George Anastaplo and Hugo Black: Is the Right to Revolution Unconstitutional?

In a few days, I will be participating in the Memorial Service for George Anastaplo.  Here's the program:

Memorial Service for George Anastaplo

November 7, 1925 – February 14, 2014

Bond Chapel, The University of Chicago

June 6, 2014, 4 pm

Prelude, “Simple Gifts”
The Spektral Quartet

Welcome and Introductions
Michaelangelo Allocca

Reading of Excerpts for Justice Hugo Black's Dissenting Opinion in In re Anastaplo (1961)
Larry Arnhart

 Largo, “Winter,” Vivaldi’s “Four Seasons”
The Spektral Quartet

Remarks

Keith Cleveland

Christopher Colmo

Francis Wolfe

Second Movement, Beethoven’s Sonata No. 8 Daniel Cheng

Remarks

David Bevington

William Braithwaite

Harry Mark Petrakis

\
Largo, Handel’s “Xerxes” The Spektral Quartet

Conclusion
Michaelangelo Allocca

Postlude
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 [1995], 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:

The effect of the Court's 'balancing' here is that any State may now reject an applicant for admission to the Bar if he believes in the Declaration of Independence as strongly as Anastaplo and if he is willing to sacrifice his career and his means of livelihood in defense of the freedoms of the First Amendment. But the men who founded this country and wrote our Bill of Rights were strangers neither to a belief in the 'right of revolution' nor to the urgency of the need to be free from the control of government with regard to political beliefs and associations. Thomas Jefferson was not disclaiming a belief in the 'right of revolution' when he wrote the Declaration of Independence. And Patrick Henry was certainly not disclaiming such a belief when he declared in impassioned words that have come on down through the years: 'Give me liberty or give me death.' This country's freedom was won by men who, whether they believed in it or not, certainly practiced revolution in the Revolutionary War.

Since the beginning of history there have been governments that have engaged in practices against the people so bad, so cruel, so unjust and so destructive of the individual dignity of men and women that the 'right of revolution' was all the people had left to free themselves. As simple illustrations, one government almost 2,000 years ago burned Christians upon fiery crosses and another government, during this very century, burned Jews in crematories. I venture the suggestion that there are countless multitudes in this country, and all over the world, who would join Anastaplo's belief in the right of the people to resist by force tyrannical governments like those.

In saying what I have, it is to be borne in mind that Anastaplo has not indicated, even remotely, a belief that this country is an oppressive one in which the 'right of revolution' should be exercised.  Quite the contrary, the entire course of his life, as disclosed by the record, has been one of devotion and service to his country-first, in his willingness to defend its security at the risk of his own life in time of war and, later, in his willingness to defend its freedoms at the risk of his professional career in time of peace. The one and only time in which he has come into conflict with the Government is when he refused to answer the questions put to him by the Committee about his beliefs and associations. And I think the record clearly shows that conflict resulted, not from any fear on Anastaplo's part to divulge his own political activities, but from a sincere, and in my judgment correct, conviction that the preservation of this country's freedom depends upon adherence to our Bill of Rights. The very most that can fairly be said against Anastaplo's position in this entire matter is that he took too much of the responsibility of preserving that freedom upon himself.

This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that Anastaplo has many of the qualities that are needed in the American Bar.  It shows, not only that Anastaplo has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost. It is such men as these who have most greatly honored the profession of the law-men like Malsherbes, who, at the cost of his own life and the lives of his family, sprang unafraid to the defense of Louis XVI against the fanatical leaders of the Revolutionary government of France – men like Charles Evans Hughes, Sr., later Mr. Chief Justice Hughes, who stood up for the constitutional rights of socialists to be socialists and public officials despite the threats and clamorous protests of self-proclaimed superpatriots – men like Charles Evans Hughes, Jr., and John W. Davis, who, while against everything for which the Communists stood, strongly advised the Congress in 1948 that it would be unconstitutional to pass the law then proposed to outlaw the Communist Party  -- men like Lord Erskine, James Otis, Clarence Darrow, and the multitude of others who have dared to speak in defense of causes and clients without regard to personal danger to themselves. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.

But that is the present trend, not only in the legal profession but in almost every walk of life. Too many men are being driven to become government-fearing and time-serving because the Government is being permitted to strike out at those who are fearless enough to think as they please and say what they think.  This trend must be halted if we are to keep faith with the Founders of our Nation and pass on to future generations of Americans the great heritage of freedom which they sacrificed so much to leave to us. The choice is clear to me. If we are to pass on that great heritage of freedom, we must return to the original language of the Bill of Rights. We must not be afraid to be free.

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.