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Tuesday, October 25, 2016

TOCQUEVILLE: Democracy in America II (Law and Aristocracy)

In the Declaration of Independence and its new Constitution the United States announced to the world its intention to reject monarchy and form a government without an inherited aristocracy or titles of nobility.  The problem now was where to find leaders able to guide this new republic.  In this week’s reading Tocqueville asserts that the United States found its leadership in a certain class of citizens: lawyers.  Of course this wasn’t spelled out in either the Declaration or the Constitution but nevertheless became the guiding force in establishing order and stability in America.  Why lawyers?  Tocqueville thinks it’s because “Men who have more especially devoted themselves to legal pursuits, derive from those occupations certain habits of order, a taste for formalities, and a kind of instinctive regard for the regular connection of ideas, which naturally render them very hostile to the revolutionary spirit and the unreflecting passions of the multitude.”  As a profession, and as a special class of citizens, Tocqueville believed lawyers were uniquely qualified to govern America.  Is that still true today?  Do lawyers still dominate American politics?  A recent article in the ABA Journal (January 20, 2016) says “Lawyers once dominated Congress, but they are being ‘squeezed out’ today by those who have made politics a career, according to a new research paper.  In the mid-19th century, nearly 80 percent of members of Congress were lawyers. The percentage fell to less than 60 percent in the 1960s and less than 40 percent in 2015.”  Tocqueville’s analysis was apparently correct for his own day but not so much nowadays.  What accounts for the decline?  The article “attributes lawyers’ declining dominance in politics not only to the rise of politics as a career, but also to broader changes in the profession.  The ‘professionalized political class’ includes campaign aides, lobbyists, members of think tanks, and employees in public-interest jobs. These jobs provide an alternative gateway to political office.  Most members of Congress with these backgrounds are not lawyers.”  The rise of corporations has also contributed to this phenomenon: “While in the 19th century, stories abounded of the public coming to courtrooms to listen to the oratorical skills of top lawyers and to be entertained by the cases of the day, by the end of the century many of the elite lawyers moved from the courtroom to the corporate boardroom. Top lawyers no longer required large public followings to bring in business.” 

Tocqueville’s basic theory of a quasi-legal aristocratic class still seems relevant today.  The elite class has merely migrated from the legal profession to a “professionalized political class.”  The question remains whether it’s necessary to have a quasi-aristocratic class in a democratic republic.  Tocqueville thinks so.  He says “Lawyers belong to the people by birth and interest, to the aristocracy by habit and by taste, and they may be looked upon as the natural bond and connecting link of the two great classes of society.”  Under his theory there are two great classes of society: the people on one hand and aristocracy on the other.  Lawyers are uniquely qualified to serve as “the natural bond and connecting link” between these two classes.  Why?  Baby lawyers are born into a democracy and so have a vested interest in making the democratic system work.  But as they grow and become educated citizens they also learn to appreciate aristocratic values.  Lawyers have thus been trained to see both sides of the big picture.  So “When the American people is intoxicated by passion, or carried away by the impetuosity of its ideas, it is checked and stopped by the almost invisible influence of its legal counsellors, who secretly oppose their aristocratic propensities to its democratic instincts, their superstitious attachment to what is antique to its love of novelty, their narrow views to its immense designs, and their habitual procrastination to its ardent impatience.”  History teaches that democratic instincts and “love of novelty” often end in disaster if not checked by the aristocratic propensity for order.


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