For of all the questions on which our philosophers argue, there is none which it is more important thoroughly to understand than this, that man is born for justice, and that law and equity are not a mere establishment of opinion, but an institution of nature.

    Cicero, On the Laws.

    By the first of these laws, man as he was enabled so withal is commanded to love his neighbor as himself. Upon this ground stands all the Model of Christian Charity precepts of the moral law, which concerns our dealings with men. To  apply this to the works of mercy, this law requires two things. First, that every man afford his help to another in every want or distress.

    Secondly, that he perform this out of the same affection which makes him careful of his own goods, according to the words of our Savior (from Matthew 7:12),  whatsoever ye would that men should do to you.

    John Winthrop, A Model of Christian Charity

    The law, being an inherited accumulation, imposes itself on each generation willy-nilly. Any society whose members enter and leave it severally must for very convenience, to say nothing of deeper reasons, proceed by tradition; the neophyte must adopt existing habits and ways of acting, if for no better reason, through inexperience and diffidence. Mere custom will do the rest as he proceeds. And so the rule is canonized, its origins, and therefore its meaning, are ignored. But genuine learning is quite different.

    Learned Hand, Justice Holmes at 85, at http://commonlaw.com

Let me quickly disavow any attempt to paint Barack Obama a Strict Constructionist by the subtitle for today's effort:  or to paint him any other kind of constructionist for that matter.  Previously I've tried to find insight into Obama's rhetoric in his personal history and allegiance to many groups, and in his understanding of the nature of history.  Today, I'm exploring his legal training and professional experience as a Professor of Constitutional Law rather than a practicing Attorney.  Tall as I am, I'm out of my depth here, and counting on DickDay to set me straight when my speculations go awry.

My institution has a small law school attached, but the contact between Law Faculty and the rest of us is fairly limited.  I know something of how Law Students are taught, and the adjunct institutions (like the moot court and the Law Review) which augment learning in the classroom and library.  But the nuts and bolts of legal education-is it anything like portrayed in The Paper Chase?  I don't know, is it?.  

To the extent that Obama went to Law School and served as a Legislator, his experience is not very different from many persons drawn into politics.  So If I'm to look for specific ways his experience shapes his rhetoric (and, or course, his thinking), I probably have to look to his tenure as President of the Harvard Law Review and his tenure as Professor of Constitutional Law for any possible insights.

When I started assembling materials for this entry, I wasn't exactly sure what the President of a Law Review did.  I have a slightly better idea now.  Michael Levenson and Jonathan Saltzman of the Boston Globe interviewed classmates at Harvard during the runup to the Presidential Campaign.  They described him as "an even hander:" rather than tossing gasoline on the fires of ideological conflict, he listened and sought accommodation between persons of different views:

    Beyond his appearance, what set him apart was his approach to argument, the lifeblood of the law school and the constant occupation of the young lawyers-in-training. While other students were determined to prove the merits of their beliefs through logic and determination, Obama preferred to listen, seek others' views, and find a middle way.

    "A lot of people at the time were just talking past each other, very committed to their opinions, their point of view, and not particularly interested in what other people had to say," said Crystal Nix Hines, a classmate who is now a television writer. "Barack transcended that."

Memories tend to accentuate the positive from a distance of fifteen years-no matter what Shakespeare says about the good being interred with the bones.  Yet Obama as remembered  in 2007 and the Obama we see in 2009 seem to be remarkably consistent.

Elsewhere in the same article, another Law School peer said his bearing was more professorial than anything:

    "If anybody had walked by, they would have assumed he was a professor," said Thomas J. Perrelli, a classmate and former counsel to Attorney General Janet Reno. "He was leading the discussion but he wasn't trying to impose his own perspective on it. He was much more mediating."

    Obama was so evenhanded and solicitous in his interactions that fellow students would do impressions of his Socratic chin-stroking approach to everything, even seeking a consensus on popcorn preferences at the movies.

How does a person do this?  First, by precision in language-hence my title "letter of the law".  The landscape cannot be in flux: words have to mean something consistent-even for the purpose of shifting that meaning to new ground, the old ground has to be steady first.  I think that is one of the things Judge Learned Hand meant in his observation on tradition which I quoted above. 

The next is going to sound like its contradictory: even the ambiguities must be consistent and deliberate.  The last thing one can do is let the adversary steal and redefine the language of the discourse.  We're beginning to see how sensitive Obama is to this.  He is pretty much dispossessed of flap.  This doesn't mean that he doesn't push back in certain distinctive ways.  Not too long ago he scolded a NPR reporter, saying, "Now don't you go putting words in my mouth".  The reporter had done a quite common thing: he had paraphrased a statement Obama had just said, and then asked a question based on the paraphrase.  Most probably wouldn't have noticed much difference between the paraphrase and the original statement.  Most politicians I follow would have been so busy anticipating the question and framing an answer to it that they wouldn't have even noticed how the reporter had turned the phrase.  Not Obama.  He quoted himself and used the quote to respond to the reporter's query.  Talk about being a careful listener.

We see this care about language in his speeches too.  I spent some time at Whitehouse.gov in the Briefing Room, to see how many times he used a phrase attaching himself to clarity in some form or other.  Here are the results for the first eighteen days in June.

• So I want to be clear that there is another path available to North Korea  (6/16/09)
• And I want to start off by being very clear that it is up to Iranians to make decisions about who Iran's leaders will be; (6/15/09)
• Now, let me be clear -- I just want to clear something up here -- identifying what works is not about dictating what kind of care should be provided  (6/15/09)
• The President -- President Mugabe -- I think I've made my views clear, has not acted oftentimes in the best interest of the Zimbabwean people and has been resistant to the kinds of democratic changes that need to take place.  (6/12/09)
• Now, I don't know how clearly I can say this, but let me try to repeat it: If you've got health insurance that you're happy with through the private sector, then we're not going to force you to do anything.  (6/11/09)
• We want peace, we want dialogue, and we want to help them develop. But we do not want military nuclear weapons to spread, and we are clear on that.(6/06/09)
• And then in the autumn when we meet at G20 we will also state very clearly that strengthening the multilateral system is also one that we consider to be important. (6/05/09)
• And so in that spirit, let me speak as clearly and as plainly as I can about some specific issues that I believe we must finally confront together.(6/04/09) Eleven other references to clarity in this speech alone.
• From the beginning, I made it clear that I would not put any more tax dollars on the line if it meant perpetuating the bad business decisions that had led these companies to seek help in the first place (6/01/09) Three other references to making clear in this speech.  
  

Clarity and logic sit at the center of scholarship-and probably especially at judicial/constitutional scholarship.  It is certainly possible to claim clarity as an objective and be lying through one's teeth.  I suppose Nixon wasn't a crook in street parlance.  But then that wasn't what he was accused of, was he?  Coming up next, a trip to the "Back of the Yards" and a remembrance of Saul Alinsky.