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WASHINGTON,

PATTON,

SCHWARZKOPF,

AND...

ASHCROFT?

 

 

 

 

 

A longer version of this article appears in Constitutional Commentary, volume 19, number 3 (2003).

(c)2003 by Constitutional Commentary. Reprinted with permission.

 

 

Generals, Generals Everywhere

 

If you attend a Supreme Court argument of sufficient moment to be presented by Solicitor General (SG) Theodore B. Olson himself, you may hear something like this:

QUESTION: Thank you, Mr. Dellinger. General Olson, we'll hear from you.

GENERAL OLSON: Mr. Chief Justice and may it please the Court...1

Ah yes, "General" Olson. A military man.

Then, if you cross the street to attend, say, a congressional hearing on security issues at which Attorney General (AG) John Ashcroft is testifying, you may hear something like this:

SENator BYRD: "General Ashcroft, we welcome you to the Senate Appropriations Committee as we conduct our hearings on homeland security..."2

And so your day would go. While at the Department of Justice (DOJ) you would sense that neither attorneys nor solicitors are in charge; generals are.

The tendency to call the AG and the SG "General" is not new or pervasive. As far as I know, it is not officially endorsed by DOJ; the Department's own publications and Web site do not use that formulation. Reportedly, Janet Reno disliked being called "General" and discouraged use of the title. When John Ashcroft became AG, he told reporters he did not care if he was called "John, General, Mr. Ashcroft, or 'Hey, you.'"

Nonetheless, it is not at all uncommon to call the AG and SG "General." I respectfully suggest that doing so is altogether incorrect.

 

The Attorney General Is a Kind of Attorney,
Not a Kind of General

 

Notwithstanding the popularity of "come here, gorgeous," it is grammatically incorrect to call someone by an adjective. But the "general" in Attorney General is an adjective. That is why the plural is Attorneys General, not Attorney Generals. Indeed, for something with the flavor of annoying pedantry, the careful use of Attorneys General and Solicitors General is universal.

An impressive resume, General... Under "plural anomalies," Fowler's Modern English Usage explains that compound words "ordinarily form their plurals logically, by attaching the -s to the noun element in them." Accordingly, "[t]he officials called General in civil life, e.g., Attorney G., Solicitor G., Governor G., Postmaster G., Paymaster G., being special kinds of attorney, solicitor, etc., should be Attorneys General and so on."

Opinions would vary on what "special kind of attorney" John Ashcroft (or, say, Ramsey Clark) is, but for present purposes, the answer is the general kind, therefore General cannot be his title.

History confirms what grammar suggests. Historically, general refers not to rank or command but to the breadth of attorneyship. The first known use of the term "attorney general" occurred in England in 1398 in a certificate from the Duke of Norfolk's four attorneys general. The "general" indicated that these agents could act for their principal on any matter. "[Over time] it became usual, especially in the case of great landowners, to appoint attorneys to attend to all suits which might arise during a specified period during the life of the appointor, or in a particular county or court. Such an agent was known at first as a general attorney, later as an attorney general."3

Thus, an attorney general was someone who held what today we would call, not coincidentally, a general power of attorney.

The creation in England of the governmental post of attorney general apparently came later. In the 13th and 14th centuries, there existed a fluctuating number of King's Attorneys or Attornati Regis. Only in 1472 was there a single Attorney General, one William Husse, and thereafter the post was held by a single person. Thus, the English history is that the Attorney General was singled out from among the king's many counsel. As attorney for the king, writes Holdsworth, "[h]e could be a more general attorney than those of other men." The "general" indicates nothing other than a general capacity to act for the king.4

The post of Solicitor General came into existence sometime later, but was well established by the early 16th century. The solicitor "served as a general assistant to the attorney in the handling of the King's legal business."5 Again, there is no indication that the general in this title meant anything different from the general in the title of his boss, the Attorney General.

During the American colonial period, the English Attorney General and Solicitor General functioned like their modern counterparts, as the chief litigators for, and legal advisors to, the crown. The colonies established, usually by executive action but sometimes legislatively, Attorneys General with similar functions.

In creating the federal AG and SG, in 1789 and 1870, respectively, Congress borrowed the titles from England. It is reasonable to suggest that Congress was following the English and colonial practice, and that the titles had their historical connotations--these attorneys were not limited to particular matters or courts but could handle any matter in which the United States was interested.

The background of the American office suggests that calling the AG "General" is historically inappropriate for one other reason. A general is, by definition, in charge of somebody. He or she is the top of the heap. In the early years of the republic, the Attorney General was surely the loneliest and most powerless general ever. He was in charge of no one and nothing. He had no staff. He bought his own supplies. He provided his own office. There was no Department of Justice and the AG had no responsibility for or supervision over the district attorneys. Indeed, the Attorney General did not even have a clerk until 1818 and wrote out his own opinions and correspondence. As late as 1853, "Caleb Cushing, the Attorney General of the United States, performed all his duties with the help of two clerks and a messenger."6 In short, Congress created a "general" who was no one's boss, was in charge of nothing, and existed within (one could not say "presided over") a state of "near anarchy in the nation's legal affairs."7

I do not know when the practice of calling the AG "General" began. But surely it does not date back to the 18th century, or any time before creation of the Department of Justice, for then it would just have been too goofy.

Sources on the correct forms of address for government officials do not endorse calling the AG or SG "General." According to the standard text on protocol, a letter should begin "Dear Mr. Solicitor General" or "Dear Mr. Doe," and in conversation the SG should be referred to simply as "Mr. Doe."8 Other texts indicate that a state Attorney General should be addressed as "Mr. Attorney General" or "Mr. Wilson." I have not found even one source that states it is correct to call the Attorney General "General."

Some federal legal officers are real generals. The Army's Judge Advocate General is one, and is promoted to the rank of major general, if he or she is not one already upon appointment. Accordingly, the JAG Corps Web site refers to the Judge Advocate General as "General Romig," not because he is the Judge Advocate "General" but because he really is a general.

The Navy, too, has a Judge Advocate General. But he is not called General. By statute, upon appointment the Navy Judge Advocate General is made a rear admiral. Thus, the Navy Web site refers to the Judge Advocate General as Rear Admiral Guter. All this is as it should be, and is quite inconsistent with calling the AG "General."

Other generals of the AG sort raise interesting questions. What about, for example, the Surgeon General, who is, by statute, Vice Admiral in the US Public Health Service Commissioned Corps? (The Corps is, it claims, "a uniformed service of the same nature as the Navy, Marines, Army, Air Force, Coast Guard, and NOAA Corps." I'm not sure what "nature" that is, except that the members of each wear uniforms.) To my knowledge, no one ever calls the Surgeon General "General." "Doctor" is used instead.

Other nonmilitary generals in the federal government are sometimes called General. The Comptroller General, who heads the General Accounting Office and has nothing to do with the military sometimes gets a General thrown his way. So does the Postmaster General. To the extent other civilian generals -- comptroller, postmaster, inspector, consul, director, etcetera -- get the honorific, it is just as incorrect as in the case of the AG or the SG.

 

Whence "General"?

 
T
he origins of this usage are probably lost in the mists of time. We will never know when the first sycophant tried it out on the first delighted megalomaniac. But we can speculate as to what might explain, though not justify, this improper usage.

I'm beginning to feel really good about myself again. One possibility is just sloppiness. The word "general" sounds like a title, so is used as one. Moreover, other cabinet officers can be addressed as "Secretary." While Attorney General would seem an acceptable equivalent, one can understand the impulse toward the one-word title to correspond to those of other cabinet members. Surely more is at work than that, however.

It likely stems in part from the irresistible pressure to inflate titles. In the business world the proliferation of fancy titles once held only by the top brass enhances employee satisfaction and psychic income without costing the company anything. One would expect such a tendency to be even more rampant in the government, where limited financial remuneration makes non-financial alternatives more attractive.

Thus, in a world, and especially a city (and particularly a body, namely the Senate), in which everyone is crowned not with laurels but with titles and honorifics, it is not a surprise that anyone with General in their title would lay claim to, or be treated to, the most grandiose possibility.

However, the misuse of General predates the recent uptitling epidemic, and the term is more than simply grandiose. There is also no escaping its military connotations. Almost all generals are found in the Army (or Air Force, or Marines). Most people are slightly confused the first time they hear the AG or SG referred to as General precisely because the term's primary meaning and its primary association are military. My guess? The misuse of general is not only confusing, but also attractive.

This cannot be proven, of course. But the military feel to the term is so strong that it is hard to believe its use is independent of that feeling. People are reassured, or impressed, by having a general around and find comfort in having one in charge.

This impulse might be stronger since September 11 and the start of the war on terrorism in which the Department of Justice is a central player. Since then, President Bush has half-jokingly referred to Ashcroft as a military general on occasion. For example, in November 2001 Bush addressed a meeting of the US Attorneys. After being introduced by the Attorney General, Bush said:

Thank you, General.

Well, John, thank you very much for those kind words and I appreciate your strong leadership. It's a principled leadership, it is a steady leadership and it's a leadership that's good for America. I guess we call you General. That means you [i.e., the US Attorneys in the audience] all are in the Army.

And I'm glad you are.

 

The Military and the Rule of Law

 
O
n June 10, 2002, John Ashcroft announced that the FBI had captured Al Qaeda operative Abdullah Al Muhajir. He ended his remarks with a two-sentence warning and assurance:

To our enemies, I say we will continue to be vigilant against all threats, whether they come from overseas or at home in America. To our citizens, I say we will continue to respect the rule of law while doing everything in our power to prevent terrorist attacks.9

It was not consciously intended, but these sentences seem to lay out an opposed pair. Attorney General Ashcroft does not say that we will be vigilant while still respecting the rule of law. Rather, he says we will be vigilant in one direction and restrained in the other. Indeed, taken literally, it sounds uncomfortably as if he is explaining how he spins his activities before different audiences. (Here's what I say to our enemies, and here's how I put it when I'm talking to our citizens.)

In any event, the first sentence is the general speaking, the second the attorney. Which of these is the appropriate voice for the Attorney General?

“Five minutes, General.� I suggest that the Attorney General is most importantly an attorney. In a democracy that makes "the proud boast...that we have 'a government of laws and not of men,'"10 the point is that he is no more than that. He is a participant in the rule of law, an attorney, and not a general, in the words of the Judiciary Act of 1789--"a meet person, learned in the law." The United States is not governed by a Generalissimo. Indeed, the attorney, or solicitor, on the one hand, and the general on the other, are in opposition. The latter epitomizes the principle that might makes right; the former epitomizes the principle that right makes might.

Now, calling the AG "General" is hardly a major step in the direction of a totalitarian form of government. It will not make or break this nation's claim to be an exemplar of the rule of law. There are many more important aspects, and more important symbols, of our commitment, or lack thereof, to that ideal. None-the-less, the line between military and civilian authority is an important one.

"General Ashcroft" should clang. A litigating and law enforcement agency would not and should not have a general at its head. To call civil officials General because that word appears in their title is incorrect by the standards of grammar, history, and protocol. It is also a little silly. And it is at odds with important values.

An oft-repeated bit of SG office lore tells of a letter reaching Solicitor General Robert Jackson addressed simply to "The Celestial General, Washington, DC." A celestial general would be worth having. But such a general is unavailable here on earth, where angels do not govern.11 We should therefore stick with attorneys and solicitors in the Department of Justice, and leave the generals in the army. Law is too important to be left to the generals.

 



ENDNOTES

1. Transcript of Oral Argument, Utah v. Evans, No. 01--714 (Mar. 27, 2002) at 40.

2. Homeland Security: Hearing Before the Senate Comm. on Appropriations, 107th Cong. (May 2, 2002).

3. Hugh Bellot, The Origin of the Attorney-General, 25 L.Q. Rev. 400, 402--03 (1909).

4. W.S. Holdsworth, The Early History of the Attorney and Solicitor General, 13 Ill. L. Rev. 602, 603--04 (1919).

5. Seth P. Waxman, "Presenting the Case of the United States as it Should Be": The Solicitor General in Historical Context, 3 J. S. Ct. Hist. 3, 20 n.49 (1998).

6. Lawrence M. Friedman, A History of American Law 561 (1973).

7. Nancy V. Baker, Conflicting Loyalties: Law and Politics in the Attorney General's Office, 1789--1900, at 49 (1992).

8. Mary Jane McCaffree & Pauline Innis, Protocol: The Complete Handbook of Diplomatic, Official and Social Usage 42--43 (1985).

9. http://www.usdoj.gov/ag/speeches/2002/061002agtranscripts.htm.

10. Morrison v. Olson, 487 U.S. 654, 697 (1988) (Scalia, J., dissenting) (quoting Mass. Const. Of 1787, pt. I art. XXX).

11. See The Federalist No. 51, at 322 (James Madison) (Clinton Rossiter ed., 1961). ("If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.")