Mark W. Buyck II: Lawyers Making The Law

Lawyers Making the Law

story by Mark W. Buyck, III

The Frenchman Alexis de Tocqueville made this observation from his 1831 travels in the United States: "The government of democracy is favorable to the political power of lawyers; for when the wealthy, the noble, and the Prince are excluded from the government, the lawyers take possession of it, in their own right, as it were, since they are the only men of information and sagacity, beyond the sphere of the people, who can be the object of the popular choice. … Lawyers belong to the people by birth and interests, and to the aristocracy by habit and taste; they may be looked upon as a connecting link between the two great classes of society.”

Much has changed over the last 190 years. While lawyers as a profession may not be held in as high esteem as they were in previous times, there is no denying that citizens with legal training have shaped the country’s founding and have been active participants in governmental affairs. 56 founding fathers signed the Declaration of Independence in 1776, declaring the American colonies free from England’s monarchy and its Parliament’s taxes. Twenty-five of these patriots were lawyers including John Adams and Thomas Jefferson. The four signers from South Carolina were all trained in the law. Thomas Heyward, Thomas Lynch, Jr and Edward Rutledge were all practicing lawyers and Arthur Middleton had studied law in England at the Inns of Court. When the Constitutional Convention was called in 1787 to revise the Articles of Confederation, 70 delegates were appointed by the various states. Only 55 made it to the Pennsylvania State House in Philadelphia to undertake the process of drafting the United States’ Constitution. 32 of the 55 framers of the Constitution were lawyers. Prominent among these were Alexander Hamilton and William Livingston. James Madison had also been a student of the law but never considered himself a lawyer. Three of the four South Carolina delegates were lawyers, Charles Cotesworth Pinckney, Charles Pinckney, and John Rutledge. Charles Pinckney was particularly active during the writing and debate of the Convention. He also played a key role in South Carolina becoming the eighth state to ratify the resulting Constitution. Charles Pinckney served as Governor of South Carolina on three separate occasions. He was Thomas Jefferson’s ambassador to Spain and also served in the United State’s Senate and the United State’s House of Representatives.

Since 1776, 51 of South Carolina’s 86 Governors have been lawyers. Beginning with Strom Thurmond’s election in 1946, 11 of South Carolina’s 15 Governors have been lawyers including our current Governor, Henry McMaster. Joe Biden is the 27th lawyer of the 46 men who have served as President of the United States. This ratio, 59%, is exactly the same as South Carolina’s Governors. On January 4, 1964, the New York Times ran a story entitled “Are There Too Many Lawyers in Congress?” At the time, 315 of the 535 members of the 88th Congress, were lawyers. This included 66 of the 100 senators and 249 of the 435 members of the House of Representatives. The article noted that the second most common profession was “businessman” with less than half as many as lawyers. In the article, the author made the claim, “it is doubtless true that lawyers both in and out of Congress tend to the conservative side… [B]ut in the final analysis, conservative Congressmen, intent on resisting innovation, are the ones who most frequently use their training in the law to political advantage.” The author then noted that 74 of 106 Southerners in the House of Representatives were lawyers. He complained that the Southerners “adroitness at Constitutional argumentation has sounded the death knell for numberless bills in recent sessions.” Lawyers’ dominance at the Federal and State level has steadily declined over the years. In the mid-19th century, nearly 80% of the members of Congress were lawyers. In the mid-1960s, this was just under 60%. In the current Congress, only 40% have a legal background. The same trend is also occurring in the South Carolina legislature. In 1955, 28 of the 46 state senators, (61%) and 55 of 124 state representatives (44%) were lawyers. In 1987, 23 senators and 31 representatives were lawyers. In the current General Assembly, 19 senators and 32 house members are lawyers which is less than 1 in 3 members. Lawyers will continue to actively pursue elected political office; however, those who claim that lawyers are running the show in Columbia and D.C., are behind the times.

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