The Lawyer as a Staff Officer of National Defense


By JAMES M. LANDIS, Dean, Law School of Harvard University

Delivered at the annual dinner of the National Lawyers' Guild in New York City on May 31, 1940

Vital Speeches of the Day, Vol. VI, pp. 570-572.

IT is difficult these days to think or to talk consecutively. The familiar designs of living that we had formulated for ourselves suddenly seem worn and lifeless, and the lightning-like rapidity of events tends to break up the substitutes that we fashion for ourselves more quickly than we can utter them. True, we trudge on upon our accustomed paths not knowing what else we can do, but the meaning of our effort seems strangely to have disappeared and the paths themselves seem more like treadmills than ways for realizing the dream of a better living that was so recently held.

It is idle to try to conceal the sense of spiritual destitution that tends to encompass us. Obviously it springs from our concern with the outcome of the battles abroad. Until a few weeks ago most of us had tacitly accepted the idea of an Allied victory that might, perhaps, be slow in coming but was certain ultimately to arrive. Indeed, after our disappointment over Munich we tended to welcome the challenge at last flung down to the continuing advance of the arrogant totalitarian powers, confident in our assumption that at last a permanent check was to be placed upon this ever-growing threat to our democratic way of life. The easy acceptance of that assumption permitted us to keep from thinking too hard about the implications of that contest. In many quarters war overseas was welcomed as likely to boost our industrial rate of progress. In other quarters we permitted ourselves the luxury of thinking that nothing of real consequence to us was involved in that contest. Some of us glibly talked about the struggle as being nothing but a conflict between two imperialisms. Others as glibly justified nonchalance as a national policy by speaking of the necessity for preserving ourselves to play the role of the impartial arbiter in the peace that was to come. Behind our broad and seemingly impassable seas we felt ourselves immune from danger, spectators in a drama whose outcome seemed so foreordained that we could pursue our ways unconcerned by the casual ebb and flow of its tide. Indeed, only a few months ago a candidate for the highest political office in our land assured the American people that the war was none of their concern, that domestic issues alone were of moment and that the efforts of others, including the President of the United States, to arouse them to the implications of that conflict were simply attempts to draw red herrings across the trail of alleged failure in the solution of the pressing issues of the domestic scene.

Within a few weeks all this has changed. The thunder of guns abroad is heard day in and day out. Desperately we are trying to understand its meaning to the maintenance of our ways of life. It is no secret that the events of these past weeks have found us both materially and spiritually unprepared. The reversal of that situation has thus becomean imperative necessity and it behooves us to consider just how each citizen, each profession can play an appropriate part in that process.

It is not my purpose to attempt to outline to you what steps as a matter of national policy I think we should take at this point in our national history. Others far more competent have already elaborated that theme. To the concept that at whatever cost and whatever sacrifice our means of defense should be rehabilitated and redesigned to meet any potentiality of danger that threatens, I take it we are pledged. There is no other choice, for honor and fair-dealing have gone from the international scene and power and power alone today is heard. And that power we must and shall create.

But more than this is needed. Behind the program of national defense must be welded both a sound economy and a nation confident of its destiny. In that area it seems to me that the legal profession can play a unique and powerful role. Let me tonight try to develop this theme.

To press opportunities and to enunciate duties requires one in part to guess the direction of events for the future. The latter is always a hazardous process in which one is bound in part to be wrong; but it becomes essential to try to do so if we would master rather than be mastered by the forces that will control us. As we look back now two decades to the period that succeeded the World War we can see certain definite changes that took place in American life, that stemmed in the main out of that effort and that continue to the present time. It took years for us to become conscious of them and to recreate our institutional life to make it accord with them.

Among them was the growing insistence upon nationalism against which such a counter-irritant as the League of Nations was powerless. In this country it produced a degree of isolationism in political and economic thought, perhaps more intense than that in any other period in our history. The consequences of that insistence upon nationalism were not evident in our economic life until the crash of the late twenties; its consequences so far as it affects the problems of defense are only now becoming apparent.

A second of these forces was the increased industrialization intensified by the war. Mass production and mass consumption are both post-war in their real impact upon our industrial system. From an economic standpoint they sharpened the incidences of prosperity and depression: from a legal standpoint they necessitated a much broader expansion of governmental activity than anyone three decades ago could have envisaged. Monopoly, collective bargaining, private finance all suddenly became problems in which government had to take a hand.

A third of these forces might be characterized as a growing consciousness of the power of government so to order affairs as to gain benefits for groups and classes of its citizens. True, for years its powers in that connection were known by a few as our tariff history makes amply eloquent, but it is only comparatively recently that masses of people have been able to calculate in terms of tangible benefit the consequences of being governed in their interest rather than in the interest of others. The demand that there should be means devised to bring about a more equitable distribution of this world's rewards thus passed from academic discussion to the forum of political debate and political action.

It is amid pressures of this character that we have had in the last few years to rethink the meaning of our democratic way of life. And it is certain that these particular forces will gather enormous impetus in the next months and years as preparation for defense will absorb our energies. It becomes thus doubly important to rethink the meaning of democracy in this new context for unless we understand ourselves and have a firm vision of our destiny, we can scarcely hope for that affection towards our national institutions which more than anything else provides the sinews of defense and the will to survive. I do not think that I can under-emphasize the significance of this duty. To me it is, perhaps, the paramount obligation that is owed and one which the lawyer more than anyone else can effectively discharge.

I speak of the lawyer as having the capacity to articulate that concept because his training has been such as to give him an appreciation of the importance of continuity in human institutions. I suppose that in every lawyer's heart is embedded somewhere an affection for the thing that we call the common law. Kent and Story and Nottingham and Mansfield held the same affection but the common law of their day, if viewed in terms of its existing rules and orders, was a wholly different thing than the common law of our day. The affection that they possessed for it, as the affection that the lawyer of today holds for it, attached to something else than to the existing rules that ordered human conduct. It attached rather to a method of dealing with claims, a method that sought to get a realistic appraisal of them in an atmosphere free from bias and partiality, and sought to resolve them in a manner that would commend itself to the rationality of the human mind. This, I believe, is what we think of when we talk of the common law. Differences in its content from age to age become immaterial; but the method, the atmosphere, the rational aim endure. When and only when these latter characteristics will have disappeared, will the common law too have come to an end.

Democratic government partakes of the same characteristics. The democratic way of life held one content in the days of Jefferson; quite a different content in the days following the Civil War; and still a different one in the days following the World War. Yet throughout this century and a half of our existence certain qualities have always remained the same and it is because of the persistence of those qualities that we find continuity in our manner of living and in the aims that we seek to realize.

It is important to segregate the enduring qualities of that conception of living from those that characterize the manifestations of that process as of a particular time or place. We have been too loose and free in confusing them in the past. Not long ago the income tax was said to violate our democratic traditions; only recently many of the social reforms of the present administration have been similarly characterized. A little history, a little sense of the continuity of our institutions should suffice to demonstrate the error of such methods of thinking. But so to confuse hasbecome more than the commission of mere error. Democratic and anti-democratic has today become the dividing line between friend and foe, for whether we will or not we are already at war along this front.

That factor alone makes it imperative to analyze what we mean by our slogans. But also in these days when men are fighting and dying for what to themselves they call the democratic idea, it is a simple duty of appreciation of their sacrifice that by careless use of words so deeply writ in blood we should not cheapen and thereby desecrate their memory. To designate a movement for social reform as undemocratic, to designate a particular end as undemocratic, is thus not only to put it in the realm of the treasonous but to limit the conception of democracy to such a narrow field as to make illusory and meaningless the great promises of American life.

One further factor that makes it important to articulate to ourselves and to others our faiths, springs from the aftermath of the World War. The disillusionment that normally follows every such great effort struck with unusual vigor in the years of peace that followed. We hoped for so much from that effort and we gathered so much less than we had hoped. And because we failed in part, we wondered whether the idealism that had spurred men on to great deeds was only a hollow sham. Our younger generation, perhaps, felt this more than those who had still carried over from those days some sense of their meaning. The depression heightened and intensified the disillusionment that already was there. In the lengthening bread lines, in the ranks of bonus armies, men wondered whether there was any reality inherent in the idea of democracy for which such sacrifices had been made. That in these last years we have partly shaken ourselves away from that grip of disbelief in the future of our institutions that lay as a pall upon us in 1933, is something for which today we can be truly thankful. But the last of that disillusionment in the significance of the democratic idea must still be wholly swept away if once again we would feel our strength as a nation.

These factors to my mind make it important that we pack meaning into our words. Such words dare not now be used idly. They must not now be employed cheaply and to confuse. What then do we mean by the democratic faith? And can the lawyer pierce beneath the froth of words that surrounds it to lay bare its realities and their relationship to our living?

It opposes itself, of course, to philosophies such as are represented by terms such as Nazism, Communism and Fascism. An examination of their content by comparison would tend to make clear the nature of the democratic idea. Suppose, however, we attempt to analyze the idea itself and try to discover what are the essential ingredients that distinguish it and therefore endear it to our hearts. Surely it is not a particular economic emphasis or arrangement. It is too evident now for argument that the immunity of enterprise from regulation, the economic tenets of laissez faire, are not its hallmarks. It has encouraged rather than dissuaded the participation of persons other than the entrepreneur in the business of industrial management—the consumer through the processes of government, labor through its fostering of collective bargaining. Even limitation of rewards is not incompatible with its faiths. The demand for such limitation upon the business of producing armament has already been voiced and from sources as true to the democratic faith as any of us. In other ways too we have sought to make rewards more conformable to the value of the contribution and effort they represented. These things are merely manifestations of the way in which through thedemocratic processes we seek as of a particular time and place to work out our destiny, not things that distinguish the democratic process itself from others.

But a searching of history will reveal some of its undoubted characteristics. First among them is the significance that it attaches to the rationality of the individual. It posits him from the outset as a rational human being capable through collective action with his fellows in finding the most appropriate answers that government can give to the realization of his ideals. This rationality that it presupposes is integral to the whole scheme. From it flows, for example, the insistence that we place on toleration. A faith in rationality admits therefore no divinity of race. A trust in rationality calls for a free people, free institutions, free inquiry. And it must therefore hold inviolable the pursuit of truth through freedom of expression and freedom of association. Its heresies are hence not heresies of belief but the heresy that would bend the minds of men to the dictates of another.

Secondly, I would place its insistence upon the dignity of the individual as one of its cardinal faiths. For that reason it invites him to participate upon equal terms with his fellows in the fashioning of restraints, in the employment of the common resources to serve their ends, indeed, in formulating and articulating those ends themselves. In its refusal to outlaw men from the decencies of human society because of economic position or race or creed, it speaks, it is true, in terms of equality but in those terms because equality is necessary to make real the dignity of the individual. In its demand for equal treatment of all men under the law, that same emphasis is present. For letters de cachet, for bills of attainder it substituted trial by one's peers, which when translated into democratic terms, is trial by one's fellow-men. The dignity of the individual too lies beneath its demand that men shall not be subjected to unreasonable search and seizure and that they shall be secure in their person and their property against arbitrary and unjustified action.

Thirdly, I would place as another of its intrinsic characteristics its faith in a legal order. Compacts of government have followed the American folk from the days of the Mayflower. These compacts have uniformly been self-imposed, seeking so far as possible to lodge power in representative institutions in order that the dignity of the individual would be thereby enhanced and not destroyed. They have thus made it possible to build a great nation out of the anarchy of a wilderness. But faith in the legal order does not imply a denial of progress or of change. To endure a legal order must be flexible enough to meet the demands of a growing, dynamic society. It must afford within itself mechanismsadequate to permit necessary change but that change must follow orderly lines, for the very faith that insists upon a legal order must by that very act deny the right to seek change by resort to means which it was set up to supplant. An enduring legal order thus becomes essential to the maintenance of those values that flow from reliance in the rationality and the dignity of the individual.

Fourthly, I would put as another cardinal conception of democracy its insistence upon the fact that the government it has fashioned exists to make possible a fuller, richer life. Its purpose is to serve and not be served. It affords the means whereby we seek to put into practice minimal standards for living and gradually by such wisdom as we may chance to acquire we continue to elevate these standards to make possible a greater and a wider utilization of this world's goods. Starting with the effort to guarantee the right to pursue happiness we have reached after the goal of trying to give some assurance that that pursuit shall not be wholly in vain.

These seem to me some of the major characteristics of the democratic faith. They are, of course, poorly and inadequately expressed. Their more perfect expression is urgent in these days when we must openly and clearly reaffirm our faith in the meaningfulness of our loyalties and our affections. In that process it seems to me that the lawyer is both priest and sponsor. It has been his privilege to try and gather the meaning our our institutional life, to understand how law has been moulded to make possible the realization of age-old ideals. He should understand more clearly than others the significance of an emphasis upon the merit of the individual and the necessity for reliance upon the rationality of the human mind. His is, in the main, the duty of effectuating through law the realization of men's desires for a fuller and a happier life. Insofar as he performs these functions he is a staff officer for national defense, for he has thereby made plain to men's mind the ideals and the institutions whose preservation is worthy of any sacrifice.

The task that he thus must assay is not an easy one. To pack meaningfulness into the democratic idea calls for more than the repetition of slogans. Wisdom and not prejudice must guide his actions and his words. Accomplishment and not defeatism must mark his handling of the mechanisms of government. His capacity to meet these demands will test the enduring quality of his leadership; his willingness to accept that challenge will measure the depth of his patriotism; and his conscientiousness in the discharge of these obligations will try his ability to be true to the traditions of a great profession.