James May-June 2023 web - Flipbook - Page 53
ay-June James magazines in recent
years focused on “law and politics”
by highlighting many prominent
Georgia attorneys in practice areas
with strong political presence. Left unexplained or merely
covered by inference is where, exactly, law and politics
intersect for the reader and for the individuals highlighted
in those past issues.
Let me set the stage. Political law (or political activity
law) is an established legal practice area encompassing
the intersection of politics and law. Political law comprises
election law, voting rights law, campaign finance laws,
laws governing lobbying and lobbyists, open government
laws, legislative and executive branch ethics codes, legislative procedure, administrative procedure, constitutional
law and legislative and regulatory drafting. And political
laws are applied primarily to government officials, candidates, advocacy groups, lobbyists, businesses, nonprofit
organizations and trade unions.
Thus, the focus of this column is not on political activity law and political activity lawyers. Instead, the publisher
requested that this column focus on the following related
and key questions:
Isn’t a nation of laws bound or destined to be overwhelmed
by individuals educated and trained in the law?
At the national level, neither the legislative, the executive nor the judicial branches of our government require
a member to be an attorney. Members of any of those
branches are not even required to have demonstrable legal
knowledge. Instead, Articles I and II of the U. S. Constitution merely set age, citizenship and residency requirements
for eligibility. And Article III, which creates the judiciary, is
silent as to those qualifications as well as any requirement
for legal knowledge. As a result, by the 1960s, less than 60
percent of U.S. legislators were attorneys, and by 2016 that
number dropped to less than 40 percent. As of 2017, only 27
percent of members of Congress had a law degree.
As to Article II, only 26 of the 46 men to hold the office
of president of the United States have been lawyers. Before
taking office, many of our other presidents previously
served as soldiers, farmers, businessmen or teachers.
Finally, ten of the justices of the U.S. Supreme Court served
without ever obtaining a law degree. Some served without
prior formal legal training or prior judicial service.
Meanwhile, at our state level, neither the governor nor
the members of the General Assembly are required to have
any formal legal training, nor are they required to be members of the Georgia State Bar. And while Georgia judges
are predominantly attorneys and required by law to have
practiced for a certain duration of time, most jurists sitting
in Municipal Courts, Magistrate Courts, Juvenile Courts,
Probate Courts, State and Superior Courts, and the Georgia
Court of Appeals and Georgia Supreme Court are elected.
So, to what extent has the politic established by the
people and for the people morphed into formally educated
and trained “lawyer-run” Big Government? Or, has the
stated “nation of laws” allowed the practice of law and an
education of law to assume its rightful place and proportion in our governance?
In our infancy as a country, Marbury v. Madison, 5 U.S.
137 (1803) established the power of the federal courts over
other branches of government to interpret the nation’s
laws. “It is emphatically the province and duty of the judicial department to say what the law is,” Chief Justice Marshall wrote. “Those who apply the rule to particular cases,
must expound and interpret that rule. If two laws conflict
with each other, the courts must decide on the operation
of each.” Today, thanks to Marbury, the federal courts’
authority in this regard is undisputed. The developments
thereafter predictably, if not inevitably, led to a “lawyering
up” of all three branches of our political governance.
Consequently, perhaps in the mid-19th century, almost
80 percent of members of Congress were lawyers. So,
tracking the growth from Marbury through the middle of
the 19th century, it may have appeared that through the
“check” move of Marbury, government “by the people”
was surely destined to become government by those identified as elite who are legally-educated and/or trained.
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