In the previous six articles, I outlined the history and evolution of the judiciary in New Hampshire. In the last article, I covered how the 1968 BAR merger subverted New Hampshire’s legislative will and entrenched judicial corruption. Therefore, it begs the question: Were these changes to our judiciary a series of unintended consequences (a lawful evolution of the judiciary), or were said changes part of a much more sinister plan by the lawyer class to achieve powers not authorized by the New Hampshire Constitution? You be the judge.
As detailed in Part V of this series, “Time Machine – Judges and the Lawyer Class,” the Founding Fathers addressed their concerns about the usurpation and concentration of power—particularly in the judiciary and among lawyers—through a combination of constitutional design, philosophical writings, and structural safeguards aimed at preserving republican ideals and preventing elitism or overreach.
Constitutional Measures to Prevent Usurpation
The Founders were acutely aware of the risks posed by concentrated power, drawing from colonial experiences with British courts where judges were beholden to the Crown. To counter this, they embedded several key provisions in the U.S. Constitution:
- Separation of Powers and Checks and Balances: They divided government into three branches (legislative, executive, and judicial) to prevent any one from dominating. The judiciary was designed as an independent entity under Article III, with judges appointed for life (during “good behavior”) and protected salaries to insulate them from political influence. However, this independence was balanced by impeachment powers vested in Congress, allowing removal for misconduct and serving as a direct check against judicial usurpation.
- No Titles of Nobility Clause (Article I, Section 9, Clause 8): This prohibited the federal government from granting titles of nobility and barred officeholders from accepting foreign emoluments, offices, or titles without congressional consent. It was a foundational step to block aristocratic influences and foreign subversion, reflecting fears that power could be concentrated through elite honors or bribes.
- Extension via the Titles of Nobility Amendment (TONA): As an outgrowth of these concerns, Congress proposed TONA in 1810 to broaden the prohibition to all U.S. citizens, imposing penalties like loss of citizenship for accepting foreign titles or emoluments. Though it fell short of ratification, it represented a direct attempt to further neutralize risks of power concentration through external aristocratic ties.
These measures were influenced by state-level precedents, such as John Adams’ emphasis on judicial independence in the 1780 Massachusetts Constitution, which he drafted to ensure judges could uphold liberty without fear of reprisal.
Philosophical and Practical Actions Against the “Lawyer Class”
The Founders, many of whom were lawyers themselves, harbored specific suspicions about the legal profession forming an “artificial aristocracy” that could usurp power through elitism, endless litigation, or self-serving manipulation. They took action through writings, debates, and institutional limits:
- Alexander Hamilton’s Defense with Safeguards: In Federalist No. 78, Hamilton described the judiciary as the “least dangerous” branch, lacking force or will but equipped with judgment to check others. He advocated for its independence to protect minority rights and prevent legislative tyranny, but implicitly supported the constitutional checks like impeachment to curb potential overreach.
- Thomas Jefferson’s Vocal Critiques and Reforms: Jefferson was the most outspoken critic, viewing lawyers as prone to obstructionism and forming a privileged class based on wealth and education rather than virtue. He distinguished “natural aristocracy” (talent-based) from “artificial” (profession-based) and warned against lawyers’ influence in letters and his autobiography. For instance:
- In his 1821 autobiography: “If the present Congress errs in too much talking, how can it be otherwise in a body to which the people send one hundred and fifty lawyers, whose trade it is to question everything, yield nothing, and talk by the hour?”
- In a 1813 letter to John Adams: He argued for systems to “neutralize” artificial aristocracies, including lawyers, to ensure government selected leaders based on merit.
- In a 1826 letter to James Madison: He lamented lawyers shifting toward “Toryism” via Blackstone’s influence, abandoning revolutionary principles.
- Jefferson pushed for educational reforms to broaden access to legal knowledge, reducing professional monopolies, and supported agrarian policies to counter urban elite concentrations of power.
- Broader Populist Measures: Anti-lawyer sentiment informed Anti-Federalist debates, leading to the Bill of Rights (e.g., right to counsel in the Sixth Amendment) while ensuring juries and due process as checks on judicial power. Some states implemented term limits or election of judges post-founding to dilute concentration, though federal judges remained appointed.
Overall, the Founders’ actions were proactive: They crafted a system where judicial power was essential but restrained, and lawyer influence was tempered by democratic mechanisms. These efforts, as the article notes, now appear prophetic in light of modern concerns about judicial and professional entrenchment.
In the next article we will cover a key figure in New Hampshire responsible for all the major changes to our State government in the 1960.
