FROM OUR MAY 2018 PRINTED EDITION
Lawyers Running Amok
Democracy vs. Oligarchy
by David Arnold
This is the third in a series of articles on democracy in the United States. The first was “The death of democracy in the Probate Court,” posted at http://tinyurl.com/yc5c3lom.
The second was “We the people and accountability of lawyers,” posted at http://tinyurl.com/ybg8llwm.
We have all been taught since childhood that the United States is a democracy. I used to just accept that without questioning it. However, democracy is not automatic. It is a constant struggle to make sure no individual or entity takes control of the whole government.
The United Stated has the structure of a democracy with three different branches of government. There are supposed to be checks and balances between the three branches to prevent abuse of power by any one of the three branches of government.
The tripartite system of government is commonly ascribed to the French political philosopher Baron de Montesquieu. Having three branches of government is a necessary but not sufficient condition to insure a democracy. Montesquieu pointed out an additional requirement. The personnel of the three branches must not coincide. If a single person or entity controls all three branches, this destroys the checks and balances. The government ends up being an oligarchy.
The website http://tinyurl.com/y7fu3eak claims that this has, in fact, happened in the United States. This article, entitled “America is now an oligarchy,” states:
- An oligarchy (Greek oligocracy) is a form of government in which power effectively rests with a small elite segment of society.
- Lawyers currently make up approximately only one third of one percent of the population of the United States.
- Lawyers currently control over 85% of all local, state and federal government, including the legislative, judiciary, and executive branches. The remaining 15% all use lawyers as policy advisers and authors of any new laws.
The Judicial Branch is obviously controlled entirely by lawyers. You don’t have to look at very many biographies of legislators to realize that the majority of legislators are lawyers. The legislature is supposed to represent a cross section of the general public. It is clear that two of the three branches of government are controlled by lawyers. A disproportionate number of governors and presidents are lawyers. The office of the district attorney in the executive branch is controlled by lawyers.
A government controlled by a profession that constitutes only a third of one percent of the population is not a government “of the people, by the people, for the people.”
The danger that the United States could end up being controlled by an oligarchy was recognized very early in the history of our country. The article starts with the quote, “It is a very dangerous doctrine to consider the judges as the ultimate arbiters of all constitutional questions. It is one which would place us under the despotism of an oligarchy.” – Thomas Jefferson, letter to W. C. Jarvis, 1820.
The legal profession is entirely self-policing. This violates the principle that no entity can be its own judge. In my article on “We the people and accountability of lawyers,” I pointed out that the Constitution does not deal with the special case of lawyers. Although the original Constitution does not deal with this issue, archival research expert David M. Dodge claims that the “missing” 13th amendment of the Constitution was intended to prevent lawyers from serving in government.
On the website http://tinyurl.com/y7wvtb8d, David M. Dodge states the following:
“If the evidence is correct and no logical errors have been made, a 13th Amendment restricting lawyers from serving in government was ratified in 1819 and removed from the US Constitution during the tumult of the Civil War. Since the Amendment was never lawfully repealed, it is still the Law today. The implications are enormous.”
The amendment is also called the “Titles of nobility amendment.” The Wikipedia article on the amendment is posted at https://en.wikipedia.org/wiki/Titles_of_Nobility_Amendment.
The amendment was passed on a vote of 19-5 by the Senate on April 27, 1810 and on a vote of 87-3 in the House of Representatives on May 1, 1810. The Wikipedia article disagrees with the interpretation by David Dodge that the intent was to prevent lawyers from serving in government. By December 9, 1812 the amendment was ratified by 12 of the 13 states needed for ratification. The Wikipedia article says that the amendment was never ratified by the required number of states. However, David Dodge has shown that the proposed 13th amendment was printed in copies of the Constitution up until the Civil War when it was replaced by the current 13th amendment prohibiting slavery.
The controversy over the meaning of the amendment and whether it was ever fully ratified may never be resolved. However, if lawyers had been prevented from serving in government, we would not now be living in an oligarchy ruled by a single profession that does not represent the population as a whole.