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May
7, 2003
Bill Kunstler's Last Big Speech
The
Downward Slide of the Bill of Rights and the Greatest Graduation
Speech I Ever Heard
by BRUCE JACKSON
It's graduation season across the land, so recently
I looked for, and happily found, what I remembered as the best
graduation speech I ever heard.
Civil rights attorney William M. Kunstler
was the speaker at the May 13, 1995, University at Buffalo School
of Architecture and Planning commencement. The dean of that school,
Bruno Freschi, thought it might do his students more good to
hear someone talk about ethics than about the glories of design
or planning.
Kunstler based much of his talk on ten
violations of the Bill of Rights he came across in that morning's
New York Times. He spoke of racism, corruption, gay-bashing by
a member of Congress, violence and brutality.
I think of Kunstler, and that speech
in particular, a good deal these days. I think of them when I
read articles in the New York Times about teenagers locked in
federal jails with no formal charges they might answer, Texas
officials fighting to keep in state prison dozens of blacks from
the town of Tulia they know are totally innocent, federal prisoners
facing secret trials with no access to lawyers or their own families,
the concentration camp for prisoners of war maintained by the
American government in a Navy base in Cuba, a Pennsylvania senator
saying it's okay to be gay but not to do it (is that like it's
okay to be a Christian or a Jew but not okay to engage in any
of the behaviors connected with those conditions?), protestors
locked up by federal agents merely for standing with placards
where President Bush might happen to see them, Attorney
General Ashcroft and his minions secretly polishing Patriot II,
Bush administration officials insisting that criticism of them
in a time of war is traitorous--and the same officials vowing
a never-ending war against the world's evil, here and abroad.
William Kunstler was for many years the
best-known civil rights attorney in America. He had, since he
first represented Freedom Riders attempting to integrate interstate
busses in Mississippi in 1962, been a central figure in nearly
every major civil rights case. Because many of his early clients
are now American heroes, it is easy to forget that at the time
Kunstler represented them, most were American pariahs. He represented
or worked with Martin Luther King, Lenny Bruce, Malcolm X, Phillip
and Daniel Berrigan, H. Rap Brown, Stokely Carmichael, Adam Clayton
Powell, the Chicago 7, Jack Ruby, Attica prisoners, Black Panthers,
Wounded Knee Indians, and countless others.
He was a warrior who elected to fight
in the civil atmosphere of the courthouse rather than the streets.
He had earned his choice: in World War II, he was awarded the
Bronze Star and Purple Heart. He saw corruption and ineptitude
and laziness and malevolence in our government, but he adored
the ideas of human rights underlying our system of government.
He believed passionately in the Bill of Rights. Those amendments
to the United States Constitution were, to him, a sacred text,
and he was outraged and energized by attempts to dilute or abrogate
the freedoms they guaranteed.
"Every generation has its time to
struggle," Kunstler told those 1995 architecture graduates.
"There are no green pastures."
This was one of the last public addresses
William Kunstler gave. He died four months later, on September
4, 1995.
--Bruce Jackson
Ethics, the Law and the Body
Politic
by WILLIAM KUNSTLER
There are two firsts for me here today. I haven't
had one of these academic gowns on since I left the sacred precincts
of New Haven and Yale University to join the U.S. Army in 1941.
Secondly, I haven't been called honorable, I think, by anybody
in this country at least for the last forty years. Though it
is unpleasant to wear this robe in this heat and pleasant to
be called honorable, neither will last longer than today, believe
me. Tomorrow I will be back in contempt somewhere going into
one jail or another, where I always get a urological check-up
and dental care. The reason I have kept all of my teeth all these
years has been that every good county jail in America has a relatively
decent dental program.
When Bruno Freschi called me up and asked
me what I was going to talk about, he suggested a subject, and
because of his strong Canadian voice, I thought he was asking
me to speak about sex. It actually was ethics.
But I kept hearing sex, and I wrote on a pad to my partner,
"The idiot wants me to talk about sex." And he wrote
back, "What do architectural and planning students have
to do with sex?" All we could think of was erections. But
then it came through loud and clear that what he was saying was
ethics and not sex. So I crossed "sex" off the pad,
I put "ethics" down, my partner lost interest completely,
and I prepared whatever I'm going to say today.
Ethics are important, although they don't
exist very much in the United States--or maybe anywhere for that
matter. On the way up on the plane, I had the New York Times
on my lap, and I thought I would look and see how ethics were
faring in the United States. I found ten items:
--One was a squib that a district attorney
in Rockland County had pled guilty earlier in the week to income
tax evasion and fraud.
--The second was that welfare recipients
had entered into a conspiracy with the welfare people who signed
the checks. They were receiving checks for a quarter of a million
dollars in some instances and the total defrauding of the welfare
system of the City of New York was $2,200,000.
--The third item was a New York City
police officer pleading guilty to three counts of cocaine possession.
--The fourth was the execution last night
of a hopelessly insane man in Alabama by electrocution.
--The fifth was a New Orleans police
officer, a woman, alleged to have killed three people in a Vietnamese
restaurant in that city while two of them were on their knees
begging for mercy.
--The sixth was a Jersey City police
officer suspended for killing a man in custody by beating him
about the head so seriously he went into a coma and died yesterday.
--The seventh was a divorce lawyer who
had hired a thug to break the leg of his opponent, another divorce
lawyer, in a contested divorce proceeding.
--The eighth was Kay Wall, who had been
appointed by Governor John Rowland of Connecticut, to the board
of education of the state--which Governor Rolland had turned
into all white now from three blacks, an Hispanic, and a white.
But she was forced to disclaim her appointment because she had
made an unfortunate remark that people would love her if she
were black, had black hair, was 20 pounds heavier and came from
the ghetto of Hartford. Because of that remark, she withdrew
her nomination.
--The ninth was a congressman referring
to gay people as "homos."
--And the tenth was another congressman
referring to Waco--that unfortunate tragedy at Waco, Texas, two
years ago--as a plot of Bill Clinton, and referring to the federal
officers involved as "thugs in jack boots."
These ten, in one paper only. The word
"ethics" apparently has very little meaning in the
body politic.
Bruce Jackson referred me to a poem by
John Berryman called "World Telegram," where he read
in that newspaper (long out of print but which I used to read
as a boy and young man) all of the terrible things that had happened
on May 13, 1939. This is the final stanza of that poem:
News of one day, one afternoon, one
time.
If it were possible to take these things
Quite seriously, I believe they might
Curry disorder in the strongest brain,
Immobilize the most resilient will,
Stop trains, break up the city's food supply,
And perfectly demoralize the nation.
He was doing in 1939 what I am doing
here today. Perhaps the best way to describe this breakdown of
ethical concepts in this country (except in rare and isolated
places--like the University at Buffalo) is a history of the attempts
to establish some form of ethos in this country.
As you know, the American Revolution
was not a revolution engineered by poor people or by people who
sold rats for a penny a pound down on the Long Wharf in Boston.
It was engineered by the wealthy who wanted to transfer the power
of wealth from London to New York, Philadelphia, and Boston.
The people who fought it were those people who sold rats
on the Long Wharf--the tinsmiths, the blacksmiths, and so on.
But those who gained the most from it were the wealthy, the slave
owners.
They met in Philadelphia in 1787. They
met at what's called Independence Hall, designed by a very famous
lawyer, Andrew Hamilton, who defended John Peter Zenger in that
famous freedom of speech trial in 1735 in New York. They blacked
out the windows with paint so that no one would know they were
going to violate their orders from those who sent them there
by writing a new constitution and not reforming the Articles
of Confederation, which was why they had been sent to Philadelphia.
They were so afraid that people would find out what they were
doing that they had Benjamin Franklin followed home every night
and then followed from his lodgings to Independence Hall, because
old Ben liked to tip a glass or two at the local tavern and they
were afraid that he would give away the story before it was ready
to be given away. They worked all summer and they evolved this
document.
The document is fine. It sets up a tripartite form of government,
and so on, but it says nothing about human rights whatsoever.
And while they were talking about the supremacy clause in that
document, somebody stood up and said, "How about a bill
of rights?" This man was George Mason of Virginia. They
voted on it. They voted twelve to one against a bill of
rights. The only one that didn't vote against it was, strangely
enough, North Carolina. I guess those delegates from North Carolina
would be very surprised to see that the man who sits in the United
States Senate from that state today is Jesse Helms. They voted
again. Again, twelve to one against a bill of rights.
And so, Mason left the convention, joined by John Randolph of
Virginia and Elbridge Gerry of Massachusetts. The Constitution
went out for ratification and they were so afraid that it would
not be ratified that they made a two-thirds vote the ratification
number, rather than unanimous. Five states immediately ratified--Georgia
and Connecticut among them. But the big states of Virginia, New
York, and Massachusetts did not ratify immediately. In fact,
as you know, the Federalist Papers were created by Hamilton and
Jay and Madison to try to sell the Constitution to the New York
ratifying convention. Finally, Massachusetts--meeting in the
Long Wharf in Boston and led by Elbridge Gerry--had an idea:
Massachusetts will ratify if you agree to have a bill of rights
in the first congress. There was agreement on that score and
the three big states voted narrowly--three votes in New York
and ten in Virginia--and the Constitution became law.
There was an election, George Washington
and John Adams were elected president and vice president, and
a congress was elected. It met in Federal Hall (still standing
in New York) in 1791 and there was a vote on a bill of rights.
After thrashing it out for months, they finally got a bill of
rights.
The Senate voted that it should not be
binding on the states; the House voted that it should
be binding on the states. The Senate won. (It took six hundred
thousand lives between 1861 and 1865 to begin to make the Bill
of Rights binding on the states.) It went out for ratification.
Virginia ratified on December 15 of that year, and that became
the anniversary year of the Bill of Rights.
It had twelve amendments. The first two
were meaningless for present purposes; they were never voted
in. They had to do with salaries for representatives and senators.
You can see what was on their mind with reference to what came
first. The third, Freedom of Speech became the First, and so
on.
And this great ideal of the Revolution,
theoretically at least, became the Bill of Rights. We were the
first nation on Earth to have crystallized human rights in a
document that was binding at least on the Federal government.
And, yet, over the years it has been
demolished amendment by amendment by amendment. One after the
other, you've had these terrible onslaughts, until today, the
Contract With America--as you know the lunatics are running the
asylum these days--the Contract With America takes out of the
Bill of Rights the Fourth Amendment entirely. It consecrates
all searches and seizures, whether there is or isn't a warrant,
with the phrase, "if the constable believes that he or she
was acting constitutionally." That obviates the application
of the Fourth Amendment.
The Fifth Amendment with its due process
of law: this execution in Alabama yesterday of an insane man
who did not even know he was being executed will show you how
far the inroads go into the Fifth Amendment. You also know that
they are executing fifteen- and sixteen-year-olds and they are
going to work on fourteen-year-olds very shortly. We have become
the charnel house of the Western world with reference to executions;
the next closest to us is the Republic of South Africa. We are
the only nation in the western world to have capital punishment
today. All of western Europe has abolished it.
On the Sixth Amendment: we have taken
lawyers away from their clients. Just witness John Gotti losing
his lawyer, Bruce Cutler, on the eve of trial. We've utilized
all sorts of devices to neutralize lawyers across the country,
such as contempt citations and Rule 11 of the Federal Rules of
Civil Procedure, which gives them the right to penalize lawyers,
fine them, if some judge says the civil rights action you brought
should not have been brought. I stand before you, the recipient
of a $125,000 fine; the head of the NAACP legal defense fund,
$40,000; the Christic Institute, a Roman Catholic civil rights
legal and educational foundation--one million dollars and out
of business today.
I could go through all the amendments,
one by one and you would see how the First has been whittled
down. Doctors, for example, not permitted to tell patients who
are before them of the option of abortion.
The Second Amendment is very lively, of course. The only ones
who subscribe to it are members of the National Rifle Association.
So, it is of small importance to us, except they only read the
gun part of it--"all citizens shall be entitled to bear
arms," and they don't read at all the part saying those
citizens should be in "a well-regulated militia." But
that's not one of the Bill of Rights that gives any meaning today
to us.
The Third doesn't either. That's about quartering troops in private
homes. I don't think any of you have troops quartered in private
homes, unless it be your sons and daughters occasionally home
from the post.
The Fourth Amendment was so vital to the colonists, because,
you will remember, the King of England issued what were called
writs of assistance--open-ended search warrants. They lasted
as long as the king lived, and all the constable had to do was
fill in the name. There was a famous case in Boston in the 1760's
where James Otis, a fiery lawyer, defended sixty-eight ministers
to try to end writs of assistance. John Adams was a young lawyer
in that courtroom, and when he heard Otis address the court,
he said, "Then and there was the child independence born
in that courtroom." In any event, it was so important to
them they enacted the Fourth Amendment: no unreasonable searches
and seizures. But now, it has been dribbled away, bit by bit.
The Fifth Amendment, I've already mentioned--due
process.
The Sixth Amendment, right to counsel.
I've already hinted at it, and this is not a law school class,
so we don't have to go into all the details.
The Seventh doesn't mean anything to you. It has to do with juries
and civil trials.
The Eighth is the Amendment that talks
about unreasonable penalties, bail, and so on. We've completely
eliminated that. Our penalties are draconian, from the death
penalty to sentences of life imprisonment for possession of cocaine,
for example, and the famous "three strikes and you're out"
concept of the Contract With America. And bail has gone out the
window. We have a new statute from 1984, one of Reagan's little
droppings, that says essentially that the judge can deny you
bail in bailable cases if the judge comes to the conclusion you
are a risk to flee or you are essentially a danger to the community.
But it is not decided on 'beyond a reasonable doubt' or even
on 'probable cause.' The statute says clear and convincing evidence
and no one knows quite what that means.
We also have anonymous juries now, as
you know--that would probably come under the Fifth Amendment
or the Sixth Amendment--where the jurors have numbers instead
of names. I tried a case in New York some years ago where juror
318 took the stand to be questioned, a white woman. My co-counsel
leaned over to me and said, "Bill, Is 318 a Jewish name?"
Because you cannot tell anything except from physical characteristics
of the identity of the jurors, whether they are Italian, French,
German extraction, Scandinavian, or what have you. Because you
don't have the names.
I also throw into the Bill of Rights
the Thirteenth, Fourteenth, and Fifteenth, Amendments, which
are the great Civil War Amendments. The attacks on affirmative
action and so on are gradually destroying them as well.
We've come to the point, I guess, where
we fear so much--crime in the streets, bombings, domestic terrorism,
and the like--that we are virtually willing to countenance giving
up of rights because we think it will safeguard us in our daily
lives, particularly in the urban centers of this country. We
are succumbing, in a way, and I don't make the analogy too close,
to what the German people did when the Third Reich began to plant
its foot on human rights in Germany. It was better to have a
strong man; it was better to curtail rights, to be safe from
the Bolsheviks, to be safe from the Versailles Treaty, and so
on. And they gave in to that fear, and fear is the most dangerous
quotient in any community, democratic or otherwise. Once fear
takes root, then people will say, "What does it matter really
if he didn't get his Fifth, or Fourth, or Sixth or Eighth Amendment
rights? That doesn't affect me. I'm not on trial for anything;
I'm not in jail. What does it matter? That's the question Pastor
Niemoller faced, when he said, "They first came for the
Jews and I did not raise my voice, and then they came for me."
It's a hard question. Politicians pander
to that fear. They talk about getting tough on crime, more executions,
more prisons, prisons that would put the Marquis de Sade to shame.
They thrive and get re-elected on that score and the public duly
applauds: "We've got a man, a woman in there who's tough
on crime, ergo, let's follow whatever he or she says. Let's put
the elected stamp of approval on the trampling of the Bill of
Rights."
Jefferson warned against this when he
said if anyone really starts to trample on the Bill of Rights,
we ought to throw over the traces once more. Not quite his language,
but the gist of it was there. He also said "I tremble for
my country when I think that God is just." No sooner had
the ink dried on the Bill of Rights when John Adams became president,
succeeding George Washington. Then we had the Alien and Sedition
laws, as evil a set of statutes against civil rights and human
rights as ever been enacted in this country. President Lincoln
suspended the Writ of Habeas Corpus. The know-nothings take control
from time to time. All sorts of things are done that show how
weak and fragile this Bill of Rights is.
Last night I watched Judge Ito cry on
television when he attended an anniversary meeting of the time
when Japanese-American citizens of this country were snatched
from their homes and put in concentration camps, their property
confiscated for the sole reason that they were Nisei, American
citizens of Japanese ancestry. And that was countenanced by a
supine Supreme Court as being perfectly valid and constitutional.
Slavery was countenanced by another supine supreme court as being
perfectly constitutional. Segregation of the races after the
civil war was countenanced as being perfectly constitutional.
So we have these terrible lapses, because the ethics, the ethos,
somehow vanishes in the exigencies of the moment, the perceived
exigencies of the moment.
Every generation has its time to struggle.
There are no green pastures.
Herman Melville wrote a book called Moby
Dick. I was in the Attica yard on September 12, 1971, just
30 miles from here, sitting with an old client, Sam Melville,
who was to have his head blown off the next morning with double-0
buckshot when the troopers moved in and killed 39 people, including
guards as well as inmates. I said, "Sam, where'd you get
the name Melville?"
He said, "I got the name Melville
because I took it. My real name is not Melville, but I was so
impressed by what he was saying in Moby Dick that I took
that name."
"So," I said, "what about
Moby Dick? It's just a whale story." I remember seeing
a movie where Ahab was not Gregory Peck--that's maybe some of
your generation--but John Barrymore played the first Ahab in
the first motion picture Moby Dick. And I said, "It's
just a whale story."
He said, "No, it's not, Bill. The
white whale is evil, that swims on unconquering and unconquerable.
Everybody dies on the Pequod. The Pequod is smashed
to smithereens by the whale. Ahab is lashed by the harpoon lanyard
to the whale's back and is drowned, the men in the long boat
are destroyed, but one man goes back to sea. You can remember
his name: it was Ishmael." And that's how the book essentially
ends, Ishmael goes back to sea.
No matter how bad the situation gets,
there is always someone who goes back to sea. As long as that
continues and there are those people, and it's not the majority,
believe me....
We sit here today in the comparative
freedom of this institution and, yea, I'll say this country for
the moment (though I don't believe it, too much), but I will
say it, because of better men and women than we who went down
in the dust somewhere in the line. They died or rotted in prisons,
were expatriated, but they kept going. They were the Ishmaels
of their time and our time.
This is not meant to be a speech of cynicism or to tell you how
pessimistically I see the world. I've never seen it that way.
I've spent over fifty years practicing this so-called profession
in one state or another. I just came here from Minnesota where
Qubilah Shabazz was finally set free from her ordeal in Minneapolis,
and next week I go somewhere else. And I am hopeful that there
always will be those Ishmaels. Those are the people I really
talk to and really look for, those who are like the David of
Michelangelo's statue (which you have in the Delaware Park here).
Michelangelo's David is a good example for all of you. This is
the only representation in art of David before he kills
Goliath. All the rest-- Donatello's bronze, the paintings--show
him holding up the severed head of Goliath, as Goliath leads
the Philistines down the hills of Galilee toward the Israelites.
Michelangelo is saying, across these four centuries, that every
person's life has a moment when you are thinking of doing something
that will jeopardize yourself. And if you don't do it, no one
will be the wiser that you even thought of it. So, it's easy
to get out of it. And that's what David is doing right there.
He's got the rock in the right hand, the sling over the left
shoulder, and he's saying like Prufrock, "Do I dare, do
I dare?"
I hope many of you, or at least a significant
few, will dare when the time comes, if it hasn't come already.
I'd like to close with a poem I have
always loved by Arthur Hugh Clough. Arthur Hugh Clough was a
strange individual. I think he's really a near First-rank English
poet. He died just after the Battle of Bull Run. He had been
going to school in the United States, then he returned to England.
He also confronted the Church of England. He didn't like its
policies, he was a rebel. He fought all of his life and it caused
him a lot of trouble. He died young, in his early forties. He
died after witnessing, at least through the press, the slaughter
at Bull Run number one, and after being rebuffed by the church
of England for his views against it. In 1861, just before he
died, he wrote the following poem which I think symbolizes how
I feel--it does it in verse--but it says essentially what I want
to say to all of you in this moment I have up here at this rostrum.
Say not the struggle nought availeth,
The labor and the wounds are vain,
The enemy faints not, nor faileth,
And as things have been they remain.
If hopes were dupes, fears may be
liars;
It may be, in yon smoke concealed,
Your comrades chase e'en now the fliers,
And but for you, possess the field.
For while the tired waves, vainly
breaking,
Seem here no painful inch to gain,
Far back, through creeks and inlets making,
Comes silent, flooding in, the main.
And not by eastern windows only,
When daylight comes, comes in the light,
In front, the sun climbs slow, how slowly,
But westward, look, the land is bright.
Thank you.
Bruce Jackson
is SUNY Distinguished Professor and Samuel P. Capen Professor
of American Culture at University of Buffalo. He edits Buffalo Report.
His email address is bjackson@buffalo.edu.
Today's
Features
Paul
de Rooij
An Activist in the Trenches: an Interview
with Gretta Duisenberg
Anthony
Gancarski
Money to Burn: in Defense of Bill Bennett
John
Stanton
Bush's War on Jesus
Sam
Hamod
W. Bush: the Little Snot, the Little
Bully
Robert
Fisk
Bush Says the War is Over: Tell It to
the Shi'a
Kathleen
Christison
A Roadmap to Nowhere
Steve
Perry
Bush's War Web Log 5/06
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