The Fourth Commandment and the First Amendment

Originally published in The University of Chicago Magazine (Spring 1989)

When Harry Kalven, Jr., AB ‘35, JD ‘38, the Harry A. Bigelow professor of Law at the University, died in 1974 at the age of sixty, he left behind a 1,000 page unfinished manuscript. Four years before his death he had started work on the manuscript, in which he intended to present a comprehensive review of the Supreme Court’s rulings on the First Amendment.

Kalven’s son, Jamie Kalven, a free-lance writer, felt that his father’s work was too important to go unpublished. Eventually, he took on the monumental task of completing it himself. With the assistance of Owen Fiss, Kalven’s friend and a former colleague at the University of Chicago, now a professor of law at Yale, Jamie Kalven pulled the heavily annotated manuscript together and enlarged upon it. The result is A Worthy Tradition: Freedom of Speech in America, by Harry Kalven, Jr., edited by Jamie Kalven (NY, 1988. Harper & Row).

In The New York Times Book Review, Benno C. Schmidt, Jr., president of Yale, wrote: “It is a limited, obviously incomplete, gem of a book, indispensable for anyone who seeks to understand freedom of expression in American law . . . And in one of the areas—the Supreme Court’s response to the plethora of constitutional cases involving the specter of domestic Communism in the 40’s, 50’s and 60’s—it is magnificent and ought to be read by everyone interested in this painful and important part of our political and social history.”

At a Law School Loop Luncheon last spring Jamie Kalven talked about his experience in completing his father’s work. His remarks follow.

I want to begin by clearing up a potential source of confusion. It is hard to think of a text carrying more authority in our culture than the tablets Moses brought down from Mount Sinai. Yet even here there are editorial puzzles and questions of interpretation. The wonderful title of this talk (which I owe to the wit of Holly Davis) is subject to being misunderstood. The problem is that different religious traditions number the commandments differently. For Christians, the Fourth Commandment is indeed “Honor your father and your mother.” But for Jews that is the Fifth Commandment and the Fourth is “Remember the Sabbath day.” So I must apologize to those of you who are expecting a talk on “The Sabbath and Freedom of Speech.” An intriguing topic no doubt, but as one who has too often worked seven days a week in an effort to satisfy the other commandment, I am not qualified to address it.

Early on in his career, my father conceived the ambition to write a book on freedom of speech. The first references I have found to such a book date back to the early 1950s. What he had in mind was an essay that would do for his time what Zechariah Chafee’s Free Speech in the United States had done for an earlier era. Over the years he constantly responded—as lawyer, scholar, and citizen—to what he once described as “the charisma” of the First Amendment. Finally, in the late 1960s, he sat down to write the essay to which he would devote the last years of his life.

For my father, freedom of speech in America was something more than a body of law; he saw it as a tradition of the society. His book reflects that orientation. It is a work of evocation as well as analysis. His aim was not simply to report and assess the Court’s most recent answers to various First Amendment issues. He conceived of the American experience under the First Amendment as an ongoing, open-ended dialogue between the society and the courts over the meaning of freedom of speech. His aim was to give a rounded account of that dialogue over time—to evoke and make immediate a large body of mixed experience. To carry it forward, to preserve the debacles as well as the insights, to pass it all on.

He did not quite make it. In the fall of 1974, at the age of sixty, he died. Years later I chose as an epigraph for the afterword to the book lines from the Talmud: “It is not upon you to finish the work; neither are you free to desist from it.” I claimed those consoling, demanding words for myself, but as a reviewer has suggested, they apply equally, and with special poignancy to my father. He did not finish. He did not desist. He died at his desk, working on his essay.

The manuscript he bequeathed posed a dilemma to which there could be no fully satisfactory solution. It was not clear what to do with it. Yet it seemed inconceivable to put it aside, to surrender it to death. Working closely with Professor Owen Fiss of Yale Law School, I undertook to prepare the manuscript for publication. A few months ago—some fourteen years after my father’s death—the book was published under the title A Worthy Tradition: Freedom of Speech in America.

So I stand before you now in the posture of one who has just looked up after years of single-minded effort and asked himself, “Now what was that all about?” To have emerged from the condition of being inside my father’s book is at once a loss of perspective and a recovery of perspective. Much that was vivid and immediate has receded. At the same time, certain questions that could not be entertained, or even discerned, in the midst of the effort are becoming accessible.

The most inviting lines of inquiry arise out of the intersections between content and process, between the themes of the book and the experience of working on it. I have come to feel—in large part as a result of the way others respond to the project—that my experience has been less a rare, singular fate than a boldly defined version of a common fate. A story that makes explicit themes implicit in many lives.

I do not want to present my experience as some sort of parable; I don’t see it that way. But it is perhaps a point of access to larger patterns: a source of hints and intimations. We are, after all, a nation that speaks of “founding fathers.” And the perennial controversy over constitutional theory is a debate about how to regard a text that is both precious and problematic. It is a debate over the proper relationship between the living and the dead, between the generations.

The two principles joined together by our serendipitous title have very different “feels.” The commandment evokes filial piety and deference to authority; it evokes gratitude, without bounds, to those who have given us the gift of life. The amendment evokes tolerance of—and even appetite for—conflict; it evokes (in words my father found stirring) “robust, uninhibited, and wide-open” debate; it evokes distrust of authority and the questioning of everything. How are we to harmonize these two principles? For me, the common ground is found in a certain way of thinking about tradition, about fidelity to a tradition, and about language as at once the common holding of the generations and the domain of struggle between them.

In the beginning was the Word. Among my father’s papers is an extended description, written on March 23, 1950, of my behavior at 17 months. Among other things, it contains a complete list of my vocabulary as of that date. Here it is:

“milk”
“dirty (almost)”
“more (almost)”
“Bud” [As some of you know: my father’s nickname.]
“ta-ta”

He wrote down my first words. Twenty-four years later I inherited his last words: a huge, partially completed edifice of language, at once slapdash and grand, in which I lived for more than a decade.

(When my son Joshua’s first word proved to be “book,” my wife and I were pleased to see this as evidence of what a civilized, literate household he had been born into: book-lined walls, parents who read. But then another explanation occurred to us: we thought of the countless times he had heard people say to his father: “When are you going to finish that damn book?”)

My first words. My father’s last words. And, in between, the conversation that interlaced our fates. I loved talking with him. My most vivid memories are of him talking: on long walks, on the stairs leading up to his study (where, for some reason, we would often become suspended in conversation), over the phone after I left home.

As students, colleagues and friends, many of you knew the pleasures of conversation with him. Perhaps you share my feeling that he not only persuasively argued the case for freedom of speech but that he also embodied it. With him, one felt that there was nothing that could not be talked about. At once bold and playful, his talk about even the gravest matters was animated by intellectual gaiety. The only real sin, he once observed, is boredom. That was something he never suffered nor inflicted. After he died, a number of the letters we received from friends and students struck a common theme: it was not just that he was so interesting, they said, it was that I myself never felt more interesting than when I was with him.

Conversation with him was a matter—in both senses of the word—of entertaining questions. In a memorial tribute Ramsey Clark [AM’50, JD’51] observed that Harry Kalven was “a free man” because “he questioned most severely the things he loved best.” I have a slight quibble with the word “severely.” It does not quite convey the flavor of my father’s questioning—his warmth, his light touch—but the statement gets at something essential. It suggests what was so exhilarating and liberating about his conversational style, suggests his capacity to open a subject up, to freshen it, to renew it. Conversation with him did not necessarily move toward clarity, toward resolution, toward some fixed position. Rather, it was a matter of putting competing values in play, of exploring different perspectives; it was a matter of removing the husks from assertions and getting at the questions inside. The effect was to deepen one’s sense of the subject—to disclose its mysterious depths.

III

With his death, that marvelous stream of language ran dry. We were left with his last words—a thousand pages of them. The manuscript is literally a first draft; I doubt he crumpled up more than half a dozen sheets of paper in the course of producing it. Yet what a first draft. Every year or so he would read through what he had written and make notes in the margins—suggesting revisions and additions, challenging the text, flagging matters he wanted to think about further. Over time the marginalia accumulated. In the end, there were some six hundred notes scattered through the manuscript. They range from question marks to full pages of critical commentary on the backside of manuscript pages. They animate the manuscript, giving it the quality of a conversation between the author and himself.

My objective was to carry on: to advance the process of composition, while keeping it his book, while keeping faith with his intentions. In a sense, the story of the editorial process is the story of my education, far from completed, in the strenuous demands and varied forms of fidelity.

How to characterize this effort? The intensity of it. The vast disproportions. The weeks spent on questions my father would have resolved in an afternoon, the years devoted to blocks of material it took him weeks to write. The searching conversations with Owen Fiss about the merits of various interventions. The doubts that persisted—and persist—about the propriety of various editorial moves.

I have sometimes wondered what my father would have thought, had he listened in on some of my conversations with Owen. He would, I am quite sure, have been moved and gratified by the sight of the two of us sitting in some New Haven dive bringing fierce attention to bear on his manuscript and passionately discussing the intricacies of his thought. As he listened, however, his pleasure might well have given way to other, more ambivalent reactions. For my filial devotion—and Owen’s heroic intellectual generosity to two generations of Kalvens—took the form of relentless criticism and questioning. That was our function. That was the form our stewardship took. That was the way we sought to reach the depth at which the choices that shaped the essay had been made.

It was an endlessly perplexing and compelling process. When it ran true, it brought us close to the mind behind the book. At such moments the problems presented by the manuscript seemed less impediments to understanding than vehicles. This could be immensely satisfying, both intellectua1ly and emotionally. But there were also times when the editorial process brought us close to his mind but did not yield an appropriate way of acting on our perceptions. And this could be anguishing. One of the enduring mysteries of the project is that my father’s mind never seemed more immediate, more present than it did at those moments: in play, actively baffled, a mind engaged in a conversation with itself—a conversation we could not join.

Looking back, I wonder: what does it all add up to? What is the sum of all the changes large and small, of all the changes considered but not made, of all the brooding over minutiae, of all the small acts of attention? I am less certain about my impact on the text than I am about the impact of sustained engagement with the text—and the mind behind it—on me.

I have emerged with a deepened commitment to the values associated with both the commandment and the amendment. It is in such a combination of fierce attachment to what has been given and equally fierce attachment to critical independence that I see the noblest possibilities of the American tradition of freedom of speech—among them, the possibility of being a radical critic within the tradition.

Such a twin commitment is strenuous and endlessly problematic. That may, indeed, be one of its chief virtues: that it yields such worthy problems. There follows from this orientation a conception of fidelity as a matter of taking on the problematic—of getting stuck, of staying on, of not cutting one’s losses; a matter, ultimately, of faith that one will not, in the end, regret having stayed with the problem.

We have heard a lot in recent years about fidelity to the Constitution. We have had urged upon us the proposition, in effect, that judges should enforce those parts of the Constitution that are clear and disregard the rest. The rationale is that the problematic character of some of the broader constitutional values makes error inevitable and provides cover for self-serving interpretations.

Such an approach sees fidelity in only one dimension: our impact on the text. But there is another necessary perspective: the impact of the text on us—the way it works upon us. Certain problems may not be possible to solve. Yet not to engage them would be impoverishing. Our stewardship of that which we inherit will inevitably be marked by error and, in all likelihood, by controversy. But we will fail those values far more deeply, if we use the likelihood of error as a rationale to forgo the effort to give them concrete expression in the world. And we will foreclose the possibility that sustained engagement with fundamental problems may, with time and grace, yield important benefits that do not take the form of solutions. Perhaps the problems will not yield, but we will.

Thus, a condition of fidelity, so conceived, is acceptance of the inevitability of error—not as license but as recognition of human limitations, of all we do not know, of the need to make judgments and to act, although we move among mysteries. In this respect, tradition looks in two directions: towards the elders we seek to honor but also towards the friends-in-the-future (as a great scholar once called them) to whom we look to redeem our mistakes. The symbol of this dynamic in my life at the moment is a big pile of scratch paper that sits on my desk at home: a Xeroxed copy of an early draft of A Worthy Tradition. My children are welcome to help themselves, and they do. They write their stories and draw their pictures on the backside of the manuscript. Alive with the penstrokes of their grandfather’s conversation with himself, bristling with the puzzles that occupied their father, it is the compost out of which their intellects and imaginations are growing.

For me, then, both the content of the book and the experience of working on it converge on a common theme: on an understanding of tradition as an ongoing conversation. As my father, endearingly, once told his students: “In confusion, I see strength.” Certain forms of clarity are the enemy of freedom, of tolerance, of humane values. Such clarity is the product not of things seen but of things not seen. By contrast, ambiguity—such as plays through good conversation—can be a medium in which important human possibilities and values are preserved.

So, I have come to the end of this effort grateful, above all, for the language we share with one another and with the dead—grateful for its consolations, for its death-defying properties, and for the possibilities of reconciliation that reside beneath the arguments it enables us to have with one another.

In closing, I want to return to the Fourth (or is it the Fifth?) Commandment. The full text reads: “Honor your father and your mother, that you may long endure on the land which the Lord our God is giving you.” This promise of long life to those who honor their parents is, of course, heartening. It resonates to the unexpected and welcome sensation I have had since finishing the book that the years I spent on it have somehow been added to my life rather than subtracted. But I wonder if that is really what the words mean. Do they refer to longevity for the individual? Or do they perhaps refer to the ongoing life of the community that flows through the limited, mortal lives of individuals: to the living tradition of which we become part when we passionately enter into the conversation through which that tradition lives.