Perhaps the most alarming fact about contemporary progressivism is that it is a movement led by radical lawyers. The use of the law to undermine our constitutional tradition is in effect the use of the law to undermine itself. But worse than that, it is the use of the legal profession as a kind of revolutionary instrument. That is a particular problem because the legal profession has always had a special role in the Anglo-American common law tradition as precisely an anti-revolutionary instrument—a repository of cautionary precedent and prudent mulishness. “The English or the American lawyer inquires into what has been done, the French lawyer into what one ought to wish to do,” Alexis de Tocqueville wrote in 1835. In the common-law countries, he thought, “Men who have made the laws their special study have drawn from their work the habits of order, a certain taste for forms, a sort of instinctive love for the regular sequence of ideas, which naturally render them strongly opposed to the revolutionary spirit and unreflective passions of democracy.” He believed that America’s lawyers would be essential to the ability of the United States to draw the best out of democracy while resisting its worst excesses.
Can they still play that role now? Adam White, one of the most thoughtful lawyers in Washington, has taken on that question with his usual mix of historical knowledge, intellectual depth, good sense, and wit. In this paper, written for AEI’s Program on American Citizenship, he offers a tour of the problem and a persuasive mix of hope and despair. I think he also offers, by the example of his own habits of mind and argument, proof that Tocqueville was on to something after all.
The paper is part of a fascinating project on “the professions and civic culture,” which has also yielded other papers worth your while, including Jim Ceaser on political science, Chris Caldwell on journalism, Paul Cantor on literature, David and Nathan Tucker on music, Steven Rhoads on economics, and Rita Koganzon on civic education.