WOE UNTO YOU, LAWYERS!

They made of labor’s “Magna Charta” something strangely resembling Germany’s
“scrap of paper.” And all in the name of The Law.
Of course, Chief Justice Taft and his court would have found it far more
difficult to do this if other lawyers had not played a leading part in writing the
Clayton Act. Section 20 was full of those typically meaningless words, like
“willfully” and “maliciously.” It said, for instance, that federal courts could not stop
strikers from picketing “lawfully.” “Lawfully,” according to Chief Justice Taft,
meant in accordance with The Law before Clayton Act was passed. Before the
Clayton Act was passed, the lawyers had ruled that just about all picketing was
against The Law. Therefore it still was. Q. E. D. And, incidentally, the Supreme
Court did almost the same thing with the whole of the Clayton Act by picking on
other meaningless legalistic words to prove that most trusts were not trusts and most
monopolies were not monopolies – according to The Law. You can change the laws
all you please, but you can’t change The Law. And The Law is what counts.
It would, moreover, be a mistake to jump to the conclusion that Chief Justice
Taft and his court “interpreted” Section 20 of the Clayton Act into complete oblivion
merely because they didn’t like unions or strikes or picketing. For Taft, in the course
of explaining at great length why Section 20 did not really mean a thing, went out of
his way to include in his opinion a rousing defense of labor unions. Of course, this
defense did not do the unions any good after Taft got through with it. The point is
that Taft was insisting to his fellow-lawyers – the only people who ever read or
understand judicial opinions – that is disappointing the unions he was merely
following The Law. The choice, however distasteful, was forced upon him. For it is
part of the legal legend that no lawyer – not even when he becomes a Supreme Court
justice – ever does any more than explain what The Law is and how it applies. He is
merely the voice through which the great gospel is made known to men.
Moreover, The Law can do strange things to man-made laws even when, as
very rarely happens, such laws are not so full of “willfullys” and “maliciouslys” and
“lawfullys” that they practically invite the lawyers to write their own ticket. For
example, there was the Guffey Coal Act, involving federal regulation of the coal
industry. The Supreme Court first said that most of the important parts of the Act
were unconstitutional. Now, saying that a law is unconstitutional is really no more
than a convenient way of saying that it goes against The Law. But the whole idea of
constitutionality and unconstitutionality is so mixed up with notions like patriotism
and politics, as well as with the most sacred and complicated of all legal rules, that it
deserves and will get full treatment a little later on. The point here is that, after
saying part of the Guffey Act was unconstitutional, the judges went on to say that the
good part had to be thrown out with the bad part. Not unreasonable perhaps, on the
fact of it. Not unreasonable until you learn that Congress, foreseeing what the
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