in constitutional history and tradition, they have a duty to change it.
To speak of “the law” changing risks mischaracterizing mythology-busting. Several years ago, a lawyer argued in the United States Supreme Court that persons of the same sex have a constitutional right to marry. Justice Scalia asked the lawyer, when did same-sex marriage become a constitutional right? Was it 1789, or when the Fourteenth Amendment was ratified, or when? The lawyer replied that the Court had never thought such a question required answer.
To see how absurd that question was, one might ask rhetorically—as my wife did when she heard the argument and the justice’s question—when did the earth begin to revolve around the sun. Was it when the Pythagoreans proposed that it did, or when Copernicus confirmed it? When did racial segregation in schools become unconstitutional? Was it not until Brown v. Board of Education, or had it always been at odds with the text and spirit of the Fourteenth Amendment? No, busting mythologies brings hitherto disregarded truths to bear upon outworn structures of words and thought.
Busting mythologies is not only the work of lawyers. Lawyers do it because they confront institutions of state and monopoly power in a particular way and within a determined structure. But the struggle for human liberation makes mythology-busting the business of all of us. As the Nigerian poet Wole Soyinka wrote: “The Truth shall set you free? Maybe. But first the Truth must be set free.”
We will not find “Justice” uniquely in the words and work of lawyers, any more than we would find it in the basket under the guillotine. We will find it in human stories and human experience. The struggle for human liberation can be assisted and protected in some significant ways by what lawyers and their clients are able to achieve. Ultimately, people in motion will decide matters.
The essays in this book deal with claims for justice, “rights” if you will. You will find that once mythology is cast aside, the rights we value are not the product of the present system of social relations. Rather, these rights are in tension with, and in contradiction to, that system. Changing the system then becomes the next task.
Twenty-five years ago, I wrote a play titled Haymarket: Whose Name the Few Still Say with Tears.4 I imagined a conversation between Clarence Darrow, who first became involved in human rights defense as he sought a pardon for the surviving defendants of the Haymarket trial,5 and Lucy Parsons, widow of one of the Haymarket defendants who had become a leader of the anarchist movement in the early 1900s.6 In one scene, Darrow and Parsons meet on a Chicago street:
DARROW: Lucy, I’m sorry I’m late. The train from Springfield was delayed. Governor Small has pardoned the Communist Labor defendants.
LUCY PARSONS: Another victory for civil liberty, Clarence. Another supplication to the state.
DARROW: Another victory for the law.
LUCY PARSONS: Wrong! A victory, perhaps, for the lawyers. Your lawyers’ victories, Clarence, are like fireflies. You catch them and put them in a jar. By morning, their light has gone out. And your bugs are dead.
Later in the play, Parsons mocks Darrow:
LUCY PARSONS: Your lawyer’s ego wants you to think you stand at the center of every event by which the world is changed. Your right to stand there is only because some brave soul has risked death or prison in the people’s cause and you are called to defend him—or her. When you put law and lawyers at the center of things, you are only getting in the people’s way, and doing proxy for the image of the law the state wants us to have. The law is a mask that the state puts on when it wants to commit some indecency upon the oppressed.
DARROW: (angry) If I believed that, I would still be a lawyer for the railroad, and not making do with the fees the union can pay. Lucy, the law is a fence built around the people and their rights.
LUCY PARSONS: (kindly) What an image! And you, Clarence, are a fierce old dog, set to bark and warn off intruders.
In that imagined debate between Darrow and Parsons, they are both right. Many of the essays in this book discuss victories won in courts by lawyers on behalf of clients. To imagine that those victories have wrought—or could have wrought—fundamental and lasting social change would be to embrace a disabling and disempowering mythology. We lawyers try cases. We provide outcomes, not solutions.
Lawyers who exaggerate the importance of their professional training may be forgiven. Too much of legal education these days is focused on cases and principles, and does not descend (or ascend, I think) to the study of the human conditions that are at the root of the matter. Most law students have never personally experienced or shared the injustices that their potential clients have faced. They are taught the principles of law and legal analysis. Clinical legal education programs, now a feature of most law school curricula, can play an important role by introducing students to what law “does” as distinct from what it “says.”
Let me try out a metaphor. On the walls of a beautiful ancient Zen temple in Japan are paintings of tigers. I like paintings of tigers. But these tigers do not look like any tiger you or I have ever seen. They are more like house cats done bigger and with stripes, and their expressions are not at all tiger-like.
The reason is that these painters had never seen a tiger. They had read reports from those who had seen tigers. And so it is with those who paint pictures of legal rules that are claimed to be good and proper, but who have never seen or studied or mingled with the people to whom these rules are to be applied. Anyone, including a lawyer, who wants to play a role in the struggle for human liberation had best begin by finding out what is really going on.
In 2014, the cases about the right to marry were pending in courts across the nation. In one such case, the Court of Appeals denied that right, by a vote of 2 to 1. The majority opinion was an excursus into generalities of social policy and the supposed limits of judicial power to address fundamental questions. This is a form of judicial detachment that we will see again in this book. The dissenting judge, Martha Daughtrey, exposed the mythology inherent in the majority opinion:
The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy. But as an appellate court decision, it wholly fails to grapple with the relevant constitutional question in this appeal: whether a state’s constitutional prohibition of same-sex marriage violates equal protection under the Fourteenth Amendment. Instead, the majority sets up a false premise—that the question before us is “who should decide?”—and leads us through a largely irrelevant discourse on democracy and federalism. In point of fact, the real issue before us concerns what is at stake in these six cases for the individual plaintiffs and their children, and what should be done about it.…
In the main, the majority treats both the issues and the litigants here as mere abstractions. Instead of recognizing the plaintiffs as persons, suffering actual harm as a result of being denied the right to marry where they reside or the right to have their valid marriages recognized there, my colleagues view the plaintiffs as social activists who have somehow stumbled into federal court, inadvisably, when they should be out campaigning to win “the hearts and minds” of Michigan, Ohio, Kentucky, and Tennessee voters to their cause. But these plaintiffs are not political zealots trying to push reform on their fellow citizens; they are committed same-sex couples, many of them heading up de facto families, who want to achieve equal status—de jure status, if you will—with their married neighbors, friends, and coworkers, to be accepted as contributing members of their social and religious communities, and to be welcomed as fully legitimate parents at their children’s schools. They seek to do this by virtue of exercising a civil right that most of us take for granted—the right to
