A rule of the Supreme Court of Illinois provides that applicants
shall be admitted by it to the practice of law after satisfactory
examination by the Board of Examiners and certification of
qualification by a Committee on Character and Fitness. In hearings
before that Committee, petitioner refused to answer any questions
pertaining to his membership in the Communist Party, not on the
ground of possible self-incrimination, but on the ground that such
inquiries violated his freedom of speech and association. The
Committee declined to certify him as qualified for admission to the
Bar, solely on the ground that his refusals to answer such
questions had obstructed the Committee's performance of its
functions. The State Supreme Court denied him admission to
practice.
Held: denial of petitioner's application for admission
to the Bar on this ground did not violate his rights under the
Fourteenth Amendment. Pp.
366 U. S.
83-97.
(a) It is not constitutionally impermissible for a State to
adopt a rule that an applicant will not be admitted to the practice
of law if, and so long as, by refusing to answer material
questions, he obstructs a bar examining committee in its proper
functions of interrogating and cross-examining him upon his
qualifications.
Konigsberg v. State Bar, ante, p.
366 U. S. 36. P.
366 U. S.
88.
(b) Petitioner was not privileged under the Fourteenth Amendment
to refuse to answer questions concerning membership in the
Communist Party.
Konigsberg v. State Bar, supra. P.
366 U. S.
89.
(c) The fact that there was no independent evidence that
petitioner had ever been a member of the Communist Party did not
prevent the State, acting in good faith, from making this inquiry
in an investigation of this kind. Pp.
366 U. S.
89-90.
(d) During the hearings before the Committee, petitioner was
given adequate warning as to the consequences of his refusal to
answer the Committee's questions relating to membership in the
Communist Party. Pp.
366 U. S.
90-94.
(e) In the circumstances of this case, petitioner's exclusion
from the Bar on the ground that he had obstructed the Committee in
the performance of its duties was not arbitrary or discriminatory.
Pp.
366 U. S.
94-97.
18 Ill.
2d 182,
163
N.E.2d 429, affirmed.
Page 366 U. S. 83
MR. JUSTICE HARLAN delivered the opinion of the Court.
The questions presented by this case are similar to those
involved in No. 28,
Konigsberg v. State Bar of California,
decided today,
ante, p.
366 U. S. 36.
In 1954, petitioner, George Anastaplo, an instructor and
research assistant at the University of Chicago, having previously
passed his Illinois bar examinations, was denied admission to the
bar of that State by the Illinois Supreme Court. [
Footnote 1] The denial was based upon his
refusal to answer
Page 366 U. S. 84
questions of the Committee on Character and Fitness as to
whether he was a member of the Communist Party. [
Footnote 2] This Court, two Justices
dissenting, refused review. 348 U.S. 946. In 1957, following this
Court's decisions in the earlier
Konigsberg case,
353 U. S. 252, and
in
Schware v. Board of Bar Examiners of New Mexico,
353 U. S. 232,
Anastaplo sought to have the Character Committee rehear his
application for certification. The Committee, by a divided vote,
refused, but the State Supreme Court reversed and directed
rehearing. [
Footnote 3]
Page 366 U. S. 85
The ensuing lengthy proceedings before the Committee, [
Footnote 4] at which Anastaplo was the
only witness, are perhaps best described as a wide-ranging exchange
between the Committee and Anastaplo in which the Committee sought
to explore Anastaplo's ability conscientiously to swear support of
the Federal and State Constitutions, as required by the Illinois
attorneys' oath, and Anastaplo undertook to expound and defend, on
historical and ideological premises, his abstract belief in the
"right of revolution," and to resist, on grounds of asserted
constitutional right and scruple, Committee questions which he
deemed improper. [
Footnote 5]
The Committee already had before it uncontroverted evidence as to
Anastaplo's "good moral character," in the form of written
statements or affidavits
Page 366 U. S. 86
furnished by persons of standing acquainted with him, and the
record on rehearing contains nothing which could properly be
considered as reflecting adversely upon his character or reputation
or on the sincerity of the beliefs he espoused before the
Committee. [
Footnote 6]
Anastaplo persisted, however, in refusing to answer, among other
inquiries, [
Footnote 7] the
Committee's questions as to his possible membership in the
Communist Party or in other allegedly related organizations.
Thereafter the Committee, by a vote of 11 to 6, again declined
to certify Anastaplo because of his refusal to answer such
questions, the majority stating in its report to the Illinois
Supreme Court:
"his [Anastaplo's] failure to reply, in our view, (1) obstructs
the lawful processes of the Committee, (ii) prevents inquiry into
subjects which bear intimately upon the issue of character and
fitness, such as loyalty to our basic institutions, belief in
representative government and
bona fides of the attorney's
oath and (iii) results in his failure to meet the burden of
establishing that he possesses the good moral character and fitness
to practice law, which are conditions to the granting of a license
to practice law."
"We draw no inference of disloyalty or subversion from
applicant's continued refusal to answer questions concerning
Communist or other subversive affiliations. We do, however, hold
that there is a strong public interest in our being free to
question applicants for admission to the bar on their adherence to
our basic institutions and form of government
Page 366 U. S. 87
and that such public interest in the character of its attorneys
overrides an applicant's private interest in keeping such views to
himself. By failing to respond to this higher public interest, we
hold that the applicant has obstructed the proper functions of the
Committee. . . . We cannot certify the applicant as worthy of the
trust and confidence of the public when we do not know that he is
so worthy and when he has prevented us from finding out."
At the same time, the full Committee acknowledged that
Anastaplo
"is well regarded by his academic associates, by professors who
had taught him in school and by members of the Bar who know him
personally . . . ;"
that it had
"not been supplied with any information by any third party which
is derogatory to Anastaplo's character or general reputation . . .
;"
and that it had
"received no information from any outside source which would
cast any doubt on applicant's loyalty or which would tend to
connect him in any manner with any subversive group."
Further, the majority found that Anastaplo's views
"with respect to the right to overthrow the government by force
or violence, while strongly libertarian and expressed with an
intensity and fervor not necessarily shared by all good citizens,
are not inconsistent with those held by many patriotic Americans
both at the present time and throughout the course of this
country's history, and do not, in and of themselves, reveal any
adherence to subversive doctrines. "
Page 366 U. S. 88
Upon review, the Illinois Supreme Court, over three dissents,
[
Footnote 8] confirmed the
Committee's report and refusal to certify Anastaplo, reaffirming in
its per curiam opinion the court's
". . . earlier conclusion that a determination as to whether an
applicant can in good conscience take the attorney's oath to
support and defend the constitutions of the United States and the
State of Illinois is impossible where he refuses to state whether
he is a member of a group dedicated to the overthrow of the
government of the United States by force and violence."
18 Ill.
2d 182, 200�201,
163
N.E.2d 429, 439. We granted certiorari, 362 U.S. 968, and set
the matter for argument along with the
Konigsberg case, p.
366 U. S. 36, and
Cohen v. Hurley, post, p.
366 U. S. 117.
Two of the basic issues in this litigation have been settled by
our contemporary
Konigsberg opinion. We have there held it
not constitutionally impermissible for a State, legislatively or
through court-made regulation as here and in
Konigsberg,
to adopt a rule that an applicant will not be admitted to the
practice of law if, and so long as, by refusing to answer material
questions, he obstructs a bar examining committee in its proper
functions of interrogating and cross-examining him upon his
qualifications. That such was a proper function of the Illinois
Character Committee is incontestably established by the opinions of
the State Supreme Court in this case. 3 Ill.2d
Page 366 U. S. 89
at 476, 121 N.E.2d at 829; 18 Ill. 2d at 188, 163 N.E.2d at 432.
[
Footnote 9]
We have also held in
Konigsberg that the State's
interest in enforcing such a rule as applied to refusals to answer
questions about membership in the Communist Party outweighs any
deterrent effect upon freedom of speech and association, and hence
that such state action does not offend the Fourteenth Amendment.
[
Footnote 10] We think that,
in this respect, no valid constitutional distinction can be based
on the circumstance that, in
Konigsberg, there was some,
though weak, independent evidence that the applicant had once been
connected with the Communist Party, while here, there was no such
evidence as to
Page 366 U. S. 90
Anastaplo. Where, as with membership in the bar, the State may
withhold a privilege available only to those possessing the
requisite qualifications, it is of no constitutional significance
whether the State's interrogation of an applicant on matters
relevant to these qualifications -- in this case, Communist Party
membership -- is prompted by information which it already has about
him from other sources, or arises merely from a good faith belief
in the need for exploratory or testing questioning of the
applicant. Were it otherwise, a bar examining committee such as
this, having no resources of its own for independent investigation,
might be placed in the untenable position of having to certify an
applicant without assurance as to a significant aspect of his
qualifications which the applicant himself is best circumstanced to
supply. The Constitution does not so unreasonably fetter the
States. [
Footnote 11]
Two issues, however, do arise upon this record which are not
disposed of by
Konigsberg. The first is whether Anastaplo
was given adequate warning as to the consequences of his refusal to
answer the Committee's questions relating to Communist Party
membership. The second is whether his exclusion from the bar on
this ground was, in the circumstances of this case, arbitrary or
discriminatory.
I
The opinions below reflect full awareness on the part of the
Character Committee and the Illinois Supreme Court of Anastaplo's
constitutional right to be warned in advance of the consequences of
his refusal to answer. [
Footnote
12]
Page 366 U. S. 91
Cf. Konigsberg v. State Bar, at
353 U. S. 261.
On the part of Anastaplo, he stands in the unusual position of one
who had already been clearly so warned as a result of his earlier
exclusion from the bar for refusal to answer the very question
which was again put to him on rehearing.
See note 2 supra. Anastaplo
nevertheless, contends, in effect, that he was lulled into a false
sense of security by various occurrences at the Committee hearings:
(1) several statements by Committee members indicating that all
questions asked and refused an answer should not be considered as
bearing the same level of importance in the eyes of the Committee;
[
Footnote 13] and (2) a
statement by one of the principal Committee members that Illinois
had no "
per se" rule of exclusion, that is that
Anastaplo's refusal to answer would not automatically operate to
exclude him from the bar. [
Footnote 14]
Page 366 U. S. 92
These suggestions, whether taken separately or together, can
only be viewed as insubstantial. The sum and substance of the
matter is that, throughout the renewed proceedings, petitioner was
fully aware that his application for admission had already once
been rejected on the very ground about which he now professes to
have been left in doubt, and that the Committee made manifest both
that it continued to attach special importance to its Communist
Party affiliation questions and that adverse
Page 366 U. S. 93
consequences might well follow if Anastaplo persisted in
refusing to answer them.
What follows will suffice to show that statements to the effect
that the Committee as a whole did not necessarily approve or adopt
every question asked by any of its members can hardly be taken as
having left petitioner in doubt as to the central importance and
general approval of questions about Communist Party membership. At
an early state of the proceedings, Anastaplo was informed:
"Now you have asked for a warning when we put a question to you
that we think is a pivotal, important question in connection with
your qualification. I must tell you that we consider that question,
'Are you a member of the Communist Party,' such a question, and
that the refusal to answer it may have serious consequences to your
application."
And at the last hearing, one of the leading Committee members
responded to Anastaplo's insistence on being told even more
explicitly what refusals to answer would be of significance to the
Committee by pointing out that
"The Supreme Court of Illinois has ruled that it is proper for
us to ask you whether you are a member of the Communist Party. You
have refused to answer the question. [
Footnote 15]"
Further, petitioner's repeated objections throughout the
hearings to the effect that there was no basis for the Committee's
evident purpose to give much greater emphasis to questions about
Communist Party membership than to other unanswered inquiries
dispel any doubt that
Page 366 U. S. 94
Anastaplo was quite aware that Communist affiliation questions
were to be treated differently from other questions he had refused
to answer.
The other aspect of petitioner's claim on lack of adequate
warning is equally untenable. It is true that the Committee told
Anastaplo that his refusal to answer questions would not
ipso
facto result in his exclusion from the bar, but only that it
"could and might." This, however, certainly did not give rise to
constitutional infirmity. Even as to one charged with crime, due
process does not demand that he be warned as to what specific
sanction will be applied to him if he violates the law. It is
enough that he know what sanction "could and might" to no more. It
is, of course, indubitable that, by reason of the original
rejection of his application, Anastaplo knew of Illinois' rule of
exclusion for refusal to answer relevant questions -- indeed, the
very questions involved here. [
Footnote 16]
Petitioner having been fairly warned that exclusion from
admission to practice might follow from his refusal to answer, it
must be found that this requirement of due process was duly
met.
II
Petitioner's claim that the application of the State's
exclusionary rule was arbitrary and discriminatory in the
circumstances of this case must also be rejected. It is contended
(1) that Anastaplo's refusal to answer these
Page 366 U. S. 95
particular questions did not obstruct the Committee's
investigation because that body already had before it
uncontroverted evidence establishing petitioner's good character
and fitness for the practice of law, and (2) that the real reason
why the State proceeded as it did was because of its disapproval of
Anastaplo's constitutionally protected views on the right to resist
tyrannical government. Neither contention can be accepted.
It is sufficient to say in answer to the first contention that,
even though the Committee already had before it substantial
character evidence altogether favorable to Anastaplo, there is
nothing in the Federal Constitution which required the Committee to
draw the curtain upon its investigation at that point. It had the
right to supplement that evidence, and to test the applicant's own
credibility by interrogating him. And, to those ends, the Committee
could insist upon unprivileged answers to relevant questions, such
as we have held in our today's
Konigsberg opinion those
relating to Communist affiliations were, even though, as to them,
the Committee could not, as it did not, draw an unfavorable
inference from refusal to answer.
Konigsberg v. State Bar of
California, supra..
As to the second contention, there is nothing in the record
which would justify our holding that the State has invoked its
exclusionary "refusal to answer" rule as a mask for its disapproval
of petitioner's notions on the right to overthrow tyrannical
government. [
Footnote 17]
While the Committee's majority report does observe that there was
"a serious question" whether Anastaplo's views on the right to
resist judicial decrees would be compatible with his taking of the
attorney's oath, and that "certain" members of the Committee
thought that such views affirmatively
Page 366 U. S. 96
demonstrated his disqualification for admission to the bar,
[
Footnote 18] it is
perfectly clear that the Illinois Bar Committee and Supreme Court
regarded petitioner's refusal to cooperate in the Committee's
examination of him as the basic and only reason for a denial of
certification. [
Footnote
19]
A different conclusion is not suggested by the circumstances
that the Committee, when it reheard Anastaplo, evidenced its
willingness to consider the effect of petitioner's refusal to
answer in light of what might transpire at the hearings, and that
it continued to explore petitioner's views on resistance and
overthrow long after it became clear that he would refuse to answer
Communist affiliation questions. These factors indicate no more
that that the Committee was attempting to exercise an informed
judgment as to whether the situation was an appropriate one for
waiver of the Committee's continuing requirement, earlier enforced
after the first Anastaplo hearings, that such questions must be
answered. Finally, contrary to the assumption on which some of the
arguments on behalf of Anastaplo seem to have proceeded, we do not
understand that Illinois' exclusionary requirement will continue to
operate to exclude Anastaplo from the bar any longer than he
continues in his refusal to answer. We
Page 366 U. S. 97
find nothing to suggest that he would not be admitted now if he
decides to answer, assuming, of course, that no grounds justifying
his exclusion from practice resulted. In short, petitioner holds
the key to admission in his own hands.
We conclude with observing that our function here is solely one
of constitutional adjudication, not to pass judgment on what has
been done as if we were another state court of review, still less
to express any view upon the wisdom of the State's action. With
appropriate regard for the limited range of our authority, we
cannot say that the State's denial of Anastaplo's application for
admission to its bar offends the Federal Constitution. [
Footnote 20] The judgment of the
Illinois Supreme Court must therefore be
Affirmed.
[
Footnote 1]
The Illinois procedure for admission to the bar was thus
summarized by the State Supreme Court (
3 Ill. 2d
471 at 475�476,
121 N.E.2d
826 at 829):
"In the exercise of its judicial power over the bar, and in
discharge of its responsibility for the choice of personnel who
will compose that bar, this court has adopted Rule 58
(Ill.Rev.Stat.1951, chap. 110, par. 259.58), which governs
admissions and provides, among other things, that applicants shall
be admitted to the practice of law by this court after satisfactory
examination by the Board of Examiners and certification of approval
by a Committee on Character and Fitness. Section IX of the rule
provides for the creation of such committees and imposes upon them
the duty to examine applicants who appear before them for moral
character, general fitness to practice law and good citizenship.
Still another condition precedent to admission to practice law in
this State, imposed by the legislature, is the taking of an oath to
support the constitution of the United States and the constitution
of the State of Illinois. (Ill.Rev.Stat.1951, chap. 13, par.
4.)"
[
Footnote 2]
On that occasion, the State Supreme Court said (3 Ill. 2d at
480, 121 N.E.2d at 831):
"It is our opinion, therefore, that a member of the Communist
Party may, because of such membership, be unable truthfully and in
good conscience to take the oath required as a condition for
admission to practice, and we hold that it is relevant to inquire
of an applicant as to his membership in that party. A negative
answer to the question, if accepted as true, would end the inquiry
on the point. If the truthfulness of a negative answer were
doubted, further questions and information to test the veracity of
the applicant would be proper. If an affirmative answer were
received, further inquiry into the applicant's innocence or
knowledge as to the subversive nature of the organization would be
relevant. Under any hypothesis, therefore, questions as to
membership in the Communist Party or known subversive 'front'
organizations were relevant to the inquiry into petitioner's
fitness for admission to the bar. His refusal to answer has
prevented the committee from inquiring fully into his general
fitness and good citizenship and justifies their refusal to issue a
certificate."
[
Footnote 3]
In remanding the matter to the Character Committee, the Illinois
Supreme Court stated (
see 18 Ill. 2d at 186, 163 N.E.2d at
431):
"The principal question presented by the petition for rehearing
concerns the significance of the applicant's views as to the
overthrow of government by force in the light of
Konigsberg v.
State Bar of California, 353 U. S. 252, and
Yates v.
United States, 354 U. S. 298. Additional
questions presented concern the applicant's activities since his
original application was denied, and his present reputation."
"We are of the opinion that the Committee should have allowed
the petition for rehearing and heard evidence on these matters, and
the Committee is requested to do so, and to report the evidence and
its conclusions."
[
Footnote 4]
The proceedings consumed six hearing days, and resulted in a
transcript of over 400 pages.
[
Footnote 5]
More particularly: petitioner was first asked routine questions
about his personal history. He refused, on constitutional grounds,
to answer whether he was affiliated with any church. He answered
all questions about organizational relationships so long as he did
not know that the organization was "political" in character. He
refused, on grounds of protected free speech and association, to
answer whether he was a member of the Communist Party or of any
other group named in the Attorney General's list of "subversive"
organizations, including the Ku Klux Klan and the Silver Shirts of
America.
Much of the ensuing five sessions was devoted to discussion of
Anastaplo's reasons for believing that inquiries into such matters
were constitutionally privileged, and to an unjustifiable attempt,
later expressly repudiated by the Committee, to delve into the
consistency of petitioner's religious beliefs with an attorney's
duty to take an oath of office.
A substantial part of the proceedings revolved around
Anastaplo's views as to the right to revolt against tyrannical
government, and the right to resist judicial decrees in exceptional
circumstances.
[
Footnote 6]
Although the transcript of the prior Committee proceedings has
not been made part of the record before us, it is evident that it
contained nothing which affirmatively reflected unfavorably on
petitioner's character or reputation.
[
Footnote 7]
See note 5
supra.
[
Footnote 8]
Two dissenting opinions were filed. Justice Bristow dissented on
constitutional grounds. 18 Ill. 2d at 201, 163 N.E.2d at 439.
Justices Schaefer and Davis, joining in a single opinion, did not
reach the constitutional questions. 18 Ill. 2d at 224, 163 N.E.2d
at 928.
[
Footnote 9]
In its second opinion, the State Supreme Court stated (18 Ill.
2d at 188, 163 N.E.2d at 432):
"The committee further advises us that it has conducted no
independent investigation into Anastaplo's character, reputation or
activities. For the very practical reason that the committee has no
personnel or other resources for any such investigation, the
committee states that it has traditionally asserted the view that
it cannot be expected to carry the burden of establishing, by
independent investigation, whether an applicant possesses the
requisite character and fitness for admission to the bar, and that
a duty devolves upon the applicant to establish that he possesses
the necessary qualifications, and that it is then the duty of the
committee to test, by hearings and questioning of the applicant,
the worth of the evidence which he proffers. We agree, and have
held that the discretion exercised by the Committee on Character
and Fitness will not ordinarily be reviewed.
In re Frank,
293 Ill. 263, 127 N.E. 640."
[
Footnote 10]
The fact that, in
Konigsberg, the materiality of
questions relating to Communist Party membership rested directly on
the existence of a California statute disqualifying from membership
in the bar those advocating forcible overthrow of government,
whereas, here, materiality stemmed from their bearing upon the
likelihood that a bar applicant would observe as a lawyer the
orderly processes that lie at the roots of this country's legal and
political system,
cf. Barenblatt v. United States,
360 U. S. 109, is,
of course, a circumstance of no significance.
[
Footnote 11]
Cf. Garner v. Los Angeles Board, 341 U.
S. 716;
American Communications Ass'n v. Douds,
339 U. S. 382.
[
Footnote 12]
The Committee's majority report states:
"The Committee repeatedly warned the applicant that questions
regarding Communist affiliation were viewed as important by the
Committee members, and that his failure to respond to them could
adversely affect his application for admission to the bar."
The Illinois Supreme Court stated (18 Ill. 2d at 196, 163 N.E.2d
at 436):
". . . no problem exists as to inadequate notice of the
consequences of a refusal to answer; the applicant was specifically
notified both by the Illinois Supreme Court in its opinion in
3 Ill. 2d
471,
121 N.E.2d
826, and by the committee on rehearing that his continued
refusal to answer might lead to the denial of his application."
[
Footnote 13]
It was stated at one point in the Committee hearings:
"It has been pointed out before to you that the mere fact that a
question is asked does not indicate that other people would have
asked or approved that question, nor does it indicate that any
particular weight will be attached to the answer or failure to
answer the question; do you understand?"
It should be observed, however, that this remark, as was also
the case with an earlier similar remark, was made in the context of
questions involving petitioner's religious beliefs.
See
note 5 supra.
[
Footnote 14]
This aspect of Anastaplo's contention is based on the following
episode relating to the Committee's Communist Party questions:
"Mr. Anastaplo: . . . I would like to find out exactly what this
entails. You are not suggesting that refusal to answer that
question would
per se block my admission to the bar?"
"Commissioner Stephan: No, I am saying your refusal to answer
that question as to whether you are a member of the Communist
Party, could and might."
"Mr. Anastaplo: I see."
"Commissioner Stephan: To us, it is relevant to your character
and fitness. If you should answer the question 'yes,' I am not at
all sure that would end the inquiry. I think, if you should answer
it 'yes,' the committee should be entitled to probe further and
find out what kind of Communist Party member the applicant might
be, whether he is an active member, whether he is a dues-paying
member, whether he is a policymaking member, whether he is an
officer in a local group, or just what he is. So I would point out
the seriousness of that issue to you at this time."
"Mr. Anastaplo: I assume that the committee does not care to
state why this is a particularly serious issue with respect to me?
I mean -- I notice you say nothing about the Ku Klux Klan or the
Silver Shirts of America, about which you have also asked with the
same amount of emphasis up to this point, and which I have refused
to answer for the same reasons. Would you care to indicate why you
say this about this question, and not about the other ones?"
"Commissioner Stephan: I think there is an easy answer to that.
This committee has not come into being -- this committee cannot
completely ignore the history of this proceeding."
"Commissioner ______: But the history includes that question,
and that question has been before two of the high courts of the
country."
"Commissioner Stephan: Whatever the relevance of other
questions, we consider that one quite relevant."
[
Footnote 15]
The particular importance which the Committee attached to its
Communist Party questions was still further brought home to
Anastaplo by the fact that after this Court's decisions in
Beilan v. Board of Public Education, 357 U.
S. 399, and
Lerner v. Casey, 357 U.
S. 468, had come down, the Committee wrote Anastaplo
specifically drawing his attention to them.
[
Footnote 16]
We find it difficult to understand how it can be seriously
suggested, as it further is, that petitioner was put off guard by
the fact that, instead of standing on petitioner's mere refusal to
answer such questions, the Committee proceeded to interrogate him
widely. Not only are subsequent events generally irrelevant to an
earlier warning, but a large part of the questioning which
Anastaplo now complains led him astray was in fact devoted to
exploring the bearing of these questions on his fitness for
admission to the bar and his reasons for declining to answer
them.
[
Footnote 17]
Both the Committee's report and the State Supreme Court's
opinion make it apparent that this area of Anastaplo's views played
no part in his exclusion from the bar.
See pp.
366 U. S. 86�88,
supra; 18 Ill. 2d at 188, 163 N.E.2d at 432.
[
Footnote 18]
This, of course, could hardly be so in the context of the
illustrations which Anastaplo gave of his views as to when a right
to resist might arise. These were: Nazi Germany; Hungary during the
1956 revolt against Russia; a hypothetical decree of this Court
establishing "some dead pagan religion as the official religion of
the country . . ."; a capital sentence of Jesus Christ. Asked to
give a more realistic instance of when resistance would be proper,
Anastaplo summarized:
"I know of no decree, off-hand, in the history of American
government, where such a single instance has occurred. No -- I
grant that it is hard to find these instances. I think it is
important to insist that there might be such instances."
Nothing in the State Court's opinion remotely suggests its
approbation of these views of "certain" Committee members.
[
Footnote 19]
Supra pp. at
366 U. S.
86�88.
[
Footnote 20]
Apart from anything else, there is, of course, no room under our
Rules for the suggestion made in petitioner's brief that he be
admitted to the Bar of this Court, "independently of the action
Illinois might be induced to take."
See Rule 5, Revised
Rules of this Court.
MR. JUSTICE BLACK, with whom THE CHIEF JUSTICE, MR. JUSTICE
DOUGLAS and MR. JUSTICE BRENNAN concur, dissenting.
The petitioner George Anastaplo has been denied the right to
practice law in the State of Illinois for refusing to answer
questions about his views and associations. I think this action by
the State violated rights guaranteed to him by the First and
Fourteenth Amendments. The reasons which lead me to this conclusion
are largely the same as those expressed in my dissenting opinion in
Konigsberg v. State Bar of California, the companion case
decided today,
ante, p.
366 U. S. 56.
But this case provides such a striking illustration of the
destruction that can be inflicted upon individual liberty when this
Court fails to
Page 366 U. S. 98
enforce the First Amendment to the full extent of its express
and unequivocal terms that I think it deserves separate
treatment.
The controversy began in November, 1950, [
Footnote 2/1] when Anastaplo, a student at the
University of Chicago Law School, having two months previously
successfully passed the Illinois Bar examination, appeared before
the State's Committee on Character and Fitness for the usual
interview preliminary to admission to the Bar. The personal history
form required by state law had been filled out and filed with the
Committee prior to his appearance, and showed that Anastaplo was an
unusually worthy applicant for admission. His early life had been
spent in a small town in southern Illinois where his parents, who
had immigrated to this country from Greece before his birth, still
resided. After having received his pre-college education in the
public schools of his home town, he had discontinued his education
at the age of eighteen, and joined the Air Force during the middle
of World War II -- flying as a navigator in every major theater of
the military operations of that war. Upon receiving an honorable
discharge in 1947, he had come to Chicago and resumed his
education, obtaining his undergraduate degree at the University of
Chicago and entering immediately into the study of law at the
University of Chicago Law School. His record throughout his life,
both as a student and as a citizen, was unblemished.
The personal history form thus did not contain so much as one
statement of fact about Anastaplo's past life or conduct that could
have in any way cast doubt upon his fitness for admission to the
Bar. It did, however, contain
Page 366 U. S. 99
a statement of opinion which, in the minds of some of the
members of the Committee, at least, did cast such doubt, and in
that way served to touch off this controversy. This was a statement
made by Anastaplo in response to the command of the personal
history form: "State what you consider to be the principles
underlying (a) the Constitution of the United States." Anastaplo's
response to that command was as follows:
"One principle consists of the doctrine of the separation of
powers; thus, among the Executive, Legislative, and Judiciary are
distributed various functions and powers in a manner designed to
provide for a balance of power, thereby intending to prevent
totally unrestrained action by any one branch of government.
Another basic principle (and the most important) is that such
government is constituted so as to secure certain inalienable
rights, those rights to Life, Liberty and the Pursuit of Happiness
(and elements of these rights are explicitly set forth in such
parts of the Constitution as the Bill of Rights.).
And, of
course, whenever the particular government in power becomes
destructive of these ends, it is the right of the people to alter
or to abolish it and thereupon to establish a new government.
This is how I view the Constitution."
(Emphasis supplied.)
When Anastaplo appeared before a two-man Subcommittee of the
Committee on Character and Fitness, one of its members almost
immediately engaged him in a discussion relating to the meaning of
these italicized words, which were substantially taken from that
part of the Declaration of Independence set out below. [
Footnote 2/2] This discussion
Page 366 U. S. 100
soon developed into an argument as Anastaplo stood by his
statement and insisted that, if a government gets bad enough, the
people have a "right of revolution." It was at this juncture in the
proceedings that the other member of the Subcommittee interrupted
with the question: "Are you a member of any organization that is
listed on the Attorney General's list, to your knowledge?" And this
question was followed up a few moments later with the question:
"Are you a member of the Communist Party?" [
Footnote 2/3] A colloquy then ensued
Page 366 U. S. 101
between Anastaplo and the two members of the Subcommittee as to
the legitimacy of the questions being asked, Anastaplo insisting
that these questions were not reasonably related to the Committee's
functions, and that they violated his rights under the
Constitution, and the members
Page 366 U. S. 102
of the Subcommittee insisting that the questions were entirely
legitimate.
The Subcommittee then refused to certify Anastaplo for admission
to the Bar but, instead, set a further hearing on the matter before
the full Committee. That next hearing, as well as all of the
hearings that followed, have been little more than repetitions of
the first. The rift between Anastaplo and the Committee has grown
ever wider with each successive hearing. Anastaplo has steadfastly
refused to answer any questions put by the Committee which inquired
into his political associations or religious beliefs. A majority of
the members of the Committee, faced with this refusal, has grown
more and more insistent that it has the right to force him to
answer any question it sees fit to ask. The result has been a
series of hearings in which questions have been put to Anastaplo
with regard to his "possible" association with scores of
organizations, including the Ku Klux Klan, the Silver Shirts (an
allegedly Fascist organization), every organization on the
so-called Attorney General's list, the Democratic Party, the
Republican Party, and the Communist Party. At one point in the
proceedings, at least two of the members of the Committee insisted
that he tell the Committee whether he believes in a Supreme Being,
and one of these members stated that, as far as his vote was
concerned, a man's "belief in the Deity . . . has a substantial
bearing upon his fitness to practice law."
It is true, as the majority points out, that the Committee did
not expressly rest its refusal to certify Anastaplo for admission
to the Bar either upon his views on the "right of revolution," as
that "right" is defined in the Declaration of Independence, or upon
his refusal to disclose his beliefs with regard to the existence of
God, [
Footnote 2/4]
Page 366 U. S. 103
or upon his refusals to disclose any of his political
associations other than his "possible" association with the
Communist Party. But it certainly cannot be denied that the other
questions were asked and, since we should not presume that these
members of the Committee did not want answers to their questions,
it seems certain that Anastaplo's refusal to answer them must have
had some influence upon the final outcome of the hearings. In any
case, when the Committee did vote, 11�6, not to certify Anastaplo
for admission, not one member who asked any question Anastaplo had
refused to answer voted in his favor.
The reasons for Anastaplo's position have been stated by him
time and again -- first, to the Committee and later in the briefs
and oral arguments he presented in his own behalf both before this
Court and before the Supreme Court of Illinois. From a legal
standpoint, his position throughout has been that the First
Amendment gave him a right not to disclose his political
associations or his religious beliefs to the Committee. But his
decision to refuse to disclose these associations and beliefs went
much deeper than a bare reliance upon what he considered to be his
legal rights. The record shows that his refusal to answer the
Committee's question stemmed primarily from his belief that he had
a duty, both to society and to the legal profession, not to submit
to the demands of the Committee because he believed that the
questions had been asked solely for the purpose of harassing him
because he
Page 366 U. S. 104
had expressed agreement with the assertion of the right of
revolution against an evil government set out in the Declaration of
Independence. His position was perhaps best stated before the
Committee in his closing remarks at the final session:
"It is time now to close. Differences between us remain. I leave
to others the sometimes necessary but relatively easy task of
praising Athens to Athenians. Besides, you should want no higher
praise than what I have said about the contribution the bar can
make to republican government. The bar deserves no higher praise
until it makes that contribution. You should be grateful that I
have not made a complete submission to you, even though I have
cooperated as fully as good conscience permits. To the extent I
have not submitted, to that extent have I contributed to the
solution of one of the most pressing problems that you, as men
devoted to character and fitness, must face. This is the problem of
selecting the standards and methods the bar must employ if it is to
help preserve and nourish that idealism, that vital interest in the
problem of justice, that so often lies at the heart of the
intelligent and sensitive law student's choice of career. This is
an idealism which so many things about the bar, and even about bar
admission practices, discourage and make unfashionable to defend or
retain. The worthiest men live where the rewards of virtue are
greatest."
"I leave with you men of Illinois the suggestion that you do
yourselves and the bar the honor, as well as the service, of
anticipating what I trust will be the judgment of our most
thoughtful judges. I move therefore that you recommend to the
Supreme Court of Illinois that I be admitted to the bar of this
Page 366 U. S. 105
State. And I suggest that this recommendation be made
retroactive to November 10, 1950, when a young Air Force veteran
first was so foolish as to continue to serve his country by daring
to defend against a committee on character and fitness the teaching
of the Declaration of Independence on the right of revolution."
The reasons for the Committee's position are also clear. Its
job, throughout these proceedings, has been to determine whether
Anastaplo is possessed of the necessary good moral character to
justify his admission to the Bar of Illinois. In that regard, the
Committee has been given the benefit of voluminous affidavits from
men of standing in their professions and in the community that
Anastaplo is possessed of an unusually fine character. Dr.
Alexander Meiklejohn, Professor of Philosophy, Emeritus at the
University of Wisconsin, for example, described Anastaplo as
"intellectually able, a hard, thorough student and moved by high
devotion to the principles of freedom and justice." Professor
Malcolm P. Sharp of the University of Chicago Law School
stated:
"No question has ever been raised about his honesty or his
integrity, and his general conduct, characterized by friendliness,
quiet independence, industry and courage, is reflected in his
reputation."
Professor Roscoe T. Steffen of the University of Chicago Law
School said: "I know of no one who doubts his honesty and
integrity." Yves R. Simon, Professor of Philosophy at the
University of Chicago, said: "I consider Anastaplo as a young man
of the most distinguished and lofty moral character. Everybody
respects him and likes him." Angelo G. Geocaris, a practicing
attorney in the City of Chicago, said of Anastaplo: "His personal
code of ethics is unexcelled by any practicing attorney I have met
in the state of Illinois." Robert J. Coughlan, Division Director
of
Page 366 U. S. 106
a research project at the University of Chicago, said:
"His honesty and integrity are, in my opinion, beyond question.
I would highly recommend him without the slightest reservation for
any position involving the highest or most sacred trust. The
applicant is a rare man among us today: he has an inviolable sense
of Honor in the great traditions of Greek culture and thought. If
admitted to the American Bar, he could do nothing that would not
reflect glory on that institution."
These affidavits, and many more like them, were presented to the
Committee. Most of the statements came from men who knew Anastaplo
intimately on the University of Chicago campus, where Anastaplo has
remained throughout the proceedings here involved, working as a
research assistant and as a lecturer in Liberal Arts and studying
for an advanced degree in History and Social Sciences. Even at the
present time, he is still there preparing his doctoral
dissertation, which, understandably enough, is tentatively entitled
"The Historical and Philosophical Background of the First Amendment
of the Constitution of the United States."
The record also shows that the Committee supplemented the
information it had obtained about Anastaplo from these affidavits
by conducting informal independent investigations into his
character and reputation. It sent agents to Anastaplo's home town
in southern Illinois, and they questioned the people who knew him
there. Similar inquiries were made among those who knew him in
Chicago. But these intensive investigations apparently [
Footnote 2/5] failed to produce so much as
one man in Chicago or in the whole State of Illinois who could say
or would say, directly, indirectly or even by hearsay, one thing
derogatory
Page 366 U. S. 107
to the character, loyalty or reputation of George Anastaplo, and
not one man could be found who would in any way link him with the
Communist Party. This fact is particularly significant in view of
the evidence in the record that the Committee had become acquainted
with a person who apparently had been a member of a Communist Party
cell on the University of Chicago campus, and that this person was
asked to and did identify for the Committee every member of the
Party whom he knew.
In addition to the information it had obtained from the
affidavits and from its independent investigations, the Committee
had one more important source of information about Anastaplo's
character. It had the opportunity to observe the manner in which he
conducted himself during the many hours of hearings before it. That
manner, as revealed by the record before us and undenied by any
findings of the Committee to the contrary, left absolutely nothing
to be desired. Faced with a barrage of sometimes highly provocative
and totally irrelevant questions from men openly hostile to his
position, Anastaplo invariably responded with all the dignity and
restraint attributed to him in the affidavits of his friends.
Moreover, it is not amiss to say that he conducted himself in
precisely the same manner during the oral argument he presented
before this Court.
Thus, it is against the background of a mountain of evidence so
favorable to Anastaplo that the word "overwhelming" seems
inadequate to describe it that the action of the Committee in
refusing to certify Anastaplo as fit for admission to the Bar must
be considered. The majority of the Committee rationalized its
position on the ground that, without answers to some of the
questions it had asked, it could not conscientiously perform its
duty of determining Anastaplo's character and fitness to be a
lawyer. A minority of the Committee described
Page 366 U. S. 108
this explanation as "pure sophistry." And it is simply
impossible to read this record without agreeing with the minority.
For it is difficult to see what possible relevancy answers to the
questions could have had in the minds of these members of the
Committee after they had received such completely overwhelming
proof beyond a reasonable doubt of Anastaplo's good character and
staunch patriotism. I can think of no sound reason for further
insistence upon these answers other than the very questionable, but
very human, feeling that this young man should not be permitted to
resist the Committee's demands without being compelled to suffer
for it in some way.
It is intimated that the Committee's feeling of resentment might
be assuaged, and that Anastaplo might even be admitted to the Bar
if he would only give in to the demands of the Committee and add
the requested test oath to the already overwhelming proof he has
submitted to establish his good character and patriotism. In this
connection, the Court says:
"We find nothing to suggest that he would not be admitted now if
he decides to answer, assuming of course that no grounds justifying
his exclusion from practice resulted. In short, petitioner holds
the key to admission in his own hands."
However well this familiar phrase may fit other cases, it does
not fit this one. For the attitude of the Committee, as revealed by
the transcript of its hearings, does not support a belief that
Anastaplo can gain admission to the Illinois Bar merely by
answering the Committee's questions, whatever answers he should
give. Indeed, the Committee's own majority report discloses that
Anastaplo's belief in the "right of revolution" was regarded as
raising "a serious question" in the minds of a majority of the
Committee with regard to his fitness to practice law, and that
"certain" members of that majority (how many, we cannot know) have
already stated categorically that they will
Page 366 U. S. 109
not vote to admit an applicant who expresses such views. Nor
does the opinion of the Illinois Supreme Court indicate that
Anastaplo "holds the key to admission in his own hands." Quite the
contrary -- that court's opinion evidences an almost insuperable
reluctance to upset the findings of the Committee. Certainly that
opinion contains nothing that even vaguely resembles the sort of
implicit promise that would justify the belief asserted by the
majority here. And, finally, I see nothing in the majority opinion
of this Court, nor in the majority opinions in the companion cases
decided today, that would justify a belief that this Court would
unlock the door that blocks his admission to the Illinois Bar if
Anastaplo produced the "key" and the state authorities refused to
use it.
The opinion of the majority already recognizes that there is not
one scrap of evidence in the record before us
"which could properly be considered as reflecting adversely upon
his [Anastaplo's] character or reputation or on the sincerity of
the beliefs he espoused before the Committee,"
and that the Committee had not received any
"information from any outside source which would cast any doubt
on applicant's loyalty or which would tend to connect him in any
manner with any subversive group."
The majority opinion even concedes that Anastaplo was correct in
urging that the questions asked by the Committee impinged upon the
freedoms of speech and association guaranteed by the First and
Fourteenth Amendments. But the opinion then goes on to hold that
Anastaplo can nonetheless be excluded from the Bar pursuant to "the
State's interest in having lawyers who are devoted to the law in
its broadest sense. . . ." [
Footnote
2/6] I cannot regard that holding, as applied to a man like
Anastaplo, as in any way justified.
Page 366 U. S. 110
Consider it, for example, in the context of the following
remarks of Anastaplo to the Committee -- remarks the sincerity of
which the majority does not deny:
"I speak of a need to remind the bar of its traditions and to
keep alive the spirit of dignified but determined advocacy and
opposition. This is not only for the good of the bar, of course,
but also because of what the bar means to American republican
government. The bar, when it exercises self-control, is in a
peculiar position to mediate between popular passions and informed
and principled men, thereby upholding republican government. Unless
there is this mediation, intelligent and responsible government is
unlikely. The bar, furthermore, is in a peculiar position to apply
to our daily lives the constitutional principles which nourish for
this country its inner life. Unless there is this nourishment, a
just and humane people is impossible. The bar is, in short, in a
position to train and lead by precept and example the American
people. [
Footnote 2/7]"
These are not the words of a man who lacks devotion to "the law
in its broadest sense."
The majority, apparently considering this fact irrelevant
because the State might
possibly have an interest in
learning more about its Bar applicants, decides that Anastaplo can
properly be denied admission to the Bar by purporting to "balance"
the interest of the State of Illinois in "having lawyers who are
devoted to the law in its broadest sense" against the interest of
Anastaplo
Page 366 U. S. 111
and the public in protecting the freedoms of the First
Amendment, concluding, as it usually does when it engages in this
process, that, "on balance," the interest of Illinois must prevail.
[
Footnote 2/8] If I had ever
doubted that the "balancing test" comes close to being a doctrine
of governmental absolutism -- that to "balance" an interest in
individual liberty means almost inevitably to destroy that liberty
-- those doubts would have been dissipated by this case. For this
so-called "balancing test" -- which, as applied to the First
Amendment, means that the freedoms of speech, press, assembly,
religion and petition can be repressed whenever there is a
sufficient governmental interest in doing so -- here proves
pitifully and pathetically inadequate to cope with an invasion of
individual liberty so plainly unjustified that even the majority
apparently feels compelled expressly to disclaim "any view upon the
wisdom of the State's action."
I, of course, wholeheartedly agree with the statement of the
majority that this Court should not, merely on the ground that such
action is unwise, interfere with governmental action that is within
the constitutional powers of that government. But I am no less
certain that this Court should not permit governmental action that
plainly abridges constitutionally protected rights of the People
merely because a majority believes that, on "balance," it is
better, or "wiser," to abridge those rights than to leave them
free. The inherent vice of the "balancing test" is that it purports
to do just that. In the context of its reliance upon the "balancing
test," the Court's disclaimer
Page 366 U. S. 112
of "any view upon the wisdom of the State's action" here thus
seems to me to be wholly inconsistent with the only ground upon
which it has decided this case.
Nor can the majority escape from this inconsistency on the
ground that the "balancing test" deals only with the question of
the importance of the existence of governmental power as a general
matter, without regard to the importance of its exercise in a
particular case. For, in
Barenblatt v. United States, the
same majority made it clear that the "balancing test" is to be
applied to the facts of each particular case:
"Where First Amendment rights are asserted to bar governmental
interrogation, resolution of the issue always involves a balancing
by the courts of the competing private and public interests at
stake
in the particular circumstances shown. [
Footnote 2/9]"
(Emphasis supplied.) Thus, the Court not only "balances" the
respective values of two competing policies as a general matter,
but also "balances" the wisdom of those policies in "the particular
circumstances shown." Thus, the Court has reserved to itself the
power to permit or deny abridgement of First Amendment freedoms
according to its own view of whether repression or freedom is the
wiser governmental policy under the circumstances of each case.
The effect of the Court's "balancing" here is that any State may
now reject an applicant for admission to the Bar if he believes in
the Declaration of Independence as strongly as Anastaplo and if he
is willing to sacrifice his career and his means of livelihood in
defense of the freedoms of the First Amendment. But the men who
founded this country and wrote our Bill of Rights were strangers
neither to a belief in the "right of revolution" nor to the urgency
of the need to be free from the control of government
Page 366 U. S. 113
with regard to political beliefs and associations. Thomas
Jefferson was not disclaiming a belief in the "right of revolution"
when he wrote the Declaration of Independence. And Patrick Henry
was certainly not disclaiming such a belief when he declared, in
impassioned words that have come on down through the years: "Give
me liberty or give me death." This country's freedom was won by men
who, whether they believed in it or not, certainly practiced
revolution in the Revolutionary War.
Since the beginning of history, there have been governments that
have engaged in practices against the people so bad, so cruel, so
unjust, and so destructive of the individual dignity of men and
women that the "right of revolution" was all the people had left to
free themselves. As simple illustrations, one government almost
2,000 years ago burned Christians upon fiery crosses, and another
government, during this very century, burned Jews in crematories. I
venture the suggestion that there are countless multitudes in this
country, and all over the world, who would join Anastaplo's belief
in the right of the people to resist by force tyrannical
governments like those.
In saying what I have, it is to be borne in mind that Anastaplo
has not indicated, even remotely, a belief that this country is an
oppressive one in which the "right of revolution" should be
exercised. [
Footnote 2/10] Quite
the contrary,
Page 366 U. S. 114
the entire course of his life, as disclosed 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 professional career in time of peace. The one and
only time in which he has come into conflict with the Government is
when he refused to answer the questions put to him by the Committee
about his beliefs and associations. And 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.
This case illustrates to me the serious consequences to the Bar
itself of not affording the full protections of the First Amendment
to its applicants for admission. For this record shows that
Anastaplo has many of the qualities that are needed in the American
Bar. [
Footnote 2/11] It shows not
only that Anastaplo has followed a high moral, ethical and
patriotic course in all of the activities of his life, but also
that he combines these more common virtues with the uncommon virtue
of courage to stand by his principles at any cost. It is such men
as these who have most greatly honored the profession of the law --
men like Malsherbes, who, at the cost of his own life and the lives
of his family, sprang unafraid to the defense of Louis XVI against
the
Page 366 U. S. 115
fanatical leaders of the Revolutionary government of France
[
Footnote 2/12] -- men like
Charles Evans Hughes, Sr., later Mr. Chief Justice Hughes, who
stood up for the constitutional rights of socialists to be
socialists and public officials despite the threats and clamorous
protests of self-proclaimed superpatriots [
Footnote 2/13] -- men like Charles Evans Hughes, Jr.,
and John W. Davis, who, while against everything for which the
Communists stood, strongly advised the Congress in 1948 that it
would be unconstitutional to pass the law then proposed to outlaw
the Communist Party [
Footnote
2/14] -- men like Lord Erskine, James Otis, Clarence Darrow,
and the multitude of others who have dared to speak in defense of
causes and clients without regard to personal danger to themselves.
The legal profession will lose much of its nobility and its glory
if it is not constantly replenished with lawyers like these. To
force the Bar to become a
Page 366 U. S. 116
group of thoroughly orthodox, time-serving, government-fearing
individuals is to humiliate and degrade it.
But that is the present trend not only in the legal profession,
but in almost every walk of life. Too many men are being driven to
become government-fearing and time-serving because the Government
is being permitted to strike out at those who are fearless enough
to think as they please and say what they think. [
Footnote 2/15] 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.
[
Footnote 2/1]
As the majority points out, the record in the first series of
hearings, which culminated in a denial of certiorari by this Court
(348 U.S. 946), is not a part of the record in this case, but we
take judicial notice of it.
National Fire Ins. Co. of Hartford
v. Thompson, 281 U. S. 331,
281 U. S. 336,
and cases cited there.
[
Footnote 2/2]
"We hold these truths to be self-evident, that all Men are
created equal, that they are endowed by their Creator with certain
unalienable Rights, that among these are Life, Liberty, and the
Pursuit of Happiness -- That to secure these Rights, Governments
are instituted among Men, deriving their just Powers from the
Consent of the Governed, that whenever any Form of Government
becomes destructive of these Ends, it is the Right of the People to
alter or to abolish it, and to institute new Government, laying its
Foundation on such Principles, and organizing its Powers in such
Form, as to them shall seem most likely to effect their Safety and
Happiness."
[
Footnote 2/3]
The following excerpt from the record of the first hearing
indicates clearly the connection between Anastaplo's views on the
"right of revolution" and the questions subsequently asked him
about his "possible" political associations:
"Commissioner Mitchell: When you say 'believe in revolution,'
you don't limit that revolution to an overthrow of a particular
political party or a political government by means of an election
process or other political means?"
"Mr. Anastaplo: I mean actual use of force."
"Commissioner Mitchell: You mean to go as far as necessary?"
"Mr. Anastaplo: As far as Washington did, for instance."
"Commissioner Mitchell: So that would it be fair to say that you
believe the end result would justify any means that were used?"
"Mr. Anastaplo: No, the means proportionate to the particular
end in sight."
"Commissioner Mitchell: Well, is there any difference from your
answer and my question?"
"Mr. Anastaplo: Did you ask --"
"Commissioner Mitchell: I asked you whether you thought that you
believe that, if a change, or overthrow of the government were
justified, that any means could be used to accomplish that
end."
"Mr. Anastaplo: Now, let's say in this positive concrete
situation -- I am not quite sure what it means in abstract."
"Commissioner Mitchell: I will ask you in detail. You believe
that, assuming the government should be overthrown, in your
opinion, that you and others of like mind would be justified in
raising a company of men with military equipment and proceed to
take over the government of the United States, of the State of
Illinois?"
"By shaking your head do you mean yes?"
"Mr. Anastaplo: If you get to the point where overthrow is
necessary, then overthrow is justified. It just means that you
overthrow the government by force."
"Commissioner Mitchell: And would that also include, in your
mind, justification for putting a spy into the administrative
department, one or another of the administrative departments of the
United States or the government of the State of Illinois?"
"Mr. Anastaplo: If you got to the point you think the government
should be overthrown, I think that would be a legitimate
means."
"Commissioner Mitchell: There isn't any difference in your mind
in the propriety of using a gun or using a spy?"
"Mr. Anastaplo: I think spies have been used in quite honorable
causes."
"Commissioner Mitchell: Your answer is, you do think so?"
"Mr. Anastaplo: Yes."
"Commissioner Baker: Let me ask you a question. Are you aware of
the fact that the Department of Justice has a list of what are
described as subversive organizations?"
"Mr. Anastaplo: Yes."
"Commissioner Baker: Have you ever seen that list?"
"Mr. Anastaplo: Yes."
"Commissioner Baker: Are you a member of any organization that
is listed on the Attorney General's list, to your knowledge? (No
answer.) Just to keep you from having to work so hard mentally on
it, what organizations -- give me all the organizations you are
affiliated with or are a member of. (No answer.) That oughtn't to
be too hard."
"Mr. Anastaplo: Do you believe that is a legitimate
question?"
"Commissioner Baker: Yes, I do. We are inquiring into not only
your character, but your fitness, under Rule 58. We don't compel
you to answer it. Are you a member of the Communist Party?"
[
Footnote 2/4]
As the majority points out, the Committee eventually did
expressly disavow any right to insist upon an answer to this
question. This came at the end of a long disagreement between
Anastaplo and certain members of the Committee with respect to the
vitality of an old Illinois decision which indicated that a belief
in God might be necessary in order to take an oath to testify. The
Committee's abandonment of the point came only after Anastaplo
produced a more recent Illinois case disapproving the earlier
decision. It is interesting to note that neither of the Committee
members who had expressed such a strong interest in knowing whether
Anastaplo believes in God voted in favor of his certification.
[
Footnote 2/5]
The record shows that, although Anastaplo repeatedly requested
that the Committee allow him to see any reports that resulted from
these independent investigations, the Committee, without denying
that such reports existed, refused to produce them.
[
Footnote 2/6]
Konigsberg v. State Bar of California, decided today,
ante at pp.
366 U. S. 36,
366 U. S. 52,
which the majority here relies upon as also having settled the
issue in this case.
[
Footnote 2/7]
These remarks were made by Anastaplo in his closing argument
before the Committee. He also introduced evidence to the Committee
that he had earlier expressed similar views in a book review
published in 1954.
See Anastaplo, Review: Drinker, Legal
Ethics, 14 Law.Guild Rev. 144.
[
Footnote 2/8]
I think the majority has once again misapplied its own
"balancing test," for the interest it purports to "balance" are no
more at stake here than in
Konigsberg. Moreover, it seems
clear to me that Illinois, like California, is placing the burden
of proof upon applicants for the Bar to prove they do not advocate
the overthrow of the Government. Thus, the decision here, like that
in
Konigsberg, is contrary to
Speiser v. Randall,
357 U. S. 513.
[
Footnote 2/9]
360 U. S. 360 U.S.
109,
360 U. S. 126.
The majority in
Barenblatt then proceeded to "balance"
those interests on the basis of the particular record of that case.
Id. at
360 U. S.
127�134.
[
Footnote 2/10]
Anastaplo's belief in the "right of revolution," as disclosed by
this record, is no different from that expressed by Professor
Chafee:
"Most of us believe that our Constitution makes it possible to
change all bad laws through political action. We ought to disagree
vehemently with those who urge violent methods and, whenever
necessary, take energetic steps to prevent them from putting such
methods into execution. This is a very different matter from
holding that all discussion of the desirability of resorting to
violence for political purposes should be ruthlessly stamped out.
There is not one among us who would not join a revolution if the
reason for it be made strong enough."
Chafee, Free Speech in the United States 178 (Harvard University
Press, 1942).
[
Footnote 2/11]
For a similar case,
see In re Summers, 325 U.
S. 561, in which a 5�4 majority of this Court upheld an
informal order of the Illinois Supreme Court denying Bar admission
to Clyde W. Summers on the ground that his religious beliefs were
inconsistent with the Illinois Constitution.
[
Footnote 2/12]
At the time of his decision to volunteer his services in defense
of Louis XVI, Malsherbes, a man of more than seventy, was
apparently completely safe from the post-revolutionary blood bath
which then enveloped France. For, although active in public life
prior to the Revolution, he had always been a friend of the people,
and, in any case, he had largely passed out of the public mind with
his retirement some years earlier. Within a year of his
unsuccessful defense of the life of France's former king, however,
he, together with his entire family, was convicted by a
revolutionary tribunal on the vague charge of conspiracy against
"the safety of the State and the unity of the Republic." Malsherbes
was then taken to the guillotine where, after being forced to
witness the beheading of the other members of his family, he paid
with his life for his courage as a lawyer. This story has been
interestingly told by John W. Davis.
See Davis, The
Lawyers of Louis XVI, in The Lawyer, April 1942, p. 5 at 6�13.
[
Footnote 2/13]
The story of Hughes' participation in the fight against the
action of the New York Legislature in suspending five of its
members in 1920 on the ground that they were socialists is told in
John Lord O'Brian, Loyalty Tests and Guilt by Association, 61
Harv.L.Rev. 592, 593�594.
[
Footnote 2/14]
See Barenblatt v. United States, 360 U.
S. 109,
360 U. S.
147�148 (dissenting opinion).
[
Footnote 2/15]
See, e.g., Barsky v. Board of Regents, 347 U.
S. 442;
Uphaus v. Wyman, 360 U. S.
72;
Barenblatt v. United States, 360 U.
S. 109;
Uphaus v. Wyman, 364 U.
S. 388;
Wilkinson v. United States,
365 U. S. 399;
Braden v. United States, 365 U. S. 431;
Konigsberg v. State Bar of California, supra.
MR. JUSTICE BRENNAN, with whom THE CHIEF JUSTICE joins,
dissenting.
I join MR. JUSTICE BLACK's dissent. I add only that I think the
judgment must also be reversed on the authority of
Speiser v.
Randall, 357 U. S. 513, for
the reasons expressed in my dissent in
Konigsberg v. State Bar
of California, ante, p.
366 U. S.
80.