July 2004

Seems like just yesterday

By Lindsay Thompson, Bar News Editor

It is not what a lawyer tells me I may do, but what humanity, reason and justice tell me I ought to do.
— Edmund Burke, speech in the House of Commons, March 1775

It was intended to be an expression of the American mind.
— Thomas Jefferson, on the Declaration of Independence, May 8, 1825

July 4 is our holiday. We should brand it: "Independence: brought to you by America's lawyers and judges."

Two and a half centuries ago, our predecessors played leading roles in justifying and enacting the unthinkable: revolution in an age when state and sovereign were, literally, the same.

Most of them were young, too: in an age when life expectancy was limited, you had to get about things in life. Thomas Jefferson was 33 the year he drafted the Declaration.

Jefferson's legacy reaches across the centuries to us. We have his Declaration; his great university, his books in the Library of Congress. This year we begin the bicentenary observance of his great presidential venture, Lewis & Clark's Corps of Discovery, and consider all its attendant, if unintended, consequences for the original nations of the Northwest. We ponder his life, an elegant, French-inspired hall of mirrors that obscures as much as it illuminates his views of liberty, slavery, wealth, and poverty. He inspired the globe with his call of freedom, yet owned slaves. He was land rich but cash poor, yet spent and lived like a prince. He envisioned an agrarian America of small farmers but was drawn to big European cities and the latest gadgets and manufactures. He edited the Bible to suit his own tastes. He was the embodiment of many of the contradictions that embody our country to this day. Whitman could have had the Sage of Monticello in mind: "Do I contradict myself? Very well then I contradict myself. (I am large, I contain multitudes.)"

John Adams, then 41, aided Jefferson in drafting the Declaration. Three years later, the Massachusetts lawyer drafted the Constitution of the Commonwealth of Massachusetts. His work, too, reverberates to this day and time: the governor of Massachusetts has spent months trying to prevent court-sanctioned same-sex marriages, only to be hamstrung by John Adams.

Having experienced the passions of crowds and the majority's demand that virtue is a function of numbers, Adams wrote the constitution to be really, really hard to amend. He required any amendment to be passed by two successive legislatures before being put to a vote giving people time to calm down and reflect a bit.

Fast-forward to Gettysburg, November 19, 1863. Lawyer Abraham Lincoln ensured that we now celebrate this 228th anniversary of independence as one nation, not two. His invocations of the mystic chords of memory gave him grounding at times when he felt he must break or suspend the law to achieve a higher purpose.

Fast-forward again, to the 1940s. Lawyer Thurgood Marshall and colleagues worked out a piece-by-piece strategy for dismantling the legal instruments of segregation. It took a quarter century to bring down the fortress. Other aspects of America's less admirable past persist in local traditions, resistant thinking, and things like antimiscegenation laws still on states' books 37 years after being declared unconstitutional. It's a nice irony that Massachusetts' law, passed in 1913, was revivified this year to prevent same-sex couples from other states marrying there.

Today some judges and lawyers try to freeze the Founders in amber: nothing they didn't know can exist in law. But the Founders were revolutionaries. They had prices on their heads. "We hold these truths to be self-evident," Jefferson wrote, "that all men are created equal, and are endowed by their Creator with certain inalienable rights …." They created a new thing under the sun. To the end of their days, Adams and Jefferson traded letters about the latest in arts, science, and human nature. They expected and embraced change.

Thus the genius of the American system: slow to change, yet always under pressure to do so. The victory of any point of view is, at best, temporary. We all live to fight another day. It's democracy as open-source software: anyone who has a better idea can toss it out there.

July 4 is my favorite holiday. I spent the Bicentennial Fourth on the Mall in Washington, a young congressional intern wandering from event to event with two college friends amid a happy crowd of two million Americans. July 4 is a stocktaking day, assessing the blessings of liberty and the threats to it. Lawyers and judges are on both sides of challenges to liberties we take for granted, in the name of safety and security. At the center of every debate we have in America, there are lawyers, judges, and courts, backing, filling, advancing, redefining, the remarkable expression of the American mind.

__________________________

Lindsay Thompson practices in Seattle and can be reached at tradelaw@thompson-law.com.

Back to table of contents >>