The Creation of the Department of Justice: Professionalization without Civil Rights or Civil Service

By Shugerman, Jed Handelsman | Stanford Law Review, January 2014 | Go to article overview

The Creation of the Department of Justice: Professionalization without Civil Rights or Civil Service


Shugerman, Jed Handelsman, Stanford Law Review


INTRODUCTION  I. GOVERNMENT LAWYERS AND PROSECUTION IN THE EARLY REPUBLIC  II. PROFESSIONALIZATION IN THE LATE 1860S AND 1870  III. DEPARTMENT OF JUSTICE ACT       A. The DOJ Act's Beginnings and the Tenure of Office Act,         1865-1869       B. The Passage of the DOJ Act, 1870       C. Why the "Father of the Civil Service" Failed to Install Civil         Service in the DOJ  IV. A FALSE START  CONCLUSION  APPENDIX: ASSISTANT U.S. ATTORNEYS, 1871-1876 

INTRODUCTION

The Department of Justice (DOJ) was created in 1870, after almost a century of disorganization and confusion among the federal government's lawyers. It has been treated like common sense that the DOJ was created to increase the federal government's power in the wake of the Civil War and to enforce civil rights during Reconstruction. (1) For example, one recent book located the DOJ's creation in the general trend of building the modern federal bureaucracy "[t]o [e]nlarge the [m]achinery of [g]overnment," (2) and a set of recent articles explained the DOJ as a Reconstruction project for the protection of ex-slaves' civil rights. (3) This Article contends that the act creating the DOJ, the Act to Establish the Department of Justice (DOJ Act), (4) had different purposes and opposite effects. It has been overlooked that the DOJ Act eliminated the primary tool of the federal government for keeping up with a surge in postwar litigation: outside counsel. From 1864 to 1869, the federal government had paid over $800,000 to such "outside counsel." (5) The DOJ Act essentially cut the equivalent of about sixty district judges or forty assistant attorneys general from the federal government--about one-third of the federal government's legal staff--and replaced them with only one new lawyer, the Solicitor General. (6)

The founding of the DOJ actually undermined Reconstruction, and it had more to do with "retrenchment" (budget cutting and fiscal conservatism) and anti-patronage reform. This Article's new interpretation contends that the DOJ's creation was actually the leading edge of another significant development in American legal history: the professionalization of American legal practice. Many legal historians have identified the 1870s as a major turning point toward the modern legal profession. (7) From the 1860s through the 1870s, a cadre of Republican reformers was working on a combination of the DOJ Act, civil service reform, bureaucratic independence, and the founding of modern bar associations. (8) One of the most significant developments of the antebellum era was the rise of party machines and political patronage, from President Jackson's and President Van Buren's Democrats in the 1820s, to the Whigs in the late 1830s, and eventually to the Republicans, as well. (9) As soon as the Civil War ended, a new reform movement emerged, focusing on professionalization and civil service (restructuring government employment by merit, competitive testing, and job security, rather than political patronage).

In the 1860s and 1870s, Republican lawyers led the reform effort to professionalize the bench and bar. It has been overlooked that the congressman who led the DOJ effort, Thomas Jenckes, was also known as the "Father of the Civil Service," (10) and that his allies led the bar association movement. A substantial part of this Article is based on Representative Jenckes's voluminous papers and letters, which are now housed at the Library of Congress. These professionalization efforts reflected a coherent agenda of (1) separating law from partisan politics; (2) establishing norms of expertise; (3) creating institutions for regulating legal practice; and (4) making these positions more exclusive. Reformers perceived that outside counsel positions were manipulated for patronage, a problem that infected other, nonlegal government offices. Moreover, the reformers perceived the legal profession as tarnished by too much democracy and low professional standards. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Creation of the Department of Justice: Professionalization without Civil Rights or Civil Service
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.