Although Susan has already covered Scalia’s recent ramblings, I was planning to do as well, so I’ll throw a few more thoughts in.  Much of what Susan said addresses how law rightfully attracts intelligent individuals.  She also takes a law and economics approach to explaining the social value that lawyering actually generates.  Although law and economics is nothing new on this blog, I think it’s also useful to return to first principles for a moment.  When returning to those principles, these types of comments from Scalia–a strong defender of personal freedom and respect for history–are even more incomprehensible.

When our nation was first created, we chose three essential principles to hold most dear: “life, liberty, and the pursuit of happiness.”  Our forefathers created this nation because we felt that the bonds of an oppressive government stood in opposition to the achievement of those fundamental goals.  Even though we may be free from the chains of the British crown, government and law are still potential tools of oppression.  Therefore, it becomes the duty of those involved in our legal system to ensure that those values are preserved.

“The public defender from Podunk” is one example of one of the last lines of defense against the destruction of liberty.  If that young woman “wasn’t really brilliant,” perhaps innocent men would be tried, jailed, and stamped with the badge of dishonor that a felony conviction is often taken to be.  That young woman might go out and “invent the automobile,” but our country may face a horrible tradeoff for those four wheels: we may have more of our citizens unjustly stripped of their three most important possessions: life, liberty, and happiness.  The criminal lawyer, therefore, is the protector of these personal rights from societal oppression.

I understand these arguments might seem most relevant in the criminal context, but I think civil lawyers do something terribly important as well.  If we go back even further to the First Continental Congress’ Declaration of Colonial Rights, we find a different description of our most cherished national belongings: “life, liberty, and property.”  The civil lawyer, therefore, guards against the unjust deprivation of the property that is rightfully his.  The civil lawyer, therefore, is the protector of these property rights from societal oppression.

For any devoted constitutionalist to disavow these cardinal values is deplorable.  For Scalia to use his position of power to espouse these views is just plain stupid.

-Michael

Update:  Now folks over at Volokh are talking about this, too.