September 21, 1957
Oklahoma Bar Association (Lake Murray, Oklahoma)
The Lawyer – Freedom’s Advocate
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-dinner 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 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 the lawyers, it make a terrifically big difference what every lawyer does—what the 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 this legal thinking—not while one man’s opinion can change the nation’s destiny. How often has this 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 alright 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 custodian 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 want 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 eliminated on academic grounds, very few ware 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.
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 lawyers’ 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.
This nation is badly in need of idealist 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 that 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 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 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.
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 an Oklahoma sunrise. 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 might 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.]