Be a Constitutional Lawyer
Jim Vickaryous
Shivering immigrants argue bitterly in a battered ship. It’s a damp and dark Northern Atlantic November day. Blown off course, providentially they shelter in a bay at the finger of Cape Cod. A man asserts that the law no longer applies, as they are hundreds of leagues north of their intended destination. The proto-anarchist states with legal accuracy that their royal charter does not apply to this winter wilderness. A man with military bearing rises to speak. Calming the angry passengers, he concedes that the charter is null and void. The veteran gives his rebuttal: considering their common peril, he proposes that all agree to a compact binding them together for their common good and defense. It is 1620. All 41 male Pilgrim passengers of the battered carrack Mayflower agree to combine,”… together into a civil Body Politick, for our better Ordering and Preservation.” Col. William Bradford, the handsome veteran of England’s long civil wars, convinced the group that having a constitution, even if only one paragraph, was better than anarchy. Common preservation is often the best argument.
Perhaps it was meant to be that the Mayflower Compact was signed on a cold winter day by a group of lost men. Lasting constitutions are rarely deliberated, drafted, and signed in good times. A great constitution is the result of struggle and a sober effort to maintain a balance between man’s inner yearning for freedom and guardrails to curb the excesses of men who don’t respect the freedom of others. It was the first example in our country’s history of a group of people creating a constitution for themselves to live by.
The U.S. Constitution, signed on September 17, 1787, incorporated the earlier example of the Mayflower Compact. Considering that John Adams, James Madison, and Thomas Jefferson were helping to draft it, the Preamble to the U.S. Constitution does a much better job than Col. Bradford in justifying the need for a constitution: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” The U.S. Constitution was the result of years of war and, afterwards, fits and starts of a new republic trying to find its way.
Whether in the cabin of the Mayflower, or on a hot Philadelphia summer day in 1787, or today, there have always been critics of the concept of having a constitution. Indeed, many of our nation’s eminent constitutional legal scholars believe that our Constitution needs to be scrapped. Many countries don’t have a constitution and seem to do just fine. Should we agree with those who want to throw our Constitution into the dustbin of history? Perhaps we could get by without a constitution.
I am highly biased on this topic, born into and being molded in a country and culture that still believes Col. Bradford’s thoughts that a constitution is necessary, “…for our better Ordering and Preservation.” I will give some simple reasons why we should keep our national Constitution.
Many believe that our Constitution is flawed as the men that conceived it and wrote it were evil men beyond redemption. This rhetorical argument is as old as time itself. The Latins were masters of what they called rhetorica and listed all the possible genres of arguments. In Roman classical rhetoric, if you had no rational arguments, the only argument would be ad hominem, literally, “to the man.” Ad hominem arguments appeal to our emotions and thus are very effective. If you don’t like a man, you may very well not like the rational arguments he makes. Our legal system wisely prohibits ad hominem arguments — such as focusing on prior bad acts during trial — for this reason. If we look closely enough, we all have faults that would cause people to doubt us. It would be difficult indeed to order a society that sees all people as unworthy because of personal foibles.
The critics’ main argument that our Constitution is corrupt because its drafters were irredeemable is actually the best argument for having and keeping a constitution. Baron de Montesquieu made this argument in his The Spirit of the Laws (1748), “That anyone who possesses power has a tendency to abuse it is an eternal truth. They tend to go as far as the barriers will allow.” In arguing for the ratification of our Constitution, James Madison said it in a very American way: “If men were angels, no government would be necessary.” Indeed, the best argument for a constitution is to restrain the power of those men with feet of clay who would have power over us.
Another simple argument for the need for a constitution is the innate need of every human to be heard. Our constitutional right to due process feeds the human need to tell their story and make their case. Due process guarantees a day in court — not a favorable outcome. As lawyers, we especially know that everybody has a story. It is a very good thing our Constitution gives us both the due process to tell our client’s tale in court, and the freedom to say it outside the courtroom. Other countries that lack a constitution may be perfectly fine without these guarantees. However, I quite enjoy living in a country where I get to tell my story any way I like, guaranteed.
Neither Baron de Montesquieu nor James Madison mentioned that it is a great joy as a lawyer to make constitutional arguments on behalf of a client. As the U.S. Constitution’s Bill of Rights guarantees many of our basic human rights, it goes to the essence of what human beings are all about. Years ago, I found myself in a packed country courthouse. The judge was calling up both misdemeanor and small claims cases. The courtroom was packed with manacled, orange-suited accused, lawyers of all stripes, and litigants looking for their day in small claims court. The judge called my client’s misdemeanor case first. I walked to the podium, introduced myself, and argued that the statute my client was being accused under was unconstitutional with regard to these particular facts. The packed courtroom went silent. All the orange-suited accused looked up in interest. It’s not often that a constitutional argument is made in these lower courts.
The judge smiled with academic interest and stated that he would like to hear my constitutional argument. What followed was an animated exchange of well-argued points as to the unconstitutionality or constitutionality of the arcane statute. After an hour of reasoned argument, the judge complimented my thoughts on the U.S. Constitution but declined to strike down the statute. “You are welcome to bring your arguments to higher courts than mine, counselor,” he said in a very kind manner. Later that day, the lead prosecutor called me and stated that the state was dropping the case. Using constitutional arguments may or may not win your case, but they are worth the effort in making.
Being a constitutional lawyer is as simple as believing we need a constitution to govern us, as men are not angels. Being a constitutional lawyer can be hard, as the concepts laid out in the U.S. Constitution are hard to live up to and challenging to make on behalf of clients. Let us remember that the U.S. Constitution is worth keeping, as it contains timeless protections needed to pursue our dreams. As in life, there is no guarantee of happiness, only a guarantee of its pursuit. I wish you all success in your pursuit of happiness. Let’s all resolve to be constitutional lawyers.
Jim Vickaryous is the managing partner of the Vickaryous Law Firm in Lake Mary and represents the 18th Circuit on The Florida Bar Board of Governors.
