In case you missed this in your summer reading, the historian, Neil Ferguson, writes in his new book, "The Great Degeneration: How Institutions Decay and Economies Die," that lawyers are responsible for the declining respect for America's once proud "benchmark to the world": The Rule of Law.
As Ferguson tells it, too many lawyers in Congress (37 percent in the Senate, 24 percent in the House) have led to the "rule of lawyers," which in Ferguson's mind is harmful to the public. He does not explain why. Perhaps, he thinks this point too obvious to require explanation.
And although Ferguson rightly acknowledges that there are fewer lawyers in Congress than there were from the sixties to the early seventies when lawyers constituted somewhere between 40 and 50 percent of the Congress, he still concludes that there are too many.
Call me prejudiced, but, if I were to choose one group of professionals to dominate the Congress, it would be lawyers. In fact, during the post WWII period in which lawyers, according to Ferguson, filled the Congress, the Rule of Law was extremely well served.
For example, the 92nd Congress (1971-1972) protected the Rule of Law by exposing and reigning in outlaw conduct of the both the FBI and the CIA and ultimately impeaching President Richard Nixon. And the lawyer-filled 89th Congress (1965-1966) assured that minorities and women had the right to participate in the lawmaking processes that governed them through the enactment of the Voting Rights Act of 1965.
I believe the decline of lawyers in Congress over the last decades is one reason tribalism has replaced nationalism in addressing our national problems. (Six members of the bipartisan Gang of Eight who negotiated the immigration bill recently adopted by the Senate are attorneys.)
There is nothing radical about this view. Lawyers have always played prominent roles in our governance history, dominating, for example, the Constitutional Convention and the congresses that followed. And it was their importance in governance that led Alexis de Tocqueville to question whether America's democratic institutions could be maintained without the presence of lawyers in Congress. The 21st Congress which he observed, was comprised of 281 members, 183 of whom were trained as lawyers.
Here is why being a lawyer matters. The commitment of lawyers, like legislators, is to represent others. They are ethically and constitutionally bound to do so. Like legislators they are entrusted by those they serve to solve problems.
Lawyers are also trained to represent. Much of law school focuses on problem-solving skills. Law students are taught, and lawyers spend their careers honing, the skills of discerning the facts of a problem and searching for an appropriate legal solution, whether the problem is how to protect an interest, remedy a wrong, or reform the law. Such training is not limited to identification of problems or their possible remedies, but also includes the companion skills necessary to address these problems through the processes of our legal system, including written and oral advocacy, fact investigation, marshaling of relevant evidence, collaboration, negotiation, and perhaps most importantly, compromise.
More importantly, today, lawyers are the only group of Americans whom, as part of their education, are required to study the Constitution, and the institutions of government, the governing processes, federalism, the bill of rights, and the principles of governance.
This civic education is critical to maintenance of our democratic institutions. Knowledge about our government has long been seen as the lynchpin for meaningful public engagement in America's democratic institutions and for protecting the Republic from the despotism of the one or the many.
"[A] people who mean to be their own Governors must arm themselves with the power knowledge gives" wrote the lawyer and Father of the Constitution James Madison. And this view was shared by almost all of the Framers (over 60 percent of whom were trained as lawyers) whom, according to the historian Gordon Wood, believed that "Monarchies could exist with a corrupt and ignorant people, but republics could not."
It was this same view that informed the founding of the American public school systems in the early mid-18th century. "A selection of essays respecting the settlement and geography of America, the history of the late revolution and of the most remarkable characters and events that distinguished it, and a compendium of the principles of the federal and provincial governments should be the principle schoolbook in the United States" wrote Noah Webster, a founder of American public education.
No one really questions this fundamental of American democracy. And studies show that the American public shares this view. For example a poll taken of 1,000 registered New York voters in 2010 by the Brennan Center for Justice found that a majority "believe that, for American government to work, citizens must be knowledgeable about the U.S. Constitution."
This same view is embedded in our state laws. Section 801 of the New York State Education Law, for example, requires the study of the "history, meaning, significance and effect of the provisions of the constitution of the United States" which according the New York State Regents is intended "to give students the knowledge, intellectual skills, civic understanding, and disposition toward democratic values that are necessary to function effectively in American society."
But in effect in New York as elsewhere, this rule of law, and I would add moral obligation, are ignored.
Public schools throughout the nation have abandoned this mission of assuring the civic literacy, leaving lawyers as the only segment of society receiving such formal training.
Although this abandonment of civic education has been occurring over decades, it has accelerated in recent years with the increase of federal money dedicated to support math and science education. As Justice Sandra Day O'Connor has observed, the emphasis on math and science has effectively "squeezed out civics education because there is no testing for that anymore and no funding for that."
Most Americans and New Yorkers know little about their Constitution. The Brennan Center study found that only one third of New York registered voters knew that creating a stronger federal government was one of the Constitution's goals and less than half had basic knowledge about the branches of government.
This civic illiteracy helps to explain the lack of public engagement in the political process and our growing national factionalism. As a 2002 study by the Carnegie Corporation and the Center for Information and Research on Civic Learning on the importance of civic education concluded: "In recent decades…increasing numbers of Americans have disengaged from civic and political institutions…and political and electoral activities…."
Civic illiteracy also undermines our sense of nationhood.
Americans are not joined together as a people by birth or religion, or blood, or soil. They are bound together as George W. Bush noted "by ideals that move us beyond our backgrounds, lift us above our interests and teach us what it means to be citizens."
The consequence of this public disengagement and diminished sense of nationhood is a rise of factionalism, or as it is now called tribalism. The defining hallmark of such factionalism is, as described by the New York Times columnist David Brooks, each group member seeing "reality in ways that flatter the group [and] nurture the resentments that bind the group."
This is the very vision of human nature that the Framer's designed a complicated form of government to thwart and that civic education is intended to counteract.
It is this dramatic failure of our education system to provide such education that has led retired Justices O'Connor and David Souter to dedicate the remainder of their careers to civic education. ??? "How," asks O'Connor "are we going to have a knowledgeable, participatory population if we don't teach every generation about what our system of government is?" The consequence of the failure to do so, adds Souter, is that "the republic can be lost, and is lost."
It is disturbing to hear a justice of the Supreme Court predict the end of the American Republic. But this warning does no more than echo the warnings of the Framers that factionalism could overwhelm our national democracy.
And this is happening right now, in Congress. As two of America's top congressional scholars, Thomas Mann and Norman Ornstein, have recently reported, Congress is being overrun by "political expedience…[and] tribal hubris."
The result is a war of attrition with the various tribes trying to win by wearing down the others. As this war goes on Congress is doing what it is expected to do under such circumstances, nothing.
Electing more lawyers to Congress is the only ready antidote. They are the only Americans who receive both the training and education required for the job. They understand the idea that a compromise will often produce a greater good for all and for each of us, in contrast to failing at all to legislatively address our serious national problems.
Eric Lane is dean and the Eric J. Schmertz distinguished professor of Public Law and Public Service at Maurice A. Deane School of Law at Hofstra University