Riot ‘68

Attempting to Overthrow the Democratic Convention

When the youngest boy that we had taken in as a teen came running into the bedroom to shout that they were attacking the capital on January 6, 2021 and I turned on my computer; my mind began to flashback to my only combat experience–not in Viet Nam, but on the streets of Chicago in August of 1968.  For anyone living through that year as a young adult it was a formative year.  Hell, it was a formative year for older people that I was working with.  It set the stage for Richard Nixon and the future descent of America that the post-war economic stability had created that had permitted the growing acceptance of civil rights—not just for blacks citizens, but the growing movements towards seeking out all kinds of rights presumed as penumbras of “privacy’ rights guaranteed by anchorages in the third, fourth, ninth, and fourteenth amendments.  

These penumbras probably began to be fully expressed in 1962 in Griswold v. Connecticut that overturned the prior year’s decision in Poe v. Ullmann.  In Poe, even Felix Frankfurter seemed to feel the Connecticut statute against birth control, in his majority decision, was not really a good law, or as he says a “silly law” but the case was rejected for lacking standing because the plaintiffs had themselves had not been directly affected (arrested) by the law.  They therefore denied the case for lack of standing.  A clinic was then set up by Estelle Griswold of the Connecticut Planned Parenthood to give out contraceptives to married couples; Griswold and gynecologist Lee Buxton were promptly arrested and now the case had the standing to be returned to the court.  An overwhelming 7-2 established the right of privacy as not a right that anyone has under the constitution itself, but penumbras of implied rights that the other amendments to the constitution give.  

The right of privacy, per se, had never been a constitutionally protected or a legally accepted standard in common law, but in the latter part of the 19th  century in both England and America the legal theory began to be proposed.  The right of privacy, as it came to be known, was very much tied to the fourth amendment in its initial stages. The common law (that was adapted into our fourth) in England had, for several centuries before the American revolution, featured the concept that authorities could not simply invade a person’s home to find evidence against a person, and the “search warrant” became necessary before it could be legally done.  But even though this protection  was recognized in common law for several hundred years, it was not until 1914 when a unanimous court in  Weeks v. U.S. developed the exclusionary rule that such evidence was excluded from being used against a defendant.  So even though the principal that a warrant was necessary before a search was done, prior to Weeks if a warrant (legally necessary) was not utilized in a search, the evidence could nevertheless be presented in trial as evidence, even if it had been illegally obtained. (The police or officials who had done the illegal search could be criminally or, more commonly, civilly, responsible for their illegal activity, but the evidence thus obtained , was not excluded.  Weeks, in some sense, was the most important fourth amendment case to ever be decided in America, and that decision would transfer itself back to the English common law.  But Weeks was really  important in another sense in that it began 20th jurisprudence that began to use the incorporation theory that the first Justice Harlan had been strenuously arguing for in a long string of often solo descents for nearly the entirety of his forty years on the court–that the bill of rights were incorporated by the fourteenth to protect the individual from the state—not the state from the federal government.  By finally, and unanimously, establishing incorporation into the interpretation of the common constitutional interpretation opened the door to what would become interpreting the rights established under the bill of rights  and the rights presented in the fourteenth amendment itself began the first interpretations of the penumbras of the enhanced, or implied meanings, or extending by implication the meanings of those freedoms from government control established in the constitutional amendments.

If we now fast forward to 1928, Chief Justice William Howard Taft, held in Olmstead v. U.S. that indeed Weeks was the most important constitutional decision in regards to the fourth amendment that had been decided, but somehow wire tapping telephone conversations was not applicable because essentially no violations of “search” of the individual was being done by government listening into “public” conversations done on the telephone.  Now many don’t realize that the precedent set in Olmstead survived for almost forty years until Katz v. U.S. overturned Olmstead and stated  that the fourth amendment applied “"to certain areas or to tangible objects" beyond basic police searches of a suspect's home.  But perhaps, just as Justice Harlan’s nineteenth century dissents led to the twentieth century reinterpretation of jurisprudence through the incorporation of the freedoms that restrained government overreach into the lives of the individual, Justice Louis Brandeis dissent in Olmstead  is one of the most relevant even to our contemporary times, and both Congress and the courts should take note,and should not be so slow to incorporate what Brandeis suggested ninety-five years ago.  Brandeis attacked the proposition that expanding the Fourth Amendment to include protection of telephone conversations was inappropriate. At the time of the adoption of the Fourth and Fifth Amendments, he wrote, “force and violence” were the only means by which the government could compel self-incrimination.However, with ongoing technological advances, the government had gained the ability to invade privacy in more subtle ways; furthermore, there is no reason to think that the rate of such technological advances will slow down. Brandeis argued that the mail is a public service furnished by the government, and the telephone is "a public service furnished by its authority." He concluded that there is no difference between a private telephone conversation and a sealed letter. In fact, "the evil incident to invasion of the privacy of the telephone is far greater than that involved in tampering with the mails." Brandeis concluded that the convictions against Olmstead and the others should be reversed due to the use of inadmissible evidence,because the government had “obviously invaded the privacy of the defendants.”There it is.  Probably (to my knowledge at least) the first declaration in jurisprudence that the penumbra of the fourth amendment implicitly implied a right of privacy.   

 So when Justice Douglas wrote in Griswold that the 4th amendment specifically implied a right of marital privacy that could also be seen in the penumbras of the first and fifth, and concurrences saw similar penumbras in the ninth and the fourteenth guaranteeing certain freedoms that must be implied within the amendments.  Essentially Griswold overturned substantive due process (which Rehnquist and then Scalia have led the charge to reinstate) as the method of understanding due process  Due process, from the substantive position can have no penumbras of interpretation that extend beyond the literal statements of freedoms guaranteed in the amendments.  But if they can not include penumbras, then the interpretations limit themselves into meaninglessness; they become linguistic games  that defer any inferences that must be necessary for any possible understanding of the freedoms guaranteed.  If the 4th amendment only relates to the government directly entering into a home as Brandeis stated in Olmstead, then freedom of tomorrow is always the freedom of yesterday, nor can it ever apply to today, as common law must be able to be interpreted to even remain common and not civil law.  One of the problems of the common law of the United States is that the substantive interpretation in any literal framing of the constitution creates a defect in common interpretation of jurisprudence to civil interpretation the constitution or legislative statutes can be deferred by substantiation of the processes due to the common interpretation.

It is my contention that 1968 ended the march towards a penumbric interpretation that twenty years of economic  stability had made progressivity judiciality increasingly possible.  Instability creates a desire for stability and that desire creates a movement towards substantiating some reign of authority over the interpretation of law.  In 1968, I witnessed first hand the instability that occurred, first by being present in the midst of one of the riots that occurred in (Eastern) St. Louis the late night and early morning following King’s assassination.  Then only two months later, the killing of Bobby (Robert Kennedy) right after he had popularly won the delegates to be the presumptive democratic nominee increased the instability in the society by throwing the democratic nominee into contention once again.

Hubert Humphrey, the establishment candidate,  had been a leading voice for the progressive expansions of the freedoms of the amendments,from a legislative perspective, to be interpreted through the extended penumbras of those guarantees of freedom.  He had been a champion of labor and a champion of the expansion of civil rights, and when Lyndon Johnson ran for reelection in 1964,the obvious choice of Lyndon Johnson’s movement towards legislating those expanded conservations of freedoms the courts had been moving towards for most of the last fifty years.  Johnson won overwhelmingly because stability in the economy had created a receptive audience for interpreting the freedoms guaranteed by the amendments to the constitution to grant the penumbras necessary for giving more freedoms to more people. Of course in the southern states of Jim Crow there was much less economic stability, and therefore much less acceptance of any challenges to Jim Crow.. It was not just all white folks were simply racist, but that economic activity towards even accepting poorer whites into any economic equalization. 

But those same methods of interpretation began to create a backlash against the Vietnamese intervention that some thought should guarantee  the same freedoms to apply to VietNam.  Johnson did not quite see it that way because in the 60’s there was still a strong sense of a”communist” threat to the stability that had developed in post-war America after the second world war.  Anti-communism became a central (although continuing) theme just as the threat of communism as a destabilizing factor lost most of its potentiality.  The very stabilizing of the American economy, by granting first freedoms to the laborers, and then to other civil groups, made the option of communism much less unappealing.  But as communism was losing most of its appeal to American labor, the movement against the stabilized economy embraced anti-communism as its prime mechanism to destabilize the stabilized economy. The politicians most in favor of expanding the freedoms to all Americans and belief that in so doing would enable the maintenance of the stability far into the future by guaranteeing admission of the freedoms to an ever-expanding audience in the nation were quite aware that the biggest destabilizing efforts in America were being led by the anti-communism movement.  For some perverse reasoning that they made, these same leaders thought the best way to unravel the anti-communist movement in America was to embrace a preventive challenge to disallow  communism from expanding itself abroad.  The ultimate effects of embracing the “cold war” that was meant to defeat the destabilization efforts by those threatening the new progression of freedoms within American became totally challenged by opposition to the war in VietNam.  Because many Americans began to insist the very new interpretations of freedoms that had created the stabilization of the American life for more people were now challenging the war as inapplicable to the very freedoms they were now assuming should be applicable beyond American shores—to the people of VietNam.  

The anti-war movement enabled the anti-communist movement to refocus their attack on expanded interpretations of freedom back to the movements themselves that were enabling those expanded movements back to their prime objection of limiting  those freedoms to the laborers and black citizens.  By 1967 the unrest created by the VietNam protestors had led to a destabilization that gave an increasing foothold to those that did not favor the expansion of civil freedoms to black Americans and to the laboring classes that had also led to increasing American opportunity and leading more Americans to either becoming white collar; or entering college to become white collar.  And those becoming white collar found themselves in a more troubling necessity to refute the very opportunities that had allowed them to move from a rather stabilized laboring force into a very fluctuating and over-saturated white collar market that the new entrants found critically unstable because there were now more entrants than needs for entrants that many of the balances created by unionism were finding themselves in positions where they had to bend to the will “of the leader” to maintain there new positions by sacrificing their own “rights” leading to their unenthusiastic support of the very opportunities that had benefited them.   

And Hubert Humphrey, as part of Johnson’s “war establishment” effort became more associated with that war-establishment than his long career towards favoring the expansion of those freedoms.

The principal opponent to Humphey was Eugene McCarthy.  McCarthy, like Humphrey was from Minnesota,but though a democrat, in a state where republicans seldom won, he would have been in opposition to the Humphrey labor wing of the democratic party.  If there was ever a “neo-liberal” before neo-liberal was a terminology, it would have been future Reagan stalwart supporter Eugene McCarthy.  As an economist he was one of the first to be enamored by Rand, and while Ronald Reagan was leading a union, MCarthy began suggesting a form of trickle-down economics that he suggested would create even greater economic stability, because if unions could see the benefit in allowing greater “profits to business, labor would benefit by being granted increased wage power. And he was elected to congress on this platform in 1948, a year after Taft-Hartley had been passed , one might see the appeal of Reaganomics to the voter long before it became a “general thing.”  The irony is that MCarthy had been an early proponent of the cold war democratic effort to defeat the anti-communism movement within.  Perhaps he sensed that the war in VietNam had turned the tide and he began voicing opposition to the party, and his desire to be president (he would run four times) led him to embrace the opposition to Johnson’s war.  I might say it might have as well been a kick in the pants to his Minnesota opponent Hubert Humphry, and maybe to some extent it was, but when he declared he would run as an opposition war candidate in the 1968 New Hampshire primary , Johnson was his opponent, not Humphrey.  Johnson dropped out only after McCarthy almost upset him in the primary.  However, McCarthy got his comeuppance and lost badly to Humphrey in their home state primary..  Well our “educated” protestors saw McCarthy as their candidate in ‘68 simply because of his opposition to the war without seemingly knowing much about the arrogance and pro-economic destabilizing policies that he had long supported.  Or maybe they didn’t care.

The rest of us, the laborers, like myself, were more inclined to back our long-time champion, Hubert Humphrey.  I had heard about the call to disrupt the democratic convention in Chicago and to prevent it from nominating Humphrey who,after Bobby’s death had secured enough votes to clinch the nomination prior to its being held.  I did not go to Chicago to support that effort.  I had actually written a letter to the Chicago Tribune that they had published, arguing against the planned protests and outlining what I thought were the problems with McCarthy’s labor agenda that I outlined above. 

I went because it was less than an hour’s drive and because I wanted to be there and (hopefully) observe the protest’s failure.  But not by the manner in which it did fail.  I simply planned to heckle the protesters, or perhaps try to convince some of them that they were wrong to support McCarthy.  What I was not at all expecting was that Chicago had determined planned resistance to the protest, or to finding myself caught up in that planned resistance by the Chicago authorities.

While I had seen firsthand the resultant riot in St. Louis to Dr. King’s death, I had not witnessed the worst riot in America in its aftermath, which almost assuredly took place in Chicago that had  resulted in  more than 48 hours of rioting that left 11 Chicago citizens dead, 48  citizens wounded by police gunfire, 90 policemen injured, and 2,150 people arrested.  What I was unaware of was  that Chicago Mayor Daley had made plans  to defend the city in lieu of the horrendous riots after Dr. King’s assassination.  Daley had placed the 12,000 member Chicago police force on riot alert for the convention and placed all of them on twelve hour shifts.  He also obtained 6000 Illinois National Guard to be sent to the city as well as 6000 U.S. Army troops.  With an additional 5,000 National Guard on alert, bolstered by up to 1,000 FBI and military intelligence officers, and 1,000 Secret Service agents.  Nor was I aware that many of the local civil rights groups, like Operation Breadbasket had also agreed to not participate in the protests to be held during the convention. (Ralph Abernathy and other national civil rights groups did bring demonstrators.)

What I was also not aware of was the planned mobilization of the protest had begun as early as the fall of 1967 even before the primary in New Hampshire, and even before McCarthy had announced his candidacy, I believe.  Initially I suspect it was only to be a large demonstration against the war, outside the democratic convention.

I was in the crowd on Michigan Avenue on the evening of August 28 with a companion, and we had edged our way near the front line of protestors.  The noise was somewhat overwhelming so there was little opportunity to engage anyone in conversation.  And then it began.  I don’t recall that anyone threw rocks at the police line, but it could have occurred as the police would later declare.  I was aware that speeches were being made and suggestions were being offered to enter the International Amphitheater and prevent Humphrey’s nomination and that I was trying to shout out my protest to that suggestion.  I remember being pushed backwards by the protesters, and then tear gas being spread and feeling its effects.  I was reaching for my companion’s hand and trying to grasp her firmly.  If I had never very had very muscular arms, my wrists were strong and I usually felt I was able to control opponents simply by placing them within my grasp.  Of course my intention was not to control my companion, but to secure her, because standing somewhat over the crowd, I began to see protesters pushed into buildings, through glass doors and then being beaten after thrown into the buildings or upon the ground.  And I saw the first efforts of the police rush into the crowd and some of the film crews themselves being beaten with batons as they began their dispersal efforts. This began a movement to leave the frontline of the demonstration, and we found ourselves being pressed by the crowd that began moving in the opposite direction to the way we were facing.   No longer  feeling like my grip on my companion would be enough, I attempted to encircle her next to me,and then we were simply moved by the pressure of the crowd and now facing the other end of Michigan Avenue.  That movement caused her to stumble and I let go of her  but leaned down over where she had fallen placing my body, on hands and knees, over her to protect her from the crowd that was now rushing to flee.  I felt my sides being kicked, even people trying to step on me to get over us, and I shrank very near my prone companion but still trying to prevent my full weight from being on top of her. And then a whack upon my back that i didn’t exactly know its cause, but when I didn’t totally collapse, I was able to view two more strikes heading towards me from officers on both sides of me. One landed on my left cheek and the other on my neck, my vision was swirling, and while I didn’t see “stars”, the truth is all I did see was the swelling of my own lachrymations and nothing else as I now fell completely prone on my companion.  With some effort I placed my hands flat and used my wrists to lift the portion of my body below the shoulder  to be somewhat over hers.  My head remained on her face because I had no capacity to use any of the muscles from the neck upwards. I suppose we were thereafter passed by by both crowd and officialdom and remained lying there for some time, perhaps only 15 or so moments by which time the Battle of Michigan Avenue had apparently ended.  But at the time it seemed as if hours were passing, I was beginning to feel chilled and I suppose I must have began to shiver because my companion lifted her arms around me as if attempting to warm me.  

Our part of the battle ended when we were picked up, I mostly carried, she, I think handcuffed and directed to walk into a police wagon and taken to the police station.  I was sent to the hospital for a couple of days.  I suppose she wasn’t held in custody too long.  By the time I had arrived at the hospital I had fallen into a sleep, but when I awoke she was present in the hospital, sitting in a chair close to my bed.  She remained with me until I was able to be released and I took her to O’Hara to fly back to Georgia.  

But this is what went through my  mind when I began to watch the riots on January 6th and this is why, I suppose, the riots that occurred on January 6th are so unforgivable to me.  Of course, on January 6th, the situation was reversed, the police were the ones being overwhelmed by the rioters.  But no matter, both were intolerable attacks of force.  Neither should have occurred.  The demonstration in Chicago that brought people to Chicago for what happened should have taken into account what the end might be.  But had not the defense against the protesters been preplanned to overwhelm the protesters, the result of the protest could have been much the same had the convention been stormed as the protesters had (I think) intended.  That week in August of 1968 ended the progressive freedoms that the economic stability that strong unionism had established.  Yes, I know more court decisions would follow before they began to retreat, including Roe. Yes the woman’s movement wouldn’t peak for another decade, yes, gay rights were just getting started that year.  But the stability that had led to a populace favoring more inclusive rights had evaporated into a movement to oppress every freedom already granted or new ones desired, and to upend the stability that is needed for such inclusiveness to exist.  American began anew to fight against a small majority seeking a discipleship through delusions to campaign against the very freedoms that now felt they had become entitled to; but began to now oppose for others to become entitled.  Stability had created the opportunity for freedoms to become inclusively welcomed.  Instability led to those same freedoms being excluded from all inclusive possibilities.

And too many don’t quite realize, have not realized, that any denial to another is likewise a denial to self of the very freedoms sought. Freedoms are only possible as an inclusive opportunity that grants, rather than denies, the necessity that freedoms must always remain inclusive.