C.A.: Good morning. I am Carolyn Amadon, a member of the Chicago Bar Association Record Editorial Board. This is the first of a taped series of book reviews that we’re doing for the Record. We’re honored today to have, as our first guest, Professor George Anastaplo. We are going to discuss one of his books, Reflections on Life, Death, and the Constitution (published by the University Press of Kentucky). Professor Anastaplo is Professor of Law at Loyola University Chicago. He is also Lecturer in the Liberal Arts at the Graham School of the University of Chicago. He has had a long and very interesting life, so these are just a few highlights. Professor Anastaplo has been nominated for the Nobel Peace Prize thirteen times. I hope that towards the end of this book review we’ll be able to go into some of the reasons why that is the case. His first book, The Constitutionalist: Notes on the First Amendment, was published in 1971 (by the Southern Methodist University Press and reprinted in 2005 by Lexington Books). This is the latest that you have published of about twenty books?
G.A.: Yes, that’s right.
C.A.: This particular book, Reflections on Life, Death, and the Constitution, is the third of a ten-part Reflections series. This Reflections series seems to be different from your other scholarly works. Professor Anastaplo has gone through Classical Greek literature, Western literature, some Eastern thought, and has come up with various illustrations for Life, Death, and the Constitution. Why did you choose this topic and this series of reflections?
G.A.: Each volume is a series of reflections. In the preface for the second volume I list the ten volumes I have projected for this series. I wanted it to be different from other things that I’ve done. For example, The Constitutionalist, which was, as you’ve indicated, my first book, has some eight-hundred pages, and two to three hundred of those are devoted to notes. When I go back to look at it, I find that the notes are more interesting, because I explore there various ramifications of what’s in the text. But this Reflections series has no notes at all. This volume is the third of them. A fourth one should be out early next year: Reflections on Slavery and the Constitution. A couple more have been pretty much written, and then the others are sketched out. Whether I will ever get to them depends upon circumstances I have no control over. I call these “constitutional sonnets.” There’s a format I use for all of them. Sometimes it is kind of forced, or some readers will think so, I imagine. But, in any event, there’s a uniformity to the series. Each volume is supplemented by an appendix with various documents that are somehow relevant to what’s being discussed. So it’s a kind of exercise, a different mode of exploring questions related to the Constitution, to the law, and so forth.
C.A.: There are discussed, in this “sonnet” mode, such documents as the Constitution, the Declaration of Independence, the Gettysburg Address, and the Funeral Address of Pericles. Can you describe your opening essay, which is about a Japanese story.
G.A.: First off, I should reassure your viewers that this is all prose.
C.A.: It is all prose.
G.A.: It is not an attempt at poetry. The first discussion is of a story about a Japanese army officer and the problems he encounters because of disturbances, shall we say, which lead him to a ritual suicide.
C.A.: Is this a hara-kiri sort of thing?
G.A.: Yes, and it leads also to the suicide of his wife. Hers was a more modest form of suicide. His, the one he resorted to, was much more grueling. It must be a terrible exercise. One of the interesting features of the whole thing, for the American reader, is that the author himself eventually tried to do the same thing years later. And there were even critics suggesting that he was not entitled to do that himself, that he was not of the rank, or standing, to be able to have recourse to this form of suicide. I don’t know the details of that, but I do know that there was a reaction.─
C.A.: In Japan itself?
G.A.: People elsewhere would not make, or even be aware of, these distinctions.
C.A.: His life tried to imitate his art?
G.A.: That’s right.
C.A.: Did he intend this when he wrote the story?
G.A.: Whether he intended it originally, I don’t know. He was a very gifted author, indeed he was considered world-class. He was very much caught up in the spirit of Classical Japanese.
C.A.: Was it a patriotic act?
G.A.: In order to truly understand this, one would have to read a number of his works and see how he himself regarded the tradition in which he worked, and what was considered a fulfillment of it. It’s quite evident, by the way he carried on, that he was in some ways what we would call “unrealistic” in his expectations of how others would respond to the efforts he made to reach out to the army.
C.A.: In other words, one of the reactions to his own suicide was, “You are not of the class entitled to commit that kind of suicide.”
G.A.: Also, someone may have said that this was not an occasion that called for it, aside from his own credentials. I don’t know enough about that to be able to say.
C.A.: But it is, for you, a commentary on how different cultures view the issues of life and death.
G.A.: That’s right. That’s why I use it as the first essay in this collection.
C.A.: It is an eye-catching beginning.
G.A.: It is an interesting story. The reader who gets interested in it should probably also read something by someone who knows much more than I do about the subject. I get on to much more familiar ground when I describe Thucydides’ account of Pericles’ funeral talk. I compare that funeral talk with Lincoln’s Gettysburg Address. They’re quite different in tone and spirit.
C.A.: I think you mentioned that Pericles doesn’t use the word “death.”
G.A.: Leo Strauss has noticed that Pericles stays away from the word “death.” That’s very strange for a funeral address. When one looks at it very carefully one can notice that death is not spoken of. Obviously, by implication, it is referred to. But the closest to an explicit reference is something like “an unfelt death.” It’s a death, but not really. In the Lincoln address, on the other hand, death is repeatedly referred to. The Pericles speech runs for a number of pages. The Lincoln speech is one page or less, and yet the number of instances of explicit references to death is quite large, whereas in the Pericles there are none. One suspects, of course, that Pericles knew what he was doing, either he or Thucydides. That, by the way, is always a question with Thucydides: we have speeches attributed to men, and the question is as to what extent they are Thucydides’ indication of what that speaker should have said on that occasion, considering the circumstances, his character, and things of that kind.
C.A.: Well, let’s talk a little about this role of the individual. Both of these funeral addresses are about men who died for their country, for their community. Both speakers, Lincoln and Pericles, are commending them.
G.A.: By the way, there are implications in all of this, with respect to funeral addresses, that bear on what there has been among us, fairly recently─the litigation in the Supreme Court about what can be done in the way of agitation or demonstration (about military and other policies) at the site of funerals of men and women who have died in the military. It’s hard to believe that anyone such as Lincoln or Pericles would ever have gone the route the Supreme Court did in permitting that sort of thing to go on.
C.A.: It would not have been honoring—
G.A.: It would have been obvious, whatever “freedom of speech” means, that it doesn’t mean you can do something like this in a way that seriously disturbs the grieving survivors, especially in circumstances where there are many other means available to make whatever arguments that you’re making, or that you believe you’re making, somehow in the service of whatever you stand for. There are, of course, many means for letting people know what you think about x, y, or z without disturbing the funerals of people who are themselves, and whose families are, innocent of any wrongdoing.
C.A.: It does seem like there might be a better forum.
G.A.: Yes, a better forum elsewhere, and that should be obvious enough. And even more important than what the Court did or did not do is that community sentiment should not be such these days as to stop this sort of thing as something that “we simply don’t do.” The people who do this, evidently, are not influenced by any community we would consider informed, sensible, and decent telling them, in effect, “Really, you should voice your opinions elsewhere or in some other way about these matters.” Evidently there is not any community that shapes them or restrains such protestors. And that is more serious, because you obviously can’t depend upon the courts and law enforcement officials and people like that to handle all misconduct. What has to be depended upon, ultimately, is the good sense of the community at large, which is constantly supervising, shaping, reshaping people. For some reason these funeral-protesters have not had that kind of influence brought to bear upon them. I think that that is what ought to be thought about, not what the Court did or did not do, mistakenly or not, but rather what there is (or is not) in the community at large that has opened the way to such things.
C.A.: Do you think there’s been a shift in the American community which has meant that there’s no longer a sense that this is improper?
G.A.: Evidently, there is not a governing opinion as to the good and the bad that can take care of, or restrain, people who are, for some reason or other, inclined to exhibit themselves in this way. Maybe they can’t help themselves, and of course they may be quite sincere. (I really don’t know what “sincerity” means here.) There are a lot of things over the two centuries of this country’s existence that were well understood: “We simply don’t do that.” The question is whether there is enough of a community that can govern what we do or whether we are all too much on our own. All this has something to do with the “cult,” shall we say, of individualism, which has become very important. Everyone goes off on his own and doesn’t have to take into account sufficiently the duties owed to the community at large and the restraints that are somehow called for.
C.A.: In a lot of your work, you highlight exactly that tension between the role of the individual and his community—
G.A.: ─the citizen. I think the term “individual” itself may be a problem because it tends to be taken as liberating one from the community. One may even look to some kind of worldwide standard that is not going to be the restraint upon one in the way that a local (in some ways, a prejudiced, certainly determined) community might be a restraint.
C.A.: So someone may consider himself a citizen of the world or maybe he is, as you said, on his own?
G.A.: There is about “citizen of the world” something that can be very inspiring. But there is also something that can be dreadfully undisciplined and irresponsible—and that has to be thought about. By the way, all this is related to something else we hear about all the time: globalization. Does “globalization” mean that one has no community that one is, shall we say, primarily subservient to or respectful of, as one looks for world-wide connections or world-wide markets, even world-wide influence? There is something attractive about that and at the same time there is something which may be, shall we say, unduly liberating. That is, it may permit some of the worse elements in one’s soul to find expression. In a few instances it can lead to people who are grand in their aspirations and in their influence─and they can provide models for how one should live. But in all too many instances it leads to people who are cut loose from the serious control that would be good for them. It remains to be seen what is going to happen with all this.
C.A.: Do you think that the Constitution serves, in some ways, to define for the American people what the good for the community is?
G.A.: The Constitution and the Declaration of Independence. One of the things that’s interesting about all this is that in the early volumes of the Statutes of the United States, there was (I don’t know how long this lasted, or I have known, but I don’t recall now)─there was in the early volumes a collection of documents called the four organic laws of the United States.
C.A.: Sort of a natural law?
G.A.: Well, no. The first was the Declaration of Independence. The second was the Articles of Confederation. The third was the Northwest Ordinance. And the fourth was the Constitution of 1787 with its Amendments. Those are the Organic Laws of the United States. It’s been a very long time since any member of the Supreme Court of the United States has recalled all this in anything I’ve seen in print from any of them. Instead, there are members of the Court now who will say that the Declaration of Independence is not law to which they should look─the Constitution, yes, but they don’t go back before that. But there have been other people, such as Lincoln, who obviously went back to the Declaration of Independence. The fact that they were called the Organic Laws of the United States indicates that they are somehow fundamental. The Declaration itself states principles that the Constitution implements in a particular setting, just as the Articles of Confederation did and just as the Northwest Ordinance did. The Northwest Ordinance is not properly respected these days, even though it is really fundamental to what we call the Midwest (it was then the Northwest). That Ordinance laid out what was going to happen in what was (before the Louisiana Purchase) the largest territory owned by the United States. The Northwest Ordinance said, in effect, “This is not going to be a territory forever. It’s not going to have a permanently diminished standing in the system. This territory can be divided into three to five states and they will have a standing equal to that of the original thirteen.” There are laid out principles to be taken into account among these new states, including of course the prohibition of slavery, which proved to be decisive for the outcome of the Civil War. If one looks at these documents, one says, “These are the principles upon which the American regime depends.” These four Organic Laws laid down the foundations for a country of three to four million people. When you get to a third of a billion people as we are now, what does that do to the original set of principles and their implications or implementation? It remains to be seen what can be done when this happens, even when you have much improved forms of communication. One of the consequences seems to be that there is far greater emphasis, evident already in the Civil War, upon Executive power as against Congressional power. It’s quite evident from the Constitution, however, that the Congress is the primary, or the ultimate, power under the Constitution among the three branches of the Government. Now, of course, the President is much more influential for various reasons, and that leaves us with a question: to what extent are the principles of the Founding still applicable to what it is we now have?
C.A.: Do those principles reflect the community? Have the values changed?
G.A.: We do have much improved means of communication, which reduces the size in effect, but those improved means of communication also mean that much more of what’s happening in the rest of the world influences us. It raises the question of where the citizen is left. That remains to be seen.
C.A.: The last essay in your book is entitled, “The Unseemly Fearfulness of Our Times.” And that is a reference to post─
G.A.: ─to post-September 11th responses.
C.A.: What has the reaction of the community been?
G.A.: I should say, first off, that a colleague of mine, Joel Rich, in the Basic Program at the University of Chicago, has for a while now set up a website (Anastaplo.wordpress) in which various of these things related to the question you just asked me may be found. In my own response to all this I had a Thucydidian moment. I was biking to town from home, in Hyde Park, on September 11th, and I pulled up to a farmers’ market that was over by the Museum of Contemporary Art that day. One of the vendors said, “An airplane hit a building in New York City.” Oh, that’s interesting, right? So I go to my office in the Law School nearby, where I have a radio. I turn it on, another building had been hit by that time.
C.A.: And at that moment, I think we all thought─
G.A.: Well, we thought various things. I get a call, I get two calls. One is from somebody I knew, a former student, on the East Coast, another from somebody on the West Coast, and they said, in effect, “This changes everything. This is awful.” And I said, “Look, it’s not as much of a change as you think. Otherwise, you couldn’t have called me.” Right?
C.A.: Right, right.
G.A.: To the second one I say, “I’ve just had a call from so and so out in ─,” I forget which one called first. Obviously, I said, much is still working the way it had been before, so let’s think about that. I gave a talk the next day at the Law School about this, and that’s the Thucydidian moment: At the beginning of the Peloponnesian War (the author says in the history that he writes) he recognized that this was going to be something big. He put it much more eloquently than I am putting it. And he began writing a history from that moment. I decided that Thucydides had provided me a model. My first public remarks (on September 12th) were entitled, “A Second Pearl Harbor? Let’s Be Serious.” People had already been comparing the September Eleventh attacks to the Pearl Harbor attacks. I said that Pearl Harbor meant that a substantial part of the American Pacific fleet had been destroyed in one day, that a war had begun with a major power in Asia, which we knew was linked up with another power that had already conquered much of Europe. In effect, I said, “Now, that was serious; this is far less so. This is essentially a criminal act.” This is what I’ve argued pretty much throughout, that this was a criminal act and should be responded to as such, which is not the way that we’ve generally come to think of it. What I’ve done since September Eleventh is to provide a running commentary. When some occasion comes up which seems to be related to this, I say something. I’ve collected the first two years of comments and published them in the Oklahoma City University Law Review. When we were in law school (long before you were born), unless you were published in one of about a dozen or two law reviews, nobody ever saw you in libraries and so forth. Now, no matter what the law review is, it’s available on the Internet, and it’s available to everybody in the form that you published originally. So the Oklahoma City University Law Review published my first collection of about two hundred pages. The second collection, a little bit later on, in far fewer pages was in the Loyola International Law Journal, and then, not too long ago, a third collection, again about two hundred pages or so, in the Oklahoma City University Law Review again. (I happen to know the people in Oklahoma City because I once gave a week of lectures down there.) My hope is, of course, to take all these pieces and put them together (or years from now, someone else can take them all and put them together) in some volume as a running commentary on our September Eleventh responses. I do believe our response has been unfortunate. It was inevitable that we would go into Afghanistan once it was decided that that was where the attacks somehow originated, and it was inevitable, if indeed Osama bin Laden was responsible for it, that he would be the one who would be gone after. But then, much of what has been done by us since then has been questionable, including the Iraqi intervention, simply abandoning thereby the Osama bin Laden pursuit, for whatever reason. I’ve got a tentative agreement from Ramsey Clark, who was a law school classmate of mine (and who became Attorney General of the United States), to do a Foreword for the book, if and when it is published. It may not be published when I am around, but somebody someday may want to put these pieces together, showing how someone thought of the various things we were doing as our responses to the original attacks. Those responses include tremendously wasteful programs. Forget about the Iraqi intervention, which was highly questionable. There are very wasteful domestic programs as well. Consider the airliner-safety program that we’ve all been subjected to at airports. The same resources applied elsewhere would save many more lives. It’s not hard to figure that out. All that is being done now by the program at the airports, besides instilling a troubling fearfulness, is to protect individual planes. Once airliner cockpits were secured from entry by passengers, the most anyone could do was to destroy a single plane. Now, I wouldn’t want to be in a plane that’s destroyed by someone who is carrying on a bomb or something else. My own background includes a couple of years as an Air Corps navigator. I did a lot of flying all over the world─
C.A.: This was during the World War II era?
G.A.: I ended up flying all over─as far west as Formosa, as we then knew it, as far south as Liberia, as far east as Saudi Arabia. So I don’t like the idea of any airplane I’m in being knocked out of the air. But then you have to ask, “What else is it that you can do with the same resources?” And, “What are you doing, what are you accomplishing, by what you are doing now?” Unfortunately there seems to be a promotion of what one might call a culture of fearfulness, if not even of cowardice. No one wants that, but apprehensiveness is promoted. We ride the train everyday into the Loop. What do we hear? “If you see something, say something.” Why is that? Why are we being told that? Because somebody might do something on a train, might leave something, and it blows up and so forth. But there are a lot of dreadful things like that we face or could face. Do we really want to promote that kind of fearfulness or apprehensiveness? What are the consequences of that in the long term? Again, I admit that I wouldn’t want to be in the situation where I am injured or killed by somebody’s malevolence, shall we say. But I’m fairly clear in my own mind that it’s not good for the community at large to have that kind of apprehensiveness deliberately, repeatedly encouraged.
C.A.: I have a quote for you that might sound familiar: “We must not be afraid to be free.”
G.A.: Oh, yes.
C.A.: Could you tell us the circumstances? That’s a quote from Justice Hugo Black.
G.A.: That’s right, “We must not be afraid to be free” is the concluding sentence in Justice Black’s dissenting opinion (in 1961) in my bar admission case. That bar admission case began, by the way—we are in the Chicago Bar Association now—that case began in the Chicago Bar Association building, not where it is now─
C.A.: ─in the old building?
G.A.: Yes, over there on LaSalle Street. That’s where the Committee on Character and Fitness held its hearings, at least in the Chicago area, or most of them probably. That case began in November 1950, at the end of my law school career. It went through all kinds of ups and downs, in the Supreme Court of Illinois and in the Committee, but it eventually ended up in the Supreme Court of the United States, with the oral argument in December 1960, which I did pro se. and then the opinions of the Court came in April 1961. It was a 5-4 decision against me and against a couple of other people (in companion cases) who were doing something somehow related to this at the same time. This means that it wasn’t something that I did or didn’t do which led to the result. The Court was doing this for all three of the cases (and in other related controversies). But in my case, Justice Black wrote a very nice opinion. In fact, I once met Fred Korematsu of the notorious Japanese Relocation Case. When we were introduced, I said something like this, “Justice Black is said to have written one of his worst opinions in your case”—he had written for the majority against Korematsu—I said, “Justice Black is said to have written one of his worst opinions in your case and one of his best in mine.” That’s what some people have said. And then, I said, “Unfortunately, the one he wrote for you was for the majority, while the one he wrote for me was a dissent.” Now Justice Black rather liked that dissenting opinion. He had part of it read at his funeral, the concluding passage. It turned out that two of our children were out East in college at the time that Justice Black died. I called them and said, “Look, whatever you’re doing, you’ve got to go to Washington for the funeral.” And being obedient children—I don’t know if today people are as obedient as children—they went. Because they looked clean and young they were allowed into the Washington National Cathedral and they were seated quite close to the front. They really felt, “What are we doing here?”—and so forth because they had all kinds of dignitaries around them, right? But then, the passage was read from their father’s case—other things by the Justice were also read—but this passage was read and they looked around and said, “Well, we’re the ones that belong here. All these other people are not fully accredited.” In fact, they were so moved by it that they also went out to the cemetery (I think it was Arlington), when he was taken out there. They figured that that was part of the whole occasion for them. Anyway, Justice Black rather liked that dissenting opinion. He had not intended to get involved in my case, even though he was going to vote for me, of course. There is a biography of Justice Black, by Roger Newman. He says that Justice Black’s original response was something like this: “I’ve had it with these things. There’s nothing more for me to say.” But somehow he got caught up in my case, for whatever reason, and so he ended up with his opinion. Now, fifty years later (literally fifty years later, in 2011), Oxford University Press has published a book on First Amendment Cases entitled, We Must Not Be Afraid To Be Free. And they quote the entire paragraph at the beginning of the book.
C.A.: So that’s part of your legacy, his legacy─
G.A.: Well, it’s part of the legacy because of what Justice Black said, not because of what I did. He let himself go. By the way, there were here in Illinois some very interesting developments, of some importance, in connection with the bar thing. One of them, of course, is the time I picked up by chance the Justice who had written an opinion against me in the Supreme Court of Illinois. This was when I was driving a taxicab. We had a very interesting conversation when he realized who I was.
C.A.: Did you tell him who you were?
G.A.: Oh, yes. And in my Constitutionalist book I have the transcript of our entire conversation. As soon as I let him off, I pulled the cab over, put down “Not for hire,” or whatever the sign was, and began writing down the whole thing. It was a very short conversation. I picked him up at the old hotel that used to be up there. For the moment, its name escapes me. (It will come to me.) I picked him up there. He only wanted to go down to some place on State Street and we got talking. He had the morning newspaper, and he said, “I’m in the newspaper this morning, with a photograph—my wife doesn’t like it,” he said. But he showed it to me. And I said, “When we stop at the next light I’ll look at it.” When I did, I said, “Yes, I thought I recognized you.” He said, “What?” (oh, I recall, it was the old Sherman House). He said, “Are you often at the Sherman House, is that why you recognized me?” I said, “No, no. I recognized you because I argued before your Court once.” “You did what!” I said, “Yes, I argued before the Court. In fact you wrote the opinion against me.”
C.A.: He didn’t recognize you at all?
G.A.: He didn’t recognize me. After all, all he could see was the back of my head. Besides, I was one of the hundreds who had come through the court. He was one of only seven. Well, when he found out who I was, he was really shocked. We had a nice conversation even though he was quite surprised. (I have learned he told others about this encounter.) Well, that was one of the episodes in the whole thing. Then other things happened of interest. Calvin Sawyier with Richard Stevens (the brother of Justice Stevens) decided, years afterward, that something should be done about my case. They convened the Committee. (I believe Stevens was the Chairman of the Character Committee at that time.) They had themselves another go-around. I told them, “I am not going to be involved.” They said, “We are going to do it on our own.” They called witnesses and they ruled in my favor, sending their ruling to the Supreme Court of Illinois. But the Supreme Court of Illinois said, “Until he applies, we can’t do anything.” I said, “I have retired from the practice of law.” So I thought it was better to leave it that way. So there have been episodes like these. And then there has been, of course, this book that has recalled Justice Black’s dissenting opinion. These have been a very highly selective set of recollections.
C.A.: That’s a wonderful honor. Can you explain just a little bit more what it was exactly that happened during the Character and Fitness interview that caused all of the─
G.A.: The first one?
C.A.: The first one.
G.A.: The first one was decisive. If I had been wiser, I would have known when I walked out that day that it was all over.
G.A.: But I was very young. In those days, veterans could apply for admission to the bar while they were in their last year of law school. I’m sure the rule no longer exists, but it was my last year of law school. I had written the bar exam that summer. I wasn’t finishing law school until December. I’d been going through the summers. I was in a hurry to get through because I had been in the service for several years. And so the bar exam was that summer and the character and fitness hearing was in November, 1950. If I hadn’t been still in school, I probably would have been down in Southern Illinois, where my family was, where I’d grown up, in Williamson County, and I would have applied there. I would have gone in, and a Character Committee member would have said, “Good to see you. How’s your family?” And so forth and so on, and that would have been the end of it. That’s just a chance factor. Here, however, you go down to the Bar Association (the Bar Association didn’t do this, it was the Character and Fitness Committee itself, that was sitting in the Bar Association facilities). The Committee set up hearings with one-or-two-member subcommittees (I think there were seventeen members all together), and they had dozens of us, maybe hundreds of us, lined up for ten, fifteen, twenty minutes. I’m fairly sure they weren’t gunning for me, because they had a number of people scheduled after me. If I had been considered a problem they would have had me last in the series, or had me separately. One went in, sat down and there were two or three questions. I didn’t even know the names of the people, I didn’t recognize them. I had to find out afterwards who’d they’d been. This was just routine. In fact, I was meeting someone for lunch at the Bar Association, someone I had known even before law school and who was already a lawyer. No problem was anticipated. There were two or three questions about something to do with legal ethics (I don’t remember what they were), and then one of them asks something like, “Do you think a member of the Communist Party should be eligible for admission to the bar?” Now, I learned afterwards—I don’t remember whether I knew anything about this before—I learned afterwards that this was a test question that was being asked by some of the members of the Committee on a hit-or-miss basis.
C.A.: Some, not all?
G.A.: No, this was not routine. Some members were asking it of some applicants for some reason. Who knows why? (It turned out afterwards that a Yale law professor did an article for the University of Chicago Law Review, in which he reported, after extensive inquiries, the types of questions being asked here in Illinois—here in Chicago. Downstate, I doubt it.) Anyway, I answered, “I don’t see why not.” Or something like that. And he said, “Well, they believe in revolution.” And I said, “We all do.” “What do you mean by that?” “You know, the Declaration of Independence, the right of revolution. We certainly believe in that.” He got very upset, and then he did something which was conclusive—which really settled everything: “Well, if you’re going to talk that way”—I’m paraphrasing now, but he said something like this—“If you’re going to talk that way, I’m going to have to ask you if you’re a member of the Communist Party.” I was really surprised by that question. I hadn’t really expected that question. I thought we would have a nice discussion back and forth, not that it would go on for long. I didn’t expect anything to happen, really. As I said, there was somebody waiting for me for lunch in the Bar Association dining room. I said, “I don’t believe that is a proper question” –or something like that. Well, what was very interesting about this is that this fellow was kind of excitable, and not too bright, I suspect. The other man was much more serious, much more intelligent, but he had a failure of nerve. He was shocked by what his colleague had done. He was really shocked but he wasn’t man enough to say, “Wait a minute. We have to suspend this for a few minutes.” And then to me, “We have to talk about something. Would you please leave the room.” He should then have said to his colleague, “Listen, we’ve got this kid here, you know he’s a decent student at the University, he was an Air Force officer, and so forth.”
C.A.: A veteran?
G.A.: Well, they didn’t know that I was actually still in the Reserves.
C.A.: But not on active duty?
G.A.: I was even wondering whether I was going to be called back for Korea. I was prepared to go. It turned out they didn’t need me. That was just as well. But he didn’t do this. This other man did not do this, and that proved to be decisive. And the other interesting thing about this other man is that he later went on to a political career where his failure of nerve showed up.
G.A.: Yes, he became very prominent and there was a deficiency in him that showed up during the Adlai Stevenson campaign. I didn’t know either of the Commissioners─that is to say, who they were, their backgrounds. When they saw what I was saying they said, “Well, we have to do more with you later.” And then they went out, and they told all the candidates out there that they couldn’t hear them today because our hearing had been unduly extended. This also indicates that they were not expecting anything, you see, because they had three or four people who had to be told that they were to be rescheduled.
C.A.: So you were surprised?
G.A.: Yes, I was surprised. I was surprised, they were surprised. Then I went up to lunch and I told this old friend of mine. He was surprised. Then I went home and told my wife and she was surprised. So then we had the big hearing in January, 1951. The original hearing had been in November, 1950. The full committee─
C.A.: ─all seventeen?
G.A.: All seventeen, I guess, were there. And I lost them all. It ended up seventeen to nothing against me.
G.A.: For awhile it was sixteen to one. A lawyer named Stephen Love held out against them, but by the time they decided in June 1951 that I was not eligible, he was not on the Committee anymore. So it was seventeen to nothing, the first time around. What was also interesting about all this is that I had some time left on the G.I. Bill. So, after the January 1951 hearing, we go to Paris, right? You’ve been to Paris, you know what it’s like?
C.A.: Oh, yes.
G.A.: So my wife, our eight-month-old daughter (who is now a lawyer) and I got on the Queen Elizabeth, in New York, with General Eisenhower, which means that we had a nice sendoff because there were people seeing him off. And we had a band waiting for us at the other end also because he was going to assume command of NATO or the predecessor to NATO or something. Of course, we never saw him during the trip. We were down in tourist class. All this was a very fortunate thing, because this is something we never would have done if I had been admitted to the bar. I would have gone to work for one of the big law firms that were interviewing me, and I never would have had such a long visit in Paris where I was in school. It was very nice. It’s still memorable, our best trip to Europe. We’ve been to Europe a number of times since then, but it was very nice as a student living in the Latin Quarter, going to school at the Sorbonne, that sort of thing—and waiting for the Committee. I would write them every once in a while, every few weeks. And the answer always was that they were still deliberating. But I knew what was happening, only they weren’t candid about it. Sometimes those people acted in ways that they shouldn’t have acted. I knew what was happening, because one day, while walking over to American Express to cash some checks, I saw a headline on one of the papers saying that the Supreme Court of the United States had acted in the Dennis Case. This was in June, 1951. I went back and I said to my wife, “We’ll be hearing from the Committee.”
G.A.: It turned out that that’s what they were waiting for. I had suspected it. And sure enough, within three or four days (this was all by letter in those days, by regular mail), there came the announcement from the Committee that they had ruled against me because I had interfered with their process, or had kept them from properly assessing me. They ruled against me, seventeen to nothing. So that’s what they’d been doing. Once the Dennis Case ruling came down, which confirmed the convictions of a dozen or so Communist Party leaders, then they could act. Now, it didn’t matter to the Committee that I had also refused to answer questions about the Ku Klux Klan and the Silver Shirts of America. All they cared about was the Communist Party question.
C.A: You never answered that?
G.A.: No, I never answered it. Since I hadn’t answered it, that was sufficient. And then I took the appeal to the Supreme Court of Illinois and had to do this, that, and the other to get the case activated, and they ruled against me seven to nothing with Justice Daily of Peoria, my taxicab customer, writing the opinion. He was a nice fellow, you know. Then I appealed to the Supreme Court of the United States. But they wouldn’t take it.
G.A.: So that was the end of it. But there was a case thereafter that came out of California, the Konigsberg Case, which was weaker than my case. He was about ten years older, and he had been active in the Depression, and he had had all kinds of known political associations, and so forth and so on, but it was essentially the same issue, and he won in the Supreme Court of the United States. And I said, “Well, this is interesting.” They had taken his case. They had ruled for him—a divided Court, five to four, but divided in his favor. Or six to three, I don’t remember the details. He went back to California with that ruling but they still wouldn’t admit him to the bar in California. The committee out there, or whatever they had, still ruled against him, and that led to his going up again. I could see what was happening in California and I said, “Well, I better get my thing reactivated because if they’re taking his case, they’ll surely take mine.” And so I did it again, here in Chicago. This time we had extended hearings, some twenty hours. In fact, the Dean of the Adult Education Program here at the University of Chicago (Maurice F.X. Donohue) said to me, “You know, we ought to charge them tuition. You’re giving them a twenty-hour course, right?” So we had the twenty hours of very lively hearings over many many days. And then they ruled against me, but this time I gained ground. If three more commissioners had gone the other way I would have won in the Committee. Well, this time I went to the Supreme Court of Illinois with a very substantial dissent from the Committee. Later on there was a luncheon at the Faculty Club at the University of Chicago with the few members of my Law School faculty who were on my side, the minority on my side (the rest of them were just fearful, that’s what it came down to).
C.A.: This was the Red Scare?
G.A.: It was the whole Cold War business. There was a luncheon to which my wife and I were invited along with a Justice who had written a very powerful dissent on my behalf in the Supreme Court of Illinois, George W. Bristow, from Downstate Illinois. He told us all about it, about how it went, how they were trading votes for this against another case. It was really quite interesting. The professors were quite interested as well. What had made the difference for him, I believe, was that he looked at the record and he saw in it something to the effect that when I had been seventeen-years-old, I had made vigorous efforts down at Chanute Field, while I was a Freshman for part of the semester at the University of Illinois, to get in the Air Corps, the Air Cadet program, and I couldn’t because I was underweight and had a heart murmur. I kept going back, and finally one of the flight surgeons evidently said, “Alright, we’ll let him in and then we’ll wash him out, and then we’ll put him in the infantry or something. If he wants it this badly, we’ll let him in.” Justice Bristow, it seems had had a similar experience as a young man.
C.A.: Trying to get into the service?
G.A.: Yes, during the First World War. I don’t know this for a fact, but there was some indication that that is what had really moved him to say, “You know, this is a human being like me.” And so he wrote his dissent. I acknowledged him elsewhere. I dedicated something to his memory. (He died not too long after that.) It was quite clear, from what he had to say on that occasion, at the Faculty Club, that the Illinois Supreme Court had been seriously divided, and for them it was the principle. Now, it wasn’t a prejudice against me personally, because I have another piece of evidence about that. My father, who had a restaurant down in Williamson County, got into some kind of dispute with the people from whom he had bought the property on which he had built a restaurant, and it had something to do with the title and so forth. And he ended up in the Supreme Court of Illinois, on that property issue, and he won. This was after I had lost. The Justices would have made the connection with me, asking, “How many Anastaplo families can there be in Carterville, Illinois?” Right? They weren’t really mad at me, personally. I didn’t have that feeling. That’s what Justice Daily himself indicated in that taxicab ride. And that’s what Justice Bristow indicated in that luncheon we had with him. They, too, had principles.
C.A.: And their principles were?
G.A.: “Well, we have to control what is done with admission to the bar—and you know, Communism and the Cold War are going on, and we can’t allow─” But I’m the only one they ever caught with their inquiries. By the way, my understanding is that they don’t go through this process anymore. Did you have a hearing when you applied for admission?
C.A.: [Shakes head no] It’s a written application.
G.A.: I think they have a hearing now only if somebody has something questionable in his or her record.
C.A.: So were they afraid that it would become a dangerous precedent if they admitted you without answers from you?
G.A.: Well, in fact, they sent somebody to my hometown to investigate, but they wouldn’t put in the record what he found, which was nothing. Also, during that big twenty hours of hearing, I said, “I have a transcript here of something which, I’m saying, under oath, is accurate—a conversation I had [without identifying the Justice], but I’m going to give it to you to be entered into the record only if you request it.” And they refused to request it. I didn’t want to put it in on my own because I didn’t want anybody saying afterwards, “Well, he had this conversation, and it was a private conversation, and look what he did with it, and isn’t that something unethical?” I didn’t want to do that, so I said, “I have it [I identified it some way or other]. I’m prepared to say, and I have testified under oath, that this is an accurate thing (including the admission, by someone in a position to know, that no one in authority believed I was a Communist). All you have to do is to ask for it.” They refused to ask for it. At the same time, they also refused to put in the record what their investigator had found in Carterville.
C.A.: Which was nothing?
G.A.: Which was nothing. So who knows what it was they were after. Well, they had principles, they had principles─
C.A.: And you had principles.
G.A.: I had principles, too. One of the leading members of the Committee said, to some people, “You know, Anastaplo”—this was about the twenty-hour hearing–, “Anastaplo acted, when he appeared before us, as if he was better than we were.” And they resented that, here this kid was talking to them as if something was wrong with them and that he was right. And then, the same Chairman, who became very important on the Notre Dame Board of Trustees, ended up years later being seated next to my wife, at some dinner. After some momentary confusion about who’s who here, he recognized who she must be. He said, “You know, your husband, he held our feet to the fire.” These men were all older, fifteen, twenty years older, experienced lawyers, and here was this kid acting up, and “he held our feet to the fire” throughout that hearing. That’s the way he felt.
C.A.: Sort of threatened or embarrassed?
G.A.: I embarrassed them, or intimidated them, or was not being properly respectful. I don’t know how one understands it. They felt in some ways threatened. And they conducted themselves accordingly. The one mistake I made, and afterwards I really regretted it─I should have said, “I would like to get from you gentlemen your service records. Would you please tell me how many of you served in the armed forces of the United States and in what capacity?” They were all older than I was. If they’d been in the Second World War they would have been in some desk job for the most part. There may have been one or two exceptions, but for the most part, they would have been people either not in the service or doing something quite different from what I was doing. I had actually been in situations where I was in some danger from time to time. I wasn’t being shot at, but I was in some danger. And I should have asked them, just for the record, “What do you have?” They probably would have said no. But it would have been nice for them to have to say, “No, we are not going to do that.” Nor did I even mention to them that I was still in the Reserves.
C.A.: So they never knew that?
G.A.: I was standing on principle, so to speak. I wasn’t going to bring up all kinds of things that would have been of some help. I didn’t have any witnesses. There was one witness who volunteered himself and that was Wilber Katz, who had been the Dean for much of my law school career. When the thing finally blew up, he was no longer the Dean, but he was still on the faculty. And he went down voluntarily to talk to them and to try to have them be sensible, but he didn’t succeed. He was a very modest, mild-mannered fellow, and he didn’t lay down the law to them in the way that maybe they should have had somebody do. The new Dean of the law school was not receptive to what I was doing because he was concerned for the reputation of the law school and maybe for my own good. He didn’t think that what I was doing was good. My wife remembers this vividly, because she was walking in the law school hall, carrying our, then six-month-old, child and he stopped her and read the riot act to her, “Do you know what your husband is doing? And how this is going to affect him, and so on, and so forth.” The idea was that he’s ruining your lives. And afterwards her response was, when we were talking about it, “You know what he was doing─he was telling a Texas oil wildcatter’s daughter that you might be broke some day. We grew up broke all the time.” You know what it’s like down there? In the oil business as a wildcatter you know all kinds of people who have become enormously wealthy and then you’re broke because your well didn’t find anything. I mean she had reservations about anybody who thought that the prospect of being broke is something that should be all-consuming as one’s response to a situation. He didn’t understand. He was trying to do good, I’m sure of that. He was an intelligent man, a decent fellow, and he was a new Dean. By the way, he’s an illustration of something that is very interesting. Lord Acton said, “Power corrupts. Absolute power corrupts absolutely.” I do not believe that’s correct, for this man’s career, this Dean’s career, shows the opposite. That is to say, there is a counter-adage that comes from ancient Greece which is, “Power shows the man.” It doesn’t mean he’s going to go bad. He may go good. This man had a career in which the more powerful he got, the better he was. And he ended up in a very high position in government. And he was very good at it. So, power does not necessarily corrupt. It may give you an opportunity. You may feel more secure, in some ways, if you get it, and then you can act in accordance with your deepest principles. So, in my case, he was at his worst when he was new and I was new in my case. He got better and better. He never had much to do with me afterwards, with the bar, but he got better and better as he went up in his career.
C.A.: Interesting. So power shows the man?
G.A.: Power shows the man, and in his case it showed it in a nice way.
C.A.: Well, that’s encouraging.
G.A.: That’s right. Someone such as Churchill obviously was improved by power. Some of the things he did during the First World War were questionable, but as he went along and as he matured he got better. So, one has to be careful. In fact, one can argue that the lack of serious power can hurt a man or woman who has within him or her the ability to do great things, but they don’t get the opportunity. That could seem to me to be very harmful to that person, whereas if he had had the power, he might well have done good things, maybe even great things.
G.A.: So there are all kinds of chance events, including Justice Bristow’s similar First World War experience, getting into the service, and so forth. I’m sure there are other kinds of chance events that I don’t even know about that could show us what happened to me and why.
C.A.: Which is very Greek. I know you talk about that in your book as well, the role of chance─
G.A.: That’s one of the things that the Greek tragedies try to explain─what causes, what’s underlying, the things that happen to people.
C.A.: Well, maybe chance also shows the man.
G.A.: Well, chance certainly plays a role in all of these things, including the chance of who the members of the committee were when I first went before them.
G.A.: And on the other hand─I’m not sure that this is something to be said in the halls of the Chicago Bar Association─my own sense is that this was all a fortunate development because, if this had not happened, I would probably, as I said before, have ended up in a very good law firm making lots of money. Because I would have been a good lawyer. I probably would have been well compensated for it. And then the question becomes, “Can one walk away from all of that and do things that are more important?”
G.A.: It’s hard to do, especially if you get used to an enhanced standard of living. I wouldn’t have done the teaching I’ve done, and I wouldn’t have done the learning and writing I’ve done, if I’d been a successful lawyer. I would have done some writing, probably on the side, but far less. I wouldn’t have done the traveling and so forth. So I think, on net, I was very fortunate.
C.A.: Well, I know your students are very fortunate.
G.A.: Some of them are. It depends. My classes are really joint explorations of things, just to try to understand them. I don’t teach anything I know very well. If I know it very well, there’s no good reason for me to be involved in it as a teacher. I could just write something and let them read it. I learn a lot from my classes and perhaps some students do also. But it would have been a different life if I had been admitted to the bar, and probably not as good a life. Probably not, but who knows?
C.A.: Well, when I was reading your article in the [April 25, 2011] Chicago Daily Law Bulletin, I noticed a quotation from Justice Black in a letter he wrote to you.
G.A.: The Solicitor General revealed this correspondence at the Black memorial service at the Supreme Court. He said that one of the consequences of this case was an extended correspondence between the Justice and the applicant who had lost. I think he made it far more voluminous, the Solicitor General did, than it was. That correspondence is all in the archives at the Supreme Court now or at the Library of Congress. The Justice was very nice. After all, he was a very busy man. He didn’t write long letters to me, but he did write, and we went back and forth. I remember when there were stories about his possibly resigning, I was very presumptuous, and I said something like this, “Mr. Justice Black, look, there’s no reason for you to resign. They’re going to find somebody, whenever you do go. It isn’t as if you have to go now. . .”—and so forth and so on, urging him to stay on. That was kind of silly on my part, but it was a way of complimenting him.
C.A.: Well, he said you have the capacity to make a highly useful citizen in this country.
G.A.: I recall that, he put it in terms of, “It remains to be seen whether . . .”
C.A.: That was in 1969, so I think now we can say that you have become─
G.A.: Well, he was very generous, but the real generosity was back in that dissenting opinion where he just let himself go. And Harry Kalven, one of my professors at Chicago, was really taken by that opinion. A good deal is made of it in the Kalven book, which is about the First Amendment, A Worthy Tradition. Mr. Kalven was one of the half-dozen members of my faculty on my side, and he was very much taken by Black—by Black’s career, of course, but also by what he did in that dissenting opinion.
C.A.: It’s remarkable.
G.A.: Well, it was certainly interesting.
C.A.: Do you have any thoughts for our current students of law?
G.A.: There is a serious problem with the students today in law school, and it isn’t simply at Loyola. I attended some years ago a celebration of the hundredth anniversary of the founding of the University of Chicago Law School. At the end of that, one of the speakers was David Currie, a very prominent constitutional law professor, who has since died. (He was the husband of Barbara Flynn Currie, who is down in the State Legislature.) He said on that occasion (as a senior member of the faculty) what one would expect to hear about the law school, its accomplishments during the past century, and so forth. But then he said, “I have one serious reservation, and that is that students don’t talk in class anymore.” I went up to him afterwards and said, “David, I was very interested in what you had to say because that is exactly what I see.” And we talked a little bit about it. That is, I think, a very serious problem. Now, I don’t think it is because I’ve changed. After all, I still have my University of Chicago Great Books seminars, and there the students talk and talk and talk. Others in law schools have the same experience that David Currie and I have had─and I think one ought to think about what has caused this. That is to say, law students seem to be in some ways all-talked-out. Or is it that they are so inundated with all kinds of electronic stuff that they just don’t have the same kind of relation, with anybody who is right there, that was once available? I mean, something has happened─
C.A.: A lack of dialogue?
G.A.: I think that they are missing a lot because they are not talking. They’re tired. I think that’s part of it. They’re tired. They’ve been inundated with stuff ever since they were three or four-years-old. They are very skillful with all kinds of electronic stuff. They have all kinds of stuff coming in on them all the time. And they just don’t have the old interest in talking. It isn’t Loyola only, it’s also Chicago, and I’m sure it’s other law schools as well. It has something to do with what the influences have been for the past twenty-five years upon students. And I think that’s unfortunate. I find it particularly unfortunate because I don’t learn as much from the discussions as I would if they were talking. If I have to talk all the time, what I am going to be doing is talking about what I already know. What can I learn from that? When students talk, something may be said that I should take into account, something that I had never thought of that way—and they will learn more that way. Every once in a while something will come up, and somehow students come alive, as in my Jurisprudence class recently, when the issue of burqas in France came up. What does it mean to try to restrict their use in public? Somehow that got students volunteering things in a way they don’t ordinarily do. I haven’t seen much discussion of this change in class participation. People who know these matters much better than I do should make a study of what is in fact causing what David Currie and I have observed. Maybe somebody has already looked into all this and has even published things about it which I haven’t seen.
C.A.: Well, thank you very much, Professor Anastaplo.
G.A.: And thank you for giving me the opportunity to try to recall what it is that has happened and what is to be made of it. I look forward to talking with you again sometime.
The video of this conversation, of May 26, 2011, has been posted on the Chicago Bar Association website. See, also, for this and other materials, http://www.anastaplo.wordpress.com. A transcript of this interview was prepared by Adam Reinherz, a graduate of the Loyola University Chicago School of Law. That transcript has been edited for publication here by George Anastaplo. (Mr. Reinherz has also transcribed George Anastaplo’s Simply Unbelievable: Conversations with a Holocaust Survivor . The first three conversation, and a list of the others, may be found in the http://www.anastaplo.wordpress.com.)
See, on the University of Chicago Law School dean referred to in this May 26, 2011 Chicago Bar Associaion conversation (especially with respect to the question of whether “power corrupts,” etc.), George Anastaplo, “Legal Education, Economics, and Law School Governance,” 46 South Dakota Law Review 104, 304f (2001).
A review by Carolyn Amadon of George Anastaplo’s Reflections on Life, Death and the Constitution (Lexington Books, 2009) has been published in the Chicago Bar Association Record, October 2011, pp. 52-53. Ms. Amadon (a graduate of the Loyola University Chicago School of Law) is the Executive Director of the Center for Conflict Resolution, Chicago, Illinois.