On TV they were the heros whether as Mr. District Attorney or Perry Mason. President John F. Kennedy's book `Profiles in Courage' is replete with lawyers. Lawyers crafted the Constitution, achieved its ratification, and played a critical role in the survival of our republic. Abraham Lincoln was a very successful practicing lawyer, as were John Adams, Thomas Jefferson, and James Madison. Alexis de Tocqueville saw lawyers as America's aristocracy. And Americans on the whole agreed with this view for most of our history.

What has happened to change this in the last 25 or so
years? And when thinking about that question remember the OJ trial has not been going on that long, but only seems like it has.

Here is perhaps where the second topic is related to the first. What is the nature of liberty? It seems to me that the proper definition of liberty must be contrasted with government. Simply put, liberty is the state of being left alone by government. Now, this means more than not having the government be able to bother you. It means having a legitimate expectation that government will not interfere with you as long as you meet some minimal conditions--such as not interfering with other people's rights to be left alone. In this sense liberty is an exclusively negative concept. It is not a claim on government. It is not a right to have government do something you want it to do. It is a `right' to engage in the pursuit of happiness free from government restraint except as already noted.

The Framers of our Constitution talked about life, liberty and property as fundamental, indeed natural rights. What they meant by this was not three separate interests. Rather they were referring to the fundamental integrity of the human person. James Madison, perhaps the most influential figure in our Constitution's birth and development, made this clear when in 1792 he wrote, in an essay entitled, `Property'.

`This term in its particular application means `that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.'

`In its larger and juster meaning, it embraces every thing to which a man may attach a value and have a right; and which leaves to every one else the like advantage.

`In the former sense, a man's land, or merchandize, or money is called his property.

`In the latter sense, a man has property in his opinions and the free communication of them.

`He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them.

`He has property very dear to him in the safety and liberty of his person.

`He has an equal property in the free use of his faculties and free choice of the objects on which to employ them.

`In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights.'

Life, liberty and property for the Framers meant the protection of the fundamental integrity of the human person against government. It sometimes meant that protection must be maintained against the democratic majority. Liberty was opposed to arbitrary power whether legislative, executive or judicial. The system established by the Constitution was not designed for efficiency, but precisely the opposite purpose, to contain and control, to check and limit what was seen as a very real threat to human happiness: government.

This is not to suggest that the Framers were anarchists. They were wise and practical people (and lawyers) who perceived that fallen humans at times need the restraining hand of government to protect them from one another. However, they saw this as a purely negative role. While government might prevent some unhappiness, it could never create happiness.

Now let me try to tie my two themes together. When lawyers serve in the traditional mode as officers of the legal system--and this means guardians of constitutional liberty--they are heroic figures. They keep the dangerous yet
necessary leviathan of government within its proper sphere. This is a role that gives dignity to the profession. It is also what I contend has been responsible for the extraordinarily good image the profession has had for most of our history.

This, of course, is a simplification.