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The Idiom of Legalism in Bar Politics: Lawyers, McCarthyism, and the Civil Rights Era

Published online by Cambridge University Press:  20 November 2018

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Abstract

This paper considers the political role of the organized bar from three perspectives: the historical question of the stance taken by bar associations during the major civil rights debates of the post-World War II period; the sociological question of the extent to which legal associations can act collectively on highly contentious political issues; and the legal question concerning the implications of legal formalism for the politics of the bar. Contrary to the belief that legalism is an inherently conservative means of justifying professional inaction on fundamental issues, the paper argues that in fact legalism may well be the most important basis of intra-professional consensus on those issues as well as the most powerful means by which the profession can influence state and national governments. Legalism can be understood as a common professional idiom which allows mobilization on divisive issues. It can be used in support of both liberal and conservative causes. In this sense, within certain limits, legalism is neutral–an expedient which enables the profession to act politically in circumstances which otherwise would effectively immobilize its collegial associations.

Type
Research Article
Copyright
Copyright © American Bar Foundation, 1982 

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References

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55 Recommendations for the Protection of Civil Rights in Legislative Investigations, 30 Chi. B. Rec. 7172 (1948).Google Scholar

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5. Number of members to be present at hearings. No hearing should be conducted without the attendance of at least two members of the committee.Google Scholar

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8. Witness' right to privacy of personal beliefs respected. Inquiries may be as to the conduct or expression or affiliation of an individual, but not as to his private, unexpressed beliefs, whether they be personal, philosophical, religious or political; provided, however, that even such latter inquiries may be made of holders of and candidates for public office or employment where such inquiries are related to their official duties or to public security.Google Scholar

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70 In the hearings of the Committee on Rules on H.R. Res. 29, a bill introduced by Representative Keating, of nine organizations giving testimony there were two bar associations, the District of Columbia Bar and the ABCNY, and between them four witnesses appeared before the committee. In addition, a statement was filed by the Pennsylvania Bar Association. Other organizations giving testimony were the American Civil Liberties Union, the American Jewish Congress, the National Council of Churches of Christ, the American Veterans Committee, the CIO, and the American Federation of Labor. Hearings Before the Subcommittee on Legislative Procedure of the House Committee on Rules, 83d Cong., 2d Sess. (1954), H.R. Res. 29, Contents, and at 98, 105, 133, and 269. When Senator Kefauver introduced S. Res. 256 on May 27, 1954, he referred to the study of recommendations that he and his cosponsors had made of ABA proposals, just as a year earlier, with the introduction of S. Con. Res. 11, he had quoted in support of his bill from the 1948 report of the ABCNY. 100 Cong. Rec. 7223–25 (1954); 99 Cong. Rec. 982–83 (1953).Google Scholar

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75 Id., Apr. 24, 1952.Google Scholar

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82 CRC Annual Report, 1951–1952, supra note 19, at 10. The CRC stated that it “had doubts whether the power to compel testimony was essential to the legislative functions of a congressional committee.” It also maintained, in a more legalistic vein, “that the bill could cause complications between the executive and legislative branches of government.”.Google Scholar

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118 Transcripts, supra note 19, May 21, 1953. The Legislative Committee was made up of all state legislators in Chicago, who were also lawyers, as well as leading specialists and senior attorneys from numerous fields of law. The committee was formally committed to the preparation of the biennial packet of bills submitted by the Chicago and Illinois state bar associations to the state legislature. But not only could it recommend which bills should be included in the package; it could also advise on which other bills should or should not be submitted by the CBA in addition to the legislative package on grounds that the latter might materially affect the bar legislative program. If the Legislative Committee objected vociferously enough to a bill which another committee wished to submit directly to the state legislature, it could usually veto it.Google Scholar

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121 This conclusion requires some qualification. As in other years, the omnibus antisubversion bill, S.B. 59, was not passed in the 1955 session of the General Assembly, although a much more limited bill, S.B. 58, which dealt with loyalty oaths, was enacted in part. CRC Annual Report, 1955–1956, supra note 19, at 8.Google Scholar

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128 For a useful overview of the substantive aspects of fair employment statutes, see Bonfield, Arthur E., Substance of American Fair Employment Practices Legislation (pts. 1 & 2), 61 Nw. U.L. Rev. 907 (1967), 62 Nw. U.L. Rev. 19 (1967). Bonfield looked at the grounds on which discrimination is prohibited, the employees covered by statutes, and the practices prohibited, with incidental reference to Illinois. A more general review of property, housing, employment, and the like, presents the principal divisions in the bar in Symposium on Civil Rights, 24 Fed. B.J. 1 (1964).Google Scholar

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132 Id., Jan. 15, 1959.Google Scholar

133 Id. See also Chicago Bar Association, Legislative Committee, Report 58–84, no. 19, Aug. 12, 1958.Google Scholar

134 Chicago Bar Association, Committee on Civil Rights, Report 59–60, Apr. 22, 1959.Google Scholar

135 Augustus J. Bowe, Chairman, Illinois Committee for Equal Job Opportunities, to Jerome Weiss, President, CBA, May 28, 1959, File 59–60, Chicago Bar Association.Google Scholar

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139 For a good outline of the legislation finally enacted see Illinois Fair Employment Practices Act, 1965 U. Ill. L. Forum 267. But that enactment did not solve job discrimination problems without a struggle can be seen from Minsky, Joseph, FEPC in Illinois: Four Stormy Years, 41 Notre Dame Law. 152 (1965).Google Scholar

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141 Open discussions of fair housing within the Chicago bar are contained in Frey, D. S., “Freedom of Residence” in Illinois, 41 Chi. B. Rec. 9 (1959), and Lehman, Warren, Must I Sell My House to a Negro? 42 Chi. B. Rec. 283 (1961).Google Scholar

142 For general reviews of opinions within the profession and the shape of fair housing legislation see Symposium on Civil Rights, supra note 128, and Pearl, Laurence D. & Terner, Benjamin B., Survey: Fair Housing Laws—Design for Equal Opportunity, 16 Stan. L. Rev. 849 (1964). For further discussions of fair housing in the context of the 1964 Civil Rights Act, Pub. L. No. 88–352, 78 Stat. 241, see note 154 below.Google Scholar

143 Chicago Bar Association, Committee on Civil Rights, Report 63–55, no date.Google Scholar

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146 Id., May 2, 1963.Google Scholar

147 Id., Aug. 7, 1963.Google Scholar

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149 347 U.S. 483 (1954).Google Scholar

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151 Id. at 1621–24 for a short description and account of the 1957 Civil Rights bill as it proceeded through Congress; and id., at 1625–30, for a similar outline of the 1960 Civil Rights Act, Pub. L. No. 86–449, 74 Stat. 86.Google Scholar

152 See id. at 1630–31 for the background to the bill between 1960 and 1963; and id. at 1633, 1635, for developments in Congress during 1963.Google Scholar

153 A detailed description of the path of the Civil Rights bill through Congress in 1964 can be found in id. at 1635–37; the provisions of the 1964 Civil Rights Act, Pub. L. No. 88–352, 78 Stat. 241, are outlined in id. at 1638–41.Google Scholar

154 The background for federal rights measures from 1866, the role of the courts, and the response of government are discussed generally in Civil Rights—The Role of Legal Institutions: A Symposium, 1968 U. Ill. L. Forum 105, 269; other general discussions which preceded passage of the 1964 act are found in two symposiums: Civil Rights and the South: A Symposium, 42 N.C. L. Rev. 1 (1963), and Equality Before the Law: A Symposium on Civil Rights, 54 Nw. U.L. Rev. 330 (1959). An extended consideration of the act itself is seen in the Civil Rights Act of 1964, 78 Harv. L. Rev. 684 (1965). For the enforcement of various provisions of the act, especially in housing and employment, see Comment, Enforcement of Fair Employment Under the Civil Rights Act of 1964, 32 U. Chi. L. Rev. 430 (1965), and Discrimination in Employment and in Housing: Private Enforcement Provisions of the Civil Rights Acts of 1964 and 1968, 82 Harv. L. Rev. 834 (1969).Google Scholar

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157 Id., Apr. 29, 1964.Google Scholar

158 Id., Apr. 30, 1964.Google Scholar

159 Id., June 11, 1964.Google Scholar

160 2 Congress and the Nation: 1965–1968, supra note 99, at 365–73, gives a highly detailed account of the abortive attempt to enact the 1966 Civil Rights bill and sets out its provisions.Google Scholar

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164 Shelley v. Kraemer, 334 U.S. 1 (1948).CrossRefGoogle Scholar

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167 Chicago Bar Association Board Subcommittee Majority and Minority Reports on a Proposed Resolution to Be Adopted by the Board of Managers on the Civil Rights Bill of 1966, Sept. 12, 1966.Google Scholar

168 Transcripts, supra note 19, Sept. 15, 1966.CrossRefGoogle Scholar

169 See Chicago Bar Association, Committee on Civil Rights, Report on H.B. 257–Proposed Illinois Fair Housing Practices Act, Report 65–18, Feb. 24, 1965; Transcripts, supra note 19, Apr. 29, 1965; id., May 6, 1965; CRC Annual Report, 1965–1966, supra note 19, at 6.Google Scholar

170 Chicago Bar Association, Committee on Civil Rights, Report 67–29, Jan. 31, 1967; Transcripts, supra note 19, Feb. 9, 1967; id., Feb. 16, 1967; CRC Annual Report, 1967–1968, supra note 19, at 7.Google Scholar

171 Heinz et al., supra note 14, at 724–25.Google Scholar

172 Id. at 746.Google Scholar

173 See the valuable account of a rival bar association that formed during the 1960s in partial reaction to the perceived “conservatism” of the CBA in Powell, Michael, Anatomy of a Counter-Bar Association: The Chicago Council of Lawyers, 1979 A.B.F. Res. J. 501.Google Scholar