Rebel Lawyers

Last week I gave my 4th annual “Whiskey Rebellion” speech for the local chapter of the Federal Bar Association.

The Whiskey Rebellion, in case you’ve forgotten the American history you were never taught anyway, was an insurrection in 1794 by settlers in the Monongahela Valley in Western Pennsylvania who fought against a federal tax on whiskey by tarring-and-feathering revenue collectors and conducting other mischief. President Washington led 13,000 soldiers to quell the insurrection – which was the first and only time a sitting president led troops into battle.

It turns out to have been a very important, if almost forgotten event, in American history, because it was the first dramatic opportunity for the United States government to prove its legitimacy to its own people, and to impose the will of the federal government upon the contrary desires of a state or local constituency. It was also an important test of the limits and protocols of dissent within the infant Republic, the ability to disagree with the policies of the government without being branded as a traitor.

Of all the truly interesting things I could have discussed concerning the Whiskey Rebellion, unfortunately I had to focus on the activities of lawyers during the Rebellion, because people were actually paying to listen to me so that they could obtain Continuing Legal Education “Ethics” credit for the year.

There were two lawyers who played major roles in the Rebellion. One was Hugh Henry Brackenridge, a Princeton-educated pro-federal carpetbagger and Pittsburgh’s first-ever lawyer, who campaigned against the whiskey excise tax but stopped short of urging rebellion. The other was David Bradford, an allegedly mentally unstable country lawyer, the deputy attorney general of Washington County who was to be branded as a traitor, a thief and a ringleader of the insurrection for giving violent speeches and rousing the public outcry.

Both lawyers ended up as losers in the conflict -- but both found redemption, after a fashion.

Brackenridge’s pamphlets and articles condemning the excise tax became well known among the politicians in Congress and in President Washington’s cabinet – so much so that Washington’s soldiers chanted anti-Brackenridge epithets on their way to quell the insurrection. But to his fellow Pittsburghers, Brackenridge was a traitor to the cause because he would not support armed resistance against the feds. He ended up losing the trust of his neighbors as an advocate, until he was finally elevated to the Pennsylvania Supreme Court. (This is sometimes what happens when no one else will have you.)

David Bradford had a warrant out for his arrest, and he ended up escaping South to New Orleans, and then to the fringes of Spanish West Florida, before being pardoned by President John Adams. Then, strange as it may seem, President Thomas Jefferson, who was having troubles with Spanish Florida during his term, actually sought out Bradford to help him with the situation, recalling how well Bradford was able to stir up the residents of Western Pennsylvania during the Whiskey Rebellion. I think it says something about the young Republic's willingness to forgive and forget an honest mistake that Bradford might be asked by his president to serve his country once again. After all, it was only a few years before that some of the English-speaking inhabitants of North America had decided to throw off the yoke of the only apparent authority which then existed -- that of the British crown. They claimed that they were being taxed without representation, and they claimed that they had a God-given right to govern themselves. Who could blame Bradford for thinking he might have had the colorable authority to do the same a scant few years after the last time it was done?

And therein lies the gist of my message to the lawyers assembled (in case you missed the speech itself). In a free society, lawyers are given a wide berth when it comes to challenging the existing legal order without being branded as traitors. Although “precedent” is a powerful element in our system, even John Roberts, in his recent confirmation hearings, had to admit that it was not inviolable; the ability to break precedent is, for example, what moved us from the “separate but equal” doctrine of Plessy v. Ferguson to the integration imperative in Brown v. Board of Education. And yet, procedural and ethical rules seem to place limits on a lawyer’s ability to launch arguments that are not grounded in current law – as evidenced by the sanctions that can be imposed against lawyers for “frivolous” claims, for example. So – how is a lawyer to know when he or he has gone too far? What are the limits of a lawyer’s working dissent?

It is part of a lawyer’s job to exercise our independent judgment -- not only about the advice we give to our clients, but about the advice we give to ourselves. We are always, at some level, consciously or unconsciously, asking ourselves: where there are no outright prohibitions and no black-letter rules to guide us, do we have an argument that this is legal? And if it is found to be illegal, what's the magnitude of the consequences? David Bradford obviously got a break, because this was, after all, a first test for the federals. The next guy no doubt took his lumps.

The profession urges us to be men and women of our time – it urges us to be wide-awake and practical, using our wits and our experience and our street sense as we go about our duties. And this applies, I think, to the advice we give ourselves as much as it does to the advice we give others. We take measure of our actions in the context of our times -- and whether we are laboring to maintain the status quo or to effect radical change in society, if we still have our dignity by the end of it all, then it seems to me we’re on the right track.