“We must not be afraid to be free”: Justice Hugo Black and George Anastaplo–Majeske pre-Publication

Roger K. Newman[1]

Sometimes it’s good to retire.  George Anastaplo retired from the practice of law after the Supreme Court decided his case in 1961 and it was the start of his career and his relationship with Justice Hugo Black.  But first George Anastaplo and the case.  His story is is classically American.  The son of Greek immigrants, he was born in St. Louis and raised in a small town in southern Illinois, enlisted in the Air Corps in the midst of World War Two in 1943, not yet 18, navigated planes across the Pacific, in Europe, North Africa and the Middle East, and graduated from the college of the University of Chicago after one year of coursework, having placed out in all but seven courses in admission exams, and then its Law School, at the top of his class.  Were it not for his simply immovable adherence to principle, George would today likely be a rich, retired partner of a law firm well into a second career writing about the classics, philosophy and legal theory.[2]  But that was not his way – and here we are celebrating a long-retired lawyer.

In November 1950, at a hearing before the Illinois bar’s Character and Fitness Committee to determine his fitness to join the bar, having already in his last year of law school taken and passed the bar examination as a veteran could then do, Anastaplo admitted that he supported a right to revolution.  On a questionnaire he had listed what he considered to be the principles underlying the Constitution — separation of powers, the Bill of Rights and the right of revolution against a government destructive of these rights.  He was merely paraphrasing language from the Declaration of Independence, but within minutes of his appearance before a two-member Subcommittee of the Character Committee, he said in response to a question being asked by some committee members whether a member of the Communist Party would be eligible to practice in Illinois, he said, “I should think so.”

“Who knows why I did it.” Anastaplo said years later when asked pointedly why he replied as he did.  “It just came to me.  I hadn’t really thought of it before, oh, I guess, in the most general way, but I just came out with it, sort of blurted out.”[3]  He just turned twenty-five that month and brimmed with a quiet awareness of himself.  “I wasn’t going to be bulldozed. … I was just a few years out of the service” where being “a quite young aerial navigator, to whom the lives of his air crew were routinely entrusted, nurtured considerable self-confidence, as well as a sense of what it means to be competent.”  And this was even though the question “really surprised” him.[4]

The head of the two-person bar panel, Stephen A. Mitchell, intelligent and politically attuned (he was one of then-Illinois governor Adlai Stevenson’s closest advisers and became Democratic National Chairman in 1952), “looked shocked” when the other examiner asked, “Are you a member of the Communist party?”  George has recalled: “Mitchell should have called a recess, let things cool off for a while, talked with the other fellow, and then come back.”[5]  But the hearing was already running late and he did not.

That started it all, and ten years and one month later, and  Justice Black emerged with his spirits uncharacteristically flagging (the only time that term despite losing nearly all freedom of speech cases) from the Supreme Court’s conference at which the justices considered Anastaplo’s and another bar admission case (from California).[6]   “I’m not going to write a dissent this time,” he told his clerks.  “I’ve written enough on these.”  Besides, Anastaplo “is too stubborn for his own good.  This whole thing is a little silly on his part.”  Three months later, on a Friday afternoon in March 1961, Justice John Harlan circulated drafts of majority opinions upholding the power, if not the wisdom, of the bar in denying the two petitioners admission.  A former litigator for large corporate interests, Harlan had long thought that law, government and society in general would be better off if they paid heed to the leading members of the corporate bar, who would “keep things on an even keel.”[7]

Black put Harlan’s drafts in his briefcase.  They stirred him to action, and on Monday morning he came in with a single dictated dissent for the three cases “because they were so wrong.”   (Black liked to dictate opinions into a tape recorder at home.)  But his clerk, George Saunders, convinced him that each case merited separate treatment.  “I took the poetry the Judge had dictated and spread it around,” Saunders told me.  On his own he went through the record in the Anastaplo case and showed his handiwork to Black.  Now the Judge, as most everyone younger called him, became emotionally involved.  In March and April he wrote eight drafts.[8]  Saunders helped, greatly in spots, as he came from Birmingham, Black’s adopted home town and had an ear for his idiom, but this was pure Hugo Black.  The case touched him so much that when he read from Anastaplo’s replies to the bar committee examiners in eight sessions over the years, tears flowed down his cheeks.  It was like an oration for the former Sunday school teacher or a closing argument to the jury for the former trial lawyer or a stump speech for the former senator — philosophy and history grounded in the record, and teeming with fire and brimstone.  At one point he cited a former dissent of his that Chief Justice Warren had not joined.  “It’s hard to swallow,” a Warren clerk told Saunders, but Black insisted and Warren gulped his objections.

All who care about freedom and classical rhetoric should read the whole opinion of this consummate rhetorician at the height of his powers[9] – what moderns have taken to call style – but since all will not be rushing to the nearest library or computer, I will reprint Black’s last two paragraphs.

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

But that is the present trend not only in the legal profession, but in almost every walk of life. Too many men are being driven to become government-fearing and time-serving because the Government is being permitted to strike out at those who are fearless enough to think as they please and say what they think. This trend must be halted if we are to keep faith with the Founders of our Nation and pass on to future generations of Americans the great heritage of freedom which they sacrificed so much to leave to us. The choice is clear to me. If we are to pass on that great heritage of freedom, we must return to the original language of the Bill of Rights. We must not be afraid to be free.[10]

As Justice Brennan told him with admiration, “Hugo, you have immortalized George Anastaplo.”   It was the first opinion, chosen by Hugo, Jr., who knew his father’s feelings, read at Black’s funeral.[11]

Before the end of the Court’s term, in June 1961, Anastaplo filed a petition for rehearing, his swan song to the legal profession.[12]  It concluded:

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. 

That October, he wrote Black.  “Dear Sir: I have decided I would rather run the risk of impropriety than that of ingratitude: thank you very much for a most generous and perceptive opinion.  It should serve, for decades to come, to remind the bar of ‘the better angels of [its] nature.’”  And he enclosed his letter to the Illinois Supreme Court, “which I regard as my concluding statement on the case,” which it was, officially at least.[13]  Thus began a ten year correspondence unique in the annals of American law, that of a losing litigant with the leading dissenter in an important case.  It was a periodic correspondence and certainly not prolific — 20 letters by Anastaplo and 13 by Black.  Nearly every exchange began with Anastaplo’s referring in some way to something he wrote and sending it to the Justice.  Black invariably replied that he enjoyed reading it.

They saw each other only twice, and both times at a distance, once when Anastaplo argued his case and then at a memorial in Washington in 1965 for Alexander Meiklejohn.  They tried to meet, twice, in 1969, but Anastaplo had to return to Chicago.  Their conversation would have been memorable, lifting them, as Black once said in another connection, “above the commonplace things and to a greater appreciation of our country and the Constitution,” because of their similarities in temperament and interests.[14]  It was more than that they were kindred spirits – they were classicists in modern garb, interpreting the Framers, and applying their handiwork, through the lens of their own ancient mentors.  A reporter during Black’s Senate days wrote that when he spoke on the Senate floor he sounded like “a talking encyclopedia with a Southern accent” — Anastaplo lacks only the accent.  They also share an appreciation of sinewy Anglo-Saxon, not Latinate, prose and an economy of style, both of individual words and of the whole, one that is, in short, compendious.[15]  As Edith Hamilton wrote in Black’s favorite book, The Greek Way, “Clarity and simplicity of statement, the watchwords of the thinker, were the Greek poets’ watchwords too.”[16]  Perhaps this combination leads to a common viewpoint.  If they had served together on the Court, they would have, I believe, agreed in the vast majority of cases (although not without strong dissents given, in the First Amendment area, Anastaplo’s almost exclusively political focus –“the public business” — the polis as well as the moral well-being of the community, with a strong federalism factor emanating from the “republican form of government” guarantee).[17]

Black’s approach was best understood and appreciated by other classically–inclined contemporaries besides Anastaplo over a broad generation – I think of Alexander Meiklejohn,[18] Robert Hutchins,[19] Edward Levi, Edmond Cahn[20] and Judge Richard Arnold.[21]  It might be surprising to mention Levi on this occasion since as dean of the University of Chicago law school he hindered Anastaplo at every turn throughout the case and, later, as university provost and president kept him from teaching at the university.  He “accosted” Anastaplo’s wife as she was carrying her six-month old child in the hall of the law school in late 1950 to urge her to tell George to change his position.  “It will hurt his career.”  But as the child of a Texas oil wildcatter she knew that life was choice and chance, and she told Levi to tell this himself to George.  Soon Levi did.  Be “reasonable,” he told Anastaplo who always felt he was trying to be helpful.  But at the same time this child of the University of Chicago – its “product and personification,”[22]  where starting at age five he spent all but eight of his nearly eighty-nine years — was in his first year as dean, without the effective support of Robert Hutchins who had appointed him but announced earlier in the year that he would resign as chancellor.  The university and law school, then and for several years thereafter, were subjected to much external pressure, not least from the anti-communist paranoia.  Levi was intensely protective.  He led those closest to him to say, “Anastaplo doesn’t understand institutions.”  Nevertheless, his predecessor as dean, Wilbur Katz, “a very modest and mild-mannered fellow,” voluntarily went to speak to the bar committee at Anastaplo’s next hearing, before the full character committee, in January 1951 – to no avail.[23]

Regardless, Levi put his finger on so much when he told me:

I feel that Black’s opinions showed such insight that really only a few people understood just what he was trying to get at.  In the classics he was truly a learned man.  Because of the program and the people here, I read a lot of the commentaries about the classics.  I thought I read most, but he would talk about others.  That surprised me and when I got back here, I would mention those to the classicists and they would say that only specialists read those.  That was Black.  I think Black was a great man, very much so.  You couldn’t measure what he meant during McCarthyism.  What he stood for was just right.  I had him out here as much as I could get him to come.  If he wanted to stay here all the time and mail in his opinions, that would have been fine with me.

Levi chuckled and continued, “Whenever civil liberties questions arose when I was attorney general, I thought of Black, and what he said and did was in my mind and guided me.”[24]  When I told this last remark to George shortly afterwards, he looked at me quizzically and simply said, maybe.

In 1964 he sent Black a talk he gave on Leonard Levy’s book Legacy of Suppression entitled “The American Heritage: Words and Deeds.”  The book had struck at the heart of Black’s theory of the First Amendment by arguing that the Framers had not intended to abolish seditious libel, which made criminal any criticism of government, and in the summer of 1960, after reading the book, he read all of Levy’s sources.  “I am fully familiar with Dean Levy’s book,” he wrote Anastaplo.  “Sometime ago I wrote him that after reading the content of his book I would have given it a quite a different title: namely, ‘Legacy of Liberty.’  I am very happy that you have written as you did about the book.”[25]  Soon Anastaplo sent Black an excerpt from his dissertation on the First Amendment, inscribing the title page, “For Justice Black, guardian of his countrymen’s liberties.”[26]  And of those who opposed Black’s view he wrote: “It has seemed to me to have become fashionable to disparage any ‘absolute’ formulation of freedom of speech.  Such disparagement has all too often come from men on university faculties, men with tenured positions which assure them an absolute freedom of speech in their world.  I have tried to challenge this fashion at its roots, suggesting the basis in political philosophy (and even in classical political philosophy) for the ways of truly free men.”[27]

Black and Anastaplo were radicals, then, in the original sense: they got to the root of things. The month before, he had sent the Justice a speech, “Plato’s Crito: The City and Its Laws,” an appendix to his dissertation.  This touched Black’s intellectual wellsprings.  “The approach of many of your arguments is most unique,” he replied, “and I particularly enjoyed your reference to the Iliad.”[28]

Despite the press of Court work, Black read each of George’s pieces as promptly as possible,  At first his replies were almost mechanical (after all, many people, even if losing litigants most rarely, send writings to Supreme Court justices), listing the piece, its author when other than Anastaplo and its place of publication.  But gradually he saw that Anastaplo was not going away (as it were), and now when writing George, he closed “with kind regards” and that he looked forward to the next piece of writing George would send.  George started closing with “sincerely” instead of “respectfully.”  An improbable epistolary friendship was being formed.

Anastaplo knew it was unlikely but in 1965 he asked Black anyway to write a preface to The Constitutionalist, his book based on his dissertation, then scheduled to be published the following year.[29]  “Many years ago I adopted a practice against writing prefaces and book reviews in general,” Black replied, not mentioning that he had done so for the historian Charles Beard and would shortly do so for his close friend Cahn, “and this rule would apply particularly to reviews of books, raising questions which constantly come before out Court.”  Over the next few years Anastaplo read much more than he wrote, the fruit coming in those hundreds of pages of notes in the book, whose reading alone would make anyone educated and that remain for him that book’s “continuing attraction.”[30]

In 1967 he sent the Justice an article on Black and the First Amendment by his good friend Harry Kalven, Jr.  “Permit me also to express my dissent from his reservations respecting some of your recent opinions,” Anastaplo wrote.  “I prefer your position to his on symbolic speech in public or semi-public places: one problem with the argument for ‘symbolic speech,’ turning as it does deeds into speech, is that the same approach can be used to turn speech into deeds.”  Black replied, “I am glad to note your dissent from some of his reservations about my work.”[31]

Liberals had recently moved their hero from the center of their judicial parthenon because he went his way, not theirs, in direct action and sit-in cases.  So Black’s response to an article Anastaplo wrote in 1969 entitled “On Civil Disobedience: Thoreau and Socrates” was not surprising.  “I congratulate you on this article because I found it exceedingly interesting.”[32]  He so appreciated it that he closed his letter, most unusually for him, “With my kind regards and good wishes….”   It was also the only letter in which Black called Anastaplo “George.”

The year 1969 also saw Black become paternal – George was the age of his children.  He sent the Judge a copy of a letter he wrote the head of the Illinois bar after being misidentified in an Illinois legal publication.  “I hesitate to say so,” Black replied, “but I am not altogether sure that you are wise in keeping up a contest with the Illinois State Bar Association as you do in your letter of January 15th.  Of course you know from what I said in my dissenting opinion in your case how I feel about what was done.  I believe that time alone will bring about the change in connection with your rejection as a member of the Bar much more effectively than it will for you to continue to discuss it.  I hope you will forgive this statement, with which you will doubtless not be in accord.  At any rate, I was glad to hear from you and continue to wish you success.”[33]

Anastaplo waited until that August to respond and when he did, he noted that in his forthcoming book, Black “comes off much better than anybody else on the Court this century.”  The Judge was right, he said, in his observation that only time would change his status as a nonmember of the bar and that the best argument he could make for what he stood for was to produce “a record of decent work by me in the classics, political philosophy and constitutional law.”[34]    Black replied that he was “delighted” that George agreed with him.  And he continued:

Maybe there is no need for me to do so, but I take great pride in the course you have followed since your case in Illinois and at this Court.  You have acted with great dignity and have, in my judgment, established the fact that you are not destined to be the great extremist which some people thought you were sure to become.  I have long thought and still believe that you have the capacity to make a highly useful citizen of this country.

The Constitutionalist was published just before Black’s death in September 1971.  Anastaplo had earlier sent him its opening chapters and the last page which concluded with those memorable words, “We must not be afraid to be free.”  Black replied wryly and with characteristic understatement that he had not yet had time to read the opening chapters, only that last page.[35]

Were he alive today, I believe Justice Black would be hard put not to honor his fellow dissenter from orthodoxy.  He might even say that George Anastaplo’s loss in his only case before he retired from the practice of law was our, and the Republic’s, great gain.[36]

____________________
Endnotes:

[1]           Author, Hugo Black: A Biography (N.Y., 1994; Bronx, N.Y., 1997, sec. ed.).  I have drawn both on conversations with George Anastaplo over more than twenty years and on his comments after I delivered the paper at the John Jay conference upon which this article is based.

I have freely used comments in my entry on Anastaplo in Roger K. Newman, ed., The Yale Biographical Dictionary of American Law (New Haven, 2009).  I have included much more information in the notes than I usually do.  “The reader is urged, as with my other publications, to begin by reading the text without reference to the notes,” Anastaplo has frequently written in the first note of his publications.  Perhaps it is his influence.  ….

[2]            If his bar admission matter had not arisen, he “would have been in the practice,” George has said.   And indeed he was already lining up a job with the firm of D’Ancona & Pflaum, which soon dropped its interest in him.  I think it more likely that after a period in practice, he would have quit and started teaching, for too strong was his interest in scholarship.

[3]           John Jay conference comments.  “I was then young enough to believe that I was too old to be pushed around by a bunch of ‘old men,’” and “I was resisting hazing,” he said in 2003.  Anastaplo, On Trial: From Adam & Eve to O.J. Simpson (Lanham, Md., 2004), 459 (“Why Did You Do it?,” Appendix D).

[4]           Martin Northway, “George Anastaplo: The Socrates of Chicago” (2004),   www.hydeparkhistory.org/herald/anastaplo-talk.pdf (bulldozed, years); Samplings: Nine Talks by George Anastaplo, 27 Political Science Reviewer 345, 347 (1998) (navigator); “Anastaplo: Are You a Member of the Communist Party?” Evergreen (Hyde Park [Chicago] Cooperative Society), 11/1997 (John K. Wilson interview with Anastaplo) (surprised).

Anastaplo’s Law School classmates remember him as brilliant and witty, although quiet, even solitary.  He was clearly not a typical law student.  “He had his own ideas about how to spend his time,” says Abner Mikva, who went on to become a congressman, federal judge, and [counsel] to President Clinton. Instead of joining the Law Review, a sure path to advancement, Anastaplo audited other courses at the University. When Dean Levi decreed that students wear coats and ties to class, Anastaplo continued to show up in jeans. When a lecture bored him, he would pull out a newspaper and read.

Richard Merens, “One Door Closes,” University of Chicago Magazine, 3-4/2012.

I have been remembered as a student who could come to class in his pajamas, something which I have absolutely no recollection of.  I did bring a canary to Contracts class once, to illustrate a point in the discussion of consideration.  And I tried to bring a horse to Property class to illustrate a distinction between personal and real property.  But neither the canary nor the horse wore pajamas.  I was responsible once for alarm clocks going off in series at the end of a class, to confound a professor who always ran overtime.  May this account for the pajamas association?  I have also been remembered as a chain smokier in my student days, even though I have never smoked.

Anastaplo, What Is Still Wrong with George Anastaplo?  A Sequel to 366 U.S. 82 (1961), 35 DePaul Law Review 551, 561 n. 46 (1986).

[5]            These remarks came at the John Jay Conference.  “I still have the impression that when one of them asked about the Communist Party, the other one seemed a little bit put off,” Anastaplo said in 1997.  “But then, there it was on the table, and he was stuck with it. He was put off a little bit.  But he had a failure of nerve.  He was a good guy, but he did nothing sensible.”  “Anastaplo: Are You a Member.”

[6]            The other case was Konigsberg v. State Bar of California, 366 U.S. 36 (1961).  Anastaplo had argued his own case two days earlier, December 14.

[7]           Norman Dorsen, John Marshall Harlan, Civil Liberties, and the Warren Court, 36 New York Law School Law Review 81, 100 (1991).  Black and Harlan were at loggerheads throughout the case.  Anastaplo’s troubles, Black said while delivering his dissent from the bench, came because he “made the mistake of saying he believed fully in the Declaration of Independence.”  Harlan, who had already announced the Court’s opinion, then offered a rare rebuttal to Black.  The Illinois Supreme Court opinion, he stated, made it “clear” that Anastaplo was “denied admission not because he believes in the Declaration of Independence but because he refused to answer questions about his Communist Party membership.”  Washington Post, 4/25/1961.

[8]           Lawrence Wallace int. (wrong).  Black’s papers in the case  include the following:

Barring Suspects from Jobs.

 

“When thwarted in their plans against the leaders the terrorists turned upon the weak and lowly demanding the discharge of Jeffersonian artisans employed in the manufacture of war material.  Out with them!  ‘It is a notorious fact’ that a number of artisans … are of politics destructive of the Constitution.”  [Claude] Bowers, Jefferson & Hamilton [1925], p. 384; citing Gazette of the United States, April 15, 1789.

Criticism of the Sedition law

Deemed to Show Lack of Patriotism.

 

“When a man is heard to inveigh against the sedition law set him down as one who would submit to no restraint which is calculated for the peace of society.  He deserves to be suspected.”  Bowers, Jefferson & Hamilton, p. 385; citing N.Y. Commission Advertiser, December 29, 1789, and [John C.] Miller discussion of alien and sedition law, [Crisis in Freedom (1951)], page 89.

HLBLC.

[9]           It is not irrelevant, I think, that the four most important justices in Supreme Court history — John Marshall, Oliver Wendell Holmes, Jr., Louis D. Brandeis and Black, without whom the institution, the Constitution and the country would look very different — reflect Richard Posner’s observation that “rhetorical power may be a more important attribute of judicial excellence than analytical power. … The literary judge wears best over time.”  Richard A. Posner, Cardozo: A Study in Reputation (Chicago, 1990), x, 143.  It is also not irrelevant that these justices had an easy familiarity with classical rhetoric.

[10]         In re Anastaplo, 366 U.S. 82, 114-16 (1961).

[11]         Unless otherwise noted, I have taken this section from Newman, Black, 503-07, 625.

“Brennan really admired Anastaplo,” recalled Black’s clerk Lawrence Wallace, a sentiment Brennan’s clerk Richard Arnold also conveyed to me.  “He couldn’t bring himself not to join the opinion even if he partly disagreed with the Judge on the First Amendment.”

In his roll call of great lawyers in his opinion Black would have added another name: Walter Fisher.  “I can now tell you that if you will read my dissent in the case of George Anastaplo you will find out why I admire your father so greatly,” he wrote Roger Fisher whom he met when Fisher was working in the solicitor general’s office in 1956-58.  “I think his unselfish service in the case he handed without pay in this court and in Illinois [Bartkus v. Illinois, 359 U.S. 121 (1959)] puts him clearly in the category of lawyers such as I mentioned in Anastaplo.”  HLB to Roger Fisher, 4/26/1961, HLBLC (originally underlined).  He did not mention Fisher because of the recency of the case.  On Fisher, see the obituary in NYT, 8/29/1991.  “Erskine, in my estimation, is one of the world’s great lawyers,” Black told a former clerk who had sent him Erskine’s speeches.  “He stood for fine principles of liberty when it amounted to something to do so.”  HLB to David Vann, 6/26/1957, HLBLC.  Black always said that Davis was the best lawyer to appear before the Court, usually adding Robert H. Jackson.

“Anastaplo’s record indicates that he would make a very useful member of the American Bar,” Black told one of Earl Warren’s clerks the previous term with whom he became friendly.    HLB to William H. Dempsey, Jr., 5/31/1961, HLBLC.  Tacitus wrote: “Can we possibly be employed to better purpose, than in the exercise of an art which enables man, upon all occasions, to support the interest of his friend, to protect the rights of the stranger, to defend the cause of the injured, to strike with terror and dismay his open and secret adversaries, himself secure the while, and guarded, as it were, by an imperishable potency?”  In the margin of his copy Black substituted “integrity” for “potency,” and in the rear of the book he wrote: “What is a lawyer, why be one? 394.”  “A Dialogue Concerning Oratory in 2 The Works of Tacitus (N.Y., 1869) (Oxford trans.), 394; Black Books, University of Alabama Law Library.  “You have never read Tacitus?” Black asked a clerk on his second day on the job.  “’Why, then, you are not a lawyer.’  He made me drop all else until I had read his own highly and personally annotated Tacitus.”  Guido Calabresi, Introductory Letter, 1 Yale Journal of Law & Humanities vii (1988-89).  Numerous clerks had the same story about this or similar books of Black’s; see Daniel J. Meador, Mr. Justice Black and His Books (Charlottesville, 1974), 30.

[12]         “I think your adjective, silly, catches Mr. Justice Harlan’s opinion just about right,” Anastaplo wrote Alexander Meiklejohn. “… it is time for those who have been opposed to me to prove and redeem themselves.  (I can appreciate, that is, Coriolanus’s response. ‘I banish you!’  (III, iii, 124).   I should also add that I would not have missed all this for the world – and might even consider choosing this career deliberately if it should be presented to me again at the age of twenty-five.  It has turned out a piece of good fortune and an opportunity that I have enjoyed taking advantage of.”  Anastaplo to Meiklejohn, 5/26/1961, Meiklejohn papers, State Historical Society of Wisconsin (originally underlined).

[13]         GA to HLB, 10/30/1961, HLBLC.  Anastaplo also wrote Chief Justice Warren “because of the unusual circumstances which attended my appearance before the Court, to thank you for the attention devoted to my bar admission matter.  The enclosed letter to the Chief Justice of the Illinois Supreme Court is intended as my concluding statement in this affair.”  GA to Earl Warren, 10/30/1961, HLBLC.  Warren thereupon had the Court’s Clerk office circulate this letter to each justice.

[14]         Hugo L. Black, “About Edmond Cahn,” 40 New York University Law Review 207, 208 (1965).  Black and Anastaplo share other similar traits.  Both looked at things from their own perspectives regardless of others’ starting points and were “hellbent on truth,” as Black’s daughter told me about her father.  “He looked at everything from his point of view,” recalled his clerk Guido Calabresi.  “Once when a 5-4 case went the wrong way, he said, ‘you’re here for a year.  I’m here for a long time.  What matters is not how a case comes out but how the position is put.’  He felt that if something is stated right, you’ll win.”  And both were almost touching in their unpretentiousness, what can only be called a down-to-earth quality.  Anastaplo would fetch large mailing envelopes from paper recycling containers at his school and write notes, speeches, his daily tasks on them.  “I use whatever I have,” he says.  So did Black.  Wrote Daniel Meador, the chronicler of his reading: “Newspaper clippings often served incidentally as bookmarks, along with … torn pieces of Kleenex.”  Meador was being polite.  It was really toilet paper in several books.  I am reminded of Black’s comment on a law professor’s article charting the time the justices spent on various aspects of their job from considering petitions for certiorari to writing opinions: “he thought it was funny and said Hart didn’t take into account the time he spent reading cert petitions in the toilet.  Calabresi interview (look at, funny [about Henry H. Hart, Jr., “Foreword: The Time Chart of the Justices,” 73 Harvard Law Review 84 (1959)]); Cornelia Grunman, “Wrong Question,” Chicago Tribune Magazine, 11/26/2000; Meador, Black and His Books, 26.

[15]         Newman, Black, 126.  “John,” Black wrote Justice Harlan, “– I only had time to read the last paragraph of your Konigsberg dissent [352 U.S. 252, 276 (1957), also a bar admission case] but note that you regret to find what we say is ‘unintelligible.’  What’s the matter?  Are our words too big or something?”  [HLB to John M. Harlan, undated, Harlan papers, Princeton.]  “As you may suspect, I am going with the dissent in this case,” Black told Justice Tom Clark.  “This may be conditional, however.  What is a ‘sphygmogram’?  This may change my whole viewpoint.”  [HLB to Clark, 2/21/1957, HLBLC (re Breithaupt v. Abram, 352 U.S. 432 (1957)].  “Since my opinion in Reid v. Covert appeared long to you,” he wrote a former law clerk, “I think I better go back and look at it with a view to truncating it.  (You see, I do know at least one rarely-used word.)”  HLB to Vernon Patrick, 1/11/1958, HLBLC.

[16]         Edith Hamilton, The Greek Way (N.Y., 1942), 75.  Black’s other underlinings in this chapter, “The Greek Way of Writing,” speak to the same theme: “Greek writing depends no more on ornament than the Greek statue does.”  Id., 72   “’The Greeks soar but keep their feet on the ground,’ said Landor.  “Our poets leave earth far beyond them, freed by what the Greeks had small use and no name for, poetic license.”  Id., 74   And: “I [Phaedrus] thought he [Socrates] repeated himself two or three times, either from want of words or want of pains.  And he seemed to me ambitious to show that he could say the same thing over in two or three ways –“  Id., 83.  Black Books, University of Alabama Law Library.  I wish to thank Paul Pruitt of the library for copying this for me and, more importantly, for his friendship over many years.

[17]         Anastaplo is Straussian in the mode of the original Strauss – Leo – whose courses he audited over a decade and whom he considered “the greatest student of political philosophy in this [the twentieth] century” – but not necessarily as the progenitor’s acolytes and supposed ideological successors have interpreted him.  George, typically, cared much about Strauss personally (he is as friendly as your next door neighbor, well, most of them anyway) and saw a good deal of him over the years, long before visiting him in the hospital during his final illness.  Strauss, at some level, needed disciples and Anastaplo carried the message in its original form: “Mr. Strauss, I should add, may not have been as conservative as most of his devoted students, not only because he did not care as much as (or in the way) they did about practical matters, but also because he knew better than they that the institutions which conservatives so passionately protect often have questionable radical origins.  His conservatism, I should also add, did not even mean that he dogmatically took the ‘anti-Communist’ position.”  Thus he wrote Anastaplo after his case in 1961: “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.”  Anastaplo has noted the response to his heartfelt memorial to Strauss: “One can get some notion of the discipleship Mr. Strauss inspired among some students when one learns that even this eulogy by me has evidently not been considered sufficiently laudatory by the more zealous defenders of the faith.”  The feeling of some Strauss students toward him reminds me of what Walter Isaacson wrote about Henry Kissinger: “he would probably feel that even his own memoirs do not quite do justice to his achievements. … The subject of the book was, after all, one that fascinated him deeply.” Anastaplo, Freedom of Speech and the First Amendment: Explorations, 21 Texas Tech Law Review 1941, 2081 (1990) (greatest student).  See Anastaplo, “Leo Strauss at the University of Chicago” and John A. Murley, “In re George Anastaplo” in Kenneth L. Deutsch and Murley, eds., Leo Strauss, the Straussians, and the American Regime (Lanham, Md., 1999); Anastaplo, Leo Strauss and Judaism Revisited, https://anastaplo.wordpress.com/2012/05/22/leo-strauss-and-judaism-revisited/.  See Anastaplo, The Artist as Thinker (Athens, Ohio, 1983), 474-75 (the eulogy; “The Thinker as Artist,” is at 249-72); Isaacson, Kissinger: A Biography (N.Y., 1992), 15.

“Still another way of indicating my difference with some of Mr. Strauss’ students [also with Strauss himself ?],” Anastaplo has written, “is to note that I have been a student as well of Malcolm P. Sharp.”  “He was really quite a guy,” Anastaplo has told me.  “He didn’t write as much as some others, but he was as sharp as anyone and very engaged” – in the Rosenbergs’ defense and then as president of the National Lawyers Guild, for example – with an inquiring, humanistic sprit and a sense of tradition.  See Malcolm P. Sharp, Crosskey, Anastaplo, and Meiklejohn on the United States Constitution, 20 University of Chicago Law School Record 51 (1973).  The tradition of Anastaplo’s primary mentors, then, is very different from the Aristotle (whom Black called “my favorite author,” HLB to John P. Frank, 10/3/1962, HLBLC)-Locke-Jefferson tradition of Black (and Malcolm Sharp), which remains, despite the dents it has endured in attempts to dethrone it, the central American tradition.

These differences I believe accounts for some of the unresolved tension and indeed the creativity in Anastaplo’s thought.  He took from his primary academic mentors, Strauss and William W. Crosskey, the importance of texts and reading them as their authors intended, in the case of Strauss classical political philosophy, largely but by no means exclusively the ancients and the Constitution with Crosskey.  His massive two volume study, Politics and the Constitution in the History of the United States (Chicago, 1953), an exegesis of the sources behind the document, is a monumental if austere, almost ascetic, achievement.  Black “liked what he was doing” and encouraged him privately through others; Arthur J. Keefe interview.  But to Black Crosskey’s work (and Strauss’s too, to the extent, if any, he knew of it; I have never found any indication) was merely a building bloc.  Government worked with politics, Black believed. but whereas the former had a defined structure, politics was based on philosophy and much of that philosophy is in the Constitution.  Common sense supplies the rest.  “What is practicable must often control what is pure theory.”  So Black underlined Jefferson’s words, Newman, Black, 528, quoting Richard Hofstadter, The American Political Tradition (paper ed. 1954), 34.  Black underlined only the chapter on Jefferson in this book which his daughter had recently read for a college course.  “Marxism,” he said three months before he died, “was the most important theory ever devised, in theory that is.  Then it is the most effective.  But I don’t believe just in theory.  It also has to work.”  Virginia Durr Parker interview.

All this raises large, unanswerable questions – unanswerable in the sense that each person has a different answer – about the lessons that we moderns should take from the ancient world and, more specifically, how to use that past in constitutional adjudication.  “Maybe at bottom I’m a conservative,” Black, culturally and socially conservative yet open-minded (until near the end of his life), observed in 1956.  “I couldn’t add to a Bill of Rights.”  Transcript of Daniel Berman conversation with HLB, 3/22/1956, quoted in Gerald T. Dunne, book review, 80 Michigan Law Review 652, ___ (1982).  As Gilbert and Sullivan put it in Iolanthe: “That every boy and every gal  /  That’s born into the world alive /  Is either a little Liberal  / Or else a little Conservative!”

I must also note: Anastaplo writes: “Of course, Justice Black was himself interested in history and read extensively in historical texts.  But neither he, nor Alexander Meiklejohn, upon whom he relied in First Amendment matters, believed that history could provide the last word in this field.”  Anastaplo, Freedom of Speech and First Amendment: Explorations, 21 Texas Tech Law Review 2024, discussing Leonard Levy, The Emergence of a Free Press (1985).  Anastaplo’s first sentence is a great understatement; Black spent much of the summer of 1960, for example, reading the sources Levy used in Legacy of Suppression: Freedom of Speech and Press in Early American History (1960), of which Emergence of a Free Press was a revised and enlarged edition.  Anastaplo’s second sentence is not correct: Black did not rely upon Meiklejohn or anyone else in First Amendment or any other matters, and he very much believed that if history did not  provide the “last word” when it came to the First Amendment, it came as close as could be.

[18]         After Black’s concurring opinion in Rochin v. California, 342 U.S. 165 (1952) – in which he wrote that “faithful adherence to the specific guarantees in the Bill of Rights insures a more permanent protection of individual liberty than that which can be afforded by the nebulous standards stated by the majority,” Id., 175 – Meikejohn told the Justice that his opinion

goes straight to the heart of the matter and I’m daring to hope that, sooner or later, what you are saying will have a decisive influence in the direction of better understanding. … The philosophy of the majority opinion is, as you say, radically unsound, but it has a very strong appeal to the “American mind,” as it now functions.  And it is both dominant and unsound in every phrase of our life, both domestic and international.  It may be that you and I don’t agree of this point or that.  (I’m not sure.)  But we seem to agree that there is a basic philosophical issue on which, as a people, we are going wrong.

Meiklejohn to HLB, 1/28/1952, Meiklejohn papers.  See John P. Frank, Hugo L. Black: Free Speech and the Declaration of Independence, 1977 University of Illinois Law Forum 577, 578-79.

[19]         Robert M. Hutchins, Dissenting Opinion as a Creative Art, Saturday Review, 8/12/1961.

[20]         See Newman, Black, 454-55 and sources cited therein.  Cahn’s article, “The Firstness of the First Amendment,” 65 Yale Law Journal 464 (1956), remains perhaps the best single article about Black’s philosophy.  “He understands what I’m trying to do,” Black said upon its publication as he said about no other work about him.  “We didn’t agree on everything,” Black told me, “but then no two men do.”  In other words they came pretty close.

[21]         Polly J. Price, Judge Richard S. Arnold (Buffalo, N.Y.), 69, 102, 227.  Arnold also expressed his reverence for Black, which increased over time, on several occasions in conversation with me.

[22]         “Edward Hirsch Levi (1911-2000)” in George Anastaplo and the University of Chicago, www.hydeparkhistory.org/herald/anastaplo-talk.pdf; Mark L. Wolf, “Edward H. Levi” in Newman, Yale Biographical Dictionary (product).  Anastaplo has taught since 1957 in the university’s Downtown Extension (adult education) division, which Levi did not interfere with.

.

[23]         George Anastaplo Visits the Chicago Bar Association, https://anastaplo.wordpress.com/2012/03/07/george-anastaplo-visits-the-chicago-bar-association-may-2011/.  Only a handful of others on the law faculty besides Katz helped Anastaplo or gave him support: Harry Kalven, Jr., and Roscoe T. Steffen, and also Hans Zeisel and Stanley A. Kaplan later, and, throughout and above all, Malcolm Sharp.  In early 1952 Anastaplo submitted an article on his bar travails to the University of Chicago Law Review at the request of its editors who then accepted it for publication.  Thereupon, Levi either told the editors “to return [it] to me” and not to publish it, as Anastaplo has claimed, referring later in a letter to Levi to “the law review from which I was summarily evicted at your instigation.”  Anastaplo has also said that another “leading professor” [Walter Blum] was involved); or Levi “discourag[ed] but did not prohibit… the law review from publishing” the article.  In either case it was for Anastaplo, at the time, “a surprising development,” he recalls, one that he thought Levi, whom he viewed as “timid,” would not take.  But if the latter, the question raises itself: what law review editor would publish an article under those circumstances at that time?  Anastaplo, Still Wrong, 604 (evicted); Anastaplo, Human Being and Citizen (Chicago, 1975), 286-87 n.10 (this chapter, “What’s Really Wrong with George Anastaplo?,” was originally delivered as a lecture in 1963) (return); Anastaplo, Freedom of Speech and First Amendment, 2048 (leading professor whom Anastaplo identified for me); George W. Liebmann, The Common Law Tradition: A Collective Portrait of Five Legal Scholars (New Brunswick, N.J.), 71 n. 132, quoting letter from Levi to Alexander Polikoff, 5/12/1952 (discouraged).

“Power shows the man,” Anastaplo liked to say about Levi who as U.S. attorney general in 1975-77 was universally regarded as one of the best in American history.  Anastaplo joined the chorus for Levi in later years: “This man had a career in which the more powerful he got, the better he was. He ended up in a very high position in government [attorney general]–and he was very good at it.”  Letter to University of Chicago Magazine, 5-6/2012; https://anastaplo.wordpress.com/2012/05/15/a-postscript-by-george-anastaplo-for-his-letter-published-in-the-university-of-chicago-magazine-may-june-2012-p-10/.  “Power shows the man” comes from Pittacus in Diogenes Laertius, The Lives and Opinions of Eminent Philosophers 36 (Book I, Life of Pittacus, iv), the C.D. Yonge translation.  The other leading translation, the Loeb Classics Library edition, states, “the office shows the man.” (London, 1925, R.D. Hicks translator), I, 77.  Black owned this copy.  An example of his use of power (or office) came in Rogers v. U.S., 340 U.S. 367 (1950).  He removed from an early draft the name of a federal judge who at trial took over questioning an admitted communist who claimed protection under the Fifth Amendment’s self-incrimination clause.  “When you’re on top, you’ve got to be careful how you use your power,” the Justice told his clerks.  “You can’t be ad hominem.”  George Treister interview.

[24]         Edward H. Levi interview.

[25]         GA to HLB, 3/25/1964, HLBLC; HLB to GA, 4/3/64, HLBLC.  Black mentioned Anastaplo’s talk to Edmond Cahn who in turn mentioned it to the editors of the NYU Law Review where, revised, it was published; 39 New York University Law Review 735 (1964).  Anastaplo sent a copy to Black who said he put it in Levy’s book.  HLB to GA, 11/16/64, HLBLC.

[26]         GA to HLB, 6/1/1964, HLBLC; GA to HLB, 6/29/1964, HLBLC (originally underlined).

Anastaplo had earlier (2/10/1964) sent Black an announcement of his doctoral lecture along with an article by Malcolm Sharp, which “includes a not uninteresting comment on my bar admission matter and related incidents.”  That comment, in Sharp’s 5/2/1961 article in the University of Chicago Maroon, just after the Court’s decision in Anastaplo’s case, contained this sentence: “The result [Black’s dissent] is  a magnificent example of the interaction between intelligent counsel, in this case, Mr. Anastaplo acting on his own behalf, and a Judge of genius….”  Anastaplo, The Constitutionalist: Notes on the First Amendment (Dallas, 1971), 335-37.   “I also appreciate your sending copy of the article by Professor Malcolm P. Sharp,” Black wrote Anastaplo 2/17/1964.

[27]         GA to HLB, 6/29/1964, HLBLC (originally underlined).

[28]         HLB to GA, 6/14/1964, HLBLC.

[29]         GA to HLB, 5/20/1965, HLBLC.  The University of Chicago Press wanted to publish, in 1966, a revised version of Anastaplo’s dissertation – which, he has noted, “was never submitted to my faculty for formal approval but was simply accepted, sight unseen,” upon the insistence of a faculty member – but the Press could not do so after sending the manuscript to an outside reader, Thomas I. Emerson of Yale Law School, “who came down hard against it.”  Murley, “In re George Anastaplo“; Anastaplo, A Study in Naivete – A Confession of Sorts,” https://anastaplo.wordpress.com/2012/05/08/a-study-in-naivete-a-confession-of-sorts/.  Emerson had already indicated his viewpoint in “Toward a General Theory of the First Amendment,” 74 Yale Law Journal 877 (1963) and, slightly revised in book form (N.Y., 1966).  As he stated in The System of Freedom of Expression, “a fundamental distinction must be drawn between conduct which consists of ‘expression’ and conducts which consists of ‘action.’” (N.Y., 1970), 17.  Despite its Jeffersonian origins, in its contemporary form this came directly from Hugo Black — for whom Emerson’s respect was “enormous, just enormous,” he told me, shaking his head in reverence.  He acknowledged to Anastaplo much later that his assessment of The Constitutionalist may have been too hard,

[30]         HLB to GA 6/1/1965, HLBLC; Anastaplo, “Study in Naivete” (notes).  See Hugo L. Black, “Foreword” to Howard K. Beale, ed., Charles A. Beard: An Appraisal (Lexington, Ky., 1954), xi; Hugo L. Black, “Foreword” to Lenore L. Cahn, ed., Confronting Injustice: The Edmond Cahn Reader (Boston, 1966), xi.

[31]            GA to HLB, 6/5/1967, HLBLC; HLB to GA, 6/9/1967, HLBLC.  The article was Upon Rereading Mr. Justice Black and the First Amendment, 14 U.C.L.A. Law Review 428 (1967). Earlier (11/21/1964), Anastaplo had written Black: “Have I made the suggestion to you (with appropriate citations to my dissertation) that more should be made, in assessing state government activities, of the ‘republican form of government’ guarantee in the constitution?  I believe that the Founding Fathers must have relied upon it for many of the things that are now being mined out of the Fourteenth Amendment (and other places).  One is driven upon consideration of the guarantee, to reflection upon the significance and limitations of our institutions.”

[32]         HLB to GA, 8/6/1969, HLBLC.  Anastaplo’s manner of developing his argument, the train of his thoughts and the subtlety of his prose make it difficult to pick a single quotation to illustrate the essence of his argument, but the following from the piece points to it: “For men are far more apt than not to break the law for the wrong reasons—and such an attitude jeopardizes that stability of the community needed not only for civilization to develop and survive but also for the best to emerge.”  Anastaplo, Human Being and Citizen (Chicago, 1975), 209-10, reprinting “Citizen and Human Being: Thoreau, Socrates, and Civil Disobedience,” 54 Southwest Review 203 (spring 1969).

[33]         HLB to GA, 1/23/1969, HLBLC.

[34]         GA to HLB, 8/28/1969, HLBLC.  In this piece I do not delve into the singularly vast corpus of Anastaploiana – only partly for fear I may never come out.  George Anastaplo has written (and delivered) approximately 2600 pieces of all sorts, almost certainly more than any legal scholar ever and easily among the most prolific in any field ever. To my knowledge only Richard Posner, Jerome Frank and Roscoe Pound in law can even come close, and Anastaplo’s scope, I believe, is greater than that of the others.  His subjects have covered law, religion, philosophy, literature and also mathematics and the physical sciences.  He has done this without cadres of student researchers, graduate assistants, library staffs or even go-fers.  When he has to find something out, he goes to the library and looks it up himself.  I am reminded of Justice Black’s reading books in the Supreme Court library while sitting on the floor. Sometimes, when Justice Robert Jackson would come by and also read on the floor, they would compare books and consult others, and what they found landed up in opinions.  Edward G. Hudon, the Supreme Court’s librarian, told me this in 1974 when I first went to look at Black’s books when they were in the Court library for several years until the library ran out of space in 1983 and they were moved to the University of Alabama law library.

Anastaplo’s body of work started in grade school when he ghostwrote book reviews for a library aide employed by the Works Progress Administration to help her keep her job.  Northway, “Anastaplo.”  It includes, starting in 1987, two dozen book-length “explorations” of diverse topics ranging up to four hundred pages.  “It now appears that I will be leaving in print the equivalent of about forty volumes,” he noted in 2003.  https://anastaplo.wordpress.com/2009/11/14/if-youre-as-good-as-you-look-why-arent-you-a-university-of-chicago-professor/.  This number now appears to be significantly higher, necessitating that Anastaplo’s future biographer to spend almost as much reading what he wrote as writing the book itself.  It is not true that he does not have an unpublished or at least unwritten thought or even that he does not have the time to record all his thoughts.  It is just that he is an extremely normal, if magnificently disciplined, person with an overflowing fount of ideas.  A fellow graduate student once noted that Anastaplo “did, and does, quite naturally without any apparent strain, the work of about three men.”  Or, as his wife told him, “Just because you can do it doesn’t mean it can be done.”  Murley, “In re George Anastaplo.”

[35]         HLB to GA, 9/2/1969, HLBLC; HLB to GA,_/__/1971, HLBLC (chapters).

[36]        As Norman Dorsen shrewdly observed: “if Hugo Black went to Harvard Law School, he wouldn’t have been Hugo Black.”  Transcript, 70 N.Y.U. Law Review 677, 696 (1995).  Black might well put in present tense about Anastaplo what he said in a memorial to Alexander Meiklejohn:

His epitaph could well be that which the historian, Diogenes Laertius, composed for an ancient and aged philosopher: “We have buried Polemo, laid here by that fatal scourge of wasted strength.  Yet not Polemo but merely his body, which is on the way to the stars he left to moulder in the ground.”

Newman, Black, 536-37.  When talking about his case, George often starts slowly, in a low tone, seemingly talking about someone else, almost disinterested.  Then at a certain point, usually not more than thirty seconds into the discussion, passion palpably takes over, his voice, manner, choice of words all change – it is as if this were the first time he were talking about this and that he were living to tell you it.  (This is admittedly also true, to a certain extent, about anything which animates him, Shakespeare for example, or affirmative action.)  What John Medelman wrote of Black in 1968 applies to Anastaplo as well: His “expression [is] fixed and blank, yet watchful … it offers nothing, implies nothing … Then, when he begins to speak, that bodily energy pours into his face, its warmth melts off twenty of his years.”  “Do you swear to tell the truth, the whole truth, and nothing but the truth. Justice Black?  He does,” Esquire, June 1968, reprinted in Everette E. Dennis, Donald M. Gillmor and David L. Grey, eds., Justice Hugo Black and the First Amendment: “”No law’ means no law” (Ames, Ia., 1978), 55.

I well recall George’s several times telling me, after I said I would take a cab, where to pick up or get off the 55th Street bus that goes from his house in Hyde Park to Midway Airport while his wife Sara, who had heard this many times before, had a small smile on her face   Once I finally said, “But George, you were a cab driver.”   “Yes, I know, but still…”  He couldn’t deny it.   Somewhat like the New York City subway conductors during the Depression who read Marx for their evening courses in between stops, George, to make ends meet while he was in graduate school during the early years of his litigation, drove a cab in Chicago.  One day he picked up Joseph H. Daily, an astonished justice of the Illinois Supreme Court who had written the majority opinion for an unanimous Illinois Supreme Court in his first appeal in 1954:

 

Passenger. Why don’t you just answer: you’re not a Communist, are you?

Driver. That’s not the point, sir.

Passenger. Well, why don’t you answer?

Driver. It’s not good for them to be encouraged to think they can ask such questions.

Passenger. I thought you were in Europe.

Driver. I was this summer, for a few months.

Passenger. You should answer and get admitted. You’re not a Communist, are you.

Driver. But, Mr. Daily, that is not the point.

Passenger. No, it’s not the point. But you should answer.

Driver. It’s not a question of Communism.

Passenger. Well, you should answer anyway. No one ever thought you were a Communist.

Driver. What corner do you want off, Mr. Daily?

Passenger. Across State Street, over there, would be all right.

Driver. That’ll be fifty-five cents, sir.

Passenger.  [Tosses a dollar bill forward] We’ve discussed your case many times [unclear here:… with friends (?)]. [Leaving the cab]

Driver. You have some change, sir.

Passenger. It’s all right. You’ll be admitted some day.

Driver. I certainly hope so. Good day, sir.

Anastaplo, The Constitutionalist, 340 (originally italicized).  “I should also add that I would not have missed all this for the world,” Anastaplo wrote shortly after the Supreme Court’s decision, “– and might even consider choosing this career deliberately if it should be presented to me again at the age of twenty-five.  It has turned out a piece of good fortune and an opportunity that I have enjoyed taking advantage of.”  Anastaplo to Meiklejohn, 5/26/1961, Meiklejohn papers (originally underlined).  “In the long run I was better off for what happened,” Anastaplo said at the John Jay conference.  “The case was liberating because I learned a lot.  It was also very much a matter of chance.”

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