Justice Wiley B. Rutledge

Editor’s note: On April 27, 1943, U.S. Supreme Court Associate Justice Wiley B. Rutledge – having just joined the Court as the last of President Franklin D. Roosevelt’s Court appointments – spoke to members of the St. Louis Bar Association. The speech was somewhat of a homecoming for Justice Rutledge, who had previously served as dean of the Washington University Law School. His comments are printed, in part, below.

In 1926 Saint Louis became my home. Shortly afterward you admitted me to your fellowship. For nine years I lived and worked with you. They were among the happiest of my life. Since leaving, I have been honored by your permission to remain one of you. Here, in your associations, I came to know you. From them have come friendships always to be treasured.

As I look back upon those earlier years, I become conscious of two things above others: the greatness of your work and the magnitude of my debt to you. May I speak briefly of the latter first?

Life seldom affords the chance to repay the greatest debts. As the years go by, each brings a new accumulation. Here a friendly word, there an encouraging suggestion, a smile which speaks its giver’s understanding, a handclasp that unites his heart to yours, a boost, a lift, a treasured glance. Add these things together, and the sum is friendship. Multiply them by days, months, years, and the product is to be at home. For what price could these things be bought? Given, who could repay them? The only way is not by counting out the change. It is by passing on to others what one has received from those who give.

I make no attempt therefore to measure out my debt to you. I take it as the generous gift you made. But if, in some way, I can pass along your spirit, recreating its effects in others’ lives, that must be your satisfaction.

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Two further words, in closing. We celebrate this month the biennium of Jefferson’s birth. Fittingly, it falls in a crucial hour. He too lived in a trying time. He stood in his day at a great crossing of the roads of liberty and tyranny. They have wound their ways by devious directions back again to crossing, more difficult perhaps than the one in his time. We stand now, as he in his day, to send the traffic of the future down one road or the other. The task is not merely to point out the direction. It is also, as was his, to build the highway over which the procession shall pass from this point forward.

Jefferson in his day was partisan. But he was much more than partisan. His was essentially the lawyer’s task of giving voice to the client’s cause. Essentially the lawyer, with his people for client, he gave with his great voice the call that brought soldiers to arms. Then to others he left the crossing of swords. But he knew that winning the duel at arms without more, might be but to lose the whole fruit of the victory. He knew that winning the war was not the end, but merely the beginning, the prelude to what must come afterwards if tyranny, defeated, were not to rise again. He knew, finally, that what must follow was in essence the lawyer’s, not the soldier’s task. And he set his hand to it, before the military duty had achieved its end. Throughout the struggle, his works were the works of law. There were the works of others I have mentioned in time of less stress. But they were essentially the carrying forward of the great declarer’s ideals.

Today, as lawyers, we stand to one side that the soldier may discharge his paramount duty in defense of free men, free ideas, and free institutions. But we do not surrender our function or stand idle. We keep it intact, so far as we may and as is compatible with the national military necessity. We do so for two reasons. One is that, while the war goes on, we may not impair the essential legal structure necessary to keep the war moving at highest efficiency, and at the same time may preserve as much of our freedom as may be consistent with that object, so that we may not lose it utterly in the effort to create the foundation required to perpetuate it. The other is that, when the war is won, there may be an operating structure of law to ward off the onset of chaos and a later return of what we now fight.

I believe in law. I believe in force only as a means for maintaining law when other force would destroy it. But law is not an end in itself. It is but a way to provide men with the chance to live in common and, as nearly as may be, in happy adjustments with their fellows. Law which does not do this is no more than force crystallized behind a sheer rule of order. That is exactly what we are fighting today. In the conception of law, therefore, as it has meaning for us, justice cannot be left out. On the other hand, justice unconnected with order is only delusion.

These truths are self-evident. As men of law we accept them implicitly. But we have not always acted upon them. Once we thought we could have law in the States, with little in the nation. That conception failed. The Confederation too narrowly localized the conception of law and for that reason was replaced by the Constitution.

Until lately we, or many of us, thought we could have law within nations without having it among them. That conception also has failed because it also was too narrow in its localization of law. Now we know, or should know if we do not, that neither men nor nations can have law or freedom without some structure effective to restrain the national outlaw motivated by the principle of sheer force in internal and external matters. With such forces loose in the world, our ultimate choice is between a system of force and one of law. We must live as a camp perpetually armed to meet any possible attack or take our part in creating a system of law, backed by such power as may be required, to keep the international peace.

For myself that choice is hardly debatable. It is one dictated by the fundamental premise of our profession. If that is true, there is work for the lawyer to do ― a magnificent task. He will not do it perfectly. The world has not yet seen a perfect legal system and probably never will. But it is part of the legal thesis that imperfect law, with capacity for continuing though never finished improvement, is better than force unbridled and unrestrained by any law.

I have no doubt of the lawyer’s capacity to do this creative task. My fear is he may not recognize the necessity for doing it while the opportunity exists. And to that I add another, that recognizing it he may lose the opportunity, as our forefathers nearly did, by entering into divisions over details and magnifying these differences so that they defeat accomplishment of the larger and essential task. It is important that details be as nearly rightly adjusted as may be. It is much more important that some plan be agreed to accepted. With that, as in our own experience, even major maladjustments can be worked out as time affords the opportunity.

I give you this as the great task of the lawyer in our generation. If we could unite in agreement to do it, it would be done. If we divide on detail and put the division above the basic necessity, we shall fail. To you, as men of law, is handed the torch of Jefferson, of Lincoln, … of all great creators of law, in your time to light and lead the way to a more perfect union, and to establish justice, insure[sic] domestic and national tranquillity[sic], provide for the common defense, promote the general welfare, and secure the blessings of liberty, not merely to ourselves and our posterity but to all free men who will join in that effort.