. Laws and contracts may be time consuming and expensive but they also remove legal ambiguity. Imagine the potential mess of a business merger without an enforceable contact hammered out by lawyers. Imagine if you willed your estate to your family but they ended up inheriting nothing because a judge decided arbitrarily to ignore your will. It is not obvious but, yes, we really do need lawyers. They are part of the epoxy that allows society to function in a predictable way.

In William Shakespeare’s play Henry VI, Dick suggests to the rebel Jack Cade that an excellent way to start an insurrection is to kill all the lawyers first. Dick may have been on to something. Lawyers are the gears that make the law work. Without lawyers, anarchy or dictatorships become possible. Most of us do not choose careers that we hate. The same is true with lawyers. It is likely that most lawyers are drawn to the law because they respect it. That so many lawyers populate Congress is likely due to their fascination with the law. (It also does not hurt that lawyers frequently have enough disposable income and the connections to be able to run for Congress in the first place.)

Perhaps like me you were stirred by the recent events in Pakistan. I was not surprised that with his grip on power loosening, President Gen. Pervez Musharraf would find it convenient to suspend the constitution and lock up most of his political opponents. Like most of us democrats, I was upset. Yet I was also very moved to see opposition arise almost immediately. Who led the opposition? They were the Pakistan’s lawyers, who marched in the streets by the thousands. By standing up for their democracy, they literally put their lives on the line. In fact, it is likely that at least hundreds of them are now in prison for doing so. So far, it appears that most of Pakistan’s masses have yet to become engaged in the struggle for democracy. The lawyers are proving to be the phalanx for the restoration of the rule of law in Pakistan. It is also clear from footage of their marches that they are passionate believers in the law and in democracy. As they proved some months ago when they stood up to Musharraf in support of their chief justice, they have the courage of their convictions.

I wish our many lawyers in our Congress had similar courage. In their case, much less courage is required. Yet most of them appear spineless. Today, for example, with the shameful support of a handful of Democratic senators, the Senate approved the nomination of Judge Michael Mukasey as our new Attorney General. Senators approved the nomination even though Mukasey could not assure them that waterboarding was a form of torture. As egregious as this was, Mukasey also stated his belief that the President might have inherent powers that puts him beyond the reach of the law. Somewhere up there, Richard Nixon has an evil smile on his face.

Fifty-six men were signatories to the Declaration of Independence. Twenty-four of them were either lawyers or jurists. In the declaration, they pledged their lives, their fortunes and their sacred honor to establish a new democracy called the United States of America. These were not just idle words. The British Army hunted down these signatories as treasonous rebels. If captured they would have paid with their lives. Some of them paid that price. Others spent the Revolutionary War constantly on the run leaving behind ruined families and businesses. Only one of those patriots, Thomas Jefferson, would survive and rise to become President of the United States.

I wish we had patriots in our Congress like this. We have many patriots in uniform overseas and I certainly do not mean to discount their patriotism. Thousands have died for their country, tens of thousands have been wounded, most on a mission in Iraq that will probably prove in vain. Their patriotism is beyond dispute. The least we could do to honor their sacrifices is to demonstrate patriotism by respecting the rule of the law in this country.

Congress can start by not allowing the telephone companies who broke wiretapping laws at the behest of the Bush Administration to get retroactive immunity for their illegal actions. It can do much better than this. Rather than just refer Representative Dennis Kucinich’s bill to impeach Vice President Dick Cheney to committee, where it will linger until this administration leaves office, it can press forward with real impeachment hearings. It can send a signal both to this administration and to future administrations that the egregious and unlawful unilateral expansion of executive powers by the Bush Administration will never be tolerated again.

Those courageous lawyers in Pakistan know that respect and adherence to the rule the law is the difference between civilization and anarchy. This is a lesson we should relearn now more than two hundred years into our own democratic experiment. If freedom is not free, neither is the equal application of the law. Our pragmatic founding fathers at least gave the branches of government power to check excessive power grabs by the other branches. It is long past time for the Congress, on behalf of the people who it serves, to restore the rule of law in clear and unambiguous terms.

One thought on “The measure of a democracy

  1. Lawyers and courage are not mutually exclusive, however, politicians and courage seem to be.

    It has always fascinated me that so many people blame lawyers for tort problems, the same people who could be jurors. Many times, in the final analysis, it is the jurors who render the decisions that the lawyers are blamed with. Can you blame a lawyer for identifying stupid people (jurors)? Of course, these jurors (stupid people) are not going to admit their stupidity. A classic case comes to mind; the old gal suing Macdonald’s for millions of dollars for spilling hot coffee in her lap while in the car. Now really, just because the lawyer asked for the big bucks, it was the jury who awarded the money. So what the hell were the jurors thinking? Upon receiving the award the lawyer was probably thinking these jurors were an easy mark, not to mention a big pay check in hand.

    So I suppose the real cure to the tort problem would be to level the playing field by hiring stupid lawyers, who might by accident select intelligent jurors.

    And as for the politicians claiming to address the tort problem is to blame those getting the big pay checks, because everyone knows, well everyone of the stupid people knows (that is to say, stupid constituents), that rich and successful lawyers are all crooks and cannot be trusted.

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