The Constitution is in the hands of lawyers

Ah, the four branches of government: executive, legislative, judicial — and lawyers.

Okay, so they’re not mentioned explicitly in the Constitution. But according to Walter E. Dellinger III’s Sept. 26 lecture, entitled “The Supreme Court and the Presidency,” the world of lawyers — whether it be lawyerly thought processes guiding presidents’ actions or attorneys litigating behind the scenes — exerts a strong influence on the way the country is run.

Speaking to a Law School audience, Dellinger recounted how once, just before a holiday break, Congress passed an amendment which would have dismissed all HIV-positive members of the military within 60 days of testing positive. President Clinton, along with many top military leaders, strongly opposed the amendment. Since the executive branch is entrusted with the enforcement of laws, President Clinton was able to refuse to enforce the offending amendment. Faced with a potentially uphill legal battle, Congress repealed it rather than calling upon lawyers to defend it in court.

Dellinger also spoke of Abraham Lincoln, whose background in law influenced his presidential style. During his debates with Stephen Douglas, his technique of conceding on 19 out of 20 points, but sticking the case on the final point, catapulted him to national fame and eventually helped change U.S. slave policy forever.

It’s small wonder that Dellinger emphasized the role of attorneys in government.
From 1993 to 1996 he served as assistant attorney general and head of the Office of Legal Counsel, advising both the attorney general and the president. And as acting solicitor general of the United States for the 1996-1997 term, he argued nine cases before the Supreme Court.

Dellinger labeled the current Supreme Court as “probably the smartest court in U.S. history.” Although the court’s 9-0 ruling upholding Paula Jones’ right as a private citizen to sue the president shocked him at the time, he said he had gained a new perspective on the Clinton-Jones case in U.S. history.

On a visit to Cambodia, Del-linger learned that Jones vs. Clinton was the one case that the Cambodian judges knew, and they found the ruling wonderful and inspirational. The power of that case is that no person, not even the president of the United States, is above the law.

And in Dellinger’s eyes, it’s the lawyers who make it all possible. After all, who’d dare to sue the president without one?


Originally published on October 12, 2000