Re my Creative Tax Avoidance post, a correspondent and I had this exchange:
HE: The problem with the scenario is it requires lawyers, and they take an even larger percent than the gov’t, ne c’est pas?
ME: Well, you could make it more complicated and kill the lawyer.
HE: no, no, no…Shakespeare has villians recommending that in HENRY VI Part 2, act iv: scene ii… much more effective will be to take Kant’s advice and recognise that an officer of the court serving in either the legislature or the executive branch is a conflict of interest and be forbidden. Someday I’ll push this as an initiative in [my] state and we’ll call it the “restoration of the rule of law” act.
ME: Interesting, never heard that before. Ban lawyers–members of the judiciary in a sense, as they are “officers of the court”–from serving in the other two branches on separation of powers grounds. I like it! However, the crafty critters wold no doubt get around it by finding a way to simply suspend their law license while in the legislature or executive branch.
HE: Suspend, no resign, so they must take the bar again… but anyway, sometimes a light touch is enough… create a sense that a lawyer in the other branches is as odd as a gentleman fitter in a lingerie shop… and give people the means to vent against lawyers each election, and see how many get elected against the opponents who point out “he is a lawyer”… the lawyers have overplayed their hand pretending to be indelibly different…let it stick.
I like it. My fellow lawyers by and large disgust me with their totally unwarranted arrogance and pretense that they have some special insight into what policy should be simply because they are trained to navigate the current messy legal system.
In law school we lawyers have the usual judge- and congresscritter-made legal rules drilled into our heads in courses like torts, constitutional law, etc. Now knowledge of the current legal landscape is essential, but lawyers too often confuse what is with what should be. For example over the decades the Supreme Court has developed the doctrine that even if the Constitution provides a specific prohibition on what government can do, such as censor free speech (First Amendment), the federal government can still validly and constitutionally infringe the right, so long as you can show that there is a “compelling state interest”. Now this is the highest test, and admittedly the way the Court construes it, usually federal laws and acts don’t satisfy this test. Other laws that do not infringe fundamental rights only have to pass the “rational basis” test, which is easy to pass.
These ridiculous tests and concepts are nowhere to be found in the Constitution, of course. Nevertheless, these standards are undeniably part of modern American constitutional law, and the lawyer needs to be familiar with them. Nothing wrong with that.
But what I have found to be one of the most annoying things during and since law school, is when an attorney drops that phrase to normatively justify a given policy. For example if you–as a citizen, as a libertarian, whatever–state that the feds have no right to outlaw drugs, or to redistribute income, or establish a minimum wage, whatever, often a mainstream (i.e., socialistic) lawyer will say, “Sure they do, since they have a compelling interest in regulating that activity.”
I find this so disingenuous, smarmy, and ignorant, as to want to smack him. The lawyer here is doing several things. First, he is simply trying to dishonestly use argument by authority to win the debate, by using lawyerly jargon that most laymen are not familiar with. This is despicable.
But second, and worse, he is revealing his ignorance and stupidity, and/or his disingenuity, by responding to a normative statement with a recitation of what the current legal standards are. It would be about as coherent and honest to reply to someone condemning Nazi Germany’s anti-Jewish laws and actions, with the point that the law was valid since Hitler–the lawgiver of that time–authorized it. It’s basically equivalent to stating that every given law is valid, simply because it is the current law. It’s legal positivism run amok, which is, of course, a disease most lawyers have.
Far from being more competent than the average person to decide what policy and law should be, as they pretend, lawyers are much worse than the average layman at this, given the brainwashing in socialistic, state-supporting propaganda and legal rules they are subjected to in law school. A minority of us have the fortitude, integrity, and intelligence to realize the difference between what the law is and what is should be, but most lawyers are despicably socialistic.
I guess I’m a self-hating lawyer!
12:07 pm on September 5, 2004
