Alschuler on Anastaplo

On George Anastaplo

by Albert W. Alschuler

This lecture on Oliver Wendell Holmes, Jr. is a special occasion for me – especially because the George Anastaplo Works of the Mind Lecture honors someone who has been a hero of mine since I was in high school.  Many of you know something of the Anastaplo story – the son of Greek immigrants, raised in a small town in Southern Illinois, enlisted in the Air Corps in the midst of the Second World War at age 18, flew as a navigator in the Pacific, Europe, and the Middle East, graduated from the University of Chicago and then from the University of Chicago Law School.

At this point, Anastaplo did something that would change his life and inspire not just me but countless others for a long time to come.  In language that he paraphrased from the Declaration of Independence, Anastaplo told the Character and Fitness Committee of the Illinois Bar that he supported a right of revolution.  This disclosure led to a question heard in the 1950s: “Are you now or have you ever been a member of the Communist Party?”  Anastaplo refused to answer.  His political beliefs, he said, were none of the Committee’s business.  He also refused to say whether he was a member of the Ku Klux Klan or of the Democratic or Republican Parties.  The Committee investigated and had no doubt of Anastaplo’s character.  But because he had not answered its questions, it told him he could not be a lawyer.

“That’s unconstitutional,” Anastaplo said, and he spent the next decade litigating the issue.  In December 1960, he argued his case before the United States Supreme Court, and he lost.  The vote was 5-to-4.  Reciting the names of the four dissenters may bring a pang of unhappy recognition of how much both America and the Supreme Court have changed since then.  They are Black, Warren, Douglas, and Brennan.

Although you may know at least the outlines of the Anastaplo story, you probably have not read Justice Black’s magnificent dissenting opinion in his case.  You should.  Every American should.  You can find it by typing In re Anastaplo into your search engine.  At Justice Black’s request, portions of this opinion were read at his funeral.  Black and Anastaplo offer a clear contrast to the figure we’ll discuss in a moment, Justice Oliver Wendell Holmes.

I’ll give you a brief excerpt from Justice Black’s dissenting opinion in the 1961 Anastaplo Case:

[T]his 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 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 . . . .  We must not be afraid to be free.

They say that those who can do, and those who can’t teach.  So when the Illinois Character and Fitness Committee told George Anastaplo he couldn’t, he became a teacher.  Today he continues his long and distinguished career as an educator at this University and at the Loyola University School of Law.  In addition, he is one of American’s two or three most prolific legal scholars.  I believe that his only rivals in terms of productivity are two of my colleagues at the University of Chicago Law School, but unlike my colleagues, what Anastaplo writes makes sense.  A central theme of his wide-ranging scholarship is that some things are truly right and wrong and not just right and wrong because people happen to think so today.

Just as Justice Black once wrote a hymn to George Anastaplo, hymns have been written about Justice Oliver Wendell Holmes . . .

Albert W. Alschuler was a Professor of Law at the University of Chicago.  These remarks served as the prologue to his lecture at the University of Chicago, November 23, 2003.  This lecture, “The Skepticism of Oliver Wendell Homes, Jr.,” was the 2003 edition of the annual “George Anastaplo Works of the Mind Lecture” at the University of Chicago.

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