John Ben Shepperd: The Lawyer – Freedom’s Advocate
February 9, 1957
Illinois Bar Association Lincoln Day Luncheon (Peoria, Illinois)
The Lawyers—Freedom’s Advocate
Thank you for that very flattering and truthful introduction. It’s been a long time since I’ve heard anything I enjoyed so much agreed with so complete1y. However, President Thomas probably found himself in the same predicament of the Master of Ceremonies who had to introduce another obscure character from a small Texas town who said, “Our next speaker needs no introduction. Even if I told you who he is, you still wouldn’t know him.”
I, of course, want to say a few words about my native state. I talk about Texas when there is the slightest indication or interest in the subject—and frankly, you have indicated the slightest interest in Texas of any group I have ever appeared before.
But if I came this far away from God’s country and didn’t talk about Texas, you’d think I had been excommunicated, was dead, running for a national office or an unmitigated fraud. Besides, I want to get back in when I go home.
I think it’s time the truth was told about Texas. Some folks say Texans don’t have a very high regard for the truth. Actually we value it very highly and that’s why we are so economical with it.
Being from Texas, I guess you want me to do a little bragging. We Texans don’t enjoy this sort of thing as much as you think we do, but it has come to be expected of us and we’re too polite not to fulfill our obligations.
Actually when you come right down to it, there aren’t many Texans who brag. As a matter of fact, if all the bragging Texans were laid end to end, it would meet with the unanimous approval of the rest of the country.
Now that I’m out of politics, I’ll let you in on a secret. There’s one sure way to tell if a Texan is lying. If his mouth us open, he’s lying.
Another serious misconception needs to be cleared up about Texas. It is not true that all Texans are oil rich. In fact, if all the people getting rich on oil in Texas were suddenly taken up into heaven at the last trump—which within itself is an unlikely supposition—the state would still have left two janitors, three sharecroppers and a darn good attorney general.
However, I modestly won’t deny the fact that Texas is the healthiest place in the world. We have to go across the state line to get sick. An Illinois lawyer friend of mine advised a client to go to Texas for his health. He bought a ranch down there. When he came down he was crippled and had a glass eye. They discovered oil on his ranch and now he has not only stopped limping, but he can even see a little out of that glass eye.
To top this, every sixteenth child born in the United States is a Texan and Texans are born four times as fast as they die—which is pretty discouraging to the rest of the country.
To boil this factual report on Texas down to a simple formula—in Texas men are men and women are women and I defy you to improve on a situation like that. Or as the old maid said, “Who’s trying to improve on it. I just want to get in on it.”
But let’s talk about Illinois. I honestly used to think it was too far away from Texas to ever amount to very much. I know better now. In fact, Texas is grateful for the contributions citizens of Illinois make to our economy and to our public education. Every year you send us over 250,000 tourists who are loaded with money and they have taught us that it’s easier to pick a citizen of Illinois than to pick cotton. It’s more fun, too. I’ve tried both and I know.
In addition to this we have over 50,000 people who have moved permanently from Illinois to Texas. By choice, they claim. If I were a typical Fourth of July orator or a politician, I’d stand up here and tell you what fine citizens they are and what great contributions they are making to our state. But I’ll be perfectly candid with you and say that you can have them back anytime you like. Actually we are proud of these people and of the friendship between Texas and Illinois. And I am proud and honored to be here.
It’s difficult to know what things ought to be said by one lawyer to a group of others in a few brief moments like these. There is hardly time to go into a deep subject and there is no deep subject that goes well with an after-lunch cigar anyway.
So I’d like merely to share with you a few thoughts about this country of ours, its Constitution and certain responsibilities of the lawyer. The American lawyer is legal counsel to Democracy—he is Freedom’s advocate.
The Constitution divides the government into three branches, lodging the lawmaking power in Congress. Any realistic lawyer or historian will admit that the Constitution has been violated many times with respect to the actual location of this lawmaking authority.
There have been times when a strong executive has actually made law and other times when the courts have simply “interpreted” into existence a law which Congress never would have passed.
Because of the relative ease with which a branch of the government can violate the Constitution—and usually get away with it—we cannot put our trust in the mere fact that we have great legal minds to interpret the law correctly. We can only put our confidence in the moral character of Democracy’s parliamentarians–the members of the legal profession. If you’ll excuse the pun, we are the legal guardians of the rest of the people and as much as I dislike saying it, most of the departures that have been made from the true meaning and intent of the Constitution have been made through political thinking, moral weakness or the exercise of personal opinion on the part of lawyers and groups of lawyers.
This is especially true in those recurrent periods when the Judiciary seems to emerge with a temporary pre-eminence over the other branches. We are in such a period right now. I don’t need to remind you of’ recent controversies surrounding the powers and actions of the U.S. Supreme Court or of the frequent inability of Congress to rewrite the laws which it feels the Court has misinterpreted.
Because this country is in the legal custody of lawyers, it makes a terrifically big difference what every lawyer does—what he thinks, what he says, what he believes. An obscure lawyer from nowhere can suddenly be catapulted by election or appointment to a judgeship. An irresponsible or overly opinionated law professor can send forth hundreds of young lawyers carrying the hidden genes of legal deformity. An ill-trained or ethically warped lawyer in Congress or a state legislature can write idiocy or injustice into the law.
Don’t tell me, therefore, that it doesn’t make much difference if a lawyer gets his politics a little mixed up with his legal thinking—not while one man’s opinion can change the nation’s destiny. How often has the country veered radically to the right or left by a five-to-four decision? Every starry-eyed law graduate is a potential judge. It’s all right for him to practice law and have his politics too—in fact, he should—but only if, like a man with two wives, he can do his duty to both of them and keep them apart.
Neither can the custodians of the Constitution permit their profession to become a clearing-house for placing legal talent and knowledge at the disposal of unethical persons with plans for business conquest or political achievement. We must admit that there is always a big demand for lawyers of easy virtue. For every client who wants a lawyer, there is usually another who wants a fixer.
We have gone to great lengths, through examining boards and methods, to make sure that lawyers are able. But while a great many aspiring lawyers are eliminated on academic grounds, very few are disqualified from bar membership for deficiencies of character. We have done too little to eliminate the moral misfit, the conscientious non-objector and the lawyer who will sacrifice a principle for a fee.
I am not an advocate of a closed profession, especially on a basis that would cause lawyers to sit in moral judgment on each other, but I believe that we can lift our professional standards by sincerely reminding each other now and then that we are not obligated to represent every rascal who can pay. Not every client has a just cause. I’m not here to preach a moral sermon, but to make the point that there is a direct and vital relationship between the personal conduct of lawyers and the stability of the law. This is especially true when we fall victim to the ·success philosophy which measures all men in terms of annual income. I have known many a promising attorney who started sacrificing minor principles to get ahead, only to wind up selling the loopholes in the Constitution to keep himself in tuxedoes. There is a point at which the earning of money and the upholding of the Constitution are inconsistent and the patriot is the man who will not trade a dot or a dash in the Constitution for a dollar sign on the ledger.
None of us here is anything but a patriot and a gentleman—naturally. But there are many patriots and gentlemen in the legal profession who unwittingly mold their younger brethren into something less. Sometimes a young law graduate is taken into a firm and immediately he becomes the victim of that false and superficial standard of professional advancement which requires that in order to get clients he must play harder than he works. He must be able to mingle with the right people, tell an off-color story in a mixed crowd, rhumba with enthusiasm and play a good round of golf. The senior members of the firm expect it of him. And in this new circle of associates he may find that he is more quickly accepted if he just tips his hat to the church on his way to the party than if he stops there en route.
And very likely he finds that he doesn’t have time for the ordinary responsibilities of a professional man. He is so busy helping a big new client with a corporate merger that he doesn’t have time to serve on a civic committee. Unless he is thinking of running for office, he doesn’t see any reason why he should go to the political convention—and he’s not thinking of running because that’s just something that lawyers do to get ahead professionally, the way doctors have themselves paged in the theater. And at that point he begins to look like a real member of the firm because he is hoping for a big appointment to a bar committee while he ignores the call of the school board and the P-TA. And when he gets the appointment, that makes him a leader—a leader among lawyers at least—and the other members of the firm are proud of him. But who in the meantime, is leading the people? Who is serving in office? Who’s on the committee? Why wasn’t there a good lawyer to speak out for that city ordinance that failed to pass? Why didn’t somebody tell us there were loopholes in that new law before the legislature quit and went home? Why doesn’t somebody tell us the pro and con of this bond issue before we have to vote on it? Why don’t they write the income tax instructions so we can understand them? And whatever happened to the Constitution?
You can’t get away from it—the American lawyer is the custodian and exponent of the system of laws which the people of this country call freedom. He is thrust into a position of moral and patriotic leadership which he cannot shirk whether he likes it or not. He has an obligation to be wherever freedom’s vital pulse is beating—at the public meetings, the meetings of the local governmental bodies, the budget hearing, and all the other places where the processes of free government depend on the watchful eye of an intelligent public. Wherever those processes are slowed or broken down, we’ve been yelling, “There ought to be a law!” The truth is there ought to be a lawyer.
Freedom cannot long endure where the practitioners of the law are not its self-appointed guardians. Lawyers wrote the instruments of our liberty and guided this country through its infancy. They did this, even in a day when the issues of life were far simpler than now. The first Americans were people with an ability to separate the false from the true, the important from the unimportant . . . people with the kind of honesty and simplicity that sees through the subterfuges of demagogues and quacks in high places . . . people who were too wise to be fooled, too good to be corrupted, too proud to be abased and too strong to be misgoverned.
But today’s world is complex and the undercurrents are subtle and hidden. People become confused and discouraged at their inability to understand. Confusion gives way to apathy and apathy to indifference. Unless there are lights along the way, freedom dies.
Freedom dies in the path over which men and women no longer walk to the polls. It dies on the courthouse lawns where they no longer go to political rallies. It perishes on the concrete steps of the school house where the feet of grown people no longer tread.
Freedom expires in the dust that collects on church pews that are never filled and in homes where half the family is just sitting around waiting for the other half to get back with the car. It dies of cold feet wherever public officials are afraid to get into hot water. It dies of apathy wherever men and women get into public office through pull and then stop pulling. And it dies wherever lawyers try to get to the top by climbing instead of growing and wherever they are so concerned with the pro and the con that they forget the right and the wrong.
Am I just a nostalgic dreamer or wasn’t there a time when a client could walk into a lawyer’s office and get action without a fee being discussed first? Wasn’t there a time when an attorney, without stopping to check his minimum fee schedule, grabbed his hat and said, “Let’s go”? Wasn’t there a generation of lawyers who got a gleam in their eye when they talked about the law, instead of about their rich clients?
That’s the kind of lawyer I aspired to be when I was a youngster. There were no lawyers in my family. Nobody talked me into being one. Nobody told me it was lucrative—and sure enough it wasn’t. But somebody, sometime, caught my mind’s eye with the idea that the preservation of our Democracy is and ought to be primarily the responsibility of those who are trained in the law.
I used to read of Daniel Webster fighting injustice and dedicating his life to the cause of freedom through constitutional law. I heard of statesmen expounding from a law book the vast, imponderable principles that moved armies to clash on battlefields. And I read of Justice Holmes, dissenting time and again to the point of looking ridiculous—unwilling to prostitute the law or compromise his integrity. And I am not ashamed that I went through law school on a shoestring, a prayer and the hope that I, too, in taking up a noble profession, might serve my fellow men and honor my calling.
Yes, this nation is badly in need of idealistic lawyers. We will need them as long as there are closed doors in public office, public meetings held in secret and public files marked “confidential”. We need them as long as there are antiquated, harmful laws on the statute books, remaining there only because they suit somebody’s political or financial convenience—and as long as there are loopholes in the law, left there by lawyer-legislators for the benefit of their private practice.
We need idealists as long as we live under big, bloated governments feeding on the lassitude of a citizenry that wants everybody to have a benefit at everybody else’s expense. We need them as long as this nation is trying to live high on money borrowed from our children’s unborn children. We need idealistic, courageous lawyers as long as we have judges who cannot or will not lay aside their politics when they put on the judicial robes.
I don’t know what it means to you to be a member of the legal profession, but to me it means that I may have some small part of keeping our country the kind of place where every mother’s son is a future president—where the size of a man is not measured from his feet to his head, but from his head to the sky. I like to believe that because I am a lawyer, I can have a part in bringing up a new generation of Americans to believe that it is better to be right than be rich . . . better to be fair than be famous . . . better to be honest than be exalted . . . better to be good than be clever . . . better to be free than be secure and better to die on their feet than see their fellow Americans living on their knees.
Yes, the law is a powerful force—a means to obtain gold or fame or power. Rightly used, it gives us liberty. But wrongly used, it cannot obtain for us the priceless intangibles that are beyond its dominion. No man can open a law book and establish his title to a sunrise on the Great lakes. No man can secure by litigation the look of trust and innocence in a child’s eyes. No man can go before a court of law and be awarded the companionship of a true friend or the love and devotion of a faithful wife. And there is no court so high that it can fabricate by decree the sound of a mother’s lullaby or the laughter of a free man.
No, we have not mastered the law and the Constitution of this mighty nation; nor are we worthy to be its keepers nor advocates of its God-given freedoms until we have learned these simple laws of liberty:
Freedom is old, not young; yet it is born anew in the first cry of a free man’s son;
It is not a living thing, yet it dies if we do not love it;
It is not weak, but strong; yet it must be defended;
It is light, yet it weighs heavy on him who is without it;
It is without price, yet it dearly costs the one who sells it;
It is not small, but great; yet once lost, it is never, never found again.
Yes, to be born free is an accident;
To live free is a responsibility;
But to die free is an obligation.
[Note: The views expressed in this speech were those of John Ben Shepperd, and do not necessarily represent the views of the John Ben Shepperd Public Leadership Institute or the University of Texas Permian Basin.]