America's Lawyer-Presidents: From Law Office to Oval Office.

Vol. 15 No.3 (March 2005), pp.170-172

AMERICA’S LAWYER-PRESIDENTS: FROM LAW OFFICE TO OVAL OFFICE, by Norman Gross (ed). Evanston, Illinois: Northwestern University Press & the American Bar Association Museum of Law, 2004. 384pp. Hardcover. $39.95. ISBN: 0-8101-1218-3.

Reviewed by Matthew S.R. Bewig, Department of History, University of Florida. Email: mbewig@history.ufl.edu.

Prosopography, “the investigation of the common background characteristics of a group of actors in history by means of a collective study of their lives” (Stone 1972, p.107), involves a comparative analysis of common data points regarding the subjects under study. Scholars have used this method to study leadership elites, for example in ancient Rome and modern Britain, as well as members of less elite social groupings. More broadly construed, prosopography has long been a popular method for presenting information about the Presidents of the United States. These serial collective biographies, however, have often sacrificed intellectual rigor and critique on the altar of mass popularity, reducing prosopography to hagiography (or, hero worship) in the process. The difficulties inherent in preparing a Presidential prosopography for a popular audience are manifest in AMERICA’S LAWYER-PRESIDENTS, a collection of essays regarding the twenty-five Presidents who were also lawyers. The result is a somewhat generally good collection of essays, most of which present a balanced assessment of their subject, but a few of which elide topics that might shed negative light on the lawyer-president under consideration.

Nevertheless, given the fact that so many of our Presidents were lawyers – twenty-five out of forty-three overall (58%), and eighteen out of twenty-four from the beginning to 1900 (75%) – this book fills an important niche in presidential studies. Divided into five chronological periods, the book opens with “Founding Fathers and Sons,” covering the Lawyer-Presidents from John Adams through John Quincy Adams, and ends with “The Modern Presidency,” which treats Presidents Nixon, Ford, and Clinton. Abraham Lincoln merits a section, comprised of two essays and a lecture on law practice that Lincoln drafted but never delivered, devoted entirely to his career. A final part sets forth two essays on the Supreme Court appointments and Attorneys General of the Lawyer-Presidents. Editor Norman Gross, who is Director of the ABA Museum of Law in Chicago, has assembled an impressive group of scholars to write the individual essays, including historians, law professors, political scientists, archivists, and practicing attorneys. Eminent legal historian Lawrence M. Friedman has contributed five concise essays that open the chronological sections and describe changes in legal education, law practice and legal culture generally. Justice Sandra Day O’Connor has provided a brief Foreword.

The 4,000 word essays, which are of varying quality, generally proceed along similar lines. Following a brief recital of [*171] family background and key childhood events, the chapters focus on the subject’s legal training, law practice, and political career, and then proceed to discuss what effect, if any, the lawyer-president’s legal vocation had on his presidency. Several of these essays are exemplary. James Henretta’s essay on Martin Van Buren argues that while Van Buren’s autobiography minimizes the importance of his legal career, which appears to have had little impact on the poor quality of his Supreme Court appointments, the nature of Van Buren’s political thinking and conduct “embodied the evolutionary, precedent-oriented logic of the common law” (p.69). Elbert Smith’s chapter on Millard Fillmore provides a nuanced and empathetic portrait of our thirteenth President. Jean Baker’s essay on James Buchanan argues that his failure to manage or contain growing sectional strife, including his attempt to have Congress recognize the pro-slavery Lecompton Kansas Constitution and his inaction during the secession crisis of 1860-61, were largely a result of his narrowly legalistic approach to constitutional issues. Paul Finkelman argues persuasively that Abraham Lincoln’s handling of cases relating to slavery, as well as his ongoing representation of a free black client, played an important role in the gradual evolution of his thinking regarding slavery and racial equality. Ari Hoogenboom demonstrates how Rutherford Hayes’ experiences as a criminal defense lawyer led him to oppose the death penalty and advocate penal reform. Melvyn Dubofsky provides a judicious assessment of William H. Taft’s strengths and weaknesses as President and Chief Justice of the United States. These essays share a sensitivity to the relationship between legal work and political activity, as well as a frank willingness to discuss the limitations of these lawyer-presidents.

At the same time, however, several essays adopt the unfortunate strategy of evading facts that shed negative light on their subjects. L. Kinvin Wroth’s essay on John Adams, for example, makes a persuasive argument that Adams’ study of civil law jurisprudence laid the foundation for arguments he would make against British attempts to undermine trial by jury, as well the case for Independence. Yet, in his zeal to canonize Adams, Wroth elides Adams’ role in the passage and enforcement of the Alien and Sedition Acts of 1798, stating only that Congress passed them but omitting the fact that Adams signed and enforced them. The Alien Act authorized the government to deport immigrants considered “dangerous,” while the Sedition Act made it a crime to “falsely” criticize the government or a government official. The Alien Act was constitutionally suspect, and the Sedition Act surely violated the First Amendment. In a book concerning the relationship between law and politics, the evasion of Adams’ willingness to endorse and prosecute a patently unconstitutional law is curious indeed.

David S. Heidler and Jeanne T. Heidler’s essay on Andrew Jackson sets forth a lively and illuminating discussion of Jackson’s early legal career, yet omits any specific discussion at all of the important constitutional issues that Jackson confronted during his Presidency, such as his vetoes of the Maysville Road Bill and of the Second National Bank, and his overt refusal to [*172] enforce the Supreme Court’s ruling in WORCESTER v. GEORGIA (1832). The last is a particularly shameful episode, both of Jackson’s presidency and of American history in general. In WORCESTER, the Court held that Georgia legislation asserting its control over the territory and people of the Cherokee Nation contradicted treaties of the United States and hence was unconstitutional. Jackson simply refused to enforce a proper ruling of the Supreme Court, and the end result was the destruction of the Southeastern Native American Nations in the Trail of Tears. Similarly, Irwin F. Gellman’s essay on Richard Nixon does a fine job of describing Nixon’s legal education and career, yet evades his criminal culpability for the Watergate scandal that destroyed his presidency by focusing exclusively on the hotel burglary, of which Nixon may not have had foreknowledge, and omits discussion of the cover up, which Nixon helped to orchestrate.

Perhaps the greatest flaw of this book, however, is the lack of true prosopographic analysis of the lawyer-presidents as a group. While the essays on the individual lawyer-presidents are generally quite good, there is no attempt to reach general conclusions about the relationship between legal training and practice and their presidencies. The book does not ask or answer the question of whether the lawyer-presidents differed from the non-lawyer-presidents in any significant way or degree. Perhaps this work, by focusing attention on lawyer-presidents as a group, will inspire others to seek answers to such larger questions.

Such are the pitfalls of popular presidential prosopography. Given its narrative style and lack of footnotes, the intended audience of this book is not academic but rather those attorneys interested in history or history buffs in general. It might also be useful in an undergraduate course on the presidency or on legal history. Though some of the essays fail to face up to the flaws of their subjects, in general this book is a needed first exploration of the relationship between law practice and the presidency.

REFERENCES:

Stone, Lawrence. 1972. “Prosopography,” in Felix Gilbert and Stephen Graubard (eds). HISTORICAL STUDIES TODAY. New York: Norton, 107-140.

CASE REFERENCES:

WORCESTER v. GEORGIA, 31 U.S. 515 (1832).

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