Manhattan Monologues (13 page)

And then, too, she had been intrigued by my position as an editor of the law review. She herself had wanted to study for the bar, but there were no further funds for her education. Her courses, all in modern history and economics, had brought her as close to the law as she could get. She was inclined to see it as a tool for the disadvantaged, as a substitute, perhaps, for riots or, indeed, for revolution.

On our dates she liked to discuss articles that she had read in my law journal and asked why I did not solicit more pieces on social unrest and injustice. As I had had little or no experience with girls, I was flattered by her interest in the only field where I had anything remotely like expertise and enjoyed answering her questions, sometimes at length, probably at too great length. I recall the following exchange, which shows the diverse directions in which we were heading.

"What made you first decide to become a lawyer?"

"Because it was a profession where I could use words. They were the only tools I had."

"But aren't they what everybody uses? What else is there? Muscle?"

"It's a matter of degree. I have only words."

"And what's so great about them? Aren't Hitler and Mussolini bewitching their countries with words?"

"Bad words. Which will be followed by guns. Bad words usually are."

"But so are good words. In Russia they were followed by a revolution that liberated millions from virtual serfdom."

"I think they were bad words. They led to the slaughter of the Imperial family in that cellar in Ekaterinburg."

"Surely, Peter Mullins, you can't defend the czar and his idiotic wife, who let a mad monk oppress their nation!"

"But why did the Reds have to gun down that poor little boy and the four innocent grand duchesses? Did you ever see those old films of them, all in white with big hats, so lovely and smiling, waving from a carriage at shouting crowds?"

Nora gazed at me in genuine perplexity. "You've got to be kidding," she said at last. But I wasn't. Then she went on, deciding, evidently, not to comment on so poor a joke. "What in your opinion is the difference between good and bad words?"

"Good words lead to sympathy and understanding, to peaceful settlements of controversies and general good will. Bad words lead to usurpations and seizures of power."

"What about the words of the Gospels? They led to the power of the Christian church."

"And to the Inquisition and the religious wars."

She looked at me with more approval now. "Didn't Marx say that religion was the opiate of the poor?"

"Well, there you are."

"And what about the words of the Constitution? Didn't they help to make America a great power?"

"No!" My exclamation was now triggered by sincere emotion. "They had nothing to do with power! Indeed, they were specifically designed to restrict power. They created our wonderful system of checks and balances. Which is currently in danger of being overthrown by the federal government's grabbing of powers inherent in the states."

"My economics professor says that the Constitution is nothing but an elastic band that can be stretched to encompass any old political philosophy that happens to be held by a majority of the Court."

"That's a very superficial view."

"You think it means what the Founding Fathers intended it to mean?"

"Well, to a much greater extent than most academics believe today. You couldn't assemble, at this point in our history, a constitutional convention with a tenth of the brains and vision of the 1787 one, even though our population has increased fiftyfold."

"So what they drafted, according to you, was like the tablets that Moses received on Mount Sinai?"

I don't think Nora was being as sarcastic as that sounds. She was still of the opinion that she had some things to learn from me, and she had not yet lost her awe of the law school.

"Something like that," I muttered.

"Yet those wise men tolerated slavery. It was written right into the original document, wasn't it?"

"An amendment wiped it out."

"Yet God, like Homer, must have nodded when it went in."

"If you like. It was a necessary compromise at the time. The price of our union."

"And the seed of a war."

"Alas."

"And wasn't it one of your good words that brought about that wicked compromise?"

"You have me there, Nora."

Justice Irving P. Davenport, of the U.S. Supreme Court, whose law clerk I was to be, had, though born a Virginian, practiced for many years in a large Wall Street firm, which was why he had adopted the habit of selecting his clerks from schools in the city. A partner in his old firm was delegated in each instance to make the choice for him, and it so happened that the one in my year was a devoted graduate of NYU who had himself been editor-in-chief of the review and regarded me in the light of a successor. When I informed Nora of my acceptance, on our now habitual bench, she flung her arms around my neck and announced that she would marry me! And as early as the following Labor Day we were established as man and wife in a two-room flat in the District of Columbia.

Judge Davenport was an impressive enough figure to meet. He was a tall, straight, handsome but rather stiff septuagenarian, with a long, lean, brown countenance and snowy white hair. His manners were formal and minimally courteous; he was patently a man not to suffer fools gladly nor to tolerate any intrusion on an attention usually devoted to matters weightier than the intrusion boded. He had been a lifelong bachelor without either of the customary excuses, so far as I could make out: a youthful unrequited affection or the tragic loss of a beloved. He seemed independent of all human support and lived rather opulently alone, except for two devoted and silently efficient black servants, a butler and a cook, in a beautiful red-brick Georgetown house, full of fine books, furniture and pictures. He had apparently made a fortune at the bar in New York.

He was known to be capable of singular rudeness where one of his prejudices was involved—I soon saw that he was barely civil to Justice Brandeis—but he was sufficiently agreeable to me, if on the gruff side, probably because of my bad leg and the fact that I was quick at my work and asked him a minimum of questions. Although I went to his house frequently in the evening when he wanted to work at home, he invited me and Nora only once to dinner, during which repast she, out of awe or timidity, hardly opened her mouth. The judge's social life seemed to consist of an occasional stag "breakfast," really an early lunch, to which he would invite a handful of elderly savants.

What I loved about him from the beginning was his fine use of the English language. His opinions were by far the most elegant of any written by the Court; sentences with the lapidary succinctness and arresting style of Emerson would be qualified by longer ones imbued with the grace and polish of Walter Pater.

"But isn't he to the right of Louis XIV?" Nora demanded one evening after reading one of his opinions that I had brought her. "If Madame de Maintenon complained, about Versailles and its gardens, that she perished in symmetry, isn't social progress going to perish in your boss's lavender prose?"

Well, of course, it was true that Nora's question was being irately put by half the editorials in the liberal journals of the day. A narrow majority of five judges (Davenport was one) was widely accused of engrafting onto the Constitution the economic doctrine of laissez-faire, which had not existed when the document was written. That very day at noon, when I was having a sandwich in my office, the judge, who had come in to get a book from my shelves that I had taken from his library, but whose step I had not heard, saw over my shoulder the newspaper that I was reading, open at the editorial page.

Snatching the paper from my hand, he snorted, "You're not paid to read that trash!" He tossed the journal back on my desk and proceeded to the door, but then, as if seized by a compunction, he paused and turned to me. "I'm sorry, Mullins. It's your lunch hour, isn't it? Of course, you can use it to read what you like. But maybe it's time that you and I had a little discussion about our personal views on the Constitution. Come to my office when you have some time."

Needless to say, I had time very shortly, and I found myself ensconced in the armchair facing his big flat unpapered desk while he held forth solemnly, as follows: "These parlor-pink whippersnappers on radical rags love to accuse me of being the compliant tool of the great corporations. Nothing could be further from the truth. I worked for many years as counsel to such corporations, yes. That's what a lawyer does; he represents clients. And I chose to represent clients who could pay for my services. And pay well, to be sure. Is there anything wrong with that? The laborer is worthy of his hire. My firm did its share—more than its share, for that matter—of pro bono cases. Although I didn't work on these myself, what I brought in paid the salaries of those who did. But to deduce from all this that I was in any way governed by, or that I admired, the men in charge of those corporations is grossly unjust. My job was to keep their proceedings within the law, and I did. Nor was it always easy. I worked at times with individuals who, left to themselves, might have made mincemeat of legislative prohibitions. But they knew that if they did so, Irving Davenport would promptly withdraw as their counsel, and the world would make its own deduction as to why he had done so. And your radicals say that I admired such men? I most certainly did not! I agreed totally with Charles Francis Adams, Jr., when he wrote in his memoirs that he had worked with many of the greatest business tycoons of his day and had found them a dull and uncultivated lot. I never had any social dealings with such men; I saw them only in my office or theirs. Pierpont Morgan was the only gentleman among them, and he felt pretty much as I did. At least he knew a good etching or oil painting when he saw one. Or a good bronze." He pointed to a David holding up the head of Goliath on a table in the corner. "I got that one at the executors' sale of some of his art in 1914."

I realized that I was expected to fill in the pause that followed. "I suppose we can't expect the average journalist to distinguish between representing a client and admiring him."

"It's too much, no doubt, for his pea brain. And he carries his delusion to the limit. The judge who finds something unconstitutional must think it's bad, and if he finds it constitutional he must think it's good. That's their simple idea of how we interpret the Constitution."

"Would it be in order, sir, to ask what you think of the doctrine of laissez-faire and to what extent, if any, it should be abrogated?"

"It's more a question, isn't it, of who should abrogate it? The Constitution gives the federal government certain specified powers; everything else is left to the states. But today Uncle Sam is grabbing the whole kit and caboodle. What the New Dealers are doing is changing the original concept of a union of semi-independent states to that of a single nation, with the result that our vital rights and liberties will be protected not by forty-eight state governments and one federal one, but by one federal one alone!"

"Yet the Democrats talk a great deal about civil rights."

"And talk is all it is. To convince the unwary that the right of free speech, which Justice Holmes aptly called 'the right of a fool to drool,' makes up for all the other rights that are being filched from him: the right to manage his own business, to hire or fire whom he pleases, to produce what he wants in such quantities as he desires; in short, the right not to have the commerce clause flung in his face every time he happens to spit across a state line!"

We talked, or rather the judge talked, for another hour, and when I returned to my office it was with a new and exhilarating idea of the battle that he and I were engaged in. For wasn't such a struggle the very thing of which I had dreamed as the ultimate test of the use of words as the redemption of mankind? The fervent advocates of the New Deal may have convinced themselves that only a vastly increased federal force could save the nation from its economic depression, and that such was a humane enterprise, but that was because they were blind to the naked power drive behind it. The judge and I were fighting with the golden words of the Constitution to preserve an America as conceived by its Founding Fathers.

The next year and a half was the most intense and exciting period of my life. The attention of the nation turned more and more to the Court, and a growing chorus of voices in the halls of Congress, in the editorial pages of the press and at political gatherings from coast to coast were loudly and angrily raised to denounce the five judges who were steadily invalidating much of the New Deal's principal legislation. "Must we remain mired in a near feudal past because of the outdated philosophy of five stubborn old men?" was the gist of the cries that beset us from all sides.

But my chief was ebullient. He seemed to welcome the abuse. To him, he and his four judicial brethren were engaged in a heroic resistance to the rising tide of federal mega-government. What did it matter if they were slaughtered in the narrow pass of a twentieth-century Thermopylae? History would one day justify them. He led the way enthusiastically in seeking to strike down the excessive delegation by Congress of its powers to executive agencies, the prohibition of the shipment in interstate commerce of goods produced in excess of federal quotas, the establishment of pensions for railroad employees, the conferring of tax subsidies on "disadvantaged" groups, the providing of unemployment compensation and the fixing of minimum wages.

I was sometimes taken aback by how far my chief went, but I never ceased to admire his courage and force and, above all, the ringing clarity of the language of his opinions. His evocation of the fighting spirit of an America that had defied the monarchs of old Europe and conquered the western wilderness thrilled me, sometimes in spite of myself, and I could hardly help being impressed by the biting sarcasm with which he contrasted such a spirit with the red tape and muddled bureaucracy of the present. Unlike some of the other law clerks, I never wrote a word of his splendidly composed opinions, but I supplied the authorities and discussed with him the presentation of his arguments. He was sufficiently pleased with my work to extend my clerkship first with a second year and then with a third. I wasn't sure it was the best thing for my law career to remain in this position so long, but I couldn't bring myself to leave him in the midst of such a battle. And besides, wasn't it the battle of words?