Nation of Laws and Lawyers
As the 2019 Kansas Legislature begins, I find myself thinking about my status as a lawyer and what this means. For the first time since 2008, I am not working with the legislature. It also marks the first year since 2007 in which I am not actively practicing law. In some ways, my career change may not be surprising because I rarely heap praise on the legal profession. My critique most often grows not from what the profession is, but from its unmet potential. A lawyer’s training in reason and logic is most certainly fallible, but it is also critical for a nation of laws to work wisely.
I was reminded of the critical role of attorneys as I was reading Candice Millard’s book on the assassination of James Garfield, Destiny of the Republic: A Tale of Madness, Medicine and the Murder of a President. James Garfield was the unlikely GOP nominee for president who jumped from Ohio Congressman to the White House despite objecting to his nomination for the entirety of the six-day convention. Part of Garfield’s objection to the nomination was that he had already nominated Treasury Secretary John Sherman to fill the role. But during his speech for Secretary Sherman, Garfield so impressed the convention with his words that he instead secured the nomination and the presidency.
Garfield, a lawyer by training, commented to the split and belligerent convention that “your present temper may not mark the healthful pulse of our people. When your enthusiasm has passed, when the emotions of this hour have subsided, we shall find below the storm and passion that calm level of public opinion from which the thoughts of a mighty people are to be measured, and by which final action will be determined.” It would not be long for Garfield’s words to prove prescient.
After the nomination, the country elected James Garfield to the presidency. The Republican Party of his era suffered a terrible split between the stalwarts and the half-breeds (I’m guessing the stalwarts selected the name of their GOP step-brothers). The stalwarts promoted the spoils system which rewarded government jobs to those with political connections. The half-breeds wanted reform for a merit-based system. Garfield was the latter, yet his unexpected presidency helped transform and unify a public that was still divided and embittered after the Civil War just fifteen years prior to his presidency.
Unfortunately, Garfield’s unifying effect required not only the sacrifice of public service but also the sacrifice of his life. A man named Charles Guiteau was a stalwart who thought assassinating President Garfield would thrust him into an appointment as American Consul to Paris. Guiteau planned his attack, but the shot failed to kill Garfield on impact. Instead, President Garfield lingered from July 2, 1881 until his death on September 19, 1881.
In the interim, Guiteau resided in the United States Jail in Washington, D.C. There he was protected by General William Tecumseh Sherman, the famous brother of the Treasury Secretary. Many across the country were calling for a hanging or even burning at the stake for Charles Guiteau. Despite the widespread fury, General Sherman—perhaps pulling ideas from his family of lawyers—summed up what it means to be a nation of laws as he requested restraint:
For this man Guiteau I ask no soldier, no citizen, to feel one particle of sympathy. On the contrary, could I make my will the law, shooting or hanging would be too good for him. But I do ask every soldier and citizen to remember that we profess to be the most loyal Nation on earth to the sacred promises of the law. There is no merit in obeying an agreeable law, but there are glory and heroism in submitting gracefully to an oppressive one.
I offer this quote not as a discussion on the time and manner of submitting to oppressive laws. Instead, consider Sherman’s words in the narrow application to the public’s cry to wrench a man out of jail for hanging. Guiteau not only committed the heinous crime; he admitted it. It seemed everyone wanted a blood payment for the offense. Despite this—even amid a period of anger and dissension—the strength of the laws and reason won the day rather than the power of passion. The blood payment was extracted, but not before the due process of trial.
As before, our laws and processes have flaws, as any human system will. Yet lawyers possess a unique training that focuses on reason, logic, and working toward the aspirational goal of being a nation of laws. This sentiment is not to thwart passion but to serve as a check against letting passions run afoul of good sense, ideally developed when passions are not piqued. As Alexis de Tocqueville once observed, “[Democracies] have the propensity to obey the impulse of passion rather than the suggestions of prudence…” When the legal community is at its best, it can offer the voice of prudence amidst passion.
These observations bring me back to my original reflections on not being a part of the 2019 legislative session. Understanding the critical role lawyers play in the legislative process—particularly in a state where fewer attorneys hold office than nearly any state in the United States—gives me a depth of gratitude for those attorneys who continue in the trenches of public policy. The legislature is an environment of passion, and it should be. But it must also be one of reason, which is where the particularized training of lawyers is so essential. Even though I am now watching the legislative process from afar, I watch in part to be a responsible citizen, but also to cheer on those who are serving, in hope that the legal profession does its part to help steer the passions of this state and nation toward upright and noble pursuits.
