A Modest Proposal:
Separation of Lawyers and Politics

The first thing we do, let's kill all the lawyers.

William Shakespeare, Henry VI, Part II

When someone passes the Bar exam and is admitted to the Bar to practice law in a State, they become an Officer of the Court. This makes them part of the Judicial branch of government. If they then run for public office and are elected to the legislature or to an executive office, it means that they simultaneously serve in two branches of government. This violates the principle of the Separation of Powers.

The effect of this, at least with respect to lawyer legislators, is also an obvious Conflict of Interest. Certain people write laws as legislators and then find that in private life their services are needed to negotiate the same laws for the public.

James Madison wrote in Federalist #62

It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?

There is no doubt that today the laws are so voluminous that they cannot be read and so incoherent (or obscure) that they cannot be understood. But it is precisely in the interest of lawyer legislators that this be the case. It becomes their livelihood to read, explain, and manipulate the laws for the sake of their paying clients. Indeed, since lawyers will be hired by both sides of a legal dispute, it is in their interest that the laws be positively self-contradictory, for they will then be able to make just as good a case, and stand just as good a chance of winning, whichever side hires them.

The remedy for this clear Conflict of Interest and breach of the Separation of Powers is obvious:

Members of the Bar should be ineligible for elective office, with the only exception being offices specifically for attorneys (e.g. District Attorney or a State Attorney General).

Lawyers could still become politicians, just by resigning from the Bar, with the proviso that they cannot be readmitted. If they are then subject to Term Limits, they will either have to count on being elected to various public offices or they will have to prepare for getting into a different line of work once their political career is over. Or they can move to a different State, where they could be admitted to the Bar again. There they would not be dealing with laws they may have been instrumental in passing back in their home State.

The rule for federal offices will necessarily be somewhat different. Members of Congress need not resign from the Bar back in their home States, but they would be disqualified from appearing for any cause in Federal Court.

It may be objected that this rule violates the principal of Voluntary Association: Why shouldn't the people have the right to elect practicing lawyers if they want to? I agree. But this principle has already been violated by lawyers, for they have seen to it that only persons admitted to the Bar can be hired to practice law. I would say that either lawyers surrender their legal monopoly of the practice of law, or they pay the cost of that monopoly with a legal disability to run for elective office. I would be willing to endure the hazard of violating the Separation of Powers or of a Conflict of Interest if indeed the principal of voluntary association be generalized against the monopoly of the lawyers.

Another possibility, as a compromise, is simply that a supermajority vote could be required for lawyers. If the People really want a candidate who is a lawyer, this would mean that a large majority would want him; and so a large majority could reasonably be required for his election, 60% or more. This would preserve Voluntary Association, but add an appropriate, but limited, legal disability. The same device might be used for term limits:  Every six years, for instance, a Congressional Representative might be required to earn an extra 5% of the vote. A truly popular and celebrated Congessman, consequently, would be able to continue serving. After 24 years, a long enough time in Congress for anyone, the majority would be up to 70%, which a truly popular and celebrated Congressman could even still win. Lawyers would be on the same track, but starting at a higher level. Resigning from the Bar after election, or after several elections, could still remove all, or part, of the disability for lawyers, though it would still be a wise provision that lawyers could not participate in cases involving laws that they themselves were instrumental in passing.

 

Political Site of the Day, August 27, 1998

Kelley Ross for California State Assembly, 40th District

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Copyright (c) 1997 Kelley L. Ross, Ph.D. All Rights Reserved