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Toqueville’s “Most Powerful Barrier”: Lawyers in Civic Society

Wednesday, September 11th, 2013

In the latest addition to “The Professions and Civic Culture” series, Weekly Standard contributor and Washington, DC lawyer Adam J. White discusses the evolution of American lawyers. His essay, “Tocqueville’s ‘Most Powerful Barrier’: Lawyers in Civic Society,” argues that profound changes in the legal profession have undermined lawyers’ role as a natural brake against the “revolutionary spirit and unreflective passions of democracy” that Alexis de Tocqueville admired in 19th-century American lawyers.

A snippet:

Let the people decide? This is the question that has challenged us since the founding: under the Constitution, which was intended to provide, in Publius’s words, “a republican remedy for the diseases most incident to republican government,” how much power should we commit to the countermajoritarian body of judges and lawyers? Stated differently, if the Constitution establishes a republican government under which the people’s “reason” would “control and regulate the government” yet the people’s “passions” would “be controlled and regulated by the government,” then how should judges and lawyers heed the people’s reason yet regulate the people’s passions?

While these questions have been considered by countless scholars and politicians, few have rivaled the insights offered by the “perceptive Frenchman”—as Justice Scalia called him, in another case—Alexis de Tocqueville. In Democracy in America, Tocqueville observed that “[t]here is almost no political question in the United States that is not resolved sooner or later into a judicial question.” Yet Tocqueville offered this not to criticize judges and lawyers, but to praise their habits of mind. To Tocqueville, lawyers and courts were the natural conservative force in civic society—our best brake against the “revolutionary spirit and unreflective passions of democracy.”

But whatever the merits of Tocqueville’s assessment in 1835, today we face a different state of affairs. Lawyers are no longer a conservative check on revolutionary political passions; quite the reverse. Indeed, as this essay attempts to explain, virtually all of Tocqueville’s particulars seem quaint in hindsight—and the legal profession’s evolution raises important questions on the place that lawyers ought to occupy in civic society today.

To learn more about the role of lawyers in American civic society, read White’s entire essay available here. Check out our entire series of essays on The Professions and Civic Culture, including James W. Ceaser’s analysis of political science,  Christopher Caldwell’s take on the future of journalism, Paul Cantor’s essay on the literary field, and David and Nathan Tucker’s work on music and civic life, among others.

AEI