M. Kunstler gave the following speech at the May 13, 1995, University
at Buffalo School of Architecture and Planning commencement.
Ethics, the Law, and the Body Politic
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
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
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
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
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
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
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
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
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
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 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.