When the National Lawyers Association asked me to speak I was honored, but also concerned. What could I tell this distinguished group, at its second annual meeting, that would be interesting, if not profound, entertaining, if not witty, and short enough to be favorably remembered? As a new national bar association what I say here may not be long remembered, but if I bomb, what you do here, may be.

So the first thing I did was choose a title. Coming from Washington, D.C. that was easy. In our town we have names for agencies that haven't been created, provisions for laws that haven't been passed, and solutions for problems that don't exist.

I chose my title: "About Courts, Constitutions and Fighting Dragons" for one simple reason: it sounded good... No that wasn't the reason, ...well, it was only one of the reasons.

The other reasons relate to what this Associaffon's creation was all about; the proper relationship between law, politics, and the moral order. Each of you understands that connection between courts and law (at least the supposed general connection). You also each understand the relationship between politics and constitutions in a democratic society. While our federal Constitution receives much of the awe and reverence it so richly deserves from what Edward Corwin call the "Higher Law" tradition which imbued its framing and framers, Americans have generally understood that the higher law or natural law tradition was embodied in our Constitution by the democratic political act of ratification, and later amendment.

Some of you might, however, find the "fighting dragons" part of my title just a teensy bit obscure. Thus, a word of explanation is in order.

The struggle with a dragon was throughout Western history seen as a moral allegory; the struggle against evil. Dragons challenged some of the most important symbols of the good civilization, the purity and spirituality in the virgin maiden, the courage and nobility in the knight errant, and the innocence and peacefulness of the child. Dragons laid waste to crops and other productive human enterprises, as well as terrorizing and tormenting whole populations.

Like the great allegorical struggles against dragons, all law is engaged in a moral struggle against evil. In fact, law, at its best, is one of man's greatest inventions or, as I would put it, God's greatest gifts, for dealing with evil. It allows fallen man to produce free, and reasonably nonarbitrary government. It allowed the Framers of our Constitution to fashion a document of popular self-government, not run by angels, to govern men and women who were not angelic.

Yet inherent in law is a serious dilemma for the legal and the political process.How do we design legal systems so that they serve a moral goal without imposing one group's morality on another? Another way of putting this is how do we avoid politicizing the law and morality itself? The controversy over the right to life is representative of the problem, but the problem occurs in numerous other contexts. In fact, much of the structure of our governmental and legal system is designed to constrain and control the tension between the legal and the moral order.

In recent years there has been far too little explicit focus on the problem of controlling this tension, and preventing politicalization which arises out of a disorder in the balance between law, politics and the moral order. Too often the problem is merely the object of popular slogans and bumper stickers. This is unfortunate because making the problem of dealing with this tension explicit is the necessary first step to dealing with it objectively. And we must deal with it if we hope to maintain a free, just and civil society.

Few here would doubt, I believe, that all these characteristics of the good society are today more in question than at any time during most of our lives.

Some years ago, I was at a seminar on campaign reform (such seminars are a perpetual part of our democratic history, contrary to popular belief) and one of the liberal participants criticized the participation of the so-called Christian right in the 1980 election. Immediately, another equally liberal participant asked how was this different than the roles of certain Protestant denominations in the anti-Vietnam war movement? Well, of course, the answer was that MY "morally and religiously based political activism" can't be compared to YOUR improper injection of religion into politics!

Thus, our problem. How can imperfect, and highly biased, human nature be allowed to deal with moral issues in law and politics when it is clear that each side of a political or legal battle is capable of distorting religious and moral truth to serve political and pragmatic legal goals?

Perhaps the answer to this problem is the simplest of our intellectual challenges. We must allow moral values into our legal and political system be cause they cannot be kept out.

Law, the mechanism of free govermment, has moral effects. Many, if not most, of the decisions that stem from it produce results that are good or evil, but not neutral. Thus, to attempt to strip law of morality is a vain and fruitless task, as the history of legal positivism and realism have demonstrated. Law, no more than politics, cannot be made a value free zone of scientific rules.

Are we then left to rampant politicalization as rival moralities and anti-moralities struggle over control of the law making powers of society? Are we left with a choice of burning people at the stake or pretending they are not people at all whose concerns and pains relate only to a utilitarian matrix of maximization?

I think there is hope out of this dilemma for those who accept an objective moral order as well as for those agnostics who are not sure. This path can be found, I believe, in a commitment to at least three concepts. These concepts have all been under severe attack for decades, and the politicalization of the law and various social institutions, which many of us abhor, has resulted.

The first is a commitment to the most important of the devices that the Framers of the Constitution of 1787 used: federalism. This idea has its roots in the medieval world order. The medieval mind recognized multiple spheres and orders of society. The modern world, in sharp contrast, has tended to identify society with government. This gives to government a universal and hence totalitarian claim of dominion.

The federalism of the Framers included the internal separation of powers, the divided sovereignty of national and state governments, and a broad range of human activity beyond government power altogether. The world, the Constitution took for granted, had structures such as churches, communities, extended families, guilds, associations and corporations that only intersected with government in limited ways. This federal world naturally guarded against the politicalization of morals and law by confining such passions to limited spheres. Between those spheres the structural tensions were far more powerful than the political obsessions of the moment.

To the extent legal and political policies over the last century have undercut federalism in the name of various nationalistic goals, they have opened up the body politic to the virus of politicalization. James Madison in Federalist No. 10 makes this point very explicitly. The faction that is the target of his essay, made up of a mixture of human ambition and passionate ideas in religion and politics, can only be controlled by a federal solution. The essay really goes beyond government in the strict sense. It applies to society in all its spheres.

As society has become more homogenized and unitary, the danger of faction or politicalization has grown. And while some of this homogenization has come from technological and social change, much has come from conscious legal and political decisions. We must be far more sensitive and protective of local, unique, odd, particularistic, even anomalous communities and institutions than we have been if we are to further the federal structure of society and oppose the homogenization that brings rampant politicalization.

A second protection against politicalization and the danger it poses to both the legal order and the moral order is the regime of property rights and economic liberty. This is so for two reasons. To the extent that property rights are secure and strongly guarded, a whole range of human activity is put beyond the power of politics. Thus, fundamental decisions in these areas are no longer the concern of contending factions and competing moralities. Economic and societal life is not turned into ideological warfare.

The other important check property rights place upon politicalization is that they force individuals to exercise personal responsibility. When individuals bear the immediate consequences of their actions, for good or ill, they are overwhelmingly more considerate, rational and informed than when these actions are of a political or public sort. People are very careful about imposing their values on others when there is a personal cost to such conduct.

It is a real, though perhaps unpalatable, truth that most Americans devote far more attention and concern, and do more research, for the task of buying a new car than in deciding who to vote for in the national elections. And this should not surprise, alarm or even concern us (though I mentioned it because it does concern us). The reason we should not be surprised is that human nature guides us to focus most on what effects us most immediately. The reason the fact, of more attention to car buying than national elections, concerns us is that our society already suffers from a dangerously high level of politicalization.

A secure regime of private property and economic liberty acts as a firebreak to ever increasing pressures for politicalization.

A third and final (and perhaps most relevant to the National Lawyers Association) barrier to politicalization is the tradition and practice of the common law as it has been understood for most of our history. While law has always had and been understood to have a moral dimension, it has only been since the 1930s that an increasingly large number of people have seen law as a vehicle for social reform. The 1970s witnessed a sharp increase in the acceptance of this vision.

As the vision of law as a tool for restructuring society has been accepted and taught to ever greater number of lawyers and law students, the distinction between law and politics has been obliterated in some quarters. In others it has merely gotten fuzzy. As law has become the tool of power and specific political goals, it has ceased to be a force capable of restraining power and protecting real rights against the use of power. Rather than serving as the honest broker between competing moral and political visions, law has all too often become the prisoner of faction.

This has naturally tended to politicize the profession. And a politicized profession ceases to be a profession at all. The very definition of a profession is a body of people who serve as trustees of a learned skill. If law is just a political tool for those who have the power, then the notions of trustees, special knowledge, skill, in fact, all the notions of duty that a profession connotes, become at best irrelevant and at worst anti-democratic and elitist.

Perhaps nothing better reflects this subtle change wrought by politicalization than the current vision of lawyers held by the public. Even as late as the 1950s and 60s and for many earlier decades lawyers were social heroes. They were the trustees, who could be trusted. They were the advocates of just causes who sought and more often than not were perceived as achieving justice. They were the guardians who faithfully guarded our liberties. While they were at the forefront of struggles for economic liberty, for civil rights, for fair government, and for protecting the rights of the unpopular, they were not seen as political activists. Most important they were the wise and practical counselors of our society. Prudence or practical wisdom was their province. Calling someone a good attorney meant they were a person of character.

On T.V. they were the heroes whether as Mr. District Attorney or Perry Mason. President John F. Kennedy's book Profiles in Courage is replete with lawyers. Lawyers crafted the Constitution, achieved its ratification, and played a critical role in the survival of our republic.

Abraham Lincoln was a very successful practicing lawyer, as were John Adams, Thomas Jefferson and James Madison. Alexis de Tocqueville saw them as America's equivalent of an aristocracy. And Americans on the whole agreed with this view for most of our history.

To the extend that the law has been seduced from this noble tradition of something very different than politics, then the whole society has lost one of its critical defenses against social disintegration. And in our multi-background society, made up of every race, creed, and national origin, social disintegration is far more frightening than even the horror we have witnessed in Bosnia.

To the extent law is politicized, democratic politics are endangered. Because without law as a framework, serving to umpire and limit politics, politics degenerates into unrestrained power struggles, which historically always escalate into the purposeful use of violence, followed by the senseless outpouring of more violence. This pattern is all too familiar whether in Northern Ireland, Armenia, Rwanda, Burundi, Cambodia or the Middle East, to name only a few.

To conclude while everyone is still so courteous, I would stress that while the tension between law, politics and the moral order is real and inescapable in the city of man, as St. Augustine taught us, there are better and worse ways of dealing with it. Federalism, property rights and the common law tradition embodied in lawyers who are people of judgment, practical wisdom and character, is the best mix yet devised by fallible man to keep politics, law and the moral order in their proper relationship. These three institutions all must be strengthened and restored if we are to preserve this Nation that President Reagan so elegantly referred to as "a shining city on a hill". Thank you, and may God Bless and keep you in your noble task.