Lawyers, First Principles, and Contemporary Challenges: Explorations

GEORGE ANASTAPLO*

Introduction ...... 354 1. Character, Fitness, and the Bar Revisited ...... 355 Addendum: Prof Who Took Costly Stand 45. Years Ago Sees Rewarding Dividend in its Consequences ... 370 2. Be Not Afeared: The Isle is Full of Noises ...... 375 3. Character and Honor: A Bicentennial Review ...... 383 4. Major Challenges for the Legal Profession in the ... 390 Addendum: On the Proper Shaping of Hearts and Minds ... 396 5. The Illinois Bar Exams ...... 400 A. Bar Examinations and a Proper Legal Education ...... 400 B. The Bar Exam Examined ...... 404 6. The Pursuit of Happiness and the Practice of Law ...... 406 7. Professional Ethics and the Bible ...... 415 8. The Obligations of Victims: On the Melian Dialogue ...... 420 9. Aristotle on How the Soul Possesses Truth ...... 424 10. Thomas Aquinas and the Law of Laws ...... 431 11. Death and Art in Cervantes's Don Quixote ...... 437 12. On Identity ...... 452 13. "The Law's Delay" Across the Centuries ...... 462 14. Serial Killings, the Mass Media, and Public Policies ...... 475 15. Technology and Community: Lessons From and For the Unabomber ...... 481 Addendum: A Memorandum on the Matter of William H eirens ...... 495 16. Martin Luther King and His Letter from Birmingham Jail ...... 498 Addendum: Martin Luther King and the Soul of America .. 511 17. The Abuse and Proper Use of Power ...... 514 A. A Return to the Air Force, by way of Littleton, Colorado ...... 514 B. American Constitutional Law and the Attempted Rescue of Kosovo ...... 523

* Professor of Law, Loyola University of School of Law; Professor Emeritus of Political Science and of Philosophy, Dominican University; and Lecturer in the Liberal Arts, The ; A.B., 1948, J.D., 1951, Ph.D., 1964, The University of Chicago. (No e-mail reception. See www.cygneis.com/anastaplo.) NORTHERN ILLINOIS UNIVERSITY LA W REVIEW [Vol. 19

Addenda: I. The Columbine High Massacre in the World Press ...... 531 II. The Kosovo Campaign in the World Press .... 533 Conclusion ...... 538

INTRODUCTION The greatest trust between man and man is the trust of giving counsel. For in other confidences men commit the parts of life; their lands, their goods, their child, their credit, some particular affair; but to such as they make their counsellors, they commit the whole; by how much the more they are obliged [bound] to all faith and integrity. The wisest princes need not think it any diminution to their greatness, or derogation of their sufficiency to rely upon counsel. God himself is not without, but hath made it one of the great names of his blessed Son: The Counselor [Isaiah 9:6]. -Francis Bacon'

The preparation of this Collection chanced to be stimulated by a current Illinois bar admission controversy which has reminded observers of my own bar admission controversy of the 1950s.2 My April 15, 1999 talk at Northern Illinois University, prompted by these reminders, has served as the point of departure in response to an invitation to bring together in this law review various (mostly previously unpublished) talks and papers of mine about lawyers and the law. There may be found, in the opening third of this Collection, several discussions of the legal profession at this time. These include, after reflec- tions upon bar admission controversies (in Parts 1, 2, and 3), examinations of lawyers and lawyering. We move thereafter from how the bar can look to prospective law students (Part 4), through how lawyers are trained and certified (Part 5), to how the bar looks to lawyers themselves (Part 6). Greater emphasis is placed, in the middle third of this Collection, upon the fundamentals which provide the grounding both for professional ethics and for the standards by which to judge what lawyers now do, are, and have. An intermingling of principles and practice may be seen throughout this Collection, which is perhaps inevitable whenever the affairs of one's day are

1. Francis Bacon, Of Counsel, in SELECrEDWRMriNGS OFFRANCIS BACON 55 (1955). This passage from Bacon continues in the text at infra note 470. 2. See, e.g., infra notes 8,9,13,472, 476. 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 355

studied properly, especially since each part of a collection such as this was, when originally prepared, designed to stand alone, at least for the time being. The Bible and the Greek Classics are drawn upon as human nature and the basis for both morality and understanding are investigated (Parts 7, 8, and 9). The very nature of law is then considered (Part 10), before we delve into that awareness of mortality so vital for morality and, in modem times, for the issue of identity (Parts 1 .and 12). An application of the principles that have been surveyed, however tentatively, may be seen in the closing third of this Collection. After a recognition of the limits of law, glimpses are provided of a variety of legal systems (Part 13). Attempts are then made to provide useful commentary (political and "sociological," as well as legal) upon various contemporary events of a somewhat notorious character. These include, in turn, serial killings (Part 14), the perils of technology (Part 15), racial discord (Part 16), and extraordinary recourses to force both at home and abroad (Part 17). We return, in the Conclusion of this Collection, to the bar admission controversies with which we began. These controversies provide, therefore, the frame within which these discussions are displayed. This should remind us again of how much practical affairs (including ministering to troubled souls) do depend, both for their emergence and for their understanding and governance, upon chance

4 1. CHARACTER, FITNESS, AND THE ILLINOIS BAR REVISITED

So numerous indeed and so powerful are the causes which serve to give a false bias to the judgment, that we, upon many occasions, see wise and good men on the wrong as well as on the right side of questions of the first magnitude to society. This circumstance, if duly attended to, would furnish a lesson of moderation to those who are ever so much persuaded of their being in the right in any contro- versy. -Publius'

3. See, e.g., Sections III, IV and VII of Part 3 of this Collection. Compare infra notes 236,243,354. 4. A talk given in the Honors Program, Northern Illinois University, DeKalb, Illinois, April 15, 1999. 5. THE FEDERAUST No. 1. See also infra note 241. NORTHERN ILLINOIS UNIVERSITY LA W REVIEW [Vol. 19

I. It has been almost two decades since the semester during which I came out to this campus, fortnightly, to conduct a seminar on Xenophon. One critical lesson taught us by Xenophon might well be noticed on this occasion, and that is the importance of prudence in both public and private affairs. One suggestion I have made about Xenophon over the years can help illuminate our inquiry this evening. If Xenophon had been in Athens when Socrates' enemies undertook to indict him, Socrates would probably not have met the fate that he did. Xenophon was the kind of man who would have made it clear to Socrates' enemies that it was not in their personal interest to proceed with an . He could be remarkably persuasive even with those who were not known for their reasonableness, a persuasiveness that was enhanced by his evident toughness, if not even by the hint of a latent ruthlessness. 6 I would regularly be picked up at the train stop in Naperville, during our Xenophon semester, by a young man who was quite interested in local politics. One subject to which we returned many times that semester was the Jeanine Nicarico case, which was frequently in the papers that year. My principal contribution to those conversations was my insistence that the official account of the matter, as reported in the press, somehow did not "feel" right to me. I will say more about the Nicarico case before I close, for it can shed light upon the issues I will be addressing on this occasion. It does chance to be a time, on this return trip by me to this campus, that that case is back in the news.7 The immediate cause of my remarks tonight is the Matthew Hale bar admission controversy which is very much in the news over in Will County. Here is how that case was recently described in the Chicago Daily Law Bulletin by Molly McDonough, a Law Bulletin staff writer who has been following the case closely: Avowed white supremacist and anti-Semite Matthew F. Hale has hired a veteran free-speech lawyer to help him obtain an Illinois law license.

6. On the trial of Socrates, see GEORGE ANASTAPLO, HUMAN BEING AND CrIZEN: ESSAYS ON VIRTUE, FREEDOM, AND THE COMMON GOOD 8 (1975). See also Section IV of Part 16 of this Collection. 7. See, e.g., Eric Zorn, DuPage 7 Trial Could Bring Out the 'Awful' Truth, CII. TRm., Apr. 8, 1999, § 2, at 1; Dan Rozek & Alex Rodriquez, Defense: Cruz Tried a Frameup, CI. SUN-TIMES, April 8, 1999, at 14; Ted Gregory & Maurice Possley, First Phase of DuPage 7 Trial Ends Bitterly, Ci. TRIB., Apr. 9, 1999, § 1, at 1; Eric Zorn, DuPage 7 Defendant Faces a Different Test of Character,CHII. TRIB., Apr. 17, 1999, § 2, at 1. See also infra note 34. 1999) LAWYERS, FIRST PRINCIPLES AND CONTEMPORARY CHALLENGES

St. Louis attorney Robert Herman-whose clients include the Ku Klux Klan and a woman fighting to have "Aryan 1" appear on her Missouri license plate-agreed this week to represent Hale at his next character and fitness hearing, set for April. Herman, who is Jewish, described himself as a "true believer in the First Amendment." "If we allow the government the power to cut off your rights because you don't believe in the current politically correct dogma, we're all in trouble," Herman said. Hale has twice been denied certification of his moral character, a bar admission requirement in Illinois. In the latest action, an inquiry panel of the Supreme Court's Committee on Character and Fitness voted 2-1 in December not to recommend Hale for admission, in part because his "life mission, the destruction of the Bill of Rights, is inherently incompatible with service as a lawyer or judge who is charged with safeguarding those rights."... Hale, who heads the World Church of the Creator, an organization headquartered in East Peoria that advocates "racial holy war," maintains he has dedicated his life to working within the law to make the United States a country for members of the white race only via constitutional amendment and mass deportation. A 27-year-old East Peoria native, Hale graduated from the Southern Illinois University School of Law in 1998 and passed the bar exam in July of that year.' It seems that Mr. Hale, who is said to have finished in the middle of his law school class at Southern Illinois University at Carbondale, had his notorious opinions about race relations called to the attention of the bar authorities by professors of his law school. There has been, since publication of the article from which I have just quoted, a day-long meeting of the Character and Fitness Committee on Mr. Hale's matter. This meeting was held in the Will County Courthouse in Joliet on April 10. I return to Molly McDonough for her update upon the matter:

8. Molly McDonough, Supremacist Hires Lawyer in License Fight, Ci. DAILY L. BULL., Mar. 25, 1999, at 1. See also Molly McDonough, Denial of License Violates Speech Rights: Would-be Lawyer, Cfu. DAILY L. BULL, Feb. 9, 1999, at 1; Molly McDonough, Free Speech Group Awards Censorship 'Prize' to 2 Here, C. DAILY L. BuLL., Apr. 13, 1999, at 1. NORTHERN ILLINOIS UNIVERSITY LA W REVIEW [Vol. 19

A five-member hearing panel grilled would-be attor- ney Matthew F. Hale for nearly two hours Saturday, questioning whether racist activities would compromise his duty to defend and protect the Constitution. The character and fitness panel focused specifically on Hale's expression of his beliefs and his organization's goal of repatriating all non-whites [among whom he evidently includes Jews] to the nations of their ethnic origin.... Panelists are not expected to make a decision about whether to recommend Hale for admission to the Illinois bar for more than a month. If he gets an unfavorable decision from this panel, Hale can make a direct appeal to the State Supreme Court.' There were several other witnesses, pro and con, last Saturday. Another passage from the McDonough article permits us to gather what went on during this and previous hearings: Hale took a few minutes during his testimony to explain his views, saying that his church advocates only peaceful change. Although he ultimately wants to see a separation of the races, he said he will follow the laws of the land until constitutional conventions are 'called to change the laws. He did say, however, that if he had a choice he wouldn't represent blacks. "There are many people who believe as I do," he said. "They may be quiet about it."' However that may be, the press has not been quiet about the case, with several quite respectable newspapers arguing vigorously for Mr. Hale's admission to the bar, despite what the editorialists regard as his abhorrent opinions. My own expectation is that if no evidence of personal misconduct or of mental illness is developed, neither of which is alleged at this time, Mr. Hale is likely to be admitted to the bar by the Supreme Court of Illinois."

9. Molly McDonough, Self-described Racist PressesPanel to OK Admission to Bar, CHI. DAiLY L. BuLL., Apr. 12, 1999, at 1. 10. Id. 11. I did not anticipate, in April 1999, the consequences of dramatic misconduct by one of Mr. Hale's associates. See the Conclusion to this Collection. 1999] LAWYERS, FIRST PRINCIPLES,AND CONTEMPORARY CHALLENGES 359

This prediction is based, in part, upon my experience as an unsuccessful applicant for admission to the Illinois bar almost a half century ago.' 2 It is because of that experience that I have been asked to discuss the Matthew Hale matter this evening. II.

My application for admission to the bar first ran into trouble in November 1950, culminating a decade later in a 5-4 ruling against me by the United States Supreme Court in April 1961. Efforts are made from time to time by quite respectable lawyers to get me admitted to the bar-but these efforts have come up short with the Illinois Supreme Court saying, on more than one occasion, that nothing could be done by that Court until I applied. That is, I would have to cooperate if such efforts were to succeed. My standard response has been, in effect, "They have my application."' 4 It is instructive that this exclusion continues-as well it should--because of my lack of cooperation. It was, after all, such a deficiency that was at the heart of my original difficulties with the Committee on Character and Fitness sitting in Chicago. My bar admission case has been recalled in many of the articles about the Hale case.' 5 That 1950-1961 case was somewhat compli- cated, which helps account for the fact that few, if any, of the recent accounts of it have gotten it right. Here is an account of the case, adequate enough for our immediate purposes, 6 that I prepared for a talk in 1988: My own case began in November 1950, a few months after I had taken and passed the Illinois bar examination, when I appeared before the character committee of the bar

12. See, e.g., George Anastaplo, What is Still Wrong With George Anastaplo?, 35 DEPAULL. REV. 551 (1986). 13. See In re Anastaplo, 366 U.S. 82 (1961). See also infra note 472. 14. See, e.g., George Anastaplo, 'McCarthyism,' The Cold War, and Their Aftermath, 43 S.D. L. REV. 102, 126 (1998). 15. See, e.g., Mark Schauerte, IllinoisSeeks to Deny a Law License to Vocal Racist, ST. Louis POST-DISPATCH, Feb. 22, 1999, at Al; Andrienne Drell, Jewish Group Protests Denial of Law License for Anti-Semite, CR. SUN-TIMES, Feb. 10, 1999, at 14; Pam Belluck, Racist Barredfrom Practicing Law, N. Y. TIMES, Feb.10, 1999, at A12. This New York Times article included an inaccurate recollection of my case attributed to a law professor: In cases involving Communists in the 1950's, the courts ruled that membership in an unpopular movement, without proof that the person's conduct was dangerous, was not enough to exclude a person from the bar, said Geoffrey C. Hazard, Jr., a professor at the University of Pennsylvania Law School. 16. Another account, by M.A. Stapleton, may be found in the addendum to this talk. See infra note 36. NORTHERN ILLNOIS UNIVERSTY LA W REVIEW [Vol. 19

for a routine examination. I happened to say the wrong things to that committee (about which I will speak more later) and ended up (over the years following, during one hearing after another) being asked about various possible memberships, particularly in the Communist Party, but also in other organizations as well, such as the Ku Klux Klan, the Silver Shirts of America, and eventually even about the Democratic Party and the Republican Party. I considered questions about organizational memberships highly im- proper, told the committee so, and refused to answer them. My wife and I had at the time that all this began the first of our four children, a six-month-old daughter who is now a member of the Illinois bar. During the first round of my encounters with the Illinois bar, I testified before the character committee in November 1950 (through a two-member subcommittee) and in January 1951. In the following June the character committee announced its decision (sixteen to one) that I had not established my character and fitness for the purpose of admission to the bar. That letter, which reached us in Paris where I was using up the rest of my G.I. Bill studying at the Sorbonne and hugely enjoying the city, is now framed and on display in my law school office. One concern I had at that time, 1950-1951, which I did not share with the character committee, was intimately connected with the worst days of the Korean War, which was when all this began. My question then was as to what would happen first: my repudiation by the character com- mittee of the Illinois bar or my recall to active duty, as a flying officer, by the United States Air Force in which I still held a reserve commission after my service during the Second World War. Had I been recalled, I would have served: I had had no problem justifying American interven- tion in the Korean War under United Nations auspices. I did have problems, though, with the kinds of questions the character committee was asking: I did not want to contribute to the dangerous, as well as unseemly, deterioration in public discourse in the United States to which such ques- tions seemed to me at that time to be contributing. The Air Force left me alone, however, and I continued to serve in its reserve for several more years, well past the time that the Illinois bar refused to have me in 1951. Many, 1999] LAWYERS, FIRST PRINCIPLES, AND CONVTEMPORARY CHALLENGES

perhaps most, of the character committee which rejected me had been too old to serve in the military during the Second World War. I appealed to the Illinois Supreme Court from the character committee's decision, losing there seven-to- nothing in 1954. The following year the United States Supreme Court refused to take my case, with Justices Black and Douglas indicating they would have taken it. I revived my application in 1957; extensive hearings were held by the character committee in 1958; I was again rejected in 1959 by the character committee (this time eleven-to-six) and by the Illinois Supreme Court (this time four-to-three). Thereafter the United States Supreme Court took my case and decided against me in 1961 (five-to-four, with Justices Black and Brennan writing dissents). Throughout this decade of litigation (between my twenty-fifth and thirty- fifth years) I represented myself, prepared all my legal documents, and argued my own case before the Committee on Character and Fitness, the Illinois Supreme Court, and the United States Supreme Court. It was all very interesting, indeed in many ways a wonderful experience. This aspect of my career was nicely summed up by C. Herman Pritchett (whom I had come to know when he was on the Political Science faculty at the University of Chicago). Mr. Pritchett, a past president of the American Political Science Association and at the time a member of the University of California at Santa Barbara faculty, could write this about me in reviewing my first book in 1972: "On April 24, 1961, the Supreme Court of the United States, by a vote of five-to-four, affirmed the action of the Illinois Supreme Court which, by a vote of four-to- three, had upheld the decision of the Committee on Charac- ter and Fitness of the Illinois bar which, by a vote of eleven- to-six, had decided that George Anastaplo was unfit for admission to the Illinois bar. This was not Anastaplo's only such experience with power structures. In 1960 he was expelled from Soviet Russia for protesting of another American, and in 1970 from the Greece of the Colonels. As W. C. Fields might have said, any man who is kicked out of Russia, Greece and the Illinois bar can't be NORTHERN ILLINOIS UNIVERSITY LA W REVIEW [Vol. 19

all bad."' 7 This may well be the most quoted paragraph in Professor Pritchett's extensive writings-appropriately enough, I believe, since I agree that I surely "can't be all bad." At the core of the difficulties I had with the Illinois bar and the Illinois Supreme Court was my defense of the right of revolution as set forth in the Declaration of Independ- ence. It had been what I had presumed to say in response to committee questions, in 1950, about the right of revolution that led to committee inquiries into possible memberships which I refused to answer. In all subsequent hearings before the character committee, and in the two opinions by the Illinois court, much was made of my controversial right- of-revolution opinions. 8 II. A number of inquiries have been made of me recently about the Matthew Hale matter, so many in fact that I as a bystander have had more media • attention during the past few months than I had during the decade when my own bar admission case was being litigated. And, of course, Mr. Hale himself has had far more attention than I ever had. I venture to add to this report about media attention the opinion that if I had had as much attention, and as much support, as Mr. Hale has had, I probably would have been admitted to the bar between 1950 and 1961. After all, no one was accusing me of any misconduct or even, as it became evident, of any truly improper talk, however threatening my affirmation of the traditional right of revolution seemed to be at the outset of my encounter with the bar authorities.' 9 Mr. Hale, I have suggested, is likely to be admitted to the bar fairly soon, just as I would probably be admitted today if I should apply again. But, I also suggest, he (with his aggressively racist opinions) might have encountered in some jurisdictions in the 1950s the difficulties I had. What accounts for this

17. C. Herman Pritchett, Review of George Anastaplo, The Constitutionalist: Notes on the First Amendment, 1 LAW AND PHILOSOPHY: THE PRACTICE OF THEORY (John A. Murley, Robert L. Stone, and William T. Braithwaite, eds., 1992) at 539 (reprinted from 60 CAL L. REV. 1476 (1972)). See also infra note 72 and the text at infra note 480. 18. George Anastaplo, Freedom of Speech and the First Amendment; Explorations, 21 TEx. TECH L. REV. 1941, 2071 (1990). On the right of revolution, see GEORGE ANASTAPLO, ABRAHAM LINcOLN: A CONSTrrUTIONAL BIOGRAPHY 11-38, 369 (1999). 19. See In re Anastaplo, 366 U.S. 82, 85-86 (1961) (Black, J., dissenting). My media attention, because of the Hale controversy, has included the newspaper publication of a large photograph of me. See Abdon M. Pallasch, A Question of Character,CHI. SUN-TIMES, Nov. 15, 1999, at 6. See also infra note 480. 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 363 difference between then and now with respect to the admission of controver- sial applicants to the bar? Perhaps my own case, as it has come to be regarded and taught, has contributed to a relaxation of the bar admission process in favor of controversial applicants.2" But perhaps more important has been a general relaxation of community standards across the board, as is reflected in the survival of Mr. Clinton in the Presidency.2' Another way of pointing up the developments of a half century is to suggest that any President exposed in the 1950s as Mr. Clinton has been could not have remained in office, just as any applicant exposed in the 1990s as I was would have had little difficulty securing admission to the bar. Is the general relaxation of standards here a sign of deepened maturity in our community-or is it a sign of deterioration and of eventual demoraliza- tion? This question bears upon the status among us both of public morality and of communal self-confidence.

IV. It is this question which was put to me, in effect, by Professor Gary D. Glenn when he asked me, in anticipation of this meeting, "Should the political opinions of an applicant for admission to the bar ever disqualify him for admission?"22

r 20. On how my case has come to be regarded in some quarters, see John A. Murley, In re George Anastaplo, in , THE STRAUSSIANS, AND THE AMERICAN REGIME 181-82, n. 9 (Kenneth L. Deutsch & John A. Murley eds., 1999). See also, Lawrence Lessig, Under- standing Federalism'sText, 66 GEo. WASH. L. REV., 1218 (1998).. 21. See, e.g., George Anastaplo, Letter to the Editor, N. Y. TIMES, Sept. 11, 1998, at A26. The unedited text of that letter to the editor follows: President Clinton, like Vice-President Spiro Agnew, fell into bad habits while serving as governor of his home state, habits which he evidently could not break even after assuming high office in Washington. Such misconduct, especially when compounded by deliberate deception of the country with cynical protestations of innocence, can lead to public repudiation. Prudent leaders managed, in 1973, to induce Mr. Agnew to resign his high office for the good of the country, heading off thereby what would have been a deplorable trial. Much the same was done, in 1974, with Mr. Nixon. Are there not responsible leaders now available to explain to Mr. Clinton that it is time for him also to go, heading off thereby the unseemly and otherwise deplorable consequences of what the Independent Counsel has done? It should be evident as well to prudent citizens, in government and out, that the Independent Counsel Act ought not to be renewed when it expires next year. See infra notes 463,465. 22. Professor Glenn, the senior member of the Political Science Faculty at Northern Illinois University, arranged this program. He is a student of, among other things, the work of Edmund Burke. His publications include an essay on Walter Berns in LEO STRAUSS, THE NORTHERN ILLINOIS UNIVERSTY LAW REVIEW [Vol. 19

It is hard to maintain that the opinions one holds may never affect adversely the assessments by responsible assessors of one's capacity to do virtually anything with which one might be entrusted. I notice in passing that never is rarely used by the prudent. Opinions both reflect and affect one's capacity as well as one's character. There are, after all, opinions that would make one suspect a would- be doctor, other opinions that would make one suspect a would-be firefighter, and still other opinions that would make one suspect a would-be bank teller. The same can be said about the opinions of would-be lawyers and would-be judges. These observations are consistent with what we have been taught by authors such as Plato about the relation between the opinions one holds and the virtues one has and exhibits. This relation is akin to that between vice and ignorance.23 Care must be taken, in considering these matters, to distinguish between, on the one hand, using someone's opinions in assessing his qualifications and, on the other.hand, using disqualification as a way of punishing someone for the opinions he holds. The latter approach is a subversion of the rule of law.

V. Another way of putting these observations is to say that I am confident that Professor Glenn, his colleague Professor Larry Arnhart, who is chairing this meeting, and I could be depended upon to assess, for the relevant character, applicants to various callings in such a way as to be able to weed out those whose opinions make them high risks for reliable service.24 Especially is this so if the three of us had to agree unanimously for a refusal of admission to an otherwise qualified applicant to be effective. But I am far from confident that we could lay down rules to be used by others in making such an assessment of opinions. That is, what would it take to devise rules that prescribe which controversial or unpopular opinions (or, indeed, what popular opinions) may be used to exclude an applicant for 25 admission to the bar?

STRAUSSiANS, AND THE AMERICAN REGIME supra note 20, at 193; also, an essay on Xenophon in 1 LAw AND PHILOSOPHY, supra note 17, at 146. 23. On Plato's thought, see supra note 6. See also, GEORGE ANASTAPLO, THE THINKER AS ARTIST: FROM HOMER TO PLATO & ARISTOTLE 279 (1997). On Aristotle's Nicomachean Ethics, see id. at 318. 24. Professor Amhart, who chaired this April 1999 DeKalb program, is also a member of the Political Science Faculty at Northern Illinois University. His publications include: ARISTOLE ON POLrnCAL REASONING: A COMMENTARY ON THE RHETORIC (1981); POLTICAL QUESTIONS: POLITICAL PHILOSOPHY FROM PLATO TO RAWLS (1987). See also infra note 143. 25. It should be noted that laying down rules is not ultimately decisive in Plato's Republic, whereas something like the Glenn-Amhart-Anastaplo consensus-approach I have posited may be found there. 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 365

If an emphasis is placed upon the opinions that reveal a bad moral character, the opinions that would be particularly looked for are those that seem to undermine the things that lawyers should stand for and do. These include the promotion of respect for the rule of law and perhaps for the rights of all persons. For example, Mr. Hale's character and fitness committee reported, in its initial rejection of him, that he would work, in effect, to abolish the Bill of Rights. But should serious reservations about the Bill of Rights disqualify anyone from the practice of law? What is to be made, for instance, of those Federalists who insisted, in 1787-1788, that a Bill of Rights was neither 26 necessary nor desirable for the proposed Constitution of the United States? Another example: Mr. Hale is condemned by his character committee for espousing an unacceptable position on race relations in this country. Does this mean that any character committee members who had been against racial integration (in the 1950s and 1960s) would have been entitled to exclude from the practice of law in their States those applicants who threatened the prevailing system of segregation? Or is it that those who are now in favor of segregation, including those minority members who are quite resentful of the majority, should be excluded from the practice of law?27 Still another example: It is argued that Mr. Hale's opinions reflect a bad character, in that he deprecates racial minorities, speaking about them in a quite provocative way. But consider the bad character that some would find in anyone who espouses a pro-choice position in the current abortion controversy: such a position is sometimes condemned as in effect countenanc- ing and protecting murder. The pro-life position, on the other hand, can be condemned by others as a callous subversion of the rights of women, even as an advocacy of the aggressive domination of women by men. We can see, upon tracing out the implications and ramifications of such examples why it might be prudent not to permit the use of the opinions that an applicant happens to have about highly controversial matters to serve as the basis of decisive character assessments in the process of granting or withhold- ing rights and privileges by the State.

VI. However risky it may be to try to do much with opinions in assessing character as an element of one's eligibility, it is far less risky to have such

26. See, e.g., THE FEDERAUST Nos. 84 & 85. 27. On hate-speech codes and their consequences, see GEORGE ANASTAPLO, CAMPUS HATE-SPEECH CODES, NATURAL RIGHT, AND TWENTIETH CENTURY ATROcITIEs (1999). See also infra note 206 and the text at infra note 410. NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 19 character assessment based upon one's conduct, and especially upon any criminal record one may have. Mr. Hale's character committee concedes that it has no evidence of misconduct to justify its exclusion of him from the bar, except to the extent that he has organized and promoted a "church" dedicated to his racist opinions.2" Critical for the character committee, therefore, are Mr. Hale's opinions, not his conduct or actions as commonly understood. Besides, it should be remembered, in considering what is to be done to Mr. Hale because of his opinions, there would always remain the remedy of disbarment if he should be admitted to the bar. It is not a "now or never" situation here. It does seem to be conceded that the committee should not be interested primarily in Mr. Hale's opinions, but rather in what his opinions suggest about how he is likely to act as a lawyer. And the action that is dreaded here is not something that might be done in secret (such as the embezzlement of a client's funds) but rather the implementation of racist opinions, which could be expected to be done by Mr. Hale in public hereafter as in the past. Indeed, Mr. Hale as a lawyer would probably have to be better behaved in public than most lawyers feel themselves constrained to be: for there will be many "out there" watching for any false step by him that could generate a complaint to the disciplinary authorities. Similarly, a bank teller who is known to be critical of the institution of private property can expect to have his accounts audited with great care. Thus, it is evident that one does make oneself vulnerable because of the opinions one espouses. That is natural enough. Also natural perhaps may be the moderating effects of various professions. Mr. Hale, as a member of the bar, would be likely to adjust not only his actions but eventually even his thinking to the reliance of the law upon settled processes and accepted rights. In fact, one could expect someone such as Mr. Hale to be much more disciplined and hence restrained in the bar than out of it. But, then, I did argue in the 1950s that any character committee worried about Communists in the United States should want to have as many Communist Party members as possible disciplined and confined by the demands, day in and day out, of the practice of law. Certainly anyone with any unconventional opinions has to learn to moderate what he says and does in public if he is to secure clients, persuade juries, and stay in the good graces of judges. Even an out-and-out- racist, for example, is not likely to rely, in a property dispute or in a child

28. Mr. Hale's designation of his organization as a "church" is a rather dubious ploy. But he is not the first to use such devices. See, e.g., Welsh v. United States, 398 U.S. 333 (1970); United States v. Seeger, 380 U.S. 163 (1965); United States v. Ballard, 322 U.S. 78 (1944). See also George Anastaplo, Church and State: Explorations, 19 LoY. U. CiH. L.J. 61, 127 (1987) (on conscientious objectors and military conscription). 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 367.

custody case, upon an outspoken racist attorney who routinely offends and thus antagonizes the lawyers, jurors, judges, and other officers he must deal with.

VII. I do not mean to suggest, on this occasion, that questionable opinions should not be vigorously challenged, officially as well as unofficially. It is good for the person challenged, as well as for the community at large, that determined challenges should be mounted on occasion. The person challenged may need help in correcting opinions which are corrupting him. The community may need to be reinforced in holding the salutary opinions it does hold, sometimes even being led thereby to qualify them as circumstances change. Nor do I mean to suggest that the opinions a person holds may not properly be taken into account in passing judgment upon him. The opinions held may be critical for the decisions we make about whom to have (or retain) as a friend or a spouse, whom to accept (or retain) as a colleague on a faculty, whom to vote for, or (perhaps most important) whom to look to as a teacher. Chance may very much shape, perhaps even determine, the opinions one does have. And it is healthy for one to be tested and corrected in one's opinions by the community at large as well as by one's personal associates. Otherwise, one is likely to be a prisoner of the questionable opinions one happens to have inherited. It is a rare human being, indeed, who has so thought through what he believes and has so understood and mastered his passions and is thus so much in control of who he is and what he does that he need not be concerned about what others may happen to believe and say.

VIII. Whatever Matthew Hale's shortcomings, he is intelligent enough to sense that he should rely, and not only for rhetorical purposes, upon respect- able authority. It is not insignificant, therefore, that Mr. Hale has looked for support of his racist views to the most distinguished member of the Illinois bar. I gather that Abraham Lincoln is thus appealed to by him because of what he once said about, among other things, the undesirability of the mixing of races in this country. There is something encouraging about such recourse by Mr. Hale to Lincoln, whether or not "sincere," reminding us that people somehow or other NORTHERN ILLINOIS UNIVERSITY L4 W REVIEW [Vol. 19 aim at the good in what they say and try to do.29 But Mr. Hale, like all too many others who draw upon distinguished authority, need to have the context and purpose of the language invoked properly examined and explained. 0 That is, such uses of authority should be both encouraged and disciplined, something that all too many of us are incapable of doing these days."1 Something comparable to what Mr. Hale does with Lincoln has been heard in what the Chinese Premier, during his current visit to the United States, has said in using the Lincoln precedent to justify the insistence of the Chinese Government upon retaining Taiwan and, it seems, Tibet within its borders. Such careless use of authority should be challenged, again with reminders of the context and immediate purpose of the remarks that are exploited. Thus, Lincoln's affirmation of the right of revolution, even in his First Inaugural Address, should be recalled as well as his efforts to define what constitutes one country.32 Certainly, Lincoln would not consider it appropriate to have his efforts to salvage a constitutionally-established Union used as evidence in support of maintaining such a crippling tyranny as may be

29. See the opening lines of Aristotle's Nicomachean Ethics and Aristotle's Politics. See also infra note 241. 30. Consider how different the comparison of races, and the consequences of such comparison, sounded when coming from Lincoln himself. Thus he, ever aware of the political sensitivity of his topic, said in the course of the Lincoln-Douglas Debates (August 21, 1858): I have no purpose to introduce political and social equality between the white and the black races. There is a physical difference between the two, which in my judgment will probably forever forbid their living together upon the footing of perfect equality, and inasmuch as it becomes a necessity that there must be a difference, I, as well as Judge Douglas, am in favor of the race to which I belong, having the superior position. I have never said anything to the contrary, but I hold that notwithstanding all this, there is no reason in the world why the negro is not entitled to all the natural rights enumerated in the Declaration of Independence, the right to life, liberty and the pursuit of happiness. [Loud cheers] I hold that he is as much entitled to these as the white man. I agree with Judge Douglas he is not my equal in many respect - certainly not in color, perhaps not in moral or intellectual endowment. But in the right to eat the bread, without leave of anybody else, which his own hand earns, he is my equal and the equal of Judge Douglas, and the equal of every living man. [Great applause] 3 THE COLLECrED WORKS OF ABRAHAM LINcoLN 16 (Roy P. Basler ed., 1953) (the emphasis is Lincoln's). See also ANASTAPLO, ABRAHAM LINcoLN: A CONsTrrUIloNAL BIOGRAPHY, supra note 18, at 167-68. 31. For Frederick Douglass's high praise of Lincoln, see ANASTAPLO, ABRAHAM LINCOLN: A CONsTrrUmONAL BIOGRAPHY, supra note 18, at 168, 199. 32. The Chinese Prime Minister "invoked Abraham Lincoln's use of force to keep the Union together as an example China should keep in mind as it deals with Taiwan, which Beijing considers a breakaway province.. ." David E. Sanger, U.S.-China Talks Fail to Produce Major Trade Deal, N. Y. Times, Apr. 9, 1999, at A12. On Lincoln's First Inaugural Address, see ANASTAPLO, ABRAHAM LINcoLN: A CONSTITUrIONAL BIOGRAPHY, supra note 18, at 177. 1999] LAWYERS FIRST PRINCIPLES, AND CONTEMPORAR Y CHALLENGES 369 seen in Tibet these days. Thus, Lincoln, properly understood, can be used to help us see properly the political abuses of our day. Similarly, Mr. Hale's reliance upon Lincoln provides an opening for the astute physician called upon to minister to the troubled soul evident in the kind of racist opinions attributed to Mr. Hale. One could well begin with the Hale acknowledgment of Lincoln as someone to be taken seriously in these matters-and from there an attempt can be made to show how deeply opposed Lincoln would be, to the very core of his being, both to the kind of opinions that Mr. Hale is crippled by and to the kind of activities he is engaged in these days. Another way of making this point--in dealing either with a Chinese premier or an applicant for admission to the Illinois bar-is to say that an attempt should be made to find out both what is "really" being sought and what stands in the way of finding it.

Ix. We have been implicitly considering the status and role here of education, including the training provided by the community at large and its traditions.33 Education helps one identify the elements of a controversy, so that one can see what is at stake and how best to think and talk about the most important matters. It should be evident from what I have said that just because Mr. Hale cannot safely be excluded from the bar, it does not mean that it does not matter what opinions he holds and promulgates. I have suggested how such opinions as he espouses, if persisted in, would affect his career as a lawyer. But, even more critical, the opinions one has bear upon how good and hence happy one can be as a human being. Decisive here is not how others respond to one's opinions, but rather what kind of a human being one is. It may sometimes be a matter of chance whether the truly virtuous are treated by the community as well as they deserve to be, but it is rare that anyone who is unfortunate in what he believes and hence is-it is rare that such a person can avoid the punishment that nature decrees, the punishment of being denied a proper vision of the truly good. I return, in closing, to the Nicarico murder case and its ramifications. We can be reminded by that controversy of how much it matters what the

33. See, e.g., George Anastaplo, Law, Education, and Legal Education: Explorations, 37 BRANDEIS L.J. 586 (1999). NORTHERN ILLINOIS UNIVERSITY LA W REVIEW [Vol. 19 opinions are of men and women entrusted with public influence, whether policemen or lawyers or judges. What went wrong in the Nicarico matter? I do not know, of course, since I cannot know who really did what and when.34 But if improper actions were taken, on one side or another, during this long-running controversy, racial or ethnic prejudices may have played a part. It is particularly important for us to notice here that we do have to rely upon the character, and hence the can affect what opinions, of those in positions of authority. Their character35 they do, or what they do not do, when no one is watching. But is it not evident that no system of screening the opinions of, say, potential lawyers could, in a community such as ours, effectively keep out of the bar those who might misuse the opportunities they chance to have. In our circumstances, the more "effective" the screening-and-excluding process, the more likely it is that questionable opinions will be concealed from public view, thereby making it more difficult for us all to learn what is going on all around us and why.

ADDENDUM

PROF WHO TOOK COSTLY STAND 45 YEARS AGO SEES 36 REWARDING DIVIDEND IN ITS CONSEQUENCES M. A. STAPLETON George Anastaplo never intended to make any trouble, it just sort of happened that way. When he appeared before the Committee on Character and Fitness of the Illinois bar in 1950, he thought the interview would be done in ten minutes. Instead, his

34. For the disposition of the then-pending criminal prosecution in the Nicarico-related case, see Maurice Possley & Ted Gregory, Judge Clears2 DuPage 7 Defendants; Trial Resumes Next Weekfor 5, CHI. TRIB., May 14, 1999, § 1, at 1; Maurice Possley & Ted Gregory DuPage 5 Win Acquittal, Clu. TRIB., June 5, 1999, § 1 at 1; Maurice Possley & Ted Gregory Cruz Could Face PerjuryCharge, ClU. TRM., June 6, 1999, § 1, at 1. See also Editorial, Where the DuPage 5 Acquittal Leads, CHI. TRIB., June 8, 1999, § 1, at 16. A civil suit is still pending against acquitted officials who had been "accused of railroading Rolando Cruz onto Death Row for the 1983 slaying of Jeanine Nicarico." See Matt O'Connor & Ted Gregory, "It's Not Over by a Long Shot," Cruz Says FederalCivil Rights Lawsuit is Revived, CHI. TRIB., June 8, 1999, § 2, at 1. See also supra note 7. 35. See, e.g., George Anastaplo, The O.J. Simpson Case Revisited, 28 LOY. U. CHI. L.J. 461 (1997). See also infra note 89. 36. M.A. Stapleton, Prof Who Took a Costly Stand 45 Years Ago Sees Rewarding Dividend in Its Consequences, Cm1. DAILY L. BuLL, Aug. 8, 1995, at 3. 1999] LA WYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES

application wound up at the U.S. Supreme Court ten years later, where it was denied. When he traveled to the former Soviet Union in 1960, he thought it would be an interesting leg of a European trip with his family. Instead, he was expelled one week later for speaking out against the government. When he visited Greece, he thought it would be a nice vacation. Instead, he was declared persona non grata by the colonels in charge and expelled from the country for critical articles he had written in the past. As University of Chicago Professor C. Herman Pritchett observed in a review of one of Anastaplo's books, "As W.C. Fields might have said, any man who has been kicked out of the Soviet Union, Greece and the Illinois bar can't be all bad." Anastaplo, a University of Chicago Law School graduate who now teaches at Loyola University Chicago School of Law, appeared before the Character and Fitness Committee of the Illinois Bar in November 1950. He was near the top of the class and thought the hearing would be fast and simple. The mood of the country was tense at the time, Anastaplo said. There was a general fear of the Soviet Union, it was rumored that China would soon enter the Korean War, and Sen. Joe McCarthy (R-Wis.) was begin- ning to talk about the communist threat from within. "People were very upset by everything that was happening. There was a kind of anxiety around," he said. "People were frightened, upset and angry and the committee members reflected that." The Character and Fitness subcommittee would ask certain questions, but most hearings didn't extend beyond ten minutes, he said. "They would bully people a bit, who would cave in, and they would go on," Anastaplo said. "It was kind of like a hazing." He never anticipated trouble at the hearing. "I thought it would be routine, and they did too." At Anastaplo's [initial] hearing [in November 1950], [he was asked] if he thought members of the Communist party should be admitted to the bar. "I don't see why not," Anastaplo responded. NORTHERN ILLNOIS UNIVERSITY LA W REVIEW [Vol. 19

"Well, don't they believe in revolution?" the panel asked. "Don't we all believe in revolution?" Anastaplo answered. "What do you mean by that?" the panel asked. To which Anastaplo cited the Declaration of Inde- pendence and the Revolutionary War. Some of the members of the panel got very upset by his answer. One of them then asked, "Are you a Commu- nist? Are you a member of the Communist Party?" "I told them I didn't think it was a proper question," Anastaplo recalled. 'They kept asking and I kept insisting that I shouldn't have to answer it." While the panel and Anastaplo continued the ex- change, someone had to go out to the waiting room to tell the remaining applicants that they would have to be re- scheduled because Anastaplo's hearing would be extended. At the time, he had already passed the written exami- nation. "That was the easy part," he said. Following the two-man subcommittee hearing, Anastaplo's application was brought to the full committee and denied [16-1] [in June 1951]. Anastaplo then appealed the decision, which was upheld by the Illinois Supreme Court [in 1954]. The U. S. Supreme Court refused to hear the case once, but took up the case in 1960 and by a vote of 5-4, upheld [in 1961] the committee's decision [which had, by a 11-6 vote in 1957, again denied Anastaplo admission to the bar]. In his dissent, U.S. Supreme Court Justice wrote, "I think the record clearly shows that conflict resulted, not from any fear on Anastaplo's part to divulge his own political activities, but from a sincere, and in my judgment correct, that the preservation of this country's freedom depends upon adherence to our Bill of Rights. "The very most that can be fairly said against Anastaplo's position in this entire matter is that he took too much of the responsibility of preserving that freedom upon himself," Black wrote. [366 U.S. at 114 (1961)] At the time, [Anastaplo] didn't really see himself as a revolutionary. 1999] 1.4 WYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES

"I did believe then that what was happening [in the country at large] was not good and that people should resist it," he said. "I felt it was a duty to take a position." Once he was denied admission to the bar, interview offers from Loop law firms dried up. "They lost their interest immediately when this hap- pened," Anastaplo, now seventy said. "I wasn't mad, I was disappointed. It was a time when it would have been useful to have a job. Our first child had been born in May 1950. It was not the best time to be unemployable." His experience mirrored the mood of the country, he said. "These were ugly times in some ways, partly because of the Korean War, partly because of the arms race, and partly because the Russians weren't behaving," Anastaplo said. A World War 1I veteran who had served as a U.S. Army Air Corps navigator who eventually served in every major theater of the war, including the Pacific, Europe, North Africa and the Middle East, he said his patriotism should not have been questioned by the character commit- tee. "To say the least, it was disappointing," he said. "These were [mostly] people who hadn't served in any- thing." Black wrote, "The entire course of his life, as dis- closed by the record, has been one of devotion and service to his country-first in his willingness to defend its security at the risk of his own life in time of war and, later, in his willingness to defend its freedoms at the risk of his profes- sional career in time of peace." [366 U.S. at 114(1961)] Looking back, Anastaplo said that if communists had been admitted to the bar, it might not have mattered. "It's not really where the threats were," he said. "There's not much to be done in the way of undermining the U.S. government in ordinary law practice." Following the denial of his bar application, Anastaplo returned to academics. He studied at the Sorbonne in Paris in his final year under the G.I. Bill, and then returned to earn his Ph.D. from the University of Chicago's Committee on Social Thought. NORTHERN ILLINOIS UNIVERSITY LA W REVIEW [Vol. IS

He has written extensively on a wide range of topics, iiicluding the First Amendment, philosophy and literature. Some of his books include The Constitutionalist:Notes on the FirstAmendment; The Artist as Thinker: From Shake- speare to Joyce; and The American Moralist: On Law, Ethics, and Government. Anastaplo has taught constitutional law and jurispru- dence at Loyola for the last fifteen years. He also teaches classes on the Great Books in the Basic Program of Liberal Education for Adults at the University of Chicago. A roundtable discussion on Anastaplo's work will be held August 31, 1995, during the American Political Science Association meeting at the Chicago Hilton and Towers. A series of papers based on that discussion will be published next year [in Volume 26 of the PoliticalScience Reviewer]. Although the financial rewards in academic life fall short of those found in most law careers, Anastaplo said ultimately he is pleased with his life. "If I had had a conventional career, I would have done far less traveling and probably far less reading and writing," he said. "If I were conventional, I would be making lots more money and doing what everybody else does. [The Character Committee] saved me from success." Anastaplo has never reapplied to the bar [since 1961]. Other people, including Richard Stevens, brother of U.S. Supreme Court Justice John Paul Stevens, [have taken up his case from time to time in order] to get him admitted. The Illinois Supreme Court has said it will not admit him until he reapplies personally. "I'm not reapplying," Anastaplo said. 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 375

3 7 2. BE NOT AFEARED: THE ISLE IS FULL OF NOISES

thing we have to fear is fear itself... The only 38 -Franklin D. Roosevelt

Most of the panel members this afternoon will describe their concerns about the intimidation and suppression among American intellectuals today, especially on college and university campuses. I have been added to this panel because of experiences I had at the Loyola University of Chicago School of Law during the 1995-1996 academic year, experiences following upon allegations by some students of the "racial insensitivity" that had been exhibited there among the faculty. I have discussed these experiences at length in print, just as I have done with several other of the episodes I touch upon in this paper. I will say more about the Loyola experiences after I have glanced at other experiences that should illuminate what I say on this occasion. 9 The concerns of my fellow panelists, especially as they champion academic freedom, are to be taken to heart. Also useful here, of course, has been the work of the National Association of Scholars during its first decade.'

II. My primary concern on this occasion is not so much with the matters which arouse apprehension, important as they may be, but rather with the fact that there should be so much apprehension among people like us.41 Such apprehensiveness is displayed, for example, among law professors I know who teach income taxation. One of them confessed himself to me as very apprehensive whenever he receives in the mail at home a letter from the Internal Revenue Service. Also, I recall the responses to the IRS of Malcolm

37. A talk given to a Convention Panel of the National Association of Scholars, Chicago, Illinois, April 17, 1999. 38. First Inaugural Address, March 4, 1933. 39. On my challenging Loyola experiences, see George Anastaplo, Racism, Political Correctness, and Constitutional Law: A Law School Case Study, 42 S.D. L. REV. 108 (1997); George Anastaplo, On Obsession: Racism, Egalitarianism, and Illinois Law Schools, CHI. DAILY L. BuLL forthcoming Dec. 1999. See also supra note 14. 40. See, e.g., Symposium. Four Universities: Founders' Visions and Today's Reality, ACADEMIC QUESTIONS, Spring 1998, p. 63. 41. On paranoia, see ABRAHAM LINCOLN, THE GETTYSBURG ADDRESS, AND AMERICAN CONSTrTuTIONAuSM 147-48 (Leo Paul S. de Alvarez ed., 1976). See also the text at infra note 332. NORTHERN ILLNOIS UNIVERSITY LAW REVIEW [Vol. 19

Sharp, an old law school teacher of mine, even when he was in his eighties and hardly likely to be anyone's target, especially since he was the most amiable of men.4" It is not clear (at least to me) why one should be apprehen- sive here, if one has not knowingly done anything wrong, whatever mistakes one might have made on one's tax return. I know from experience that letters from the IRS usually mean that more money is expected (and usually gotten) from me. (I notice, in passing and for the record, that much is to be said for substituting a national sales tax for the national income tax, in part to spare taxpayers the remarkable amount of time and effort they now have to devote to filling out income tax forms. On the other hand, I should concede, the income tax exercise does provide one an occasion for taking stock of one's circumstances annually, perhaps even helping one to know oneself better.) Be this as it may, Iam puzzled by the way Americans can be intimidated, or at least made apprehensive, when challenged in various ways that need not be responded to as they are by them. It does seem to me generally healthier when apprehensiveness is kept to a minimum in and between communities.43 Now, for some cases in point:

mH. Malcolm Sharp and I had an encounter with Daniel Ellsberg in September 1972, which was some eighteen months after he had "leaked" the Pentagon Papers to the New York Times, , and other newspapers." He was making public appearances around the country during a temporary suspension of his trial in Los Angeles on charges of violating the Espionage Act, stealing classified government documents, and conspiring to undermine the classification system. Professor Sharp and I appeared on a television program with Mr. Ellsberg. A press release from the school at which Mr. Sharp and I were then teaching, Rosary College (now Dominican University), includes this item: "[Mr. Ellsberg] seemed astonished when Professor Anastaplo offered 3-to-1 odds against a conviction which would stand up on appeal. 'This is the first time anyone has said this to me,' he observed. 'I wish my wife could hear it."'4 I explained, when he asked us (for Mr. Sharp agreed with me when I predicted that Mr. Ellsberg would not

42. See, e.g., George Anastaplo, Lessons for the Student of Law: The Oklahoma Lectures, 20 OKLA. CrrY U. L. REV. 17, 133 (1995). 43. See, e.g., ANASTAPLO, HUMAN BEING AND CrrIZEN, supra note 6, at 214. 44. See New York Times Co. v. United States, 403 U.S. 713 (1971) (the Pentagon Papers Case). See also GEORGE ANASTAPLO, THE AMERICAN MORALST: ON LAW, ETHICS, AND GOVERNMENT 245 (1992). 45. Anastaplo, Racism, PoliticalCorrectness, and ConstitutionalLaw, supra note 39, at 155. 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 377 spend a night in jail because of his Pentagon Papers conduct), that one reason we differed from his lawyers and others about his risks was that the people he talked with were mostly on the West and East Coasts, while we in the Midwest were far more relaxed about such matters. This is not to deny, however, that Mr. Ellsberg had done something that had put him at risk. But it should have been evident by the Fall of 1972 that his legal vulnerability was quite limited. He was not, in these matters, as "realistic" as he believed himself to be-but this had been true also when he had been "Gung ho" for the war in Vietnam.' The college student who prepared this press release ended her account with this report: "Dr. Anastaplo suggested that if by some chance Mr. Ellsberg should go to jail, he could do wonders 'exposing' the problems of prison life and contributing to much-needed reforms in that area. Ellsberg was barely consoled by the prospect. '

IV. I will, in this survey of cases, attempt to be non-partisan by alternating between one side and the other of the political spectrum. Thus, I can place in juxtaposition to the Ellsberg episode an encounter with political conservatives at the time, early in 1988, when the National Association of Scholars was organizing a Chicago chapter. Although I have never been a member of the NAS-but, then, I have never been much of a "joiner"-I did help the NAS people with their early efforts here, finding for them a place to meet, etc.4" I was surprised to learn, during those early meetings, how apprehensive about the general state of affairs these quite intelligent conservatives were. My surprise was intensified here as I wondered how they could be as intimidated as they seemed to be despite the fact that Ronald Reagan was well into his second term as President. What, I wondered, did they believe might happen to them or to people like them? This was at a time, by the way, when the Soviet Union was beginning to collapse. I myself had wondered, for years, why we were so fearful of a country that was as weak economically and otherwise as it obviously was when our family camped across Western Russia in the Summer of 1960. This

46. On the Vietnam War, see ANASTAPLO, THE AMERICAN MORALIST, supra note 44, at 225; George Anastaplo, First Impressions, 26 POL SCl. REVIEWER 248 (1997). 47. Anastaplo, Racism, PoliticalCorrectness, and ConstitutionalLaw, supra note 39, at 155. 48. I believe the national organization had been formed the year before. On not being a "joiner," see Anastaplo, Freedom of Speech and the FirstAmendment, supra note 18, at 2041. Compare Virginia E. Sloan, ed., "Greatand ExtraordinaryOccasions": Developing Guidelines for ConstitutionalChange p. xii (Century Foundation Press, 1999). NORTHERN ILLNOIS UNIVERSITY LAW REVIEW [Vol. 19 was a visit which had been preceded'by six months of camping across the rest of Europe, all of which was obviously in much better shape than the Russians were.49 (I mention, in passing, my reservations about the decades-long approach to these matters of Sidney Hook, an approach far too polemical for my taste. This is something I consider myself obliged to mention because of the important award given in his name at your luncheon meeting today.) Again I ask, what did conservatives believe, in 1988, might happen to them that they could not readily cope with?'

V. Similar questions can be asked about liberals today, as could be seen in an encounter I had, earlier this month with Harold Ickes, a former assistant to President Clinton and White House Deputy Chief of Staff (1994-1997), and presently a "political consultant." Mr. Ickes, when he spoke at the University of Chicago Law School on April 1, included, in his quite interesting account of the life of a man dedicated to public service, some heartfelt remarks about how much he, although a lawyer himself, had had to spend in legal fees during and since his White House service, especially upon being called before grand juries. He received his first subpoena, he said, within two months of his arrival at the White House, adding that he has been investigated on over twenty different occasions."' Perhaps Mr. Ickes is something of a lightning rod, but what he said about himself he could also say about others. Many who served in Washington, he said, left "broke and broken." During our more or less public conversation during the reception thereafter, I expressed surprise that so many people in Washington had run up the legal bills we have heard about. Did not anyone, I wondered, decide that he would go by himself before whatever tribunal had summoned him and simply tell the truth? One person had done so, he said, and that was Leon Panetta.52

49. See, e.g., Anastaplo, THE AMERICAN MORAIs'r, supra note 44, at 555; ANASTAPLO, HUMAN BEING AND CITIZEN, supra note 6, at 226-28. 50. On conservatives and liberals, see ANASTAPLO, ABRAHAM LINCOLN: A CONSTITUTIONAL BIOGRAPHY, supra note 18, at 251. 51. See Haroula Spyropoulos, ClintonAide Recalls PoliticalCareer, U. CHI. MAROON, April 2, 1999, at 1. On Mr. Ickes, see Michael Lewis, Bill Clinton's GarbageMan, N. Y. TIMES MAGAZINE, Sept. 21, 1997, at 58. 52. Among Mr. Panetta's government positions had been Chairman of the Committee on the Budget, United States House of Representatives, Director of the Office of Management and Budget, and President Clinton's Chief of Staff. See, e.g., LEON E. PANETTA, RESTORING AMERICA'S FUTURE (1991). 1999] LAWYERS,9] FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES

Again putting Mr. Ickes's special circumstance aside, I did suggest, as the proper advice to give to the typical government-connected witness in the course of these more or less political struggles, "If you haven't done anything wrong, you know they can't and won't do anything to you." (It should be noticed here that federal grand juries rarely call people who are apt to be indicted by them.) Indeed, the advice I would offer to anyone undertaking public service is, "Do the right thing, as best you can, and tell the truth whenever possible." Mr. Ickes seemed to consider my approach as rather naive-but I could not help but wonder what his adventurous father, whom he very much respects, would have thought about such matters.53 A critical underlying question here is what (besides, of course, television) has contributed to that corruption of the political life of this country which has led to such fearfulness among civic-minded political men and women. '4 Symptomatic of the corruption here is not only that there should be the sense of vulnerability that is reflected in those horrendous legal bills but also that it does not seem to be generally appreciated that one should not be as apprehensive as these public servants and others evidently are these days.

VI. When we return to the conservative side of our ledger we encounter such things as the apprehensiveness with respect to the costs of "affirmative action" among us. I need not argue here for the effectiveness of affirmative-action programs, although it does still seem to me that they can, when properly monitored, do some good, if only the good at times of seeming to make an effort to deal compassionately with chronic and potentially explosive problems.55 Rather, I am only concerned on this occasion to suggest that the dire predictions made about the consequences of the affirmative-action programs we are likely to have and to retain are unduly fearful. Certainly, it seems to me, affirmative-action programs have had relatively little sustained adverse effects upon the prospects of white males in this country. (This is not to deny, by the way, that there can be dubious features in a related effort, the

53. See, e.g., HAROLD L. ICKES, THE AUTOBIOGRAPHY OF A CURMUDGEON (1943); HAROLD L. ICKES, THE SECRET DIARIES OF HAROLD ICKES (1953-54). 54. On television, see ANASTAPLO, THE AMERICAN MORALIST, supra note 44, at 245. See also the text at infra notes 125 and 414; infra note 86. 55. On affirmative action, see ANASTAPLO, THE AMENDMENTS TO THE CONSTITUTION: A COMMENTARY 181-82, 184, 236, 439, 441-42, 452 (1995). See also supra note 39; the text at infra note 114. On how to read the Constitution, see infra note 121. NORTHERN ILLINOIS UNIVERSITY LA W REVIEW [Vol. 19 promulgation and attempted enforcement of hate-speech codes on our campuses.56)

VII. Then there is at last, in this survey of cases, the "racial insensitivity" issue at the Loyola School of Law in 1995-1996."7 This began with silliness upon the part of some students and with a run for cover on the part of the administration-and was distinguished thereafter by the determined silence of one's colleagues. This sort of thing can be quite accidental in its origins. My own involvement was prompted, it seems, by a student's failure to recognize, when it happened to be quoted by someone in class (perhaps by me), that the "merciless Indian Savages" language came from the Declaration of Independ- ence. Had I not been personally challenged, most critically by the Dean of the Law School, I probably would not have become as involved as I was. Indeed, as it turned out, I was the only one of the ten or so faculty "implicated" who insisted upon taking the offensive against the accusers and even more against those who appeared to take such accusations seriously, the administration and to a lesser extent the faculty of the school. It is, I presume to advise, better to see such challenges as opportunities than as threats. One has simply to face up to them as one demonstrates that one will be vigorous in response. Upon taking charge of such a situation from the outset, it is useful to retain both one's sense of proportion and one's sense of humor, which is much easier to do if one is confident that one is not truly, or permanently, vulnerable. It helps, of course, to have, in such situations, both tenure and modest tastes. This kind of effort in opposition to the crowd can be liberating, but not without enduring damage to one's relations with one's colleagues, especially as they come to sense that they did not conduct themselves as they should have.5"

56. See supra note 27. 57. See supra notes 14, 27. 58. One should not be surprised if one sometimes seems to suffer the deprivation of the discretionary largesse usually available for distribution among a faculty. Nuisances sometimes have to be dealt with, such as the attempted curtailment in the Spring of 1999 of my accustomed access to faculty secretarial services. Compare infra note 480. 1999] LAWYERS, FIRST PRINCIPLES. AND CONTEMPORARY CHALLENGES 381

VIII. Finally, in this survey, there is my bar admission litigation of 1950-1961. That was troublesome-especially since I had little money left upon finishing law school and a family to support-but it was also a great adventure. This struggle, too, began somewhat accidentally. And here, too, the Declaration of Independence was involved, with an impassioned bar committee unable to recognize the authority of the Declaration of Independ- ence with respect to the legitimacy of the right of revolution.59 It was obvious from the outset, at least to me, that there was a decided limit to what could be done to me. (I was later to have the same feeling when I was expelled from the Soviet Union, in 1960, and from the Greece of the Colonels, in 1970.) Not that there were not costs incurred-not in the form of legal fees, however, for I represented myself throughout, but rather in the form of at least thirteen million dollars in lost income during the past half- century. (This calculation is based upon what some of my no-more-talented classmates have easily made since we graduated in 1951.) No doubt, I would miss those millions of dollars far more than I have if I had ever developed tastes commensurate with such income. I was probably helped, in being able to profit as much as I did from the misconduct of the Illinois bar authorities and of most of the faculty and especially the dean of my law school-I was probably helped by the challenges I had had to face, first as an aviation cadet and then as a flying officer, during the Second World War. One of the sad consequences of our misconceived war in Vietnam is that it has made it much more difficult for youngsters to benefit as much as I did from my three years and more of military service.'

IX. One lesson I was fortunate to learn early in my career, and to be reminded of from time to time, is that one should not expect much of one's associates in a controversial situation, unless of course they can be moved to see their own interests threatened. Why is there such standoffishness by others, aside from the fear of being hurt themselves? Most people do depend upon others, and especially upon some association, for their opinions and for their security. This is related to

59. See supra Part 1 of this Collection. 60. See, e.g., ANASTAPLO, T-IE AMERICAN MORAUST, supra note 44, at v, 582. See also infra Part 17 of this Collection; supra note 20. NORTHERN ILLINOIS UNIVERSITY LA W REVIEW [Vol. 19 what Aristotle says, early in the Nicomachean Ethics, about one's pursuit of honor because one wants an assurance of one's virtue.6 Critical to the situations in most of the cases I have surveyed on this occasion is an ability to assess what one has and has not done and to recognize what one does and does not have, including where and when one is. Indeed, it helps to be able to recognize as well one's superiority, whenever one is truly superior, and to conduct oneself accordingly. It is easier to be superior if one is not attacking someone but rather is defending oneself. If one is truly superior, irony is sometimes called for, tempering thereby one's realization that one is entitled to the very best, including that aspect of the best which takes the form of acting as one should in challenging situations. A soundly political attitude is called for in many of these situations, such as that evidently exhibited by Leon Panetta before a and as that espoused by Paul Simon in a talk he gave at the University of Chicago a few days before Harold Ickes gave his. The former Senator from Illinois, who comes as I do from the southern part of this State, is reported in this fashion in the campus newspaper: Urging students and young people to get involved and participate in the government, Simon spoke of a strong need for ambitious and principled leaders. [Mr. Ickes, I should notice, made a similar to his audience.] "We need backbone, people who are willing to stand up," he said. "And if we are defeated, we get defeated-it's not the end of the world. I don't recommend getting defeated, but it's been my experience that if you stand up for what you believe in, people will support you. What we need are people with conviction."62 Or, if I am permitted to paraphrase this old acquaintance from Southern Illinois, Do what you should do-and things are likely to work out more or less satisfactorily, however intimidating the noises all around us may seem to be from time to time.

61. See ARISTOTLE, NICOMACHEAN ETHICS, Book I, Chapter 1. See also ANASTAPLO, THE THINKER As ARTIST, supra note 23, at 318; the text at infra note 134. 62. Christine Back, Former Senator Discusses Kosovo Crisis, Campaign Reform, U. CHI. MAROON, April 2, 1998, at 3. 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 383

6 3 3. CHARACTER AND HONOR: A BICENTENNIAL REVIEW

You have immortalized George Anastaplo. -William J. Brennan, Jr." I.

Everyone remembers the great opportunity Tom Sawyer had, while still alive, to eavesdrop upon his own funeral.6" Is it not natural to want to know what others really think of you, how they will remember you? Especially may this be so for anyone who, in trying to know himself, depends on the opinions of others about him. The general opinion about one can be understood to be what honor depends upon. The love of fame is called, by Publius, "the ruling passion of the noblest mind. ' And it is also observed by him, "There is in every breast a sensibility to marks of honour, of favour, of esteem, and of confidence..., 67 This is very much an American response to honor. It is no wonder, then, that Tom Sawyer, who is nothing if not an American, should yearn to learn what others "really" believe, or at least believe that they should say in public, about him.

II. I myself have had, in connection with my bar admission matter, my own "Tom Sawyer" experiences. That is, I have on various occasions over the past four decades found out what others "really" believe about that controversy which began in November 1950 when I first ran afoul of the Character and Fitness Committee. Of course, much of what I have learned about what others thought about it all may not be very reliable, since it usually consists of what others reported to me about what they had thought about me years before. I rarely meet people who tell me that they believed me a scoundrel or at least a fool from the outset. Indeed, I have had so many Illinois lawyers tell me how much they had always "admired" my stand that it must be wondered how the timid Illinois bar authorities could have dared to deny me admission in the face of so much sentiment in the profession on my behalf. It is difficult not to regard

63. A talk given at the University of Tennessee, Chattanooga, Tennessee, October 26, 1987. 64. See ROGER K. NEWMAN, HuGo BLACK: A BIOGRAPHY 507 (1994). 65. See MARK TWAIN, THE ADvENTuREs OFTOM SAWYER, Ch. 17. See also infra note 480. 66. THE FEDERAUST No. 72. 67. THE FEDERALIST No. 57. NORTHERN ILLNOIS UNIVERSITY LAW REVIEW [Vol. 19 a report received in this fashion as somewhat suspect, reflecting the reporter's present good will more than his former opinion, especially since my stand has not become unfashionable. Indeed, one cannot be sure that such reports, when made to oneself, reliably reflect even current opinion. But occasionally one does get the true "Tom Sawyer" effect. Two examples should suffice. Upon visiting a university campus to conduct some seminars not too long ago, I was asked by a professor there whether I knew anything about a Chicago bar admission controversy he had once read about. Nothing had been said about that controversy in the publicity on that campus about my seminars, since I never say anything about the case unless asked about it. I did not answer the inquiry put to me but asked instead what the stranger had heard about the controversy. He described it quite accu- rately-there had been a newspaper article about it which he had seen some years before-and what was for me most gratifying, he also recalled, and very much approved of, the position I have taken for a couple of decades now about repeated efforts made by the Illinois Bar Association and others to secure my admission to the bar, efforts which I have refused to join.6" That is, this professor recalled that the man he had read about believed that his case should remain as it is, that a lot can be said for allowing it to stand as a reminder of what can go wrong when the bar, the courts, and the law schools do not conduct themselves as they should. He also recalled, and approved as well of, the "victim's" insistence that allowing his case to remain as it is serves as a useful reminder that one need not be ruined forever if one does something that's right. I should not expect, or need, any better endorsement of my conduct from thoughtful people than this stranger inadvertently provided me. But I received in confirmation, so to speak, only this week a detailed report from a law student in another State who reported on how his and other college debating teams last year had used my bar admission case in nationwide debates which dealt with the First Amendment. It is obvious from his generous report that my case had had a remarkable effect on those who heard about it. "We had 67 affirmative debates last year," he told me, "and in our last 55 we advocated your bar admission case, winning 43 of those 55." It seems that the equities in my position repeatedly helped move debaters and judges alike to support a position associated with me.

68. See, e.g., Anastaplo, 'McCarthyism,' The Cold War, and Their Aftermath, supra note 14, at 125. See also supra note 12. 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 385

III. All this can be gratifying, but it should also be sobering. For the true "Tom Sawyer" experience almost always depends on chance. I could very easily never have met the professor I have referred to, who uses my case in his ethics courses.' And the report about the national college debates came to me because of a chance encounter at the American Political Science Association Convention in August. I believe it significant that I had not had the faintest inlding of so much discussion about me among so many college debaters. In fact, it can be startling to learn about something like this-and this sort of thing has happened many times now-to learn about something like this and to realize that the information had indeed come in each instance by chance from one source only, albeit a quite reliable source. The same thing can happen in learning, years later, about the effect one has had on students in a particular course or the effect one has had on readers of something one has published. Of course, one can also learn about things said of one which are not true-for example, that I was a chain smoker in law school, and this despite the fact that I have never been a smoker at all. Heaven only knows what else is "out there" which is simply not so, including accounts of virtues I do not have either. One more example should suffice, before I begin drawing some conclusion. If members of my own family had not happened to attend Justice Hugo L. Black's funeral service in Washington Cathedral in 1971, I probably never would have learned that a passage from his eloquent dissenting opinion in my case had been selected by him to be read at that service.7" Two of my

69. See, e.g., supra note 20. 70. The following excerpt, from the dissenting opinion of Justice Black in In re Anastaplo, 366 U.S. 82, 116 (1961), includes the first passage from his own writings designated by Justice Black to be read at his funeral, Washington, D.C., September 28, 1971: 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. See MEMORIAL AND OTHER TRIBUTES INTHE CONGRESS OF THE UNITED STATES INTHE LIFE AND CONTRIBUTIONS OF HUGO LAFAYETTE BLACK, 92nd Congress, 1st session, House Document no. 92-236 (1972) 64-65. See also HARRY KALVEN, JR., A WORTHY TRADITION: FREEDOM OF SPEECH IN AMERICA 549, 557, 570-78, 582-83 (1988); the text at infra note 473. NORTHERN ILLINOIS UNIVERSITY LA W REVIEW [Vol. 19 were able to attend that service, at my urging, because they were in college nearby at the time. I have never heard from any other source about that epi- sode more than a decade ago, although I have since been able to confirm pre- cisely what was used by consulting the printed version of that service (some- thing I probably never would have thought of doing but for my children's report)."'

IV. All this points up the role of chance for much of what one learns. But then, I have described elsewhere the considerable role of chance in the emer- gence of my bar admission controversy in the first place. It could very easily never have happened, especially since I have always managed to get along fairly well with my teachers and other superiors both in my military and my civilian careers, with my fellow soldiers and my fellow students, and with my colleagues in various activities over the years. I do not believe that I am by nature a "troublemaker," even though I was expelled from the Soviet Union in 1960 and declared persona non grata by the Greek military regime in 1970.72 The sobering role of chance in the shaping both of one's life and of what is known about it does point up certain limitations in any reliance upon honor. Thomas Jefferson warned his fellow citizens, in 1797, "I have seen enough of political honors to know that they are but splendid torments."73 All this is not to deny that honoring one another is natural to human beings. Nor is it to deny that it is salutary for the moral and political life of a community that honors be allocated as endorsements of proper character and conduct. People at large are very much in need of the guidance thus provided, especially in large-scale societies such as ours where anonymity and hence privacy reign . "4

Justice Black's "We must not be afraid to be free" statement was featured in an exhibit of American and Russian "dissidents" which toured the Soviet Union before the dissolution of the Communist regime. See Murley, In re George Anastaplo, supra note 20, at 190. 71. Since these observations were made by me in 1987, I have come upon a reference to the use of this Black dissenting opinion at the funeral for Justice Black. See NEWMAN, JUSTICE BLACK, supra note 64, at 625. 72. See the text at supra note 17. See also ANASTAPLO, HUMAN BEING AND CITIZEN, supra note 6, at 3; ANASTAPLO, THm AMERICAN MORALIST, supra note 44, at 501, 555. On the other hand, I have not endeared myself with academic colleagues whenever I have suggested that we all take a temporary designated percentage cut in our salaries when our institution has been in financial trouble. (This has happened both at the University of Chicago and at the Loyola University of Chicago School of Law.) 73. THE JEFFERSON CYCLOPEDIA 411 (John P. Foley ed., 1967). 74. See, e.g., George Anastaplo, The Public Interest in Privacy: On Becoming and Being Human, 26 DEPAUL L. REV. 767 (1977). See also GEORGE ANASTAPLO, I LIBERTY, 19991 LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 387

If, then, honor is often too much dependent on chance to be reliable, how should one conduct oneself? Should one not so act that one is worthy of honor, and honor from those of sound judgment? And if one is of sound judgment oneself, cannot one provide for oneself all the honor (that is, self- respect) one truly needs, especially if one knows that the truth about one (if ever known) is bound to be well received? Undeserved honor, or neglect if not even unmerited dishonor, should be ultimately of no consequence to the thoughtful man since he should recognize that it is not truly his conduct which is thus being dealt with. His efforts to set the record straight should be much more for the sake of others, and for the sake of the community at large, than for himself. At the core of both proper action and a reliable understanding is a grasp of what nature provides us as guides to deed as well as to thought.

V. The question remains, of course, whether what I have done and said have indeed been sensible. I was asked, by a Chattanooga newspaper reporter, just before I left Chicago to come here, whether it would not have been better for me to give in to the bar's demands and "fight from within." This and similar questions have been put to me many times over the years. When the reporter telephoned me, I answered his question with a question, "If I had acted as you suggest, would you be talking to me now?" He laughed, and went on to discuss with me what my position had been then and is now on the matters raised by my bar admission case. No doubt, it is prudent to "go along" with many dubious things demanded of one. But surely there must be occasions when one should resist-and explain the "whys and wherefores." One's articulate resistance to a challenge can be as illuminating, and as heartening, as a burst of sunlight which brings out such colors in autumn leaves as you are privileged to have here right now, glorious colors which a dull day cannot mute. Whether I chose the proper occasion for my "articulate resistance" is of course very much open to question. It did seem to me called for-and still seems to me to have been called for-as a healthy and useful response to terrible things that were being said and done in this country during the worst years of the Cold War."

EQUALTY & MODERN CONSTMMONAUSM: A SOURCE BOOK 205 (1999). See also the text at infra notes 267, 330, 373, 408. 75. On the Rosenberg Case, for example, see George Anastaplo, On Trial: Explorations, 22 LOY. U. CHI. L.J. 765, 994 (1991); ANASTAPLO, THE AMERICAN MORAUST, supra note 44, at 196-97, 204-08; Anastaplo, Freedom of Speech and The First Amendment, supra note 18, at 2046-48. See also the text at infra note 444. NORTHERN ILLINOIS UNIVERSITY L4 W REVIEW [Vol. 19

Still, one should not ignore one observation made by Justice Black in his memorable dissenting opinion on my behalf, the observation that I had perhaps taken upon my own shoulders too much of the burden of defending my country's freedom.76 Nor should one forget that it must be rare in such controversies to be able to take on all of the burden oneself and not impose it also upon family members who can do little more than observe (and perhaps suffer) from the sidelines. The younger one is, the more likely one is to minimize indirect consequences-but then, is not that partly what youth is for?

VI. I have been talking about the inevitable ignorance one must live with-ignorance of what is known about one by others, ignorance of what one knows about what others know and say about one, and ignorance of what one is doing and the consequences of what one is doing. But there are some things that one can learn about such situations. There have been various other occasions when I have been challenged to do the right thing (as against doing either the respectable or the "decent" or the pleasurable thing), and I have since come very much to regret that I did not act on those occasions as I should have. Life would have been, on the whole, happier for me if I had simply done the right things, things which I knew (or at least sensed) at the time were right. One also learns-and hence should know--that it is not healthy to dwell on such shortcomings, once one recognizes them for what they were. It can suffice to "soldier on," doing and saying the best that one can thereafter. "Guilt trips," it seems to me, rarely take one anywhere that one really wants to go. Nor do "might-have-beens" get one very far-of which I was reminded recently upon noticing the obstacles unexpectedly encountered by one of my law school classmates upon his way to the United States Supreme Court.77 I suspect it is better to have such troublesome things happen to one early rather than late in one's career.

VII. An early challenge, if not even "disaster," can be more easily recovered from, especially if one can reflect upon what has happened and can think it through. Only if one does try to think things through may one now and then

76. See In re Anastaplo, 366 U.S. 82, 114 (1961) (Black, J., dissenting). This observation is quoted in the Addendum to Part 1 of this Collection. See also the text at infra note 473. 77. See George Anastaplo, Bork on Bork, 84 Nw. U. L. REV. 1142 (1990). 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 389

conquer, or at least reduce, the chance elements in life. One reason I have been reluctant to do anything more than I have done about my status at the bar is that I have managed to leave the record of that encounter in quite good shape. No one else can ever know as well as I do how much determination and effort have been required to arrange everything so that it can mean as much a century or two from now as it means today. I presume to believe that this sort of thing could have meant as much two centuries ago as it certainly does today. We are told about the late eighteenth century: "It was the age of principle. above all counted with thoughtful men. And the sacrifice of a career was the price of an easy conscience."78 The conquest of chance may itself depend on fortunate circumstances, not the least being the talents one naturally happens to have. Also critical can be the artistry employed not only in acting as one should but also in how one accounts for one's actions. Tom Sawyer believed he needed to attend his funeral to learn about himself. Had he been older, and of a more reflective turn of mind, he might have come to recognize that he could figure out (as Mark Twain did?) what others thought of him or, better still, what they should have thought of him, without subjecting those who loved him to a funeral. It seems to me fitting and proper to move on from the funeral scene with which I opened these remarks by going with Dante beyond the grave into the afterlife. He relates how a man (Brunetto Latini) he had known and liked, but who had been not unjustly condemned to the Inferno, conducted himself even in the most extreme adversity. I drew upon Dante's passage about his friend in the paragraphs with which I closed in 1961 my "unsuccessful" Petition for Rehearing in the United States Supreme Court: Petitioner is satisfied he has acted as one ought. He is further satisfied that his action will continue to serve the best interests of the bar and of the country. The generous sentiments of the dissenting opinions elicited by his cause in Chicago, in Springfield, and in Washington keep alive hopes for the success of efforts to make the institutions and laws of our people a reflection of decency and perhaps even of nobility.

78. YVONNE FFRENCH, MRs. GASKELL 8 (1949). I need not develop here my reservations about the typical use today of the term "conscience." On conscience, see ANASTAPLO, THE AMERICAN MORAusT, supra note 44, at 607. See also the text at infra notes 213, 264. NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 19

Petitioner leaves in the hands of the profes- sion-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 (In- ferno, xv, 121-24), "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."79

4. MAJOR CHALLENGES FOR THE LEGAL PROFESSION IN THE UNITED I STATES90

If practice be the whole [that a lawyer educated to the bar, in subservience to attorneys and solicitors] is taught, practice must also be the whole he will ever know; if he be uninstructed in the elements and first principles upon which the rule of practice is founded.., he must never aspire to form, and seldom expect to comprehend, any arguments drawn a priori, from the spirit of the laws and the natural foundations of justice. -William Blackstone8

In discussing the topic assigned to me-the major challenges for the legal profession in the United States today-I will look first at the legal profession as seen by its practitioners, then at the heart of the practice of law, and finally at the legal profession as seen by the rest of the community. I should preface my remarks by observing that law school is itself a salutary

79. See ONE MAN'S STAND FOR FREEDOM: MR. JUSTICE BLACK AND THE BIlL OF RIGHTS 413-15 (Irving Dilliard ed., 1963); GEORGE ANASTAPLO, THE CONSTIrrUIONALIST: NOTES ON THE FIRST AMENDMENT 399-400 (1971); Murley, In re George Anastaplo, supra note 20, at 179. See also the text at infra note 473. Here is Dante's memorable language (Enferno,XV, 121-124): Poi si rivolse, e parve di coloro che corrono a Verona ildrappo verde per la campagne; e parve di costoro quelli che vince, not colui che perde. 80. A talk given to the Pre-Law Students Association at the University of Dallas, Irving, Texas, September 15, 1995. 81. 1 WILUAM BLACKSTONE, COMMENTARIES *32 (second emphasis added). 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 391 challenge for the intelligent youngster of an active disposition, especially if one knows both how to control oneself and what to look for. 2 I am told by former classmates, fellow graduates more than forty years ago from one of the best law schools in this country, that they (knowing what they do now) would not go to law school if they had it to do again. These are men-there were only three women in my class, compared to the multitudes of women now in law school--these are men who have done quite well financially and are considered at the top of their profession. Perhaps their disillusionment reflects a general disillusionment with life itself induced by that awareness of failing powers which accompanies the onset of old age. But I do not believe that this is critical to their mood. I do not believe, that is, that the counterparts of these men, three or two genera- tions or even one generation ago, had been so disillusioned in their old age. Besides, I have begun to hear similar disparaging talk about the legal profession from men a generation younger-from men, by the way, not from women, in part (I suspect) because women are more apt to give up on the profession as conventionally practiced while most men, for one reason or another, are obliged if not even inclined to stick with the careers they have chosen. Such reservations are not limited to older men, however. The young, including the most successful young (with salaries verging on $100,000 a year during their first five years), find themselves oppressed by seventy-hour work weeks upon which even more demands can be piled from time to time. The demands made of them are particularly onerous for youngsters who have been softened by "the good life" which is financed by the money they now make. It does not help matters for all too many talented and successful lawyers to discover that they really do not like the wealthy men that they must serve. This is not the kind of career they had in mind when they were first drawn to the Law. The long hours would be far less troublesome for them if they believed that they were engaged in a noble profession. But a quite new way has taken hold in the organization of the profession during the past quarter-century, at least in the larger law firms which eventually influence many other lawyers in our cities. The lawyer is much more apt today to be a narrow specialist; he is much more apt to find himself part of a large organization that is run like a business, but a business which is at the beck and call of still other businesses known as clients.

82. On the education of the would-be student of law, see the addendum to this talk, "On the Proper Shaping of Hearts and Minds." NORTHERN ILUNOIS UNIVERSTY LAW REVIEW (Vol. 19

A common complaint is that law firms no longer train young associates, ethically as well as technically, the way they once did. Related to this is the recognition that the young people taken on by a firm might not be around very long, certainly not (in most cases) long enough to be made partners who can share in the "surplus wealth" generated by the thousands of hours billed annually by the young associates. That is, these are no longer lifetime associations; mergers- between, and layoffs within, law firms have become common. Some middle-aged lawyers strive to keep their profession from becoming too much like a business. Others, however, are concerned to make their profession more efficient, especially as it accommodates itself to more and more sophisticated information-processing technology. Such accommodations tend to make legal practice more mechanical, affecting how fundamental legal issues are thought about or, rather, how they are managed so that they need not be really thought about. It is this sort of thing which has made the calling of the lawyer less meaningful and less interesting than it was once generally understood to be, helping account for the discontent that has steadily demoralized a noble profession.

II.

An old teacher of mine, Richard Weaver, insisted in 1948 that "ideas have consequences." 3 At the heart of the practice of law, very much affecting how the profession permits itself to be used, is the prevailing idea about the nature of justice. The dominant notions these days tend to be shallow when they are not simply cynical. That is to say, there is not much serious thinking either in the schools or among the bar about the meaning of justice. However much people rely, almost instinctively, upon old-fashioned natural-right opinions, practitioners are neither encouraged nor helped to develop a solid and reliable grounding in those opinions." A proper sense of justice would guide appropriate responses by the legal profession to the challenges facing it. Instead, the profession seems to have become unable to grasp the significance of the very notion of a profession. This makes it difficult for lawyers to regulate themselves and to address the most serious problems of the legal system. Quick fixes and technological innovations are the order of the day, as may be seen in the readiness of law

83. See RICHARD M. WEAVER, IDEAS HAVE CONSEQUENCES (1948). Is it not odd that anyone had to argue such a thesis? See the text at infra notes 262, 276. 84. See ANASTAPLO, HUMAN BEING AND CITIZEN, supra note 6, at 46, 74. On moral relativism and the United States Supreme Court, see ANASTAPLO, 2 LIBERTY, EQUALITY & MODERN CONSTrrUTIONALISM supra note 74, at 226. See also infra note 212. 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 393 firms and law schools to experiment with equipment and methods that promise modem business efficiency. Vital to this situation is the question of the proper education of the bar, an education that had begun to deteriorate before I went to law school and the grimmer consequences of which we are now seeing. Another way of putting this is to say that the general deterioration in American education is catching up with the law schools and with the legal profession, however much the conservative tendencies of the Law have perpetuated traditional modes of thinking and acting among the bar. Law school faculties talk about how the test scores of their entering students are getting ever higher. Even those who recognize that students may not be as well prepared as they once were are not inclined to embark upon remedial measures of a fundamental character.8 5 Courses which teach their students how to read the Bible, Shakespeare, and our great constitutional documents are not encouraged. Students well versed in these subjects (to say nothing of Plato and Aristotle, which a prudential man dares not mention these days)-such students are much more likely to notice, and to think seriously about, the principles which the Anglo-American system of law has depended upon and has nourished for centuries.8 6 The best law schools in this country are in the worst shape because they tend to be the most fashionable. Those are the schools in which the brightest and most prestigious scholars are found and in which social science disci- plines are dominant. Economics is the current fad, following upon experi- ments in recent decades with sociology and psychiatry. Realism, in pursuit of "power," is the order of the day, which amounts to a steady corruption of "the best and the brightest.""7 The celebrated professors in the best law schools are really "babes in the woods" when it comes to the most important things that they should know. Very few of them know much about the Declaration of Independence, for example, They do not even know what familiarity with the United States Stat- utes at Large should tell them, that the Declaration has been enshrined there for two centuries now as one of the "organic laws of the United States."'

85. See Part 5 of this Collection. See also inffra note 96. 86. For highly impractical proposals which can help illuminate the problems confronted, see ANASTAPLO, THE AMERICAN MORALIST, supra note 44, at 245; George Anastaplo, Law & Literatureand the Bible: Explorations, 23 OKLA. CITY U. L. REv. 515, at 753 (1998). See also supra note 54, the text at infra note 414. 87. See, e.g., William T. Braithwaite, The Common Law and the Judicial Power: An Introduction to Swift - Erie, in 2 LAW AND PHILOSOPHY: THE PRACTICE OF THEORY 774, supra note 17, at 774. See also the text at infra notes 196, 282, and 425. 88. See FOUR PILLARS OF CONSTITUIONALISM: THE ORGANIC LAWs OF THE UNITED STATES (Richard H. Cox, ed. 1998). NORTHERN ILLNOIS UNIVERSITY4LA W REVIEW [Vol. 19

The major challenge facing the. legal profession then is whether the understanding of lawyers can be sufficiently deepened to permit the restora- tion of the old-fashioned opinions about what the profession and the legal system it serves should be like. Fundamental to those opinions, I have suggested, is a sound idea about the nature of justice.

ini. I began by looking at the legal profession, as seen from the inside. I now look at it from the outside, having touched upon the prevailing idea about the nature of justice which is at the heart of the practice of law. How the profession is seen from the outside does affect how it is regarded inside, just as how it is regarded inside eventually affects how it is seen from the outside, if only because of what lawyers permit (if not even require) themselves to do. Lawyers are no longer seen as heroes, or even as solid members of the community. Rather they are more apt to be seen as tricksters for whom "winning" is everything. Both their ethical reliability and their dedication to justice have been called into question, not least because they no longer seem to be confident that there are moral standards of an enduring character by which lawyers (along with others) should take their bearings. Immediately in the public eye, of course, is the 0. J. Simpson case, which a sensible and self-respecting system would have disposed of a year ago. 9 We can be thankful, in any event, that we do not have the issue to distort this case even further, something that we are seeing in the case beginning to be publicized about Mumia Abu-Jamal, an African-American journalist on death row in Pennsylvania.' There are atrocities on the civil side of the docket as well. A particularly blatant case was the Pennzoil/Texaco litigation here in Texas a few years ago. The shamelessness of a major corporation and its attorneys, aided and abetted by various peculiarities in Texas-style trial by jury, was very much in evidence.9' Even worse, for only a few billion dollars were mishandled in that litigation, is what we have been seeing from the tobacco companies and their lawyers who, in pursuit of many more billions, are contributing to the deaths of hundreds of thousands of people annually by doing what they can to

89. See George Anastaplo, On Crime, Criminal Lawyers, and O.J. Simpson: Plato's "Gorgias" Revisited, 26 LoY. U. CI. L.J. 455 (1995). See also supra note 35. 90. See, e.g., LEONARD WEINGLASS, RACE FOR JUSTICE (1990); Salim Muwakkil, No Justice, No Peace, Cin. TRIB., Nov. 1, 1999, § 1, at 17; Murderer as Commencement Speaker, CAMPUS, Fall 1999, at 9; Mumia Abu-Jamal v. Pennslyvania, United States Supreme Court No. 98-1702 (appeal rejected Oct. 4, 1999). 91. See THOMAS PETZINGER, JR., OiL& HONOR: THE TExAcO-PENNzoiL WARS (1987); JAMES SHANNON, TEXACO AND THE $10 BILLION JURY (1988). See also the text at infra note 130. 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES promote an unfortunate addiction among the young. The full-page ads we have seen recently, following a "successful" threat of litigation by a tobacco company against a television network, are simply a disgrace, exposing to public view as they do the monumental hypocrisy of a major corporation and the unbecoming subservience of its lawyers.92 It is not only lawyers, however, who have come to consider "winning" to be everything,93 something which is reinforced by an emphasis upon "the bottom line" in business. Consider what is happening to our sports. Why is it as important as we have made it to be that we must "know," by recourse to a post-season playoff system, who is "Number One" each year in college football? One consequence of this is the depreciation of the individual contest and the pleasure as well as instruction that can be gotten from it. For example, the opening game in Notre Dame's 1994 football season was a thrilling con- test which was decided in its closing seconds. The following morning the sport pages were filled with the lamentations of Notre Dame partisans, de- pressed by what this loss had done to their prospects for a "national champion- ship." The magnificence of the contest itself could not be appreciated by them. Such distortions very much affect the quality of our lives, partly by making it difficult for us to appreciate and savor what we do happen to have. Distortions may be seen not only in legal practice but also in our political life, which has always been very much influenced by lawyers. It sometimes seems that it is not only legitimate but even expected that the ambitious politician should take whatever position that may be required in order to advance his immediate interests. The misconceived push for term limitations is an understandable reaction to what has happened to the calling of politics in this country. I say "misconceived" because it does not make sense for us to insist that our highest legislative councils should have in them no members who have been there for more than a decade. (Would we consider it reassuring to hear a hospital advertise that it has no doctors who have been on its staff for more than a decade or to learn that the general staff of the country's military has no officer with more than ten years of service above, say, the rank of lieutenant colonel?) One consequence of term limitations, by the way, is likely to be that lawyers will become even more influential than they already are in legislatures, since theirs is still a profession which can be relatively easily returned to after a career in politics.94

92. See infra note 120. On the other hand, the private investor (and not only in mutual funds) may find it difficult to make sure he is not the beneficiary of tobacco companies' profits. 93. See, e.g., the chapter on John C. Calhoun in ANASTAPLO, ABRAHAM LINcoLN: A CONSMUTIONAL BIOGRAPHY, supra note 18, at 113. See also id. at 358. 94. On term limitations, see ANASTAPLO, THE AMENDMENTS TO THE CONSTITUTION, supra note 55, at 465. NORTHERN ILWNOIS UNIVERSITY LA W REVIEW [Vol. 19

We have been taught by Tocqueville that it is salutary that lawyers be as influential as they are in this country so long as lawyers are properly trained and are dedicated to the cause of justice and the cause of domestic tranquillity.9" These causes usually, but unfortunately not always, reinforce each other. Prudence is called for in their mediation. Thus, the common good depends upon our lawyers being both competent and patriotic, a condition which in turn depends upon that reform of legal education which would contribute both to how lawyers see themselves and to how they are seen by others who have to rely upon their invaluable services."

ADDENDUM

ON THE PROPER SHAPING OF HEARTS AND MINDS 97

[Stringfellow Barr and Scott Buchanan] were young men, barely into their forties, when they started at St. John's [College]. [Robert] Hutchins and Mortimer Adler were even younger when they took over at [the University of] Chicago. They were all buccaneers, boarding academic ships in distress, saving what they wanted and throwing overboard the rest. None of them could now be dean or president of any institution. We may be glad that we were among the seized, that our hearts and minds were caught by their fantastic schemes, that we were set upon new courses. -John Van Doren"

I.

We are privileged to have John Van Doren, a Fellow of the Institute for Philosophical Research, present this year's Law and Literature lecture. He

95. On Tocqueville and the American regime, see ANASTAPLO, ABRAHAM LINCOLN: A CONsTITUToNAL BIOGRAPHY, supra notel8., at 81. 96. On the education of lawyers, Robert H. Henry, Anastaplo's Bible as Legal Literature:A Guide to the Perplexed, or a Perplexing Guide, 23 OKLA. CrrY U. L. REV. 501 (1998). See also George Anastaplo, Rome, Piety and Law: Explorations, 39 LoY. [NEW ORLEANS] L. REV. 1, 108 (1993). 97. Introduction of John Van Doren in the Law and Literature Lecture Series at the Loyola University of Chicago School of Law, Chicago, Illinois, April 3, 1995. For the lecture given on that occasion, which has been by far the best in the Series, see John Van Doren, Poetic Justice, 1996 THE GREAT IDEAS TODAY 258 (1996). 98. John Van Doren, Scott Buchanan, ST. JOHN'S REPORTER. 10, 11 (Winter 1995). 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 397 will examine, in his discussion of Poetic Justice, the intimate (however_ concealed) relations between law and literature. Dr. Van Doren's formal education included a year of law school at Columbia University before he devoted himself (also at Columbia) to graduate studies in American history, studies for which an introduction to the law is useful, if not even necessary. His credentials in literature are even more impressive. He has, for a quarter of a century now, been primarily responsi- ble, in collaboration with Mortimer Adler, for perhaps the finest collections of articles published routinely in the United States, the Great Ideas Today volumes issued annually by the Encyclopedia Britannica. The range of coverage of his Great Ideas Today is noteworthy. These volumes keep track of the social sciences (including law), the arts and humanities, and the natural sciences (including technology). The extent and competence of this coverage are in part tributes to St. John's College, Mr. Van Doren's alma mater, which he has served in many capacities, including as a member of its board of trustees.99 Mr. Van Doren has a wide range of interests, with an ability as editor to elicit fine work from his authors. The personal touch is evident in his own work, not least in the elegant notes he writes (often by hand) to his associates. That touch is evident as well in his vivid recollections of Scott Buchanan, the formidable dean of his college when he was an undergraduate: If we thought of him it was mostly as a presence in the dean's office, then in McDowell Hall, where underneath the creaking staircase he did the work he had to, protected from interruption by Miss Strange. Some of us were called to that office for academic failure or disciplinary reasons, and the experience could be unpleasant. Most of us went by the door, thinking-I know I thought--that within was the dark center of things that one didn't approach carelessly. The dean was a man of moods, a brooding figure, of whom we were most of us afraid, and yet whom we respected-whom we revered.'0° Among the things for which this dean could be revered was the way that he could, as intellectual midwife, elicit the best from his students: He was the best kind of teacher, the kind who makes you realize not how little you know, but how much-who indeed drew out of you stuff (he liked that word, "stuff")

99. See Anastaplo, Law & Literature and the Bible, supra note 86, at 865-66. 100. Van Doren, Scott Buchanan, supra note 98, at 10. NORTHERN ILLINOIS UNIVERSITY LAW REVIEW (Vol. 19

you didn't know you had in you, so that you staggered about afterwards in a sort of daze, wondering how you had managed to say that, wondering if you understood what presumably you meant."0° This sense of wonder, we have been told, inspires philosophical inquiry."

II. John Van Doren's own role as midwife extends to his long-standing service as a patron of the arts. His contributions to the Poetry Center here in Chicago include his term as president of that organization. A sensitivity to language is critical to his remarkable effectiveness as an editor-and this may be seen as well in his own poetry. That poetry draws freely upon the heritage of the West from Homer down to our own day. For example, one of his poems, Second Intentional, draws confidently (as does his Law and Literature lecture) upon the Odyssey, the Oedipus, Virgil, the Bible, Don Quixote, Shakespeare, and Moby Dick. 3 The heritage of the West, he shows us in his poem, presents this dilemma: True, I have heard the terms, but I have not been able to decide which side I'd take if I could choose between a head that tells me I'd better keep on asking questions, and this ungoverned heart that's always trying to throw itself once for all upon an answer." He continues in this poem with a distinctively modern question: What can we do who've lived beyond the time when power and innocence could be combined? 0 5 Perhaps fundamental to the difficulties that the educated human being faces today, in yearning to take seriously the heritage of the West, is this fateful recognition:

101. Id. at 11. Compare see the text at infra notes 386 and 388. 102. See, e.g, the beginning of Aristotle's Metaphysics. 103. See John Van Doren, Poems, in 2 LAw AND PHILOsOPHY: THE PRACTICE OF THEORY, supra note 17, at 1054-57. 104. Id. at 1055. 105. Id. 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 399

There's no way back to being unaware of how the stories end.1°6 We may well wonder, therefore, whether we can ever again see and feel the greatest works of our heritage as they could once be seen and felt. And so this challenging poem concludes: We know enough of destiny to see that when we try to run beyond its reach, as yet we sometimes do, we only meet our Sphinx riding on a metaphor and daring us to guess the riddle long since written in the tale behind. 7 Again and again we can be reminded of "the dark center of things." Im.

Heart and mind are fittingly brought into harmony for John Van Doren in his response to his father's career as a distinguished scholar, critic, and poet himself.' I have many times asked him to direct me to whatever his father may have said about any writer I happened to become interested in, having learned long ago that his father is a reliable guide to serious literary works, just as his son is a reliable guide to that father's many books. Mr. Van Doren, I venture to suggest, is remarkable in his informed respect for his father's thought. It is rare to see among us so much deference paid by a talented child to an accomplished and successful parent, especially today when a doctrinaire individualism, radical libertarianism, and hence thoughtless impiety are very much the vogue. Indeed, the respect in which John Van Doren holds Mark Van Doren does honor to both father and son, reminding us thereby of the reciprocity between generations that is vital to a healthy community." Among the things that Mr. Van Doren shares with his father is a lively awareness of how literature nourishes, and is nourished by, political life and the law. It is about this productive relation, at a time when it is so fashionable to disparage politics, that John Van Doren is good enough to challenge us on this occasion with a lecture (still another poem by him) that he has been inspired to entitle Poetic Justice.

106. Id. 107. Id. at 1057. Are we intended to recall here the Sphinx's expressive tail? 108. Mark Van Doren is drawn upon in Part 11 of this Collection. 109. See, e.g., HOMER, ODYSSEY, bk. 24. NORTHERN ILLINOIS UNIVERSITY LA W REVIEW [Vol. 19

5. THE ILLINOIS BAR EXAMS"' 0

Yes, we must, indeed, all hang together, or, most assuredly, we shall all hang separately. -Benjamin Franklin (July 4, 1776)...

A. BAR EXAMINATIONS AND A PROPER LEGAL EDUCATION

I. Faculties at various Illinois law schools have discussed at some length now, and are likely to discuss even more, "academic enhancement" programs, especially for the benefit of the academically lowest twenty percent of their student bodies. My primary concern, in offering these preliminary remarks, is with such programs insofar as they are conscientious responses to the steadily declining Illinois bar-examination pass-rate for the alumni of Illinois law schools. The discussions of the programs referred to here have, thus far, been conducted by faculties separately rather than all together. The bar-exam pass-rate, too, has been much discussed by Illinois law faculties, as befits something that is regarded by some of them as a crisis. The Chicago Daily Law Bulletin reports Illinois bar-exam pass-rates of 95 percent for July 1994, 86 percent for July 1995, 83 percent for July 1996, 82 percent for July 1997, and 78 percent for July 1998.112 It seems likely that the growing number of bar-exam failures during the last five years is due, for the most part, to decisions made by the Illinois bar authorities; it is probably not due to recently-developed deficiencies in the students, in the course offerings, in the classroom teaching, or in the personal counseling at the law schools in this state. It also seems likely that the Illinois bar-exam pass-rate for the typical law school in this State will tend to be fairly close to any average that may be set by the bar authorities from time to time, whatever variations may appear among schools now and then because of special circumstances. Well- endowed schools, whether in-State or out-of-State, which can afford to be superior to most of the schools in this State, should have, in the long run, an average pass-rate higher than that mandated Statewide by the Illinois bar authorities. The superiority of well-endowed law schools will be reflected in

110. Parts 5-A and 5-B of this Collection draw upon two articles published by me: The Bar Exam and a Proper Legal Education, CHI. DAiLY L. BULL., Nov. 6, 1998, §1, at 6; Bar Examination Put Under Microscope, CH. DAiLY L. BuLL, Nov. 25, 1998, §1, at 5. 111. THE HOME BOOK OF QuOrATiONs 852 (Burton Stevenson, ed. 1964). 112. Martha Neil, Pass Rate for Bar Exam Falls for 4th Straight Year, CHI. DAILY L. BuLL, Oct. 5, 1998, §1, at 1. 1999] LA WYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 401 the caliber of faculty and library, in the amount of tuition aid, and hence in the quality of the student body."' The bar-exam pass-rates vary among Illinois law schools from time to time. The circumstances which may give one school or another an advantage come and go. (No doubt, each law school faculty can emphasize factors that seem to give its school a permanent advantage compared to other schools, but such expectations are apt to prove illusory.) The ever-more-intensive bar- review courses, tailored as they try to be to what happens to be tested for in bar examinations, can also be expected to have a leveling effect on pass-rates among the law schools in this State. It is obvious from materials in general circulation among law schools that several schools in this State are already resorting to "academic enhance- ment" programs, particularly with respect to the lowest echelon of their student bodies. If the Illinois bar authorities persist in their mandate as to the percentage of successful exam-takers that will be permitted each year, the alumni of each of the schools (except perhaps for the alumni of the "national" schools) can be expected to suffer more or less equally. In these circum- stances, the more help that schools provide to their lowest-ranking students, the more likely it is that bar-exam failures will come from the next echelon up among the students who have not had the benefit of "enhancement" programs. Of course, if all law students in this State are similarly "enhanced," we can expect the lowest twenty percent academically to remain as vulnerable as they have evidently been in recent years. (I notice in passing that the distribution of the persistent exam failures mostly among lower-echelon students testifies, whatever the effects of the much lamented "grade inflation" tendency may be, to the rough reliability of the class rankings in the typical law school.) I do not mean to suggest that the lowest echelon of law students should be neglected. That is not in their interest, nor in their teachers' or the State's interest either, especially since so many of them in Illinois law schools seem to be non-Asian minority students of one kind or another, students who (however impaired their lifelong training) are very much needed in their communities.'t 4 But individual law faculties, in properly concerning themselves about such deprived students, should not worry as much as they are evidently inclined to do about bar-exam pass-rates, rates which they can probably do relatively little about on their own in the short-term.

113. The better endowed a law school is, the more likely it is that its students can be helped to devote full time to the study of law. 114. I have discussed, in my 1997 and 1998 South Dakota Law Review articles, the plight both of minority law students and of their would-be champions. See supra notes 14, 39. See also supra note 55; Anastaplo, On Obsession, supra note 39. NORTHERN ILLINOIS UNIVERSITY LA W REVIEW [Vol. 19

Far better, it seems to me, would be for law faculties to address themselves, much more than they usually do, to the general academic caliber of their respective schools. This would better equip students to make good use of their legal education whether or not they are destined to be licensed to practice law. In short, the more faculties concern themselves with preparing students for the bar exam, the less serious (and thus the less useful, if not also the less moral) the legal education that may be offered is likely to be.

n. The underlying problem here is suggested by a question that could be asked by faculty at most American law schools today: "When was the last time that we had serious discussions among ourselves about what the law is and what it should be?" Among the responses by faculty to the current crisis that could contribute to raising the general academic caliber of the typical school would be experimentation with measures that promote a much livelier intellectual life as a community of scholars and students than that which is encouraged by ever-busier faculty schedules and by ever-greater specialization. Nor, I venture to add, are law school faculties helped to be more thoughtful by their growing infatuation with electronic "improvements" that cater to the ephemeral, that tend to subvert both mental discipline and writing ability, and that reinforce an already-evident diffusion of efforts. These "improvements" include the Internet, e-mail, and the mechanization of legal "research." Symptomatic of what is happening is how few unedited judicial opinions the typical law student everywhere is now expected to read." 5 What, given its quite limited resources, are the measures that might promote the intellectual life of the ordinary law school? Should not faculties consider, for example, dedicating much of the time now consumed everywhere by faculty meetings to public lectures by the faculty on law-related topics, school-wide lectures (followed by searching discussions) in which all faculty and all students would be expected to participate on a regular basis? Two or more law schools might even collaborate in some of these efforts. This sort of thing could encourage a community of serious discourse among us about the law. It could also help faculties to develop the kind of scholarship that would contribute to the general academic caliber and eventually to the reputation of their schools.'6

115. I have, in my constitutional law courses, taken to discussing only one or two full opinions a week. These discussions are supplemented by my two constitutional commentaries. See supra note 55, infra note 121. See also the General Introduction in ANASTAPLO, 1 LIBERTY, EQUALITY & MODERN CONSTITUTIONAUSM, supra note 74, at xi. 116. Some of this kind of collaboration may be seen in conferences organized by outside 1999] LAWYERS,9] FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES

in. However this may be, a critical challenge faces almost all, if not all, of the law schools of this State. Are the bar authorities right in believing, as they sometimes seem to believe, that a substantial number of the students routinely admitted to the State's law schools should never be permitted to practice law in Illinois, no matter how often they take the bar exam? If Illinois is becoming more like other States in this respect, that only raises a question about what other States have been doing all along. If the bar authoritiesare moved here primarily by a concern about the competence of the students being trained in this State, then we (for the sake both of these students and of the clients they might serve) should be similarly moved. But if, as is sometimes said to be more likely, the bar authorities are moved primarily by the bar's (economically self-interested?) concern about the number rather than about the competence of lawyers in this State, should not the bar authorities be obliged (independent of anti-trust inquiries) to justify themselves publicly much more than they have thus far, especially since many people in this country are believed to be without adequate legal representation day in and day out? Be that as it may, is there not something unconscionable about mandating substantial failure-rates, automatically discounting thereby the ability of a significant number of applicants for admission to the Illinois bar, applicants who have been deemed good enough by law faculties to study in and to graduate from decent law schools? Or is it the law schools who are unconscionable in admitting all too many of the students that they do, students who (after spending up to as much as a hundred thousand dollars on their legal education) are likely to have considerable difficulty passing any rigorous bar examination? If the Illinois bar authorities are permitted to continue as they have in recent years, should the seemingly arbitrary limitations imposed by them be transformed from percentages into numbers? Such numbers, however derived, might help guide the State's law schools in turn to admit only as many (their "quotas," in effect) as would be highly likely to be able to secure immediate admission to the bar. Perhaps this is what the bar authorities, as conscientious educators themselves, are now trying to tell us. Should not the law school faculties of this State say and do more to help the bar authorities clarify what they are indeed trying to do and why? I again emphasize that if the bar authoritiesare primarily concerned about the competence offuture lawyers,

organizations, such as the Federalist Society today and the National Lawyers Guild formerly. But usually, in such situations, it is the heart more than the mind that is addressed. See the Addendum to Part 4 of this Collection. See also Part 2 of this Collection. NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 19 we should probably welcome their initiative. If, however, many of the applicants who fail on any particular occasion eventually pass (if they persist), how is an enduring competence either promoted or tested for? Do we see here, then, only a form of hazing? Or should we recognize that the bar examiners, in collaboration with the bar-review businesses, constitute a somewhat separate and largely unsupervised system of legal education in the State? Sustained consultation between law faculties and the bar authorities does seem to be called for here, not least because we should all be concerned about what may discourage minority representation in law schools and hence in the legal profession. What is essential here is that there be, in Malcolm Sharp's words, "a rational and known course of questioning applicants for admission to the bar.".... The one thing that is beyond question, and hence reassuring in these troubling matters, is that the faculties of Illinois law schools do care very much for their students. How best to minister to the interests of such students, and to the interests of the community that faculties, bar examiners and students should all serve, is very much the question, and not only during the current instructive crisis.

B. THE BAR EXAM EXAMINED I am grateful to Professor Michael J. Polelle for his challenging article, "Professors Must Examine Role of Bar Exam.""' He identifies issues in such a way as to encourage me to clarify what I attempted to say in my recent article." 9 I A suggestion made in my article bears emphasizing here: a distinction should be made between, on the one hand, what law professors should be primarily concerned with in their classes and, on the other hand, what they should say and do in response to the administration and consequences of the bar examination in this State. One way of putting this distinction which dramatizes the problem we confront today is to say that law faculties should not concern themselves with preparing students but rather with preparing bar examiners for the bar exam. The law faculties of this State should be primarily dedicated to doing what they can do best, providing thereby what students of the law are not likely to get anywhere else after they graduate. That is, law faculties should try to teach the law in the most serious way. Properly-oriented bar examiners

117. See, e.g., ANASTAPLO, THE CoNsTrrUTIoNALIST, supra note 79, at 333. 118. Michael J. Polelle, Professors Must Examine Role of Bar Exam, C. DAiLY L. BU.., Nov. 16, 1998, at 6. 119. That article, published in the November 6, 1998 issue of the Chicago Daily Law Bulletin, is drawn upon for Part 5-A of this Collection. See supra note 110. 1999] LAWYERS. FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 405

should not want the law schools to turn into virtual bar-review businesses. But this need not keep law faculties, who are naturally concerned with the career interests of their students as well as with the reputations of their schools, from studying and then explaining what the bar examiners are doing and why. One cannot reasonably determine how law schools should adjust to bar- exam pass-rates until one has a reliable notion of what has caused the steady decline in pass-rates we have seen in this State during the past decade. Related to this is the problem of why pass-rates continue to differ significantly from State to State even though both the law schools training the students and the bar exams being administered are coming to be substantially the same. everywhere in this country. The anti-trust implications here are not trivial, especially now that law firms can advertise and otherwise conduct themselves as commercial enterprises. 2° Responding to fluctuating, if not even arbitrary, pass-rates by making serious adjustments in law-school offerings, including recourse to elaborate "academic enhancement" programs, may only make matters worse in the long run, partly for the reasons I sketched in my last Law Bulletin article [Part 5-A of this Collection]. Of course, the faculty of the typical law school in this State may be reassured whenever its first-time takers' pass-rate happens to go up compared to the pass-rates of other schools. But such superiority is likely either to be temporary or to be secured by diverting time and resources from the best legal education. Among the matters to be considered here is what the bar exam really tests for and accomplishes if, as it has been reported, almost all who persist in taking the bar exam in this State eventually pass. How much of what is "learned" by those cramming for the bar exam, especially for a second or a third taking, is likely to be retained and put to good use thereafter by lawyers? Do we have here little more than a somewhat expensive initiation ordeal? Or is it expected that the difficulties graduates now encounter will have a salutary effect on the admissions policies, the course offerings, and the grading practices of the typical law school in this State? And again I must wonder, as I did in my last Law Bulletin article, How will all this affect the number of "minority" lawyers in this State? Also to be considered by those who would adjust law school offerings and practices to bar-exam needs is the fact, if it is truly a fact, that students

120. The extension of First Amendment protection to commercial advertising is but one of many dubious readings of that amendment by the United States Supreme Court. See, e.g., ANASTAPLO, THE AMENDMENTS TO THE CONSTITUrION, supra note 55, at 47; ANASTAPLO, HUMAN BEING AND CrrI7EN, supra note 6, at 117; ANASTAPLO, THE CONTrUTIONALIST, supra note 79, at 93. NORTHERN ILLINOIS UNIVERSITY LA W REVIEW [Vol. 19 from the very best schools nationwide tend to have a very high pass-rate for first-time takers, no matter what the States are in which they take the bar exam. And yet it is precisely in those schools that there is said to be the least concern among the faculty about preparing graduates for the bar exam. Are not those schools as good as they are in part because they can afford to have faculty who do pursue intellectual and moral interests in their courses, investigating with their students what the law is and how it should be thought about? I, for example, remain profoundly grateful that my constitutional law teacher, a half century ago, was William Winslow Crosskey,"' rather than someone who was conscientiously concerned to prepare his students for what bar examiners somewhere might ask about the conventional constitutional law doctrines of that day. The standard bar-review courses properly supply guidance to the legal doctrines that bar examiners happen to be interested in from time to time. Such courses, if sensibly organized, are apt to be of most use to those applicants for admission to the bar who come to them with that solid grounding in the law which only the law schools and the best legal treatises can provide at this time. One practical way law that professors may combine sound legal education with useful bar-exam advice is for them to counsel their students to read as soon as they can in the first year, and two or three more times there- after while still in law school, William Blackstone's Commentaries on the Laws of England, including the many obviously obsolete parts of those four volumes. Indeed, I have yet to meet anyone thoroughly familiar with Judge Blackstone's Commentaries who ever failed the Illinois bar examination.'

123 6. THE PURSUIT OF HAPPINESS AND THE PRACTICE OF LAW

It may be this my exhortation Seems harsh, and all unpleasant; let it not,

121. On this teacher, see George Anastaplo, Mr. Crosskey, The American Constitution, and the Natures of Things, 15 LoY. U. CHI. L.J. 181 (1984). For his influence, see GEORGE ANASTAPLO, THE CONSTITUTION OF 1787: A COMMENTARY at 333 (1989); ANASTAPLO, THE AMENDMENTS TO THE CONSTrrUTION, supra note 55, at 457. See also Malcolm P. Sharp, Crosskey, Anastaplo and Meildejohn on the United States Constitution, 19 U. CHI. L. ScH. REC. 3 (1973). Mr. Crosskey taught us, at the University of Chicago Law School, that our Constitution should be read with the care required for any well-crafted text. This teaching both encouraged and equipped me to prepare what may be the first systematic commentary on the Constitution (independent of judicial interpretation) since the Federalist. See supra note 55. 122. On Blackstone, see George Anastaplo, Nature and Convention in Blackstone's Commentaries: The Beginning of an Inquiry, 22 LEGAL STUD. F. 161 (1998). 123. A talk given at a Luncheon Meeting of the Chicago Law Firm of Altheimer & Gray, Chicago, Illinois, August 14, 1987. 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 407

For gentle son, I speak it not in wrath Or envy of thee, but in tender love And pity of thy future misery. And so have hope, that this my kind rebuke, Checking thy body, may amend thy soul. -An old man to Faustus"

I.

The two classes in America most handicapped today in the effort to secure an enduring happiness are, as measured in economic terms, the bottom ten percent and the upper ten percent. Particularly deprived, among the bottom ten percent, are those born in this country who have inherited poverty; particularly deprived, among the upper ten percent, are those who have made their own money. Of these two classes, one is apt to be so materially impoverished as to be crippled in thought and spirit; the other is apt to be so spiritually impoverished as to make its material abundance, whether earned or inherited, a curse rather than a blessing. The disabilities of the bottom ten percent can infect the entire system, especially if the community at large should be callous about the sufferings of the downtrodden. The poorest among us can be so limited in their opportuni- ties, and so neglected in their education, that they may not know what they are missing, except to the extent that they are provided misleading images of "the good life" by the television industry which routinely exploits them. 25 On the other hand, the misfortunes of the upper ten percent can corrupt the entire system insofar as such people are held up as models to emulate. The upper ten percent have too many choices, which means among other things that their food can be as bad for them as is the food of the bottom ten percent. They are eminently mobile and can travel a lot, which often means that they have no true homes, no stable communities in which they are rooted. In virtually everything they do, think and say, these people are very much the prisoners of fashions. Thus both the rich and the poor tend to be closed off from serious education and from serious politics. (Education is something which is difficult for them to take seriously, except as means of serving the drive to protect their wealth by adding to it more and more.) The life of the poor is distorted too much by necessity, which can promote a low view of things. On the other hand, the rich easily come to believe that they can altogether avoid

124. CHRISTOPHER MARLOWE, DOCTOR FAUSTUS act 5, scene 1. 125. See supra note 54. NORTHERN ILLNOIS UNIVERSITY LAW REVIEW [Vol. 19 necessity, buying their way around one difficulty after another. This may be seen most pathetically, perhaps, in massive efforts to overcome, or at least to 1 26 conceal, the consequences of one's mortality. Both the poor and the rich, then, tend to be unduly materialistic. Neither is properly disciplined by circumstances and expectations. Neither is likely to be inclined toward that moderation upon which an enduring happiness usually depends.

II.

Since everyone is, or at least ought to be, aware of the disabilities of the bottom ten percent, while hardly anyone is aware of the misfortunes of the upper ten percent, it should be instructive to consider further here, with a view to the pursuit of happiness, the limitations of the rich. The rich include, of course, not only many of your clients but also the senior partners of the major law firms in this country today. How much the rich are prisoners of fashions is suggested by the salaries routinely paid these days by the major law firms to young men and women who come to them from the law schools. These salaries, which, as you know, can range from $60,000 to $75,000 a year in our larger cities, put young associates disturbingly close in income to the upper ten percent in this country, with reasonable prospects held out to them for tripling those salaries within a decade. Need I remind you that these starting salaries are paid to youngsters in their middle twenties who don't really know much? I have, in recent years, seen these youngsters close-up in law schools as diverse as those at the University of Chicago and Loyola University. And I have, as an author, repeatedly dealt with them in their capacities as all-too-often presumptuous (however hardworking and good-intentioned) editors of law reviews all over the country. I cannot help but wonder, therefore, about the judgment of the partners who have allowed themselves to get into situations which "compel" them to pay such money to youngsters, many of whom have never had a full- time job before. Of course, the oppressive overhead is to be financed and a lot of money is to be made by using these associates-and for that reason "partnerships" embracing hundreds of lawyers are not uncommon these days. It is strange that the recent law school graduate can so quickly match the income of ordinary law school professors with two to three decades more experience. I hasten to add that I do not believe law school professors as a

126. On the yearning for personal immortality, see Anastaplo, Law & Literature and the Bible, supra note 86, at 738. See also ANASTAPLO, HUMAN BEING AND CrIZEN, supra note 6, at 214; the text at infra notes 234, 272; the text at infra note 217. 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 409

class to be underpaid. (Permit me also to add, however, that I do believe paralegals in the larger firms in this city to be underpaid, a disparity made even more acute when they compare their salaries to those of the equally young lawyers with whom they routinely associate.) The law school graduate can be usefully compared as well with the student who completes five or six years of doctoral studies at a good university. The new Ph.D. is apt to know much more about a serious subject, is more apt to have done serious reading and serious writing, and is more apt to become a true colleague of his own professors within a few years. Even so, the new Ph.D. will routinely begin working in a college at one-third the salary of a beginning law-firm associate; and he knows that most college professors in their fifties and sixties are not paid what law-firm associates can be paid in their first few years. Something is markedly out of joint in these relations. But then, perhaps there is a rough justice at work here, even though the people both paying and receiving the exorbitant salaries available to law firm associates do not appreciate that the life of the scholar who earns a proper doctorate is likely to be intrinsically more satisfying in the long run than the life of those exploited men and women who serve not only as fledgling associates but also as senior partners in the best law firms in this country.

III. The remarkable salaries of new associates are primarily of interest to us on this occasion as symptomatic of a general condition in need of attention. Consider, for example, what the salaries of senior partners must be if the salaries of associates should be so inflated. We need not concern ourselves with such aberrations as Sullivan & Cromwell, which seems to believe that its senior partners are worth, on an average, $600,000 a year. The much more than a quarter of a million dollars a year paid annually to many senior partners elsewhere should remind us of what has happened to the sense of proportion of the legal profession. There is something simply absurd about an allocation of resources which finds not a few lawyers routinely making more in one year than a good public school teacher can make in a decade. One must wonder about the lessons being taught thereby. My concern on this occasion, however, is not about what teachers do and do not make. I keep making comparisons to academic alternatives because I do happen to know something about academic life, a way of life which is much to be preferred, and not only for the leisure it offers, to what is now available in most other professions as well as to what is available in business. I notice in passing that what is happening in law generally does have its effects in law schools: not only are Students impressed by the "success" of the NORTHERN ILLINOIS UNIVERSITY LA W REVIEW [Vol. 19 graduates who go to the large firms, but so are their professors. What is happening in the larger law firms can infect the profession at large. Thus, some have argued, there is something scandalous about the amount of ''consulting" routinely done by some professors in the most prestigious law schools in this country, consulting which permits them to double or triple their already generous salaries for "full-time" teaching. Fortunately, schools of the rank of Loyola do not yet have to worry much about this particular problem.27 I remind you that my point of departure on this occasion is the impover- ishment of the upper class in this country. I have pointed out obvious misjudgments about the worth of people at both the top and the bottom of the hierarchy of lawyers in the large urban law firm. I do presume to match my judgment against that of "the market": the senior partners are men of my own generation, including some with whom I personally went to school; some of the better associates are familiar to me as recent students. In neither case can I say that these people are truly worth what they are getting. When a young partner tells me that he charges $250 an hour for his services, I cannot help but feel that something is out of whack. I must say more, of course, lest it be concluded that I am the one who does not know what is really going on and why.

IV. One thing that is going on with new associates is that their salaries do permit them to pay off the considerable debts they have accumulated in school. There is, of course, a good deal to be said for that. Also, it should be said, there is a commendable meritocracy in the larger law firms, as there is generally in law schools: what one can do is likely to matter more than who one's relatives are. Thus, law firms reach out for what are considered the best graduates. If we assume that they do get the best, then we must wonder what is likely to happen to the best. If I am correct, what is likely to happen is that the best are diverted from more serious lives, including productive lives in public service, a diversion which can have adverse effects not only on their personal happiness but also on the common good. The young lawyer works very hard-far too hard, in my opinion. He may not appreciate, however, how hard many of his elders at the bar must also work, not only to stay at the top but also because they do not know what else to do after decades of intepsive efforts. I myself probably put in more hours

127. It probably should be added that each of these situations should be judged on its own merits. No doubt some subjects may be better studied in practice than in the Library. Whether such subjects should be prominent in a law school curriculum remains a question. 19991 LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 411 at a desk each week than most lawyers do-but I still feel that they work harder than I do. I am reminded here of something one of my teachers used to say, "A man who would not teach for nothing should not be teaching at all."'" How much of what most lawyers do would they continue to do if they were not paid for it? When one does something primarily for the money, that is really work. I need not remind you of what the hours and pace of the big-time lawyer's job do to a decent family life. Making matters worse here is the likelihood that less than one-third of the associates hired by a large law firm will ever make full partner. (This was not true, I am told, when we finished law school almost four decades ago.) This fact is not unrelated to the inflated salaries of both associates and partners these days. One consequence of the present dispensation is that the associate is pressed into early specialization. Fewer and fewer of them get an opportunity to grasp the whole of the effort to which they contribute. The youngster in his late twenties should be encouraged to recognize that he has a lot to learn: he needs to deepen his legal training. Instead, he is trapped by his specialty into learning more and more about less and less-and this can give him a distorted sense of reality, especially if he comes to believe that he must know something important, and be someone of importance, because he is paid a great deal of money. Occasionally the youngster may perceive that his level of income and expenditures has made a prisoner not only of him but also of his family. When money is made as much of as it is today-when money is as much as it is today-it is likely that people will become insatiable in their desires. When "the pursuit of happiness" is looked to for guidance, much more is apt to be made of the pursuit than of the happiness, that happiness which has traditionally been intimately linked to the life of the virtuous. We should not be surprised to discover that lawyers may not be as happy as they used to be. Certainly, there is a much greater emphasis now upon the law as a business, with the hours billed made much of, and with clients (and even lawyers already in other firms) being avidly competed for. All this is reflected in the reported decline in pro bono services in the better law firms. Happiness is that to which all human activity is properly directed. But when genuine happiness is lost sight of, and the pursuit itself is what engages energies, then obsession or corruption becomes likely. The emphasis upon pursuit itself, and the emptiness that that can lead to, may be seen, for example, in those who engage in one love affair after another. It is such an

128. On this teacher, Malcolm P. Sharp, see the text at supra note 42, as well as the article cited there. NORTHERN ILINOIS UNIVERSTY LA W REVIEW (Vol. 19 approach which takes the form of a new slavery, with desire itself, and hence all desires, both legitimated and cheapened.

V. We hear much these days of "the fast track," and this can no doubt appeal to the young lawyer of spirit. But, we should remember, race tracks do not really go anywhere-and those who are put out to race upon them do little more than provide spectacles (and apparent opportunities?) for others. It is remarkable how readily the more successful practitioners in law and in the other professions have become accustomed to a world of opulence, even as they surrender genuine leisure. (One wonders, for example, how many practitioners can afford a cot in their offices for a refreshing nap.29) Consider what happens when one flies first class, a privilege I have occasionally been "awarded" when an airline has over-booked. One cannot, in good conscience, simply read, write, or sleep as one ordinarily would in coach class; rather, one is almost obliged to take advantage of all the material goods lavished upon one. The same sort of thing happens to children in affluent families: they are not permitted to have only one or two toys to cherish and to make good use of. Or, to take another example: in 1960, when I was still a graduate student with very little money, my wife and I, with three children, managed to scrape enough together for a six-month camping trip, of some 16,000 miles, that ranged from Paris to the Mediterranean and then behind the Iron Curtain into Russia and thereafter across Scandinavia and over to Great Britain-a grand tour that neither we nor, I dare say, any partner in this law firm, can "afford" to embark upon today. Or, to take still another example: how many books can one "afford" to read for "pleasure" alone, when one could be making a couple of hundred dollars an hour in a law library with the same time? I should at once add, nevertheless, that senior partners today are more apt than new associates to maintain a sense of proportion about such matters. After all, none of them started their legal careers with the fabulous salaries available today for beginners. Thus, the older generation at least has had an opportunity to establish habits of restraint, habits which (I grant you) are put under considerable pressure, at home and in the office, when big money does start rolling in. It is not generally appreciated how difficult it is to use wealth sensibly and in a becoming manner. Indeed, big money, with its attendant interests and associations, tends to have a corrupting effect. Greed can all too easily become the order of the day, as may be seen in the astonishing refusal of the Pennzoil Company last winter to snap up the two billion dollar settlement offered by the Texaco Coin-

129. See ANASTAPLO, THE AMERICAN MORALIST, supra note 44, at 575. 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 413 pany-and this despite the fact that it should have been obvious from the beginning that the ten billion dollar verdict in that case was a dubious fluke."3

VI. I must confess that my underlying concern here is not primarily with the fate of lawyers and law firms but rather with the effects of recent develop- ments upon the community at large. The steadily rising costs of legal services and the decline in pro bono work do not bode well for the ready access to justice for many people. 3' Faced by the "need" to bring in ever more dollars, lawyers are tempted to be less discriminating about the clients they accept and the causes they serve. Also, much of what is done, especially in corporate practice, often seems to verge on mere "make-work." One must wonder what the desperation of the bottom ten percent, on the one hand, and of the upper ten percent, on the other, will do to the middle class upon which a healthy republic depends today. Fear of failure is apt to increase as is the emptiness of success-and this is likely to make confident self-governance more difficult. One must also wonder about what the community at large loses when so noble a profession as the law becomes so business-oriented. One can see in the current Iran-Contra controversy what happens when politics and government come too much under the spell of "hardheaded calculation."'31 2 Making matters even worse is what has been happening to business itself, with the dramatic emphasis upon financial considerations in the routine conduct of large corporations. These considerations all too often become much more important than making and selling the product of the company.'3 3 All this suggests, among other things, that neither corporation officers nor the lawyers who service them are sticking to their proper tasks. Thus, what is happening in the better law firms no doubt reflects what is happening in the corporate world. But it is worse in the law firms, because something vital is lost for the profession: that dedication to justice and that sense of service by which the finer lawyers have been guided for centuries. One effect of all this is the growing difficulty in recruiting reliable judges.

130. See supra note 91. 131. See, e.g., Ramsey Clark, The Lawyer's Duty of Loyalty: To the Client or to the Institution?, 16 LoY. U. CHI. L.J. 459 (1985). 132. On the Iran-arms and Contra-aid controversy, see ANASTAPLO, ThE CONTrrUTION OF 1787, supra note 121, at 32-33, 317-19 n. 85. 133. Another symptom: in 1986, the five top investment bankers averaged $83 million annual income, a wonderfully absurd figure. This is not unrelated to the competition that law firms have faced from the investment banking industry for recent law school graduates. NORTHERN ILLINOIS UNIVERSITY LA W REVIEW [Vol. 19

Another, even more serious effect, is that money takes the place of honor as testimony to one's virtue." That which is happening to the legal profession is happening also to the medical profession. In both professions today more and more money is being made by the practitioner, while at the same time the leading practitioners sense that they are losing control of their arts."a5 A sense of helplessness is all too frequent, then, even among the most talented. Attempts are made to bluster past these troubles, as may be seen in the recently-quoted statement by a partner in a prominent Chicago law firm: "We're ruthlessly capitalistic. We're here to practice law and make money, and that's about it.'' " But that will hardly do. For one thing, the law is really second-rate as a business: one can, with the same talents and effort, do even better in straightforward business; and one can be much more the boss rather than the servant of entrepreneurs that the lawyer now tends to be. As a business, furthermore, the practice of law is quite insecure, not only for associates but also for partners, especially when clients are as volatile as they now are. Besides, do many lawyers start out to be businessmen?'37 Did they not once believe that law is truly a nobler calling than that of the businessman? Was money really their principal aim in the beginning? The Greylord exposure of judicial bribery here in Chicago merely reminds us of what many, perhaps most, of us have long known about what happens when money is permitted to talk too much. There is, in any event, something about the life of the lawyer, as it has developed, which is simply less satisfying than it once was for the better men and women drawn to the profession. That cannot help but have a dangerous effect on the morale of our intellectual and spiritual leaders of the future. 3'

VII. What, if anything, can be done about all this? One should begin by calling into question what is considered the realistic, hardheaded approach of many so-called leaders of the bar. Certainly, one cannot depend upon the

134. See the text at supra note 61. 135. On the discipline of medicine, see ANASTAPLO, THE AMERICAN MORALIST, supra note 44, at 389. 136. Gay Jervey, Winners Without a Leader, THE AMERICAN LAWYER, July-Aug. 1987, at 98. 137. On "realism" and the practice of law, see George Anastaplo, Mr. Justice Black, His Generous Common Sense, and the Bar Admission Cases, 9 Sw. U. L. REV. 977, 1027 (1977). 138. It does matter what is believed and by whom. See ANASTAPLO, CAMPUS HATE SPEECH CODES, NATURAL RIGHT, AND TWENTIETH CENTURY ATROCrIES, supra note 27, at 81 (on the Bosnian atrocities during the past decade). 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 415 "market" to correct the distortions we have seen. The market cannot be depended upon, if only because the market cannot know, and is not likely to want, what the more thoughtful among us can know and should want. There has been, I believe, a failure in legal education, beginning perhaps with the repudiation in most law schools early in this century of that natural- right teaching which could help lawyers remain sensible about what they are and should want.'39 This failure in education has meant, among other things, the production of more self-centered and consequently less thoughtful lawyers. And this has meant, in turn, that lawyers can be expected to become more and more skilled in their techniques and less and less competent in their more important capacities. I cannot help but wonder (returning, in closing, to my immediate circumstances) what the effect would be if all attorneys in private practice were obliged, by law, to restrict themselves to partnerships, including associates, of no more than, say, two dozen lawyers. How much of the distortion and even corruption I have been talking about would thereby be moderated? It does seem to me that a return to genuine professional relations, however that is brought about, would contribute to a more humane life at the bar, a life that would be more likely to provide lawyers an opportunity to secure for themselves and their families an enduring happiness.

7. PROFESSIONAL ETHICS AND THE BIBLE14°

Get thee out of thy country, and from thy kindred, and from thy father's house, unto a land that I will show thee: And I will make of thee a great nation ... 41 -The Lord1

I.

A "classic" is something enduring, that is solid and always challenging or instructive. Nature somehow asserts herself through a classic in a

139. On the natural right teaching, see George Anastaplo, Natural Law or Natural Right?, 38 Loy. L. REV. 915 (1993); ANASTAPLO, HUMAN BEING AND CITIZEN, supra note 6, at 46, 74; Anastaplo, CAMPUS HATE-SPEECH CODES, NATURAL RIGHT, AND TWENTIETH CENTURY ATROCrrIES, supra note 27, at 127, 147. On legal education and graduate studies today, see George Anastaplo, Law & Politics, 25 POuLTICAL SCIENCE REVIEWER 127 (1996). 140. A talk given at the Loyola University of Chicago School of Law, Chicago, Illinois, September 10, 1996. 141. Abraham is addressed thus by the Lord. Genesis 12:1-2. NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 19 particularly compelling way. 42 The most obvious classics for us are those masterworks that have come down to us from ancient Greece and Rome. Also "classical" (and hence somehow natural?) is much of the Bible. That is, it presents characters and episodes in such a way as to make them recognizable and memorable. We can learn from the Bible how people feel, think, and act about both eternal things and mortality. We are instructed thereby in how to conduct ourselves as, say, lawyers. The Bible is, therefore, a great (now largely untapped) resource. It is especially important because so much in the life of the West has long been keyed to the Bible. The Biblical mode of thinking and feeling permeates Western civilization. It is for us, therefore, "natural" to turn to the Bible in order to come to know ourselves better. 43

II. It is not implausible to argue that Abram (or, as he comes to be known, Abraham) is the first human being to be taken seriously as what we would call a "personality" in the Bible. His famous predecessors tend to be types. Adam, for example, is Man.1" Abraham is in the ninth generation after the Flood. Human beings, it can be said, are by then firmly reestablished on their new footing, a footing which can seem to us to be very old, permanent, even natural. Human beings, therefore, can now be provided for in a new, enduring way, and for this a community (or people) has to be worked with, not just individuals and families, however much a people has to build on extended families. Abraham's character is indicated in a variety of related settings. Perhaps we have to be prepared thus for his culminating deed, the binding of Isaac. 45 We notice, first, his dealings with the dispute between Lot's herdsmen and his own as to the lands to be grazed by their flocks. 46 Abraham will not quarrel with Lot. It has been said of the way that Abraham conducts himself on this occasion that he "shows a natural magnanimity in the largesse of his reply" to

142. See GEORGE ANASTAPLO, THE ARTIST AS THINKER: FROM SHAKESPEARE TO JOYCE 284 (1983). 143. "Anastaplo often praises Biblical religion as promoting a more sound understanding of things than is the case for other religious traditions.. ." Larry Amhart, George Anastaplo on Non-Western Thought, 26 POL Sci. REvIEwER 214, 236 (1997). On Biblical thought, see Anastaplo, On Trial, supra note 75, at 767, 821, 854, 882; Anastaplo, Law & Literatureand the Bible, supra note 86, at 517. 144. See Anastaplo, On Trial, supra note 75, at 767. 145. Id. at 854. 146. See Genesis 13:7-11. See also George Anastaplo, Slavery and the Constitution: Explorations, 20 TEX. TECH L. REV. 677, 783 (1989). 19991 LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 417

Lot. 47 Does this self-abnegation on Abraham's part prepare the way for The Binding, where we see him prepared to sacrifice the best of his own for the sake of something even higher? Lot chooses, and ends up among the vulnerable cities of the plains, pitching his tent near Sodom. (Later we find him living in a house in Sodom.) Abraham settles for what is left (that is, Canaan), which "happens" to be the place that God had intended for him. Does Lot's choosing as he did suggest that Canaan is not "naturally" attractive? (One can get that first impression about much of Israel today.) Or is it that Lot had heard somehow of the promise made by God to Abraham with respect to Canaan?'4 m1.

Does Abraham's bargaining with Lot prepare him for his bargaining with God about the fate of Sodom? 49 Abraham is quite deferential in talking to God, but he does press his case. He is concerned about the fate of the handful of just men in the doomed city. That ten just men could not be found shows how bad off things must have been there.'" It has been noticed that Abraham asks for justice, not mercy.' 5' It has been suggested that Abraham learned on this occasion "the divine art of accommodation... through the true art of questioning."'5 2 But, it should be remembered, Abraham had already exhibited a spirit of accommodation in his dealings with Lot. Were there a few just men in Sodom (aside from Lot, who is provided for specially)? If so, those few evidently perish along with the wicked majority. Perhaps this is intended to remind us of how dependent we all are upon a community, benefitting from it much of the time and suffering with it once in a while.

IV. What is Abraham moved by in this "exercise"? Is it by a concern for the few just men in Sodom, even if he does not know them personally? He, as a

147. Robert Sacks, The Lion and the Ass: A Commentary, on the Book of Genesis (Chapters 11-20), 9 INTERPRETATION 1, 10 (1980). 148. See the text at supra note 141. 149. See Genesis 18:16. 150. Why ten? Does this anticipate the minyan which serves as the irreducible core of the worshiping community? 151. See Sacks, supra note 147, at 56. 152. Id. at 63. NORTHERN ILUNOIS UNIVERSITY LA W REVIEW [Vol. 19 just man, speaks up for justice. His justice, as well as a sense of kinship, may be reflected as well in how he had dealt with Lot, who was responsive.' Is Abraham also trying to learn what God is like? For example, what does God's sense of the just lead to? Ultimately, Abraham may be learning not only what justice is, but also what the fate can sometimes be of good people in the world. Does all this suggest that the just are not "automatically" protected? Self-interest, as well as a respect for justice generally, should move the just to make the community better. It can be said that Abraham is as confident, and otherwise as impressive, as he is because of his faith. There is something reliable at the core of his being. One can see, as his story unfolds, why he was chosen by God. We are told, when we are introduced to Abraham, that he is chosen, but not why. Nor are we ever told how he got to be the way he is. That can be a mystery, especially when one notices vital differences between parent and child, between siblings, and between cousins."54

V. We have worked with one strand woven in the account of Abraham. But there is, along with this "softer" strand, a "tougher" strand as well. This may be seen in how Abraham mobilizes for war when Lot and his people are captured.'55 Abraham is impressive in his response. He is vigilant in saving his kinsman. He overcomes an enemy which had been victorious elsewhere, winning thereby the respect of other leaders and perhaps serving his self- interest in other ways as well.'56 Yet he is not foolhardy in how he conducts his affairs: he can figure out the odds. On occasion he can miscalculate, as may be seen in the episodes in which Sarah is identified as only his sister (in dealings with the Pharaoh and with Abimelech). Although Abraham is shown here to have limitations, these episodes nevertheless prove to be productive for him.'57 Does Abraham's toughness make his compassion and justice more responsible and effective than it might otherwise be? What serves to weave the soft and tough strands together in a proper combination? The Classical

153. The just (as in Abraham?) may be illuminated by comparing it with the noble (as in David?). On the noble and the just, see ANASTAPLO, THE THINKER AS ARTIST, supra note 23, at 182. On King David, see Anastaplo, Law & Literatureand the Bible, supra note 99, at 641. 154. On the differences between Esau and Jacob, see Anastaplo, Law & Literatureand the Bible, supra note 86, at 568-77, 582. 155. See Genesis 14:12. 156. See Genesis 14:17-24. 157. We see again and again in the Hebrew Bible that wealth, or a concern for the goods of this world, is not disparaged among the Patriarchs. Compare Part 6 of this Collection. 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES answer to this practical question would have been prudence and the Idea of the Good.'

VI. This practical question is critical to any effort to understand that supreme show of toughness exhibited in The Binding. The Abraham who had moved vigorously to save one kinsman is now willing to sacrifice another.'59 Why did not Abraham try to bargain here with God (arguing with him, man to man), as he had with respect to the impending destruction of Sodom? Did he expect things to work out somehow? Was this implicit in his faith-and in the Promise that had been made to him? Is there not something dreamlike about this episode, which may even mean that Abraham is somehow in control?"6 The way has been prepared, by the author, for all this. If The Binding had been given first or had been all or almost all that we were told about Abraham, it would have been simply, perhaps impossibly, monstrous. This time the testing is of Abraham by God, whereas during the Sodom episode it can be said to have been the testing (or investigation) of God by Abraham. Somehow, the provision of the ram as an alternative to Isaac is not anticlimactic. The decisive testing had been accomplished. Nothing would be gained, and much would be lost, by going further with the human sacrifice. More anticlimactic is that we are told later on, almost in passing, that Abraham begat a half-dozen other children after Isaac."" Perhaps this points up the importance of Sarah, if not of women generally, in the entire story of the people of Israel, something that becomes quite evident in the career of Rebecca.' 62

VII. When all is said and done, does there not remain something "unnatural" about Abraham's willingness (even if only apparent or "verbal") to sacrifice Isaac? Does this remind us of the ultimate divergence between Revelation and 63 Reason?

158. On the Idea of the Good, see ANASTAPLO, THE THINKER AS ARTIST, supra note 23, at 303. See also the text at infra note 427. 159. Abraham's willingness to sacrifice Isaac is made even more remarkable by the recollection that it was through Isaac that he was to father "a multitude of nations," thereby deserving to be called "Abraham." See Genesis 17:5. 160. See Anastaplo, On Trial, supra note 75, at 854. See also infra note 297. 161. See Genesis 25:1-2. The mother of these children was Keturah. 162. See Anastaplo, Law & Literature and the Bible, supra note 86, at 564-80. 163. See id. at 521, 758, 764. This divergence is reflected in the observation by a NORTHERN ILNOIS UNIVERSITY LA W REVIEW [Vol. 19

The unnaturalness of what Abraham undertakes is reflected in the total absence of Sarah from this part of the story of Abraham. Isaac, when he marries, replaces the by-then dead Sarah in his life. Rebecca proves to be the only woman in his life, unlike the way his father and both of his sons conducted themselves. Even so, nature manifests herself in these characters and these stories, just as nature helps shape (that is, helps civilize) a long-established religion. Moral standards are adjusted to, especially when immorality or amorality proves destructive of life or subversive of enduring happiness. Nature may be reflected as well in the decision of Terah, Abraham's father, to leave his home to move to Canaan, even though he does not make it all the way.' Is something more needed, at least in these circumstances, to carry natural promptings through to their proper end, especially since human beings are limited by their mortality. The relation between mortality and morality is an age-old problem, something that is investigated, for example, in the career and thought of Socrates, the founder of one way of life just as Abraham is the founder of another way of life. 6'

8. THE OBLIGATIONS OF VICTIMS: ON THE MELIAN DIALOGUE'"

Corruptio optima pessima 167 -Thomas Aquinas

We hear criticism today of the offensive practice of "blaming the victim" in various situations-such as when someone seems to invite abuse or does not take adequate precautions against attacks. However unfair, if not even perverse, such criticism usually is, may there not be issues raised thereby that should be examined in order to understand a sensitive situation in its fullness?

worldly-wise Jew: "The day [Sandy] Koufax refused to pitch in the World Series on Yom Kippur was a great day for our people." Rich Cohen, TOUGH JEWS 17 (1998). 164. See Sacks, The Lion and The Ass, supra note 147, at 5. 165. On what Socrates did know, see Anastaplo, Freedom of Speech and the First Amendment, supra note 18, at 1945. On the things that were for Socrates far worse than death, see Anastaplo, Law, Education, and Legal Education, supra note 33, at 604. See also infra note 239. 166. A talk given in a Seminar at the Lenoir-Rhyne College Hickory Humanities Conference, Wildacres Conference Center, Little Switzerland, North Carolina, May 8, 1999. See also infra note 372. 167. THE HOME BOOK OF QUOTATIONS 319 (Burton Stevenson, ed., 1964) ("The corruption of the best is the worst."). See also NICOMACHEAN ETHIcs VIII, 10; the text at infra note 263. 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 421

Consider in this respect the Melian Dialogue in Thucydides' Peloponnesian War." Athenian aggressiveness is on display there, assuming that this encounter did take place. Also on display is a horrible cynicism, which suggests how far Athens ("the school of Greece") had deteriorated after sixteen years of that sometimes "total war" which we know as the Peloponnesian War (431-404 B.C.). 69 The Athenians-partly because of their power, partly because of their losses-were moved to speak frankly to the Melians about relations between cities. 70 It can seem--perhaps Thucydides intended it to seem-that Athens was emboldened, by the way it spoke and acted toward Melos, to throw off the restraints which ordinarily govern cities. These restraints are apt to be rooted both in shame (or honor) and in fear. This contributed perhaps to the disastrous expedition not long thereafter against Sicily, which contributed in turn to the undoing of the great Athenian empire."" That empire was based largely on islands and on cities very much dependent upon the sea. Melos, as an independent island, is said to have been considered by the Athenians to threaten their vital control of the sea, encouraging in effect other islands, which were tributary to Athens, to shake off Athenian control. The ill-fated Sicilian expedition was launched, appropriately enough, against an island also, a magnified Melos, so to speak. Still, one can wonder, what should Melos have done in the unfortunate circumstances in which she found herself because of the Athenian ultimatum? Hopeless resistance, if it is likely to culminate in the wholesale destruction of a city at the hands of a determined and much more powerful foe, may be foolish. Capitulation on the terms offered to the Melians would have permitted them to resume their life as an independent city some day, especially since immediate capitulation would have left the Melians with a relatively secure and perhaps a fairly prosperous life under Athenian domination. Was it undue pride, not simply an admirable sense of honor, which kept the Melians from facing up to "reality."

168. See THUcYDIDES, THE PELOPONNESIAN WAR, bk. 5. See also George Anastaplo, The Daring of Moderation: Student Power and the Melian Dialogue, 78 Sca. REV. 451,474-78 (1970). 169. The "school of Greece" title had been used by Pericles in his Funeral Oration (in Book 2 of Thucydides' The Peloponnesian War). The funeral oration is provided, in a recent translation, in 1 LIBERTY, EQuALrry & MODERN CONsTrruioNALIsM, supra note 74, at 34. 170. Compare how much more humanely the Athenians conducted themselves earlier against Mytilene. See THUCYDIDES, THE PELOPONNESIAN WAR, bk. 3. 171. See id. bk. 7. See also Anastaplo, Law, Education, and Legal Education, supra note 33, at 724; ANASTAPLO, THE THINKER AS ARTIST, supra note 23, at 260. NORTHERN ILLINOIS UNIVERSITY L4 W REVIEW [Vol. 19

There is no doubt that the Athenians, with their shameless celebration of naked power, should not have spoken and acted as they did toward Melos. But does not that still leave the observer with the question whether the Melians, in gallantly resisting the proposed Athenian takeover in their unfortunate circumstances, did not only themselves, but (perhaps far more important) Athens herself and hence all of civilization as well, a serious disservice? That is, might not a timely and reasoned capitulation by Melos, appealing to the best in Athens, have nourished whatever goodness was dormant in the by-then much troubled Athenian soul? Instead, the Melians legitimated, in effect, arguments based upon calculations about relative power, about reliable alliances, and about political "realism." Such arguments tend to exaggerate the importance of predictions of success and failure in the development of foreign policy. Our own Patrick Henry, however deep-rooted his "Give me liberty or give me death," surely would not have disparaged those soldiers during the Revolutionary War who allowed themselves to be taken prisoner rather than being killed in desperate circumstances."' If the Melians had known what we know and what they could have learned, that Athens (however corrupted by its great war) was still the best hope of Greek civilization, what should they have done? Was it not in the Melian interest, just as it was in the Spartan interest (if not also in the general interest of humanity), that Athens be helped to avoid its worst excesses? Even so, We should not make too much of the element of "interest" in such calculations. Far too much is made of "interest" in what both the Athenians and the Melians say on the occasion of their notorious dialogue. To make much of interest tends to conceal from view an overriding concern with that highest form of civilized endeavor by which interest should ultimately be guided. Melos, after being reminded by the Athenians of their military superior- ity, emphasized her reliance upon both divine favor and Spartan aid, making much of its belief, "[I]n this quarrel we are right and you are wrong."'73 The Athenians countered With what they had learned about how little both the divine and the Spartans could be relied upon in dire circumstances. One unfortunate consequence of the Melians' argument here was to drive the Athenians into further self-degradation with their assertion, "We believe that

172. On Patrick Henry, see ANASTAPLO, 1 LIBERTY, EQUALITY & MODERN CONST'ITUTIONAUSM, supra note 74, at 269. See also ANASTAPLO, ABRAHAM LINCOLN, supra note 18, at 355 n. 526; text at ifra note 421. On morality and foreign policy, see Part 17-B of this Collection. 173. THUCYDIDES, THE PELOPENNEsiAN WAR, 5:104. 1999] L4WYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 423 the gods, and we know that men, by a natural law, always rule where they are stronger." 74 The Melians, I have suggested, should not have wanted (or, indeed, should not have permitted) the Athenians to make the arguments they did about the natural, if not even the divine, primacy of the powerful. Would it not have been better for all concerned if the Athenians had been kept from exposing and then acting upon the worst tendencies in themselves? These are tendencies of which other Greek cities were of course also capable-but they are particularly sad here because these bad tendencies helped undermine those marvelous tendencies of which the Athenians were by far the best exemplars in the ancient world. 75 Thus, I have also suggested, the Melians' duty to civilization was higher than their duty in these circumstances to their sovereign city, even one with a seven-hundred year tradition of independence. (These were, by the way, not necessarily seven hundred years of liberty and high culture: the Melian people, for example, were not trusted by their negotiators to hear this dialogue. 76) In fact, whatever merits the Melians may have had came to be known worldwide only because of the account of account which superbly examined both the Thucydides, an Athenian, an 177 highest and the lowest in Athens and elsewhere. The extent to which the Melians, along with the Athenians, indulged in ultimately misconceived arguments is revealed in the failure of both parties on this occasion to notice, however briefly, the considerations I have sketched here. That failure carries over to all readers I happen to know of the Melian Dialogue.7 8 That is, almost all readers debate such issues as whether the Melians should have capitulated out of self-interest and whether the Athenians were at all justified in the terrible things they said and did. It never seems to occur to readers-just as it apparently did not occur either to the victimized Melians or even to the remarkably clever Athenians-it never seems to occur to readers that the deepest interests of civilization called for the Melians' doing all that was humane to keep the Athenians from becoming as bad as they (and only they?) could be.

174. Id., 5:105. See also ANASTAPLO, THEITH NKER As ARTIST, supra note 23, at 262. 175. See supra note 169. The domineering Romans, for centuries, looked to Athenians for philosophical guidance. See also Anastaplo, Law, Education and Legal Education,supra note 33, at 734. 176. See THUCYDIDES, THE PELOPONNESIAN WAR, 5: 84. 177. On the high and the low, see LEO STRAUSS, SPINOZA'S CRMQUE OF REUGION 2 (1965). See also ANASTAPLO, 1 LIBERTY, EQUALITY & MODERN CONSTITITIONALISM, supra note 74, at 85. 178. It is evident, for example, in the long list of questions about the dialogue provided by the editors of the Great Books Foundations series used for this May 1999 conference. NORTHERN ILLNOIS UNIVERSITY LAW REVIEW [Vol. 19

9. ARISTOTLE ON How THE SOUL POSSESSES TRUTH 179

Our discussion will be adequate if it achieves clarity within the limits of the subject matter. For precision cannot be expected in the treatment of all subjects alike, any more than it can be expected in all manufactured articles. -Aristotle i80

I.

Aristotle's texts are not generally regarded as prepared by him for publication, but rather as students' lecture notes and the like. This opinion can be misleading, discouraging us from reading him as carefully as we 18 might.' Aristotle introduces and then develops his topics, in one text after another, more carefully than we might expect from what is said about the way that those texts originated. We touch here upon an issue-as to how carefully an Aristotelian text is to be dealt with-which is an old issue for the Basic Program Staff. For example, and I, as quite young Basic 2 Program instructors, differed about this issue several decades ago." The NicomacheanEthics is sometimes regarded as an exception among Aristotle's works in that it at least may have been prepared by him for "publication." Even so, it seems to me, how carefully the Ethics is put together is not generally appreciated. Thus, I suggested in a Basic Program Staff paper some years ago: An interrelatedness among the [eleven so-called moral] virtues is reflected in our expectation that a principle of order may be discerned for the sequence [of the moral virtues] supplied by Aristotle [in the Nicomachean Ethics]. We are confident that his is not a haphazard arrangement, even though we may be far from sure about

179. A paper presented to the Staff of the Basic Program of Liberal Education for Adults, The University of Chicago, Chicago, Illinois, March 21, 1998. I am indebted to my longtime Basic Program colleague, Keith Cleveland for his suggestions of citations in this paper to Aristotle's De Anima, Metaphysics, Physics, Politics,Posterior Analytics, and Topics. 180. ARISTOTLE, NICOMACHEAN ETHIcs 1094b13 (Martin Ostwald trans.). 181. See George Anastaplo, Book Review, 26 INTERPRETATION 275 (1999).' 182. On Allan Bloom, see George Anastaplo, Allan Bloom and Race Relations in the United States, and In re Allan Bloom: A Respectful Dissent, in ESSAYS oN"THE CLOSING OF THE AMERICAN MIND" 225, 267 (Robert L. Stone ed., 1989). See also Anastaplo, 'McCarthyism,' the Cold War, and Their Aftermath, supra note 14, at 111, 156, 169. 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 425

what his ordering principle is, except that the virtues may be unified in their contributions to happiness."8 3 I then go on to suggest, in some detail in that paper, how the moral virtues are ordered, and why, in Books rI-v of the Ethics. Even so, all I said there (however useful it may be if only as reminders of what I have been able to notice in our text) is in need of both amplification and refinement, as is also what I venture to say on this occasion.

I. A similar challenge in reading confronts us when we turn to Aristotle's discussion of what are known as the intellectual virtues, beginning in Book VI of the Ethics. I have observed (again drawing on my earlier Staff Seminar paper), The status, or at least the precision, of the moral virtues may be called into question, especially from the perspective of anyone adept in the intellectual virtues. Is not a rough general awareness usually relied upon, and perhaps even sufficient, for the typical moral virtue? A strict scientific, or theoretical, approach should not be expected in such matters, an approach which would require and result in precise namings [of various virtues and vices, some of which are nameless]. (A full discussion of this would have to consider at length what Aristotle has to say in Book I of the Nicomachean Ethics about the Platonic account of the Idea of the Good...)"' Consider, for example, the list of five things by which the soul possesses truth by affirmation or denial. This list, found at the beginning of Chapter 3 of Book VI, can be considered to be at the center of the entire Ethics."8 5 A proper examination of the arrangement of these five things may help us see what Aristotle is saying as well as how he can say what he does. I will touch upon aspects of the arrangement here, or rather of the two arrangements, which are not discussed in any of the dozen translations and commentaries I have consulted. The challenge facing the reader here can be intriguing, so

183. ANASTAPLO, THE THINKER AS ARTIST, supra note 23, at 326. 184. Id. at 330. 185. That which I call "things" has been rendered by others as "states," "habits," "qualities," "means," "ways," and "instruments." It is that by means of which the truth is identified and grasped. NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 19 much so that students may be moved to take far more interest in the material in Book VI than they otherwise might. It is useful, if not even necessary, for a full treatment of the overall subject of the Ethics to have here in Book VI a provisional account of what it means to learn and to know (or to understand). This is vital to any effort to come to know oneself-and this in turn very much affects whether one can determine and then do what should be done in one's circumstances. That is, the right thing to do-which is so critical throughout the Ethics-cannotbe altogether dependent upon rules and habits, however vital those may be.

III. Here, then, are the five things critical if the truth is to be arrived at by the soul: 6 1. techne 2. episteme 3. phronesis 4. sophia 5. nous. I now list the English translations available for these terms in this context, noticing first in each case the one I will use when an English term is needed in my exposition:

1. art (or technical skill or craft) 2. science (or knowledge or scientific knowledge or deductive science) 3. prudence (or practical wisdom or intelligence) 4. wisdom (or theoretical wisdom or philosophic wisdom or philosophy) 5. intuition (or intuitive reason or intelligence or understanding or induction).'87 What is the order of presentation here--of techne, espisteme, phronesis, sophia, and nous? Is this how these five things first come to view for the human being? Is this perhaps our order of awareness? Techne may first impress itself upon us-in what others make (or do) for us as well as in what we try to do or to make for ourselves? Is nous the last thing we are apt to notice, although it may be essential from the outset in how we grasp the truth? Indeed, does nous, or the intuition of things, come naturally to us? In fact, we

186. ARIsTOTLE, NICOMACHEAN ETmcs 1139b17. 187. The English versions of the Ethics that I will be using are those provided by R. W. Browne (1850), by J. A. H. Thompson (1953), and by an unnamed translator in an Press edition of 1846. For other uses of these terms by Aristotle, see METAPHYSICS 993a30-993b 11, 1029b1-13; PHYsics 184a16-22; POSTERIOR ANALYTICS 89b7-9, 100al0-100b4. 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 427 can wonder, are the first, third, and fifth items in this preliminary list (techne, phronesis, and nous) those which are prior if not also more natural for us, whereas the second and fourth items (episteme and sophia) develop more with training? Bearing upon what "prior" and "natural" mean here is an experience I have had in preparing this paper. Several of the critical points developed here were noticed in our classroom discussions of Book VI this term. I was surprised to discover after preparing the first draft of this paper, upon consulting the marginal notes in a copy of the Ethics I had used a quarter of a century ago, that I had noticed the same points on that occasion, but evidently without developing them as I do here. This experience suggests, among other things, that one's discoveries in these matters are not likely to be truly one's own, but rather are available to be noticed (and then forgotten) by whatever inquiring mind happens along. (Indeed, one can also forget that one has picked up things from others.) Even so, perhaps one can learn and remember, however many supporting details are naturally forgotten, that Aristotle's texts are to be read most carefully. Related to this, I mention in passing, is my longtime impression (also based upon repeated, mostly undocumented, discoveries) that Aristotle is much closer to Plato in his thinking than is generally recognized-and that both are careful in how they arrange and rearrange the things they discuss."' 8

IV. The challenge posed by the organization of this list is heightened when we notice how Aristotle proceeds in his description (in Chapters 3-7 of Book VI) of each of these five things. For the order of discussion then becomes the following: 1. episteme 2. techne 3. phronesis 4. nous 5. sophia. One instructive feature of this rearrangement, which no one I have consulted has commented upon, is that phronesis (which should be distin- guished from episteme and sophia) remains central to both listings. This, we can figure out, is appropriate in the context of a discussion of the virtues, or of ethics. It would be different if the discussion were of, say, physics or

188. See, e.g., ANASTAPLo, HUMAN BEING AND CrrIzEN, supra note 6, at 8; ANASTAPLO, THE THINKER AS ARTIST, supra 23, at 318. NORTHERN ILLINOIS UNIVERSITY LA W REVIEW [Vol. 19

metaphysics, where phronesis might also be of some use, but in a different way and certainly not centrally so. Another way of putting this observation is to say that phronesis is the only one of the five things in the two lists which stands firm. And after these five are described in a preliminary way, pursuant to the reorganized sequence, phronesis is returned to for an extended discussion. Although Aristotle seems unPlatonic in that he resists reducing all of the moral virtues to phronesis or knowledge, he does emphasize phronesis (a kind of knowing) in Book VI and, 89 in effect, throughout the Nicomachean Ethics.1 Phronesis is the intellectual virtue most critical to the moral virtues. Aristotle exhibits his own phronesis-partlyto avoid undermining the moral virtues as being worthy of exercising for their own sake-he exhibits his prudence by endorsing, but without undue emphasis, the contemplative life as the very best, a conclusion that is not (and probably should not be) dwelt upon by the citizen as citizen." After all, it is with an introduction to politics that the Ethics ends. For following upon an examination of the intellectual virtues, there is (in Books VIm and IX) an extended discussion of friendship, something which looks much more to the natural sociability and hence to the political life of human beings and less to the grand loneliness of philosophical pursuits (however much the best friendships are to be found between the most thoughtful).' 9' On the way to friendship there is a recognition of continence and inconti- nence-and thereby a recognition of the inability of some either to be or to act as well as they know how. Pleasure does assert itself here, which can only be countered (at the highest level) by a recognition of the most exalted pleasure available either to human beings or to the gods, the pleasure of the contempla- tive life. 9

V. Something of the allure of the contemplative life may be suggested by considering further and perhaps understanding better the meaning of the reordered list of our five "things." Episteme is described before techne, even though techne may come to view before episteme in the lives of human

189. See ARIsTOTLE, NICOMACHEAN ETHICS 1144b18. See also ANASTAPLO, THE THINKER AS ARTIST, supra note 23, at 326. 190. See, e.g., ARIsTOTLE, METAPHYSics 1026a22-24; George Anastaplo, Teaching, Nature and the Moral Virtues, 1997 THE GREAT IDEAS TODAY 2, 23 (1997). See also infra note 206. 191. See, e.g., XENOPHON, MEMORABILIA, I, vi, 14. See also ANASTAPLO, HUMAN BEING AND CrrIZEN, supra note 6, at 8. 192. See, e.g., ANASTAPL), THE THKR As ARTIST, supra note 23, at 303. 1999] L4WYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES beings. Although techne may be first in time, episteme may be first in dignity, if only because episteme may be needed in order to be able to begin to understand, if not even to improve, the others (including techne). That is, we must be clear about episteme, at least in a tentative way, before we can discuss properly (as precisely as is useful in these circum- stances) the other four things in this list.'93 We have to have, before we can make progress in Book VI and thereafter, a working sense of what it means to know-and this is provided us by the preliminary description of episteme. In order truly to know oneself (which can be critical both to desiring rightly and to acting rightly), one should know not only what one knows but perhaps even how one knows and why (including to what ends). Does not Aristotle proceed to an "epistemological" or "scientific" inquiry into each of the other four things in his list, once episteme is more or less accounted for? It is evident in the discussion that follows-and this is intrinsic to both episteme and sophia-thathuman beings are not the highest things (and hence not the objects for the most serious study). 94 But, as we have noticed, it is not prudent to make much, in this context, of such a recognition, however vital it may be for at least a few to be aware of what completes or transcends morality. Such transcendence is perhaps anticipated by what is indicated in the opening page of the Ethics about the master art, the 95 architectonic science.1

VI. We should consider further, however briefly, what is suggested by Aristotle's description of nous before sophia, reversing here also the order of his first listing. Nous is barely described, as if to say (in this context) that either one grasps certain things or one does not. One thing that nous may provide us all is a sense of what it means (or, at least, what it "feels" like) to know something. Although that which is intuited may be early, if not even first, in the order of our grasp of the things that we know as human beings, it can be last in our awareness (and hence warrants its being listed last in the first ordering of our five things). Thus, it can be said, sophia permits us to know in somewhat the way that nous does, even though sophia depends much more than nous does on reasoning. Are we always trying to grasp things the way nous does? Perhaps,

193. Much more is said about episteme elsewhere in the Aristotelian corpus. See, e.g., ARISTOTLE, METAPHYsICs 981b26-982a2, 1025b14-3 1; ARISTOTLE, Topics 101a35-101b4. 194. See ARISTOTLE, NICOMACHEAN ETHICs 1141a22. See also ANASTAPLO, THE THINKER AS ARTIST, supra note 23, at 323. 195. See ARISTOTLE, NICOMACHEAN ETHIcS 1094a28. See also ARISTOTLE, METAPHYSICS 1026a22-24. NORTHERN ILLINOIS UNIVERSITY LA W REVIEW [Vol. 19 indeed, sophia is that form of understanding which takes account of, and makes use of, all of the other four things in our list. Sophia, in any event, may help us see better the opening and closing pairs in our two lists. However the lists are rearranged, techne and episteme stay together, just as do sophia and nous. The pairing of episteme and techne is reflected in the opinion of those who say that we understand only what we make.'96 This opinion may reflect in turn a limited understanding of understanding itself. It may also reflect the fact that science, as we now know it, is very much dependent upon the art of devising experiments and then constructing the relevant equipment. The pairing of nous and sophia may be fundamental to all enduring understanding--even though an awareness of their relation may come late (if at all) to a human being, as does their refinement. Most people have to settle for crude intuitions and a rough "philosophy" in coming to grips with "the world." Once sophia is truly in view, however, philosophy (as the love of sophia-thatis, as the love of wisdom) can be taken seriously and may be furthered if not even perfected--and the superiority of the contemplative life becomes evident. Is friendship an image, for the non-philosophical, of the contemplative life?.9

VII. We have noticed that one consequence of the reversals in the order of the two lists we have examined is to highlight phronesis as solidly at the core of any consideration of these matters in this context. We have also noticed that the switching in the order may help us see better each of the five things in our lists, however much what we have noticed may be in need of correction. We have noticed as well that what is first to view may not be first either in time or in importance.98 The most important things, we are given to understand, are the eternal things. Phronesis, however, is obliged to be concerned about circumstances and consequences-and hence about ever-changing matters. Which is

196. This underlies the issues in Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938). See, e.g., ANASTAPLO,THECONSTrrIrIONOF 1787, supra note 121, at 128-37; Anastaplo, Law, Education, and Legal Education, supra note 33, at 586; George Anastaplo, The Natural Right Component ofAmerican Law, 23 LEGAL STUDIES FORUM 535 (1999). See also supra note 87; the text at infra note 211; and the text at infra note 282. Additional Aristotelian texts to be considered here include: METAPHYSICS 982a14- 20, 993b27-32, POSTERIOR ANALYrics 72a26-72b4, 84b37-85a2, 100b8-17, DE ANimA III, iv- Vii. 197. On the bringing together of friendship and philosophy, see supra note 191. 198. How does the Bible understand these relations? See, e.g., Anastaplo, Law & Literature and the Bible, supra note 86, at 515. 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 431

it-phronesisor sophia-thatdetermines the varying sequences in which the five things are placed in our lists? Is it phronesis that dictates the care which should be taken in how these things are discussed, while sophia equips us to understand what is going on? Phronesis is not concerned, then, with the highest things, but rather primarily with the good of human beings in communities. But are not the truly prudent aware of philosophy as the highest pursuit (along, perhaps, with access to the most exalted revelations)? The truly prudent may be aware as well of what should be done to permit, if not even to encourage, the contem- plative life, something for which there would surely be a place in the best regime anticipated in Aristotle's preparation for the Politics at the end of his Nicomachean Ethics. We recall that in Plato's Republic the very best human beings are obligated to rule, even while they prefer, and look 99 forward to, a life devoted to philosophy.

10. THOMAS AQUINAS AND THE LAW OF LAWS200

He has refused his Assent to Laws, the most wholesome and necessary for the public Good. 20 1 -The Declaration of Independence

I.

Four types of law are identified in Question 91 of Thomas Aquinas's Treatise on Law, after a definition of law is developed in Question 90.202 Thomas, after discussing the effects of law in Question 92, discusses in turn each of the four types of law he has identified: Eternal Law, in Question 93; Natural Law, in Question 94; Human Law, in Questions 95-97. It is with this that the standard selection from the Treatise ends. °3 The appropriate functions, or purposes, of the four types of law are described as each kind is settled upon in turn: eternal law; natural law; human law; divine law. There may be implicit in what is said in the course of the Treatise a fifth type of law. (This is aside from what is said about the law "in the fomes of sin," or the "law of concupiscence". That discussion, in the Sixth

199. See, e.g.; PLATO, REPUBLIC 419a sq. See also ARISTOTLE, POLrTICS 1284b25-34. 200. A paper presented to the Staff of the Basic Program of Liberal Education for Adults, The University of Chicago, Chicago, Illinois, March 14, 1999. 201. See ANASTAPLO, THE CONSTrrUTION OF 1787, supra note 121, at 240. 202. See THOMAS AQuINAS, TREATISE ON LAW, Q. 90, A. 4. 203. What follows in the Treatise are discussions of the Divine Law: the Old Law, in Questions 98-105; the New Law, in Questions 106-108. NORTHERN ILLINOIS UNIVERSITY L4 W REVIEW [Vol. 19

Article of Question 91, seems to recognize the basis of the passions--and may be what biologists, psychologists, and suchlike try to study.) This law of laws, a rule as to what law is, how many kinds there are, and how they may be assessed and related-this law of laws can help us display, if not also to understand, law. Something of the law of laws is suggested by what follows now in this paper, beginning with the rationale of the sequence found in the Treatise. First, there is the eternal law. Without an eternal law, we are in effect told, there is nothing, or at least nothing that is knowable. This is another way of saying that there is a Creation or Universe with a reliable order. Still another way is to say that existence is affirmed.2' Then there is the natural law. The standards may be found there by which human law (and, it can be argued, some claims of divine law) may be judged, if not even constructed. Then there is human law. This is needed if there is to be a human community, or civilization, which permits languages, poetry, and prophecy to develop. In some ways, human law is prior to natural law; in some ways, natural law is prior to human law.2 5 Finally, there is divine law. This appears, it seems, only when some kind of community is established, at least in a primitive form. It is divine law which is relied upon to supply that which is sensed to be beyond what unaided human reason and communities can provide.

II. Three of the four types of law described in the Treatise on Law are readily challenged these days. The challenge is as to whether these types of law either exist or have any authority. The types of law which are thus challenged are eternal law, natural law, and divine law. These challenges come today from those who question whether nature provides any guide for moral or political actions by human beings, whatever nature may suggest for, say, medical action.' Indeed, contemporary opinions about nature can be drawn upon to explain, and in effect to explain away, both divine law and aspects of eternal law. Challenges come as well from those who question either the existence of the Divine or at least Its interest in human affairs. Divine law becomes

204. See, e.g., ANASTAPLO, THE AMERICAN MORALIST, supra note 44, at 139, 144. 205. See, e.g., Anastaplo, 1 LIBERTY, EQUAuITY &MODERN CONSTITUTIONAUSM, supra note 74, at xiii. See also supra note 139, infra note 218. 206. See, e.g., ANASTAPLO, CAMPUS HATE-SPEECH CODES, NATURAL RiGrr, AND TWENTIETH CENTURY ATROCrIES, supra note 27, at 127. See also supra notes 139, 190; the text at infra note 218. 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 433 vulnerable here, as do those aspects of the eternal law which are not reflected in the laws of physics and the like. Thus, there are respectable (if not, it sometimes seem, even the dominant) intellectuals among us who insist that the world can be understood, indeed best understood, without reliance upon any doctrines which presuppose eternal, natural, or divine law. Some of these intellectuals go so far as to attribute many of the ills we suffer to such doctrines. However, what are considered to be "ills," and why, may be a problem if no reliance can be placed upon standards grounded in natural law or in divine law.2" 7

M. What is not challenged these days, in the way that eternal law, natural law and divine laws are challenged, is human law. Whatever controversy there may be about any particular form of human law, its necessity as well as its existence (including its operations) can be generally acknowledged. Indeed, it will often be said, human law is the only kind of law that human beings are obliged to take seriously, whatever reservations one may properly have about some manifestations here and there of human law. Thus, human law can be regarded as real. On the other hand, eternal law, natural law, and divine law can be regarded as illusory, made up of unverifiable conjectures or of wishful thinking, if not even regarded simply as an insidious form of control by astute manipulators of political and social power (being thereby a covert form of human law).2" 8

IV. Here, then, is the curious state of affairs that we confront. It is odd that human law is the type of law which is widely regarded as evidently the most reliably known-indeed, the only kind of law which some regard as truly existing-even though it is the very law which we, along with Thomas Aquinas, can recognize as the most changeable. That it is changeable is to be expected. Human law does and should vary considerably from time to time and from place to place. People expect it to be quite different in other times and places. This has always been known, it seems, or at least after human beings came to have experience with other peoples than their own.

207. See supra note 84. 208. Consider, for example, the implications of the '"Grand Inquisitor" episode in Fyodor Dostoyevsky's The Brothers Karamozov. See ANASTAPLO, LIBERTY, EQUALTY & MODERN CONSTTUTIONAUSM, supra note 74, at 42. See also supra note 206; the text at infra note 233. Compare Frank H. Knight, Natural Law: Last Refuge of the Bigot, 54 ETHics 127 (1949). NORTHERN ILUNOIS UNIVERSITY LA W REVIEW [Vol. 19

What has not always been "known," however, is what can be grasped about the ever-changing. Indeed, it may even be a modem principle that only the changing (and hence that which is in constant ) can be observed and known. It is the rate of change that can be believed to permit the most productive counting or numbering.2" In physics, for example, only the changing things, or the changing aspects of things, are investigated, not the unchanging. (The unchanging, and hence the ultimate cause of things, is left by physicists to what some older physicists can call "theology.") It is through the investigation of changing things that the most reliable knowledge is to be developed, albeit not with any final precision. Thus, only in modernity does the changing have assigned to it the dignity of being truly knowable, however tentative and subject to indefinite "progress" such knowing may be.21° The extent to which modem jurisprudence, which seems to be concerned principally with the study of human law, is shaped by modem physics is suggested by how human law is regarded. Much is made of the fact that law is backed up by force and that this is particularly evident in the governance of property and of contracted relations (that is, in the management of material things). Much is made, that is, of bodies and powers.21' Any reservations we may suggest about the modem understanding of human law, including what can be known about it and how, may point as well to a critique of modem science, at least with respect both to its presupposi- tions and to its prospects for self-knowing.

V. We turn now to a consideration of how that which is widely accepted about human law can help us see the other kinds of law surveyed in Thomas's Treatise on Law. We notice again what is commonly said these days about human law. It, as positive law, is understood to incorporate an act of will; it is not derived from, or to be judged by, independent standards; it is not something transcendental, it is definitely not "a brooding omnipresence in the sky. 23 2 It has always been recognized, as we have noticed, that human laws must be adapted to changing circumstances and to accidental factors. The changing

209. See, e.g., George Anastaplo, On Beginnings, 1998 THE GREAT IDEAS TODAY 138, 153 (1998); Anastaplo, Law & Literature and the Bible, supra note 86, at 803. 210. See, e.g., ANASTAPLO, Tm ARTIST AS THINKER, supra note 142, at 252-53, 355. 211. See supra note 196. 212. Southern Pacific Co. v. Jensen, 244 U.S. 205,222 (1917) (Oliver Wendell Holmes, dissenting). 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 435 circumstances can include the conditions that have been altered by the "success" of the laws enacted heretofore. Yet, on what basis does the will (whether that of a legislator or that of a judge) choose this rather than that? What are the standards which lead to establishing or changing the law? Is not some notion of the common good necessarily drawn upon? We moderns are reluctant to speak here of natural law, even though it may be difficult otherwise to understand what guides us. The most that many today might say is that we are naturally led by standards independent of the laws that happen to be developed. Sometimes conscience or intuition can be referred to here, sometimes traditionsor customs. Is natural law thus being recognized? And does natural religion emanate from the application of natural law to social needs?2"3

VI. May a further step be taken? Does the human law, guided and assessed by natural law, reflect (if it does not point to) the eternal law? Is something beyond somehow drawn upon or looked to? Eternal law looks beyond human communities, with their necessary emphasis upon the common good. Both human law and natural law do make much of the common good, with natural law exhibiting more concern for the moral virtues as well, independent of how they bear upon the common good. The common good need not immediately concern itself with a universal good, or with that which is good for all humankind, or indeed with that which is good for any particular human being. The case for eternal law does have some support in what physicists do: consider, again, the implications of what is assumed by physicists about "the laws of nature" billions of years as well as trillions of miles away from us. Is there something that is "always" implied-perhaps even naturally implied-in much of what we routinely say or do?2 4 To some extent, it can be said, eternal law and natural law overlap. That is, aspects of eternal law which bear upon human affairs find expression in natural law. In addition, does not eternal law-that is, an awareness of eternal law-open the way to contemplation, to an activity that somehow looks beyond both our mortality and our morality? Natural law, to the extent that

213. See, e.g., supra notes 78, 139, 205. See also Anastaplo, The Natural Right Component ofAmerican Law, supra note 196, at 542. 214. See George Anastaplo, Book Review, 1997 THE GREAT IDEAS TODAY 448 (1997). See also supra note 209. NORTHERN ILLINOIS UNIVERSITY L4 W REVIEW [Vol. 19 it looks to the perfection of the human soul, also opens the way to contempla- tion, more so than human law, with its primary dedication to the common good, needs to do.2" 5

VII. We have moved from the generally "known" human law to an awareness (on the basis of what we can sense about human law)-we have moved to at least an awareness both of natural law and of eternal law. It is difficult, however, to move from human law to divine law without subverting the very character of divine law, at least as it is spoken of in the West. That is, divine law seems to depend explicitly among us upon revelation, something that usually presents itself as beyond what unaided human capacities are capable 2 16 of. Yet it may be said that there is a natural yearning for something more than is available in everyday experience.17 It may also be said that natural law and eternal law can help us to judge and to refine, if not even to extend, what is offered as divine law. Still, do not the specifics of divine law have to be pronounced or otherwise delivered? It is obvious, of course, that there is a great variety of divine laws contending for preeminence, with many of the contenders repudiating others as, say, idolatrous. The variety here can lead some to suggest that all divine laws worth taking seriously are aspects of the political, if not products also of the poetic imagination.2t8 Or is there enough similarity among divine laws, however diverse they may be in the names and rituals they use, to point to a natural divine law eternally keyed to human capacities (if not to the capacities of rational beings anywhere in the universe)? Plutarch, for example, tries to deal thus with divine laws-that is, with the gods of the various countries he knows.219 We have returned with these questions to the law of laws with which we began this inquiry. Is such a law of laws implied in the definition of law with which Thomas Aquinas opens his Treatise on Law, a definition which collects

215. See supra note 139. See also ANASTAPLO, ABRAHAM LINCOLN, supra note 18, at 9, 122, 343-49. 216. See, e.g., Anastaplo, Law & Literature and the Bible, supra note 86, at 521; ANASTAPLO, ABRAHAM LINCOLN, supra note 18, at 25-26; the text at supra note 213. 217. See Anastaplo, Law & Literature and the Bible, supra note 86, at 738. See also supra note 126. 218. See supra note 205. See also Anastaplo, 1 LIBERTY, EQUALITY & MODERN CONsTITrIIONAusM, supra note 74, at xiv; Anastaplo, Law & Literature and the Bible, supra note 86, at 539, 771; the text at infra note 306. 219. See Anastaplo, Law, Education, and Legal Education, supra note 23, at 724. See also PLUTARCH, ISIS and OSIRIS. 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 437

all of the elements that anything identifiable as law must have? Perhaps, we have returned also to a critical distinction between ancients and moderns, a distinction as to whether a proper definition should be regarded as an assurance, as well as a description, of what is.22

11. DEATH AND ART IN CERVANTES'S DON QUIXOTE221

Everybody said it was a real beautiful oath, and asked Tom if he got it out of his own head. He said, some of it, but the rest was out of pirate books and robber books, and every gang that was high-toned had it. -Huckleberry Finn222

I.

Miguel de Cervantes's Don Quixote has been introduced in this way by a distinguished American critic: A gentleman of fifty, with nothing to do, once in- vented for himself an occupation. Those about him, in his household and his village, were of the opinion that no such desperate step was necessary. He had an estate, and he was fond of hunting; these, they said, were occupation enough, and he should be content with the uneventful routines it imposed. But the gentlemen was not content. And when he set out in earnest to live an altogether different life he was thought by everybody, first at home and then abroad, to be either strange or mad. He went away three times, returning once of his own accord but in the second and third cases being brought back by persons of the village who had pursued him for this purpose. He returned each time in an exhausted state, for the occupation he embraced was strenuous; and soon after his third homecoming he took to bed, made his will, confessed his sins, admitted that the whole enterprise had been an error, and died. The gentleman who did these things would have remained utterly obscure had he not done them, and even

220. See, e.g., ANASTAPLO, THE TINKER AS ARTIST, supra note 23, at 303. 221. A talk given in the First Friday Lecture Series, The University of Chicago, The Cultural Center, Chicago, Illinois, October 5, 1990. 222. MARK TWAIN, THE ADvENTURES OF HUCKLEBERRY FINN, Ch. II. NORTHERN ILLINOIS UNIVERSITY LA W REVIEW [Vol. 19

then he would be unknown to fame had no history of him and them been written. But one was written, and it enjoys the reputation of being perhaps the best novel in the world. Not that its author ever speaks of it as fiction. He says it is history, or if you like biography; and he does not even claim credit for its composition. He merely translated it into Spanish from the Arabic original of one Cid Hamet. He assumes it to be true, but he made up none of its details, just as he had nothing to do with the grand conception-either the historian's conception of his subject or the subject's conception of himself. This last, of course, could never have been invented by another, least of all by any novelist. No, the truth about this gentleman is stranger than fiction can permit itself to be. If he had not lived he would never have been imagined. He did live, though, and here is his history. 223 Our critic, Mark Van Doren, continues: "The tale thus rescued from oblivion by Cervantes is both simple and mysterious. The sign of its simplicity is that it can be summarized in a few sentences. The sign of its mysteriousness is that it can be talked about forever. It has indeed been talked about as no other story ever was." 224 Such endless talking includes the useful narrative and commentary on this book by the novelist Vladimir Nabokov, who provides us (with extensive quotations from the Samuel Putnam translation of the Cervantes text) this recapitulation of the opening chapter: A country gentleman read so many books of chivalry that their fantastic adventures seemed to him to be true and worthy of emulation. "At last, when his wits were gone beyond repair, he came to conceive the strangest idea that ever occurred to any madman in this world. It now appeared to him fitting and necessary, in order to win a greater amount of honor for himself and serve his country at the same time, to become a knight-errant and roam the world on horseback, in a suit of armor; he would go in quest of adventures, by way of putting into practice all that he had read in his books; he would right every manner of wrong,

223. MARK VAN DOREN, DON QuixoTE's PROFESSION 1-2 (1958). See the text at supra note 109. On the uses of strange,see infra note 245. 224. Id. at 2-3. For another apt introduction to Don Quixote, see GEORGE MEREDrrIH, AN ESSAY ON COMEDY 77-78 (1910). 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 439

placing himself in situations of the greatest peril such as would redound to the eternal glory of his name. As a reward for his valor and the might of his arm, the poor fellow could already see himself crowned Emperor of Trebizond at the very least; and so, carried away by the strange pleasure that he found in such thoughts as these, he at once set about putting his plan into effect." He burnished up some old pieces of armor left him by his great-grandfather, and seeking a name of renown for his nag, he called it Rocinante, and himself-plain Alonso Quijada, Quesade, or Quijana-after the example of Amadis who had added to his name that of his kingdom, "our good knight chose to add his place of origin and become 'Don Quixote de la Mancha'; for by this means, as he saw it, he was making very plain his lineage and was conferring honor upon his country by taking its name as his own." But then "he naturally found but one thing lacking still: he must seek out a lady of whom he could become enamored; for a knight-errant without a lady-love was like a tree without leaves or fruit, a body without a soul." He then thought of a good-looking farm-girl with whom he had once been smitten although she had never noticed him, and "For her he wished a name that should not be incongruous with his own and that would convey the suggestion of a princess or a great lady; and, accordingly, he resolved to call her 'Dulcinea del Toboso,' she being a native of that place."22 With this opening chapter the story of the ingenious gentleman is well launched, a story that is now widely known. The story of Don Quixote tends to bring out the best in those it touches, including the artist in the critic, as may be seen in the extended Nabokov response to it. Many seem to be elevated by contact with Don Quixote, if only (as in the case of the galley slaves that he mistakenly liberates) in how he dramatizes them. And yet, it can be wondered, what is he? Is he a real knight- errant? Or an actor, albeit on a grand scale? Or simply insane? Well, not simply insane, but insane nevertheless? Able advocates can be found for each of these, and for still other, conclusions. Knight is now defined as "a mounted man-at-arms serving a feudal superior; especially: a man ceremonially inducted into special military rank,

225. VLADIMIR NABoKOv, LEcTuREs ON DON QUIXOTE 113 (Fredson Bowers ed., Harcourt Brace Jovanovich 1983). NORTHERN ILLNOIS UNIVERSTY L4 W REVIEW [Vol. 19 usually after completing service as page and squire." Knight-errantis defined as "a knight traveling in search of adventures in which to exhibit military skill, prowess, and generosity." The old adjective errant which is related to our term itinerant,means "traveling from place to place."' 6 What is a real knight- errant? Are there any such beings? Were there ever any? Knight-errantry seems to be an emanation from Christianity, a vigorous secular counterpart perhaps to the spiritual Christian missionary. Many readers of Cervantes's great book insist that Don Quixote is as much a knight-errant as anyone ever was. True, Don Quixote has to resort to improvisation in order to have himself dubbed a knight: an irreverent innkeeper goes along with the gag, so to speak, in providing the Don the initiation ceremony he requires. Here, as elsewhere, there may be something calculating in how Don Quixote proceeds: he can settle for what he takes to be the essentials behind the mask of the required ritual, just as he, a modest country gentleman, appropriates for himself the title, Don. Don Quixote's story-the authentic story of Don Quixote, that is-is found in two volumes by Cervantes, the first made up of 52 chapters published in 1605, the second made up of 74 chapters published in 1615. By the time Don Quixote sets out in the second volume upon his third (and final) sally, some six months after his first two sallies in the first volume, he is already famous across Spain because of the account in the first volume about his initial adventures as a knight-errant. One of the purposes of Don Quixote during the activities recorded in the second volume becomes to correct what has been said about him--said about him not in the first volume (which is regarded by him as fairly reliable) but in still another volume evidently issued by someone other than Cervantes who has presumed to supply a sequel to the first Cervantes volume.227 All of this can become quite complicated as the reader peels off one layer after another of supposed sources and corrections, so complicated in fact that even someone as gifted and enterprising as Vladimir Nabokov can be moved to advise us, "It is no use looking for any unity of structure in this book."2" Still, one can venture a few suggestions about how this captivating book is put together, conceding as one does so that much must be left unsaid.

226. See, e.g., WEBSTER'S NEW WORLD DICIONARY. 227. Cervantes's two volumes, published ten years apart, report on activities only six months apart. The spurious volume was published in 1614, a year before Cervantes's second volume. Don Quixote and Sancho Panza learn of this spurious volume in the fifty-ninth chapter of Cervantes's second volume. See MIGUEL DE CERVANTES, DON QUIXOTE 750-56 (1981 (the John Ormsby translation in the Norton Critical Edition). 228. NABOKOV, supra note 225, id. at 169. 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 441 II.

What does Don Quixote seek? One answer to this question is provided in the opening lines of the second chapter of the first volume. Once the preliminaries described in the first chapter had been settled, we are told, Don Quixote decided to wait no longer before putting his project into effect, for he was afflicted by the thought of how much the world would suffer because of his tardiness. Many were the wrongs that had to be righted, grievances redressed, injus- tices made good, abuses removed, and duties discharged. So, without informing anyone of his intentions, and without anybody seeing him, one morning before dawn (which was one of the hottest of the month of July) he put on his suit of armor, mounted Rocinate with his patched-up helmet on, grasped his shield, took his lance, aiid by the back door of the yard sallied forth upon the plain. It gave him immense pleasure and satisfaction to see with what ease he had inaugurated his great purpose. 9 His great purpose, simply stated, was to save the world. This, too, reflects the Christian influence.23° Hundreds of pages later, in the opening chapter of the second volume of the book, Don Quixote explains himself in this fashion: My only endeavor is to convince the world of the mistake it makes in not reviving in itself the happy time when the order of knight-errantry was in the field. But our depraved age does not deserve to enjoy such a blessing as those ages enjoyed when knights-errant took upon their shoulders the defense of kingdoms, the protection of damsels, the succor of orphans and minors, the chastisement of the proud, and the recompense of the humble.23' One departure from the strictly Christian approach may be seen, however, in how Don Quixote describes the mission of knights-errant in Chapter 13 of the first volume. Here is the version of his description in the Nabokov commen- tary:

229. CERVANTES, supra note 227, at 29. 230. An instructive comparison can be made with the legendary labors of Heracles. 231. CERVANTES, supra note 227, at 430. 442 NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 19

The religious, in all peace and tranquility, pray to Heaven for earth's good, but we soldiers and knights put their prayers into execution by defending with the might of our good right arms and at the edge of the sword those things for which they pray; and we do this not under cover of a roof but under the open sky, beneath the insufferable rays of the summer sun and the biting cold of winter. Thus, we become the ministers of God on earth, and our arms the means by which He executes His decrees. And just as war and all the things that have to do with it are impossible without toil, sweat, and anxiety, it follows that those who have taken upon themselves such a profession must unques- tionably labor harder than do those who in peace and tranquility and at their ease pray God to favor the ones who can do little in their own behalf. I do not mean to say-I should not think of saying [at this point Mr. Nabokov interpolates, "people had to be careful what they said in those pious days"]-that the state of knight-errant is as holy as that of the cloistered monk; I merely would imply, from what I myself endure, that ours is beyond a doubt the more laborious and arduous calling, more beset by hunger and thirst, more wretched, ragged, and ridden with lice. It is an absolute certainty that the knights- errant of old experienced much misfortune in the course of their lives; and if some by their might and valor came to be emperors, you may take my word for it, it cost them dearly in blood and sweat, and if those who rose to such a rank had lacked enchanters and magicians to aid them, they surely would have been cheated of their desires, deceived in their hopes and expectations.232 Don Quixote, it seems, wants to do much-prayed-for things but to do them in a particular way-that is, in accordance with the long-established and widely-known code of knight-errantry. He senses there is no one else available in his day to do what needs to be done. Or rather, those who now undertake to right wrongs, such as the formidable Holy Brotherhood which polices Spain, proceed in a different spirit and employ different methods. And the world, he believes, but does not say publicly, is poorer for this transforma- tion."'

232. NABOKOV, supra note 225, at 123-24. 233. See, e.g., supra note 208. See also LEO STRAUSS, PERSECUTION AND THE ART OF 1999] LA WYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 443

Im.

There were knight-errants once, and whatever they supplied the world is still badly needed. They are never obsolete, whatever the world may now think. But Don Quixote is getting on in years-and so he must get a move on, even though he has to improvise not only, as we have seen, with the ceremony of initiation but also with the antiquated equipment and steed and with the squire available to him, Sancho Panza. What is really in it for the Don? The satisfaction of doing good, of course. But there is something more as well, which we can appreciate upon noticing that he rarely, if ever, does anything anonymously or inconspicu- ously. The eternal glory referred to in the opening chapter does seem to be aimed at by him and hence, a kind of immortality. Thus, Don Quixote can refer in the second chapter of the book to the "wise magician.., to whom shall fall the task of chronicling [his] extraordinary history."2" This access to immortality is reinforced by, if it is not even dependent on, Don Quixote's devotion to "the peerless Dulcinea." This devotion testifies to his dedication to the principles of knight-errantry: he lives according to a high code, freely chosen by him. A kind of being-or, rather, true Being-is affirmed and perhaps secured by doing what has to be done in accordance with well-established principles. He thus associates himself with a transcendent idea. Notice how the knight-errant in the spurious sequel can be described by a critic: "It is not that the false Don Quixote is clinically insane, as might first have been supposed, but that some stabilizer, some internal gyroscope of constant faith has been removed from his spiritual mechanism. But what is the name of the motivation, the stabilizer, the faith, that... seems to have [been] cut from the soul of [the spurious] Don Quixote? The name is Dulcinea. [He] no longer loves Dulcinea, and he changes his name to symbolize this new basis of his existence. He is not now the Knight of the Rueful Countenance but the Knight-without-Love (el Caballero Desamorado)."2" I suspect that we see here, in the differing accounts with respect to the place of love in knight-errantry, reflections of a critical debate about the proper response by the enlightened man to Christianity in Cervan- tes's time. Scholars still seem to be undecided as to who wrote the unautho- rized sequel published in 1614. I venture to suggest that it is not unimaginable

WRrIING (1952). 234. NABOKOV, supra note 225, at 114. Consider the observations about honor in the text at supra notes 61 and 134. See also supra note 126. Consider as well Falstaff's challenging critique of honor in Shakespeare's I Henry IV (V,i). 235. Stephen Gilman, in the Norton CriticalEdition of Don Quixote, supra note 227, at 1001. NORTHERN ILLINOIS UNIVERSITY LA W REVIEW [Vol. 19 that the resourceful Cervantes evident in Don Quixote is himself somehow responsible for that instructive "unauthorized" sequel.236 The distinction drawn by Don Quixote on one occasion between himself as a self-sacrificing warrior and the self-indulgent Sancho Panza probably distinguishes this knight from most of the rest of mankind as well: "Eat, friend Sancho, and sustain life, since that is of more importance to you than it is to me. Leave me to die of my thoughts and my misfortunes; for you may know, Sancho, that I was born to live dying and you to die eating."23

IV. Don Quixote's quest for the glorious immortality awaiting the properly- chronicled knight-errant reveals an underlying concern, in all that he does, with the prospect if not the imminence of death. He starts out on his mission when he realizes that his time on earth is drawing to an end. We notice in passing that there is relatively little reliance in this book on the immortality of the soul in the traditional Christian sense.238 Don Quixote is getting on in years, and it is only the careful reader who is likely to notice that Don Quixote exists only a few years as a knight- errant.29 But so intensely does Don Quixote live those few years as a knight- errant that the reader can leave the book with the impression of a much longer career in this effort by him to come to terms with the consequences of mortality in the world.' ° Perhaps Don Quixote's most dramatic encounter with death comes in the eleventh chapter of the second volume, "Of the Strange Adventure Which Befell the Valorous Don Quixote With the Cart or Wagon of 'The Parliament of Death'." Here is the Nabokov summary of that chapter: They ride toward Saragossa, Don Quixote in a trou- bled daydream allowing Rocinante to feed upon the abun- dant grass. Sancho spurs him on. He is much bigger, more cunning, and more evil than in the first part. [Whether

236. Consider another expression of an author's ingenuity suggested by the fact that Francis Bacon's New Atlantis is "unfinished," just as (it happens) that the ancient text he may be reflecting upon isalso "unfinished," Plato's Timaeus. On the Timaeus, see ANASTAPLO, THE THINKER As ARTIST, supra note 23, at 279. 237. NABOKOV,supra note 225, at 200. For the Muses' disparagement to Hesiod of "bellies," see HESIOD, THEOGONY 26 sq.; Anastaplo, Law &Literature and the Bible, supra note 86, at 793. 238. See supra note 126. 239. His career is like that of Jesus in this respect. Compare Socrates, whose distinctive way of life extended over decades. See, e.g., supra note 165. 240. See, e.g., ANASTAPLO, HUMAN BEING AND CTIZEN, supra note 6, at 214. See also supra note 227. 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 445

Sancho is indeed "more evil," which is the Nabokov interpretation, should be questioned, and in questioning this one can assess the limitations of the general Nabokov interpretation.] They meet with "a cart crossing the high- way, filled with the most varied and weird assortment of persons and figures that could be imagined. He who drove the mules and served as carter was an ugly demon, and the vehicle was open to the heavens and had neither awning nor framework of branches on which to stretch it. The first figure that Don Quixote beheld was that of Death himself, with a human countenance. Next came an angel with large and painted wings. At one side was an emperor with what appeared to be a gold crown on his head, and at Death's feet was the god called Cupid, without a bandage over his eyes but with his bow, his quiver, and his arrows. There was also a knight in full armor, except that he had no morion or helmet but instead wore a hat decked with vari-colored plumes." They are strolling players, and curiously enough Don Quixote, who had challenged the company, is satisfied with this explanation. A blow, however, frightens Rocinante- and only then does Don Quixote prepare to attack the "player demon," but is stopped by Sancho's wise advice and lets the "phantoms" go their way.24 This cart had come up just as Don Quixote was about to reply to the argument by the somewhat devious Sancho Panza, that time will take care of the problem of the degrading enchantment to which the peerless Dulcinea was believed by Don Quixote to have been subjected. (Is time also seen, in effect, as the cure for life?) Don Quixote is surprisingly sensible (for him) in dealing with these intimidating apparitions. Or, as it is put in the Nabokov commentary, "A curious adventure when compared with former ones."242 Has not Don Quixote by now somehow come to terms with the prospect of death?

241. NABOKOV, supra note 225, at 167. The Nabokov characterization of Sancho Panza as "evil" challenges,.in effect, what may be the central presupposition for the discussions in this Collection, that the Good is somehow aimed at by everyone. This is not to deny, of course, that evil does exist-but there may be far less of it than may seem. See infra note 481. 242. NABOKOV, supra note 225, at 167. NORTHERN ILLINOIS UNIVERSITY LA W REVIEW [Vol. 19

V. The eleventh chapter of the second volume, depicting this revealing encounter with death, happens to be one of the two central chapters in the entire work. The other is the twelfth chapter of the second volume. There are 126 chapters altogether, with the 63rd and 64th chapters at the heart of the 243 work. Cervantes could determine upon preparing his second volume for publication how long his entire work would be. The full scope of what he was doing, or of what he had before him, may not have been apparent to him from the outset of the first volume. It does sometimes seem that the character and possibilities of Don Quixote began to impress themselves upon Cervantes as his inspiration took hold. This seems to have happened, but perhaps to a lesser extent, in the case of the Sancho Panza character as well. By the time the second volume is in hand, the artist is truly in control. The central chapters of the whole are put by him in the second volume, from which he can survey and comment upon that whole. These decisive chapters, if they are indeed decisive, stand in nice contrast with the eleventh and twelfth chapters of the first volume, which were "givens" for Cervantes when he 244 produced his second volume a decade after the first volume. The artist at work in this bursting-out-all-over novel is certainly a self- conscious one. There is much in these volumes about the making of books, with considerable talk of spurious accounts, of a critical Arab (that is, non- Christian?) historian, of translators, and of the effects of the first volume not only upon Spain but also upon Don Quixote himself. Distinctions are again and again drawn between the real thing and the imitation. Art does prevail, which is important when sanity itself is an issue. The central chapters of the entire work (Chapters 11 and 12 of Volume 11) are distinguishable from all of the others. These are, for instance, the only two chapters in succession in the entire array of Cervantes's 126 chapters that begin in an identical fashion to the extent that these do: "Of the Strange Adventure Which Befell the Valorous Don Quixote." In the first case, the chapter title continues, "with the Cart or Wagon of 'The Parliament of Death."' In the second case, the chapter title continues, "with the Brave Knight of the Mirrors." Is not the author thus calling to our attention the linkage between these two chapters? Strange is used in both titles; both have to do with deceptions, with the second title itself being a deception in a way

243. Both are interesting numbers, particularly 63 which is the product of 7 and 9, numbers long associated with chance and art. Sixty-four is the square of 8, itself the cube of 2. 244. The Nabokov commentary identifies Chapters I and 12 of the first volume thus: "These two chapters 11 and 12 are moments of dreamy respite in the novel." NABOKOV, supra note 225, at 122. 1999] LA WYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 447

(as we shall see).245 Death and Mirrors (or Art), I suggest may be critical to Don Quixote's, if not to Cervantes's, self-understanding. In various ways, I am also suggesting, Cervantes is signaling a few among his readers who are invited to notice how much he does control his complicated materials. When we do notice again and again how astute this artist is, should we not be led to suspect canniness in Don Quixote also, manifested on various occasions?

VI. Before we say more about Chapter 11 of Volume II, let us glance at its mate, Chapter 12. A Knight of the Mirrors is referred to in the title, but not in the text, of the chapter.246 The Nabokov commentary observes here, in Chapter 12, "At last Don Quixote meets a 'knight-errant' in the flesh 2 47 and steel, and love-sick of course! Are we not supposed to recognize the Knight of the Mirrors as a reflection, albeit a distorted reflection, of Don Quixote? We have here an imitation knight-errant, whose motives are (or at least become) mixed, especially when Don Quixote surprises him and perhaps us by defeating him in their first encounter (this is in Chapter 14 of Volume I). This second knight-errant is not altogether honorable, failing as he does to carry out the promises he made when vanquished by Don Quixote. After he is defeated by Don Quixote he returns to challenge and defeat him under another name, the Knight of the White Moon. (This happens in Chapter 64. In the meantime Don Quixote has had a dozen more adventures.) The purpose of the Knight of the White Moon, as a well-wisher from Don Quixote's village, is to oblige the defeated Don Quixote to retire, at least for a year, from his career of knight-errantry. We can see that Don Quixote cannot hold out forever against the repeated plots not of his enemies but rather of his well- wishers. Chapter 12 opens with Don Quixote's discourse on art, which he sees as holding a mirror up to life for the moral betterment of mankind. 4 Then a mirror-image of Don Quixote himself comes on the scene. In the text he is first known as the Knight of the Woods (or, depending on the translation, the Knight of the Grove); but the chapter title, with its Knight of the Mirrors, is the way that the author wants to identify this character to the reader.

245. There are other chapter titles with the term strange in them, seven altogether. Strange is also used in the last of Chapter 10, leading thereby into Chapter 11. 246. The name, Knight of the Mirrors, is first used in the text, as distinguished from chapter titles, in Chapter 14, just before Don Quixote overcomes that Knight in single combat. 247. NABOKOV, supra note 225, at 168. 248. See CERVANTES, supra note 227, at 483. NORTHERN IUINOIS UNIVERSITY LAW REVIEW [Vol. 19

Thus, it may be suggested, there is art and art: that is, better art and inferior (if not even bogus) art. This bears upon any recourse we may have to art as the way out of the problems that the human race confronts. Don Quixote, we can thus be instructed, is something of an artist himself in the way he organizes and describes his life, perhaps even making judicious use of consciously-accepted if not deliberately-contrived deceptions when they serve his "great purpose." In the Knight of the Mirrors, on the other hand, we see an artist who (however good some of his intentions may be) is eternally inferior to Don Quixote, however "successful" that knight (or reality?) may eventually be in retiring Don Quixote. (Their first conflict is triggered by what is implied by the Knight of the Mirrors about Dulcinea, who is herself very much a product of high art.)

VII. The apparently fortuitous combination of the two central chapters of the complete Cervantes novel is important, and not only because it shows that a highly self-conscious artist is very much in control there. Let us consider further Chapter 11 of the second volume. The "Parliament of Death" actors do not want trouble; they are not "principled"; they know they are merely acting the parts of the mortality- stricken potentates of the earth, and are willing to dispel any dangerous illusion that the threatening Don Quixote may have about them. (One of them even looks like a knight, but he is not "for real" in the sense that Don Quixote is. Recall how he is described: "There was also a knight in full armor, except that he had no morion or helmet, but only a hat decked with plumes of different colors.... 249) Don Quixote, who had been repeatedly deceived by windmills, a fulling mill, galley slaves, wine skins, sheep, and the like in the first volume, readily accepts the actors' explanation about who they are (and are not) and why they are in costume. They are not really Death, an emperor, etc., but rather (we can add) one way of dealing with death, by an allegorical kind of art. Don Quixote is not an allegory, or at least not in this sense. (Don Quixote realizes, when there is a falling out between him and them, that the stones with which they arm themselves are real, and hence that there is nothing to be gained by fighting them. He defers here to Sancho Panza, who is almost always of a pacific inclination. Also, Don Quixote may be leery of enchanted carts, considering how he was humiliated at the end of the first volume when he was returned to his village a virtual prisoner (indeed as a madman) in a cart.2" Later, however, Don Quixote can again display his

249. Id. at 480. 250. See NABOKOv, LECTUREs ON DON QUIXOTE, supra note 225, at 153. 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 449 courage, as with the Lion that he is willing to fight as well as in the way he braves the Cave.251 Chapter 11, with Don Quixote's encounter with "The Parliament of Death," follows immediately upon his recognition that Dulcinea is enchanted, perhaps even permanently lost to him.252 I have suggested that by this time, however, Don Quixote has come to terms with death itself. For one thing, a famous book records his adventures (of which, by the way, he had first happened to hear in his village, early in the second volume, from the very man who later disguised himself as the Knight of the Mirrors and thereafter as the Knight of the White Moon).253 Is death itself intended to be shown as something of an illusion? This encounter with the cart of actors is during Corpus Christi week, which again reminds us that Christianity is itself one response to death, effected through the story of another encounter with death, that of the bodily Jesus. Don Quixote, with his tales of knight-errantry, has another approach. Death and its worldly company are dismissed by Don Quixote as phantoms (this is at the end of Chapter 11). (May not one sense in which this is true be that the human being who dies is himself oblivious of death? Are only the living aware of death, and their fear of it may depend on the thoughtless assumption that they would be still aware of it when they have lost all power of aware- ness? Should not much the same be said, however, of the fame that Don Quixote yearns for?) Whether or not death is an illusion there may be nothing substantial to be done about it except perhaps to understand it by recognizing the limitations of human existence. Don Quixote observes to Sancho Panza, shortly before he goes to encounter the Knight of the White Moon, "There's a remedy for everything except death."2 54 Volume II goes on to work things out thereafter, taking the inevitability of death for granted. Don Quixote lives as a knight- errant: when he is obliged to give up that calling, he considers an alternative "profession," that of the disconsolate pastoral lover, but he senses that that is not right for him (especially after his "association" with Dulcinea?) and so he gives up on life altogether.

VIII. The first half of the entire work about Don Quixote, I have argued, is primarily about the problem of death, culminating in his dismissal of Death

251. Seeid. at 171,175. 252. See id., at 167. 253. See id. at 160. 254. CERVANTES, supra note 227, at 785 (this is in Chapter 64 of volume II). NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 19 and its worldly company as phantoms in Chapter 11 of the second volume. The second half, which begins in Chapter 12 of the second volume, I have suggested, is primarily about the problem of art. Of course, death is confronted one way or another to the end of the novel, just as art manifests itself from the beginning of the novel, not least in the way that Don Quixote shapes his career of knight-errantry. But art is much more prominent, much more consciously addressed, in the second half of the novel, especially with its reflections upon the history of Don Quixote already published and with its reports about how various people are responding to that publication. Among the consequences of the publication are the elaborate projects of the Duke and Duchess (aptly called, in the Nabokov commentary, "a dreadful ducal pair""'), the remarkable governorship of Sancho Panza, and the need by Cervantes to make sure that Don Quixote is known to be dead at the end of the second volume lest there be still another unauthorized sequel. How far the already-published accounts of Don Quixote influence events is ingeniously indicated by Don Quixote's refusal to go to Saragossa, thereby refuting the spurious history which had reported him as having visited that city.256 Don Quixote himself is seen as artist in the account, the quite controversial account, he provides of his visit to a fabulous cave. (One can be reminded, by this trip to the underworld as elsewhere, of the adventures and recollections of Odysseus. A Cervantes might wonder, for example, what Odysseus had encountered, comparable to a windmill, which he had taken to be the Cyclops. He might also wonder how much of Dulcinea there is in Odysseus' Penelope.) In both of the central chapters of the novel, then, there are deliberate deceptions that Don Quixote deals with adequately. Thus, he is not intimi- dated by an imitation of death; and he jousts effectively with an imitation of knighthood. The Knight of the Mirrors does come back eventually to prevail, but that is perhaps inevitable, as is the final appearance of death. The name assumed by the Knight of the Mirrors upon rising again, Knight of the White Moon, reminds us that mortal beings are subject to the relentless dispensa- tions of the heavens and their recurring "phenomena." Even though Don Quixote has to deal with (and finally is overcome by) the consequences of his own successes, the glory remains with him. Don Quixote's enduring glory comes in part from the masterly self- consciousness of his enterprise. Thus, he is prepared, at the beginning of the second volume, to go out to perform more deeds which would supply material for the additional tales about him promised by the author of the authentic first

255. NABOKov, supra note 225 at 117. 256. See id. at 202. Compare id., at 167 (the text at supra note 241). 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 451

volume.257 The story of Don Quixote becomes in part the story not only of his story-teller but also of the complicated relations between him and his story- teller. We are led to wonder, for example, how we can speak (as we again and again do speak) of the correct version of something that did not "really" happen. That is, what does it mean to say that there were improper imitators of the true historian of Don Quixote? We are not surprised to see in this exasperating yet challenging novel repeated comments, in effect, on the relation between art and reality, with perhaps one's personal responses to mortality (particularly to the demands and consequences of death and love) the key to one's own mastery of reality.

IX. Don Quixote, as a novel, has rarely been matched for its self-conscious- ness with respect to what it means for a story to be a book. This is, as Laurence Berns has observed, "the book about books," with the uses of enchantment a clue to the nature of imaginative literature. The curiously self- validating character of artistic things, a self-validation that is somehow rooted in nature, may be seen in how Don Quixote can defend the books of chivalry he so dearly loves: Do you mean to tell me that those books that have been printed with a royal license and with the approval of the ones to whom they have been submitted and which are read with general enjoyment and praised by young and old alike, by rich and poor, the learned and the ignorant, the gentry and the plain people-in brief, by all sorts or persons of every condition and walk in life-do you mean to tell me that they are but lies? Do they not have every appearance of being true? Do they not tell us who the father, mother, relatives of these knights were, the name of the country from which they came, their age, the feats that they per- formed, point by point and day by day, and the places where 28 all these events occurred? Even so, Don Quixote is a man who knows that appearances are not always to be trusted, counseling Sancho Panza that "one must touch with the hand

257. See id.at 161,165. On the relation between Odysseus, Telemachus and Homer, see ANASTAPLO, THE ARTIST AS THINKER, supra note 142, at 248. 258. NABOKOv, supra note 225. See also Laurence Berns, Aristotle's "Poetics", in ANCIENTs AND MODERNS: ESSAYS ON THE TRADITION OF POLTCAL PHILOSOPHY IN HONOR OF LEO STRAUSs 70 (Joseph Cropsey ed., 1964). See as well Section VII of Part 13 of this Collection and the text at infra note 273. NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 19 what appears to the eye, if illusions are to be avoided."' 9 Elsewhere in the novel, we have echoes of, if not departures (by Cervantes, if not by Don Quixote) from, long-venerated doctrines. We have noticed that "the real world," which includes silly doings in this novel made much of by others in the name of love, reasserts itself in the forced capitulation and retirement of Don Quixote at the end of the story. Alonso Quijada, the good man who provides the foundation upon which the artist (whether Cervantes or Don Quixote himself) built, dies soon after the life of knight-errantry has to be given up by Don Quixote. Before Alonso Quijada dies, he abjures all that Don Quixote had believed and done with respect to knight-errantry. Does not this mean, in effect, that it is not truly Don Quixote who dies but rather a respectable Christian gentleman? If so, we are shown in still another way what art can do in rising above (if not even from) death itself.

12. ON IDENTITY2M°

The good man's opinions are harmonious, and he desires the same things with all his soul; and therefore he wishes for himself what is good and what seems so, and does it (for it is characteristic of the good man to work out the good), and does so for his own sake (for he does it for the sake of the intellectual element in him, which is thought to be the man himself); and he wishes himself to live and be pre- served, and especially the element by virtue of which he thinks. For existence is good to the virtuous man, and each man wishes himself what is good, while no one chooses to possess the whole world if he has first to become some one else (for that matter, even now God possesses the good); he wishes for this only on condition of being whatever he is; and the element that thinks would seem to be the individual man, or to be so more than any other element in him. -Aristotle 2 6'

259. CERVANTES, supra note 227, at 480. See John 20:24-29. On confirming by touch what has been seen or heard in, Machiavelli's Mandragola, see Law, Education, and Legal Education, supra note 33, at 636. 260. A talk given at the Lenoir-Rhyne College Hickory Humanities Conference, Wildacres Conference Center, Little Switzerland, North Carolina, May 14, 1998. 261. ARIsToTLE, NICOMACHEAN ETHICS 1166a13 sq. See Part 9 of this Collection. See also ANASTAPLO, THE AMERICAN MORAIMST, supra note 44, at 3-19. 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 453

I. A native North Carolinian, Richard M. Weaver (of Weaverville) , was a teacher of mine at the University of Chicago. He published (a half-century ago) a challenging book, Ideas Have Consequences.262 Among the lessons he taught was the importance of the vocabulary of one's day. Thus, he quotes Ralph Waldo Emerson as saying, "The corruption of man is followed by the corruption of language."2'63 Mr. Weaver's book could also be understood to argue, perhaps even more, that the corruption of language is followed by the corruption of man. Certainly, the terms that become fashionable from time to time can be revealing of the tendencies, interests, accomplishments, and errors of an age. The Twentieth Century, for example, has made much of the term commitment, in place of such old-fashioned terms as promise, dedication, andfaith. There may even seem to be something arbitrary, or at least not-grounded-in-nature, about commitment, however resolute (another Twentieth Century term?) one may be in the commitment one happens to enter into.2' Another of our terms is reaction, which has taken the place of response or even of answer; more recently, it has come to suggest something that we sometimes call a backlash (especially of an "anti-progressive" character). The term reaction,as it has been used for two centuries now, has been traced back to modem physics in this way: Dictionaries tell us that the word [reaction] first entered the vocabulary of modem political thought in eighteenth- century France, where it was taken over from the scientific treatises of Isaac Newton. In his Principiaof 1687, Newton had conjectured that every action in nature provokes an equal and opposite reaction. He did not think to apply this principle to politics, but his French disciples, notably Montesquieu, did. The Spirit of the Laws sets forth the "generating principles" of a body politic, which are nothing less than the laws of motion determining its political actions and reactions. This treatise established a mechanistic con- ception of politics in which movement and change are con- stant but not arbitrary, and whose reaction is a predictable 265 force.

262. See supra note 83. 263. WEAVER, supra note 83, at 148. See supra note 167. 264. On resoluteness, see ANASTAPLO, THE AMERICAN MoRAUST, supra note 44, at 143. See also supra note 78. 265. Mark LillaA Tale ofTwo Reactions, NEWYORKREVIEWOFBoOKS, May 14, 1998, NORTHERN ILINOIS UNIVERSITY LAW REVIEW [Vol. 19

The reference here to force can remind us of this as well as another linguistic adaptation from modem physics, the term masses. This latter term sometimes takes the place of such ancient terms as the people, the many, and the mob. When masses is used in a political context it suggests that people are to be moved more by forces (such as economic forces or emotions) than either by reason or by that rhetoric which is grounded in or at least makes a show of reason. The fashionable term we are particularly interested in on this occasion is identity. The announcement of the topic of our weekend conference, "Identity and the Self," has heightened my sensitivity to the term identity: I have been struck by how often it is used in the press and elsewhere these days. It should be useful, in anticipation of our discussions of the next three days, to notice a few things about this term identity, with suggestions about what it means and why it has become as prevalent as it now is. II.

The problem of identity is, of course, an old one, but the forms it takes today may reflect modem circumstances and challenges. A preoccupation with determining identities is dramatized, for example, by that distinctively modem literary genre, the detective story. Why such stories have become as important, or at least as popular, as they now are is something of a mystery. Perhaps they, like crossword puzzles and various card games, fall within a genre which permits a fairly high return in intellectual satisfaction for a modest expenditure of time and energy, and all this with a minimum of psychic discomfort and philosophic risk. The problem of identity is heightened for us as we appreciate what the passage of time, to say nothing of illnesses and accidents, can do to the appearances as well as to the conduct of others, making them seem unfamiliar to us. Thus, the wife of a long-retired faculty member we know in the University of Chicago neighborhood has observed that she sees quite elderly people on the streets these days about whom she wonders, "Who did you use to be?" Indeed, a more enduring form of this question can lead us to wonder whether we somehow need to be something more than we are usually taken to be, whether young or old. Is something more than is apparent implied both in our makeup and in the way we conduct ourselves? An exotic answer to this question is offered, in Plato's Symposium, by one of the characters in that dialogue, "Aristophanes," the comic poet. When "Aristophanes" is challenged to say what love is, he tells a story which has human beings originate as globular. In that form, they were much stronger and faster than human beings are now. But, "Aristophanes" reports, those primeval human beings proved 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 455 too rambunctious, even daring to threaten the gods. Zeus, in order to rein them in, literally had them cut down to size-that is, he had them sliced in half, leaving them in the shape we now know as human. Since then, "Aristophanes" explains, human beings have been desperate in their efforts to return to their original wholeness, seeking repeatedly and everywhere for their missing other halves. This search culminates, as we can confirm for ourselves every day, in the embraces that lovers resort to, intense embraces which pro- maise to restore them to the original completeness that they naturally long for. What makes this graphic "Aristophanic" story as memorable as it is? Is it not that we all sense there is something to it? It somehow rings true, at least now and then. This, then, is one form--the form of the lover-that the ancient quest for something we now call identity can be said to take.2"

To speak of that which is now called identity suggests that this, or something like it, was once called otherwise. It can sometimes be instructive to try to learn what the linguistic predecessors were for terms that are fashionable today. It is likely, for example, that neither ancient Hebrew nor ancient Greek and Latin had a term for privacy, as something to be cherished. That is, the general sense of what is good and bad did not have for the Israelites, Greeks and Romans a place in it for privacy and for its protection. Too much was made of the community, both in ancient Israel and in the ancient Greek and Roman cities, for privacy as we know it to be exalted.267 Similarly, we can ask whether ancient Greek and Latin or ancient Hebrew had a term such as our identity. Nothing readily comes to mind among the experts I have asked.26 The emergence of identity in modernity antici- pated, and came to be linked with, the emergence of individualism, another term which (in its favorable sense) does not seem to have had ancient counterparts. Related to this may be the replacement of the term soul in our vocabulary by the term self (as in self-esteem, self-fulfillment, and self- reliance).269 The terms we have just noticed-privacy,individualism, and self-seem to make much of human beings as somehow independent of the community. Perhaps these usages are encouraged by "theories" of human development

266. On Plato's "Aristophanes," see ANASTAPLO, THE THINKER AS ARTIST, supra note 23, at 171. See also Pierre Louys, La chevelure. 267. See supra note 74. 268. Consider the opening words of Plato's Phaedo. See also infra note 272. 269. On how self, identity, and individualism may be brought together, see EVA T. H. BRANN, THE WORLD OF THE IMAGINATION 174 (1991). See also infra note 272 and the text at infra note 319. NORTHERN LLNOIS UNIVERSITY LA W REVIEW [Vol. 19 which consider the original condition of human beings to have been in "a state of nature," out of which individuals come (by contract or otherwise), bringing with them a consciousness or personalityto be preserved and developed with the minimum of interference from the community (which is regarded as artificial and, at times, no better than "a necessary evil"). One is not an integral part of any community; rather, one plays what we call a role. One scholar has made the following suggestions about the origins of the modem term, identity: "Identity is a word of late and scholastic Latin: identitas. It comes from the language of metaphysicians ... For the scholastics, identitas defines the character of being-in-itself, the semper idem, the Same (le Mime), unaltered by inconstancy in time..., 27o But, whatever its origins, we should notice what has become of this term.

IV. A particularly striking use of identity today may be seen in the phrase, identity crisis. This phrase is used all around us, all the time. One must wonder whether there is something about the very notion of identity which invites, if it does not require, crises. I was particularly charmed upon hearing recently a Schaumburg, Illinois official explain why that Chicago suburb was so intent upon getting a minor league baseball team: "This is an identity thing," he said, "not a baseball thing." Perhaps the most influential, if not even the original, use of identity crisis has been found in studies of adolescence. Perhaps, also, the young appear now to have many more "choices" to make than earlier generations did, and this can be troubling. But this sense of crisis easily moves over to adults, and even to associations and countries. Is this somehow an aspect of the modem appetite for youthfulness? Be that as it may, one could once be fairly secure in one's sense of one's place and circumstances. Consider, for example, the kind of question that is put again and again in Homer, "Stranger, let me ask you first of all: Who are you, where do you come from, of what nation and parents were you born?"27' Although identity crises (as personality disorders) were once associated, clinically, primarily with adolescents, they now seem (as I have indicated) to have a wider range: they are somehow symptomatic of contemporary styles and problems. One is not sure about who one is-or about what one should take one's bearings by. Do we tend to use identity crisis whenever we might once have used ignorance?

270. Marc Fumaroii, 'Iis an Other':Delusions of Identity, DIOGENES, vol. 45/1, no.177, 112 (Spring 1997). 271. See, e.g., HOMER, ODYSSEY XIX, 100. See also id., at VII, 236, IX, 254. 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 457

And so we have developed various devices to help us identify ourselves: Social Security numbers, drivers licenses, credit cards, "Who's Who" registers, even name-tags. We can well wonder what flaws or faults an undue concern with identity is likely to result from and lead to. Four or five decades ago the issues we are touching upon here might have been put in the form of a distinction between "outer-directed" and "inner-directed" persons. Now, it can sometimes seem, being directed in any way is suspect as an infringement of one's "autonomy."

V. An alternative to an emphasis upon identity, or perhaps upon inner- directedness, is an emphasis upon being a human being of an appropriate character. That is, one should aim to be and to do what is called for in one's circumstances; one does not look for excuses or explanations for some other response. The "personal" or the "subjective" is to be avoided; but so is "rigidity." That is, flexibility and adaptability are to be encouraged, which are critical to the virtue of prudence. Whatever the ultimate origins, medieval or otherwise, of the term identity, it seems to come immediately, for our current usage, from logic and mathematics. In order to have an identity between two things, we are told by logicians, they must be equal in all respects--or at least in all respects we are interested in. The emphasis here seems to be placed upon the fact of sameness, rather than upon what one is the same as. That is, the "samenessity" becomes critical, not the standards for or even the conse- quences of such sameness. It is this that advertising and constantly changing fashions cater to and take advantage of, with an ever-adapted-to "conformity" (or a sometimes senseless non-conformity) resulting from our sensitivity to what others say, do, and look like. On the other hand, could it not be said that the very best human being is without an "identity," as conventionally understood, but rather is turned toward, if not amalgamated with, the very best? An eternally existing, or at least frequently recurring, thing is looked to as a model and for guidance. We should notice here, if only in passing, that an emphasis upon personal identity may be in large part due to deeply-ingrained doctrines about "the immortal soul" and hence about one's salvation as a distinctive being. These theological doctrines, however diluted if not even repudiated in some quarters these days, may still be critical to vital differences between ancients and moderns.272

272. See supra note 126. On the self, see ANASTAPLO, HUMAN BEING AND CITIZEN, supra note 6, at 87. NORTHERN ILLINOIS UNIVERSITY LA W REVIEW [Vol. 19

VI. Do not standards (and any need or authority for being "judgmental") tend to be called into question whenever much is made of identity? The, emphasis tends to be (in response to the injunction, Know thyself) upon establishing or making an identity for oneself, rather than upon discovering or finding it. Discovering suggests that there may be standards grounded in nature (if not in an authoritative revelation), standards which suggest the character (or, if we prefer, the identity) appropriate in the circumstances. To approach these matters thus is to make less than we might otherwise be inclined to do these days of reactions,forces, and even chance. But another long-fashionable expression, conquest of nature, looks the other way here. Such a conquest, which makes much of making or establish- ing (instead of discovering or finding), cannot look (at least directly) to nature as a guide. Rather, it seems, our popular conquest of nature tends to be in the service of the desires we happen to have, desires which may ultimately be rooted in nature but which are very much shaped by chance and the interests of the day. Egotism may be very much in evidence here, as well as a frantic desire to make "something" of oneself.

VII. An emphasis upon "identity" may be related to, or may depend upon or lead into, what we know as "existentialism." This can be considered an "identity-producing" or "identity-defining" approach. It could well be called "identityism" instead of "existentialism." (It is here that commitment is made much of, as well as an emphasis upon the self.) Underlying these modern developments is the acceptance of the notion of individualism as a very good thing. One form that individualism takes is that of modern art, which does so much with subjectivity and a repudiation of traditional notions. A related form of individualism may be discerned in the shift, in constitutional law, from the traditional term freedom of speech to a much more fashionable term today, freedom of expression. This is a shift from citizens who are concerned with an activity aimed primarily at serving the common good to human beings who are concerned most of all with an activity aimed at permitting personal gratification. This is related to an emphasis upon creativity, which is to be distinguished from regarding art as an imitation of nature.273

273. On "freedom of expression," see ANASTAPLO, THE AMENDMENTS TO THE 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES

Again and again we can see, in these shifts in vocabulary, the opinion-a sometimes desperate opinion-that one is "essentially" on one's own in this world.

VIII. And yet, do we not sense that there is something vital missing whenever self-centeredness dominates our lives? That missing vitality is glimpsed in the story we have recalled from Plato's "Aristophanes" about the origins of love among human beings. Another exotic story testifying to "Aristophanic" tendencies in the human soul is provided us by a recent Art Institute of Chicago exhibit of West African art. This exhibition was introduced in this way: About one million people living in Ivory Coast [in West Africa] now identify themselves as Baule (pronounced bough-lay). They are one of the largest ethnic groups in the country, and have been leaders in the creation of an inde- pendent modem nation. Baule artists work in an ancient art tradition, consid- ered one of Africa's greatest. Baule art is constantly exhibited in museums, but is not easily seen in Baule villages. Most art objects are powerful and belong to private individuals who keep them hidden or discreetly out of sight.274 (We can notice in passing here the curator's use of identify in describing how this West African people see themselves.) Further on we are told by the curator of features of Baule life which can remind us of Plato's "Aristophanes" (this was in a poster on a wall of the exhibit): Spirit Spouses. Many figure sculptures represent the husband or wife who was left behind in the other world at birth. They belong to men, women, and children and depict a Baule ideal of social and physical perfection. Spirit spouses watch over their human partners, bringing them happiness and good fortune. The sculpture is kept in the

CONSTTrTION, supra note 55, at 53-56, 63, 68-69, 128-29, 225, 238. See also the text at infra notes 319 and 419; infra note 410. On imitations, see Berns, supra note 258. On "commitment," see the text at infra note 388. On existentialism, see ANASTAPLO, THE AMERICAN MORAUST, supra note 44, at 139. 274. Art Institute of Chicago Brochure, February 14-May 10, 1998. NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 19

bedroom where only the most intimate companions will ever glimpse it. Physical or emotional distress often heralds the presence of a spirit spouse. This account was elaborated in another description (also in a poster on a wall of the exhibition): Spirit spouse figures are the most private of Baule sculp- ture. They are kept shielded from view in a private space and are often draped in a white cloth. While the sculpture form of a spirit figure is ultimately unimportant to its efficacy, people enjoy the beauty of their spirit spouses as perhaps the only sculptures that they can handle and see whenever they please. The description accompanying one of the pieces on exhibit further informs us: This sculpture is unusual, as if it just left the artist's hands. In some sense a spirit spouse is an alter ego, a sort of invert- ed double of his or her human partner: other-worldly, of the opposite sex, and often antisocial. However imperfect their human partners, they are physically idealized. They also express the disorienting idea that humans might harbor in themselves elements of the other sex. Sculptures both por- tray and remedy this situation by externalizing and isolating the male side of a woman and the female side of a man. A Baule woman (Kouskou Ndri Genvieve) is recorded as having described (in 1996) how her parents had cared for her when she had been quite ill as a child. What they learned from a diviner on that occasion is reflected in this report by the woman about a statue of her spirit spouse provided for by her parents (this report was in a poster on a wall of the exhibit): When I grew up they brought the statue down [had it carved]. When they brought it down, they asked me not to sleep with a man from here [on earth] on Wednesdays. He [the spirit spouse] came and slept with me in dreams. No,

275. "Spirit Wife Figure (Blolo Bla), Wood 1920s or 1930s (Staatliches Museum Fdr Volderkunde, Munich)." On shadow women in India and Greece, see Wendy Doniger, Sita and Helen, Ahalya and Alcmena: A Comparative Study, 35 HISTORY OF RELIGIONS 21 (1997). See also WENDY DONIGER, SPLITTING THE DIFFERENCE: GENDER AND MYTH INANCIENT GREECE AND INDIA (1999); ANASTAPLO, THE AMERICAN MORALIST, supra note 44, at 3 ("Who Am I?"). 1999] LAWYERS FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 461

it is not like an ordinary man, but he sleeps with me in dreams. Would not "Aristophanes" have particularly enjoyed the implications of this "never [or is it "always"] on Wednesdays" arrangement? Certainly, he would have observed, both the Baule (with otherworldly spirit spouses) and he (with originally globular human beings) try to account for the complicated character of human life, something that is not reliably recognized by a more or less self- centered identification process.

DC. I return, in closing, to Richard Weaver, the North Carolinian with whom I began. The need for establishing one's identity suggests that the traditional modes for locating oneself (say, as part of a family, of a tribe or people, or of a country) can no longer suffice for us. Of course, one's country may have always been at bottom a convention, albeit a glorified convention, but it may be natural for human beings to have such conventions. These can include the various forms taken by the languages that human beings naturally have. How far even we in this country have moved in a few decades from the traditional mode for locating and directing oneself is suggested by a remark- able story recorded by our North Carolinian: During the early part of the second World War there came to light the story of a farmer from the back country of Oklahoma-one of the yet unspoiled-who, upon hearing of the attack [in December 1941] on Pearl Harbor, departed with his wife to the West Coast to work in the shipyards. His wife found employment as a waitress and supported the two. Unable to read, the new worker did not understand the meaning of the little slip of paper handed him once a week. It was not until he had accumulated over a thousand dollars in checks that he found out that he was being paid to save his country. He had assumed that when the country is in danger, everyone helps out, and helping out means giving.276 Our venerable North Carolinian speaks here of "the yet unspoiled," which seems to look (perhaps more than he himself does explicitly in his challenging tradition-minded book) to nature as the supreme guide in ordering our affairs,

276. WEAVER, supra note 83, at 121. One thousand dollars in the early 1940s had the purchasing power of about ten thousand dollars today. Another indication of how much this country has changed since the Second World War is the astonishing (and indeed cynically exploitive) rise in legalized gambling. See infra note 426. NORTHERN ILLINOIS UNIVERSITY LA W REVIEW [Vol. 19 including the proper shaping of the human soul. It may not matter to someone who is properly shaped, especially if he should truly know himself, how he happens to be identified by those who do not, perhaps cannot, truly know either him or themselves.

2 77 13. "THE LAW'S DELAY" ACROSS THE CENTURIES

No man condemned to dye shall be put to death within [four] days next after his condemnation, unless the Court see sptiall cause to the contrary, or in case of martiall law, nor shall the body of any man so put to death be unburied 12 howers, unlesse it be in case of Anatomie. -Massachusetts Body of Liberties (1641)278

1. Prince Hamlet, in his famous soliloquy about the tribulations that flesh is heir to, complains about, among other things, "the law's delay. 279 This is a familiar enough complaint, so much so that directives have been laid down across the millennia against legal delays-as may be seen in ancient codes, in the Magna Carta of 1215, in the Declaration of Independence of 1776, and in the International Covenant on Civil and Political Rights.280 This 1966 Covenant declares, in its Article 14, "Everyone charged with a criminal offense... shall be entitled... to be informed promptly... of the nature and cause of the charge against him." It declares as well that everyone is "to be tried without undue delay." But it is also provided in this article that the accused is entitled "to have adequate time and to communicate with counsel of his own choosing." That is to say, it seems that there are delays to be permitted (if not even required) as well as delays to be avoided. One salutary aspect of delay is recognized in Plato's Apology, when Socrates recognizes (at the penalty phase of his trial just after his conviction) the difficulty he confronts in persuading those who will judge him:

277. A talk given in the First Friday Lecture Series, The University of Chicago, The Cultural Center, Chicago, Illinois, June 4, 1999. This talk was dedicated to the memory of Erica Aronson (1922-1999), adistinguished graduate of the Basic Program of Liberal Education for Adults, The University of Chicago. 278. MASSACHUSETrrSBODYOFLIBERTIES (1631), Article 44. See Anastaplo, ILIBERTY, EQUALITY & MODERN CONSTITUTIONAUSM, supra note 74, at 182. 279. See SHAKESPEARE, HAMLET, act 3, scene 1,line 72. On Hamlet, see ANASTAPLO, THE ARTIST AS THINKER, supra note 142, at 18-20. 280. See United Nations General Assembly Resolution 2200A (XXI), 21 U.N. GAOR Suppl. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171(entered into force March 23, 1976). 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 463

I am convinced that I do not do injustice to any human being voluntarily, but I am not persuading you of this. For we have conversed with each other a short time [in this trial]. Since, as I suppose, if you had [here in Athens] a law like other human beings, not to judge anyone in a matter of death in one day alone, but over many, you would be persuaded. But as it is, it is not easy in a short time to do away with great slanders.2"' Thus, just as we can sympathize with Hamlet's complaint, so we can understand Socrates' criticism here of the law of his city. Underlying our tendency to encourage some delays and to discourage others are more or less reliable notions among us about what justice calls for in various situations. The underlying question here, then, is, "What is justice?" A related question is as to how justice is apt to be secured from time to time. These and like questions can lead to speculations about the best ordering of a commu- nity. Difficulties with the law are suggested at the outset of the first system- atic discussion of justice that we have in Western literature, that found in Plato's Republic. It is in Book I of that dialogue that we can hear Thrasymachus proclaim to Socrates that justice is nothing but the interest of the stronger. It is this, he argues in effect, which is incorporated in the laws of a city, laws that are made by the most powerful.28 2 This view of things is recognized by social critics such as Karl Marx. It is only natural, they might say, that people will try to benefit themselves whenever they have to make judgments about matters that affect their own lives. It very much matters, according to such critics, whose law we are talking about. This is what is called "realistic." Of course, some people may be better than others in determining what is truly beneficial for themselves. Plato's Thrasymachus may be too much of a "realist" to see the whole properly, that whole which permits one to discern what is truly in one's interest, especially in the long run. In fact, he as a rhetorician is, despite his blustery ways, too much dependent upon others to see either them or himself clearly. Besides, he is effectively discredited when Socrates displays himself as the stronger.2 3 But however effectively someone such as Thrasymachus might be checked, at least for the moment, questions remain as to what indeed justice

281. PLATO, APOLOGY OF SocRATES 37a-b. See the text at supra note 6 and the text at infra note 385. 282. See the text at supra notes 87 and 196. 283. See PLATO, THE REPUBUC 350b-e. NORTHERN ILLNOIS UNIVERSITY LA W REVIEW [Vol. 19 is and how law properly serves it. The role here of prudence should be noticed, as may be seen in Judge Blackstone's observation that in some cases, involving little debts and minute actions, "even injustice is better than procrastination." '284 Or, as Hamlet might put it, settling matters one way or another fairly quickly, however roughly, may be better than repeated postponements in an effort to get things "just right. 285 II.

However useful Hamlet may be as our point of departure in thinking about the implications of the law's delay, it is not in the Hamlet play that we find Shakespeare's most extended investigation of the nature (and hence the limitations) of law. This is not to deny that critical to Hamlet's situation is that there is no system of law available which might be looked to by him for a redress of his grievances. Self-help has to be resorted to by the desperate Prince, or so it seems-and that kind of law-enforcement on his part turns out to be subject to one troublesome delay after another. The dominant uses of the term law in Shakespeare are to be found in two other plays, Measurefor Measure and The Merchant of Venice. In Shake- speare, too, we can see that there are delays to be permitted (and even required) and delays to be avoided (or properly remedied). Thus, we can see in The Merchant of Venice how monstrous it may sometimes be to try to eliminate the law's delay: Shylock, who had perhaps been mistreated earlier by his critics, destroys himself by insisting upon the immediate enforcement of a law by the use of which he had planned to have his bloody revenge. Shylock counts upon the need for the law to be executed promptly and precisely (according to the bond), if a commercial city such as Venice is to be reliable and hence efficient. But because the law is being interpreted in the interest of someone more powerful than a Jew in Venice ever can be, Shylock becomes entangled in the law he tries to exploit-and he ends up pleading, as advocates of his intended victim had done earlier, for a relaxation of the application of the law against himself.28

284. 4 WLlAM BLACKSTONE, COMMENTARIES 415. See ANASTAPLO, 1 LIBERTY, EQUALIrY & MODERN CONSTrruTIONAUSM, supra note 74, at 137-38. 285. This approach may even be seen in the controversy, from time to time, about whether baseball umpires should have access to video replays in order to decide "close calls" on the field. 286. On The Merchant of Venice, see Anastaplo, On Trial, supra note 75, at 935. Compare LUDWIG LEWISOHN, THE LAST DAYS OF SHYLOCK (1939). On the consequences of power, see the text at supra note 283. 19991 LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 465

In Measure for Measure, on the other hand, we can see the crisis confronted by a city, Vienna, or at least by its ruler, when the enforcement of its laws has been long delayed. Harsh measures, and hence perhaps harsh men, may have to be resorted to in order to correct matters." 7 But, as we can also see in this play, the lasciviousness and other vices that had been permitted if not even encouraged by years of the law's delay in Vienna may have helped infect and corrupt the very man commissioned to be the Enforcer."' We can be reminded, by these and other plays, that things in Shake- speare, including familiar adages about the law, may not be as simple as they first seem, especially as one is encouraged to consider what it is prudent to do, and not do, in a variety of circumstances. mI.

The classic account-and in critical respects a much simpler ac- count-of the law's delay in the English language is to be found not in Shakespeare, but rather in 's Bleak House (published in book form in 1853). This novel is presented against the backdrop of the generations-long litigation, Jarndyce vs. Jarndyce, in the High Court of Chancery. One of the consequences of this litigation is to so enrich the lawyers and others involved in it that by the time the matter is finally settled, there are virtually no assets left in the Jarndyce estate. A paragraph, early on, in Dickens's account serves to remind us of the flavor of a case which had become legendary: Jamdyce and Jamdyce drones on. This scarecrow of a suit has, in course of time, become so complicated, that no man alive knows what it means. The parties to it understand it least; but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable young people have been born into the cause; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties in Jarndyce and Jarndyce, without

287. See, e.g., MACHIAVELu, THE PRINCE, Chap. VII (on Cesare Borgia's use of Remirro de Orco). 288. Was it natural that Angelo, the Enforcer, should have been suspected and policed in turn? On "Quis Custodiet lpsos Custodes?," see ANASTAPLO, 2 LBERTY, EQUALITY & MODERN CONSTIUTMONAuSM, supra note 74, at 237. NORTHERN ILLINOIS UNIVERSITY LA W REVIEW [Vol. 19

knowing how or why; whole families have inherited 289 legendary hatreds with the suit. Dismal as this sounds, it is obvious that the author takes an almost fiendish delight in contemplating the appalling intricacies of this case. His paragraph continues: The little plaintiff or defendant, who was promised a new rocking horse when Jarndyce and Jarndyce should be settled, has grown up, possessed himself of a real horse, and trotted away into the other world. Fair wards of court have faded into mothers and grandmothers; a long procession of Chancellors has come in and gone out; the legion of bills in the suit have faded into mere bills of mortality; there are not three Jarndyces left upon the earth perhaps ...but Jarndyce and Jarndyce still drags its dreary length before the Court, perennially hopeless.2'9 The author then adds, "Jarndyce and Jarndyce has passed into a joke. That is the only good that has ever come of it." This is not quite so: for it has contributed to whatever good may be provided by Dickens's novel, an involved and not uninteresting melodrama with wonderful character sketches.29' Critical to the Jarndyce case, of course, is the issue of how one's property is to be distributed at death. This is a perennial concern, as may be seen in the efforts made in Magna Carte, six hundred years before, to restrain how the King and his agents dealt with the property of the deceased.292 We are reminded by Bleak House, in still another way, that the law's delay is not altogether bad: that is, it can be, in the case of a substantial estate, a more or less peaceful means of redistributing the wealth.293 However questionable the legal system described by Dickens may be, there does seem to be a vitality to the people involved and indeed to the life generally of the times that he shows us. Life, when it comes to be described by authors such as Franz Kafka in the Twentieth Century, can seem bleak indeed, if not even absurd.

289. CHARLES DICKENS, BLEAK HOUSE, Chap. I. 290. Id. 291. The characters include a man who dies of spontaneous combustion. 292. See also the opening provisions in the Northwest Ordinance of 1787. 293. Have Death Duties taken the place of Costs, in England, as the levellers of estates? 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 467

IV. A transition for us from Charles Dickens to Franz Kafka can be provided by Fyodor Dostoevsky, particularly through his Crime and Punishment (published in 1866). This is a more introspective, more Continental, approach to the workings of the Law than that found in Bleak House.294 In the Dostoevsky novel, there is far less concern than in Dickens, with property, or even with crime; there is far more concern with conscience and guilt and conversion of the soul. Personal redemption, not the rule of law, seems to be primary even for the investigating magistrate. (The proper translation of the novel may be "Transgression and Atonement," rather than "Crime and Punishment.") The law here, in the hands of the investigator, works to expose and reshape damaged souls. There is something Socratic about this effort. As such it requires time, or delay (including the law's delay), in working things out. This is, it can be suggested in passing, an approach that does foster a sense of community even as it makes reliable constitutional government less likely, a form of govern- ment which is very much dependent upon an almost instinctive respect for the rule of law. The very abuses catalogued in Bleak House presuppose the rule of law, just as the criticisms made there by Dickens remind readers of the objectives of a proper legal system. The basic concern with the soul in Crime andPunishment is in quite a different spirit. By the time of Kafka's The Trial, the kind of soul-searching developed by Dostoevsky has become a hopeless enterprise and the abuses of the legal system, which might inspire soul- searching, are beyond correction or even serious criticism.295

V. Dickens's Jarndyce and Jarndyce lasted for generations; the "trial" of Joseph K. lasts one year. Passages from the beginning and end of the Kafka novel (published posthumously in 1925) can remind us of the spirit of the entire work. This is the way the book opens: Someone must have traduced Joseph K., for without having done anything wrong he was arrested one fine morning. His landlady's cook, who always brought him his breakfast at eight o'clock, failed to appear on this occasion. That had never happened before. K. waited for a little while

294. A parallel may be seen in the difference between and Inspector Maigret. The Englishman, Father Brown, is, perhaps because of his Roman Catholicism, closer to Maigret than to Holmes in this respect. 295. For a sampling of Continental developments, see ANASTAPLO, THE AMERICAN MORALIST, supra note 44, at 125-80. NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 19 longer, watching from his pillow the old lady opposite, who seemed to be peering at him with a curiosity unusual even for her, but then, feeling both put out and hungry, he rang the bell. At once there was a knock at the door and a man entered whom he had never seen before in the house. He was slim and yet well knit, he wore a closely fitting black suit, which was furnished with all sorts of pleats, pockets, buckles, and buttons, as well as a belt, like a tourist's outfit, and in consequence looked eminently practical, though one could not quite tell what actual purpose it served. "Who are you?" asked K., half raising himself in bed. But the man ignored the question, as though his appearance needed no explanation, and merely said: "Did you ring?" "Anna is to bring me my breakfast," said K., and then studied the fellow, silently and carefully, trying to make out who he could be. The man did not submit to this scrutiny for very long, but turned to the door and opened it slightly so as to report to someone who was evidently standing just behind it: "He says Anna is to bring him his breakfast." A short guffaw from the next room came in answer; and it rather sounded as if several people had joined in. Although the strange man could not have learned anything from it that he did not know already, he now said to K., as if passing on a statement: "It can't be done." "This is news indeed," cried K., springing out of bed and quickly pulling on his trousers. "I must see what people these are next door, and how Frau Grubach can account to me for such behavior." Yet it occurred to him at once that he should not have said this aloud and that by doing so he had in a way admitted the stranger's right to superintend his actions; still, that did not seem important to him at the moment. The stranger, however, took his words in some such sense, for he asked: "Hadn't you better stay here?" "I shall neither stay here nor let you address me until you have introduced yourself." "I meant well enough," said the stranger, and then of his own accord threw the door open. In the next room, which K. entered more slowly than he had intended, everything looked at first glance almost as it had the evening before. It was Frau Grubach's living room; perhaps among all the furniture, rugs, china, and photographs with which it was crammed there was a little more free space than usual, yet one did not perceive that at first, especially as the main 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 469

change consisted in the presence of a man who was sitting at the open window reading a book, from which he now glanced up.2 And here, at a quarry, is how the book ends, or somewhat like this (depending upon which reading one regards as Kafka's final version): After an exchange of courteous formalities regarding which of them was to take precedence in the next task-these emissaries seemed to have been given no specific assignments in the charge laid jointly upon them--one of them came up to K. and removed his coat, his waistcoat, and finally his shirt. K. shivered involuntarily, whereupon the man gave him a light, reassuring pat on the back. Then he folded the clothes carefully together, as if they were likely to be used again at some time, although perhaps not immediately. Not to leave K. standing motion- less, exposed to the night breeze, which was rather chilly, he took him by the arm and walked him up and down a little, while his partner investigated the quarry to find a suitable spot. When he found it he beckoned, and K.'s companion led him over there. It was a spot near the cliff side where a loose boulder was lying. The two of them laid K. down on the ground, propped him against the boulder, and settled his head upon it. But in spite of the pains they took and all the willingness K. showed, his posture re- mained contorted and unnatural-looking. So one of the men begged the other to let him dispose K. all by himself, yet even that did not improve matters. Finally they left K. in a position which was not even the best of the positions they had already tried out. Then one of them opened his frock coat and out of a sheath that hung from a belt girt round his waistcoat drew a long, thin, double-edged butcher's knife, held it up, and tested the cutting edges in the moonlight. Once more the odious courtesies began, the first handed the knife across K. to the second, who handed it across K. back again to the first. K. now perceived clearly that he was supposed to seize the knife himself, as it traveled from hand to hand above him, and plunge it into his own breast. But he did not do so, he merely turned his head, which was still

296. FRANZ KAFKA, THE TRiAL 3-5 (Willa and Edwin Muir trans. 1965). NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 19

free to move, and gazed around him. He could not com- pletely rise to the occasion, he could not relieve the officials of all their tasks; the responsibility for this last failure of his lay with him who had not left him the remnant of strength necessary for the deed. His glance fell on the top story of the house adjoining the quarry. With a flicker as of light going up, the casements of a window there suddenly flew open; a human figure, faint and insubstantial at that distance and that height, leaned abruptly far forward and stretched both arms still farther. Who was it? A friend? A good man? Someone who sympathized? Someone who wanted to help? Was it one person only? Or was it mankind? Was help at hand? Were there arguments in his favor that had been overlooked? Of course there must be. Logic is doubtless unshakable, but it cannot withstand a man who wants to go on living. Where was the Judge whom he had never seen? Where was the High Court, to which he had never penetrated? He raised his hands and spread out all his fingers. But the hands of one of the partners were already at K.'s throat, while the other thrust the knife deep into his heart and turned it there twice. With failing eyes K. could still see the two of them immediately before him, cheek leaning against cheek, watching the final act. "Like a dog!" he said; it was as if the shame of it must outlive him.297 Thus, there are here the beginning and the end of this story, with several echoes in its end of what is heard in the beginning: such as Joseph K. not being dressed, having to deal with two strangers, and being watched by someone in a neighboring residence. Thus, the beginning and the end seem to match somewhat. But the problem is-and this may be the problem of the Twentieth Century, according to Kafka-the problem is that there is no middle to this story. That is, we cannot see, just as Joseph K. could not see, how things move from the beginning to the end or, which may be the same thing, what underlies or accounts either for the entire development or for this distressing situation. It does not seem to matter in The Trial whether the law is delayed, while it is obvious who seems to profit from the situation in Bleak House. It is hard

297. Id. at 284-86. Much of this account has a dreamlike content. I have argued from time to time that the dreamer is substantially in control of his dream. See, e.g., the text at supra note 160. 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 471 to see who profits from what happens in The Trial, where everyone seems to be imprisoned by the system. Certainly Joseph K. never learns why he is under investigation or who is doing what to him. In some ways, it is said, this Kafka novel anticipated not only Twentieth Century nihilism but also the terrors of European totalitarianism in the 1930s and 1940s and even American loyalty proceedings in the 1950s and 1960s. The meaninglessness of human existence is suggested, not without some high comedy here and there in the Kafka depiction. We sense that Kafka will have it this way with all of life, not just with what happens to Joseph K. in his last year: life itself is a trial that is hard to make sense of. There may even be something Socratic in Kafka's questioning of the conventions of his day. But it is not to Socrates but rather to Zeno of Elea that we should look for guidance here, the Fifth Century B.C.E. philosopher who is famous for his series of paradoxes (such as the one "proving" that Achilles could never catch the tortoise). Zeno, who has been called "the inventor of dialectic," can be great fun, just as (perversely enough) Kafka sometimes is. Reason is used by Zeno to subvert the common sense of human beings, pointing up thereby the gaps, the perhaps unavoidable gaps, in any reasoning process. But do we not naturally sense that Zeno, however compelling and even instructive his arguments, is deeply flawed? And cannot the same be said about Kafka? But perhaps there should also be said about Kafka something like what has been said about Zeno, to wit: "He more than compensated for [various logical] defects by an uncanny instinct for philosophically important issues and an unsurpassed power to invent philosophically exciting dilemmas."29

VI. Kafka, like any artist of talent, leaves us with the question of what kind of world this may truly be. This is the kind of question that Shakespeare, at least for us, is good at addressing. This, too, can be put in terms of law: how should we understand this world of ours to be governed? A scene at the heart of Shakespeare's King Lear is particularly salutary to draw upon here, the scene in which the Duke of Cornwall, although wounded by a servant in the process, personally gouges out the eyes of the elderly Duke of Gloucester for having attempted to minister to King Lear in his distress. Two servants have an exchange about the Duke of Cornwall and his murderous wife after this fierce pair have left the miserable Duke of Gloucester in the hands of two horrified servants who have witnessed the atrocity:

298. Gregory Vlastos, Zeno of Elea, in 8 ENCYCLOPEDIA OF PHILOSOPHY 378 (1967). NORTHERN ILNOIS UNIVERSITY LAW REVIEW [Vol. 19

Second Servant I'll never care what wickedness I do, If this man [the Duke of Cornwall] come to good. Third Servant If she [the Duchess of Cornwall] live long, And in the end meet the old course of death, Women will turn monsters. Second Servant Let's follow the old Earl Gloucester and get the Bedlam To lead him where he would. His roguish madness Allows itself to any thing. Third Servant Go thou. I'll fetch some flax and whites of eggs To apply to his bleeding face. Now, heaven help him 299

This scene can be considered the turning point of the play: from here on the men and women of evil are in a steady decline. Cornwell, it turns out, has himself been mortally wounded by the servant (First Servant) who had tried, at the cost of his life, to stop the blinding of Gloucester-and this will leave Cornwall's widow to compete with her equally evil sister for the sexual favors of the traitorous Edmund. It is not improbable that the barbarity resorted to by Cornwall would arouse resistance in ordinary folk, even in an anonymous servant.300 The servants may never learn all this-but their counterparts in the audience of the play do come to see this. The servants conclude here with the resolve to put the blinded Gloucester in the care of the Tom O'Bedlam who is wandering around outside, a "madman" whose "roguish madness allows itself to anything" (that is, immunizes him from the authorities). What the servants do not know is that Tom O'Bedlam is really Edgar, the disguised loyal son of Gloucester, who will thus be given an opportunity both to help his father and to discover the treachery of his brother Edmund, against whom he will then move with determination, armed with deadly information and moral confidence.30'

299. SHAKESPEARE, KING LEAR, act 3, scene 7, lines 102-10. 300. On King Lear, see ANASTAPLO, THE ARTIST AS THINKER, supra note 142, at 24-26. 301. See SHAKESPEARE, KING LEAR, act 5, scene 3. One can be reminded here of the dissembling Junius Brutus. See, e.g., SHAKESPEARE, THE RAPE OF LUCRECE; ANASTAPLO, THE ARTIST As THINKER, supra note 142, at 48-56. 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 473

The closing words of the servants had been, with respect to Gloucester, "Now, heaven help him!"' This prayer is well on its way to being answered, especially as a truly virtuous person (Tom O'Bedlam, or Edgar) is recruited and responds as he should to the challenges he encounters. Later on the blinded Gloucester protests, As flies to wanton boys are we to th' gods; They kill us for their sport. 3 This is hardly the interpretation of things that his son Edgar relied upon, still later, in speaking to his dying half-brother Edmund: My name is Edgar, and thy father's son. The gods are just, and of our pleasant vices Make instruments to plague us; The dark and vicious place where thee he got [begot] Cost him his eyes.' Edmund's response endorses Edgar's interpretation of how the world turns: Th' hast spoken right, 'tis true. The wheel is come full circle; I am here.' °3 Is the world indeed as Edgar has portrayed it, with the just gods arranging fit punishments? Unfortunately, Edmund's endorsement of Edgar's interpreta- tion of events should not suffice to assure us, since we do know how faulty Edmund's moral judgement has been throughout the play. What may help make the world seem to be governed by justice (whether divine or natural or both) is that there should be artists of talent who can endow us with credible stories to that effect.3°

VII.

This is not the view of the world that pervades the world of Kafka, a somewhat crippled artist. Shakespeare's world is more to be seen in Dickens, however much Dickens compromises his vision of things by his reliance upon elaborate coincidences. There is something of a decline in Dickens, partly because he is not as tough-minded as Shakespeare-and this leads him to the verge of sentimentality again and again.

302. SHAKEsPEARE, KING LEAR, act 3, scene 7, line 110. 303. Id. at act 4, scene 1,lines 36-37. 304. Id. at act 5, scene 3, lines 172-76. 305. Id. at act 5,scene 3, lines 176-77 306. See, e.g., the discussion of the Book of Job in Anastaplo, Law & Literatureand the Bible, supra note 86, at 680. See also supra note 218. NORTHERN ILLINOIS UNIVERSITY LA W REVIEW [Vol. 19

Dostoevsky is, in some ways, more Shakespearean. But Dostoevsky, far less than Shakespeare, does not lend himself to a system very much dependent on the rule of law and constitutionalism. Shakespeare, that is to say, is much more a political artist, one who is very much aware of the roles of the divine and of nature in the ordering of an enduring regime. We have seen that concerns about "the law's delay" oblige us to consider the nature of justice, and that in turn requires consideration of questions about the governance of the world. These inquiries permit us to begin sorting out the insights of Dickens, Kafka, and others and to come up, if only provision- ally, with a proper account of how things truly are with the law and with both the common good and personal happiness. In our inquiries here we can return to the Classics, not to Plato's teacher, Socrates, however, but to Plato's student, Aristotle. One finds in his work useful instruction in the ambiguities of justice by a philosopher who takes prudence quite seriously.' It can be seen, in how Aristotle proceeds, that one has to be careful in working out what is truly just and useful in any particular situation. Aristotle's teaching here is reinforced by what he has to say in his Poetics. Here is how a contemporary scholar has spoken of that treatise: [T]he Poetics [can] be regarded as the primary source for the Aristotelean analysis of piety and religion. Since religion, for Aristotle as well as for Plato, is a political matter, the Poetics would have to be regarded as, in a sense, a political book. The perfection of a tragedy then is also to be determined by how well it functions in taming the pride of the powerful and, in general, elevating the moral sense-the sense of justice of the political community.3"' The importance of the political order in the promotion of virtue is evident in the works, literary as well as philosophical, of "sound antiquity." We may well wonder what each of the artists glanced at on this occasion contributes to this worthy enterprise. Be that as it may, the importance of the political order in the promotion of virtue is testified to by other ancient works available to us, as may be seen in the lament in the closing verse of the Book of Judges: "In those days there was no king in Israel: every man did that which was right in his own eyes."3 9

307. See AIusToTLE, NICOMACHEAN ETHICs, Bk. 5. See also Part 9 of this Collection. 308. Berns, Aristotle's "Poetics",supra note 258, at 78. See also the text at supra note 258. 309. Judges 21:25. 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 475

14. SERIAL KILLINGS, THE MASS MEDIA, AND PUBLIC POLICIES32 0

Public sentiment is everything. With public sentiment, nothing can fail; without it nothing can succeed. Conse- quently he who molds public sentiment goes deeper than he who enacts statutes or pronounces decisions. -Abraham Lincoln3"

I.

Our point of departure on this occasion are multiple that are committed serially. These are to be distinguished from a massacre of many people in one episode, which is much more likely to be detected and dealt with immediately by the community. Serial killings done over an extended period usually exploit the vulnerability and virtual anonymity of the victims. That is, the victims are apt to be in exposed positions; they usually are not integral parts of the commu- nity. Often they are not known, or at least not cared for, by the community. The mobility of urban life, including the transiency of college students, contributes to these conditions as do certain kinds of "life style." Perhaps the classic case here is "," a Nineteenth-Century who preyed on prostitutes. He was, so far as we know, never apprehended.3t 2

II.

Criminologists talk of the "dark figure" in crime statistics. It is difficult to be certain about the numbers of various crimes committed in modem societies, if only because many crimes either are not reported by the victims or are inadequately recorded by the authorities. But, it is said, the "dark figure" is not likely to be a significant factor in murder statistics: corpses are very difficult to conceal or to dispose of in most communities. What is done, however, about a murder may depend somewhat on the circumstances, including the social status of the victim. What is done may depend, also, on whether connections are noticed between deaths. Thus, each

310. A talk given to the Law Panels, American Culture Association Annual Convention, San Antonio, Texas, March 30, 1991. 311. 3 THE CO.LECTED WORKS OF ABRAHAM LINCOLN, supra note 30, at 27 (August 21, 1859). 312. On Jack the Ripper, see SCOTT PALMER, JACK THE RIPPER: A REFERENCE GUIDE ix (1995); PAUL BEGG, MARTIN FIDO, & KEITH SKINNER, THE JACK THE RIPPER A TO Z (1992); COLN WILSON & ROBIN ODEIL, JACK THE RIPPER: SUMMING UP AND VERDICT (1987). NORTHERN ILLINOIS UNIVERSITY LA W REVIEW [Vol. 19 of the victims of a serial killer may be known to the authorities somewhere, but the connections between victims may not be noticed, especially if the killings are separated considerably by time or (more likely) space. The mass media sometimes have to be relied upon to notice the connections there may be, especially in circumstances where the community does not otherwise have on its own an intimate sense of what is happening. Here, too, "Jack the Ripper" is instructive: the press of that day dramatized his doings. The criteria used by observers in connecting those killings varied enough, however, to permit estimates of the number of his victims to range from five to fourteen. What the mass media does in defining the series of crimes committed by a serial killer can affect what the authorities try to do about them. In these, as in other matters, the "facts" do not simply offer themselves to an observer.

II. A Midwestern multiple-murders case with which I happen to be familiar, that of Larry Eyler, illustrates the suggestions I am making. Mr. Eyler, an man in his early thirties, was convicted in 1986 of a murder in Chicago, but not before he had come to be suspected of as many as two dozen torture-murders in Indiana, Illinois, and . Some, but not all, of the victims who have been attributed to him were very young males believed to be willing to serve on occasion as homosexual prostitutes. It seems that a Chicago television reporter, Gera-Lind Kolarik, was the first to suggest publicly that there might be a connection among a score of killings that had been recorded across three States during a four-year period. It also seems that the police came to share her opinion and this affected both what the police did in going after Mr. Eyler and what a Cook County trial judge did in sentencing him to death in 1986. The cooperation between this reporter and the authorities in several jurisdictions, which I have personally observed, is presented dramatically in her book, Freed to Kill (published by the Chicago Review Press in 1990). I know something about all this because I was asked to provide a comment on the and related matters as an appendix to the Kolarik book.a14 Police interest was heightened considerably when, upon investigation, connections did become apparent among these killings, leading to the development of a State Police Task Force in Indiana. Up to then the police in various jurisdictions had regarded these killings as separate instances of

313. See GERA-LIND KOLARIK, FREED TO KILL TIE TRUE STORY OF LARRY EYLER 17-18 (1990). 314. See id. at 367. 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 477 violence stemming either from escalating drug wars or from bizarre conflicts among homosexuals. In neither case could the public and hence the police become very concerned. One consequence of the publication of the Kolarik book further illustrates how critical the mass media can be even in a time when there is so much automated circulation of information around the country. This book stimulated the interest of Indiana television people in Terre Haute, especially when it was noticed that the book reported both that evidence was held by Illinois police about a 1982 Indiana murder and that Mr. Eyler had, in the course of his appeal in Illinois, blamed an Indiana librarian for the Chicago murder for which he had been convicted and sentenced to death. This revival of interest in the 1982 Indiana murder led in late 1990 to the indictment of the Indiana librarian for murder. Mr. Eyler has, in an effort to secure commuta- tion of his death sentence in Illinois, confessed to participating in this Indiana murder, for which he has recently received a sixty-year sentence. He is scheduled to be the principal witness in April 1991 against this librarian who denies all guilt. Mr. Eyler has also offered to describe a string of similar murders and to name . Thus far, the Illinois authorities have continued to press for the execution of the Eyler death sentence. The recently- elected Cook County State's Attorney is particularly concerned about what would happen to his "law and order" image if he should recommend commutation of the death sentence to life in exchange for the information Mr. Eyler has offered.315

IV. I presume to illustrate further what I have suggested about the mass media's shaping of our perceptions of events by reminding you of how the recent Gulf War came to be seen by us. What the Iraqis did (especially to the Kuwaitis, but also to their own people) was routinely presented by the mass media (in collaboration with the Pentagon) in much more lurid terms than what the anti-Iraq Coalition did to the Iraqi aggressors. And yet, the numbers of Iraqi dead since the invasion of Kuwait on August 2, 1990 have far exceeded the numbers of non-Iraqi dead. Similar sobering comparisons can be made in how the weapons used, or that were threatened to be used, by the contending parties in the Gulf War have been described. It is not generally noticed by us that the weapons of

315. See the 1992 Avon Books edition of Freed to Kill, pp. 377-410. Mr. Eyler (subsequent to my delivery of this talk) died in prison of natural causes. No alleged of his has ever been convicted. NORTHERN ILLNOIS UNIVERSITY LAW REVIEW [Vol. 19 mass destruction used by the Coalition in the Gulf War were in critical respects far worse than those that the Iraqis tried to use.3t6 All this has contributed to the "dark figure" we confront with respect to Iraqi casualties. This remains a mystery partly because it is officially considered in our interest not to be precise here, partly because the mass media tend to settle for illusions of understanding.

V. Why do we not insist on knowing more than we do about the massive damage inflicted on Iraq?" 7

316. Compare the discussion, in Part 17-B of this Collection, of the North American Treaty Organization intervention in Kosovo. See infra note 435. 317. See, e.g., a letter to the editor that I prepared on November 23, 1998 and which was published in The Hickory Daily Record, Hickory, North Carolina, Nov. 27, 1998, p. A-4: We all say things that sound good but that can sometimes be recognized upon further examination, as dubious if not even as monstrous. A recent statement by a respected public servant, the experienced Senator from Delaware (Joseph Biden), is an instructive case in point. He was asked what should be done if Saddam Hussein interfered again with the United Nations-mandated search in Iraq for the production of weapons of mass destruction. The Senator's response, which would no doubt be endorsed by many Americans in government and out, was simple, "I WOULD BOMB HIM." (November 22, 1998, Fox Network). What can this mean? One thing is for sure: whatever bombing of Iraq is done at this time, it is highly unlikely that Saddam Hussein himself will be personally injured. In fact, some argue, Saddam Hussein might even have his political position strengthened both in Iraq and in the Arab world if he should survive (as is expected) still another assault by the only remaining superpower. Who in fact would be bombed? The likely victims are those people who happen to be near the targeted areas, areas which those people may not even know the significance of in many instances. Indeed, most of the people hurt by our bombs would likely be the very people who are subjugated year in and year out by the ruthless regime in Iraq. Our bombing that country, for the reasons stated and in the way planned, is like bombing a prison and hence its miserable inmates because we do not like the villainous warden and his cruel henchmen. Much is to be said, of course, for doing what can honorably be done to help replace the tyrannical regime in Iraq, beginning perhaps with a promotion of the independent Kurdistan which seemed to some to have been promised by the United States during the Persian Gulf war in 1990- 1991. But that is evidently for the long-run. In the short-run we should at least recognize that, whatever Saddam Hussein may deserve for his notorious villainy, the only country which has resorted to a large-scale use of weapons of mass destruction in the Middle East during the past decade has been the United States. And we have followed up our devastating bombardments of Iraq with something 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 479

"Jack the Ripper" could be spoken of by a contemporary as the mysterious and awful product of modem civilization. One must wonder whether there has not been in our own time a further coarsening of sensibili- ties, as well as a deterioration of astuteness with respect to public affairs. This may be related to the callous departures by one nation after another in the Twentieth Century from the rules of war, especially rules about how non- combatants are to be treated. It can become almost routine, therefore, that an army can be slaughtered in the tens of thousands by a vastly superior enemy while that army, helpless and in disarray, attempts to flee to safety back home.

VI. The coarsening of sensibilities to which I have referred may be seen as well on our domestic front. After all, we have had for some time now in the United States violent crime on a peace-time scale found nowhere else in the Western World. The magnitude of such crime among us seems to be partly the result of permissive firearms policies and of counter-productive drug- suppression policies that we find almost impossible to improve."' Neither guns nor drugs would matter as much as they now do among us, however, if the opinions of the people were generally in better condition, opinions about what is truly good and desirable as well as opinions about what is virtually unthinkable for a human being to do. Both drug abusers and gun owners share an almost suicidal insistence upon going it alone, independent of the consequences of their activities for the community at large. This seems to be part of the long-term development among us of a dedication to individuality and self-expression, if not to mere self-gratification'19

that may be even more pernicious, an economic embargo which ensures that the helpless prison inmates (and especially their children) will suffer even more than they have already for the atrocities of their jailors. It is not the existence anywhere of great power that should be our principal concern, but rather how that power is used. Or, as it was put by one of Shakespeare's characters (in Measure for Measure, II, ii), "0, it is excellent to have a giant's strength, but it is tyrannous to use it like a giant." See also infra note 435, and the text at infra note 461. 318. On guns, see ANASTAPLO, ABRAHAM LINcOLN, supra note 18, at 274-72 n. 41, 274 n. 60, 310 n. 408. On drug-suppression policies, see George Anastaplo, Governmental Drug- Testing and the Sense of Community, 11 NOVA L. REv. 295 (1987). 319. On "freedom of expression," see supra text accompanying note 273. See also the text at supra note 269 and at infra note 419; infra note 410. NORTHERN ILUNOIS UNIVERSITY LA W REVIEW (Vol. 19

VII. The killing on the scale we are now accustomed to both at home and abroad is not likely to be reduced by the remedies made so much of in the mass media. Abroad, we have not been teaching lessons in moderation in the use of overwhelming power. At home, we hear much about the need for relaxed rules of evidence, for tougher judicial processes, for more use of the death penalty, and for building more and more prisons.'" These are remedies that seem to appeal, however futile they are likely to be, to the unreflecting audiences of the mass media. All this suggests is that a people that does have to depend on the mass media, for somewhat coherent views of itself and of what it is doing and is having done to it from day to day, will become a people subject to the natural limitations of the mass media. What is needed, instead, is a community that is both astute enough and self-confident enough to be serious about guiding not only the conduct but even more the moral sense of its citizens. On the other hand, the mass audiences catered to and shaped by the mass media are likely to oscillate between debilitating permissiveness and thoughtless ruthlessness in what they favor. This oscillation has been graphically illustrated in the Twentieth Century by the movement in Germany from the Weimar Republic to the Nazi Regime.32" ' Thus, however indispensable the mass media seem to have become for modem life, it is essential that we do recognize their intrinsic limitations and govern ourselves accordingly, if only by identifying and deferring to those among us who somehow manage to think and to feel for ourselves.322 It is the civilized human being who must constantly be addressed and held up for emulation, not least by those who desperately seek fulfillment in violence, including that violence which takes the form of one kind or another of self- destruction.

320. See, e.g., ANASTAPLO, 2 LIBERTY, EQuAUTY & MODERN CONsTITuTi NAtUSM, supra note 74, at 272. See also Eric Schlosser, The Prison-IndustrialComplex, ATLANTIC MONTHLY, 51 (Dec. 1998); the text at infra note 424. 321. See supra note 75, infra note 434. 322. On "the talented tenth," see W.E.B. DuBois, WRrriNGs 842 (The Library of America edition, 1986). 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 481

15. TECHNOLOGY AND COMMUNITY: LESSONS FROM AND FOR THE 3 23 UNABOMBER

And this we do also: we have consultations, which of the inventions and experiences which we have discovered shall be published, and which not: and take all an oath of secrecy for the concealing of those which we think fit to keep secret, though some of those we do reveal sometimes to the state, and some not. -A Father of Salomon's House3u'

I. THE CONSEQUENCES OF TECHNOLOGY 1. The primary thesis of the Unabomber's manifesto, "Industrial Society and Its Future," is that technology has created, or at least has contributed to, the critical problems of the Twentieth Century, so much so as to threaten the happiness if not the very existence of the human race worldwide.325 The Luddite tendencies in this manifesto (by a Ph.D.) may be discerned in most of us from time to time, especially as we notice how the familiar things we rely upon are disturbed by one innovation after another.3 26 These critiques of modern technology can be dramatized by what Dr. K's father told a friend, "that his son quit mathematics because he didn't want to teach engineers how to build nuclear weapons. 327 An even more dramatic way of expressing such critiques is to use mail bombs to kill three people and injure two dozen others. (This toll would have been much higher if the airliner once targeted by Dr. K had been brought down or if one or more of his mail bombs had blown up in airborne transit.) A good deal is to be said for the critiques that Dr. K draws upon. But much of what he says has long been "old hat," or in the backwater of Twentieth Century assessments of modern life. The same might be said, it

323. A talk given at the Loyola University of Chicago School of Law, Chicago, Illinois, May 8, 1996. On the career of the "Unabomber"between 1978 and 1985, and on Theodore J. Kaczynski, Ph.D., see Evan Thomas, Blood Brothers, NEWSWEEK, Apr. 22, 1996, at 28-39. 324. Francis Bacon, New Atlantis, in ESSAYS AND NEW ATLANTIS 300 (1942). See also, infra note 349. 325. The Unabomber Manifesto was published iiits entirety in the Washington Post (with the help of the New York Times). Citations to the manifesto in this talk will be to the numbered paragraphs in the Washington Post edition. See [Theodore Kaczynski], Unabomber Manifesto, WASHINGTON POST, Sept. 19, 1995. 326. See, e.g., supra note 54. 327. WASHINGTON POST, National Weekly Edition, April 15-21, 1996, at 7. NORTHERN LLINOIS UNIVERSITY LA W REVIEW [Vol. 19 seems, of the mathematics specialty in which Dr. K found himself trapped in his academic career. Dr. K sees technology primarily, if not exclusively, in its more materialistic forms and consequences, reinforced as these are by the free market which both exploits and promotes technology. He is said to consider himself a Kantian, but it is hard to imagine anyone further in spirit from Immanuel Kant, with his insistence, for example, upon openness in one's dealings with other human beings.32 2. Dr. K is mistaken as to what the more serious problems are that emanate from modem technology. He urges autonomy as a goal (here, the Kantian influence may be evident), insisting that "freedom and technological progress are incompatible. 329 No doubt, invasions of privacy may be enhanced by the use of technol- ogy, but these usually require substantial effort and can be expensive. Besides, technology permits effective anonymity and hence autonomy. This means, in practice, an unprecedented privacy and considerable leeway in the personal choice of one's "life style," perhaps more so than ever before in the history of the human race. One is left alone today to a surprising extent, perhaps too much so for the good either of the human being or of the community. There has been, at least in the Western World, the vigorous development since the late Nineteenth Century of a "right to privacy. 330 3. Technology arms the autonomy of people such as Dr. K, making it possible for them to strike from a distance, with immunity, and still talk to the rest of us. Anonymity permitted Dr. K to assert his autonomy at the expense - of the autonomy (that is, the safety and peace of mind) of others. The development of deadly concealed weapons, and of the means of delivering them to unsuspecting victims, may be "safely" exploited by anyone who troubles to apprentice himself to the devil in technology. This is has the kind comparable to what witches once tried to do. In some ways Dr. K 331 of soul long attributed to witches, who could be both naive and malevolent.

328. On Immanuel Kant, see ANASTAPLO, ABRAHAM LINCOLN, supra note 18, at 284 n. 163. See also ANASTAPLO, THE AMERICAN MORALIST, supra note 44, at 27-32. 329. Unabomber Manifesto, supra note 325, at paragraph 113. 330. See supra note 74. 331. On the trials of witches, see Anastaplo, Church and State, supra note 28, at 65. 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 483

4. There are many others who are somewhat in the position that Dr. K is. But they are more vulnerable to retaliation insofar as they are usually identifiable. These are the producers and purveyors whose victims we all are, whose "explosions" include cigarettes, guns, and pollution. All of the terrorists that we have suffered from in the United States since the Second World War have been pikers compared to these entrepreneurs, whose quite profitable companies are so respectable as to be traded on the stock market. (An investor may even benefit from dubious company profits without knowing it.) 5. Central to the consequences of technology today may be the intensifica- tion of paranoia. Paranoia, it is said, is pervasive on the Internet. Is this a healthy blowing off of steam? Or is it a way of legitimating and even 332 reinforcing dubious passions? Various uses of technology strengthen the tendency among us toward paranoia. Consider, for example, the news we routinely get from television: it is, in large part, the news of one disaster after another, with memorable pictures-and (in order to "engage" viewers) it is all made to seem just around the corner, happening to people just like us. All this can remind a few among us about how privileged they are: they can feel that they are "on top" of what is happening; they are not simply cogs in a machine or helpless victims; they have useful "contacts." Things will really become difficult even for the privileged few, however, when it is suspected that there is access by men of volatile character to "suitcase" nuclear weapons capable of demolishing large cities. The World Trade Center bombing and the Oklahoma City bombing are symptoms of a larger disorder.333 6. The more paranoid among us can "reason" that since "they" can act, with considerable anonymity, against "us", "we" must take precautions lest something awful be done to "us." We may even be moved to go so far as to resort to preemptive strikes. In these circumstances, one can regard a failure to be always "on guard" as a sign of weakness. Thus, Dr. K taunted a maimed Yale professor for having opened a package sent him by Dr. K. Yet was not Dr. K reasonable in

332. Dr. K records the impression that Leftists feel like losers. See Unabomber Manifesto, supra note 325, at paragraph 16. On paranoia, see supra note 41. The Internet, despite the wealth of "information" it offers, can keep youngsters from learning what other human beings (and hence the world) are really like. 333. See, e.g., Anastaplo, Lessonsfor the Student of Law, supra note 42, at 198, 206. NORTHERN ILLNOIS UNIVERSITY LAW REVIEW [Vol. 19 expecting other people to open the packages sent to them, even if they did not know where they were from or what was supposed to be in them? This is something we have always done, usefully so, deriving thereby considerable pleasure in many instances. 7. Technology has shaped various opinions that Dr. K, with many others, holds, opinions that serve as presuppositions for the technological society considered in the second part of this essay. Those opinions are disseminated or at least reinforced by the mass media. There was once a time when the only "literature" available to Dr. K would have been the Bible, whether in writing, in sermons, or in visual representations. Now we are all overwhelmed by information and opinions of an astonishing variety. No one can keep track of what is available to millions. Even the ways in which people are reached cannot be kept track of. Dr. K does not seem to appreciate how he himself has been shaped for decades. Certainly, he does not know the alternatives to the way of life that dominates the United States today, aside from his openness to a backwoods or agrarian way of life.3" 8. The character promoted, or at least made possible, by technology comes fr6m constant and intense stimulation. One can be encouraged to believe that one is thereby well informed or "with it." Along with this, however, comes the feeling of being threatened, if not already under attack, by forces beyond one's control or even one's ken. People easily fall into serious eriors-and they compound this by insisting upon the additional error that they are entitled to be "here." They may even consider themselves superior because of their errors, which may be regarded as distinctively their own. 9. Dr. K personally makes much of an anti-collectivist position. This seems to be related to his emphasis upon autonomy, which is part of the modem mythology to which he subscribes. The Montana-style way of life, in which Dr. K sought refuge, can be held up as a model. What has gone wrong out there in the Old West, so much so that determinedly anti-social people are very much in evidence? The Public Broadcasting System "Car Talk" program has, for some months now, been ridiculing the repeal in Montana of daytime speed limits on its highways. Unfortunately, "Montana" is everywhere these days: in Michigan, in Texas, in California (with a Lotus Land overlay), in Georgia, and in Oklahoma.

334. See Section 9 of Part I of this Unabomber talk. 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 485

We may see in Dr. K an extreme version of somewhat plausible opinions. (All opinions, it should be remembered, are susceptible to extreme versions.) Of course, Dr. K does not see himself as truly an extremist. After all, he can consider himself the champion of America and the West, which he says that the Leftist hates because they are strong and successful.33

II. THE PRESUPPOSITIONS OF TECHNOLOGY 1. The presuppositions of technology can be accepted even by those, such as Dr. K, who attack technology. That these are the presuppositions of technology may not be recognized by the attackers, however much these are essential for their position.336 2. Critical for technology, at least as developed and supplied in the West, is a glorification of individualism. It is routinely argued today that one should be substantially exempted from control by society. Isolation from one another is taken for granted as permissible, if not even as desirable. 337 This individualism finds expression in the insistence upon autonomy. It also finds expression in, as well as dependence upon, the prerogatives of private property. It may even be assumed that such property exists and can be held independent of any law. 38 3. A related opinion is as to the importance of self-preservation (or self- fulfillment). The pervasiveness of the passion for self-preservation may be reflected in the exaggerated response to the Unabomber's activities over two decades. More than fifty million dollars were spent by the Federal Bureau of Investigation in chasing the Unabomber. How many violent deaths, we can wonder, would have been avoided if these funds had been used elsewhere, for example in mental health efforts? What the passion for self-preservation has come to mean to us is suggested upon noticing what has happened to the proportion of our Gross National Product devoted to medicine. In 1931, 3% of our GNP went to medical service; in 1995 16% of our GNP went to medical service.339

335. See UnabomberManifesto,supra note 325, at paragraph 15. See also supra note 332. On the Old West, see the text of infra note 422. 336. See, e.g., ANASTAPLO, THE AMERICAN MORALIST, supra note 44, at 144. 337. On individualism and an enlightened self-interest, see ANASTAPLO, ABRAHAM LINCOLN, supra note 18, at 81. 338. See ANASTAPLO, THE CoNsTrrrFIoNAtIST, supra note 79, at 213-17. 339. It should be noticed that there is much more now that medical doctors can do to make a difference. It should also be noticed, however, that our Gross National Product (as well as our population) is much larger now than it was in 1931, even when inflation is taken into NORTHERN ILLNOIS UNIVERSiTY LAW REVIEW [Vol. 19

4. Individualism and self-preservation combine to make much of freedom (and perhaps also of equality). These are all related to the notion of autonomy.34 If much is made of freedom, especially if it is dedicated to self- preservation, that freedom will come to mean comfort for most people, at least in the long run (however much they may be moved by a desire for political liberty from time to time). The influence here of Jean-Jacques Rousseau may be noticed in Dr. K's manifesto. 4 We may also see here a perversion of the principles of the Declaration of Independence.342 5. Central to the modem position may be a depreciation of the theoretical life, or of philosophy. 3 This sort of thing is evident at the foundation of the Machiavellian approach, which can be considered critical to the emergence of modernity. This depreciation of philosophy has contributed to Dr. K's sense of superiority as well as to his naivete and self-centeredness. It is not recognized by those who share his doctrines how much our practical accomplishments, which are keyed to modem science, depend upon the Classical philosophical tradition. At the other extreme from philosophy, it can be said, is insanity, to which we shall return. 5 Dr. K is reported to have had Shakespeare and Thackeray on the book shelves in his Montana cabin. But what he has shown many more signs of having read are such journals as the New York Times, the Wall Street Journal,Scientific American, and Omni. 6. Also critical to the modem position is the depreciation of both the duty and the right of the community to shape character. It is insisted upon, on virtually all sides, that there should be no "legislation of morality." One is entitled, as well as equipped, in these circumstances to go may "underground" to avoid intrusive social scrutiny. Someone such as Dr. K 346 even consider himself a moralist, defying the immoral demands of the state.

account. 340. See Unabomber Manifesto, supra note 325, at paragraph 94. 341. See, e.g., id. at paragraphs 45,70, 76. 342. See Section 1 of Part III of this Unabomber talk. See also Anastaplo, Law, Education, and Legal Education, supra note 33, at 663. 343. See UnabomberManifesto, supra note 325, at paragraph 87. 344. See LEO PAUL S. DE ALVAREZ, THE MACHIAVELLIAN ENTERPRISE: A COMMENTARY UPON 'THE PRINCE" (1999). 345. See Section 5 of Part III of this Unabomber talk. 346. See, e.g., UnabomberManifesto, supra note 325, at paragraphs 20, 24. 1999] LAWYERS, FIRST PRINCIPLES,AND CONTEMPORARY CHALLENGES 487

It may be that the murderous Raskolnikov, of Dostoevsky's Crime and Punishment, can instruct us about Dr. K's obsessive moralism.347 7. The widespread prejudice today against the "legislation of morality" may help explain the failure of Dr. K's schools, especially his college. Should not they have done more to take him in hand? His college, at least, should have spotted him as seriously dis- turbed-and should have seen that he was in need of treatment. It is to be regretted that he was allowed to conduct himself there as he did. Had the college authorities "lost their nerve"? On the other hand, there is much to be said for allowing talented youngsters to experiment and to find their way. After all, very few prodigies "crash" in the way that Dr. K did.3s 8. Does cultural relativism follow from the presupposition that I have been sketching? One manifestation of cultural relativism is the denial of the inferiority of primitive ways of life. Dr. K, like most other intellectuals today, both is and is not a cultural relativist. In "theory" he may be so while in "practice" (here and there) he may not be. Cultural relativism means, among other things, that there cannot be any rationally defensible model of what society should be like. This leads to open- mindedness and to virtually unlimited experimentation and change.349 9. Underlying everything here, both as cause and as effect of modem thought, is the depreciated status of nature. This affects what is believed about the good life and about morality, as well as about that relation between the human being and his community which bears upon whether morality should be "legislated." 35 Nature can be endorsed Dr. K, especially a "wild nature." At the by 35 same time natural developments may be disparaged by him. '

347. See Section IV of Part 13 of this Collection. See also FYODOR DOSTOYEVSKY, NOTES FROM THE UNDERGROUND (1992). 348. I happened to see this long ago in a bright and isolated doctor in Southern Illinois, who never really got over his Harvard days, which fed both his megalomania and his paranoia. On paranoia, see supra note 41. See also the Conclusion of this Collection (on Matthew Hale and his "educators"). 349. Compare Francis Bacon, one of the founders of the modem technological revolution. He had standards by which to judge the social consequences of proposed innovations made possible by scientific discoveries and by inventions. See the text at supra note 324. 350. See ANASTAPLO, HUMAN BEING AND CITIZEN, supra note 6, at 46, 74. 351. See Unabomber Manifesto, supra note 325, at paragraphs 46, 47, 177, 183. On the conquest of nature, see id. at paragraph 184. NORTHERN ILLINOIS UNIVERSITY LA W REVIEW [Vol. 19

The American Revolution is "no big deal" for Dr. K.3" 2 So much is he in opposition to the American Regime, without recognizing it, that he can offer as a principle this proposition: "People do not consciously and rationally choose the form of their society. Societies develop through processes of social evolution that are not under rational human control." '353 It is salutary to correct this argument in the light provided by The Federalist, with its endorsement of "reflection and choice.3 54

II. FURTHER LESSONS FROM DR. K'S MANIFESTO AND CAREER 1. We can see in Dr. K a perversion, if not a caricature, of American self- reliance and self-confidence. This is a Henry Thoreau gone mad.355 His thought is largely derivative, and not properly examined or grounded. This is ironic in someone who regards himself as an apostle of autonomy. It is obvious that it would have been useful for Dr. K, as well as of course for his victims, if he had been subjected to serious criticism of his opinions all along. He might have been helped if, for instance, he had been helped to see what the best expression is of what he stands for. Much is made by him of self-preservation and the "power process. 3 56 This argument along with the "pop psychology" he relies upon, seems to be a dilution of Thomas Hobbes's ideas, which seem to have been transmitted to Dr. K primarily through Ayn 357 Rand. 2. Even so, Dr. K's manifesto is fascinating. This is not because of his ideas, which are derivative and not well put together, but because of what we now know about the man himself, about what he has done, about how he got to be the way he is.

352. See id. at paragraph 109. 353. Id. at paragraph 106. 354. See THE FEDERAUST No. 1 (opening paragraph). Compare the approach to these matters of Friedrich von Hayek and his disciples: the natural is seen by them (along with most other social scientists) as grounded primarily in evolution (and chance?), not in reason. 355. See Section 5 of Part I and Section 5 of Part III of this Unabomber talk. See also ANASTAPLO, HUMAN BEING AND CnIZEN, supra note 6, at 203; the text at infra note 377; infra note 399. 356. See Unabomber Manifesto, supra note 325, at paragraph 33. 357. See ANASTAPLO, HUMAN BEING AND CrTIZEN, supra note 6, at 282-83 n. 7 (an exchange with B. F. Skinner). 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 489

Dr. K does seem to be aware of some limitations of others, especially Leftists and Conservatives. But he himself is "not such [a] rebel as [he] seem[s]."3 3. What, then, has Dr. K done? His generation-long career is characterized by persistence, attention to detail, and single-mindedness. His "philosophy" is dominated by a materialistic orientation (as is the thought, say, of Lucretius and Thomas Hobbes).' But the overriding element in the makeup of Dr. K and in the tenor of his thought, is something that common sense should not lose sight of: that element is his cowardice. Cowardice may be seen in his willingness to strike at strangers who have no reason to expect attacks. 359 He is troubled enough by what he is doing, and perhaps even more by how it looks, that he attempts to justify the violence he 360 uses. This cowardice may be related to his vanity, which was fed by the attention he received in the mass media. That vanity was probably reinforced by the Errol Flynn-type sketch of the Unabomber circulated for many years (a sketch which is still used, on the Internet and elsewhere, to catch the eye of the public). What would have happened if there had been no publicity about his bombs exploding? Or just the barest mention? But the kind of publicity he got usually helps in the detection of such men, as evidently happened eventually in his case also. Dr. K wanted to remain nameless; but he did not want to be unnoticed or forgotten. Did he expect to be exposed eventually? Did he even want to

be stopped from killing? One can be reminded here of Chicago's 36murderous William Heirens, another brilliant student, of a half-century ago. 1 4. Dr. K is, despite his atrocities, very much the modem intellectual. As a modem of a scientific inclination he is shaped by the modem dependence upon mathematics. This can lead to impersonality, to a failure to grasp the personal and the concrete, especially when his victims can be struck down from a distance. Even so, Dr. K is in various ways conventional. Thus, he takes care to be politically correct, even as he criticizes political correctness. This may be seen in his prudishness in shying away from the suggestion that primitive societies may be inferior. But individualism, or the appearance of individual-

358. See Unabomber Manifesto, supra note 325, at paragraph 24. On Leftists, see the opening and closing paragraphs of the manifesto. On Conservatives, see id. at paragraph 50. 359. See id. at paragraph 50. 360. See, e.g., id. at paragraph 30. 361. See the Addendum to this Unabomber talk. See also the text at infra note 363. NORTHERN ILLINOIS UNIVERSITY LA W REVIEW [Vol. 19 ism, matters so much to him that he does not want to appear conven- tional-and so he condemns various contemporary movements and schools of thought, however much he may share their presuppositions. 5. Despite his conventional morality, at least in speech, Dr. K is probably insane. This does not preclude his delivery of the diagnosis that "the world today seems to be going crazy."362 A particularly graphic expression of his personality, as well as that of William Heirens, is the "hero" of the movie The Silence of the Lambs, another quite intelligent serial killer with an appetite that is out of control-that is to say, insane.363 This kind of insanity does not keep one from being shrewd, especially in one's manipulation of the mass media (and in the care one takes to avoid detection). Such people may be very clever, but not really as clever as they can believe themselves to be. Dr. K, for instance, is rather shallow with respect to various opinions he has: he is, although now fifty years old, still rather sophomoric in his pronouncements about the way things are, something that is evident in his immature vocabulary. Critical to his problems is the fact that he does not really know himself. Everyone would be better off if such a man could be helped, indeed required, to know himself better. Consider, for example, what he says in disparaging 3 4 the "good combat soldier" who follows orders without questioning them. (

6. What is it that Dr. K does not know that is vital for him to know? Could he bear to recognize, for example, how much of a coward he is? Or has his insanity long been so serious and so deep-seated that even bringing home to him his inadequacies and limitations can no longer make much difference to such a man? Something of his insanity may be evident in the long courtship of sorts, a dance of death, that he carried on with the F.B.I. in this country. It may well be that this kind of pathological love affair was all that he was capable of, so much so that he could become desperate whenever the attention of his suitor seemed to flag. All other relations paled by comparison, including a Mexican "pen pal" who provided him some relaxed human contact, albeit at a safe distance. His biological family could be written off, so much so that he may have chosen to forget that he was much more vulnerable through his family

362. See UnabomberManifesto, supra note 325, at paragraph 45. 363. See George Anastaplo, Can Beauty 'Hallow Even the Bloodiest Tomahawk'? THE CRMC, 11 (Winter 1993). 364. See UnabomberManifesto, supra note 325, at paragraph 43. 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 491 than he ever recognized. (Otherwise, precautions might have been taken by him, such as destroying all papers "back home" and moving to another "Montana" elsewhere.) 7. Self-contradictions abound in Dr. K's character. Illustrative of this may be the concern expressed, in his supplemental note, about what the newspa- pers might do if the copyright laws kept his manifesto from being published in its entirety. There is something bizarre about this. Dr. K murders and maims human beings and destroys property for two decades, but he recognizes that others may have to be bound by law. In fact, for some purposes he counts on others obeying the law, such as with respect to delivering the mail, to respecting private property (especially his cabin), and to protecting the safety of passengers traveling around as he did with his homemade bombs. But then, as we have noticed, he relied upon modem technology in his campaign to prepare and deliver the bombs that he did and in the distribution of the manifesto that he wrote. However much Dr. K is an intellectual of his age, there are accidental influences upon his development. His brother's turning him in suggests that neither heredity nor environment (that is upbringing) was decisive in accounting for Dr. K's dreadful conduct.365

365. I once suggested in a letter, for example, that the Unabomber was not a woman and, more important, that academic relations in Northern Illinois had been of some importance at the outset of his career. This letter is instructive as to how difficult it can be to make sense of the clues that may happen to be available-but the citizen may still have a duty to try. The text of my letter, to an agent of the Federal Bureau of Investigation headquarters in San Francisco (of December 16, 1994), follows (this was before publication of the UnabomberManifesto): I understand from the newspapers that you are in charge of the current investigation by the Federal Bureau of Investigation of the mail bombings that have evidently originated over the last two decades in a half-dozen places, beginning with Northern Illinois and ending (thus far) in Northern California. I also understand from the newspapers that the person responsible for these mail bombings may be connected somehow with academic life in the United States. I presume therefore to offer, as a concerned citizen, a few suggestions that draw upon my forty years as an academician in this country. I realize that these suggestions have probably already occurred to your team of investigators. But here they are anyway, just in case they have not. It seems to me that the person you are looking for, if he is indeed connected with academic life, could have begun as a graduate student and perhaps a beginning instructor (or lecturer or research assistant) in a Northern Illinois institution and then moved up the academic ladder in the two or three places with which he has been connected (St. Louis, Utah, etc.) before settling into a tenured or otherwise more or less permanent position in Northern California. There are, as you probably know, research and even teaching assign- NORTHERN ILLINOIS UNIVERSITY L4 W REVIEW [Vol. 19

ments connected with institutions that may be fairly steady employment without being tenured, especially in high schools, junior colleges, community colleges, and research centers. In fact, I would expect the kind of person that you are looking for to be more on the fringes of a conventional academic career (if he is associated with academic life at all) rather than in a regularly-tenured professorship. One way that he may be on the fringes of an academic career is by being married to or by living with someone who has pursued over two decades a conventional academic career. I would not be surprised to learn some day, considering the obvious character defects of your bomber, that whatever connection he may have had with a conventional academician was severed after he and his companion settled down in Northern California. Nor would I be-surprised to learn that he has harbored a longstanding grievance connected with his own academic training or early academic appointments. Unfortunately, the institution or professor "responsible" for the grievance may be in no way aware of the difficulties which got it all started. I would be surprised to learn that the person you are looking for, if in fact connected with academic life, is a woman. A woman as talented and as persevering as your bomber evidently is would probably have been able to settle down by now into a fairly successful academic career, which does tend to keep one out of mischief, at least of the more violent variety. One way of trying to locate this man through the career he (or his companion) has perhaps had is first to take the rosters of faculty in academic institutions in the half-dozen areas you connect him with (at various stages of his career) in order to try to see, with the aid of a fairly simple computer program, who shows up as having followed the geographical track that is suggested by the information you have. The correlations can be attempted with first one, then another, of the intermediate places left out, just in case your bomber happened to be somewhere "accidentally" (that is on vacation or at a convention, etc.) when he mailed one of his bombs. I recognize that this approach may be overwhelming in the scope of data required for processing. A short cut could be attempted first. You could take the rosters not of faculty members but rather of departments, research centers, etc. from each of the academic institutions in each of the geographical areas that you have identified. The clusters that should emerge would vary according to discipline, of course. (Law schools, for example, would be found in each of the half-dozen areas you are working with. Veterinary schools or Sanscrit departments, on the other hand, might not be found in all or almost all of your areas and hence could probably be ruled out.) Once you have discovered which academic departments show up in all of your identified areas, you could then more easily work with the rosters of graduate students (in Northern Illinois especially), faculty, research assistants, etc. at the relevant times. One caution should be entered here: academic departments may not have the same names everywhere, even when the departments draw upon the same personnel. (For example, political science may be known, depending on the institution, as politics, government, perhaps even American studies, civics, etc.) The disciplines are probably more inclusive, or less specialized, at the high school, junior college, and community college levels (where, for example, all the languages taught by the faculty may be lumped together in one or two departments). These suggestions, which would have you checking connections by 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 493

8. Dr. K, a deadly "sad sack," is very naive, troubled, and unhappy. Unfortunately, he was clever enough to work considerable mischief before he was stopped. His personal deficiencies need to be emphasized, along with the penalties that such people run the risk of suffering. That is, the impression- able do need to be discouraged from engaging in the mischief of which they are capable. Related to this also is the need to teach morality and sound politics along with "environmental" and other controversial issues. Even so, it should be recognized (as I have indicated) that it is not worth making many of the changes that could be made to thwart this kind of man. For example, the resources required for inspecting all packages in the mail would save far more lives if devoted to various other purposes. Much the same can be said about most of the air passengers security measures that we now take for granted. Technology will not be abandoned by us, for many reasons. For one thing, it is going to be considered necessary to protect ourselves from the rogues (personal and official) who will not themselves forego the use of technology because we have. The many benefits derived from technology are obvious to everyone, including the constantly improving medicine that we are accustomed to and that we want and even demand.

tracing disciplinary affinities across the country, have been put here in academic terms. Something of the same might also be done with military, governmental, and large corporate organizations which assign people to different parts of the country (culminating in a permanent position or in retirement in Northern California). If the academic connection is to be pursued further it might be of use to you to convene a local conference of academicians in each of the major areas that you have identified, and especially in Northern Illinois and in Northern California. (In the San Francisco area you might usefully consult with [name deleted] of the law school faculty at the University of California, Berkeley. You can, if you like, tell him that I mentioned his name to you.) These samplings of academicians should probably be interdisciplinary, with both younger and older faculty represented. Your academic consultants could be asked to say more about academic career tracks and to suggest what academic or other publications would provide your bomber the leads he has gotten to his victims. I recommend the academic consultations that I do because I realize that what I have said here can be no more than a sketch of what might be developed further upon talking to others in academic life with different academic experiences from mine. I also realize, as I have said, that you have probably already considered the sorts of thigs I have touched upon here. But sometimes an outsider can notice something that he himself does not appreciate the significance of- and this is why I have presumed to impose upon you with this letter. I never received any acknowledgment of this letter, which suggests how inundated the F.B.I. must have been by unsolicited advice. NORTHERN ILLINOIS UNIVERSITY LA W REVIEW [Vol. 19

People such as Dr. K are, I am afraid, one of the costs of modem technology and the mass societies that now seem inevitable, just as the highway accident rate is one of the costs of the heavy motor traffic upon which we rely. This is not to deny that measures may properly be taken to reduce such costs. Perhaps it would help (as I have indicated) to play down such aberrations as Dr. K, even if news of them cannot be altogether suppressed. More important, and despite what Dr. K argues, the critical problems here are political, not technological." 9. What should be done with Dr. K personally? Now that he has been captured, how should he be treated? In the short run, symptoms such as this should be dealt with firmly. Symptoms do have to be treated sometimes, because they are troublesome enough. For example, we treat a headache, often without being able to learn what its underlying cause is. Indeed, we can usually depend upon the body taking care, on its own, of the underlying cause. It will be hard to resist the imposition of capital punishment in Dr. K's case (assuming that he, clever as he is, does not find a way to end his life). Bouts with depression can be expected, especially as he is brought to see how ineffective, as well as despicable, he has been. Executing him poses problems, however just that may be as retribution. Not only may it contribute to making him more notorious (and hence attractive to would-be emulators, who are shown that deliberate killing in a "good cause" is justified), but it deprives us of the opportunity to study this 367 remarkable aberration. For someone as vain as Dr. K, the most severe punishment may be to be studied as an aberration to be avoided, someone who is remarkably ignorant

366. See Unabomber Manifesto, supra note 325, at paragraphs 193, 206. On the threatening security of missile shields, see George Anastaplo, Letters to the Editor, N.Y. TIMES, Dec. 1, 1999, at A30. See also infra note 445, CHICAGO SUN-TIMES. Dec. 15, 1999, at 58. 367. We can be reminded here of Clarence Darrow's discussion of the Loeb-Leopold Case. See THE PLEA OF CLARENCE DARROW (1924); ARTHUR AND LILA WEINBERG, CLARENCE DARROW: A SENTIMENTAL REBEL (1980). On capital punishment, see ANASTAPLO, THE AMERICAN MORALIST, supra note 44, at 422. It was disquieting, in 1992, to watch Governor William J. Clinton display himself as a "law and order" politician by interrupting his presidential campaign in order to return to Arkansas to preside over a dubious execution. In December 1999 we had another Southern presidential hopeful, Governor George W. Bush, endorse the spectacle of removing a murderer from intensive hospital care in order to carry out still another Texas execution on schedule. See Jim Yardley, Texas Inmate Is Executed Despite Overdose, N.Y. TIMES, Dec. 9, 1999, at AI6. Has an unseemly, even unhealthy, callousness become a prerequisite for a successful political career in some parts of the United States? See infra note 371. See also the text at supra note 171. 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 495

of himself and especially of the proper relation between the human being and the community. This study could contribute to our understanding of the genuine problems of modem life, problems of which Dr. K is only dimly aware. Certainly we need to recognize, so that we can try to address sensibly, the outlandish opinions by which destructive individuals are tortured and otherwise imprisoned.36

ADDENDUM

A MEMORANDUM ON THE MATTER OF WILLIAM HEIRENS, FOR THE OFFICE OF THE ATTORNEY GENERAL, STATE OF ILLINOIS, AUGUST 31, 1983

Cover Letter Thank you for giving me the opportunity to think about the William Heirens case, in particular, and about the parole system, in general.369 The risk for the Attorney General in this matter is that he will appear either "soft on crime" or something of a shyster-and all this because of the difficult position he has been put in because of the way this case has come to him. The risk for the community at large, and especially for criminals, potential criminals and prisoners, is that the State will seem to equivocate in using questionable arguments. In such cases, the cause of a respect for law and order is poorly served. What is needed, then, is what I would call a classical approach, one that combines a high-level argument with a solid dose of realism. I hope I suggest in my accompanying memorandum a useful argument. I do not believe "authority" is needed for this kind of argument, particularly

368. See, e.g., the Conclusion of this Collection. Since the delivery of this talk, Theodore J.Kaczynski has been sentenced to life in prison for the Unabomber offences. See ROBERT GRAYSMITH, UNABOMBER: A DESIRE TO KILL (1997). See also Stephen J. Dubner, "I Don't Want to Live Long. I Would Rather Get the Death Penalty, Than Spend the Rest of My Live in Prison, TIME, Oct. 18, 1999, at 44. 369. The details of the Heirens case do not matter for our purposes here, except for the massive fact that the prisoner had been convicted in the 1940s, while still a college student, of three spectacular killings in Chicago (of two women and a girl). Among the considerations here, whenever parole is considered for such a prisoner (even after many decades of incarceration), is the notoriety of the crimes involved. On the Heirens matter, see LucY FREEMAN, "BEFORE I KiLLMORE..." (1955); DELORES KENNEDY, WILuAM HEIRENS: HIS DAY INCOURT (1991). My memorandum suggests how cautiously one should proceed in discussing sensitive matters, especially if one wants to encourage a public official to relax his "vigilance." NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 19 since the advocate is obliged to ask the Court of Appeals to reconsider the authority already established. I suspect, by the way-and this may have contributed to this problem--, that the Parole Board is itself somewhat sympathetic to Mr. Heirens: it may well want "a way out" that does not expose it to undesirable publicity. It should be kept in mind, in any event, that this prisoner has been held far longer than most murderers, even prisoners (such as he is) with more than one murder on their record. It is difficult to argue, on the basis of the record I have been shown, that there remains a serious rehabilitation problem or that a serious risk would be faced by the community if Mr. Heirins should be released. The question of whether his release would be dreadfully offensive to the public at large is, of course, quite another matter.

Memorandum A bold candor, it seems to me, not only is consistent with the attorney's professional obligations but also makes for sound advocacy in this particular matter at this stage. Critical to this situation, it should be recognized (and could well be said to the Court of Appeals at the outset of the State's argument), are the status and effect of Welsh v. Mizell. As to the status of Welsh: There is a problem in taking Welsh at face- value, especially insofar as it rules out the use now by the Parole Board of the "deprecation of the seriousness of the offense" criterion.3 70 Whatever may be practical and just in ordinary cases, any decision to rule out all reliance in particularly notorious cases on the "deprecation" criterion (or the "disrespect for the law" criterion, which seems substantially the same) may be quite unjust and impractical. Thus, an exception to the usual standard may be called for in some circumstances, an exception which fairminded people would be likely to appreciate the good sense of, if properly presented. Furthermore, a reasonable argument on this point is available in these terms: There really is no ex post facto question here, for whatever the precise terms of the relevant statutes and of the rules of the Parole Board, the general understanding since long before this prisoner was incarcerated (in 1946) and

370. Welsh v. Mizell, 668 F.2d 328 (7th Cir. 1982). The Seventh of Appeals in Welsh held that the ex post facto clause of the Constitution was violated when the parole board used criteria from 1973 instead of 1962 to determine if Gary Welsh (who had been convicted and imprisoned in 1962) was eligible for parole. It has been held that the 1973 criteria substantially harmed Mr. Welsh because the parole board denied Mr. Welsh parole based on the "deprecation" consideration which was not present in the 1962 criteria. Id. at 331. The court ruled that the "deprecation" criterion could only be applied to prisoners whose crimes were committed after 1973. Id. at 332. 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 497 continuously since then has obviously been that the notoriety of particularly heinous crimes should of course be taken into account in determining what to do with a prisoner. In the light of this general understanding, which is certainly reasonable, the Welsh court can be said to have misstated the law and the changes in the law. That is, the Court saw a constitutional problem (in terms of the Ex Post Facto Clauses) where there was none. Thus, the longstanding general understanding, which is backed up both by common sense and by long-recognized practice, should be drawn upon in a reformula- tion of the Welsh rule. Such, then, are some of the considerations to be taken into account in requesting the Court of Appeals to take another look at Welsh. As to the effect of Welsh: Candor here would take the form of acknowl- edging that the Heirens Parole Board simply misstated its own position, and can be seen by everyone obviously to have misstated it, in an understandable effort on its part to conform to the language of Welsh. This led to its misconceived attempt to rely upon the rehabilitation criterion, when that had not been a critical official concern with respect to this prisoner for some years (aside from the significance of his troublesome refusal to acknowledge his guilt and hence to show remorse). In its attempt to rely upon the rehabilitation criterion, the Parole Board allowed itself to appear foolish and confused, especially in the light of the relatively mild regimen to which this prisoner, who has been described as "on the verge of becoming an old man," has been subject in recent years (a regimen which has included release to work by day in a nearby town). But, it should at once be added, the confusion of the Heirens Parole Board reflects the confusion implicit in Welsh itself, a confusion which would have the community (and hence the Parole Board) refuse to give any weight to the "deprecation of the seriousness of the offense" and the "disrespect for the law" criteria. Insofar as Welsh does seem to say this, there are bound to be unfortunate disputes such as this one, where the good faith of the Parole Board is subverted by its duty both to be sensible and to do the right thing by the community as well as by the prisoner, even as it tries to conform to the language of Welsh by not taking into account "the seriousness of the offense." It is evident, upon examining the Magistrate's first order, of July 15, 1982, that it is because of the Magistrate's plausible indication therein of what Welsh stood for that the Parole Board's August 1982 statements took the unrealistic form they did. This means, among other things, that the Board was virtually coerced into adopting a rationale for its position that neither the Board nor the prisoner could take seriously. Would it not, therefore, make much more sense in the circumstances, to be frank about what is truly, and not improperly, troubling the Parole Board and the Community? These considerations, too, could be advanced in requesting the Court to take another look at Welsh with a view to providing NORTHERN ILLNOIS UNIVERSITY LA W REVIEW [Vol. 19 civic-minded parole boards and conscientious prisoners the kind of guidance which promotes frank and productive examinations of the serious problems that applications for parole may raise in various circumstances. Certainly, a sensible mutual examination, by the prisoner and the Board, of the serious problems with parole here should not be inhibited by doctrines and37 rules which tend both to suppress compassion and to disregard prudence. 1

37 2 16. MARTIN LUTHER KING AND HIS LETTER FROM BIRMINGHAM JAIL

The man, indeed, whose goodness is complete and perfect will have no need at all of glory, except so far as glory gives him access to achievement by reason of the confidence men have in him; but a man who is still young and is fond of honours may be allowed to plume and exalt himself some- what even upon glory, provided that glory is the outcome of noble deeds. For the virtues, which are incipient and budding in the young, are confirmed in their proper devel- opment, as Theophrastus says, by the praises of men, and complete their growth under the incentive of pride. But excess is everywhere harmful, and in the case of men who cherish political ambitions, it is deadly; for it sweeps them away into manifest folly and madness as they grasp after great power, when they refuse to regard what is honourable what is glorious is good. as glorious, but consider that 373 -Plutarch

I.

Our conference, on Politics, Leadership, and Justice, combines in our opening seminar Abraham Lincoln's Second InauguralAddress and Martin Luther King's Birmingham JailLetter. We are more apt to do justice to the King letter if we devote this opening talk and its discussion to that letter, rather than trying to find time for it after Lincoln has been given his due during our opening seminar tomorrow morning.

371. The status of William Heirens, as a prisoner, remains unchanged. See, e.g., Heirens v. Mizell, 729 F.2d 449 (1984). The key issue here may not be what Mr. Heirens is entitled to but rather whether it is healthy for the community to hold on to such an "old man" much longer. See also supra note 367. 372. A talk given at the Lenoir-Rhyne College Hickory Humanities Conference, Wildacres Conference Center, Little Switzerland, North Carolina, May 6, 1999. See also supra note 166. 373. PLUTARCH, AGIs & CLEOMENES 5 (Loeb Classical Library edition). 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 499

The remarkable achievement of Martin Luther King's career is testified to by the fact that he can be drawn upon as he is in our program, and this in a State of the Union which, a generation or so ago, had been among those which vigorously opposed the movement he spoke for. (Indeed, this is one of the three States which had insisted upon the first clause of Section 9 of Article I of the Constitution of 1787.114) Who dared to predict, at the time of the Birmingham letter (1963), that a national holiday would someday be dedicated, in effect, to King's aspirations? His ascendancy in the hearts of many of the American people, South as well as North, has indeed been remarkable. To recognize this is not to deny, especially when the King Letter is compared to the Lincoln Second Inaugural,that there has been a substantial decline in the caliber of the language (and hence of the thought) of our public men and women during the past century and a half. King is not to be particularly faulted here, nor is Lincoln the only model to which our contemporaries may be usefully compared. Thus, one of Lincoln's contempo- raries, Frederick Douglass, the escaped slave who championed the abolitionist cause, is simply superior, in the power of his thought and in the discipline of his language, to any prominent public man in this country in recent decades.375 In various ways, King (like most of his contemporaries) was much more enslaved by the limitations of his times than was the mature Douglass. King is very much a modem-very much a late Twentieth Century American-in that he is more personal and less disciplined in his public discourse than sound statesmanship calls for.

I. King, at least in those more prominent writings of his with which I am familiar, does not say much if anything about Frederick Douglass.376 The Douglass "style" does not seem to appeal to King (or, perhaps, to us generally today). It may well be too tough-minded for our tastes, not sentimental enough to move us. To wonder about King's tough-mindedness is not to question his fortitude but rather his understanding. Douglass, I suspect, was far less inclined than was King to consider civil disobedience as a substitute for

374. On the notorious 1808-slave-trade provision, see ANASTAPLO, THE CoNsTrrIrON OF 1787, supra note 121, at 62. South Carolina and Georgia insisted upon the right to import slaves for twenty years, with North Carolina considering herself obliged to support them. 375. On Frederick Douglass, see ANASTAPLO, ABRAHAM LINCOLN, supra note 18, at 363. 376. Nor does he seem to say much about such other remarkable predecessors of his as Booker T. Washington. On Douglass, Washington, and others in that tradition, see WHAT COUNTRY HAVE I? (Herbert J. Storing ed., 1970). NORTHERN ILLINOIS UNIVERSITY LAW REVIEW (Vol. 19 politics. The criticism that can be made of Martin Luther King here is similar to what can be said about Henry Thoreau.377 Did Douglass have to be more "serious" politically (and less "personal") in part because the caliber of his audiences was higher? Certainly, the political men and women with whom he routinely associated were more challenging. The limitations of our times may become evident upon examining the Birmingham Jail Letter, the most widely published statement by King. The context and consequences of his Birmingham efforts are suggested by what King said about them--they seem to have been very much on his mind-in a talk he gave in Memphis the night before he was murdered: We aren't going to let any mace stop us. We are masters in our nonviolent movement in disarming police forces; they don't know what to do. I've seen them so often. I remember in Birmingham, Alabama, when we were in that majestic struggle there we would move out of the 16th Street Baptist Church day after day; by the hundreds we would move out. And Bull Connor would tell them to send the dogs. forth and they did come; but we just went before the dogs singing, "Ain't gonna let nobody turn me round." Bull Connor next would say, "Turn the fire hoses on." And as I said to you the other night, Bull Connor didn't know history. He knew a kind- of physics that somehow didn't relate to the transphysics that we knew about. And that was the fact that there was a certain kind of fire that no water could put out. And we went before the fire hoses; we had known water. If we were Baptist or some other denomination, we had been immersed. If we were Methodist, and some others, we had been sprinkled, but we knew water. That couldn't stop us. And we just went on before the dogs and we would look at them; and we'd go on before the water hoses and we would look at it, and we'd just go on singing "Over my head I see freedom in the air." And then we would be thrown in the paddy wagons, and sometimes we were stacked in there like sardines in a can. And they would throw us in, and old Bull would say, "Take them off," and they did; and we would just go in the paddy wagon singing, "We Shall Overcome." And every now and then

377. See supra note 355. 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 501

we'd get in the jail, and we'd see the jailers looking through the windows being moved by our prayers, and being moved by our words and our songs. And there was a power there which Bull Connor couldn't adjust to: and so we ended up transforming Bull into a steer, and we won our struggle in 3 7 Birmingham. He returned to this confrontation in the closing minutes of his Memphis talk, his last public address, recalling the time (five years before) "when the black people of Birmingham, Alabama aroused the conscience of this nation, and brought into being the Civil Rights Bill." '379 A scholar who studied King's career summed up in this way what is critical to the position taken by him on that occasion in Alabama: King's major statement of civil disobedience is his famous "Letter from the Birmingham Jail," written in 1963, in which he replies to those who ask how Negroes can urge others to obey the 1954 school desegregation decision while themselves breaking laws. 'The answer lies in the fact that there are two types of laws; just and unjust. I would be the first to advocate obeying just laws." King goes on to provide some rules of thumb for distinguishing just from unjust laws, and he concedes that some respect is due to law per se. "In no sense do I advocate evading or defying the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty." He argues "that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law." Indeed, such behavior is not only permitted but demanded. "We must learn that passively to accept an unjust system is to cooperate with that system, and thereby to become a participant in its evil." 'To

378. A TESTAMENT OF HOPE: THE EssENTIAL WRITINGS OF MARTIN LUTHER KING, JR., 281-82 (James Melvin Washington ed., 1986) (The Testament of Hope paragraphing is not the same as that in the edition I have drawn upon for the Birmingham Jail Letter paragraph numbers I use in this talk. Nor is its Birmingham Jail Letter language always the same as that which I use, which is taken from a collection prepared by the Great Books Foundation in Chicago). 379. Id. at 286. NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 19

cooperate passively with an unjust system makes the oppressed as evil as the oppressor."3 O

m1.

I have noticed that King does not draw much if at all upon Douglass and his like. This may be in part, I have also noticed, because his audience cannot be expected to know, or at least to understand and respect, such predecessors. We can, in the time available to us on this occasion, consider the "outside" authorities drawn upon by name in the Birmingham Jail Letter, using this as an aid in beginning to think about King's thought. The men of authority drawn upon seem to have been largely determined by the immediate addressees of the letter, eight Birmingham-area clergymen (among whom was numbered one rabbi).3"' Here is a roster of authoritative names relied upon by King (I collect them by the paragraphs in which the names appear, with "(M)," for "Multi- ple," indicating the names used more than once): 1) 3: Apostle Paul (M) 2) Jesus Christ (M) 3) Paul (M) 4) 10: Socrates (M) 5) 12: Reinhold Niebuhr 6) 15: St. Augustine 7) 16: St. Thomas Aquinas 8) Martin Buber 9) Paul Tillich 10) 21: Shadrach 11) Meshach, 12) Abednego 13) Socrates (M) 14) 25: Socrates (M) 15) Jesus (M) 16) 26: Christ (M) 17) 31: Jesus (M) 18) Amos 19) Paul (M)

380. TOWARD A MORE PERFECr UNION: WRITINGS OF HERBERT J. STORING 242 (Joseph M. Bessette ed., 1995). See Part 10 of this Collection. 381. Many other people of our time are referred to, with approval, such as James Meredith and (by implication) Rosa Parks. 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 503

20) Lord Jesus (M) 21) Martin Luther 22) John Bunyan 23) Abraham Lincoln 24) Thomas Jefferson (M) 25) Jesus Christ (M) 26) Christ (M) 27) 44: Thomas Jefferson (M) 28) 46: T. S. Eliot Of these twenty-eight names (or seventeen different names), all but six are what can be expected from and for churchmen. (The last of these, T. S. Eliot, is used for a remark that he assigns in one of his plays to a churchman, Thomas Becket.382) One of these, Martin Buber, may have been included out of deference to the rabbi among King's addressees, along with the Old Testament figures that both Christians and Jews can be expected to respect. The predominantly Christian cast of the authorities drawn upon is evident throughout this Letter, as well as in King's career. This is not surprising in a man who repeatedly identified himself as the son and grandson of preachers. We can also be reminded by all of this of the massive influence, for genera- tions now, of the Church in the African American community. The exceptions in this array of authorities are three uses of American names (Thomas Jefferson twice, for the Declaration of Independence, and Abraham Lincoln once) and three uses of an ancient Greek name (that is, Socrates). The Jefferson-Lincoln usage can be understood as an attempt to establish the legitimacy of the King position in the American context. The Socrates usage-the only non-Christian name with more than two uses-is more intriguing, especially since Socrates and Jesus do happen to be central to the array of twenty-eight names invoked with favor-and they also happen to be combined in one of the central paragraphs of the Letter, Paragraph 25 of its fifty paragraphs, as the paragraphs happen to divided in our Great Books Foundation edition of the Letter. (Nebuchadnezzar and Hitler are spoken of also, but with disfavor.) By and large, the King armory here is that of the divinity school intellectual (with even the term Zeitgeist [Paragraph 30] thrown in as an accent). It is fitting and proper that one fine collection of King's writings should be entitled, A Testament of Hope.383

382. See the text at infra note 394. 383. See supra note 378. NORTHERN ILLINOIS UNIVERSITY LA W REVIEW [Vol. 19

IV. It may well be that the way Socrates is regarded by King is the way Socrates appears to modem intellectuals, especially those of a "theological" turn of mind. An examination, however brief, of the three Socrates passages in the Letter might be illuminating. First, there is the Socrates passage in Paragraph 10 of the Letter, a passage in which much is made of tension and creativity: You may well ask "Why direct action? Why sit-ins, marches, etc.? Isn't negotiation a better path?" You are exactly right in your call for negotiation. Indeed, this is the very purpose of direct action. Nonviolent direct action seeks to create such a crisis and foster such a tension that a community which has constantly refused to negotiate is forced to confront the issue. It seeks to so dramatize the issue that it can no longer be ignored. My citing to the creation of tension as a part of the work of the nonviolent resister may sound rather shocking. But I must confess that I am not afraid of the word "tension." I have earnestly opposed violent tension, but there is a type of constructive nonviolent tension which is necessary for growth. Just as Socrates felt that it was necessary to create a tension in the mind so that individuals could rise from the of myths and half-truths to the unfettered realm of creative analysis and objective appraisal, so must we see the need for nonviolent gadflies to create the kind of tension in society that will help men rise from the dark depths of prejudice and racism to the majestic heights of understand- ing and brotherhood.3 Thus, King's many associates, marching in the streets of Birmingham, are all "nonviolent gadflies." The emphasis here, as elsewhere, is on Socrates (the self-proclaimed "gadfly") as a man of action, acting in society and being acted on by society."' This Socrates is evident also in Paragraph 21 of the Letter, a Socrates characterized not by his questions and teachings but by his conduct:

Of course, there is nothing new about this kind of civil disobedience. It was evidenced sublimely in the refusal of Shadrach, Meshach, and Abednego to obey the laws of

384. Compare A TESTAMENT OF HOPE, supra note 378, at 291. 385. See supra note 6. See also the text at supra note 281. 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 505

Nebuchadnezzar, because a higher moral law was involved. It was practiced superbly by the early Christians, who were willing to face hungry lions and the excruciating pain of chopping blocks, rather than submit to certain unjust laws of the Roman Empire. To a degree academic freedom is a reality today because Socrates practiced civil disobedience. In our own nation, the Boston Tea Party represented a massive act of civil disobedience.386 I wonder, in passing, whether the responses either of Shadrach, Meshach, and Abednego or of the early Christians are properly to be understood in the secular terms used here, "a higher moral law" and "certain unjust laws." I also wonder whether "academic freedom" should be identified, as it seems to be here, with civil disobedience. Should it not be rare that even the most conscientious academician has to resort to civil disobedience? Finally, in this array of Socrates-passages, there is Paragraph 25, a passage at the heart of the Letter in which Socrates and Jesus are brought together if not even blended: In your statement you asserted that our actions, even though peaceful, must be condemned because they precipitate violence. But is this a logical assertion? Isn't this like condemning a robbed man because his possession of money precipitated the evil act of robbery? Isn't this like con- demning Socrates because his unswerving commitment to truth and his philosophical delvings precipitated the act by the misguided popular mind in which they made him drink the hemiock? Isn't this like condemning Jesus because his unique God-consciousness and never-ceasing devotion to God's will precipitated the evil act of crucifixion? We must come to see that, as federal courts have consistently af- firmed, that it is immoral to urge an individual to cease his efforts to gain his basic constitutional rights because the quest may precipitate violence. Society must protect the robbed and punish the robber." 7 Socrates' "philosophical inquiries" are recognized here, but is not too much made (here as elsewhere) of him as an individual, of him as having a commitment (a peculiarly modem term) to truth, as someone who is to be

386. Compare A TESTAMENT OF HOPE, supra note 378, at 294. See also infra note 399. On the Socratic approach to education, see the text at supra note 101. 387. Compare Id. at 295-96. NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 19 understood in opposition to the populace? We may have here, in short, a Christianized Socrates.3 ss Critical to the Christian pattern is the necessity of the vulnerability, if not even the sacrifice, of the distinctive individual. This, too, is to see Socrates as a man of action, with perhaps something necessary or fated in what happens to him. But may not Socrates be understood as in some respects an accidental victim? After all, he was sixty-nine when he was tried and executed: not only could be have died a natural death by then (and thus have lived a complete life), but he would never have been charged and tried as he was if the Peloponnesian War either had been prolonged or had ended differently.38 9 The philosopher, in short, is not naturally a candidate for martyrdom in the way that Jesus, Paul and the other early Christians referred to by King were supposed to be. The two other episodes Socrates reports, in which his life was threatened by the authorities, were not because of his activities as a philoso- pher but rather because of his conduct as a citizen.39 Particularly revealing, throughout King's work, is his use of the term creative. (At times this seems to be in opposition to the notion of prudence.) The philosophical tradition-as seen in the work of men such as Socrates, Plato, and Aristotle-may be too tough-minded and constraining for the modern intellectual. Creativity (which is much in favor these days) makes more of one's feelings, one's sympathies and goodwill, one's resiliency and innovativeness (if not even one's imagination). The Ideas, of which Socrates and his successors made so much, is lost from view here, especially the Idea of the Good. 391' Troublesome here is what is suggested, by some of King's authorities such as Reinhold Niebuhr and Paul Tillich, about original sin and the inherent immoral tendencies of groups.392 This kind of talk, which King inherited from men who should have known better, is grim and may even sound tough-minded-but it tends to promote sentimentality (or an undue reliance upon good intentions) as an antidote to despair. This is one form that the yearning for personal immortality can take in a secular age. (Sentimentality, I mention in passing, may be evident in what King and others say about the need for those who practice civil disobedience

388. On Kierkegaard and a Christianized Socrates (who is particularly attractive for divinity students?), see ANASTAPLO, THE AMERICAN MORAUST, supra note 44, at 139. See also Part 12 of this Collection; infra note 481 (on John Milton's ParadiseRegained). 389. On Xenophon and the trial of Socrates, see the text at supra note 6. See also Part 8 of this Collection. 390. On Socrates and the prospect of death, see supra note 165. See also, ANASTAPLO, HUMAN BEING AND CrrizEN, supra note 6, at 8, 203,214. 391. See supra note 158. On "creativity," see Bems, Aristotle's "Poetics", supra note 258, at 70. 392. See Paragraphs 12 and 16. Compare A TESTAMENT OF HOPE, supra note 378, at 292, 293-94. 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 507 to break unjust laws openly, lovingly, etc.a93) Nor does it help to insist, with T. S. Eliot's Becket, "The last temptation is the greatest treason: to do the right thing for the wrong reason." ' Of course, it is best to do the right thing for the right reason-but, and here politics and the law are useful, the prudent must often settle for having most people do the right thing (or at least abstain from doing the wrong thing) whether or not they want to and whether or not they understand what they are doing.

V. King's influence, as recognized in his Nobel Peace Prize and as reinforced immeasurably by his murder, is in a sense accidental.395 This can be said about the careers of most, if not all, political or practical men. Public men tend to be derivative, very much dependent upon their constituencies or audiences and upon the circumstances in which they happen to find them- selves from time to time. The Socratic influence, on the other hand, is not accidental, however much chance affected the emergence, development, and fate of the "historic" Socrates. If Socrates had not emerged when and where he did, someone else might have, if not in Athens, then elsewhere.396 Philosophers, as such, are not individuals--or, it can be said, it is only in their mistakes that the philosophi- cal distinguish themselves from other of like mind (or from The Philosopher). Socrates' personal biography, circumstances, and immediate influence are secondary and perhaps ultimately unimportant, however interested we may "naturally" be in such details. It matters most to the thoughtful human being what a Socrates says and what he means by what he says, not what he does or what happens to be done to him. Many if not allbf us, in the opinions we hold and in how we think about things, are also derivative. It can be a matter of chance what we have been shaped by. Our limitations in public discourse may reflect either our upbringing or the caliber of the people we must deal with. The principal sources drawn upon by Martin Luther King, along with the Biblical tradition, seem to have been (for guidance of him in civil disobedience) Henry Thoreau and Mohandas Gandhi. Both of these men, however distorted their political

393. See Paragraphs 20 and 22; compare A TESTAMENT OF HOPE, supra note 378, at 294- 95. See also infra note 399. 394. Paragraph 46. Compare A TESTAMENT OF HOPE, supra note 378, at 301. See Anastaplo, "Rome, Piety, and Law," supra note 96, at 144. See also the text at infra note 427. 395. On the award of the Nobel Peace Prize, see DAvID L. LEwIs, KING: A CRITICAL BIOGRAPHY 255-63 (1970). See also infra note 413. 396. See, e.g., PLATO, THE REPUBLIC 499a-d; George Anastaplo, On How Eric Voegelin Has Read Plato and Aristotle, 5/6 INDEPENDENT JOURNAL OF PHILOSOPHY 85, 87 (1988). But see, on the specialness of Athens, Part 8 of this Collection. NORTHERN ILUNOIS UNIVERSIT L4 W REVIEW [Vol. 19 judgments could be at times, were better educated than someone in King's circumstances could ever become. This is not to deny, of course, that all three of these men, whatever their limitations, have had a considerable (and not undeserved) influence in their respective communities.

VI. King's limited understanding of political things-whatever his merits as a spiritual advisor and as a social tactician-is revealed by his failure to appreciate how much progress had been made for and by his people during his lifetime. Thus, he can refer, in the opening paragraph of his Letter, to the secretaries he has: we are reminded thereby that his organization, with scores of affiliates, is not a trivial operation. And the foundations had already been .laid by then in his career for the award to him, a year later, of the Nobel Peace Prize. Perhaps most symptomatic of King's limitations as a political thinker is what he said, the night before he was murdered, about President Lincoln: "[In 18631 a vacillating president by the name of Abraham Lincoln finally [came] to the conclusion that he had to sign the Emancipation Proclamation. 39 We see exhibited here, in King's use of "vacillating," a lamentable misreading of Lincoln's career. A small point, first, for the record: the critical date here was not 1863, but rather September 1862, when Lincoln"issued his Preliminary Proclama- tion. Lincoln had planned to issue that proclamation even earlier (little more than a year after he had been inaugurated), but he had been advised that he should wait for a Union victory, lest the issuance be discredited as an act of desperation at a time when the War was going badly for the Union forces. It was the Preliminary Proclamation which had put the States still in rebellion on notice that the Final Proclamation would be issued one hundred days later (that is, on January 1, 1863) in order to deal with all States or parts of States still resisting the lawful authority of the United States. There was not much doubt anywhere, it seems, that Lincoln meant to go through, on January 1, with what he had promised the preceding September. The magnificence of Lincoln's action was celebrated, on January 1 itself, by Frederick Douglass and his associates who had awaited its promised culmination in great excitement. And, a decade later, Douglass remembered with respect and affection what Lincoln had done to save the Union in such a way as to permit something Lincoln very much wanted, the end of slavery

397. ATEsTAMENT oF HOPE, supra note 378, at 279. This was in the speech, "I See the Promised Land," delivered in Memphis on April 3, 1968. On Lincoln and the Emancipation Proclamation, see ANASTAPLO, ABRAHAM INCOLN, supra note 18, at 197. 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 509

in the United States.3 98 Indeed, I venture to suggest, the most reliable test for assessing the political sense and prudential judgment of anyone interested in American statesmanship is to see how he or she speaks about the way Lincoln conducted himself as President with respect to Union and slavery. Men like Frederick Douglass get "it" right; all too many of our contemporary intellectu- als get "it" wrong, partly because they do not know what they do not know-nor do they sense what they need to know in order to be able to speak responsibly about the political matters they judge. Vital to an understanding of political matters, in any event, is an awareness of the role of chance in the career of any public man. Socrates, for one, was very much aware of how much chance hobbles the public man, so much so in fact that anyone caught up in political life rarely if ever is truly free.

VII. Much of what Martin Luther King, Jr. and others have said about civil disobedience has been questionable. But what he himself did and directed proved, up to a point, to be quite useful.399 Even more useful has been what followed upon the dramatization of African American grievances by judicial opinions, and by political leaders, as well as by much-publicized acts of civil disobedience. King himself, on more than one occasion, promoted the extension of the ballot to . But he did not seem to recognize, by the time he died, that the decisive steps had already been taken, with the Voting Rights Act of 1965 and related measures," to provide African Americans the political power they needed to protect their rights and to advance their interests. The equality of all men is perhaps best exhibited in the voting booth: each voter counts as much as anyone else in his or her voting district, just as vital differences between citizens are exhibited in the exercise of the freedom of speech. It is in the interest of any deprived minority to know what they are doing and why, so that they can use their votes to good effect. It is also important for the community at large that those who do have the votes be equipped to cast them sensibly for the sake both of themselves and of the community. If any significant minority is reduced to voting only its ignorance and its resentments, the entire country suffers. Is this not something that properly-

398. See supra note 375. 399. On civil disobedience and statesmanship, see ANASTAPLO, THE AMERICAN MORALIST, supra note 44, at 537. See also, Part 10 of this Collection; supra note 355. 400. On voting rights and the Voting Rights Act of 1965, see 4 ENC. OF THE AMERICAN CONSTrrUTION 1979, 1985 (1986). NORTHERN ILLINOIS UNIVERSTY LAW REVIEW [Vol. 19 monitored affirmative-action programs (informed by an effective freedom of speech) can try to remedy, for the sake of everyone?" Had King understood politics better, he might have been less reckless than he came to be. One can even wonder whether he courted martyrdom because he did not (perhaps, some might say, would not) see how much had been done for the cause of racial justice by 1968. His comrades, it is said, were distressed by his "macabre" speech in Memphis the night before he was killed on that remarkably exposed motel balcony.4 2 Be all this as it may, a Georgian recently told me, "King was good at saying things I did not want to hear." Among the things he described with good effect was the systematic way that his people had been deprived of their constitutional right to vote. Consider this passage, with which he opened a New York Times article in 1965: Few people in America realize the seriousness of the burden imposed upon our democracy by the disenfranchisement of Negroes in the Deep South. In Mississippi only about twenty-six thousand out of a voting-age population of some 450,000 Negroes have been allowed to register. The situation in Alabama and Louisiana is almost as bad, though previous state administrations of a more liberal inclination did permit the registration of approximately 150,000 Negro voters in Louisiana and 11,000 in Alabama. In recent years, however, under [George] Wallace in Alabama and former governor Jimmy Davis of Louisiana, the plan has been to freeze Negro registration at a level which can be successfully negated by sure segregationist voting strength.4°3 Further on in that article, he spoke thus of a determinedly racist sheriff in Alabama: He was voted into office in Dallas County [Alabama] by an electorate that includes only 635 out of fifteen thousand Negroes of voting ages. In contrast, out of 14,440 whites of voting age, 9,543 have been registered. So far, thirty-four hundred Negroes have been arrested in Selma, [Alabama], placing ten times as many [Negroes] in Selma jails as are on the voters' roll.'

401. See, e.g., supra note 55. 402. See supra note 397. 403. A TESTAMENT OF HOPE, supra note 378, at 182. 404. Id.at 184. 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 511

That was in 1965. A generation later I could observe (while in London, on New Year's Day, 1989) that the only racially-integrated contingents, in a long parade sponsored by the Mayor of Westminister, came from the United States, with the most obviously integrated contingent being the quite lively marching 5 band from a Mobile, Alabama high school.1 Much of what was once routine in race relations in this country has come to seem absurd to many in our younger generations. The challenge here, Martin Luther King, Jr. would insist, is not only to extend and solidify the substantial gains that have been made, but also to identify and address properly other social absurdities that we now take for granted, and this aside from differences among the races in this country. A good place to begin may be with the opinions we have which manage to cripple the country at large whenever it tries to shape as it should the hearts and minds of its citizens.'

ADDENDUM

MARTIN LUTHER KING, JR. AND THE SOUL OF AMERICA4° 7

Now a person is thought to be great-souled if he claims much and deserves much... He who claims much but does not deserve much is vain... He who claims less than he deserves is small-souled, whether his deserts be great or only moderate, or even though he deserves little, if he claims still less. The most small-souled of all would seem to be the man who claims less than he deserves when his deserts are great: for what would he have done had he not deserved so much? 4 -Aristotle 01 Much remains to be done. It is said, moreover, that little if anything has been done to secure for all Americans the rights to which all are entitled. When the impatient young say this, one can understand their mistake. When their elders say this, they are not only mistaken, they are irresponsible: for

405. See George Anastaplo, The Constitution at Two Hundred: Explorations, 22 TEx. TECH L. REv. 967, 1080 (1991). 406. See the Addendum to Part 4 of this Collection. 407. This talk was given at the Basic Program Weekend, The University of Chicago, Starved Rock State Park, Ottawa, Illinois, April 7, 1968. Martin Luther King, Jr. had been murdered in Memphis, Tennessee, April 4, 1968. 408. ARISTOTLE, NICOMACHEAN ETHIcs 1123b3-7. See the text at supra note 74. NORTHERN ILLINOIS UNIVERS1TY LA W REVIEW [Vol. 19 they not only mislead the young but they even deny the possibility of any progress at all, since they thereby deny there are standards by which the direction of permanent change can be charted. To disparage what has already been done will eventually discourage further deliberate effort since it will undermine among us faith in the power of reason to shape our affairs. We have heard much the past few days of our "sick society," of American repudiation of its principles, of the inability of the United States to face up to its serious problems. It is natural, in one sense, for men to believe the worst when one of their best is murdered. But it is also natural, in the finest sense, to examine things properly so as to be able to understand what the circumstances are in which one finds oneself. Had someone in Martin Luther King Jr.'s position in his community been murdered a generation ago, there would not have been the public response there has been this weekend: the President might not even have noticed the event; certainly, the country would not have stopped, with flags at half-mast, to mourn his death; the white mayor of Atlanta would not, immediately upon hearing the news from Memphis, have driven the victim's wife to the airport. A sensitivity to Negro rights and a concern for Negro opinion compel the public response we have witnessed and which we join in our own way this Sunday morning. Some will say that whites express grief merely to turn away anger on the part of Negroes. It is no doubt prudent to make such grief evident. But one must take care in talking about this matter lest the effort to repudiate destructive white racism legitimate and encourage black racism, which is no more fair or healthy for the community. One must take care, for instance, to challenge the repeated insistence that the murder of Mr. King has been committed by White America, that we all had a finger on that trigger, that we are all responsible for the events of this week. Such talk should remind us of the hate-twisted determination of the white racist to ascribe to all Negroes the crimes of a minority among them. We should be reminded as well that Martin Luther King, Jr. stood where he did in the estimation of the world in large part because of the support and respect he enjoyed in his lifetime from many white Americans. The decisive initial steps toward Negro enfranchisement, it should be remembered, were taken by white men: by the authors of the Declaration of Independence, who proclaimed to a skeptical world the authoritative American acceptance of the doctrine that all men are created equal; by the authors of the Emancipation Proclamation and the Thirteenth, Fourteenth and Fifteenth Amendments, who gave that doctrine concrete application; and by the authors of the Supreme Court opinion of 1954, who have insured that the best opinion of the community stands irrevocably behind the determination to 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 513

see these American constitutional principles respected.' Many men-black and white alike--prepared the stage for the Court's opinion, which, more than anything else in recent years, has marked out the path the American people are now bound to follow. Desperate acts of violence by demented men, encouraged by the bigotry of others who should know better, will not change the course we must take in these matters, a now evidently irreversible course that is reinforced by the steadily growing and increasingly self-conscious power of the Negro electorate. Martin Luther King, Jr.'s great talent in his decade-long career was to exploit for his purpose the resources he had at hand, the principles of the Constitution and of the Declaration of Independence and the imagery of the Old Testament and of the New. He could do what he did because he had at hand ancient aspirations to fire an eloquence suited for his people. We, too, must make use of what we have, what we have said, and what we have done. Indeed, I know of no country which has made the progress in racial matters since the Second World War that the United States has. It is neither honest nor helpful for us-and especially for intellectuals-to debase and hence to cripple ourselves by refusing to recognize in speech how far we have come, where we are, and where we are destined to go. If one does not know what one is saying, that suggests that one does not recognize what one is doing either. The United States knows what it has to do. It also knows that it has available, despite its folly in Viet Nam, the resources with which to do it. Neither panic nor distortion of the facts is of use to us. Progress can never be as fast as one would like, because any political process worthy of free men must take into account the lingering resistance of the ignorant as well as the insistent demands of the just. If our judgments are unreasonable, we sacrifice what we could gain-and we mislead the young and the ill-informed, condemning them to a childish view of the world. The misguided adults who permitted their young to roam the streets of our cities this weekend and to destroy their own neighborhoods did their community and their neighbors a disservice. One sees here the danger of allowing to go unchallenged the irresponsible opinion that no significant progress has been made or is being made by the American Negro in the only country he has. It should be acknowledged that the efforts this weekend in Chicago by the often-negligent "establishment"-by the police and the army, by firemen and city officials-surpassed not only in service to the community but also in nobility of aspiration the activities of self-destructive rioters. We can detect a connection, in the news reports, between the "silly smile" of Martin Luther

409. See, e.g., supra notes 39 and 114. NORTHERN ILLINOIS UNIVERSITY LA W REVIEW [Vol. 19

King Jr.'s murderer and the senseless laughter of youngsters looting and burning. Much more worthy of praise is the effort of organized gangs of youngsters to prevent the spread of senseless destruction to their own neighborhoods. This heralds that political organization by Negroes which will secure for them their rightful share in the governing of their country. Mr. King preached a doctrine of dedicated non-violence-a doctrine supported in his speeches by arguments, both principled and pragmatic. There is one further argument, however, which should also be noticed by anyone who cares for his Negro friends and for the soul of America, and that has to do with the dreadful vulnerability of our Negro fellow-citizens (an easily identifiable minority) if the "confrontation" in this country between black and white should really be taken to the streets. I have long doubted that provoca- tive marches through the streets of our cities, in the name of freedom of speech, constitute a right that any community is obliged to permit to be exercised, especially where other means of communication (culminating in the ballot-box) are available. 1 ° In any event, anyone of stature who is at the center of bitter controversy has the duty-for the good of his people and of his potential murderers, if not of himself or of his family-to take reasonable precautions for his physical safety. Good men have always been hard to find. We are entitled to keep them alive as long as possible, once we have been so fortunate as to discover them and to raise them up for all the world to admire. Especially is this so when, as now, much remains to be done.

17. THE ABUSE AND PROPER USE OF POWER

4 1 A. A RETURN TO THE AIR FORCE, BY WAY OF LITrLETON, COLORADO "

Turning and turning in the widening gyre The falcon cannot hear the falconer; Things fall apart; the centre cannot hold; Mere anarchy is loosed upon the world, The blood-dimmed tide is loosed, and everywhere The ceremony of innocence is drowned;

410. See, e.g., ANASTAPLO, THE AMERICAN MORALIST, supra note 44, at 191. On the problem of "freedom of expression," see Part 17-A of this Collection. See also supra notes 273, 319, infra note 419. On the problem of "hate speech," see supra notes 27, 206. 411. A talk given at the United States Air Force Academy, Colorado Springs, Colorado, April 30, 1999. This visit was arranged by Professor Ken Masugi of the Political Science Department of the Academy faculty. See infra note 428. 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 515

the best lack all conviction, while the worst Are full of passionate intensity. -William Butler Yeats 2 I trust that your military service will prove as instructive and productive, and of course as much devoted to the national interest, as mine proved to be after I, as a seventeen-year-old, volunteered for the United States Army Air Corps during the Second World War.4t 3 I became a Navigator in those days-and, if I say so, I was rather good in that calling, not least in that now somewhat arcane art of celestial navigation. I make a point of this, not only because of my generous introduc- tion just now but also because of what one of your fellow cadets told me yesterday, when he volunteered to act as my navigator as I tried to find my way through the rain and fog that greeted me on this huge base. Navigators, I was given to understand, are what those graduates of this Academy become whose eyesight disqualifies them as pilots. I hasten to add that that was not our understanding when I was an Aviation Cadet. I believe that I actually wanted to be a navigator from the beginning of my Air Corps career-and my eyesight was as good then as that of any of the would-be pilots among my comrades. Fortunately for me, that eyesight probably remains much better than that of most of the pilots of my generation, although that can change at any time now. Be that as it may, I did learn to fly an airplane before I learned to drive an automobile. Even so, I had the impression then--and leave it with you as advice for the flight training you will eventually have-I did have the impression that the more experienced and better an automobile driver one is, the better one is likely to become as a pilot. I.

I have been asked to say something about the themes touched upon in your constitutional law discussions. I understand that some of you have read my 1972 proposal for the abolition of broadcast television in this country, I called that "A Practical Man's Guide"-not because I believed, even then, that I had the remotest chance of success in my demolition project, but because I believed, as I still do, that a television-abolition proposal can help us notice

412. The Second Coming, in THE CouECTED POEMS OFW.B. YEATS 184 (1956). The athletic teams of the Air Force Academy are known as the Falcons. 413. See, e.g., ANASTAPLO, DiE AMERICA MORAIJST, supra note 44,at v, 586,590-91. On Nobel Peace Prize nominations, see Anastaplo, Lessons for the Student of Law, supra note 42, at 173-74. NORTHERN ILLINOIS UNIVERSITY LA W REVIEW [Vol. 19 issues that bear upon the training of citizens and the obligations of communi- 4 ties. 14 It proved quite instructive for me to come out here to Colorado Springs by way of Littleton yesterday afternoon in anticipation of my remarks on this occasion. I had wondered, as I drove in my rental car from the Denver airport, whether I would be able to find local people to talk with in Littleton about the 4 Is massacre at Columbine High School ten days earlier. Perhaps, I figured, I could have lunch in a local restaurant where I could visit with somebody. That is, I had not expected the area adjoining the school grounds to be as jammed with people, automobiles, and news media vehicles as it was-a slow-moving, quiet crowd. Nor had I seen pictures of the hundreds of feet of fences covered by bouquets of flowers and placards with messages found in the park (the Robert Clement Park) adjoining the school grounds. (All of the school continues to be cordoned off by the authorities.) One does get, from this display, a sense of the shock produced by the deliberate massacre at Columbine High. (Ribbons in the colors of the school may be seen ringing the trees throughout the Park, just as flags may be seen at half-mast all over this State.) We know, of course, that there have been many more killings of the young nationwide in recent months, but that a dozen youngsters should be killed thus has still been shocking, especially when seen against the background of the idyllic beauty of the area, with the foothills of the Rockies on display nearby. One could be reminded, by the response to these killings, of the response to the Oklahoma City bombing in 1995.416

II.

How do such killings happen, of which the Columbine High massacre is the most recent dramatic instance among us? Terrible things--even far worse things-have been done from time to time on this Continent-such as the massacres by and of Indians and such as 7 the racial policies we have had across the centuries." Still, it is sensed that

414. See supra note 54. See also supra note 86. 415. See, e.g., James Brooke, 2 Youth in Colorado School Said to Gun Down as Many as 23 and Kill Themselves in a Siege, N.Y. TIMES, Apr. 21, 1999, § A, at 1; Judith Graham & Bob Secter, Massacre Shatters School, CHI. TRM., Apr. 21, 1999, § A at 1; Dirk Johnson & James Brooke, 15 Bodies Are Removed from School in Colorado, N.Y. TIMES, Apr. 22, 1999, § Aat 1. 416. See, e.g., Anastaplo, Lessons for the Student of Law, supra note 42, at 187, 198, 206. 417. See, e.g., ANASTAPLO, 2 LIBERTY, EQUALTY & MODERN CONSTITUTIONAUSM, supra note 74, at 172 See also George Anastaplo, An Introduction to North American Indian Thought, 1993 THE GREAT IDEAS TODAY 252 (1993). 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 517

the casualness of the killings among us in recent decades is somehow different from what there was before. At least two critical questions, it seems to me, are dramatized by these killings, especially when carried out by and against youngsters: 1) What opinions contribute to this sort of thing? and 2) What equipment contributes to this sort of thing? (The opinions/equipment combination could be presented as a spirit/body combination.)

Il.

The opinions/equipment inquiry can lead us to two further questions that should be of interest to students of constitutional law: 1) What is believed now about "the freedom of speech [and] of the press"? and 2) What is believed now about "the right of the people to have and to bear arms"? The answers widely made to the first question can lead to the most amazing things being said in public these days, with little effective regulation or supervision by the community. The answers widely made to the second question can lead to the most amazing arsenals held in private hands these days, with little effective regulation or supervision by the community. I confess at the outset of this part of my discussion that I am not a gunman. The last handgun I recall having in my control was the one I wore for twenty-four hours the last time I served as Officer of the Day on an Air Corps base-and that was more than fifty years ago. The last long gun I managed was issued to me when I volunteered to take charge of a truck of supplies being driven during local rioting from our air base on the outskirts of Cairo, Egypt to the American Embassy in that city-and that, too, was more than fifty years ago.4 8 I should add that I have not missed having such weapons at my disposal. It has not been a fearful world for me. A dependence upon weaponry, that is, can be unsettling as well as reassuring, depending on one's temperament or on one's circumstances.

IV. The misshaping of opinions affects what atrocities are attempted by the troubled among us. The equipment available affects what atrocities can be perpetrated. Of course, things as common as a rental truck and fertilizer can

418. See George Anastaplo, Did Anyone "In Charge" Know What He Was Doing? Thoughts on the Thirty Years' War of the Twentieth Century, in A WEEKEND WITH THE GREAT WAR 3-5, 267 n. 1l(Steven Weingartner ed., 1996) ( included in the 1999 edition of Campus Hate-Speech Codes, supra note 27, at 49-70). NORTHERN ILLINOIS UNIVERSITY LA W REVIEW [Vol. 19 be used, as in Oklahoma City, and machetes can be used, as in Rwanda-but such equipment is far more difficult to use for massacres, in our circum- stances, than are guns. At the heart of the problem here, among us, is the way we talk about such matters, including about the relevant constitutional provisions. Something causes the changes we have seen in what all too many people are willing to do. There are both local causes and national (if not also international) causes at work here. Otherwise, we must assume that there are effects without causes, and that is hardly a respectable assumption in a scientific age. No doubt, families have often failed their children and the community-but what is it that has made families less vigilant or less determined or less effective than they once were? And what is it that has confronted families with many more challenges than ever before? It is no doubt useful to stress family responsibility in these matters, especially in the shaping and controlling of character. But families need help from the community; they too may need shaping, if not even compulsion, by the community. Families have often been crippled here both by changes in the accepted ideas and by changes in technology. One of my daughters was told recently by one of her children, "If my grandfather had raised me, I would get in far less trouble than I do-but I would have many more neuroses." We can see here the tension between a disciplined life and that personal fulfillment (or "doing one's own thing") which is made so much of today. In short, we see massive causes and we see dreadful consequences. Yet we do not have, in the community, either the good sense or the informed will to do something serious to head off both causes and consequences. It is obvious that the criminal laws we have do not suffice here: many, perhaps most, of the gunmen, in the tens of thousands of gun deaths we have every year, suffer one way or another. But cannot the community, by acting through its governments, do more to head off the various causes which corrupt opinions and empower the misguided? What, after all, do we mean by "self- government"?

V. We should now touch upon the questionable opinions about the Constitution that may contribute to our troubles here. Consider, for example, the way the First Amendment is discussed these days. It has become the guardian of an ever-expanding "freedom of expres- sion," not just of "freedom of speech and of the press." Traditionally, the core of this First Amendment provision was the insistence that the citizen was to 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 519 be protected in his right and duty to discuss freely the public business." 9 Among the consequences of the current emphasis upon "freedom of expression" is that irresponsible talk, coarseness of language, and offensive images are taken for granted, if not even encouraged, all around us. The presuppositions about community standards traditionally implicit in "freedom of speech" have been lost sight of. The "freedom of expression" emphasis looks so much to individuality that both the claims of and the requirements for community are likely to be forgotten-and when they are recalled, they can seem to be harbingers of intolerance, if not even of tyranny. The First Amendment is intended to permit us to say foolish things about public affairs and public figures without official penalty. Among the foolish things we have to put up with is what is said about the meaning and purposes of the First Amendment itself. Thus, First Amendment protection can also be invoked, properly enough, in our efforts to correct that foolishness which takes the form of mischievous, and sometimes crippling, misreadings of the First Amendment.

VI. The foolish talk we have to put up with includes what is said by some among us these days about the Second Amendment as well. It is read as if it permits, and even encourages, an almost unlimited and largely unregulated proliferation of a wide range of firearms in private hands. This interpretation of the amendment depends upon a misreading of the historical record and a 420 neglect of much of the text of the amendment itself. Thus, the discipline associated with an armed militia, and recognized in the opening words of the Second Amendment ("A well regulated Militia, being necessary to the security of a free State"), is ignored today by those who insist upon a virtually unrestricted right to own firearms. An early advocacy of the militia may be seen in Patrick Henry's famous "Give me liberty or give me death" speech in 1775. Here are the "manly resolutions" he moved in the Second Revolutionary Convention of Virginia: Resolved, That a well-regulated militia, comlosed of gentlemen and yeomen, is the natural strength and only security of a free government; that such a militia in this colony would for ever render it unnecessary for the mother- country to keep among us, for the purpose of our defense,

419. See my "Censorship" article, ENCYCLOPEDIA BRITANNICA, 15th ed. On "freedom of expression," see supra note 410. 420. See, e.g., ANASTAPLO, THE AMENDMENTS TO THE CONSTITUTION, supra note 55, at 59-68, 463. See also supra note 318. NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 19

any standing army of mercenary soldiers, always subversive of the quiet, and dangeroug to the liberties of the people, and would obviate the pretext of taxing us for their support. That the establishment of such militia is, at this time, peculiarly necessary, by the state of our laws, for the protection and defence of the country, some of which are already expired, and others will shortly be so: and that the known remissness of government in calling us together in legislative capacity, renders it too insecure, in this time of danger and distress, to rely that opportunity will be given of renewing them, in general assembly, or making any provi- sion to secure our inestimable rights and liberties,from those further violations with which they are threatened. Resolved, therefore, That this colony be immediately put into a state of defense, and that [some members of this assembly be designated]a committee to preparea plan for embodying, arming, and discipliningsuch a number of men, 42 as may be sufficient for that purpose. ' This is hardly the talk of a citizen who wants to see his fellow citizens armed and on their own. Rather, the interests and role of the community, in the organization and control of such armed men, are very much in evidence here, as they are in the Second Amendment itself. This is a long way from the kind of talk one hears today from those who are fearful of plots to disarm the American people. I even heard on my car radio, on the way to Littleton yesterday, the suspicion expressed by a local commentator that the Littleton shootings had been somehow staged by those who are looking for excuses to take away our guns, the guns that keep tyrannical governments at bay. (This, along with talk about the threats to our property generally, could be heard on a program that billed itself as "Chris- tian.") But I did not have to come to Colorado to be reminded of the macho (or is it the unduly apprehensive?) element in the American heritage. A full page ad that appeared in yesterday's Wall Street Journal can remind us of the connection between irresponsible talk and uninhibited (if not destructive) action. An investment company tells investors, for whom "every second counts," "that online trading is like the Old West: THE SLOW DIE FIRST." 422

421. ANASTAP.O, I LIBERTY, EQUAuTY &MODERN CONsTIUIONAUSM, supra note 74 at 269-70. See the text at supra note 172. 422. Fidelity Investments, WALL ST. J., Apr. 29, 1999, § A, at 5. See also the text at supra note 335. 1999] LAWYERS, FIRST PRINCIPLES AND CONTEMPORARY CHALLENGES 521

That is, those who hesitate to shoot, it seems, are most vulnerable. But I doubt that this is good advice either for anyone carrying a weapon or for anyone investing money. The "real man" is thus portrayed as gun-connected. We should not be surprised, when respectable institutions talk this way, that the impressionable children in our ghettos and elsewhere have become so "free and easy on the draw," whether with guns, drugs, or cigarettes, all of which contribute to our "culture of death." Are we truly powerless, as a community, to do anything about this besides trying to lock up more and more of those who commit crimes? It is not, I hasten to add, that we, with the largest proportion of people in jail of any country in the Western World, are soft on crime.4' Is self- government limited to responding to criminals when they do terrible things, rather than also addressing ourselves, as a community, both to the opinions and to the equipment necessary for most of the depredations we all suffer? It has been noticed, for example, that "drive-by stabbings" do not pose the threats in our cities that "drive-by shootings" do. It should also be noticed that the Bible-and Shakespeare, however vivid some of their stories may be, simply do not "dehumanize" the young in the way that much of the mass media seems to do.

VII. Critical to some of our difficulties today, I have suggested, is the refusal, almost "on principle," to appreciate the connections between causes and effects. Contributing to the resulting paralysis is the familiar question, "Who is to say ... ?" The moral relativism we are comfortable with needs to be challenged again and again if we, as a community, are to restore our duty, our ability, and our right to identify and then to choose the good. I recently heard in Chicago a Polish archbishop report that he asks would-be relativists, back home, "Do you really believe that a Nazi description of Auschwitz is as reliable as a Jewish description?"425 Vital here is the legitimacy, indeed the necessity, of community self- confidence. A symptom of our deterioration is the proliferation of legalized, often state-sponsored, gambling on a very large scale. One consequence of this unseemly development is that the poor and gullible are being systemati- cally fleeced by those of us who want more and more governmental services

423. See, e.g., supra note 318. 424. See, e.g., supra note 320. 425. On moral relativism and the United States Supreme Court, see ANASTAPLO, 2 LIBERTY, EQUALiTY & MODERN CONsTITUTIoNAuSM, supra note 74, at 226. See also supra notes 87, 196. NORTHERN ILUNOIS UNIVERSITY LAW REVIEW [Vol. 19 without having to pay for them. One thing is for sure here, and that is that those who profit most from gambling do not themselves believe in gambling.426 I return to Littleton, if only briefly. One could be reminded there, by the floral offerings and by other signs of grieving, of the responses in England, a few years ago, to the sudden death of Princess Diana. One could also be reminded, in turn, of how much of what we do-whether grieving or killing-is imitative. In one way after another, the poverty of our expression is evident, as is the desire of people for something grander than what is generally available. (An exception at Littleton was the use, as vehicles for mourning, an automobile and a pickup truck that had been owned by two of the Columbine High victims, a girl and a boy. Those flower-covered vehicles, in which these youngsters had "lived," were "them," it seemed.) Perhaps imitation is inevitable, if not even desirable, for most of what we say and do. If so, it becomes even more critical that we be shaped by the most elevated speech and the most exalted conduct. And here the caliber of what we hear, read, and see can be decisive, along with training and practice in recognizing and interpreting the best that happens to be available to us, which can include our constitutional provisions. One must be willing to run the risk here of seeming intolerant as one responds with vigor to the unacceptable. However all this may-and whatever the problems if not crises we encounter from time to time--it should be recognized and generally appreci- ated how successful the United States has long been and continues to be. This is eloquently testified to by the fact that this remains the principal country in which informed people all over the world most want to live, if they must leave their own countries. American success continues to be intimately dependent upon the legitimacy, indeed the necessity, of community self-confidence. The sense of community is sometimes undermined by the atomization that a market economy, upon which our success in large part depends, can promote if not even seem to require. There have to be taken seriously here the demands of genuine liberty and the meaning of effective self-government. In short, one is not truly free unless one not only knows what is right but also does it well or at least as best as it can be done in the circumstances one happens to find oneself.427

426. See, e.g., George Anastaplo, "Private" Gambling and Public Morality, in REPRESENTATIVE AMERICAN SPnEcE 1996-1997 126 (Calvin M. Logue & Jean DeHart eds., 1997); 142 Congressional Record S9449 (August 1, 1996). See also supra note 276. 427. See the text at supra note 394. On the Idea of the Good, see supra note 158. 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 523

B. AMERICAN CONSTITUTIONAL LAW AND THE ATTEMPTED RESCUE OF 42s KOSOVO

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against . -The Constitution of the United States429

I. What are the constitutional issues for the United States raised by the current campaign by the North Atlantic Treaty Organization (NATO) against the Serbian government?" It is important, here as elsewhere, to distinguish constitutional concerns from political and prudential (and other moral) concerns. The difficulty of distinguishing the constitutional from other equally proper concerns is, I mention in passing, itself an argument against judicial review of Acts of Congress by Courts of the United States.43' It is not, however, a proper "legal" concern of the Serbian government, or indeed of our European allies, whether the United States is currently conforming to its constitutional processes. Still, this could be important politically for Europeans, inasmuch as it bears upon what the United States can be expected to do hereafter in the light of its constitutional processes.432 The Serbian government, as well as others (including, of course, the Serbian people), do have legitimate concerns about the treatment that Serbia is entitled to pursuant both to international law and to natural law and the related laws of war. But the way that the Serbian government has conducted itself, not only in Kosovo but also earlier in Bosnia, obliges civilized peoples everywhere to insist that no government of a sovereign country is entitled to

428. A talk given in a Faculty Workshop at the United States Air Force Academy, Colorado Springs, Colorado, April 30, 1999. (This faculty group included Air Force serving officers.) See supra note 411. 429. U.S. CoNsT. art. IV. On the Republican Form of Government Guarantee, see ANASTAPLO, THE CONSTruToN OF 1787, supra note 121, at 172-75, 337. 430. The NATO aerial bombardment of Serbia began on March 24, 1999, and ended on June 10, 1999. See Whitney Craig, Crisis in the Balkans: The Overview, N.Y. TIMES, June 11, 1999, § A, at 1. 431. On judicial review, see ANASTAPLO, THE CONsTrrtmON OF 1787, supra note 121, at 335. 432. The Versailles Treaty debacle comes to mind here. On out Thirty Years' War, see supra note 418. NORTHERN ILUNOIS UNIVERSITY LA W REVIEW [Vol. 19 be left free to slaughter part of its population in order either to advance its political or ethnic goals, or to serve the ambitions of its leaders. I hasten to add that I am talking now about the immediate situation in the Balkans, as it is humane and, I believe, prudent to do. That is, I do not address here complicated questions about the contending claims, over centuries, of the Serbs, the Albanians, and many others in. that troubled part of the world.433

HI. A question that is appropriate, indeed necessary, for all to consider at this time is whether a just war is being conducted against the Serbs by the North Atlantic Treaty Organization. The 1946-1947 Nuremberg Trial precedent is relevant here, bearing not only upon how the leader of the Serbs and his lieutenants conduct themselves, but also upon how the NATO allies conduct themselves.M The NATO campaign resembles in some ways the Persian Gulf War of 1990-1991. That campaign seemed to me then to have questionable features, as did the earlier campaigns against Grenada and Panama.435 But one critical difference (besides the absence in the Balkans of the sometimes distorting influence of vast oil reserves) may be that the current campaign could well be considered an insistence by the European community upon maintaining a civilized way of life on their Continent, at least to the extent of suppressing blatant barbarism within their reach.436 Although the United States is still substantially European in critical respects, it would probably be best for Europeans to do more themselves with such NATO operations as we see in the Balkans today. It is certainly to be regretted that Europeans were not able to move effectively against what was done to Bosnia.437

433. On the complicated equities of Balkan relations, see ANASTAPLO, CAMPUS HATE- SPEECH CODES, supra note 27, at 81. 434. On the Nuremberg Trial,.see Anastaplo, On Trial, supra note 75, at 977. See also the text at supra note 321, the text at infra note 454. 435. See, e.g., George Anastaplo, On Freedom: Explorations, 17 OKLA. CrrY U. L. REV., 465, 589, 604 (1992); George Anastaplo, First Impressions, 26 PoL SCI. REVIEWER, 239 (1997); George Anastaplo, Samplings: Nine Talks, 27 PoL Sc1. REVIEWER, 345, 389 (1998). See also supra note 317. 436. One of the consequences of Serbian barbarism (and of anti-Serbian barbarism in earlier generations?) was to assault Western Europe with a steady flow of refugees. 437. Much the same can be said about what African states should do to deal with African atrocities. Compare There's no difference in Kosovo and Rwanda, CHI. DEFENDER, May 11, 1999 at 9. The opening passage of this editorial in an African-American newspaper says: Americans and other concerned persons worldwide are all in a twitter these days over the ethnic cleansing being undertaken in the Balkans, and rightfully so. But where was the Kosovo-like outcry when tens of thousands of Tutus and moderate Hutus were being summarily slain by hard-core Hutus five 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 525

It remains to be seen whether the United Nations will provide legitima- tion hereafter for action of the kind now being taken in the Balkans. 38 But United Nations or other legitimation aside, it remains a prudential question whether such a course as that now pursued in the Balkans by the NATO countries is both called for and effective without too high a cost.

Ill. It may be said some day, with some justification, that NATO has been, ever since its Kosovo intervention, the police force for the United States of Europe. 39 This kind of thesis could make sense with respect to Europe, however premature similar efforts, such as among the South American republics, might seem. The Europeans do have, or at least are coming to have, the same political and social systems across most of the Continent, with steadily deepening economic interdependence. And, it seems that there are relatively few serious territorial disputes, especially among the larger states, to stir up serious quarrels.' * The moderating of religious differences, again among the larger states, can contribute to European unity."4' The United States of America can be understood to be helping out (albeit at times dominating) the fledgling European Union, just as first France (during the American War of Independence) and thereafter Great Britain (with its endorsement of the Monroe Doctrine) helped the United States become a viable country. Europe, now that the NATO campaign has been launched against the Serbian government's policies in Kosovo, considers itself obliged to see it through: it matters much more to Europe, than to the United States, whether there is a failure in this campaign, however "failure" is defined.

years ago in a similar campaign of ethnic cleansing? Specifically, why was the world's voice not raised in indignation and horror against the 1994 massacre in Rwanda, much like is being done in Yugoslavia today? Where were the voices and arms of world monitoring organizations like NATO, the U.N., the U.S. and even the OAS (Organization of African States) when 500,000 humans were being sent to their doom? Could it be because they were simply Black folks killing other Black folks? But see Phat X. Chiem, [Jesse] Jackson Praises NATO Intervention: Leader Says Move Made Human-Rights Progress,CHI. TRIB., June 28, 1999, § 2, at 2. See also infra note 451. 438. The United Nations General Assembly did begin to participate somewhat in the Kosovo matter once the aerial bombardment had stopped. 439. The campaign in the Balkans, it may also be pointed out by way of illustrating what is happening generally in Europe, followed upon the establishment not long before of the Euro as the currency of the European Union. 440. See, e.g., supra note 418. 441. What those religious differences can generate in the way of deadly conflict may still be seen in Northern Ireland, where (it can be said) Irish Catholics have been engaged in a civil rights movement somewhat like that of African Americans in the Unites States in the 1960s. NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 19

NATO itself, we are told, could be seriously damaged by what might be considered its failure in the Balkans. 2

IV. Even so, the most serious practical question here for the United States, as distinguished from the other NATO countries, is not the European-unity question or the humanitarian-intervention question--critical though these are-but rather what the long-term relations between Russia and the West are to be." 3 Just as it was foolish of us, during much of the Cold War, to exaggerate, (as was done) the overall power of the Russians, so now it would be foolish to underestimate that power." Although the United States may be the only superpower these days, and perhaps for some time to come, the Russians do have, if only because of their still vast arsenal of nuclear weapons, the capacity to have some of the awesome effects of a misguided superpower." 5 A related question here is what the standing and influence of Germany is to be in Europe in the decades ahead. That question can turn acute either if the Russians become even more apprehensive than they are now about NATO "aggressiveness" or if the Russians (because of a lack of sufficient trust in and help from the United States) become even more demoralized and desperate than they already seem to be. It should be remembered, in any event, that Tocqueville could predict, a century and a half ago, that the great counterweight to the then-emerging American power would be Russia. It may well be that one major consequence of the Marxist experiment in Russia was to delay its natural ascendancy over Eurasia for a century." 6 It may be, therefore, that the abiding issue left by the Kosovo matter, however it is resolved, will be what becomes of Russia in the world commu-

442. One suspects that both the United States and the people of Vietnam would have been better off "in the long run" if the United States had quickly found that it had "succeeded" in its initial Indochinese effort-and then promptly got out. 443. On the United States and the Russians, see ANASTAPLO, THE AMERICAN MORAST, supra note 44, at 555; Anastaplo, On Freedom, supra note 435, at 630. 444. Symptomatic of our exaggerated concern was the Rosenberg Espionage Case of the 1950s. See supra note 75. It is instructive to see how much more relaxed we are these days about the much more extensive Chinese nuclear-weapons espionage which has been alleged. 445. One of the remarkable aspects of the half-century of stockpiling thousands of nuclear weapons, both East and West, is that there has not yet been a recognized accidental explosion within any country. One can suspect, by the way, that many of these weapons simply would not "work" if an attempt should be made to detonate them. Or is this merely wishful thinking? On proposed missile shields, see supra note 366. 446. The Tocqueville prediction is complicated now by the stirrings we have seen in China, a country which had not figured, it seems, in Tocqueville's reckoning. 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 527

nity, especially in its relations with the United States. Among the questions to be pondered is whether Russia will "ever" become truly a European power. 7

V. Now that I have set to one side the truly momentous questions here, I can return to the secondary question put to me on this occasion, as to what the constitutional issues are that are posed, within the United States, by our participation in the campaign against the Serbian regime. There are some technical questions here that need to be developed, but which I will do little more than mention. Are we engaged in a war? If so, would it not be better to have a declaration of war by Congress?" Whether or not a war, the policy being pursued in the Balkans would be on a firmer foundation if the Congress should provide authoritative guidance. That kind of "polling" would be far better for the President to rely upon than the public opinion polls he is said to make so much of."9 But aside from this consideration, which is at least as much political as constitutional, what may the President do consistent with the Constitution? Our continuing intense participation in NATO, after decades of treaties and of Congressional authorizations and appropriations, is virtually impossible to question effectively on constitutional grounds at this time.4' American participation in NATO has included substantial allocations of the armed forces and military equipment of the United States to NATO purposes and projects. Related observations might be made about the authority available to the United States (but not the duty), because of the United Nations Charter and our longtime adherence to it, to intervene anywhere in the world for obvious humanitarian purposes.45' The consider- able concern these days about the destabilization of the volatile Balkans can plausibly be seen as a proper concern of both NATO and the United States.

447. See, e.g., Section IV of Part 13 of this Collection; supra note 443. 448. See supra note 435. On the evidently ineffective War Powers Resolution, see ANASTAPLO, THE CONSrMTION OF 1787, supra note 121, at 339. See also the text at infra note 452. 449. Compare William Nelkirk, In Tie Vote, House [of Representatives] Refuses to Endorse Air Attack, CHI. TRM., Apr. 29, 1999, § A, at 1. 450. See, e.g., THE ATLANTIC PACT FORTY YEARS LATER: A HIsTORICAL REAPPRAISAL (Ennio Di Nolfo ed., 1991); PHIL WILIlAMS, NORTH ATLANTIC TREATY ORGANIZATION: AN ANNOTATED BBLUOGRAPHY (1994); THE FUTURE OF THE U.S. MnrARY COMMrrMENT TO EUROPE (Jeffrey Record ed., 1989). 451. Are not humanitarian purposes likely to be discredited if a country's intervention proves to be ineffective - and even more so if it should become apparent that it can never bring its substantial power to bear upon the troubled situation? Our experience in Somalia is instructive here. See supra note 437. NORTHERN ILLINOIS UNIVERSITY LAW REVIEW (Vol. 19

The concerns I have just touched upon would not be as pronounced as they are in some quarters if there had been, for decades now, a routine dedication of American military personnel to international units which are truly commanded at times by non-Americans. There may be no constitutional barrier to such a dedication or assignment, but there is a substantial political barrier: Congress, it has long been evident, simply would not permit this. When there is an American general in charge of operations and other indications of considerable American influence with respect to how Serbia is dealt with, it can appear to some (perhaps mistakenly) that this is really no more than an American war for which a declaration of war by Congress is required.452

VI. Be all this as it may, I trust that nothing that I have said can be construed to suggest that officers of the United States Air Force should be questioning in public the orders they have received thus far in the current campaign against the Serbian regime. Certainly, Air Force officers, including the most accomplished aviators (and even if they are graduates of this Academy), are not equipped to make constitutional assessments. These judgments they have to leave, and indeed should want to leave, to constituted, and easily recog- nized, superiors, both military and civilian.453 The Nuremberg Trial reminded us of something that has always been sound, that some orders could, perhaps should, be resisted. 454 Thus, a return to the indiscriminate obliteration bombing of civilian populations, such as we became accustomed to during the Second World War, should prompt serious reservations on the part of anyone ordered to conduct such bombing. But one should hesitate to pass judgment on these matters from "the outside." I must confess, for example, that I do not recall hearing among ourselves either as aviation cadets or as flying officers (in 1944-1945), any expression of concern with respect to these issues during the Second World War. We, partly because

452. On the War Powers Resolution, see supra note 448. My personal interest in, if not even sympathy for, what NATO stands for and has tried to do can be said to have been stimulated by the accident that when we sailed for Europe in January 1951 (after my career at the bar had been suspended) it was on the very ship (the Queen Elizabeth) that was being used to carry Dwight D. Eisenhower to his command of the allied military forces in Europe. One happy consequence of this was that both our departure from New York and our arrival in France were properly celebrated. 453. See, e.g., my "Kwajalein" note in "The Education of George Washington," in Anastaplo, Law, Education, and Legal Education, supra note 33, at 761. 454. See supra note 434. 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 529 of the Nuremberg Trial and such well-documented atrocities as My Lai, 45 have all become more sensitive here-and that, I believe, is good. (The introduction of the atomic bomb has dramatized issues that were there all along, once systematic attacks began on civilian populations.4 ) These issues were discussed at length in a 1944 article by a Jesuit priest in New England.457 It is amazing that his critique could be published as it was in the middle of the 45 war. 1 (The obscurity of the theological journal in which he was published probably helped the author.) It is, I believe, healthy that we have, at least in these matters, a more lively concern about the good.459 I myself visited German cities, including Berlin, at the end of the Second World War. One could stand at the heart of a city and see nothing standing but chimneys and fragments of walls for miles around. This was far more devastation than was evident in British cities at that time, despite the fact that what had been done to British cities fueled the unrelenting Allied assault raids on Germany. The postwar exposure of the dreadful atrocities deliberately perpetrated on a large scale by the German government, and acquiesced in by many of the German people, made it easier for us to accept what had been done to Germany by aerial bombardment. 46 The extensive and deliberate Serbian atrocities against ethnic Albanians in their midst now makes it hard to take seriously the Serbian outrage about the "collateral damage" which has led to the deaths of some civilians among the Serbs. (Far more serious, by the way, is the substantial, and predictable, damage being inflicted upon a captive civilian population by the economic blockade of Iraq.461)

455. See, e.g., SEYMOUR M. HERSH, MY LAI: A REPORT ON THE MASSACRE AND ITS AFrERMATH (1970). See also Anastaplo, On Trial, supra note 75, at 1091. 456. On the almost inevitable connection between the Pearl Harbor attack of 1941 and the Hiroshima and Nagasaki atomic bombings of 1945, see Anastaplo, On Freedom, supra note 435, at 645. See also infra note 460. 457. See John C. Ford, The Morality of Obliteration Bombing, 5 THEOLOGICAL STUDIES 261 (1944). See also ANAS'rAPLO, 2 LIBERTY, EQUALITY & MODERN CONSTrrUrIONAUSM, supra note 74, at 199. 458. Compare the rather innocuous leaflet that was the basis of the prosecution in Schenck v. United States, 249 U.S. 47 (1919). See ANASTAPLO, THE CONSTITUTIONAUST, supra note 79, at 296-300; ANASTAPLO, 2 LIBERTY, EQUALITY & MODERN CONsTrrrIONAL1SM, supra note 74, at 178-84. 459. See supra note 158. 460. See Lawrence L McReavey, Correspondence, 6 THEOLOGICAL STUDIES 140 (1945). See also ANASTAPLO, 2 LIBERTY, EQUALITY & MODERN CONSTITUTIONAUSM, supra note 74 at 214. See also supra note 456. 461. See supra note 317. NORTHERN ILLINOIS UNIVERS17Y LA W REVIEW [Vol. 19

VII. I have suggested that the current campaign in the Balkans poses questions for the United States that are more political than constitutional. Subsumed under the political issues are the military assessments and expectations relied upon by NATO, some of which seem to be dubious. And, it should be added, both constitutional and political concerns depend ultimately upon moral concerns, including a sound grounding in prudential judgment. Certainly, moral standards are drawn upon in the condemnation worldwide of the Serbian regime today.462 There can be here, one should recognize, doubts promoted by reserva- tions in some quarters about the moral stature of the Commander-in-Chief of the American forces involved in the Serbian campaign.463 But no more than a bare notice of such doubts is proper on this occasion, whatever I may say, subject. 464 and indeed have said, elsewhere about this painful A proper respect for the sensibilities of serving officers as well as of future officers suggests, if it does not even require, that the character of their 46 Commander-in-Chief should not be questioned in their presence. That is, they should not be obliged either to acquiesce in or to object to such criticism. Indeed, it can be said, the proprieties call here for at least a minimum of obvious respect for constitutional institutions and hence for whoever happens 4 to be the Commander-in-Chief that one is privileged to serve.

462. See, e.g., supra notes 139, 433, 434. 463. That the moral stature of a leader does matter is evident upon examing the careers of men as diverse as Alexander the Great and George Washington. See, e.g., Anastaplo, Law, Education, and Legal Education, supra note 33, at 734, 758. 464. See, e.g., supra note 21. See also, George Anastaplo, What Do We Really Want to Learn About the President?, PUBUC INTEREST LAW REPORTER, Apr. 1998, at 2; George Anastaplo, Crisisand Continuity in the Clinton Presidency, PUBLIC INTEREST LAW REPORTER, July 1998, at 1. 465. It becomes rather awkward, of course, when officers of the military services are routinely held to a higher standard of personal conduct than is their Commander in Chief. But then, officers have to be able to rely upon one another (both socially and professionally) across decades, whereas Presidents serve only a few years, are vulnerable to the censure of their constituents, and may not have to be trusted in the way an officer is. Of course, it is best when the Commander in Chief does behave himself. See supra note 21. 466. Thus, the appearances of things must be respected in a well-ordered regime. This is not unrelated perhaps to the importance of taking seriously, with a view to understanding, the surface of things. See, e.g., LEO STRAUSS, THOUGHTS ON MACHIAVEUI 13 (1958). See also ANASTAPLO, ABRAHAM LINCOLN, supra note 18, at 227. 1999] LAWYERS. FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 531

ADDENDA

I. THE COLUMBINE HIGH MASSACRE INTHE WORLD PRESS467

A. FRANKFURTER RUNDSCHAU, Frankfurt, Germany. The [school shooting in Littleton, Colorado] could have been avoided, like its depressing series of predeces- sors, if the U.S. were a disarmed society. But the country has decided to be privately armed to the teeth with pistols and rifles-with the absurd ideological justification that the possession of weapons is a right of freedom. This position, insane as it is for a civilized society, was not forced upon the Americans. Now they must bear the consequences of their decision as well. Anyone who believes that the notion of peaceful conflict resolution can be conveyed to children while adults glorify weapons is at best naive. To hope that children will not resort to arms although there are roughly 200 million guns in U.S. households is life-threateningly stupid. B. RHEIN-NECKAR-ZEITUNG, Heidelberg, Germany. The unprecedented massacre in the Littleton School will not change American society. And further massacres are to be expected. Influential powers in U.S. society do not want to abolish the root evil behind the unimaginable violence of children and adults, the free access to weapons of almost every sort. A comparison. Less than one percent of European households own guns, whereas statistically every U.S. household could have one. Making it more difficult for potential murderers, young or old, to gain access to weapons would be possible only with genuine disarmament of private citizens. But that is as improbable as a ban on baseball. C. , Chicago, Illinois "We support common-sense legislation that keeps guns out of the hands of unsupervised children. We support tightening laws to bring uniformity between gun shows and

467. See Violence in the United States, THE WEEK IN GERMANY, Apr. 23, 1999, at 3 (two items); Keeping the Pressure on the Guns, CHI. TRIB., June 6, 1999, § 1, at 18. NORTHERN ILLINOIS UNIVERSITYLAWREVIEW [Vol. 19 gun shops. We support instant background checks at gun shows. We intend to bring these measures to the floor of the House, and I believe they will pass.... " As Republican manifestos go, that one offered May 25 [and quoted above] by House Speaker Dennis Hastert was remarkable, considering his party just a few years ago was trying to abolish the federal ban on assault weapons. The Republicans have promised new safeguards and restrictions on guns, and that is overdue. They have also decided to take a go-slow approach toward this, which may be wise, but also invites suspicion that the GOP still hopes its gun problem will go away. Sure enough, the Washington debate last week slipped from guns to Hollywood, with President Clinton's an- nouncement that the Justice Department and the Federal Trade Commission will conduct a study of how the enter- tainment industry markets violence-infused films, TV shows, video games and music. A national response to children and violence has to consider all aspects of the problem, including what mes- sages children get at home, at school, and in the movie theater. It can't just be Washington soul-searching or Hollywood soul-searching; it has to resonate in every home and community. And it must not obscure the common denominator in the tragedies that have shaken the nation: the gun. Hollywood? Yes, Hollywood is an issue and part of the answer. But Hollywood exports its product around the world. American-made shoot-'em-ups are as popular in Europe as they are in Illinois. America, as well, hardly has cornered the market on angry and disaffected teenagers. What sets the U.S. apart is the easy accessibility of guns and the maddening frequency of their use. Consider a study prepared last year by Handgun Control Inc. In 1996 there were 15 handgun murders in Japan, 30 in Great Britain, 106 in Canada, 213 in Ger- many-and 9,390 in the United States. Those other nations have far tougher gun controls than the U.S. When other countries have been confronted with stark tragedies, they have reacted forcefully. Britain banned possession of almost all handguns after 16 children and a teacher were murdered in Scotland. After a gunman killed 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 533

35 people in Port Arthur, Australia banned semi-automatic firearms and committed $500 million to a massive buy-back program. In contrast, the post-Columbine gun debate in Con- gress, while worthwhile, is still fiddling around the edges. Speaker Hastert's promise is welcome, and given political realities may be as good as it gets for now. But America can't lose sight that its awesome, terrifying problem of gun violence won't be resolved with half measures.

I1. THE KOSOVO CAMPAIGN IN THE WORLD PRESS4"

A. CHICAGO TRIBUNE, Chicago, Illinois

Bill Clinton and Tony Blair got lucky in Kosovo, Many commentators have opined in the wake of Slobodan Milosevic's capitulation to NATO's air power. True. They and their 17 counterparts in NATO fought a war by committee-and won. They relied solely on air power-and won. There had to be a lot of luck involved. But it's amazing how much luckier a gang of guys with B-52s and Stealth bombers and Tomahawk cruise missiles and smart bombs and smart commanders manage to be than a guy with none of those assets. So maybe, just maybe, there was a bit of design and method behind the NATO victory. And if there was, then lessons can be extracted from the experience-lessons that may guide not just future military actions, but also future diplomatic behavior and geostrategic planning-in Europe and elsewhere. Among the lessons of Kosovo: - Europe remains sadly, excessively and uncomfort- ably dependent on the United States when it comes to mounting any sort of serious military action. As a military alliance, NATO is anything but a union of equals. Far from it. The Europeans possess no common army or defense

468. Learningthe Lessons of Kosovo, CMU. TRU., July 5,1999, § A, at 12; RussianAnger Over Balkans, GUARDIAN WEEKLY, July 15-21, 1999, at 12; Limits on Sovereignty Will Benefit Us All, LE MONDE, September 13, 1999 (reprinted in Guardian Weekly, Sept. 30-Oct. 6, 1999, at 29). NORTHERN ILLINOIS UNIVERSITY LA W REVIEW [Vol. 19 doctrine, no independent airlift capability and are woefully deficient in air power and precision weaponry. Happily, they became acutely aware of this during the war and began bestirring themselves to do something about it. The question is whether that resolve will outlast the fighting in Kosovo. It must, because the American people will not indefinitely play Sugar Daddy to the rich, depend- ent Europe. - Kosovo was the first modern war fought mainly for humanitarian reasons. But there also were strategic reasons: promoting European security and democracy, preventing Milosevic's ethnic warfare from spilling into and destabilizing neighboring countries and NATO's southern flank. The U.S. was involved because NATO is it most important alliance. Involving the U.S. in such a war outside Europe would be harder to justify. But Kosovo did establish that a regional alliance with an interest in maintaining stability may intervene to prevent an "internal" conflict from spreading to neighboring nations. That is a wholesome precedent for other regions or continents, like Africa, with similar problems, and the U.S. ought to promote the estab- lishment of regional peacekeeping and intervention forces in such situations. - NATO, originally created as a firewall against Soviet invasion, is evolving into an eastward-expanding alliance that will be preoccupied for years to come with stabilizing and rebuilding the Balkans. Looking for a new mission in its 51st year, NATO has stumbled onto one: promoting a stable and free Europe, even if it means acting outside alliance territory. - In bypassing the United Nations, attacking a Russian ally and accidentally bombing the Chinese embassy in Belgrade, the U.S. alienated Russia and China. Repairing these relationships must be a postwar priority, but Clinton wisely did not let them be obstacles to acting in Kosovo. By exerting itself diplomatically, Russia showed that it can be of use. By rushing into Pristina ahead of NATO's, it also showed it can be mischievous. Like China, even a prostrate Russia can be depended upon to pursue its national interest. We must know ours and be equally determined in pursuing it. 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES

- Despite the military victory in Yugoslavia, the almost-reflexive tendency of Secretary of State Madeleine Albright to loudly threaten bombing must be curtailed. The best diplomacy, almost by definition, is quiet diplomacy. Albright's approach risks eroding U.S. moral authority in the world. - Not every enemy is the Viet Cong and not every war is Vietnam. With the 1991 Persian Gulf War, and now Kosovo, the American public is learning that some things are worth fighting for and some wars are winnable. A superpower must know that.

B. GUARDIAN WEEKLY, London, England

That the Russians are angry with the West is nothing new. What has changed is that Moscow's outbursts no longer resonate with the same force in Washington. What with its crumbling economy, external debt and chaotic internal politics, the bear's bite is no longer feared. This is a mistake. For Russia's anger over NATO's actions in the Balkans is in many ways justified and is likely to have negative consequences for the West's dealings with Boris Yeltsin and his successors. The NATO attack on Yugoslavia outraged the Rus- sians. They saw it as an incursion into their traditional sphere of influence, targeted at a nation with which Russia has ethnic, historic, cultural and religious ties. The assault, undertaken against a sovereign state without UN sanction, created a dangerous precedent. For those in Moscow already alarmed by NATO's eastward expansion through eastern Europe, the war confirmed their worst fears - that the Western alliance was bent on isolating its old enemy by signing up members in southeast Europe. NATO's attempt to exclude Russia from peacekeeping, denying it control and prevailing on Bulgaria and Romania to ban Russian military overflights, was an affront to national pride. Most of all, the Russians were enraged by the failure of the West to acknowledge the role played by the former prime minister, Viktor Chernomyrdin, in persuading Slobodan Milosevic to withdraw his troops. NORTHERN ILWNOIS UNIVERSTY LAW REVIEW [Vol. 19

Why does this Russian sense of grievance matter? Because Russia has legitimate security interests beyond its borders. Because Russia maintains the world's second most powerful nuclear arsenal. Because Yeltsin could be re- placed by a less amenable figure. Because the Russian military is flexing its muscles with recent large scale, nuclear-purposed manoeuvres over and around Iceland, with more planned in the Black Sea-Caucasus region. On the political front Russia is refusing to rejoin the NATO partnership council. Its defense minister says Moscow will oppose key arms control measures, such as the proposed renegotiation of the 1972 anti-ballistic missile treaty. It is complaining about the treatment of Russian minorities in the Baltic states, and it is accelerating towards a reunion with Belarus, which it sees as part of its front line with NATO. It has threatened to undermine Milosevic's isolation by providing direct, bilateral aid. The recent arms- buying visit to Moscow of President Hafez Assad of Syria, and another by an Iraqi minister, has provided an example of how Russia can still exert influence further afield. Yeltsin last week promised more military spending. "Our mutual relations with NATO and the US remain delicate and difficult. We will not confront NATO directly, but we will not flirt with them either." The West should take note.

C. LE MONDE, Paris, France A dangerous new faultline between the North and the South has emerged, with the wealthy Western countries on one side, and many African, Asian and Middle Eastern nations on the other. Although there had been signs of the rift for years, it became apparent at the 54th session of the United Nations General Assembly meeting in New York. The North argues that the UN is entitled to carry out humanitarian interventions which, in one way or another, necessarily trample on the principle of national sovereignty. The South has been increasingly virulent in its denuncia- tions of a practice that it describes as interference in the affairs of member nations. President Bill Clinton and the French prime minister, Lionel Jospin, went before the UN assembly to defend the 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES

need for intervention. Their arguments were disputed by the Algerian president, Abdelaziz Bouteflika, who, reassuming his erstwhile mantle of spokesman for the third world countries, defended an absolutist conception of sovereignty. The North argues that it is its duty to intervene in the case of war crimes or crimes against humanity, which the International Criminal Court, although still in its infancy, is determined to punish whenever possible. The South denounces what it sees as a form of neo- colonialism fueled by a moral superiority complex with racist overtones, which it finds all the more intolerable coming from former colonial powers that have an appalling record of massacres and other atrocities. That charge was leveled at the Western powers when NATO intervened in Kosovo; it has now been formulated again, not only in Jakarta but in Beijing and other Asian capitals, in connection with the UN's intervention in East Timor. Kosovo is not East Timor. NATO's action in Kosovo was carried out against Serbia's will and without a go-ahead from the UN. The intervention in East Timor was "autho- rized" by Indonesia (which, under pressure, felt it had no choice), and decided on by the UN Security Council. Yet the resentment that the intervention has aroused among Asian leaders is a striking example of the new North-South divide. Bouteflika rightly noted that the countries forced to accept outside intervention whether they like it or not are politically weak. That was a diplomatic way of saying he would like to see the same moral impera- tives invoked in connection with Russia's role in Chechnya or China's in Tibet. If it were universally backed, the cause of those who believe in the right to intervene would have even greater justification. Yet those countries for which national sovereignty is a mantra have no case to make against the UN. A more determined affirmation of the right to inter- vene for humanitarian reasons is in the interests of civilian populations everywhere. It is one more step forward in the process of ensuring that disputes are settled peacefully. There are no valid reasons for opposing it. NORTHERN ILLINOIS UNIVERS1TY LA W REVIEW [Vol. 19

469 CONCLUSION

Salomon hath pronounced that in counsel is stability [Proverbs 20: 18]. Things will have their first or second agitation: if they be not tossed upon the arguments of counsel, they will be tossed upon the waves of fortune, and be full of inconstancy, doing and undoing, like the reeling of a drunken man. Salomon's son found the force of counsel, as his father saw the necessity of it [I Kings 12:8]. For the beloved kingdom of God was first rent and broken by ill counsel, upon which counsel there are set for our instruction the two marks whereby bad counsel is for ever best discerned: that it was young counsel, for the persons, and violent counsel, for the matter. -Francis Bacon47 The bar admission case of Matthew F. Hale was, when it first came to public view in late 1998, relatively simple. Two questions presented themselves: Is an applicant who espouses vigorously racist opinions, and organizes others to do so also, entitled to admission to the Illinois bar? Or does the traditional "character and fitness" requirement stand in his way, however much such an applicant denies that he personally advocates the 471 illegal use of violence against any racial minority? It was because of my own character and fitness difficulties, upon applying for admission to the Illinois bar in 1950, that I was asked to comment on the Hale matter when it did become public. A suspect opinion was critical to my bar admission troubles, too - not any racist opinion, but rather my

469. It is necessary to repeat here some of the things said in the opening parts of this Collection: this repetition permits me to present in this Conclusion a coherent account of the current bar-admission situation in Illinois. See George Anastaplo, An Attack on Our Values, ST. LOuis POST-DISPATCH, July 6, 1999; George Anastaplo, The Right of Revolution, Rightly Understood - and the Bar, Cin. DAILY L. BULL., Sept. 29, 1999, at 5. 470. Francis Bacon, Of Counsel, supra note 1 (continuing the passage drawn upon in the epigraph for the Introduction to this Collection). 471. The Matthew Hale bar admission controversy is discussed in Part 1 of this collection. For recent developments in the Hale application process, see Molly McDonough, Spree shooter, would-be lawyer shared racist goal, CHI. DAILY L. BULL, July 6, 1999, at 1. Molly McDonough, Compelled by the highergood to serve the despised, CHI. DAILY L. BULL, July 15, 1999, at 1; Molly McDonough, Avowed racistHale again seeks admission to the bar, CI. DAILY L. BULL, July 29, 1999, at 1. For the most recent development in the Hale matter, see infra note 476. 19991 LAWYERS, FIRST PRINCIPLES. AND CONTEMPORARY CHALLENGES opinion that the right of revolution (with its legitimation of a proper violence) is fundamental to the American regime. Because it was discovered that I held and even defended this opinion, the character committee of the Illinois Supreme Court considered itself entitled and obliged not only to discuss this opinion with me but also (it will be recalled) to insist upon learning from me whether I was a member of various suspect organizations, beginning with questions about the Communist Party (but including, eventually, questions about the Ku Klux Klan, the Silver Shirts of America, and even the Republican and Democratic Parties), all of which questions I refused to answer. 2 My refusals on principle to answer such questions confirmed, for the Illinois Supreme Court and thereafter for the United States Supreme Court, that rejection of me by the character committee to which my right-of- revolution opinion had contributed. Even so, the 1961 dissenting opinion in my case by Justice Hugo L. Black in the United States Supreme Court is considered one of his best. Among those who think so is Irving Dilliard, a former editor of the St. Louis Post-Dispatch,who included it (along with an excerpt from my 1961 petition for rehearing) in a fine collection of Justice Black's opinions that he published in 1963. The Justice himself evidently thought well of his opinion in my case, for he selected a passage from it to be read at his funeral in 1971. One of the odd, if not even contemptible, features of my troubles with the bar authorities is that I was condemned by "patriots" who, for the most part, had been too old to serve in the Second World War, while I (despite a heart murmur) had volunteered to do so at age seventeen, serving three years as an aviation cadet and a flying officer both in this country and overseas. The official condemnation of me is in marked contrast to the spirit of Justice Black's observation: "I think the record clearly shows that conflict resulted, not from any fear on Anastaplo's part to divulge his own political activities, but from a sincere, and in my judgment correct, conviction that the preservation of this country's freedom depends upon adherence to our Bill of Rights. The very most that can fairly be said against Anastaplo's position in this entire matter is that he took too much of the responsibility of preserving that freedom upon himself." '473

472. See In re Anastaplo, 3 I11.2d 471,121 N.E.2d 826 (1950-1954); 348 U.S. 946, 349 U.S. 903 (1955); 18 Ill.2d 182, 163 N.E.2d 429 (1959-1960); 366 U.S. 82, 368 U.S. 869 (1961). On the Anastaplo bar admission controversy, see Parts 1 and 3 of this Collection. See also Section VIII of Part 2 of this Collection. 473. 366 U.S., at 114 (1961). See the text at supra note 76. On Justice Black and my case, see 405 U.S. xi, xxvi-xxviii (1972); HARRY KALvENJR., AWORTHYTRADMON: FREEDOM OF SPEECH IN AMERICA 673 (1988); ROGER K. NEWMAN, HuGo BLACK: A BIOGRAPHY 714 (1994). See, in addition, my articles in volume 9 of the Southwestern University Law Review, NORTHERN ILLINOIS UNIVERSITY LA W REVIEW [Vol. 19

My own prediction about Matthew Hale's situation, when it was first called to my attention, was that he was likely to be admitted to the bar by the Illinois Supreme Court, however reluctant its character committee might be to certify him for admission. I believe that we have learned, during the past generation or two, that it is dangerous and otherwise self-defeating to deny governmental privileges because of the unpopular, even offensive, opinions a citizen might hold.474 I have also believed all along that Mr. Hale, if admitted to the bar, would be under intense scrutiny of his conduct by those who naturally find his racist opinions deeply troubling. This would mean, among other things, that he would have to be more scrupulous than most lawyers in how he conducts himself as a member of the bar. Or, as it was put by the Federalistin 1788, prudent people are reluctant to rely upon anyone characterized by "unsteadiness and folly." It was added by the Federalist,"His more friendly neighbors may pity him; but all will decline to connect their fortunes with his; and not a few will seize the opportunity of making their fortunes out of his."475 The deadly rampage over the 1999 Fourth of July weekend by one of Mr. Hale's disciples - a rampage which left three dead and a half-dozen wounded by gunfire - made it far less likely than it seemed a few months before that my prediction about Mr. Hale's hobbled career at the bar would ever be put to the test.476 It is now going to be very difficult, that is, for him to convince any bar in volume 35 of the DePaulLaw Review, and in volumes 42 and 43 of the South Dakota Law Review. On Justice Black's funeral, see supra note 70. On Irving Dilliard's collection of Justice Black's opinions, see supra note 79. 474. The most troublesome consequences of such denials are not the deprivations visited upon offending citizens but rather the ignorance and fear promoted in the community at large. 475. See THE FEDERA11ST No. 62. Such seizing of opportunities may be seen, by the way, even in the manner that the mass media are now exploiting Mr. Hale's excesses. See, e.g., Kirsten Schamberg, A Gospel of Hatred,CHi. Tr ., July 11, 1999, § A, at 1. 476. See generally Amanda Beeler and Evan Osnos, Puzzling Path Down the Road to Racism, CHI. TPJB., July 6, 1999, § 1, at l(discussing the killing of two minority men and the wounding of a half-dozen others by Benjamin N. Smith before killing himself). It is such racist activity by Mr. Hale's associates, and his seeming sympathy with it, that make him as unattractive a "poster boy" for freedom of speech advocates as John Wayne Gacy was for capital punishment opponents. Mr. Gacy made "Jack the Ripper," Larry Eyler, William Heirens, and the Unabomber look like amateurs. See Parts 14 and 15 of this Collection. On John Wayne Gacy, see TERRY SULLIVAN, KILLER CLOWN (1983). The most recent development of note in the Hale matter is the November 12, 1999 ruling by the Illinois Supreme Court. Here is the report, Court Denies Law License to a White Supremacist, NEW YORK TIMES, Nov. 13, 1999, at A10: The Illinois Supreme Court refused today to reconsider the denial of a law license to the head of the World Church of Christ the Creator, a white supremacist organization. The court issued a one-paragraph order saying it would not review the case of Matthew Hale, head of the church. It let stand a decision by its 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 541 authorities that he is in no significant way responsible for the conduct of intimate associates who turn violent. Such a lethal association is likely to raise serious questions for the authorities about his eligibility for admission to the bar. Still, the least of Mr. Hale's problems these days may be as to whether he can be admitted to the bar, especially since it is hard to see what use he (in his present condition) could make of a law license.477 Much more serious is the fact that he, like far too many others, is shackled by the obsessions he has about general race relations and about his personal vulnerability in contempo- rary America. His proper complaint, therefore, is not really against the authorities who deny him admission to the bar. Rather, it is against his elders who, evidently for at least a decade now, have heard him express the bizarre opinions he has without effectively challenging him to face up to them. Law school faculties, for example, are themselves not confident enough, as to the enduring basis for reasoned opinions about good and bad, to develop persuasive responses to ill-founded moral judgments and to discipline effectively those who hold them.47 It is here, by the way, that the traditional right of revolution, which is anticipated in Magna Carta and is sanctified for us in the Declaration of Independence, is most instructive. (It is also here that most of my own law school teachers failed the test, abandoning one of their better students, as they

Committee on Character and Fitness that said Mr. Hale lacked the moral character to practice law. A former member of Mr. Hale's church, Benjamin Smith, 21, went on a three-day racist shooting rampage over the Fourth of July weekend. Mr. Smith, who belonged to the church until last May, targeted blacks, Asians and Orthodox Jews, killing two people and wounding nine before taking his own life. After the shooting Mr. Hale said Mr. Smith was a "martyr for free speech." Mr. Hale, 27, has a law degree but has been unable to persuade Illinois to admit him to the bar. His church operates on the Internet; the extent of its membership is unclear. See also Aaron Chambers, Court Rejects Racist Hale's Bid to Join Bar, CHI.DAILY L. BULL., Nov. 12, 1999, at 1; Aamer Madhani, State's Supreme Court Won't Hear Hale's Case, CHI. TRIB., Nov. 13, 1999, at §1, p. 6; Tim Novak, Justices Reject Hale's Bid to PracticeLaw, CHI. SUN-TIMES, Nov. 13, 1999, at 10; Abdon M. Pallasch, A Question of Character, CHI. SUN- TIMES, Nov. 15, 1999, at 6; Robert Becker, Justice Heiple Argues for Review of Hale's Law License Denial,CHI. TRIB., Nov. 18, 1999, sec. 2, p. 3 (but Justice Heiple is leaving the Illinois Supreme Court soon). Mr. Hale seems to have been rejected also by the Ku Klux Klan - or at least by an evident spokesman for the Klan in Decatur, Illinois who said: "I do not believe in the World Church of the Creator. Matt Hale is the devil himself." Ellen Warren and Terry Armour, Klan in Decatur to Rally, But Not With Matt Hale, CHI. TRIB., Nov. 16, 1999, at § 1, p. 2. 477. See, e.g., the end of Section VI of Part 1 of this Collection. 478. On moral relativism and the United States Supreme Court, see supra note 84. See also supra notes 39., 139. NORTHERN ILLINOIS UNIVERSTY LA W REVIEW [Vol. 19 shamelessly did, to the Cold War-induced phobias of the bar authorities.) For this right does not assume that one opinion is just as good as another - or (as is often said today) that there is no basis for choosing among contending moral judgments. Rather, the right of revolution, properly understood, is a reminder of the grounding in nature, reinforced by any reliable (or at least useful) divine revelation one is fortunate enough to have, of the principles of right and wrong. To insist upon the right of revolution is to insist, in effect, that there truly are standards which transcend the governments and dominant opinions of one's day. It is a proper study of these standards that law faculties, among others, should be better equipped, and confident enough, to promote.479 However upset people might sometimes be (as many I knew seemed to be in the 1950s), upon first hearing a forthright defense of the right of revolution, they cannot help but return to an acknowledgment of that right when they have had time to reflect. We have seen in our time a number of severely repressive regimes, both of the Left and of the Right, against which decent and informed people are entitled to revolt, however imprudent it may be to attempt to do so at any particular moment. It is no surprise, therefore, that my own defense of the right of revolution from the decade-long assault of the bar authorities is no longer regarded as improper for a would-be lawyer to maintain. In fact, I have observed in Part 3 of this Collection, so many lawyers and judges have told me in recent decades that they have "always" admired my stance that I have come to marvel that the rather timid bar authorities could ever have dared to exclude someone who was so highly regarded Statewide. Be all this as it may, my reputation has not kept my wife (of some fifty years now) from being elected President, earlier this year, of the century-old University of Chicago Service League. Indeed, people now tend to be receptive to the 1972 assessment of my career by a past president of the American Political Science Association, a generous assessment which culminated in the much-quoted observation, "As W.C. Fields might have said, any man who is kicked out of Russia, Greece, 4 80 and the Illinois bar can't be all bad. But, then, few if any of us are truly "all bad." Our challenge as farsighted citizens, and especially as educators, is to search for and work with whatever may somehow be good in the misguided, and sometimes explosive,

479. On the Declaration of Independence, see ANASTAPLO, ABRAHAM LINCOLN, supra note 18, at 11, 31,363. See also supra notes 18. 480. See the text at supra note 17. My rehabilitation has even gone so far as to lead to my being identified as a "revered" law professor. See Abdon M. Pallasch, A Question of Character,CHI. SUN-TIMES, Nov. 15, 1999, at 6. See also supra note 65. Compare supra note 58. 1999] LAWYERS, FIRST PRINCIPLES, AND CONTEMPORARY CHALLENGES 543

opinions held among us. Virulent racists, for example, do stand for something that may be worth taking seriously, however distorted it may be because of the demons that sometimes seem to possess them. Indeed, it could be argued, there may even be buried (within their dreadful fear, ugly anger and suicidal hatred) a sense of community and a yearning for perfection which should be 4s reckoned with. ' Certainly they, even as they are firmly held in check by an informed and self-confident community, need help in coming to know

481. Someone such as Adolf Hitler, however evil he may always have been, was able to appeal to something deeprooted among his patriotic and law-abiding countrymen. See, e.g., ADOLF HITLER, MEIN KAMPF, 211 (1940) ("it was not Austria fighting for some Serbian satisfaction in 1914, but Germany fighting for her existence, the German nation for its being or non-being, for freedom and future"), id. at 215-16 ("Thousands of years may pass, but never will one be allowed to talk about or mention heroism without remembering the Germany army of the [First] World War.... a monument to immortality."), 253 ("While endless transports of men and material rolled towards the Western Front and the troops were given their final training for the great attack, the worst piece of villainy of the entire War, up to that time, took place in Germany"), 355 ("However, what are Schiller, Goethe, or Shakespeare as compared with the 'heroes' of the new German dramatic art? Old, worn-out, and outlived, nay, 'conquered' types."), 385 ("The army further taught idealism and devotion to the fatherland and its greatness, while life had otherwise become the sole domain of greed and materialism."), 388 ('The deepest and the ultimate cause for the ruin of the old Reich was found in the non-recognition of the race problem and its importance for the historical development of the people."), 411 ("But as true idealism is nothing but subjecting the individual's interest and life to the community, and as this again represents the presumptions for any kind of creative organizing forms, therefore in its very heart it corresponds to the ultimate will of Nature."). Compare this account from ALBERT SPEER, SPANDAU: THE SECRET DIARIES (1976) (emphasis added): I think of my own father and of [Thomas Mann's] father. For them there were still wholly unassailable values. They had no doubts whatsoever about right and wrong, good and evil. It is unimaginable to think of my father or grandfather with Hitler and his cronies at Obersalzberg on one of those dreary movie nights. How brittle all aesthetic and moral standards must have grown before Hitler became possible. I still recall my father's reaction, after he had intensively studied, with the architect's eye, our [Hitler's and Speer's] plans for the new capital of the Reich. After some moments of silence he said merely, "You know you've all gone completely crazy." And left. See Anastaplo, "On Trial", supra note 75, at 1093. See also id. at 991-92 ("Leo Strauss used to say that the only principle the Nazis had was hatred of the Jews. Is that what a fervent nationalism comes down to, then, hatred of the other? The Jews were, for the Nazis, 'the other' par excellence (with the far-roaming Gypsies, perhaps, a runner-up). This was not, however, simply a matter of the Nazis using the Jews in order to advance their interests. Rather, they would obsessively destroy Jews even when it did not serve their immediate wartime interests to do so."). Perhaps a good place to begin a study of how Hitler was able to appeal to the German people is with a reconsideration of how the Serpent was able to appeal to Adam and Eve. See, e.g., id. at 767, 784; JOHN MILTON, PARADISE LOST. See George Anastaplo, Individualism,Professional Ethics, anda Sense of Community, 28 Loy. U. Ciu. L.J. 285, 320. On Milton's ParadiseRegained, see ORIGINAL INTENT AND THE FRAMERS OFTHE CONSTITUTION 181 (Harry V. Jaffa ed., 1994). See also supra note 241. For further study of how modem literature can illuminate the matters touched upon in this article, see George Anastaplo, Law & Literatureand the Modems, NORTHERN ILLINOIS UNIVERSITY LAW REVIEW (forthcoming). 544 NORTHERN ILLINOIS UNIVERSITY LA W REVIEW [Vol. 19 themselves far better than they do, the kind of help that all too many of us may also happen to need from time to time.