In his latest book, American Lawyers: Public Servants and the Development of a Nation (ABA Publishing), Professor Paul Carrington illustrates the role lawyers have played in the development and preservation of democracy and social order in America.
In more than 200 short essays, Carrington chronicles lawyers’ engagement in designing and developing American democratic government and law from the nation’s founding to the end of the 20th century. He also notes their missteps, from the perpetuation, by some, of slavery to the American Bar Association’s demand for “loyalty oaths” during the McCarthy era, to Watergate.
Carrington, who served as dean of Duke Law School from 1979 to 1988, says the book had its genesis in that period, when he oversaw the introduction of legal ethics into the curriculum. “At times I had a feeling that what we were talking about were lawyers who were right at the margin of doing the wrong thing,” he says. “So I started teaching it as this sort of history course, studying the careers of people who had tried to do something reasonably interesting, some of them succeeding.” His subtitle, he notes in his preface, poses a question for readers: “Has the American legal profession served the public good as John Adams and George Wythe envisioned” in the 18th century?
That lawyers would be central to the development and preservation of democracy and social order in the United States was always a given, Carrington notes. “If you’re going to have an orderly social order, you’re going to have rules, and somebody has to know what they are and participate in their enforcement. That is the indispensable role of lawyers.” And almost everybody who participated in structuring the Constitution or writing the Declaration of Independence was a lawyer, he points out, with the notable exceptions of George Washington and Benjamin Franklin.
Carrington celebrates Wythe, who helped craft the rules and procedures for the Constitutional Convention, as having pursued public service vigorously throughout his remarkable career, and for passing that goal on to his numerous students and protégés.
“There will never be another law teacher as important as George Wythe,” Carrington says. As Thomas Jefferson’s teacher, mentor, and friend, Wythe’s influence (and Quaker connections) can be seen in the language of the Declaration of Independence. Jefferson later appointed Wythe, an early abolitionist, to be the professor of the law school he founded at the College of William and Mary, where he taught John Marshall, a subsequent colleague. As chancellor of the Commonwealth of Virginia, Wythe hired and mentored Henry Clay for several years; Clay went on to found the law school at Transylvania University in Lexington, Ky., which produced an exceptional number of politicians.
Many of the early legal heroes Carrington profiles, such as Wythe, Thomas Cooley, and Abraham Lincoln, never formally studied law. Asked what made them good lawyers, Carrington points to their ability to sense what other people were thinking and what they actually meant or intended. “That’s how you deal with disputes,” observes Carrington. “A good lawyer in a dispute situation understands what motivates the adversary. You have to be attentive to what other people are thinking and wanting. And then you also have to be willing to read and think about legal texts, whether it’s a judicial opinion, or a statute, or an administrative ruling. You have to read it and think about what they were trying to say.
“It’s that personality trait that I think is really central to being a good lawyer ─ in the 18th, 19th, 20th, and 21st centuries. It’s still important to be able to figure out what someone in the room is thinking about.”
Carrington ends his book with a discussion of the career of his late friend, John P. Frank “as a model of what you can do with your life.” A constitutional scholar and civil libertarian, Frank at various times fought against wartime internments and McCarthyism, and for the desegregation of legal education and for the entry of women into the legal profession. A member of the legal team in Brown v. Board of Education, he was a leading Supreme Court advocate whose victories included Miranda v. Arizona in 1966.
“He had a kind of moral tone about what he was doing that you had to admire,” Carrington says. “He was trying to do the right thing wherever he was and in whatever he was doing. I offered George Wythe as a model at the outset, but he’s a little premature. What John Frank was doing are things that lawyers around the country are still doing.”
Prospective law students are among the readers Carrington had in mind as he was writing American Lawyers, he says
“I would like people coming to law school to be thinking of it as a step in the direction of public service. That should be part of what they want to do. You don’t have to be doing government work or be fully committed to that in order to be engaged in public affairs. I want prospective law students to see that there are lots of different kinds of ways to be publicly useful and to make the country a better place. The ABA tries to get lawyers involved in public affairs, as does the American Law Institute and others. You just have to project yourself out of your immediate tasks and get involved.”