The Honorable William Augustus Bootle
The following is the text of a speech delivered by Judge Bootle on April 7, 1995 as a part of a seminar on professionalism. It is reprinted here with his kind permission.
My sincere thanks for those gracious and most generous words of introduction. Those words will not harm me, if I do not inhale.
When Miriam Duke asked me several months ago to appear on this program, I said, "Yes, Deo Volente." She said, "What does that mean?" I said, "That means `God willing'." When a person, of my years, makes a commitment for an event, several months hence, that necessitates some protective proviso.
I
My subject is "The Beauty of Law, and of the Constitution, our Supreme Law." The beauty of law, not of the law. Certainly there are statutes, ordinances and regulations that do not burst forth with beauty. Let us think about law in a broad sense, law as a science. You have never heard a talk on this subject and neither have I. We will just have to take our chances and hope for the best. I have long wanted, and patiently waited, to hear some renowned scholar deliver an address or publish an article on this subject; but time is passing, and I am beginning to fear I shall never have that pleasure. So, please hear me while I say to you what I wanted so much to hear that distinguished scholar say.
I can say of my subject what the English essayist, Sir Thomas Browne, said in 1643 about one of his ideas:
[N]ot wrung from speculations and subtilties,
but from common sense and observation; not pickt
from the leaves of any Author, but bred amongst
the weeds and tares of mine own brain.1
A.
I found my subject in a poem:
A Fire-mist and a planet, -
A crystal and a cell, -
A jellyfish and a saurian,
And caves where the cave-men dwell;
Then a sense of law and beauty,
And a face turned from the clod, -
Some call it Evolution,
And others call it God.2
Why did the poet connect these two words "law" and "beauty" with the conjunctive, "and", indicating a similarity, or close association, a having of something in common? Can it be that law is beautiful? My answer is "yes" -- a thousand times "yes" -- majestic and beautiful.
Doubtless, the poet had in mind the natural, or moral law, but his phraseology is just as apt when applied to the more mundane, so-called, positive law, the law of constitutions, statutes, and judicial opinions with which lawyers and judges work.
B.
Just as surely as we find beauty in nature, in the sunrise, the sunset, the rainbow, the full moon, the flowers that bloom in the spring time, and the leaves that turn brilliantly brown and gold in the autumn; just as surely as we find beauty in art, in architecture, in music, and in literature; just so surely we find beauty at home in law.
As I see it, everything that is well organized is beautiful. Everything that functions well is beautiful. All harmony and proportion are beautiful; and so is every success in pursuit of a noble objective. By these exacting standards, law qualifies. Sir Thomas Browne confirms these views. He pictures himself as "amorous of all that is beautiful"3 and says: "[T]here is musick where ever there is a harmony, order, or proportion."4 Proportion is defined as the harmonious relation of one part to another, and of all parts to the whole.5 We do not find it in elephants or in speeches that are inordinately long. Edith Wharton, American author, speaks of "the mysterious demand of the eye and mind for symmetry, harmony and order."6 Music's beauty we see through the ear; law's beauty we see through the mind.
Law and art are not strangers. I hardly need remind you trial lawyers that while law is a science, advocacy is an art. The skill of a well-trained, experienced trial lawyer is quite as finished and polished as that of his brother artist who paints pictures on canvases with oils and brushes.
C.
Law and literature are inseparably intertwined. Law finds its identity and expression in literature. Literature is the outer garment, the raiment, of law. Law comes to us clad in fine attire. We work with it thus arrayed, and we transmit it from generation to generation, equally well adorned, we trust.
Some of the well-crafted opinions of able jurists belong on the library shelf, with other cherished and treasured writings. May I cite one, one-sentence example? In Trop v. Dulles,7 an otherwise non-famous case, Chief Justice Warren wrote: "[T]he [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."8 When have we seen more beautiful literature than that? When have we heard a sounder constitutional principle than that? "The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."9
Those evolving standards of decency have breathed new life into the phrase "cruel and unusual punishment." They have restricted capital punishment to truly heinous offenses and have declared it off limits to children. Those evolving standards of decency have freed black parents from the humiliating ordeal of explaining to their little children just why they had to go to the back of the bus; why they could not attend the school nearest their home; and why it was that, when they went into a store to buy a pair of shoes, they could not try them on to see if they would fit. Lena Horne, who grew up in Macon, says that in her youth her feet always hurt. Her shoes never did fit.
D.
One facet of law's beauty is its consistency - consistency ordered and shaped by the stabilizing influence of res judicata and stare decisis. Law is a harmony of legal principles. Each new law and each new interpretation of law should strengthen the whole as each thread strengthens a fabric. Each new law, and each new interpretation of law, should harmonize with the composite as each color, coming into the rainbow, enhances its charm.
Consider the organized structure of the American judicial system. If a lower court errs, there lies a series of appeals headed toward the Supreme Court. All holdings of all courts, state and federal, must comport with the United States Constitution. If there is disharmony among the thirteen United States Circuit Courts of Appeals, certiorari lies to the Supreme Court so that harmony is restored and consistency will prevail.
There are instances, of course, each century or so when law has to straighten out a threatened misdirection. This it did in the 1860's when it acceded to the mandate of the Civil War and turned away from the Dred Scott monstrosity. This it did again, nearly a century later, when it pulled itself out of the Plessy v. Ferguson10 injustice to reach Brown v. Board of Education.11 In thus correcting rare aberrations, law maintains its long range consistency. Law never rests until it has it right.
A second facet of law's beauty is its alivedness, its being alive. Law is anchored to the past, but is very much alive. It has stability with capacity for growth.
One of my granddaughters was studying law at Loyola in New Orleans. She telephoned and asked if I could help her in distinguishing in rem from in personam jurisdiction. I said, "Have you read Pennoyer v. Neff?"12 She said, "Granddaddy! Do you know about Pennoyer v. Neff?" I said, "Yes, Honey. It has been well over 70 years since I read it, but I know about it."
Perhaps our most rock-ribbed, foundation cases are: Marbury v. Madison,13 the judicial review case; McCullough v. Maryland,14 the implied powers and breadth of interpretation case; and Gibbons v. Ogden,15 the first interstate commerce case.
Law never departs from its anchorage, but that anchorage permits and promotes alivedness and growth.
A third facet of law's beauty is its success. It works! Let a disruption occur in society and we go to the courthouse for its solution. A president says the grand jury cannot see his tapes; he precipitates a show-down between executive and judicial power. The Court deliberates, decides and decrees, and, because of the unlimited confidence of the American people in their courts, the commander-in-chief dares not muster his troops.
E.
May we revert for a moment to law and literature? Judge Learned Hand and Justice Oliver Wendell Holmes earned fame, not only for their legal lore, but also for their writing skills. Judge Hand would re-write an opinion a dozen times or so to become satisfied with its legal reasoning and its literary artistry. Hear two of his statements regarding liberty. He said, "Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it .... While it lies there it needs no constitution, no law, no court to save it." 16 And he said, "[T]he spirit of liberty is the spirit of Him who, nearly two thousand years ago, taught mankind that lesson it has never learned, but has never quite forgotten: that there is a kingdom where the least shall be heard and considered side by side with the greatest."17
Judge Richard A. Posner, himself a distinguished jurist and writer, set about to identify "the most famous opinion by our most famous judge."18 He settled upon Justice Holmes' dissent in Lochner v. New York.19 In that case, the majority opinion held unconstitutional a state statute limiting the hours of labor in bakeries.20 They said it deprived employer and employee of the right of private contract.21
Justice Holmes' dissent is famous, for what it says, and for how it says it. The key sentence is this: "The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics." 22 What was he saying?
Herbert Spencer, you will recall, was a renowned English philosopher and economist. Social Statics23 is the name of his book praising the laissez faire doctrine. It was Mr. Spencer who rounded out Darwin's theory of evolution by authoring the phrase "the survival of the fittest."24 And Mr. Spencer would apply that doctrine in economics as well as in biology.
As Mr. Spencer sees it, the artificial regulation of wages and prices is neither legally nor morally permissible; the government cannot justify levying taxes to support public education (forcing a man with no children to pay for educating other people's children), nor can the government justify levying taxes to provide relief for the needy. In his words, the government should not make itself the "Reliever-general to the poor";25 nor should it transform every citizen into "a grown-up baby `with bib and pap-spoon.'" 26 For Mr. Spencer, spontaneous beneficence is the answer. "It blesses him that gives, and him that takes."27 But a poor-law curses both; it turns "balm into poison."28 A poor-law tries to make men "pitiful by force";29 and a forced gift does not evoke appreciation.
Justice Holmes' dissent uses the name of a book, Social Statics, as a metaphor for the aging laissez faire doctrine. If a picture is worth a thousand words, a metaphor may be worth a thousand pictures. Justice Holmes' rhetoric woke up, and shook up, the other eight old men so that eventually they chose a course somewhat to the left of Social Statics.
While we cannot hope to write like a Hand, or a Holmes, we can take pride in our work. We can say: Speed the day, when every brief, of every lawyer, and every opinion of every judge, will be a dimple on the cheek of Corpus Juris, and not a pimple on her forehead.
Pity the person, if such there be, who can go through life reading, studying, teaching and practicing law, and adjudicating cases without ever beholding the beauty of the work material or the grandeur of the work product. Such a person would be like the man who thinks he is just pushing a wheelbarrow, when in fact, he is building a cathedral.
II.
May we look now at the Constitution.
The whole world knows that it is the prime masterpiece of statecraft, but oh how I would like to hear that, as yet, unfound distinguished scholar proclaim the Constitution as a prime masterpiece of English literature. I would like to hear him recommend that we give it the same treatment given to that famous letter President Lincoln wrote to Mrs. Bixby, attempting to "beguile" her from the grief of her "overwhelming" loss of five sons on the field of battle: namely, send it to Oxford University to grace the walls of one of their colleges, "as a model of purest English, rarely, if ever, surpassed."30
The cardinal virtues of writing are clarity, simplicity, and brevity. The Constitution is a model. Mr. Caleb Strong of Massachusetts said: "[I]t is expressed in the plain, common language of mankind."31 Madison's description of the Bill for Establishing Religious Freedom is applicable here: it is "a Model of technical precision, and perspicuous brevity."32 Think of it! Perhaps the greatest governmental document of all time is comfortably engrossed on just four sheets of parchment.
A.
Do you remember who wrote it? We are so preoccupied with giving Jefferson his well-deserved credit for writing the Declaration that few of us know, or remember, who wrote the Constitution. That man is the most under-credited of all our many patriots. For importance and quality of service, he should be rated right along with Jefferson. In the founding of this nation, his contribution is quite as important as that of the weary warriors who weathered the winter at Valley Forge.
After the 55 delegates had labored all summer, hammering out the substance of the "bundle of compromises," they named a committee on style and arrangement. That committee named one of its members to arrange the form, and choose the words of the Constitution.
That man was Gouverneur Morris. He spelled his first name GOUVERNEUR and pronounced it Guv-er-ner. His first name was his mother's maiden name. Her family had fled France for America and religious liberty. This young man was well-bred and well-educated. Having spoken more on the floor of the Convention than any other delegate, he brought to his new task a full understanding of what the Constitution was to contain, plus what has been described as a "facile pen and a complete command of the English language." 33 He had helped write the Constitution for the State of New York.
He was justly, but very modestly, proud of his authorship of the Constitution. Years later, in a letter to Thomas Pickering, he wrote that the Constitution "was written by the fingers which write this letter,"34 and he added, "having rejected redundant and equivocal terms, I believed it to be as clear as our language would permit."35 Madison confirms Morris' authorship saying: "The finish given to the style and arrangement [of the Constitution], ... fairly belongs to the pen of Mr. Morris."36
B.
Writers are taught to "[L]ook for clutter and prune it out."37 There is no clutter in the Constitution -- not a word that could be left out, not a word awry, not a word amiss. The Constitution's nearest approach to redundancy is its call for "one," rather than "a," Supreme Court. How could there be more, or less, than "one" Supreme Court? The word "one" was not necessary, but permissible, because it supplied the desired emphasis.
For proof of the Constitution's elegance, let's look at the preamble. There is no introduction or preface save this one-sentence preamble.
All writers search for a good lead sentence -- or lead phrase -- a commanding lead. Dickens begins his Tale of Two Cities38 with "It was the best of times; it was the worst of times."39 He lets David Copperfield begin his autobiography with, "I was born."40 The Book of Books begins, "In the beginning."41
The delegates had handed to Gouverneur Morris a suggested beginning. It reads: "We the undersigned delegates of the States of New Hampshire, Massachusetts-bay ..."42 and so on, spelling out the names of all thirteen states. Mr. Morris brushed all that aside, and wrote: "We the People." 43 And when he wrote "We the People", he was writing history, political philosophy, democracy, and literature.
History: Because that phrase sounded the death knell to the divine right of kings;
Political philosophy: The doctrine that all ultimate power vests in the people;
Democracy: That belief in social equality described by Martin Luther King, Jr. 200 years later: "[E]very man is an heir to a legacy of dignity and worth";44 and
Literature: He had mastered the art of the commanding lead and was off to a superb start.
"We the People" is the subject of this one-sentence preamble. It has as its predicate "do ordain and establish this Constitution for the United States of America."45 What a subject, and what a predicate! "Ordain" and "establish" are majestic verbs; they have a religious overtone. We ordain ministers and priests. We establish churches, institutions, constitutions and justice -- all for permanence. And that is the entire preamble, save six subordinate and coordinate phrases, in substance setting forth the dreams and goals of the new nation, and, in form, utilizing the literary device known as parallel structure.
In parallel structure we express ideas of equal importance in parallel form. This calls for pairing one noun with another noun, one verb with another verb, one phrase with another phrase, one infinitive with another infinitive, and so on. Here we have six phrases, each beginning with its infinitive form, thus causing the fairly long sentence to flow along as smoothly as the rippling water in a meadow brook.
May we appreciate the form, as we digest the substance:
"[I]n 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." 46
As we read that once more, note the six "power-packed" action verbs, one in each phrase:
"to form a more perfect Union,
establish Justice,
insure domestic Tranquility,"
(not hope for, pray for, or even promote, but insure domestic Tranquility),
"provide for the common defence,
promote the general Welfare, and
secure the Blessings of Liberty
to ourselves and our Posterity."
As Martin Luther King, Jr. said of the Declaration of Independence, "These [are] sublime words, words lifted to [the level of] cosmic proportions."47 And, as Catherine Drinker Bowen said, "One might challenge the centuries to better these verbs."48 We may wonder whether the words of the Constitution came to Mr. Morris in a flash of inspiration, or he pondered his dictionary and thesaurus, but, whatever his procedure, throughout the document he chose the right word -- the best word -- polished it, and placed it in its proper setting to function with maximum efficiency and sparkle with brightest lustre.
There is specificity where it is in order. For instance, the President must be at least 35 years of age. But, to quote Ms. Bowen again, the document is "strategically a trifle vague in places, to give play for future circumstance."48 Thus, the broad terms "commerce among the several states," "unreasonable searches," "probable cause," "due process of law," "just compensation," and "cruel and unusual punishment" are all a "trifle vague ...to give play for future circumstance."49
Some of you may be surprised, as I was, to learn that there is one respect in which the Constitution can never be amended. This information is easily overlooked because of the compactness of the document. The controlling provision is contained in a fifteen word clause coming inconspicuously at the end of Article V, the amendment article. It reads: "... no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."50 Doubtless the smaller states would have preferred the addition of a new article, captioned "The non-amendability of this Constitution." But it was not necessary. Mr. Morris knew that just as there is elegance in simplicity, there is beauty, and power, in brevity.
After the preamble comes "Article I". Then Articles II, III, IV, V, VI, and VII. And that is it. Its symmetry is exquisite; it outlines itself.
On the table before Mr. Morris lay the Convention's proposed twenty-three articles. He condensed them, and all their meaning, into seven. "[A] Model of technical precision and perspicuous brevity."51
Justice Souter said, "It is difficult to formulate a phrase commensurate with the Constitution's magnificence."52
Justice Black indicated his evaulation with the statement : "I always carry, in my pocket, a copy of the Constitution."53
I say it is not only a masterpiece of state craft, but also a masterpiece of literature -- a classic -- thanks to the "fingers" of Mr. Morris.
I thank you for listening so graciously as I have tried to pay my little tribute.
If I have been able to say anything that might tend to deepen our appreciation of law as a science, and as a profession, then "I shall not... [have spoken] in vain."54
End Notes
1. Sir Thomas Browne, Religio Medici, in The Harvard Classics 249, 288 (Charles W. Eliot ed., 1937).
2. William Herbert Carruth, Each in His Own Tongue, in Poems of Inspiration, Book Three - The Light of the World 2 (Joseph Morris and St. Clair Adams eds., 1940).
3. Browne, supra note 1, at 323.
4. Id.
5. See Webster's Ninth New Collegiate Dictionary 944 (9th ed. 1985).
6. Edith Wharton, Thought for the Day, The Macon Telegraph, January 11, 1994, at 2A.
7. 356 U.S. 86 (1958).
8. Id at 101.
9. Id.
10. 163 U.S. 537 (1896).
11. 347 U.S. 483 (1954).
12. 95 U.S. 714 (1877).
13. 1 Cranch 137, 5 U.S. 137 (1803).
14. 4 Wheaton 316, 17 U.S. 316 (1819).
15. 9 Wheaton 6, 22 U.S. 1 (1824).
16. Learned Hand, The Spirit of Liberty, Address in New York City (May 21, 1944), reprinted in American Quotations, at 335 (Gorton Carruth & Eugene Ehrlich eds, 1988)
17. Id.
18. Richard A. Posner, Law and Literature, 72 Va. L. Rev. 1351, 1379 (1986).
19. 198 U.S. 45 (1905).
20. Id. at 64.
21. Id.
22. Id. at 75. (Holmes, J., dissenting).
23. Herbert Spencer, Social Statics (Augustus M. Kelley Publishers 1969) (1851)
24. 21 Encyclopedia Brittanica 202 (1937).
25. Spencer, supra note 23, at 311.
26. Id. at 287.
27. Id at 319.
28. Id.
29. Id.
30. One Hundred and One Famous Poems 174 (Roy J. Cook ed., 1958).
31. Catherine Drinker Bowen, Miracle at Philadelphia 242 (republished 1986) (1966).
32. Everson v. Board of Educ., 330 U.S. 1, 31 (1946) (quoting IX Writings of James Madison 288 (Hunt ed., 1904)).
33. A source not recalled.
34. Bowen, supra note 31, at 242.
35. Id.
36. Id.
37. William Zinsser, On Writing Well 221 (3d ed. 1988).
38. Charles Dickens, A Tale of Two Cities (Barnes & Noble Books, 1992) (1859).
39. Id. at 281.
40. Charles Dickens, David Copperfield 1 (MacMillan Company 1962) (1849).
41. Genesis: 1:1.
42. Bowen, supra note 31, at 240.
43. Id.
44. A Testament of Hope: The Essential Writings and Speeches of Martin Luther King, Jr. 118 (James M. Washington ed., 1991) (1986).
45. U. S. Const. pmbl.
46. Id.
47. Martin Luther King, Jr., address in Washington, D.C. (Aug. 28, 1963) in K. Smith & L. Zepp, Search for the Beloved Community: The Thinking of Martin Luther King, Jr. 126-27 (1974).
48. Bowen, supra note 31, at 241.
49. Id.
50. U. S. Const. art. V.
51. Everson, 330 U. S. at 31.
52. A source not recalled.
53. Justice Hugo L. Black, Remarks at a Judicial Conference of the United States Court of Appeals for the Fifth Circuit.
54, Emily Dickinson, First Series, Life, VI., reprinted in Bartlett's Familiar Quotations 583. (Christopher Morley ed. 11th ed. 1941).