“The brain may devise laws for the blood, but a hot temper leaps o’er a cold decree.” (Merchant of Venice,Act I Scene ii, ll. 18-19)
Shakespeare here voices a view of the relationship between reason, passion, and law that still rules our discussions today. Law and reason are partners; passion is their enemy. This image supports the idea of the lawyer as a “cool” technician creating sophisticated legal schemes much like a computer engineer spins out a new algorithm.
But I wish to propose a different image of law, one in which reason and passion are partners in law’s creation. Passion energizes reason which in turn educates and refines passion’s hot temper. The operative word is “synergy,” not opposition. That’s why I believe that the practice of law is most fulfilling for lawyers who feel they are using their skills to accomplish goals their hearts approve. And perhaps that is also why we often hear that highly paid lawyers in elite firms are not as happy in their work as one would expect.
I think this story from Brown v. Board of Education is a good example of the reason-passion partnership in action. Brown is now universally acclaimed as one of our greatest legal and political accomplishments as a nation. But it was anything but a done deal when the Supreme Court heard arguments in the case. One major problem facing Thurgood Marshall and his colleagues as they prepared their briefs was how to answer a question the Court had specifically requested the parties to address: Had the Congress that passed the Fourteenth Amendment intended to ban segregated schools?
It was a difficult question for Marshall and his team to answer because there was some circumstantial evidence that seemed to support the conclusion that the framers had no such intention. John Bingham was the primary author of the text of the Fourteenth Amendment. He also was the author of the original text of the Civil Rights Act of 1866 which outlawed “discrimination” as well as other practices. But when opponents of the Civil Rights Act charged that its “discrimination” language would apply to segregated schools already in existence, Bingham agreed to remove the “discrimination” language from the Act to assure its passage. If Congress, including Bingham, did not intend the Civil Rights Act to apply to segregated schools, why would we think they intended the Fourteenth Amendment’s Equal Protection clause to do so?
At first Marshall and his legal team could not think of a persuasive answer to that crucial question. But they refused to concede it. Marshall insisted that his colleagues find an answer that would reconcile an expansive reading of the Equal Protection Clause, which was necessary for victory in Brown, with Bingham’s concession that segregated schools did not violate the Civil Rights Act passed by the same Congress.
Here’s how one participant said the team saw their task:
“It was not that we were formulating lies; there was nothing as crude or naïve as that. But we were using facts, emphasizing facts, bearing down on facts in a way to do what Marshall said we had to do.” Suddenly, the answer appeared. (“It was like lightning breaking through.”) Bingham agreed to remove the “discrimination” language from the Civil Rights Act because the Fourteenth Amendment’s Equal Protection Clause made it unnecessary. One purpose of the Fourteenth Amendment was to authorize the Civil Rights Act, but another was to go beyond it to ban all state deprivations of equal protection.
Now Bingham’s concession did not undermine a broad reading of the Equal Protection Clause; it supported it. Upon reflection the team came to believe that this argument not only fit their purposes, but was also true.
Passion did not “leap o’er” reason in the Brown case, it directed reason towards a legal conclusion that that satisfied the heart as well as the head.
Note: I discuss Thurgood Marshall and his legal team’s performance in the Brown case at greater length in the book Guile is Good. https://guileisgood.com/guile-is-good-the-book/