The Ordeal of Civility

A Tale of Two Hoffmans: The Decorum Decision and the Bill of Rites

Readers of the New York Times for Wednesday, April 22, 1970 were greeted on page one with the following headline: “Panthers’ Apologies Free Two Jailed for New Haven Contempt; Seale Vows Decorum.” There it was, page-one news, the very thing Hegel and Marx had fallen out over: Is the modern state possible without modern bourgeois society and behavior (bürgerliche Gesellschaft)? There it was on page one: Bobby Seale, the national chairman of the Black Panther party: "“We understand the necessity for peace and decorum in the courtroom,’ Mr. Seale told Judge Harold M. Mulvey. ‘We will maintain decorum in the court-room,’ he added at another point,” using, as the article later notes, “a moderate tone.” There it was, the very issue at the root of all the internal differences among Diaspora intellectual Jewry for the past 150 years of Emancipation: Is political emancipation tied to social assimilation? Does access to the political rights of the citoyen hinge on our prior per-formance of the social rites of the bourgeois? Must we prove ourselves gentlemen before claiming the rights of men? Must we behave before we can act (politically)? Is decorum a “functional prerequisite’—to speak Parsonsese—to the Bill of Rights? to public assembly, free speech, fair trial? Is civil society—more particularly, is civility itself—in this, the bourgeois liberal era, necessary to the state? Has it become a raison @état that we mind our manners? To explore the implications of these questions we shall turn to the 1969-70 trial of the”Chicago Seven." It was a kind of “everyday life” experiment, a case study crucially relevant to the questions raised by Lenin in State and Revolution. Today we can frame the same issue more relevantly under the “law and order” rubric of “State and Decorum.”

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The riot-conspiracy trial of the “Chicago Seven,”¹ arising from demonstrations at the 1968 Democratic national convention, reached its climax in the sentencing of Abbie Hoffman, by federal district court Judge Julius Hoffman, to eight months in jail for contempt of court. On hearing the sentence, the Judge’s Yippie namesake declared: “When decorum is [political] repression, the only dignity that free men have is to speak out.”² With this declaration in early 1970, Abbie Hoffman had finally surfaced and articulated the latent issue that had been secretly at work all along in the civil rights agitation of the two preceding decades. With this declaration as its manifesto, the civil rights movement came to self-consciousness: in discovering that it was a counterculture and conse-quently a counterpolitics, the movement demonstrated—ambulando—the inherently bourgeois nature of civil liberties, the real meaning of “bour-geois civil liberties”; decorum was experienced as political repression. What you define as public decorum, Abbie Hoffman told Julius Hoffman, I define as political repression. On that conflicting definition of the situation, the trial came to its furious end.

In the sit-ins on buses and at lunch counters in the fifties in the South, the attempt to disentangle civil liberties from social civilities achieved some measure of success. Where radical differentiation failed, the decisions of the federal court system—culminating in the Supreme Court—seemed to give substance to the growing conviction among ac-tivists that only regional and local “backwardness” delayed the final splitting of social rites from civil rights, of the sociocultural from the political. In the sixties, new types of public places were chosen for the demonstration of probing “misbehaviors.” The streets became the chosen scene for a disconcerting mix of legal misdemeanor and social misbe-havior that troubled public officials responsible for the public order. Semipublic places like university plazas and classrooms were the subse-quent scenes of agitation and takeover. ACLU types, alarmed and recalling their high school civics texts, told the young activists to take their cause off the streets and out of the classroom and into the voting booth. So, in August 1968, they went to the convention of the Democratic party in Chicago, and everybody knows what happened there: all hell broke loose. The activists claimed they were denied the civil right of peaceful assem-bly in the public parks and were repressed by Mayor Daley’s police. The public authorities claimed that the activists used their right of free speech and assembly to foment riot in public places and thus deny the rights of others. Above the noise of claim and counterclaim, the voice of the liberal civil libertarian was heard again in the land: take this fight out of the parks and into the courts. The federal prosecutor in Chicago did just that, and that’s how Abbie Hoffman, Jerry Rubin, and others of the now-famous Chicago Seven ended up testing the limits of deference and demeanor in their final public testing place, the federal courtroom of Judge Julius Hoffman. This terminal setting was almost contrived to spell out the issue precisely as Abbie Hoffman would, indeed, in the end, spell

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it out. The interaction ritual of the Anglo-Saxon adversary proceeding is intricately choreographed. The substantive rights of the defendant are meticulously shored up in this proceeding, it is contended, by the procedural rites of due process. Returning to Chicago to stand trial, de-fendant Rennie Davis announced: “We came to Chicago in August, 1968, to disrupt the ritual and sham which is ordinarily put over as the demo-cratic process. Now we are disrupting the ritual and sham which Judge Hoffman calls the judicial process.”³

The tactic by which this tactic was effected involved a kind of ceremonial profanation ritual, a defrocking of Judge Hoffman and a vandalizing of legal decorum. If, as Goffman observes, “spite actions” at law and vandalism (in the usual sense) represent ways in which “the substantive order is abused for ceremonial purposes,”⁴ the legal “black mass” at Chicago became a kind of behavioral vandalism in which decorum was abused for substantive—i.e., political—purposes. But the Chicago trial provided an arena not only for this general cultural attack on the impersonal judicial process and on Judge Hoffman as its representative, but also for an intra-Jewish fight, a play within a play, as the two Hoffmans acted out an ancient scenario: the socially unassimilated Eastern European Jew versus the assimilated German Jew who “passes” among the goyim. Throughout the trial the two Hoffmans conducted reciprocal vendettas against one another. J. Anthony Lukas of the New York Times notes that what he calls the judge’s “efforts to escape his own Jewishness” and his eagerness to win “social acceptance among the goyim” may explain not only his (initially) gentle condescension to “schwartzes” like black defendant Bobby Seale, but also “his real rage … reserved for the Jews who misbehaved.”⁵ What Lukas does not care to note is the other side of this ancient Kulturkampf among Jews in Diaspora, namely, that if Julius Hoffman’s real rage was reserved for the Jews who misbehaved, Abbie Hoffman’s real rage was reserved for the Jews who “behaved”—German Jews (either authentic or “honorary”⁶) like Julius Hoffman.

To get perspective on this tale of two Hoffmans, this trial within the trial, we must go back a few years. In the 1960s in New York Paul Krassner began publishing a monthly called The Realist (the grandfather of the subsequent “underground press”). It was daring, scatological, curiously apolitical; its specialty was irreverant satire and impolite re-portage (as in its monthly feature, “An Impolite Interview with …”). In late 1967, editor Krassner met with Jerry Rubin and ex—-civil rights worker Abbie Hoffman in New York and invented YIP, the Youth Inter-national Party, whose battle cry they declared to be “Yippie!”⁷ An ab-

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surdist sensibility, derived from their own “outsider” experience (and per-haps from reading Camus) equipped them to bring together the “Yippie Ethic” (adversary to the Protestant Ethic), the youth culture, and the growing counterculture with elements of New Left politics and a psy-chedelic life-style (pot, rock, sex, “acid,” long hair, “freaky” clothes). All of this was to bring about Revolution for the Hell of It (a later book by Hoffman). Epatez le bourgeois was retooled into “Fuck the System.”⁸ “It’s all true,” writes Gene Marine, “the new life-style is the Revolution, and the old order is dying.”⁹

As was abundantly clear from its earliest protests, the New York— based Yippies derived a good deal of their inspiration from “sick” comedian-satirist Lenny Bruce and his “insider’s” criticism of middle-class Jewish gentility. In protest at a preview of a dada exhibition at the Museum of Modern Art in early 1968, for example, a group of Yippies “saluted arriving guests by calling out, ‘All you rich old ladies go back to Schraffts.’” * One held a placard reading “Bourgeoie Zoo.” Another was garbed in a bedouin Arab robe “for no particular reason.”¹⁰

It is this life-style that was brought twice to Chicago—first in pro-test and then on trial—and this life-style that was the novel element in both confrontations. It is significant that, at the trial, defendant David Dellinger’s tilts with Judge Hoffman are those of a WASP square and seldom go beyond Puritan levelism. The following colloquy, for example, occurs between them:

Mr. Dellinger: Mr. Hoffman.
The Court: I’m Judge Hoffman.
Mr. Dellinger: I believe in equality.
The Court: Sit down. ¹¹

Bobby Seale’s disruption was of a different order. Interruptions, shouts, sneers, refusals to obey the court’s directives. Judge Hoffman had him bound and gagged, but it did no good. Seale was still able to disrupt the proceedings. Over the wild protests of his codefendants and their legal counsel, he was finally jailed for contempt.

From the outset the issue of decorum was placed, by Abbie Hoffman and Jerry Rubin, at center stage. The defense table itself was an “offense,” littered with papers, candy wrappers, and books. It was a prop in Yippie Theater. “Across the narrow aisle,” writes J. Anthony Lukas, who covered the trial for the New York Times, “the government’s table reproached us all [sic] with its cool, efficient order.” The defendants put their booted feet up on the black leather chairs and sometimes on the table. Their manners, writes Lukas, “weren’t always nice.”¹² Writing in Liberation

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magazine, Sidney Lens noted at the start of the proceedings that the trial’s “true drama is in the character of the defendants. Abbie and Jerry, whatever their appearance to those who favored oxford grey, represent a new youth culture that has turned its back on the hypocrisy of an older generation.”¹³ As we were soon to learn, they also represented a new generation enlisted in an old intraethnic quarrel: the battle of the Ostjuden and the Yahudim, the alienated Eastern European outsiders and the manicured German Jewish assimilators who long to “pass.”¹⁴

(Many years after writing his famous fictionalized account of the Leopold-Loeb murder case, Compulsion [1956], Meyer Levin owns up to a “secret motive” at work in his account of that trial. He calls it “the German Jewish theme.” At the time of the murder, Levin writes, “there had reverberated all through our Chicago West Side, the neighborhood of Russian and Eastern European Jews, an undercurrent of vengeful satisfaction—these were the sons of German Jews, these two wealthy degenerates who had committed the vicious crime, and were even boasting of it!”¹⁵ Well, an Ostjude named Levin would put the South Side Jew in his place! This animus surfaced publicly in the late sixties during the Chicago Seven trial.)

Lukas pinpoints an incident early in the trial as particularly reveal-ing for the ethnic infighting that subsequently ensued between the two Hoffmans:

The judge, a German Jew, seemed … testy about overt declara-tions of Jewishness. A young Orthodox Jew, wearing a yarmulke, tried repeatedly to get into the trial, but the Federal marshals turned him away. Mr. [William] Kunstler [chief defense attorney] took issue with the judge, who repeatedly refused to interfere. Always quick to exploit such opportunities, the defense managed to get Arthur I. Waskow, a radical historian from the Institute of Policy Studies, on the witness stand wearing a yarmulke and the following colloquy ensued: “The Court: Are you a clergyman, sir? The witness: No, sir. The Court: You will have to remove your hat. Mr. Schultz [government prosecutor]: Your Honor, we don’t object. I know that he—The Court: I object….’ Shuddering with anger, the judge repeatedly ordered Mr. Waskow to remove his yarmulke or get off the stand—relenting only at Mr. Schultz’s repeated urgings. Sensing a vulnerability here Abbie Hoffman responded one day by yelling at the judge in Yiddish.”¹⁶¹⁷

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On February 4, 1970, when Judge Hoffman jailed defendant Del-linger for using an obscenity in court, Abbie Hoffman rose up in a rage and shouted at the judge, “You’re a disgrace to the Jews, runt! You should have served Hitler better!”¹⁸ following which “two marshals grabbed Mr. Hoffman by the shoulders and threw him into a leather chair.”¹⁹ Even more revealing than these angry outbursts was the insult-ing familiarity with which Abbie Hoffman constantly addressed Judge Hoffman: he always called him “Julie.”²⁰ Dellinger, as we have seen, addressed the judge as “Mr. Hoffman” instead of the standard “Your Honor,” legitimating this by saying: “I believe in equality.” Abbie Hoff-man, on the other hand, in calling Judge Hoffman “Julie,” forced on the judge the equality of ethnic origin. He was stripping him of his legal-judicial forms; he would not differentiate the man from the office. His needling was intended to get at the Jewish Hoffman beneath the respectable judge’s garb. He succeeded only too well.

The day after jailing Dellinger for contempt for uttering an obscenity, Judge Hoffman cut off chief defense counsel William Kunstler in the middle of his argument for Dellinger’s release. Abbie Hoffman then shouted: “Your idea of justice is the only obscenity in this court, Julie…. This ain’t the Standard Club.” This was a reference, Lukas notes, “to Chicago’s major German-Jewish club [near the courthouse], where Judge Hoffman lunches” (my emphasis). Soon Abbie was telling Julie to “stick it up your bowling ball,” adding, “How’s your war stock, Julie?”—ap-parently “a reference to the Brunswick Corporation,” Lukas explains with deflationary pedantry, “which makes bowling balls and in which Judge Hoffman’s wife is reported to own stock.” Lukas continues: “Then Mr. Rubin spoke:”.. Adolf Hitler equals Julius Hitler. Abbie Hoffman picked up the attack, spicing it with Yiddish. ‘Shande fur de Goyim [Disgrace for the Gentiles],’ he yelled. Later, Mr. Hoffman gleefully translated the phrase as ‘Front man for the WASP power elite.’ "²¹

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At the trial’s end, when the jury filed in to announce its verdict (it cleared the seven of the conspiracy count, but found five guilty of making riot-inciting speeches) and the judge ordered the courtroom cleared, Abbie’s wife Anita shouted to the defendants, “You will be avenged,” and at Judge Hoffman, “We’ll dance on your grave, Julie.”²²²³

Convicted on Wednesday, the five were sentenced on Friday by Judge Hoffman. Each received a five-year sentence for crossing state lines with intent to incite a riot by inflammatory speeches during the 1968 Democratic national convention. But the real drama of the day came, wrote Lukas at the time, when each defendant rose to speak his final words, each giving vent to his personal style: “Mr. Davis, restrained but bitter; Mr. [Tom] Hayden [Irish, by the way], analytic and often cynical; Abbie Hoffman, theatrical and heavily ethnic; Mr. Rubin, flamboyant but bluntly angry.”²⁴ Abbie Hoffman, huddled in a blue and green ski sweater, told Judge Hoffman: “Jail is not a nice place for a Jewish boy with a good education to be…. Tonight, after you sentence us, the gods are going to play Goliath and shave our heads. It’s a technique perfected by the Nazis. They’ve waited [until sentencing] so we’d look nice.”²⁵ According to the account in the Times, Abbie also told “Julie”: “Well, I am an enemy of America spelled with a ‘K.’ We are outlaws in our own country. The government says I’m unpatriotic. I suppose I am. But the government says I’m un-American and I know I’m not un-American.” As he sat down, Abbie, who had reserved his parting shot for the ethnic Judge Hoffman, “waved at the judge and cried: ’See you in Florida, Julie” Judge Hoffman," Lukas appends," is scheduled to leave for a Florida vacation later this month.“²⁶ No account of the last day in court, except that of the three authors in RAT (see note I) reports the decisive declaration of Abbie Hoffman’s final statement:”When decorum is repression, the only dignity that free men have is to speak out."

The trial of the Chicago Seven was ended, and suddenly, it seemed, the whole world was talking about etiquette and decorum and the way Judge Hoffman used his contempt power to punish the defendants for Violating the proprieties of his courtroom. Anthony Prisendorf, describ-ing courtroom decorum as a “loosely defined code of etiquette,” traces the contempt power to pre-Magna Carta days, when the king’s surrogates who presided at trials commanded the same degree of deference for themselves as that given the king himself; thus, to defy a court’s power was to express contempt for the sovereign’s authority.²⁷ Convinced that the punitively severe contempt citations would be vacated on appeal, most commentators speculated on the personalities of the parties in-volved, carefully avoiding mention of the particularistic intramural Jew-ish infighting the trial revealed.²⁸

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The New York Post’s Max Lerner, for example, observed that Judge Hoffman proved “human, all-too-human, thin-skinned, vain, vulnerable” under fire from the “resourceful” defendants and their lawyers, who “reached him in the soft underbelly of his self-esteem” and caused him to overreact vindictively.²⁹ M. W. Newman in the same publication described the Seven’s lawyer, William M. Kunstler, as “a ‘touch’ type of person, always embracing someone or impulsively throwing his arm around a companion.”³⁰ A letter from Irving Howe in the Times chided both sides for misbehavior: if Judge Hoffman had “behaved with fair-ness and restraint,” defendant Hoffman and his brethren might have perforce “modulated their conduct.”³¹³² Newsweek, indulging in some comparative behavioristics of its own, noted that, unlike the Chicago riot-conspiracy trial, the earlier draft-law conspiracy trial against Dr. Benjamin Spock, the Reverend William Sloane Coffin, et al. had been “a model of deocrum.”³³ The same issue of Newsweék wondered, in another piece, whether the trial system itself might have to be modified to cope with defendants and lawyers “who refuse. to observe its fragile rules of decorum.”³⁴ Time magazine observed that the defendants had “irked Hoffman by calling him ‘Julie’” and revealed that defendant Rennie Davis had kept whispering to Assistant Prosecutor Richard Schultz while the latter was examining a witness, “You dirty fascist Jew!”³⁵ Two pages later Time speaks of the “impossible behavior” of the Chicago Seven and reminds them that “decorum can work in a de-fendant’s favor by preventing unruly behavior that might prejudice the jury against him.”³⁶ The same Time story also passes along attorney Kunstler’s explanation that, for political cases, he has had to develop “a certain aggressiveness” even though it may run “counter to the rules the system has devised.”³⁷" When, a short time after sentencing, Judge Hoffman denied bail to the Chicago defendants pending appeal, the New York Times editorialized that he had thus continued to act “as a man engaged in a personal vendetta” and found it fortunate that the case would now speedily move into “more objectively judicious hands.”³⁸

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Clearly, people were, at this point, very confused. For the first time people were openly wondering whether the right to a fair trial might not always have presupposed the duty of deferential behavior—though nobody explicitly realized it until then. But if a functional prerequisite to the jury system is a normative “good behavior” system, is not that to legislate good behavior? Are not manners a social class affair? Have we eliminated other qualifications for voting and receiving a fair trial— property qualifications, religious qualifications, sex qualifications, resi-dence, even literacy as a qualification—only to legislate good manners as an eligibility criterion for our right to exercise the rights listed in the Bill of Rights? Are the political rights of the citoyen to be enjoyed only by the bourgeois and not by the unruly underclass and the socially anomic? “Are we outlaws and guilty,” the Chicago Seven were asking America and its legal system, “or are we merely outrageous and offen-sive?” When Vice-President Spiro Agnew in a 1970 speech in Saint Paul, Minnesota denounced the Chicago Seven for being, not “guilty as charged,” but for being “anarchists and social misfits,” he merely codi-fied in flamboyant form the confusion and anger of all parties.

The New York Times in its editorial on the Chicago trial remained true ’to the old Ochsian Reform decorum when it contrasted the trial itself to the jury’s verdict as follows: if the trial was “flamboyant,” the jury’s verdict stood as “a quiet justification” of the jury system (my emphasis).³⁹ Nat Hentoff wondered why political activists who were being Cin his view) so obviously tried for their political acts and beliefs “should be expected to remain respectful” in such a courtroom. Hentoff chides Mayor John Lindsay of New York for saying that “there’s no civil right to be uncivil” and asks: “Is civility an absolute value, to be adhered to at whatever cost to the”sense of personal legitimacy each of these defendants so clearly pos-’Sesses?“⁴⁰ ’Hentoff goes on to predict that in political trials to come there will be more defendants”who will not be civil and who will thereby offend those who value appearances—especially the appearance that “Justice is being done even when those put off by a style not their own know differently”⁴¹ (my emphasis).

One such trial, in fact, was already in progress in New York as Hentoff wrote these words (in February 1970), and, indeed, the de--fendants’ courtroom demeanor was offending those who value appear-ances. This was the pretrial hearings of the “Panther Thirteen” being theld before U.S. district court Judge John J. Murtagh. Charged with a ‘conspiracy to plant bombs in public places, they were now shouting in’@ public place: the courtroom at 100 Centre Street. The interruptions, contumely, and general indecorum reached such a point that on February 25 Judge Murtagh adjourned the hearings indefinitely, informing the wyers of the Black Panther defendants that the hearings would remain in recess until he received, in writing, signed promises from all thirteen ’defendants that they would “conduct themselves in accordance with tra-’Mitional courtroom decorum.” The Panthers in turn refused, challenging Murtagh’s right even to demand such behavior as a precondition for resuming trial, but then lost a habeas corpus action to make their point.⁴²

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Murtagh’s action was without precedent. His decision, his opponents argued, violated the Fifth Amendment, since by promising to behave in the future the defendants would be incriminating themselves. The strongest objection was that his action made the defendants’ constitu-tional right to a fair and speedy trial conditional. As a way out of the impasse the prosecutor in the case, Manhattan District Attorney Frank Hogan, proposed to use closed circuit TV to get the hearings going again: the defendants in a room adjacent to the courtroom would follow the proceedings of their own trial, conferring with their lawyer over an inter-com. Defense lawyers contested the prosecution proposal on three grounds, arguing that (1) it would deprive the defendants of the right to confront their accusers, (2) it would prejudice the jury against them, and (3) it would deprive them of the close-hand contact with their lawyers required by law.⁴³

Jane Alpert (later herself to be tried on a bombing charge⁴⁴), cover-ing the Panther Thirteen trial for the underground newspaper RAT, reported that the Panthers “carry on loud conversations in open court” and contended that they had already won some significant legal points by “simply demanding them loudly enough.” #4 She agreed with the Pan-thers that “there is no justice for black people in white men’s courts” and, rehabilitating an old saying of Jews about Gentiles, wrote: “Scratch a white liberal and find a racist.” Greil Marcus, identifying politics with activism, wrote that to really “act on” the American freedoms embodied in the Bill of Rights (free speech and assembly, due process, privacy ) in a political context is to run into the political culture of the self-righteous “silent majority” and its distaste for and distrust of politics. Vote and keep quiet: “Other sorts of political behavior are anti-social.”⁴⁵ Once more, as in Agnew’s “social misfit” charge, the relation of political behavior and social behavior are at the center of contention: is behavior that is actively propolitical ipso facto antisocial?

Debate raged for weeks on Judge Murtagh’s controversial ruling. Is the Sixth Amendment right (of physical confrontation with one’s accuser) a right of physical copresence? Does a defendant in a criminal pro-ceeding have the unqualified right to be personally present at all stages of his trial? What exactly is the constitutional status of a written “pledge of good behavior”?⁴⁶ Each pundit fit the controversy into his own frame-work. Anarchist Paul Goodman saw the content of the shouted demands —“Constitutional Rights!,” “Power to the People!,” “Socialism!’—as irrelevant to their meaning, namely, a”response of life in over-structured and dehumanized institutions; it is not aimed at the courts as such but at all authority."⁴⁷

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Few cared to entertain the possibility that the provo tactics were exposés, experimenting probes aimed at demonstrating that every civil right has, as hidden proviso, a bourgeois rite, and that all civil rights are alienable with the nonperformance of civic rites. It is as though it had taken 150 years to isolate and surface the ultimate—and sole in-defeasible—eligibility qualification assumed in the Constitution of the United States: you have to be nice. This had never been fully realized till our time. Obvious things must become odd before people notice them. In our time, with everyday normative expectation-systems under attack, it was only a matter of time before the critique of behavior as behavior, of the West’s social appearances, would get under way. Much had to happen before incongruity procedures could be introduced pro-grammatically into this dimension of the ordinary.⁴⁸ The New York Times quotes Harry Kalvin of the Chicago Law School: “We’re a little puzzled now as to why defendants behaved so well in the past.”⁴⁹

About the time the Black Panther lawyers were challenging the constitutionality of Judge Murtagh’s ruling, it became known that the Supreme Court was soon to rule on a case in which a Chicago judge had ordered an uncontrollably unruly defendant from the courtroom and went on with the trial, contending that the defendant had waived his right to be present. The trial judge had been upheld by the Supreme Court of the State of Hlinois, and later by a federal district court that had considered Allen’s petition for habeas corpus. This decision was in turn reversed by the federal court of appeals, which ruled that the Sixth Amendment’s guarantee of an accused’s right of confrontation with his accusers is an absolute right that cannot be infringed. By agreeing to review the case, the Supreme Court had joined the issue. Many expected the court to rule that such an absolute right cannot be waived. (Justice Hugo Black, for example, had a well-earned reputation as a Bill of Rights absolutist.)

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On March 8, 1970, while the Court’s decision was being awaited, Judge Irving R. Kaufman told a Fordham Law School Alumni Association gathering that the courtroom conduct of the Chicago Seven and the New York Thirteen threatened to become a “major epidemic” and could obliterate both fair trials and the judicial system itself. He called for its legal rejection, before other defendants respond to the siren call, believing that “absence of manners and disruptive conduct are effective trial tactics. Have defendants who place the trial on trial,” he asked, “forgotten the lessons of history?… What would they substitute for our public trial conducted by adversaries and circumscribed by rules of evidence, rules of orderliness, courtesy and dignity? Would they honestly prefer the violence of an ordeal by combat or the spectacle of a Roman circus?”⁵⁰ For the first time, appellate judges were speaking of a trial’s public, adversary character and its rules of evidence in the same breath, in the same sentence, with “its rules of orderliness, courtesy and dignity.” Would Supreme Court judges do the same?

Finally on March 31, in a landmark opinion written, ironically, by Justice Hugo L. Black, the Supreme Court ruled on unruliness by unan-imously reversing the court of appeals’ ruling in the Allen case. Black’s opening argument reads: “It is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country. The flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated”⁵¹ (my emphasis). In this, what may be called the “Decorum Decision” (in the “Good Behavior case”), Black listed three “remedies” available to a trial judge in handling an obstreperous defendant: (1) bind and gag him, (2) cite him for contempt, and/or (3) remove him “until he promises to conduct himself properly.” (With this last, the Supreme Court had put its stamp on Judge Murtagh’s method.) Black then considers the pros and cons of each “remedy” for courtroom indecorum. The first technique is itself something of an “affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold.” Citing or threatening to cite for contempt is approved. And, finally, removal is justified: “We hold that Allen lost his right guaranteed by the sixth and fourteenth Amendments to be present throughout his trial.” Our courts cannot be permitted, Black wrote, to be “bullied, insulted, and humiliated and their orderly prog-ress thwarted…. The record shows that the Illinois trial judge con-ducted himself with that dignity, decorum and patience that befits a judge. Deplorable as it is to remove a man from his own trial, even for a short time, we hold that the judge did not commit legal error in doing what he did. The judgment of the Court of Appeals is reversed.”⁵²

Legal rights, then, are not absolute but relative to social rites of decorum; one can forfeit the former by nonperformance of the latter. At last the West had taken up a certain type of social behavior⁵³ and had built it into the legal system as its essential precondition. If, then, legal rights are not an absolute, what of social decorum in public places? To Nat Hentoff’s question, "Is civility an absolute value, to be

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adhered to at whatever cost?"⁵⁴ the Supreme Court seems to have re-plied with a decisive yes. How odd that civility and its rites should turn out to be an absolute value and legality and its rights a relative one The Supreme Court was putting America on notice that the political culture of civility—the civic culture—was a functional prerequisite to the working of its democratic infrastructures.

The next day a New York Times editorial went to the heart (for a change) of a Supreme Court decision. In “Order in the Court,” it noted that while the Supreme Court decision obviously could not insure de-corum in every court, the decision has made clear that the constitutional right to a fair trial “is contingent on respect for those procedures with-out which a fair trial is impossible [and] that the rights of a citizen cannot be separated from the duties of citizenship”⁵⁵ (my emphasis). In other words, the Supreme Court had “put the burden on the de-fendant … to ‘respect elementary standards of proper conduct’ in the courtroom or to forfeit his right” to be present at his own trial.⁵⁶ These “elementary standards of proper conduct” constitute our Anglo-American “civility” or the “elementary forms of our religious life,” the precon-tractual community values that are ex officio party to all the “social contracts” performed in the Gesellschaft. We are, the Supreme Court was saying in effect, a societal community. The solidarity sui generis to our kind of society is (paradoxically) a solidarity of the surface. The Supreme Court had taken bourgeois behavior up into the Constitution, reinstitutionalizing it as a Bill of Rites.

It is against the background of this Supreme Court decision that New York and New Haven Black Panther trials resumed, and exactly three weeks after its decision a headline in the Times (referred to earlier) reads: “Seale Vows Decorum.” Presumably, Bobby Seale’s vow was per-formed with tongue in cheek. Clearly, his codefendant David Hilliard’s apology was so, for we read in an accompanying story from New Haven that the latter told a rally of Yale students that, by means of the apology that released him from his six-month sentence for scuffing with a deputy sheriff in court, he had been “crafty enough to outwit the sys-tem.”⁵⁷ As a later account quoted him, he said that his apology to Connecticut Superior Court Judge Harold M. Mulvey “was necessary because we’re crafty enough to outwit the stupid people who are trying to oppress black people.”⁵⁸ But Seale’s and Hilliard’s craftiness have not outwitted the system," because the system (at its limits, anyway) exacts only appearances; we are required not to respect, but to show respect. What motivates us to show respect is our own business. We are not required to like the law or even to believe in it; only to observe it. To observe it out of fear or even out of contempt may not be the best thing; nevertheless, even the delights of Schadenfreude belong to the private sector and are numbered among the things that are not Caesar’s.

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In America the classic Western “solution” to the modernization problem—the excruciating bifurcation of life into public and private spheres, of the self into “behavior” and “experience”—approaches full institutionalization. The decisive differentiations issue from the early debate of New England Puritanism with itself. In the famous “Half-Way” Synod of 1662, when Congregationalism passed from religious utopia to a legalized societal community, Perry Miller writes, “religion was practically confined to the inner consciousness of the individual…. The churches were pledged, in effect, not to pry into the genuineness of any religious emotions, but to be altogether satisfied with decorous semblances.”⁵⁹ So too with Anglo-Saxon common law; its development reinforced the bourgeois modern differentiation of private from public, inner from outer, thus completing the destruction of “tribal wholeness” of the earlier Gemeinschaft. “The ultimate task which Holmes the jurist set Holmes the historian,” writes Mark A. DeWolfe Howe, “was to follow the evolution of common law doctrine toward its destined goal of externality.”⁶⁰ Visible saints evolve, by the Decorum Decision, into decent and decorous citizens.