The Democratic Aristocrats
WESTIN, ALAN F.
The Democratic Aristocrats CONSERVATIVE CRISIS AND THE RULE OF LAW By Arnold M. Paul Cornell. 237 pp. $4.75. Reviewed by ALAN F. WESTIN Associate Professor of Public Law and...
...Many other central figures of the law in America during this decade pass through Paul's narrativeThomas Cooley, John F. Dillon, John P. Altgeld, Simeon Baldwin, George Edmunds, Oliver Wendell Holmes Jr...
...The relation of lawyers to the power structure in local communities, the elements of politics and corruption closely tied to the lawsuit and court appointments, the relation of lawyers to the party system, the changing relation of lawyers to the bureaucracy-these and similar issues would also be treated...
...In part, the work will be historical, beginning with the position of the lawyer in the American colonies, the American Revolution and the constitutional conventions...
...Yet the decade Paul chose to explore is perhaps the most wellworked decade in American history on the role of the Bar in American politics and law...
...There are dozens of biographies of major figures of the law in America, from those who used law as the highway to political careers to those whose major contribution was made from the law office itself...
...Reviewed by ALAN F. WESTIN Associate Professor of Public Law and Government, Columbia University Some day a great book will be written about the role of lawyers and the Bar in American politics...
...It will also describe the rise of a corporate Bar and its control of the legal profession in the post-Civil War decades, as well as the development of organized Bar associations, of "government lawyers" during the 1930s, and the ill-fated experiment of the National Lawyers Guild...
...Paul describes this struggle primarily from the comments that lawyers made "in Church" (as he puts it) -in the debates within the Bar association journals, legal periodicals, and legal newspapers...
...Paul's study begins with the Haymarket riot of 1886, and the shudder of alarm that this sent through the conservative camp in America...
...The works of such talented lawyer-historians as William D. Lewis, Roscoe Pound, James W. Hurst, Robert T. Swaine and Charles Warren would be primary source materials, though such self-celebrating literature would have to be used as carefully as the occasional muckraking books from maverick legal writers such as Fred Rodell...
...He records the development of the "Conservative revolt" by the Choates, Conklings, Fields and Brewers...
...Even more important would be to apply the tools of political science and sociology to the lawyer in America...
...Finally, one can admire Paul's attempt to work Clinton Rossiter, Louis Hartz and Richard Hofstadter into a cohesive theory of American legal conservatism, and yet not feel quite satisfied with his theory of a split between "traditionalism" and "conservatism.' Still, Paul's book is a fine specialized study...
...Of special importance would be an analysis of the creative role of lawyers in the special conditions of American legalized-politics, especially the role of supplying an almost consistently inept business community with the theory and techniques with which to pursue its political interests...
...and the protests against such doctrines of judicial supremacy and anti-majoritarianism which ranged from those he calls the "legal progressives" (such as Seymour D. Thompson and John M. Harlan) to the "moderate center" (personified by Richard C. McMurtrie, William D. Lewis, and James Bradley Thayer...
...One such monograph was Benjamin Twiss' volume, published in 1942, Lawyers and the Constitution: How Laissez Faire Came to the Supreme Court...
...As Paul notes, 1896 saw the debate over the new judicial role placed in the forefront of William Jennings Bryan's Presidential campaign, in what Charles Beard called the second major "anti-Court" election in our history (the first was in 1860, over the Dred Scott case...
...The class composition of lawyers, channels of recruitment and apprenticeship, the nature of legal education, and the organization of law practice would have to be probed carefully...
...Perhaps some dedicated author is typing the final chapter of the masterwork at this moment...
...The account moves carefully to 1895, when the Supreme Court signaled the triumph of corporateBar, laissez-faire constitutionalism by its decisions...
...and Richard D. Olney...
...This work would not have to be written from scratch, of course...
...What changes were taking place within it, and what was happening to the bench, especially the state and lower Federal courts...
...And, in a provocative concluding chapter, Paul argues that the "neoFederalism" promoted by the legal conservatives of the 1890s-a departure from the "traditionalism" of the Bar before the 1880s-played the decisive part in making the courts laissez-faire until the 1930s...
...Another was Clyde Jacobs' Law Writers and the Courts: The Influence of Thomas M. Cooley, Christopher G. Tiedeman, and John F. Dillon Upon American Constitutional Law, which appeared in 1954...
...It is more likely, though, that a study of this scope will have to wait the writing of special monographs to pave the way yard by yard...
...In the next decade, a struggle both intellectual and political was waged within the American Bar over the direction that public and private law would take in response to the use of property and economic power by the financiers and industrial captains of the late 19th century...
...History would be only part of such a study, however...
...It will trace the emergence of what Tocqueville called the "American aristocracy" of lawyers, the single most important check on "the democratic element" in pre-Civil War America...
...During one term, the Court struck down the Federal income tax (the Pollock case), cut back the coverage of the Sherman Anti-Trust Law (the E. C. Knight case), and upheld the contempt conviction of Eugene Debs for leading the Pullman strike (Debs v. U.S...
...The book will conclude with a snapshot of the contemporary legal community in all its power, variety and internal conflicts...
...In addition, the central focus on law journals precluded Paul from asking the larger questions: What was the nature of the legal profession during the years 1887-95...
...It is a welcome addition to the literature on the Bar...
...Now, reflecting the rising interest of political scientists and historians, comes Arnold Paul's Conservative Crisis and the Rule of Law: Attitudes of Bar and Bench, 1887-1895, a work which was cowinner of the Albert J. Beveridge Award of the American Historical Association for 1959...
...And that master study of the place of the lawyer in American politics would be closer to realization...
...Paul's book has the strength of detailed focus and the precision of the Phd thesis...
...the 1830s or 1920s would have been both fresher and more challenging eras to explore...
...If more American historians would focus on such social histories, as well as on the concrete impact of Supreme Court decisions, and spend less time on orthodox discussions of case doctrines, we would know more about the constitutional process in America than is presently discerned by the historical literature...
...While the case-law and ideological developments which Paul treats have been sensitively probed before by writers such as Twiss, Edward S. Corwin, Robert McCloskey, Charles G. Haines, Howard J. Graham and Benjamin Wright, Paul's contribution comes in showing the splits within the legal profession over the "new jurisprudence...
Vol. 45 • November 1962 • No. 24
