A Half-Century Commemoration of Related Events (1961-2011) – February 12, 2011

A 1961 PETITION FOR REHEARING,

A CHALLENGING ANTECEDENT,

AND REMARKABLE CONSEQUENCES

The Petition for Rehearing (of June 19, 1961) set forth below was filed in response to a ruling by the United States Supreme Court with respect to In re George Anastaplo, 366 U.S. 82 (1961). That April 24, 1961 ruling elicited a dissenting opinion by Justice Hugo L. Black which closed with these observations:

            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 which

they sacrificed so much to leave 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.

The concluding sentence of Justice Black’s dissenting opinion is included in the title of a book by Ronald K. L. Collins and Sam Chaltain, We Must Not Be Afraid to Be Free: Stories of Free Expression in America (Oxford University Press, 2011). (That book includes, at pages 4-16, its first chapter, “First Amendment Fundamentalism: George Anastaplo and Free-Speech Absolutism.”) This June 19, 1961 Petition for Rehearing seems to have been the immediate stimulus for a letter (of June 22, 1961) from Leo Strauss (in Palo Alto, California) to George Anastaplo (in Chicago, Illinois). The text of this Strauss letter reads, in its entirety:

                        This is only to pay you my respects for your brave and just

                        action. If the American Bench and Bar have any sense of

                        shame they must come on their knees to apologize to you.

The first footnote (note 20) in the April 24, 1961 Opinion of the United States Supreme Court in the Anastaplo case had said,

Apart from anything else, there is of course no room under our Rules for the suggestion made in Petitioner’s brief that he be admitted to the Bar of this Court, “independently of the action Illinois might be induced to take.” See Rule 5, Revised Rules of this court.

It can be usefully wondered here what “of course” means.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1960

No. 58

In Re George Anastaplo,

                                                            Petitioner

 

Petition for Rehearing

GEORGE ANASTAPLO

6030 Ellis Avenue

Chicago 37, Illinois

Dorchester 3-4825

Counsel pro se

Chicago, Illinois

June 19, 1961

INDEX.

Introduction…………………………………………………………………………………………………………….1

  1. The right of revolution :  seeing is not believing……………………………………………………..5
  2. The burden of proof and petitioner’s record……………………………………………14
  3. The key in petitioner’s pocket…………………………………………………………..23

Conclusion…………………………………………………………………………………..29

Appendix:  Bibliography…………………………………………………………………….31

[[The original page numbers for this Petition for Rehearing are provided here

within double brackets.]]

[The time within this Petition for Rehearing could be served and filed was extended on May 2nd from May 19, 1961 to June 19, 1961.]

Introduction.

And let us not be weary in well

            doing:  for in due season we shall

     reap, if we faint not.

                                    –Galatians, vi, 9.

 

i.

            It is highly probable that upon disposition of this Petition for Rehearing, petitioner will have practiced all the law he is ever going to.  That is, he recognizes that this petition cannot reasonably be expected to affect a decision of this Court reached after long deliberation.  Nevertheless,  [[page 2]]  petitioner is obliged, if only to complete his effort, not to let pass unnoticed the errors in the Opinion of this Court.

            Since no one would profit from a mere repetition of arguments developed in earlier briefs, this petition is directed primarily to a discussion of the novel problems raised by the Opinion of this Court.  Petitioner will then have discharged the obligation to the profession and to the community that he assumed when this Court permitted him to appear as counsel pro se.  That is, he will not only have stated his legal position but will also have recorded, among the papers he has filed in this Court, an adequate answer to the arguments that have been marshalled against him.

            It must also be recorded that this entire controversy is itself but an image of a much more fundamental one which bears on the problem of the education and character of the citizen as well as of the lawyer.  We must try to take seriously again the concern and conditions for virtue, nobility, and the life most fitting for man.

            Petitioner, exercising the prerogative of one retiring from a profession, would advise the new lawyer that he learn well not only the tools of his craft but also the texts that have come to us from the ancient world.  It is in those texts that one may find the best models, both in word and in deed, for the conduct of oneself in public as well as in private affairs.  It is there that the better natures are most likely to be exposed to the accents and majesty of human excellence.

[[page 3]]    ii.

            But we must return one more time to our immediate problem.  Perhaps it would be well at the outset to remind the reader that the question of membership in the Communist Party or in the Ku Klux Klan is not an issue in this case, but at most only the effect in a bar admission proceeding of a conscientious refusal to answer unusual inquiries about such membership when it is conceded that there is no allegation or evidence of membership, when the inquiries occur only in the context of badgering about philosophical and political views, particularly views about the right of revolution and the Declaration of Independence, and when petitioner’s silence is couched in the form of a refusal to submit to something deemed by him to be in the nature of a test oath and to be improper, ungentlemanly and unconstitutional inquiry.  One should be reminded also that it seems to be generally conceded that the evidence supporting petitioner’s character and fitness, in the ordinary sense of these terms, is overwhelming and uncontroverted.  Finally, the reader should be reminded that the only legitimate issue in this case is that of petitioner’s qualifications for the practice of law, qualifications that rely for their effective application as much on the integrity and good sense of the legal profession as on the character and fitness of an applicant.

            A leading member of petitioner’s character committee, who was President of the Chicago Bar Association at the time he voted against petitioner’s application, has collected seven “very difficult questions” which confronted him during his years with the committee.  (Weiss, 45 Illinois Bar J. 821-22)  He asks whether “a certificate of good moral character” can be granted to

a)     A boy with an excellent school record, an enlistee in the army, whose family background were [sic] in  [[page 4]]  all respects excellent except that investigation brought out the fact that he was a homosexual;

b)     A boy who had participated in a felony at an early age but whose subsequent acts indicate rehabilitation;

c)     An applicant who has wrongfully altered school records but who openly and candidly admits the error of his way in later years;

d)     An applicant who refuses to answer what he considers questions pertaining to his personal beliefs;

e)     An applicant, the truth of whose statements are doubted, whose demeanor adds to those doubts, and in the course of the investigation refuses to take a lie test;

f)      An applicant who has served a jail term for an offense without making a defense in his own trial on a fallacious theory that to do so would be waiving his constitutional rights;

g)     An applicant formerly adjudge insane, then sane, and whose conduct before the Committee is completely irrational.

Is it not apparent that one of these cases is clearly not related to the usual problem of an applicant’s moral fitness, to the problem of how he might conduct himself in critical situations requiring the use of a reasoned moral judgment by the lawyer?  And is not this single exception the very one that alludes to petitioner’s case, a case that developed out of petitioner’s alleged political offenses?

            Committees  “on character and moral fitness” were neither intended nor designed to concern themselves with political offenses.  They are so poorly prepared for this concern that they can only vacillate between the ridiculous and the dangerous when they abandon their proper function:   they are ridiculous in their obvious inability to cope  [[page 5]]  with any serious political threat to the bar or to the community; they are dangerous in their all-too-evident ability to cow the spirits and subvert the rights of applicants for admission to the bar.  It is appropriate, in this connection, to remind ourselves of observations of Lord Cockburn in which he insists upon a distinction between the political and the non-political, a distinction that is sanctified by the experience and demands of “British freedom” (Examination of the Trials for Sedition Which Have Hitherto Occurred in Scotland [1888], I, 68):

It may be expected to prosecute political delinquency, even to the death, but certainly not necessarily on account of the moral iniquity of the accused.  Amidst conflicts of opinion, each half of the community is seditious in the sight of the other.  When governments are unsettled, it has often been doubtful, with the purest characters, whether treason itself was not a duty.  The English revolution made traitors in law of men of the highest personal honour; nor was it till things got solid, by the subsidence of the loose matter connected with that event, that personal integrity and political innocence became the same.  To see no difference between political and other offenses is the sure mark of an excited or of a stupid head. . . .

1.  The right of revolution:  seeing is not believing

i.

This court has now held for the first time that it is consistent with eligibility for admission to the bar for an applicant to defend (as does petitioner) the right of revolution and the Declaration of Independence.  81 S. Ct., at 986.  That this has been denied for a decade in Illinois—that petitioner’s defense of the teachings of the Declaration of Independence has been one of his cardinal political offenses—is evident to any careful student of the record.  [[page 6]]  Even the Attorney General of Illinois, in his brief as well as on oral argument, has gone so far as to claim that the inquiries by the character committee into petitioner’s affiliations were prompted and justified by petitioner’s quotation from the Declaration of Independence (R. 381-382) (Reply Brief, pp. 12-17).  The sequence recorded in the transcript excerpt reproduced in Note 3 of the Dissenting Opinion reflects the hostile attitude throughout the years of the Illinois bar authorities when confronted by petitioner’s opinions on the subject of rightful rebellion.

            The Opinion of this Court can find, however, that “it is perfectly clear that the Illinois Bar Committee and Supreme Court [of Illinois] regarded petitioner’s refusal to cooperate in the Committee’s examination of him as the basic and only reason for a denial of certification.”  81 S. Ct., at 986.  This conclusion is reached in an Opinion which acknowledges, nevertheless, that “certain” members of the committee thought that petitioner’s views “on the right to resist judicial decrees” “affirmatively demonstrated his disqualification for admission to the bar.”  Ibid.  But, in Note 18, the Court rejects this admission by “certain” members with the explanation, “This of course could hardly be so in the context of the illustrations which Anastaplo gave of his views as to when a right to resist might arise.”

            The author of the Opinion of this Court thereby assumes us that he would not have thought petitioner’s views on this subject to raise doubts about his qualifications for the bar—but he imputes to these “certain members” more common sense and self-restraint than they exhibited during the hearings when he chooses to believe they could not have regarded unfavorably petitioner’s views on this subject.  It is a measure of the irrationality at work here  [[page 7]]  that “certain members” did take a position that this Court cannot or does not want to believe these members, despite their explicit admission, could have taken.  Yet, is it really unbelievable that such a position might have been taken by committee members who pressed petitioner about his religious beliefs and who behaved as several members are revealed by the record to have behaved?  True, these members probably were not troubled by petitioner’s “illustrations … of his views as to when a right to resist might arise”; but they did resent, and continue to resent, petitioner’s reservation that he would have to rely upon his own judgment as to when constitutional government had been so subverted that the right of revolution might properly be exercised.  Petitioner’s reservation to himself of an independent judgment remains the critical difficulty with his eligibility:  members of the committee have come to expect applicants for admission to their bar to be deferential to the point of servility. (See pages 26-28.)

            Why not, in order to understand what petitioner has been confronted by for a decade and in order to appreciate the significance of the action taken against him—why not take these members at their word, especially when they went to the trouble, in the final paragraph of a committee report which was a year in preparation, to state clearly their position:

Certain members of the Committee (who are included within the majority who believe that applicant’s petition for a license should be denied because he has failed to meet the burden which is on him of establishing his proper character and fitness) are of the further opinion that the record demonstrates affirmatively applicant’s lack of the character and fitness necessary for admission to the Bar.  They base their views upon … (ii) applicant’s view that circumstances might exist under which he would not abide by, and might advise other citizens not to abide by, final decrees of a  [[page 8]]  court of law and to resist by force their enforcement by appropriate legal process, when considered in connection with his views as to the overthrow of the government by force and violence.  [R. 467.  Emphasis supplied.]

How many are “certain members”?  If there are as few as three—and at least five suggest themselves to the student of the record—then the majority of the committee is constitutionally tainted, even within the terms of the Opinion of this Court.

            That is, the final vote of the committee was 11 to 6 against petitioner.  If these three (or more) votes had shifted from the majority to the minority, the court below would have received from the committee a recommendation which would have “entitled [petitioner] to admission to the bar” (Rule 58, Sec. IX, Supreme Court of Illinois).  (If these three (or more) commissioners had written a separate opinion, there would not have been the usual majority report for the court below simply to affirm.)  But, it will be said, the more radical “certain members,” even if they had not held as they did on the right of revolution offense, would still have voted against petitioner on the ground shared with the remainder of the majority.  How can this be known?  For all we know, the “certain members” of the majority took seriously the ground shared with the remainder of the majority (i.e.,  the refusals of petitioner to answer any question about political affiliations) primarily because of petitioner’s views on the right of revolution—primarily, that is, because of views that this Court now holds to be improper as a ground or even influence for exclusion from the bar.

            Indeed, upon review of the record, one finds that for some members the right of revolution discussion is far more troublesome than petitioner’s refusals to answer questions about political organizations to which he has been in no  [[page 9]]  way linked by the committee.  In fact, after petitioner had explained on request his views about the right of revolution, the chairman of the hearings raised again the question of affiliations:

Because I feel the question is relevant to the right of revolution category [prescribed by the Supreme Court of Illinois in the rehearing order set forth at 18 Ill. 2d 186], I am going to put a few specific questions to you again.  Are you a member of the Communist Party? . . . . Have you ever held office in the Communist Party? [R. 159-160. Emphasis supplied.]

The suspicion and hostility evoked to the last by petitioner’s opinions are further reflected in the fact that his views on the right of revolution are condemned by “certain members” as demonstrating affirmatively applicant’s lack of the character and fitness necessary for admission to the bar. (R. 467) Unbelievable? And yet true.

            It should also be noted that it is likely that those of the majority who did not join in the candid final paragraph of the Committee Report were influenced by the attitude and arguments of those “certain members” of the majority who felt so strongly about petitioner’s views on the right of revolution that they insisted on that final paragraph.  Rational discussion and evaluation of a record can be hopelessly corrupted by the presence of such prejudice as is revealed in that final paragraph.  This would be so whether these “certain members” constituted two commissioners or ten.

            Finally, it should be noted that the position of the “certain members” is not attributed to them by conjecture or inference:  rather, it is the position which they insisted upon including in the Committee Report with a view to expressing fully the basis of their critical votes and in the expectation of influencing (as they did) the decision  [[page 10]]  of a closely-divided state supreme court.  Is it consistent with sound judicial practice and lawyerlike analysis to disregard completely a ground that had been explicitly and deliberately set forth in this manner?  Is not petitioner entitled to a review which at least begins with the acknowledged facts of his case?

ii.

            This Court concludes Note 18 of its Opinion with the observation, “Nothing in the State Court’s opinion remotely suggests its approbation of these views of ‘certain’ Committee members.”  Does it make any difference to this Court that there can be shown a suggestion of approbation, and much more than a suggestion, in the opinion of the court below?  The court below does state, disregarding the terms of its own 1957 order (reprinted at 18 Ill. 2d 186) providing for the rehearing, that

the major issue presented to the committee arose from the applicant’s continued refusal to answer questions regarding possible Communist or other subversive affiliations. [18 Ill. 2d, at 190]

But the court below also states, without subsequent qualification, that the Committee Report raises

a serious question whether the attitude expressed by Anastaplo toward final court determinations binding upon himself and toward attempts to enforce them conformably to the law is consistent with the oath required of attorneys in this State.  An attorney is an officer of the courts.  (In re Day, 181 Ill. 73.)  In Cooper v. Aaron, 358 U.S. 1, 3 L. ed. 2d 5, the United States Supreme Court said, at page 8, “No state legislature or executive or judicial officer can war against the Constitution without violating his undertaking to support it.”

            The committee’s report also suggests that Anastaplo’s attitude with respect to advising others along the same subversive lines in his capacity as “citizen”  [[page 11]]  in contradistinction to his capacity as “attorney” raises additional serious questions concerning his capacity to take the oath required of attorneys in this State. . . . [18 Ill. 2d, at 189-190. Emphasis supplied.]

Certainly, this is much more than a “remote” suggestion of approbation “of these views of ‘certain’ Committee members.”  In evaluating the record as a whole, including petitioner’s refusals to answer questions about any political affiliations, what was the effect on the court below of its evident belief that petitioner’s perfectly legitimate attitude (i.e., opinions) ran along “subversive lines”, that he was waging “war against the Constitution” and that his opinions raised “additional serious questions concerning his capacity to take the oath required of attorneys”?  The court below does not conceal the fact that it was moved by these considerations, considerations that go back to petitioner’s defense of the teachings of the Declaration of Independence.

            In any event, the majority of the committee was made up (and, on this record, necessarily made up in order to constitute a majority) of “certain members” who were, by their own deliberate admission, strongly influenced by a consideration that this Court has now held to be clearly improper.  81 S. Ct., at 986.  In addition to the “certain members” who found petitioner’s views on “the right of revolution” evidence of bad character, the entire committee majority gave as one reason for insisting on the unanswered majority gave as one reason for insisting on the unanswered affiliations questions its conviction

that the applicant’s credibility in connection with his answers to questions pertaining to the right of overthrow and the enforceability of judicial decrees should be tested by questioning him about possible subversive beliefs and activities. [R. 458.]

[[page 12]] Thus, the committee’s adverse reaction to petitioner’s views on the subject of revolution is admitted by the committee majority to have played a much greater role in petitioner’s proceedings than this Court seems willing to let the committee or the court below admit.

iii.

            At the very least, and for these reasons alone, the exclusion order should be reversed, with instructions to the Illinois bar authorities on remand that they reconsider the record already made in this case without giving any adverse effect to petitioner’s allegedly “subversive” views on the right of revolution.  The Opinion of April 24 seems consistent, in its declarations about the right of revolution aspect of the case, with such a reversal and remand.  (That is, this Court has indicated that if adverse effect could be said to have been given to petitioner’s views on revolution, the decision below should not be permitted to stand.)

            But, as matters have been left by that Opinion, the Illinois bar authorities are not now required to reconsider their decision and this record to make certain that improper considerations were not brought to bear in exercising that “informed judgment as to whether the situation was an appropriate one for waiver of the Committee’s continuing requirement. . . that [certain] questions must be answered.”  81 S. Ct., at 986.  Petitioner has been left only with the time-consuming and (for him) prohibitively expensive alternative of initiating still another rehearing and compiling still another record.

            Nor is one encouraged to assume the risks and obligations of making a new record when one realizes that all of the present record subsequent to page 28, the point at which the first political affiliation question was left un-  [[page 13]]  unanswered, has been dismissed as virtually immaterial.  Indeed, one could say that all of the present rehearing was little more than a sham from the beginning since the court below ordered the rehearing after petitioner had explicitily and definitely stated in advance that he would not answer any questions about political affiliations (R. 484-489).  (We return at pages 19-22 to the attempt by this Court to justify the manner in which the record has been dismissed.)  Is it not fairer to make some use of the record we already have before setting out to build a new one?

            Be that as it may, the passages that have been quoted from the majority opinions of the character committee and of the court below reveal the candid but improper attitude of the Illinois bar authorities toward petitioner’s views on resisting court decrees, an attitude that it is reasonable to conclude influenced the reaction toward petitioner’s refusals to answer certain questions.  Petitioner has at last elicited the ruling that the Declaration of Independence, even as it applies to court decrees, may be defended by an applicant for admission to the bar.  Why should not the Illinois bar authorities be required to exercise their “informed judgment” on the present record with this unprecedented ruling in mind, especially since only one vote in the court below and three votes in the character committee proved the margin of petitioner’s exclusion?  Only in this way will the ruling that petitioner has earned after a decade of effort have any practical effect in his case.  “The laborer is worthy of his hire.”

            It is respectfully requested, therefore, that the order below be reversed and that this case and record be remanded to the state supreme court “for further proceedings not inconsistent with the opinion of this Court.”   [[page 14]]

2.  The burden of proof and petitioner’s record.

            We attempt to show in the discussion that follows why the remand that has been requested could well include the ruling that petitioner has clearly established his character and fitness for the practice of law.

i.

          One was obliged to believe, prior to the decision by this Court, that there were standards to be applied to state determinations of applicants’ eligibility for admission to the bar.  Yet, where is the alert bar applicant left by the Opinion of April 24th if not with the warning that there are no longer any constitutional standards in these matters to which state decisions must conform?  It would be far fairer to the bar and applicants alike to announce that this Court simply does not review bar admission cases.  This, at least, would have the advantage of lending support to the much-maligned cause of “state’s rights”.  As it is now, however, this Court asserts its authority in these matters even as it abdicates the responsibility it has assumed.

          Certainly, it is difficult to salvage any meaning at all from “burden of proof” if this record can be dismissed as not clearly establishing petitioner’s eligibility for admission to the bar.  There are more than 500 pages of record, drawing on committee sources that range over a decade; and yet (aside from the constitutionally-invalid references to petitioner’s “subversive” views about the right of revolution) there is not alleged one item of adverse evidence in a record which has more than enough favorable and uncontroverted evidence to qualify a dozen applicants for admission to the bar.  [[page 15]]   

What would this Court do in any other case, in which due process considerations were raised, if the ruling of the government body should be so patently in defiance of the clear and uncontradicted tendency of the evidence?  Surely, prejudice and resentment on the part of the government body would be suspected—the very conclusion to which the Dissenting Opinion was driven upon reviewing the evidence in this record.  81 S. Ct., at 992.  Is not petitioner entitled, in the terms of the Schware case, to a rational determination of his eligibility consistent with the long record that was carefully made in his case?

          If there had been an automatic exclusion rule in Illinois (as distinguished from the “impossible” language we discuss at page 20), then one might, with some plausibility or at least with honest regret, say, “Yes, the evidence is uniformly, even overwhelmingly, favorable to petitioner’s application for admission, but there happens to be a clear formal requirement that all unrepudiated questions asked by the committee must be answered before one can be admitted to the bar.”  But there has never been such a rule in Illinois; there is none today, except to the extent that the Opinion of this Court has now established it by inference.

          No case, before April 24, 1961, announced an automatic exclusion rule; no statute or rule of court provides for it.  Even the committee and the court below, by neglecting to mention (in their 1954, 1959, and 1960 opinions) certain unanswered questions (about the Ku Klux Klan, The Chicago Tribune, The Daily Worker, and the Republican and Democratic Parties), tacitly admitted there is no such rule.  In fact, considering the irresponsibility of certain members of the committee, which is apparent in the record, there cannot be such a rule.  Yet, the 1957 Schware and Konigsberg decisions, relying on which petitioner undertook  [[page 16]]  to confront once again the Illinois bar admission authorities, seem to promise that there must be such a procedural or technical ground before a disregard of the weight of the evidence can even begin to be justified.

          There are, in the Opinion of this Court, allusions to what are considered to be unrealistic allegations by petitioner of surprise that he should have been excluded from the bar because of his refusal to answer certain questions about political affiliations.  81 S. Ct., at 984; also, Note 16.  But, as petitioner indicated as recently as his oral argument before this Court, he realized the probable consequences of standing by his position before the character committee.  The surprise he has expressed is with respect to the belated attempt by the Attorney General of Illinois and by others to infer from the record, or from the history of cases in Illinois, a “warning” which amounts to or reflects something approaching an automatic exclusion rule in that State for refusal to answer any question later deemed to be “relevant.”

          The Illinois bar authorities—just as those in California—thought themselves obliged after 1957 to try to find or give such a warning.  The California authorities (as is clear from the excerpts reproduced, at 81 S.Ct. 1005-1006, in the Opinion of this Court in the companion case) succeeded in doing so, but not without changing their rules and defying the spirit of this Court’s mandate.  The Illinois authorities, perhaps because they could not find a clear committee majority at any time during the four months of the hearing to support such an innovation, did not do so.  They settled, instead, for no stronger than a “could and might” stipulation. (R. 103)  Even this stipulation, as the record shows, was no more than the opinion of “one of the principal Committee members”  [[page 17]]  (to use this Court’s description of him, 81 S.Ct., at 984), a member who repeatedly insisted he could speak only for himself. (E.g., R. 294-295, 297-298.)

          The Opinion of this Court refers to the 1954 opinion of the court below as providing still another “warning” (81 S.Ct., at 985); but that opinion must be read in the light of the 1957 order of the same court overruling the character committee and providing for the current rehearing.  It is laid down in this 1957 order that

the principal question presented by the petition for rehearing concerns the significance of applicant’s views as to the overthrow of government by force. . . .[18 Ill. 2d, at 186]

 

All references to the earlier unanswered questions about affiliations must be deemed to have been deliberately excluded from the 1957 order:   petitioner and the committee were thereby put on notice that the affiliations questions which had loomed so large in the 1954 opinion were secondary if not altogether irrelevant.  In effect, the 1954 opinion of the court below was tacitly repudiated by the 1957 order.

            Even had this 1954 opinion not been repudiated, it would have survived as tainted by its adoption of the 1954 committee statement

that [although] the views and opinions expressed by petitioner on [the right of revolution] were not the basis for the denial of a certificate, . . . such views increased the importance of petitioner’s refusals to answer and made more necessary a complete answer on the subject of membership in the Communist Party. . . [3 Ill. 2d, at 474.]

No applicant should be held to be “warned” by an opinion that clearly rests, in significant part, on a ground that is held by this Court to be improper, indeed even unthinkable and unbelievable.

            [[page 18]] The Opinion of this Court further states, in order to justify the disregard of the record made in this case,

Even as to one charged with crime due process does not demand that he be warned as to what specific sanction will be applied to him if he violates the law.  It is enough that he know what sanctions “could and might” be visited on him.  Anastaplo was entitled to no more. [81 S.Ct., at 985.]

But was not petitioner entitled to expect that the “law” laid down by the 1957 order of the court below would be determinative of the terms of the rehearing proceeding?  Besides, is this really a question of the range of sanctions?  One charged with crime is entitled to know what conduct is an occasion for any sanction that “could and might be visited on him”.  Is not one also entitled to certainty about what is a requirement for admission to the bar, especially when a new-fashioned technical “requirement” is used to draw a curtain between this Court and the record compiled through many hours and months?

            Had a clear warning, in the terms of the 1957 Konigsberg decision or reflecting even an ad hoc automatic exclusion rule, been given petitioner it would have made considerable difference in this case.  Petitioner would have known as early as page 28 of the record that further discussion was for all practical purposes useless—and he could have conducted himself accordingly (e.g., by requesting that the hearings be suspended and that the record be submitted to the court below for determination of this vital point).  Such suspension of the hearings would also have served to keep out of the record the right of revolution exchanges which seriously prejudiced the case of petitioner in the minds of “certain members” and even of the entire committee majority.  This step would have preserved unencumbered the affiliations issue for the the state supreme court to consider in the light of its 1957 order of only a few months before.

            [[page 19]] The truth of the matter seems to be that the character committee did not give a clear warning because it did not know what its position would be.  Furthermore, it was proceeding under recent directions from the Supreme Court of Illinois in which any reference to unanswered questions was markedly absent. (18 Ill. 2d, at 186)  Even the member conducting the rehearing could admit at the final session (when asked by petitioner about the committee attitude toward the unanswered questions), “I don’t know what stands out in other people’s minds.” (R. 294-295.)  (The committee letter curiously relied upon in Note 15 of the Opinion of this Court is similarly non-committal, without even a reference to any unanswered questions. (R. 441) )  In short, petitioner was permitted to proceed and depart with the understanding that the record as a whole would be evaluated with respect to his character and fitness in determining his application for admission to the practice of law.

ii.

            An attempt is made by this Court to account for “the record as a whole”.  The Opinion of this Court explains that the long examination of petitioner, even after he had clearly stated he would not answer questions about political affiliations (R. 28, 484-490), indicated

no more than that the Committee was attempting to exercise an informed judgment as to whether the situation was an appropriate one for waiver of the Committee’s continuing requirement, earlier enforced after the first Anastaplo hearings, that such questions must be answered. [81 S.Ct., at 986.  Emphasis supplied.]

(We have already reviewed this supposed “continuing requirement” as it was affected by the 1957 order of the court below and by what the committee could and could  [[page 20]]  not say.)  This Court attempts in this passage to justify the committee’s prolongation of the hearings long after petitioner had failed to satisfy the “continuing requirement . . . .that [certain] questions must be answered.”  This justification relies on an explanation that does not appear either in the report of the committee or in the opinion of the court below:   there has been no suggestion heretofore that the Illinois bar authorities had been “attempting to exercise an informed judgment” as to whether it should waive its “continuing requirement”.

            In fact, the court below, in a passage quoted by this Court at 81 S.Ct. 982, repudiates any suggestion that such an “informed judgment” was being exercised:  for Illinois insists that a determination that an applicant is eligible for admission to the bar “is impossible where [the applicant] refuses to state whether he is a member of a group dedicated [as the Communist Party is said to be] to the overthrow of the government of the United States by force and violence.”  (18 Ill. 2d, at 200-201. Emphasis supplied.)  One does not deliberate or exercise any judgment at all about impossibilities.  Aristotle, N. Ethics, III, iii.

            Once again this Court, in order to lend constitutional plausibility to Illinois’s action, implicitly vindicates petitioner’s position by having to resort to the extreme of radically revising the rationale of the bar authorities.  Petitioner is reduced to the expedient of addressing himself to this revised rationale for the first time in a petition for rehearing.  One is tempted to say of this state of affairs what Athene was reduced to saying to usurping Zeus:

You may do this if you like, but we, the other gods, will not praise you for it. [Iliad, xxii, 180]

 

[[page 21]] But let us, instead, address ourselves to the revised rationale.  That is, let us assume, contrary to the express ruling of the court below that petitioner’s refusals made his admission impossible, that an “informed judgment” was exercised as to whether to “waive” the “Committee’s continuing requirement”.  Still, it must be asked, are there any limits to how an “informed judgment” might be exercised?

            An “informed judgment” would seem to be even more circumscribed than “discretion”:  and yet we know that the exercise of discretion by courts cannot be unlimited, that it must respect in a reasonable manner the facts of a case.  Must not the exercise of an “informed judgment” also be reasonable?  Must it not, in petitioner’s case, consider such factors as, how the unanswered questions arose in the first instance, what reasons petitioner gives for not answering such questions, whether there are responsible lawyers and judges who indorse petitioner’s position, what the general weight of the evidence suggests about petitioner’s qualifications for admission to the bar, how petitioner’s attitude and conduct relate to the calling of a lawyer?  But no factors of this, or any other kind, are referred to as taken into account by the committee in making the “informed judgment” now attributed to it.

            The Opinion of this Court concludes with the observation that

our function here is solely one of constitutional adjudication, not to pass judgment on what has been done as if we were another state court of review, still less to express any view upon the wisdom of the State’s action. [81 S.Ct., at 987]

 

[[page 22]] Can one permit a judgment to pass muster as “informed” without considering at all its “wisdom”?  What has become of “the dictates of reason” to which recourse was promised in the Schware concurring opinion?  353 U.S. 232, at 249.

iii.

            We return then to the question, What does the record as a whole not only permit but require on the only issue of this case, the issue of petitioner’s qualifications for admission to the bar?  The Opinion of this Court does seem to express reservations about the wisdom of Illinois’s action, even while it confirms the power of the State to act as it did.  But does the action of the Illinois bar authorities have any “rational support in the evidence” of this record?  (81 S.Ct., at 1000)  Eleven members of a committee on character and fitness testify that petitioner has not satisfied them that “he possesses the good moral character and fitness to practice law.”  (R. 466)  Presumably, they would, as character references for petitioner, be unable to answer the concluding questions on the standard confidential form used by the committee (R. 412),

Do you consider applicant worthy of the highest trust and confidence?  For example, would you recommend him as the guardian of a minor’s estate?

Presumably, also, they pledge that they have applied in their assessment of petitioner the same standards that they have come to demand and expect of their colleagues at the bar, the very same standards which resulted in only 15 other rejections by this committee out of approximately 3000 applicants over a six-year period.  (45 Illinois Bar J. 821)

            [[page 23]] Has petitioner demonstrated his qualifications for admission to the bar?  If it can be honorably said, on a long record drawing upon ten years of examination and argument, that petitioner’s qualifications have not been established, then he truly does not deserve ever to be admitted to the bar.  For it must be conceded that his qualifications are as well established now as they ever can be—and it would be presumptuous toward this Court and toward the court below for petitioner to try again.  If, on the other hand, his exclusion is condoned despite his evident qualifications, then something is seriously wrong with the American bar and perhaps even with America—and it would be unbecoming of petitioner, after he exhausts his legal remedies on the present record, to adopt on his own initiative the role of the perpetual suppliant.

            In any event, we must all hope that the decision announced April 24th means more than that petitioner’s career at the bar is at an end.  We must all hope that it also means that Illinois will be able, eventually if not immediately, to provide itself a bar of the highest character and fitness, a bar which respects the precept restated by General Eisenhower earlier this month:

Too much government planes off the peaks of excellence, hones down differences, dries up diversity, and leaves a bleak sameness.

3.  The key in petitioner’s pocket

i.

            It is observed by the opinion of this Court, 81 S.Ct., at 987, that

we do not understand that Illinois’ exclusionary requirement will continue to operate to exclude Anastaplo from the bar any longer than he continues in his refusal to answer.  We find nothing to suggest that he would not be admitted now if he decides to answer, assuming [[page 24]] of course that no grounds justifying his exclusion from practice resulted.  In short, petitioner holds the key to admission in his own hands.

Let us assume, despite the explicit reservations of “certain members” about the Declaration of Independence teachings and despite the hospitality manifested by various members toward a stubborn applicant who has defied them so long,–let us assume that petitioner can, if he would but answer in the negative the unanswered questions about affiliations with the Communist Party and the Ku Klux Klan, secure admission to the bar.

            There is no doubt that petitioner could answer, without fear of legal sanctions, that he has never been a member of the Communist Party or of the Ku Klux Klan.  There can be no doubt about this since it is evident from the record that everyone has long been aware that petitioner could have at any time safely given negative answers to such questions, either because they were truthful or because Illinois would not be able to impeach such answers.  (R. 174-180)  In fact, the committee itself has acknowledged that it has

received no information from any outside source which would cast any doubt on applicant’s loyalty or which would tend to connect him in any manner with any subversive group. [R. 453]

            Suppose then that petitioner should now regard this prolonged litigation merely as a “test case” and proceed to answer in the negative all unanswered questions.  What more would the committee know that it does not already know?  That is, what of substance would be added to the record bearing on petitioner’s character and fitness that has not been available to Illinois for ten years?  It is obvious that only one more item could be added, the fact of petitioner’s submission, a selfish and even unmanly submission  [[page 25]]  to what he has considered for over a decade to be dangerous and uncalled-for practices, practices which he knows to have been prompted in his case by a defense of the principles of the Declaration of Independence.

            Whether or not petitioner is correct in his evaluation of these inquiries, it is generally conceded that he has long believed himself to be correct about a matter so vital to the bar and to the country that he has been willing to make serious sacrifices for rather than acquiesce in such practices.  Thus, if petitioner follows the advice implicit in the Opinion of this Court, the committee would gain the assurance of this single additional fact, the fact that petitioner had used a “key” against what he considers the best interests of the bar and of the country and that he had done so only to preserve his own career.  Should this kind of behavior make him appear in a more favorable light before a tribunal of lawyers dedicated to the moral fitness of the bar?

            It should also be noticed that unless the committee should already be convinced of petitioner’s character and fitness, his decision to “go along” should be of no consequence:   for the committee would not be any more or any less certain than it is now that petitioner is not a member of the Communist Party or of the Ku Klux Klan.  Indeed, the situation is such now that the committee must take petitioner’s word for it whether he is a “subversive” or “dangerous” man—unless, of course, the committee has already decided that petitioner’s character is unreliable.  Thus, either way, the key judgment has to be made on the basis of the evidence the committee already has, not one the basis of any denial of affiliations that petitioner can be induced to give.  Were these factors taken into account by the committee in making the “informed judgment” now imputed to it or in arriving at its “good faith belief  [[page 26]]  in the need for exploratory or testing questioning [about the affiliations] of the applicant” (81 S.Ct., at 983)?

            In the light of such considerations, which include petitioner’s reasons for the position he has taken, the “curtain” which petitioner is said to have drawn “upon the [committee’s] investigation” is revealed as most transparent. (81 S.Ct., at 986)  In fact, it is to such rationalizations as have been advanced to justify Illinois’s action that Mr. Justice Holmes’s strictures, quoted by this Court at 81 S.Ct. 1006, might better be applied,

The provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil.  Their significance is vital, not formal. . .

 

            The flaw in the key analogy should now be apparent:  it clearly raises self-interest above the public interest.  Not infrequently, one who defends constitutional rights or important principles against attack has such a key on his persons.  (We have only to think of the Jehovah’s Witness child and his power to avoid legal sanctions by simply rendering the required salute.)  This is not the time for an old applicant to be bribed to learn new tricks.

ii.

            It should be recorded that the Illinois bar authorities are up to their old tricks.  The character committee sitting in Chicago has intensified, since April 24th, the bullying of young graduates which is so unbecoming to the bar, law schools and courts which permit it.  (At least one affidavit describing current practices in fifteen proceedings can be supplied this Court.)  Applicants are being asked whether they agree with the position of the majority of   [[page 27]]  this Court in petitioner’s case—with further questions as to political affiliations (including past and present membership in the Communist Party) ready to be directed to any applicant who is so unlearned as to withhold ready assent.

            Thus, since the decision of this Court was announced, committee members have been reassured in their approach, an approach which remains contemptuous of the humiliation that sensitive but vulnerable youngsters endure when forced to submit to questions that they cannot help but regard as improper and demeaning.  Evidently, the vindicated character commissioners do not choose to distinguish, as the Opinion of this Court attempts to do, between “wisdom” and “power”:   rather, they consider their “informed judgment” to have been inspected by the highest court in the land and to have been certified as conforming to “the dictates of reason.”

            Nor does it matter either to the committee or, it would seem, to any court, that bar applicants are coerced into the attitude recently expressed by a young man upon learning of the committee’s resurgence:

I’ll give any answer they want.  They’ll get no fight out of me after all I’ve been through to become a lawyer.

 

Whatever else the committee accomplishes is subject to debate; but that it has for years formed the young in this manner there can be no doubt.  We are reminded of the report by Brown and Fassett, at 20 University of Chicago Law Review 501 (1953),

. . . The affair [of petitioner] made a considerable impression on his contemporaries at Chicago, one of whom wrote as follows:  “Although I have never been a Communist nor a member of organizations on the Attorney-General’s list, my attitudes are such that had I acted with complete sincerity, I would not have  [[page 28]]  replied ‘no sir’ to the question I was asked [about membership in subversive organizations].  But, I decided in advance, as did most of my friends, to give the answers best fitted to admission to the Bar without difficulty.

On what can the committee rely to counteract the damage it does?  Or is the hazing applicants receive preparatory to initiation into the profession designed to rid them of any lingering attachment they might have to courage, self-respect, and justice?

            The merit of petitioner’s resistance to such bullying is that it forces eventual consideration of the kind of bar and even the kind of citizen America wants.  So long as he refuses to capitulate, that long will this question remain a serious one, even though its ultimate resolution will probably come at a time when it is no longer of any practical relevance to petitioner’s legal and academic careers.  Nevertheless, a bar worthy of its vital role in American republican government cannot emerge until it is recognized that there are principles and standards to which even a career at the bar may be deliberately sacrificed.  Only when the bar is again made up, at least among its leaders, of men who accept this truth, only then can the profession be restored to the integrity and standing proper to it.  Indeed, petitioner cannot hope, at a time when submission and self-interest are exalted above principle and civic virtue, to be more truly a lawyer than by reconciling himself to permanent exclusion from what he had once thought would be his profession.

            Perhaps it is true that petitioner “took too much of the responsibility of preserving [his country’s] freedom upon himself.”  81 S. Ct., at 995.  But he was young enough to hope that Americans who would not heed old precepts might yet learn from new examples.

[[page 29]] Conclusion

            We have suggested that the exclusion order should be reversed, with instructions to the Illinois bar authorities on remand that they reconsider the record already made in this case without giving any adverse effect to petitioner’s allegedly “subversive” views on the right of revolution and the Declaration of Independence.  (Pages 5-13)  This modification would seem to be consistent with the position actually taken by this Court in its Opinion.

            Reasons have also been advanced for a reversal and remand that would be even more respectful of the record and of natural justice, a remand with the ruling that petitioner has clearly established his character and fitness for the practice of law.  (Pages 14-23)  That is, we suggest that the record in this case has still to be given its due.

            It is only by an ungenerous disregard of the record as it developed, of the kind of challenges petitioner alone faced and of the manner in which he met them, that the action of the Illinois authorities has been upheld.  The record—both before the committee and on appeal—that record of testimony and briefs remains as a guide to reforms that are needed in the education and character of the American bar.

            Petitioner is satisfied he has acted as one ought.  He is further satisfied that his action will continue to serve the best interests of the bar and of the country.  The generous sentiments of the dissenting opinions elicited by his cause in Chicago, in Springfield, and in Washington keep alive hopes for the success of efforts to make the institutions and laws of our people a reflection of decency and perhaps even of nobility.

            [[page 30]] Petitioner leaves in the hands of the profession—lawyers, law teachers and judges alike—the career he might have had.  He trusts he will be forgiven if he retains for himself only the immortal lines of another exile (Inferno, xv, 121-124),

Then he turned back, and seemed like one of those who run for the green cloth at Verona through the open fields; and of them seemed he who triumphs, not he who loses.

                                                            Respectfully submitted,

                                                                        George Anastaplo, Petitioner

                                                                                    Counsel pro se

Chicago, Illinois

June 19, 1961

[[page 31]]    APPENDIX:   BIBLIOGRAPHY

1.

            Petitioner recognized several years ago that his chances of immediate success were small:  “I am afraid I speak not to the generation of this Committee, but perhaps to my own generation and certainly to one that follows.” (R. 363)  He has, in order that he might be able to address properly those who follow, taken special pains with the briefs and record filed in the Supreme Court of the United States and with the 1958 Closing Argument before the Committee on Character and Fitness (from which the long quotations at 81 S.Ct. 990 and 993 are taken).  Vital to petitioner’s position has been his willingness to explain himself.

            Petitioner has been obliged, in the course of this controversy, to discuss critical defects in the legal profession in the United States.  On the other hand, the virtues of America are reflected in the fact that a student of law with remarkably few supporters has been able, for eleven years, to oppose the power of the state and to carry his cause to the highest judicial tribunal in the land.  That he has been able to do this is itself worthy of note even by those who regret that the long encounter has not been given its natural completion by the Supreme Court of the United States.  (All this is a tribute, as well, to the clarity of the Revised Rules of that Court.)

            It is an aid for the serious student of the continuing problems posed by the case that there are collected in this convenient place references to materials relating to petitioner’s matter and to the position he has taken the past decade.

2.

            There were two phases to this case, each culminating in action by the Supreme Court of the United States.  The first, 1950-1955, was concluded by the denial of review, 348 U.S. 946, 349 U.S. 908 (1955); the second, 1957-1961, saw the action of Illinois upheld after certiorari was granted, 81 S. Ct. 978, 6 L. ed. 2d 135 (1961).

            A substantial part of the record made during the first phase of the case is reproduced in 12 Lawyers Guild Rev. 163 (1952).  The opinion of the Supreme Court of Illinois on that occasion is found at 3 Ill. 2d 471, 121 N.E. 2d 826 (1954).  (The first report of the Committee on Character and Fitness (1954) has not been reprinted.  It is described by petitioner at 19 Lawyers Guild Rev. 149 (1959) (R. 328).)

            [[page 32]] The record made during the second (i.e., the current) phase of the case is printed in the Transcript of Record filed in the Supreme Court of the United States.  (It is summarized at pages 12-57 of petitioner’s Brief on the Merits (July 4, 1960).)  Petitioner’s Closing Argument before the Committee on Character and Fitness (R. 314; 1958) is reprinted at 19 Lawyers Guild Rev. 143 (1959).  The second report of the Committee on Character and Fitness (R. 450; 1959) is reprinted at 19 Lawyers Guild Rev. 65 (1959).  The opinion of the Supreme Court of Illinois on that occasion is found at 18 Ill. 2d 182, 163 N.E. 2d 429 (1959-1960).  (The 1957 order of the Supreme Court of Illinois providing for the rehearing which forms the basis of the 1957-1961 litigation is set forth at 18 Ill. 2d 186, 163 N.E. 2d 431 (1959).)

            The printed documents prepared by petitioner and filed in the Supreme Court of the United States include (1) Jurisdictional Statement, Jan. 11, 1955; (2) Petition for Rehearing, March 23, 1955; (3) Motion for Leave to File an Application for Admission to the Bar of the Supreme Court of the United States, March 23, 1955; (4) Petition for a Writ of Certiorari, March 15, 1960 (granted, May 2, 1960); (5) Brief on the Merits, July 4, 1960; (6) Reply Brief, November 24, 1960 (in Note 21, the reference to Note 13 should be to Note 18); (7) Petition for Rehearing, June 19, 1961.

            Petitioner attempted, both in 1955 and in 1960, to secure admission directly to the bar of the Supreme Court of the United States without prior admission to the bar of a State.  It was hoped that in view of the special circumstances of this case, the Court might suspend the rule governing admission to its bar and make its own determination of the moral character, competence and experience that the regular mode of admission is designed to insure.  The record made in Illinois and the manner in which petitioner conducted his case, both in his briefs and on oral argument, were thought to afford an adequate alternative basis for the requisite determination.  It was hoped, that is, that the Court might thereby preserve for petitioner an aspect of his career even as it gave concrete evidence that it does not approve of “the wisdom of the State’s action.”  Both attempts to secure direct admission failed.  349 U.S. 903 (1955); 81 S. Ct. 987, n20 (1961).  See Brown, Loyalty and Security, p. 112, n41 (1958).

            [[page 33]] There were also filed in the Supreme Court of the United States. (1) a “Brief [by the Attorney General of Illinois] for the State of Illinois, Respondents” (Nov. 4, 1960); (2) a brief amicus curiae by the Illinois Division of the American Civil Liberties Union (1960); (3) a brief amicus curiae by the National Lawyers Guild (1960).

3.

            Comments and other material bearing on petitioner’s matter, prior to the decision of April 24, 1961, are set forth here in a more or less chronological order:

            (1) The Carterville [Ill.] Herald, October 14 [or 21 or 28], 1950, p. 1; (2) 18 Univ. Chicago L. Rev. facing 421 (1951); (3) The University of Chicago Maroon, May 9, 1952, p. 2; (4) The New York Daily Compass, May 14, 1952, p. 7; (5) Expose, March 1953; (6) Expose, April 1953; (7) Brown and Fassett, 20 Univ. Chicago L. Rev. 480, 481-82, 501-02 (1953); (8) 13 Lawyers Guild Rev. 8 (1953); (9) Illinois A.C.L.U., The Brief, Feb. 1954, p. 3; (10) The Chicago Tribune, March 31, 1954) p. 2; (11) The Southern Illinoisan, March 31, 1954, p. 2; (12) The Carterville [Ill.] Herald, April 2, 1954; (13) United Press Dispatch, Springfield, Ill., May 12, 1954; (14) A.C.L.U., Civil Liberties, May 1954, p. 2; (15) 14 Lawyers Guild Rev. 38 (1954); (16) The Southern Illinoisan, Sept. 23, 1954; (17) The Chicago Daily News, Sept. 23, 1954, p. 14; (18) A.C.L.U. Letter, The Chicago Daily News, Oct. 11, 1954; (19) The Carterville [Ill.] Herald, Oct. 1, 1954, p. 2; (20) Illinois A.C.L.U., The Brief, Oct. 1954; (21) 12 New York Guild Lawyer, Oct. 1954, p. 2; (22) 36 Chicago Bar Record 67 (1954); (23) 43 Illinois Bar J. 226 (1954); (24) 26 Bar Examiner 96 (1955); (25) I. F. Stone’s Weekly, March 7, 1955, p. 3; (26) The Marion [Ill.] Daily Republican-Leader, Dec. 26, 1956; (27) New York Guild Lawyer, April 1955, p. 4; (28) Note, 1955 Washington Univ. L. Q. 83 (1955); (29) Note, 2 U.C.L.A. L. Rev. 224 (1955); (30) Starrs, 18 Univ. Detroit L. J. 195, 216 (1955); (31) Note, 50 Northwestern Univ. L. Rev. 94 (1955); (32) Levi, Hearing before Subcommittee of Committee on Judiciary, U.S. Senate, 84th Cong., 1st Sess., “Recording of Jury Deliberations,” Oct. 12, 1955, p. 30; (33) The Chicago Tribune, Sept. 18, 1957; (34) Cramton, 8 Univ. Chicago Law School Record (Special Supplement), p. 52, n235 (1958); (35) Ralph S. Brown, Jr., Loyalty and Security, pp. 111-112 (1958);  [[page 34]]  (36) Anastaplo v. Radford, 14 Ill. 2d 520 (esp. 534) (1958) (a side effect); (37) C. Herman Pritchett, The American Constitution, pp. 465-66 (1959) (see, also, his forthcoming book); (38) 43 Minnesota L. Rev. 126 (1959); (39) Weissman, 19 Lawyers Guild Rev. 126 (1959); (40) The Southern Illinoisan, Feb. 14, 1960. (41) Illinois A.C.L.U., The Brief, Feb. 1960, p. 7; (42) The Chicago Pnyx, March 15, 1960; (43) Note, 21 Ohio State Law J. 260 (1960); (44) Note, 31 Mississippi L. J. 303 (1960); (45) Trumbull, 43 Chicago Bar Record 57, 60 (1960); (46) The Chicago Daily News, Dec. 14, 1960, p. 5; (47) The Southern Illinoisan, Dec. 15, 1960, p. 2; (48) The New York Times, Dec. 18, 1960, p. 40; (49) 36 New York Univ. L. Rev. 184 (1961); (50) The Chicago Pnyx, Jan. 1, 1961; (51) Chicago Sun-Times, Jan. 8, 1961, p. 59.

            Special reference should be made to the comments by an early student of the case, Professor Malcolm P. Sharp of the University of Chicago Law School.  (Petitioner is again privileged to acknowledge Mr. Sharp as his “most thoughtful and consequently most valuable supporter throughout all these years”.  R. 319; 19 Lawyers Guild Rev. 145 (1959).)  Mr. Sharp’s discussions of the case are found in (1) “A Comment”, R. 475-84 (from Anastaplo, Some Rash Innovations and Speculations (1951)); (2) 20 Univ. Chicago L. Rev. 529, 541-44 (1953); (3) 16 Lawyers Guild Rev. 1, 2 (1956); (4) 17 Lawyers Guild Rev. 43 (1957); (5) The University of Chicago Maroon, Feb. 15, 1957, p. 9; (6) 28 Univ. Chicago L. Rev. 399 (1961); (7) The University of Chicago Maroon, May 2, 1961, p. 8 (cf. March 10, 1961, p. 5).

            Professors Harry Kalven, Jr. and Roscoe T. Steffen, also of the University of Chicago Law School (authors of amici briefs submitted to the Supreme Court of Illinois (R. 498; 1959) and to the Supreme Court of the United States [for the American Civil Liberties Union] (1960)) have a discussion of the April 24th bar opinions of the Supreme Court of the United States scheduled to appear in a forthcoming issue of Law in Transition.  Petitioner understands that it is likely that similar discussions by other scholars will appear soon in the Northwestern University Law Review, the University of Chicago Law Review, and the Louisiana Law Review.  See, also, the newspaper accounts of and reactions to these opinions of the Court that are found in the April 25, 1961 issues of The Chicago Sun-Times (p. 5), The Chicago Tribune (p. 4), The New York Times (p. 28),  [[page 35]]  The Philadelphia Inquirer (p. 7), The Washington Post (p. 1), and, The University of Chicago Maroon, April 28, 1961, pp. 3, 6 (cf. Feb. 3, 1961, p. 11).

 

4.

            Fortunately, petitioner’s literary activities during the past decade have not been restricted to bar admission problems.  These activities include lectures delivered as part of his academic duties: (1) “Some Reflections on the Hamlet of Shakespeare” (1957); (2) “Baseball:   The American Political Game” (1958); (3) “Freedom, Justice and the Rule of Law—An Introduction to Due Process of Law” (1959); (4) “On Plato’s Meno” (1959); (5) “The Declaration of Independence” (1961); (6) “The American Constitution” (1961).  (Several of these lectures are or will soon be available in mimeographed form.)

            In addition, the following items by petitioner might be noted:  (1) Letter, The Carterville [Ill.] Herald, April 27, 1951; (2) Review, Drinker, Legal Ethics, 14 Lawyers Guild Rev. 144 (1954); (3) Review, Blaustein and Porter, The American Lawyer, 14 Lawyers Guild Rev. 178 (1954); (4) Letter, The [London] Observer, Aug. 14, 1960 (see, also, The [London] Observer, editorial, Aug. 28, 1960); (5) Letter, The Carterville [Ill.] Herald, Aug. 25, 1960 (cf. The New York Times, July 29, 1960, 2:5, July 30, 1960, 5:7, The New York Herald-Tribune (Late City), July 29, 1960, 14:6).

            In process: (1) Notes on the First Amendment [doctoral dissertation; see Sharp, Foreword, xvii, Alexander Meiklejohn, American Political Freedom (1960)]; (2) “Madrid and Moscow” [reflections on a six-month camping tour of Europe in 1960]; (3) “Realism and the Practice of Law—A Lecture for Law Students.”

            An important aspect of petitioner’s position before the Committee on Character and Fitness is summed up in his letter-to-the-editor printed in three Illinois newspapers (The Southern Illinoisan, April 9, 1961; The Chicago Pnyx, April 15, 1961; The Carterville Herald, May 4, 1961) (see, also, R. 416):

The demands for Congressional investigation of the John Birch Society imply that the American people are not able to look out for themselves.  What necessary information can the Congress learn for us that the newspapers have not already discovered and published?

A people that values its freedom should be reluctant to permit the government to do its thinking for it.

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