Essay by Barry Sullivan
In the 1830's, when Tocqueville observed that lawyers constituted the intellectual aristocracy of the new nation, he ignited a controversy which continues to the present day. To what extent Tocqueville's observation ever was correct, and, if correct at all, with respect to what part of the bench and bar, are questions that continue to divide students of American legal history. From the beginning, however, the American lawyer labored mightily, with ‘a peculiar and overwhelming self-confidence,’ to establish himself as ‘the ideological expounder and guardian of republican virtue.’ The so-called golden age of American law in the first half of the nineteenth century may well have been ‘a period of very weak collective standards,’ when lawyers ‘joined the bar after minimal preparation,’ but it is beyond dispute that this period produced advocates and judges whose professional accomplishments and influence far exceeded their technical training. More important, the idea of the legal profession as an intellectual aristocracy succeeded in capturing the American imagination and setting a standard against which the bench and bar would continue to be measured.
Even in the earliest days of the Republic, when legal education consisted principally of law office study, legal training was defined by ‘the controlling aspirations of an intellectual elite.’ Law office training may have been haphazard and uneven, but students of the finest practitioners received a professional education that was notable not only for its technical limitations, but also for ‘the panoramic directions it encouraged.’ The ideal of the lawyer was clearly established as that of the liberally educated mind. For example, John Quincy Adams, who kept a diary of his apprenticeship with Theophilus Parsons, in Newburyport, Massachusetts, reported: ‘I . . . requested of Mr. Parsons his opinion, whether it would be most advantageous for me to pursue the professional study in those hours when I should not attend at the office; or whether it would be best to devote them to other purposes, and a diversity of studies. He answered by observing that I could not attend to any useful branch of science in which I should not find my account.’ The conversation in Parsons's office
ranged across ‘law, physic, history, poetry, religion, and politics, by turns,’ and readings included Buffon's Histoire Naturelle, the histories of Hume and Gibbon, Shakespeare, Butler's Hudibras, and Rousseau's Confessions, along with legal texts like Blackstone's Commentaries (read three times in a year and a half), Coke on Littleton (‘the great magazine of legal knowledge’), and numerous books on the forms of pleading.
Of Parsons himself, Adams wrote: ‘He is in himself a law-library, and a proficient in every useful branch of science; but his chief excellency is, that no student can be more fond of proposing questions than he is of solving them.’
In the early days of the Republic, circumstances and education combined to create a climate in which the legal imagination was given an unusually broad sweep. The so-called golden age of American law was an age when legal questions, at least in the field of public law, necessarily were resolved by resort to first principles. The paucity of binding precedent, the relative absence of statutory law, a republican reluctance to rest too heavily upon English precedent, and a general confidence in the unity of human experience all required creativity. No less than literature, the practice of law could be said to demand a ‘knowledge both of books and human kind,’ and the lawyer's aspiration was nothing less than to ‘see life steadily and see it whole.’
The peculiar needs of the times, it may be argued, required the kind of study which Chief Justice Parsons recommended to his pupils. Parsons's recommendation of liberal learning has a broader and more persistent significance, however, because it embodies an abiding theme in the culture of American law. The ideal which it reflects was well stated by Learned Hand:
I venture to believe that it is as important to a judge called upon to pass on a question of constitutional law, to have at least a bowing acquaintance with Action and Maitland, with Thucydides, Gibbon and Carlyle, with Homer, Dante, Shakespeare and Milton, with Machiavelli, Montaigne and Rabelais, with Plato, Bacon, Hume and Kant, as with the books which have been specifically written on the subject. For in such matters everything turns upon the spirit in which he approaches the questions before him. The words he must construe are empty vessels into which he can pour nearly anything he will. Men do not gather figs of thistles, nor supply institutions from judges whose outlook is limited by parish or class. They must be aware that there are before them more than verbal problems; more than final solutions cast in generalizations of universal applicability.
One might protest that even Judge Hand's words were written more than fifty years ago, that the nature of legal practice has changed dramatically in that half-century, and that liberal learning has little to do with meeting the technical demands imposed by legal practice in the age of the administrative state. More often than not, cases seem to turn, not on elegant and insightful exposition, nor on an advocate's ability to chart a course by reference to the polestar or fundamental policy of a field of law, but on his mastery of obscure, dense, and frequently illcrafted statutes and regulations, ‘all out of shape from toe to top.’ In the face of burgeoning caseloads, judges may be tempted to seize upon a case in point, so as to move quickly, and uncritically, on to the next assignment. In the age of the administrative state, it may be argued, ‘judges are not assumed to have the wisdom of philosopher-kings;’ their authority is based, not on ‘the personal qualities of those who are judges,’ but on ‘the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution.’ But the greatest lawyers and judges still endeavor to ‘see life steadily and see it whole.’ They still bring the full breadth and depth of their learning and experience to bear upon the issues they must advocate or decide.
Judges today, as in earlier times, may profitably be viewed as readers and composers of texts. As James Boyd White has suggested, ‘a judicial opinion more or less explicitly reads, criticizes, accepts, and modifies earlier judicial opinions and other sources of the law, and reconstitutes them by giving these items a new order, in a new text.’ For obvious reasons, some judges are better ‘readers' than others. Some judges may choose to make a greater investment in the process, and some judges may have more to invest. Similarly, some judges may be well-supplied with narrow technical knowledge, while lacking that ‘panoramic’ view which provides both the intellectual confidence needed to place an issue within its broader context and the moral courage needed to stand alone when necessary. Because the judge is a reader of texts in a way that is profoundly creative and ‘profoundly anti-bureaucratic,’ his opinion is inherently unlike a tallying-up of data which leads ineluctably to a preordained result. It is an exercise in intellectual and moral excellence. Professor White has written:
The judge is always a person deciding a case the story of which can be characterized in a rich range of ways; and she is always responsible both for her choice of characterization and for her decision. She is always responsible as a composer for the composition that she makes. One great vice of theory in the law is that it disguises the true power that the judge actually has, which it is her true task to exercise and to justify, under a pretense that the result is compelled by one or another intellectual system. Our way of reading takes aim at those pretenses, and seeks to destroy them, by defining the work of the law as the work of individual minds, for which individuals are themselves responsible.
Judge Wisdom's judicial work stands as a sturdy testimonial to the continued importance of liberal learning in adjudication and to the view of adjudication as an exercise in intellectual and moral excellence. During the past twenty-nine years, Judge Wisdom has written well over a thousand opinions. He has written, not only with clarity, elegance, and style, but also with moral courage and intellectual authority, in virtually every area of law known to the federal courts. Throughout his years on the bench, and, indeed, one supposes, throughout his professional life, Judge Wisdom has combined the highest standards of technical expertise with that panoramic view which is both the hallmark of liberal learning and the source of moral courage in adjudication. Above all, perhaps, he has consistently perceived the issues which he has been required to decide, not as isolated or ephemeral concerns, but as manifestations of recurrent themes in the history of our country. Like Burke, he has viewed society—and our Constitution—as ‘a partnership not only between those who are living, but between those who are living, those who are dead, and those who are to be born.’ As a Southerner, and as a federal judge charged with the historic task of implementing the Supreme Court's decision in Brown v. Board of Education, he has looked to history for that wisdom which is the source of courage. The richness of his opinions is due, not only to the virtuosity of their legal analysis, but also to a profound appreciation and understanding of history. Given the demands made by his time and place, Judge Wisdom could not view the judge's function as that of one who is ‘merely an analyzer of costs and benefits, or merely a voice of authority, or merely a comparer of one case with another, or merely a policymaker or problem-solver.’ It has been his task to give effect to the Constitution in a hostile environment by teaching understanding and respect for the rule of law. In this sense, he has perceived that history provides enlightenment, that it is one of the main lights by which the liberally educated mind strives to ‘see life steadily and see it whole.’
This Essay will examine Judge Wisdom's use of history by considering two opinions illustrating two distinct uses that the liberally educated mind may make of history. The first opinion, which will be discussed under the general heading ‘The Judge and History,’ is Judge Wisdom's opinion for the majority in United States v. Louisiana. In that case, Judge Wisdom wrote for a three-judge district court which struck down certain provisions of Louisiana law that granted voter registrars an absolute discretion, not only to determine whether applicants ‘understood’ the state and federal constitutions, but also to grant or deny registration on that basis. In his opinion, Judge Wisdom surveyed the various means which had been used in Louisiana to disenfranchise free blacks for almost 250 years. Historical research provides the stone and mortar from which Judge Wisdom's opinion is crafted. History provides the ‘facts' upon which the judgment of unconstitutionality is premised.
The second opinion, which will be considered under the heading ‘The Judge in History,’ is Judge Wisdom's dissenting opinion in United States v. Barnett. In this opinion, Judge Wisdom's use of history is more subtle. In Barnett, the Fifth Circuit dismissed the criminal contempt charges which had been entered against Ross Barnett, the Governor of Mississippi, and Lieutenant Governor Paul Johnson, based on their efforts to subvert enforcement of the court's mandate requiring the admission of James Meredith to the University of Mississippi. The central issues were the supremacy of federal law and the role of the federal courts in interpreting federal law. Governor Barnett took the position that he was entitled, as Governor of Mississippi, to interpret the Constitution and interpose himself between the federal courts and the University of Mississippi. Judge Wisdom's dissenting opinion does not belabor the history of the nineteenth century struggle for federal supremacy, nor does it consider in any detail the claims of the nullification and interposition doctrines. However, it is Judge Wisdom's informed opposition to Governor Barnett's attempted resuscitation of those doctrines which provides the energy and the rationale of the dissent. In Barnett, Judge Wisdom's use of history is less like stone and mortar; it is more akin to scaffolding, which ‘comes down when the job's done/Showing off walls of sure and solid stone.’
In each of these two cases, Judge Wisdom's use of history takes a different shape. In both of them, however, history provides enlightenment and supplies the life force of the opinion. In both of them, Judge Wisdom's understanding of the past serves an important rhetorical purpose: facilitating his explanation of our constitutional system of government, an explanation which is addressed not only to the legal community, but also to the wider audience of informed citizens to whom he wishes to speak.
About the Author
Barry Sullivan. A.B. Middlebury College, 1970; J.D. University of Chicago, 1974. Law clerk to the Honorable John Minor Wisdom, United States Circuit Judge, 1974-1975; Member of the Massachusetts and Illinois bars; Partner, Jenner & Block, Chicago, Illinois.
Citation
60 Tul. L. Rev. 314 (1985)