Using the Law to Build a Socialist Society

Lawyers for the Left: In the Courts, In the Streets and On the Air.
by Michael Steven Smith, Foreword by Heidi Boghosian, Afterword by Jim Lafferty.
New York: OR Books, 2019. 260pp, $18.00

This is an extraordinary moment for civil liberties lawyers, unfortunately not in the happy sense. “America,” Heidi Boghosian says in the Foreword, “is in a constitutional crisis.” Ordinary, long-assumed rights are being challenged in the courts, by law-and-order conservative judges, unabashedly repressive police (largely freed from restraints) and the rigged system of incarceration. Rather than advancing rights, radical lawyers find themselves struggling to stay in one place and keep their clients from harm.

This situation is, of course, not so new and, just as important, not the project of looney conservatives. “In 2011, President Obama signed into law the National Defense Authorization Act, a bill drafted in secret, behind closed doors. The Act authorizes the U.S. military to pick up and indefinitely imprison American citizens without charge or trial…”  We could say that 9/11 opened up the Pandora’s Box and out jumped those who were eager, Republican and Democrat alike, to extend the authoritarian state wherever it wanted to go.

Michael Steven Smith, a former board member at the Center for Constitutional Rights for many years,  a scholar by inclination, and a socialist by commitment, is eminently qualified to connect several generations of courtroom militants.

Not that the logic of legal defense is new. Smith cites the capacity of lawyer Leonard Weinglass to put the CIA decades ago. Students at the University of Massachusetts, including presidential daughter Amy Carter, resisted attempts of the Agency to recruit on campus. Arrested after they obstructed the recruitment by sitting in, they were defended on the grounds of “necessity,” that is the act of halting an ongoing crime by committing a lesser one.

Former CIA agent Ralph McGhee came in to testify about the illegal overthrow of the Guatemalan and Chilean governments, the assassination of Vietnamese civilians by the thousands. A local jury freed the defendants, establishing an inspiring example. The necessity defense is now being used  by climate defenders who at this moment in Seattle are going to trial for disrupting a tar sands oil pipeline   (Disclosure: I assisted Smith with a graphic novel-genre biography of Weinglass, drawn by Seth Tobocman.)

The grand moral claims of this case echo first of all Michael Smith’s own story, and this is well worth hearing at length. A socialist doing his alternative service duty in the Vietnam years with Community Legal Services in Detroit, youngster Smith learned the hard way that the odds are always against the poor and the Left. He next explores how his early contact with Michael Ratner, the future president of the CCR—along with William Kuntsler—led him into the Left legal world he has occupied ever since.

Kunstler, a giant in his day, confronted the authorities in a most spectacular way, wild hair and all. His list of clients defended successfully is legendary: Adam Clayton Powell, Stokely Carmichael, Daniel Berrigan, Dennis Banks and Russell Means, among so many others. Smith insists that not even Clarence Darrow, the great legal militant of the 1910s-30s, had more of an impact on the movement.

A section of the book puts together interviews with other legal giants of our own time. We hear from Michael Tigar, Jim Lafferty (a leader in the Anti-Vietnam war movement); Bill Schapp (founder of the tell-all magazine Covert Action, among other work); Bruce Wright (famed African American judge in New York, despised by the police force and successive mayors); Myron Beldock (who successfully defended boxer “Hurricane” Carter); Conrad Lynn (famed Harlem lawyer of the 1940s-60s), Ramsey Clark (personal thumb in the eye of American war-makers); and Lynne Stewart (civil liberties lawyer personally put on trial by John Ashcroft, sentenced and in effect murdered by authorities) along with a dozen or so others. All are heroes. Half the people seen in these pages have died, which adds an especially eloquent note to the book.

The last two pieces are not interviews but short essays on two great legal figures not to be forgotten in any history of American law or the American Left. Both belonged to a storied tradition.

The first is Victor Rabinowitz, who formed a law firm with Leonard Boudin, in the 1930s, to defend the labor movement and after the Second World War, to defend left-wingers under new legal pressures. Still later, the firm defended the right of the Cuban government to seize US property and still later, to defend the peace activists in the Vietnam era. Rabinowitz was also central to the National Lawyers Guild, which owed its existence to a split within the American Civil Liberties Union over the participation (and defense) of American Communists.

The second is Leonard Boudin, nephew of Louis B. Boudin, formidable Marxist theorist of the pre-1920 era and a leading intellectual of the Socialist Party’s vital Left wing at the time of the Russian Revolution. The elder Boudin, a most prominent figure in legal defense and legal-theory circles into the 1930s, wrote a several volume history of the Supreme Court, Government by Judiciary, still useful in its untangling of details.

Leonard Boudin, carrying on the family tradition, undertook the case of the Socialist Workers Party (a Trotskyist organization) vs the FBI,  a case that took fifteen years to successfully litigate. The suit brought by Boudin was the first attack upon the intelligence agencies that had carried on illegal actions against domestic opponents since the 1910s, prompting the Supreme Court to look, for the first time, at what the FBI was doing to tamper with the political process and to rule that it was legal to advocate socialist ideas and be in a socialist party. As Leonard Boudin carried on his work defending those who protested the War, he came into contact with young Michael Smith, fifty years ago in a case standing up for the rights of GIs to organize against the War.

This is a Memory Book, and Smith closes it with one last memory or rather projection from memory, of what law would be like in a socialist society—one not yet in existence, a society where law was no longer used to control, oppress and exploit. Imagine living in a Socialist USA. It is a good vision to carry us forward.

Paul Buhle is a retired historian, and co-founder, with Scott Molloy, of an oral history project on blue collar Rhode Islanders.