Bond Chapel, The University of Chicago
June 6, 2014, 4 pm
The Spektral Quartet
The Spektral Quartet
Harry Mark Petrakis
Largo, Handel’s “Xerxes” The Spektral Quartet
The Spektral Quartet
I will be reading the last five paragraphs of Justice Hugo Black's dissenting opinion in In re Anastaplo. Anastaplo argued his bar admission case before the Supreme Court in December of 1960. In April of 1961, the Court ruled against him in a 5-4 opinion. Justice Black wrote the dissenting opinion, with the concurrence of Chief Justice Earl Warren and Justices William Brennan and William O. Douglas.
In September of 1971, Justice Black died. His funeral at Washington National Cathedral drew of crowd of over 1,000 people, including most of the most prominent political and legal leaders in Washington. For one part of the service, Black's son selected excerpts from five of Black's most eloquent opinions to be read. One of those was his opinion in the Anastaplo case.
I have just been reading over some of the material related to this case--much of which appears in Anastaplo's The Constitutionalist: Notes on the First Amendment (SMU Press, 1971), pages 331-418. What is most remarkable about this case is the intellectual depth of the philosophical questions that it raises. The primary question concerns the wisdom of invoking a right to revolution and whether such a right is compatible with constitutional government.
Anastaplo graduated at the top of his class at the University of Chicago Law School in 1950, and he passed his bar examination. When he appeared before the Committee on Character and Fitness, he was asked whether he thought members of the Communist Party should be eligible for admission to the Illinois bar. He answered that he saw no reason why they should be considered ineligible. One member of the Committee responded by observing that Communists believe in revolution. To which Anastaplo responded that Americans generally should believe in the right to revolution as stated in the Declaration of Independence. That then became the point that most bothered the Committee.
In The Constitutionalist, Anastaplo observes:
"It was my defense of the revolutionary principles of the Declaration of Independence that most fiercely aroused the Illinois bar authorities against me a generation ago. It was difficult to make them recognize that the Declaration reminds us of the old-fashioned proposition that there are standards outside and above the agreements and teachings of men, government, and era, standards superior even to what 'the people' might at any moment believe or choose. That is, the right to revolution implies an insistence upon the supremacy of man's reason in the conduct of human affairs. It is as a reminder of political truths, and indeed of the nature of man, that the Declaration of Independence remains our founding instrument: to defend it is, as Lincoln knew, to be patriotic in the deepest sense." (332)This was rejected by the Supreme Court, however, in Dennis v. United States (1951). (The Committee on Character and Fitness announced its decision against Anastaplo shortly after the decision in the Dennis case was announced.) In the Smith Act of 1940, the Congress had made it a crime to teach the desirability "of overthrowing or destroying any government in the United States by force or violence." And thus, it seemed that teaching the right to revolution could be a crime. Members of the American Communist Party were arrested for peacefully teaching Marxism, which includes the doctrine that capitalism must someday be overthrown in a socialist revolution. When they appealed their case to the Supreme Court, they lost. In the Dennis decision, the Court upheld the constitutionality of the Smith Act, and Chief Justice Vinson in effect declared the right to revolution to be unconstitutional and adopted the reasoning of Thomas Hobbes that all government must necessarily reject such a right:
"That it is within the power of the Congress to protect the government of the United States from armed rebellion is a proposition which requires little discussion. Whatever theoretical merit there may be to the argument that thee is a 'right' to rebellion against dictatorial governments is without force where the existing structure of the government provides for peaceful and orderly change. We reject any principle of governmental helplessness in the face of preparation for revolution, which principle, carried to its logical conclusion, must lead to anarchy."Even Hobbes admits, however, that although there is no natural right to rebel against government, rebellion is the "natural punishment" for "negligent government of princes" (Lev., chap. 31). It is natural for human beings to resist oppressive government, and so revolution is natural insofar as it is rooted in human nature.
And yet, as the Declaration of Independence teaches, "prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly, all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed."
Here are the two great themes running through Anastaplo's thought--nature and prudence. We need to look to standards of natural right rooted in human nature. But we also need prudence to judge how those standards are to be applied in ways that do not unreasonably disrupt the governmental forms to which we are accustomed. And although the Constitution does not specifically mention the Declaration of Independence or the right to revolution, Anastaplo argued, the Constitution does implicitly rest on the philosophical principles of nature and prudence stated by the Declaration. The implicit constitutional affirmation of natural right and the right to revolution is clearest in the Ninth and Tenth amendments, while the advocacy of the right to revolution is protected by the First Amendment (see Anastaplo, The Amendments to the Constitution: A Commentary , 93-102).
In making this argument, Anastaplo was following the political thought of Lincoln, while also following the political thought of Socrates in the appeal to natural right. Freedom of speech was the constitutional right by which citizens could invoke these principles of the Declaration of Independence in political debate.
That Justice Black saw this in Anastaplo's case is eloquently indicated in the last five paragraphs of his dissenting opinion:
I do have one question about the relationship between Black's constitutional reasoning and Anastaplo's. Did Anastaplo agree with Black's general incorporation interpretation of the 14th Amendment--the claim that the 14th Amendment applied the first eight amendments of the Constitution to the States? In his bar admission case, Anastaplo seemed to agree with Black that the First Amendment protection of freedom of speech from congressional abridgment now applies to the states, because he argued that being required by the Illinois bar to answer questions about his political beliefs was a violation of his constitutionally protected freedom of speech. But later, in The Constitutionalist (35-49, 710-13), Anastaplo argued that the First Amendment was directed only to the Congress ("Congress shall make no law"), that this left the states free to abridge freedom of speech, and that the incorporation interpretation of the 14th Amendment (beginning with the Gitlow decision in 1925) was mistaken. This argument contradicts Black's position, and even Anastaplo's earlier position in his bar admission case.
George Anastaplo's Tombstone in Jefferson Barracks National Cemetery in St. Louis, With the Last Sentence of Justice Black's Opinion: "We Must Not Be Afraid to Be Free."
Here is my post on Anastaplo's death.