National Loyalty, Communalism, and the Professional Identity of Lawyers

I begin with the story of an encounter in Hungary that occurred in the summer of 1992, when I was participating in a seminar for Eastern European lawyers by teaching a sequence of classes on the American view of the legal profession. The idea was that Eastern European lawyers, who were themselves participating in the design of institutional structures-including an organized bar-appropriate to the new political orders emerging in those countries, might learn something from the American experience. As we all know, however, the learning process can work two ways, and it is not always so easy to distinguish the teachers from the taught. A central question that I wanted to explore with these lawyers concerned the conditions that could legitimately be placed by the state on entry to the practice of law.

Thus I presented several cases of the United States Supreme Court dealing with constitutional limitations on state regulation of the bar. For example, could a state limit membership in the bar to "loyal Americans," defined as those untainted by contact with "subversive" ideas or by membership in organizations like the Communist Party? Several states had attempted just such limitations, which drew mixed responses from the Supreme Court. The final outcome of these cases, though, was the unconstitutionality of a state's using membership in the Communist Party per se to prevent individuals from becoming lawyers.

The state was entitled to ask applicants about membership, and to use their answers as the basis for further conversation about their commitment to illegal goals of the Party. However, simple Party membership - and even support of the desirability of radical transformation of the polity into a "proletarian dictatorship" - could not be disqualifying.