A Fireside Chat With A. E. Dick Howard ’61

A. E. Dick Howard
March 21, 2024

The Virginia Law Review hosts UVA Law professors A. E. Dick Howard '61 and Charles Barzun ’05 for a fireside chat detailing Howard's career.


INTERVIEWER: Jack just made very clear, if we tried to go through and talk about all of those things, we'd be here till next week. So what I thought we would do is just talk about some of the most sort of salient, and kind of highlights of Professor Howard's long and storied career. So we've had lunch many times and we often talk about lots of different subjects, so I'm going to go back to some of the subjects that we frequently go back to. So I want to begin with one. As I think I've told you before, one of my favorite moments in-- when I teach constitutional law, after I teach Griswold versus Connecticut and we read Justice Black's opinion, I say, and do you know who clerked for Justice Black?

And they all look at me and I say, Professor Howard. And their jaws kind of drop, because it's as if I said you clerked for John Marshall or someone from-- it's like a completely different era for them. So and that's true of these students here. This is a long time ago. So I wanted to-- so you clerked for Justice Black. What was that like? And what was he like?

DICK HOWARD: Well, first thanks to all of you for coming. I mean this is more history than it is current events. I didn't expect people here, so thank you for your patience. And someday you can tell your grandchildren, you heard from someone who in turn was at the Warren Court. And they'll say was that the Marshall Court or what was it? But let me take you into Justice Black's chambers this way, because I had the good fortune when I applied for a clerkship-- this is back in the days of the law school didn't really have a culture of clerkships, which of course we now do-- and I applied as one did in those days to all nine Justices, and was lucky enough to get Hugo Black's appointment.

And between the time that I was given the job, and the time I reported for duty, Felix Frankfurter had a stroke, left the court. Arthur Goldberg took his place. And that seat on the court went from the field Marshall of the conservative ranks to one of the most liberal Justices of the Warren era. And it also meant tipping the balance on the court itself. So here's Hugo Black who for 25 years had been in dissent-- some notable dissents-- suddenly he's in the majority. He's in the catbird seat. And because of his close relationship with Earl Warren, he actually could pretty much pick and choose which cases he wanted to work on.

So you can imagine what an ebullient mood he was in after all those years fighting on the losing side, suddenly he's helping make the law of the land. So and that you can imagine what it was like to be at the elbow of a man at that point in history. On the personal side, he was one of the warmest, most personable nicest people you'll ever meet. I mean he had toughness. He'd been in politics, and he knew how to struggle and how to do fights. But in terms of the relationships within the chambers between him and his other colleagues, and also between Black and his clerks, he couldn't have been warmer.

And I had a taste of what it was going to be like the first day I reported for duty. I went into his chambers, and he would sit on a chair sort of like this and rocked back and forth. And then we got settled and he pointed at me and he said, "Dick when you're working on opinions in these chambers, I want you to write not in the language of Oxford." I'd been back from Oxford and I probably thought he was lucky to have a very scholar in his chambers. People of my age at that time could get a little puffed up. Anyway, he said, I probably thought I was a real find on his part.

So he said, I don't want you to write in the language of Oxford, write in the language of your country forebears. I mean I was born in Richmond but my people before that had been on the land. And what he was telling me was, work on drafts in a way that have accessibility that can be read and understood. I think that's still true when you take con law and you have a Black opinion, it's in clear and cogent language compared to some of the other writing you get from the high bench.

So what I found him to be was totally unpretentious, feet on the ground, wonderful to his clerks. He was a great mentor. Spent a lot of time with us. And as I say, this was all buoyed along by the fact that we were on the winning side of so many big cases. Now, the Warren Court technically starts in 1953 to the end of the '60s until '69. But the Warren Court really comes to life in 1962. And the chances of fate had put me there at Black's elbow and precisely at that time. I actually stayed two years with him. I'm not aware that he had ever asked anybody for a second year. And naturally I thought that was a compliment.

My more cynical co-clerk said, oh, well, he thinks maybe by the time you stay around for a second year that he might get his money's worth. But there I was for two years, Warren Court was remaking the law of the land. One person, one vote, reform of criminal justice, the selective incorporation of the Bill of Rights, the beginning of privacy and the grizzled case and so forth. So we were really churning them out.

INTERVIEWER: Were there cases-- or any of those cases that you work on, did you work on any of the big cases?

DICK HOWARD: Yes. The Prince Edward County case for example. Some of the others-- I mean, so it was as you all from your study of constitutional law, just an amazing time to be there. So there I was, and so working very closely with Black. Just not only watching the law being reshaped, but working with one of the true giants of the Supreme Court's history.

INTERVIEWER: That's amazing. Wasn't he somewhat self-taught or didn't he read a lot to teach himself the law of anything else?

DICK HOWARD: That's a wonderful question. Black, Alabama, he went to law school back in the days when you didn't have to go to college. You just studied law. And so he was in Alabama politics. He was probably the leading trial lawyer in Alabama at that time. Was elected to the US Senate. He arrives in Washington, and then he's surrounded by these other senators who'd gone to Yale and Harvard and all the great universities. He had not. So he thought to himself-- ill prepared in a sense. So he set out to read what we would call the great books, Thucydides and Polybius and the later classics like Gibbon and Carlyle, all the books.

The books you're supposed to read but you never get around to it. You know the books I'm talking about. So he was really in that sense self-taught. And then what happened, he started lending me these books. Well, I didn't mind that until I discovered he expected me to read these books and have conversation. I was going to stick them in the trunk of the car and go off to the beach and not worry about it but I was wrong. So we would work on weekends in his house in Old Town Alexandria. He had this amazing library surrounded by the great books of history.

And we'd take a break, and I would pull some of these books off the wall, open them up and you'd find them heavily annotated in the margins. There was kind of a conversation between Hugo Black and these great authors of history. And he would write things like, nonsense or rubbish or just plain, no, exclamation mark. I mean you could see an actual conversation going on. So I read something-- I never read Polybius for example, there I was.

But what I finally decided reading those books was that Justice Black was the last person on the US-- last Justice on the US Supreme Court who read the same books that the founders wrote. That's the kind of education you had in the late 18th early 19th century. And if you read Black's opinions, there's a love for the Constitution, and for its history and its founding principles that I think is peculiar to the modern court. Which by the way gave him an advantage over his colleagues who were not-- as it turned out-- as well read as he was.

INTERVIEWER: Yeah, I can see why not. And you worked on Gideon versus Wainwright is that right? Was that the--

DICK HOWARD: I did indeed. I mean all of you-- is there any other case other than Marbury versus Madison which will forever be in the casebooks? I mean they come and they go, don't they? But Gideon will always be there, both for what it held itself-- the right of counsel. And cases, felony cases where you're not able to afford a lawyer-- but also because it's the sort of lodestar of that line of cases in the '60s in which the Warren Court won amendment at a time did selective incorporation.

I mean Black never-- he never sold four other colleagues on wholesale incorporation. That never happened but he kept winning so many battles, he basically won the war. In that so Gideon I think stands as the-- also there's an intersection of the equal protection and due process in that case, so a very creative use of the Constitution.

INTERVIEWER: Oh that's interesting. OK, so then after clerking, you come to teach here. And I want to get to teaching and teaching constitutional law. But one of the most interesting things about your career is that you then fairly quickly got somehow roped in-- I mean it's what Jack mentioned-- into the Virginia was ratifying the Constitution and they came to Charlottesville to look for you. How did that--

DICK HOWARD: That was interesting. The governor Mills Godwin-- this is one of the great mysteries of Virginia history. It's a bit of an enigma, in that Mills Godwin as a state senator had been one of the architects of massive resistance back in the bad old days before just after Brown versus Board. He morphed in a way into being a progressive governor. And he asked the assembly for authority to appoint a commission on constitutional revision to rewrite the Virginia Constitution. The 1902 Constitution was just laden with racism. It was a white supremacy constitution.

The time was right for a rewrite. So he appointed a commission made up of an extraordinary group of people. Lewis Powell who later sat on the US Supreme Court, Hardy Dillard, later sat on the World Court at the Hague, Oliver Hill who was the Thurgood Marshall of Virginia, the leading civil rights attorney of the Brown period, and a number of others. Colgate Darden, former UVA president, former governor. And so-- Yes, Darden, right. Here comes the Darden School named for Colgate Darden. Exactly. So if there's been a blue ribbon commission, this was the one. It was also bipartisan. There was a former candidate for governor on the Commission, Ted Dalton.

So anyway, here are the heavyweights. Fine, they've all got full-time jobs. They're all busy. They can't sit down and do all the drafting, so they need a draftsman. And I was the kid on the block. I had just joined the faculty, it was only a couple of years into teaching. It may have been Hardy Dillard's idea, because Hardy was dean of the law school. He was dean of the law school. I had been one of his students, so he probably said, have known here, I have the fear, I have the right man for you. I don't the backstory of this but all I know is they came to me and they said, we need an executive director, basically a draftsman.

Well, you know how young professors are. You're taught by them. They can do anything. Write a constitution, piece of cake. I mean, you want to write a constitution, I can do that. Well, what was I thinking? That it was like writing a will or a deed and you just go to the form book and just copy out, we the people of, fill in the blank. So I mean, I was convinced in my-- I said, sure I can do that for you. Well, what I didn't tell them at the time-- and indeed not even later-- I had never read the old Virginia Constitution.

I didn't know what was in it. I didn't know beans about state constitutions. If any of my professors talked about a state constitution, I don't remember it. Maybe I skipped class or nodded or something, but I don't recall it. The world of state constitutions was unknown to me. But I said, sure I can do that. So they hired me. And boy, did I learn a lot in that process as you can imagine.

INTERVIEWER: So what were the big issues? You had to get rid of the White supremacy, besides that, or was that the big issue?

DICK HOWARD: I think the single biggest issue was education, because we had segregated schools of course. We had--

INTERVIEWER: So this is what year now we're talking?

DICK HOWARD: This is 1968. If you ever have a chance in the law library, pull out the volume of debates of the 1902 Constitution. You will not be surprised-- but you'll be shocked anyway-- by the White supremacy, the Anglo-Saxons. There's no place in Virginia for Blacks as part of the political process. They belong on the plantation. I mean this terrible stuff. And by the way, one out of three of the members of the 1902 convention had studied law at UVA. Think about that for a leg-- anyway that was the constitution that we had to junk, and write basically a new Constitution.

So centerpiece was education. Prince Edward County among other places had just closed their schools. That by the way among Hugo Black's cases, I was at his elbow, helped him write the case that ordered Prince Edward County to reopen and fund their schools. It was actually the first Supreme Court case with an affirmative decree. Not what the states could not do, but what they must do. That was a real watershed when you think about it. So that anyway, the state Constitution had to be rewritten to put the age of closed schools and segregation behind us.

And so I think the education article is the most important one because it decrees that the General Assembly shall maintain a state system of education for every school, child of school age. And the counties are under a constitutional mandate to do their part. So if another county tried to not do their part, the attorney general could take them to court and mandamus them to live up. So--

INTERVIEWER: And did they did he, or did they--

DICK HOWARD: And that's worked. Now, that doesn't sound like a big change. In today's world you say, of course that's the norm. It was not the norm back in the 1960s. So we put education in the Bill of Rights for the first time.

INTERVIEWER: A right to education.

DICK HOWARD: A right to education is an affirmative right in Virginia. I could do a separate lecture on what happens to state constitutions since when the courts get a hold of them. Because I don't know if know, the drafters can do whatever they please but the courts have the final word. I've been in cases in Richmond arguing or on the brief on cases. They don't care what Professor Howard thinks. Just because I was there means nothing to them. They will decide what the Constitution means. But that's really another story.

So education was really the centerpiece. We reformed the judicial system, which was really kind of a mess. It was a thorough rewrite but with an awareness of political limitations. There were things we wanted to do. Dillon's Rule ought to be reversed, but the legislature won't do it. Constitutional officers ought to be--

INTERVIEWER: So you tried to change the Dillon Rule?

DICK HOWARD: We recommended that, but curiously enough, the ledge--

INTERVIEWER: I don't know that is. You want to--

DICK HOWARD: Dillon's Rule says that the powers of localities, cities and counties are strictly construed. They only have the power expressly given to them in state law. And it's a 19th century tightrope for localities. And we thought we were doing the legislature a favor by reversing Dillon's Rule, so they wouldn't have to be bothered with revising the city charters or the county rules or the like.

But they decided differently. Apparently, legislators like being minor potentates in their own little kingdom. They like members of the board or the city council coming to the Manhattan hand and asking for favors. That makes you feel like somebody. So I guess I learned something not only about drafting, but about the political dimension of state constitution.

INTERVIEWER: Well that was what I was going to ask. So then were you also involved? So you were the draftsman. Did you then have to-- was it hard getting it actually ratified?

DICK HOWARD: Well, there were really--

INTERVIEWER: What has to happen? Does it go through the General Assembly and then--

DICK HOWARD: Exactly. There were three stages. Drafting the commission's work, the General Assembly legislative approval or revision of the commission's proposals, and then finally, referendum popular approval by the people. And having done the drafting, I was then invited to Richmond as a Council to the legislature as they did their work. And I felt like the one armed paper hanger because all the committees were meeting. This one on local government, that one on finance and so forth, and I was running around from one to another trying to explain politely the way. But also trying to sell what the Commission-- you could imagine I had some vested interest.

And that thrust me in the middle of politics where legislators for example deciding, we in Virginia still have the-- we're the only state in the country where the governor can't run for re-election. The one term rule. Mississippi was the next to last. And we're not usually behind Mississippi but now we are. But the legislators like the one term rule because the governor turns over every four years. And they will tell you, oh, the governor's got too many powers already.

So that leads me to comment that even in the Commission, we recognize the things which it was unlikely that the legislature would do, and therefore rather than risk the whole enterprise by putting in things we knew couldn't pass, we say-- and of course with commissioners like the ones I named, they knew what to stay away from which was a big, big help.

INTERVIEWER: They had a good political sense of what was.

DICK HOWARD: The year before we did our revision, Maryland had a convention. A good government convention, the League of Women Voters kind of people, and they put it to referendum. But what they did for example, they took out-- all the constitutional officers became statutory. The sheriff and the commissioner of revenue all those people, don't need to be in the statute, but they like being in the statute. So in Maryland when they took them out, that created a center of opposition in to the new constitution in every county in Maryland.

And so it lost. It was voted down. It was voted down and some of the Eastern shore counties in Maryland like by eight to one. And so I carried that story back to my commissioners in Virginia and said, whatever you think about that, that's a third rail. Don't touch it. And so that was put aside not on the merits but because of political realities.

INTERVIEWER: Yeah, and then when I went to the people, do you remember what the vote was?

DICK HOWARD: Oh my goodness. I was in a-- Linwood Holton by then was governor. He asked me if I would run the referendum campaign. And just as I'd never written a state constitution, what about politics? I hadn't run for anything. I hadn't helped people. I mean I'd done pole work and stuff but nothing important. But I agreed to do it. So I took leave from the law school and got on the road and went all over Virginia from Big Stone Gap on the one end to Bangkok on the other. Making talks, Black churches, union halls, suburban women's clubs, anybody who would like to hear about the Constitution.

And talk about an education, I was born and raised in Richmond. I knew Tidewater. I knew Charlottesville. I'd been a little bit West. I didn't South West Virginia. I didn't the Southside areas. But I went into-- I tried to speak at least once in every county and city, and there were 130 of them, so I covered a lot of ground. And it was for example, my first encounter with conspiracy theories.

INTERVIEWER: Something we're all familiar with.

DICK HOWARD: Everybody knows what they are now, but we were on the fringe of that era back in the 19. This was 1970. I remember for example a meeting we had in Colonial Heights Virginia. It's Between Richmond and Petersburg. And in a sense it's where Southside Virginia starts. I gave my talk. In the front row, there was this very dour looking chap with a recording device-- one of those old tape recorders-- and the look on his face told me he was not doing that because he liked what I had to say.

He also had brought with him a logo that looked like the logo of the United Nations. You can picture that in your mind. It had movable parts. So with a couple of twists of the wrist, the United Nations logo became the hammer and sickle of the Soviet Union.


DICK HOWARD: And I thought to myself, what does that have to do with anything? Well, his point was that this proposed Constitution could not have been written in Virginia. It was too radical and too crazy. Virginians would never do this. So there must have been written in Beijing or Moscow. Or worse yet, New York or Chicago. But it certainly wasn't local. So there was the conspiracy theory. In Southside Virginia for example, they-- busing was a big issue at that time.

This is about the time of Charlotte Mecklenburg. So busing was especially in Southside where you have a larger Black population. And so down there, I was really up against a lot of opposition. In the final referendum, we lost several counties on the North Carolina line, Mecklenburg and Brunswick and Prince Edward Charlotte, some of the others. But we bought one big statewide. We got 72% of the vote. And if you were running for office, that would be a mandate, wouldn't it? We got 85% of the vote in Fairfax County. Lexington gave us 85%. It began to look like a Bulgarian plebiscite at that point.

INTERVIEWER: Well, OK, well that's a natural. That's a nice segue there speaking of Bulgaria. OK so you come back from that, you're now back here in Charlottesville teaching, doing your thing. Fast forward almost 20 years, so 80, 89, so before you go to Eastern Europe, but maybe again, because even I was basically a kid when this happened. Can you set the stage a little bit sort of geopolitically what's going on in 1989 and the world and Europe?

DICK HOWARD: I tried to get as my interlocutor an older member of the faculty who would actually what went on back then. So you have to learn it up as you go, don't you?


DICK HOWARD: So this is a fast forward. I did consult with some American states in the meantime. Alabama--

INTERVIEWER: So you're developing a little bit of a profile as a constitution guy.

DICK HOWARD: And if I thought Virginia was a hard sell, try to rewrite the Alabama Constitution or the Oklahoma Constitution. Oklahoma has its original 1907 Constitution in which there's a provision that defines the flash point of kerosene. Why? Because they don't trust the legislature to get it right, so they put it in the constitution. In Louisiana, the bridge over the Mississippi at New Orleans is forever the Huey P. Long Memorial Bridge. So anyway, read your state constitution sometimes.

So anyway, I had some practice advising other states. Hope Alabama and Oklahoma did not rewrite their constitutions. So it's now the late '80s. 1989, you've obviously read about this. And when the Berlin Wall came down, then the communist empire in Central and Eastern Europe began to unwind, unfold, because suddenly the leaders of communist parties in that area realized that this time if they tried revolution or reform, the Russian tanks were not coming in. That was the big moment. Started in Poland with solidarity and the labor movement-- Valencia's movement there-- and it spread very quickly like a cancer from the communist perspective--

INTERVIEWER: Yeah, exactly.

DICK HOWARD: To the other states within the region. So it was one of those moments like the French Revolution, like Philadelphia and America, it's one of those moments of authentic transformation taking place. And I was lucky enough to be drawn into it.

INTERVIEWER: And you just got a call and said, hey-- who was the first one to call you or what was--

DICK HOWARD: I will never know who had the idea, but I had just shared a Smithsonian International Conference on the Bicentennial in 1987. And so this international transmission was taking place right on the heels of that. That may be where they got my name. But anyway, I got a call from the State Department. A delegation of Hungarians who were meant to revise the Hungarian Constitution we're in the country. Could I have them come down here and do a seminar on what do you do when you write a constitution?

So I sure send them down and they were-- I don't if you've been to Budapest or not, but the chairman of this delegation had an opera cape like this, and he was straight out of a Franz lehar operetta. So I said, these people aren't serious. This is a communist country. They want to do a Potemkin village. They're not going to write a real constitution but I said, I'll enjoy having them. Bring them on. We spent two days talking. They seem to like the experience. So then Hungary's parliament then invited me to go to Budapest.

Well I love music and art and all that stuff so I said, I'll have a great time in Budapest, even if they're not real about this. But I arrived in Budapest, and I saw students had set up tables and they have subways and that sort of thing, handing out literature on why change was inevitable. And I said, if that's happening out in the open, something is going on here. So I then was invited back several times by the parliament. Treated like-- my goodness, professors don't get treated-- they have a guess house.

INTERVIEWER: I can vouch for that.

DICK HOWARD: Oh my, you don't know about that. I had to go to Budapest to a communist country to be treated like a capitalist. I loved it. And I love Budapest. I think Hungary has the most amazing history. So I worked with the Hungarians and sure enough-- see I think their mind, Hungarians are very quick had a lot of things. The old saying that a Hungarian will go in the revolving door behind you and come out ahead of you. And I think the Hungarian communists saw change coming. They wanted to ride it out and get credit for it.


DICK HOWARD: And so I worked with the Hungarians. Then and this is a mystery to me too, my name got around in some other countries. I'll never know as if I put a shingle out, Howard does constitutions here or something. So I got calls from Warsaw, and from Prague and various-- ultimately maybe eight or 10 countries all together.

INTERVIEWER: Oh, I didn't realize that. OK.

DICK HOWARD: Including Albania. I had to look on the map to find Albania. But I did most of the work in Prague and Budapest and Warsaw. They were the three most intensive. And it ranged from general sessions, seminars, that sort of thing, to actually taking part in the drafting.

INTERVIEWER: And so I had the same question about those as about the Virginia, so what were the big issues for them?

DICK HOWARD: Well, first place you had to jump-- they had beautiful constitutions based on the Soviet Constitution of 1976. And you just read them and it was the good life, every right you could imagine, but of course it was a joke.

INTERVIEWER: Paper rights. Yeah.

DICK HOWARD: Paper rights. Everybody knew those constitutions weren't unenforceable. So among the major questions was enforceability. How do you write a constitution and make it stick? And there I thought I said, there really a couple of dimensions. One is the institutions that you create like a constitution, the structural changes. But the other the cultural change. How do you get people who've lived for generations under communism to not treat law as a joke? Because in the old days, it was not the law, it was who you knew.

So the cultural part would take a long time. I figured my job there was to just remind them of that but help them put the structures in place. And to give you-- since all of you know Marbury versus Madison I remember a meeting I had with Czech and Slovak judges and some lawyers at a meeting in Bratislava, which is today the capital of Slovakia. And we were talking about enforcement of the constitution. And I was sort of being an American culturally acclimated to Marbury. I was talking about, well I assume you have the Czech lands and you have the Slovak lands. And these are very distinct cultures. I mean the Czech lands are more advanced, more progressive, more liberal.

The Slovak lands are more conservative, more rural, more reluctant to change. So at the table we're talking about constitutional enforcement and I was suggesting of course the Constitutional Court of Czechoslovakia will have power to enforce rulings to review and oversee the courts of the Prague of the Czech lands and the Slovak lands. And when I said that the President of the Slovak Supreme Court-- a big bear of a mountain, oh my goodness, he's like a caricature out of a movie-- when I said what I did, he slammed his fist down on the table and said, that will not do. Absolutely not. That will violate our sovereignty. Sovereignty, I thought this was like one country.

INTERVIEWER: Have I got the wrong--

DICK HOWARD: We made that argument in Virginia back in the 1860s and got our wrist slapped. We fought a civil war over Calhoun and type. This was John C. Calhoun and wearing Slovak clothes. What the Slovaks were doing-- their mindset was that they were not rewriting the Constitution. They were writing a treaty. A treaty between sovereigns. And I mean think of that, I mean, that is so like the Antebellum South where they were saying it's a treaty among states. And if we want to secede, we can. So that had a certain familiar ring to it.

So one thing I carried away from that experience was understanding how important it is when you make, interpret and enforce a constitution to think about the history, the tradition the culture of the particular people that produce it. And in Central Eastern Europe-- small countries-- you think they can't be that different but they are.

INTERVIEWER: Yeah. OK, so how do you look back on that? One of the things that I love that I remember you saying is one of the young guns in Hungary-- one of the liberals-- was none other than the current.

DICK HOWARD: Viktor Orban. Today's prime-- all of you read all the time. I met him when he was a 26-year-old graduate student. In those days he was a liberal. He had accepted George Soros' money to have a scholarship to study in England.

INTERVIEWER: Can you imagine what Fox News would be saying about?

DICK HOWARD: Politicians do change their mind, but not many have changed as much as he has, because he had a party named Fidesz. And in the first open election they did very poorly. So I think he put his finger, said, oh, the wind is blowing the other way, so he morphed quickly into being an illib. He's the one who coined the phrase, illiberal democracy. Illiberal democracies have become very common. So as if you follow the news from Hungary, today-- well let me step back a moment.

After my work in Budapest, I take no credit for anything they did. I simply happened to be there, part of the conversation. But I used to use Hungary as an example of the success of constitutionalism in a post-communist country. It had a constitutional court which in many ways was a strong and respected as the German Constitutional Court, which is a very strong court. That's all gone now. Orban and his party have stripped the Court of its powers.

They even passed a Bill that allowed parliament to cancel any decision of the Constitutional Court. Boy we have people in our Congress who would love to have that kind of power as you know. He's dismantled the free press, the state media. He's handed out money to all his cronies. I mean it is a backward slide from where it was after 1980.

INTERVIEWER: Has the same thing happened in Poland or not as bad?

DICK HOWARD: Poland, the same but not quite as bad.


DICK HOWARD: There's more hope for Poland at this point.

INTERVIEWER: How do you interpret that? Is it what you were saying before? Do you think it's just something about the culture, the life under Soviet rule caught up with it in some way or?

DICK HOWARD: Yes. It's partly the culture, but there's also-- especially in Hungary and Poland-- they are able to play as some American politicians do on the sense of victimization of being disrespected, of being on the outside, not being part of the mainstream. The elites don't understand is you all understand that sort of rhetoric. And in Poland for example, when the Ottomans reached the gates of Vienna back in several hundred years ago, when the Western Europe felt itself under threat, the leader of the Christian forces who stopped the Ottomans at the gates of Vienna was a Polish king. And so that's part of Polish history.

And so the Poles say, all these centuries we've been on the front lines protecting Western civilization, Christianity, and what kind of respect do we get? These people in Brussels don't understand us. And it's that victim card is played. In Hungary, the card they play is at the Trianon Treaty in 1919. Hungary happened to be on the wrong side of the First World War. So in the Versailles Settlement, Hungary lost something like 2/3 of its territory.

INTERVIEWER: It was Austro-Hungarian empire.

DICK HOWARD: From the Austrian-- the Austro-Hungarian empire dissolved at that point. Hungary was dismembered because they'd been part of the empire. There's something like a million Hungarians today living outside of Hungary. So Viktor Orban and his party are able to use Brussels and George Soros and the liberals-- liberal elite in general-- as being people-- they don't understand this. We owe them nothing. And that works as a matter of politics. That on top of Hungarian culture.

INTERVIEWER: Oh wow, it's sad to see.

DICK HOWARD: It really is sad. Some of you may know of or even have read Francis Fukuyama's book published in the early '90s, "The end of history" and Fukuyama predicted that the world was headed towards-- its destiny was liberal democracy. Now it would take more time in some places like Russia obviously, China of course. But he saw this convergence on the liberal democratic principle. Nobody talks that way anymore, including him.

INTERVIEWER: Yeah, right exactly.

DICK HOWARD: Including he's recanted on that.

INTERVIEWER: Yeah, more like the clash of civilizations and clash of a lot of other things.


INTERVIEWER: OK well, so then bringing back here, how did you-- so in a way going back in time, so how did you feel like got into teaching in the first place?

DICK HOWARD: Well that's interesting. So I came from Richmond. Nobody in my family had been a lawyer. And I knew some lawyers vaguely through college and otherwise. But I didn't really know much about the law. I was not a law junkie. Went to college. Wasn't quite sure what I would major in, and wound up finally had splendid professors in history and government.

INTERVIEWER: You were at the University of Richmond?

DICK HOWARD: University of Richmond. And wound up having a double major in history and government. Well, the four years come and they go. You have to do something for a living. I couldn't stay an undergraduate forever. So I got to thinking about law, but I was in the army for two years. This was in the '50s when the Korean War had never ended. There was an armistice, but I had signed up for the ROTC. That sent me down to Fort Eustis Virginia near Williamsburg. We had the same branch of ROTC as the University of Virginia did.

So in the Officers Training Corps at Fort Eustis, I met a lot of UVA graduates who like me had been commissioned as an officer. And several of them were coming to law school up here. So through the influence of the University of Virginia, I was sort of swept. I said yeah, I think that's where I'll go to law school. Excuse me.

INTERVIEWER: And at this point it's over at Clark Hall, right?

DICK HOWARD: So we're over in Clark-- I hope you've been in Clark Hall so, no you shouldn't go in there because you'll be sad about what could have been.


DICK HOWARD: It's all beautiful, but gosh, it's a wonderful building. So anyway, I came to law school up here. And my plan was to go back to Richmond and join a law firm. I had known Lewis Powell when I was growing up. I actually argued a Supreme Court case where he was on the bench. And for some reason it crossed my mind that I had dated one of his daughters. I didn't need to be thinking about that. In oral argument you're supposed to clear your mind out and be focused like a laser beam. But I talked the tidewater actually he's got. So I got his vote by the way. We won.

So anyway, I was going to join a firm, probably Lewis Powell. I assume it was the white-shoe firm of that day and age. But once I started, I did practice briefly in Washington, Covington and Burling, but then I got this clerkship with Justice Black, and as I said spent two years with him. And I was sucked into the world of constitutional law, the Supreme Court, I mean it was such a glittering place to be. I think I was spoiled for private practice, and it became increasingly clear to me that whatever others might do that I was not going back to join a law firm.

Well then for so much of my life time has been happenstance. Just good things happen that I'm not really in control of. I got a Hardy Dillard, again, I feel like he was my good angel. I got a call from Hardy Dillard, would you like to think about teaching? And I was already sort of thinking about, yeah, I think maybe I ought to be thinking about the academic world. Well here I get this call from the dean of the law school who in those days probably was the appointments committee.

INTERVIEWER: Yeah, I was about to say it does not work that way anymore.

DICK HOWARD: That's right.

INTERVIEWER: You don't just get calls.

DICK HOWARD: Today we'd have to do a workshop and people would read all my papers and on and on and on this sort of thing. But this is a different age in which Hardy Dillard probably said, oh, we need a space to fill. Who shall we get? Let's call Dick Howard and see if he'd like to come and teach. So I said, yeah, I think I'll try that. And I knew if I didn't like teaching, I could go back into practice. But I said I love Virginia because I had such a good time at the University of Virginia in my law school days. So you have to imagine this is almost like the middle ages. When I joined the faculty at that time, I was the 22nd member of the faculty.


DICK HOWARD: Ever. No, no, no, no, not ever but at that-- not ever. Probably a one man law school.

INTERVIEWER: Wanted to make sure.

DICK HOWARD: That's how small the faculty was. We were 500 or so students and the like. And I'm sure what their theory was, OK, somebody has died or retired, moved on. We have a space to fill. We need a warm body who's fairly smart to fill that space. No question about what are you good at? What would you like to do? Do you just want to teach? OK, so I accept it. I came and I taught constitutional law which made a lot of sense. I mean that was an obvious choice on my part, but they needed somebody to teach the law of evidence.

INTERVIEWER: Yeah, great body of law.

DICK HOWARD: Yeah, I had done appellate work. I'd never been in a trial courtroom in my life in any capacity. What did I know about hearsay?

INTERVIEWER: Yeah, hasn't stopped me.

DICK HOWARD: It's all right but I said-- didn't stop-- well you're but your path, you surely weren't as ignorant of this as I was.

INTERVIEWER: This is interesting to me because this would have been pre-Federal Rules of Evidence.

DICK HOWARD: Yeah, that's right. Much more common law.


DICK HOWARD: So I mean, of course I wanted the job. So I also taught legal philosophy and I'd done philosophy at Oxford very different frankly from philosophy in this country, but still it made me sound like I could do it. So I did it. But evidence-- I was one chapter ahead of the students all the time. Kind of making it up and they knew it. They knew I didn't anything about evidence but being University of Virginia students, they were civilized and polite and put up with me. And I tried gimmicks some time.

One day at the end of class in evidence there was a chap in the front row, Cotesworth Pinckney from Richmond. How about that for a name? The Pinckneys were among the signers of the Declaration of Independence in South Carolina. Anyway, I said Mr Pinckney, go home tonight and read Shakespeare's Julius Caesar. Come in tomorrow, be prepared to talk about Mark Antony's speech from the steps of the Capitol building. And of course, students are all looking at each other and saying, oh dear god, Professor Howard has taken leave of his senses. This is nothing to do with evidence. But I said, come in tomorrow, prepare to tell us what that speech has to do with evidence.

Well as all of you know, it's the speech in which Mark Antony holds up Caesar's bloody tunic, here envious Brutus, you know all that kind of stuff. And so it's like prosecutors used to do with their bloody shirts. The victim's clothes would be brought into the-- it's incredibly prejudicial because it makes you forget that the person in question is, did this person do it? You're so awed by the evidence that you-- juries go off the rails. So he comes in the next day dressed in a toga.

INTERVIEWER: Oh, my god.

DICK HOWARD: And with a toga for his professor, well at this point in the play of course Caesar is dead. So I was obliged to-- I was stretched out on the desk in the classroom, and the whole thing was so funny. The corpse was rocking with mirth. Now so for years after these people graduated, they remembered that day. They forgot everything else I taught them, but they remembered that day. So if I'd had a gimmick for each hour of class, it would have been a spectacular success. But anyway, that's the law of evidence.

INTERVIEWER: I want to ask you about what your scholarship was but that's a natural segue to something that I am curious about which is, so you can actually sort of imagine something like that happening today. How has the student body changed over that time?

DICK HOWARD: Oh that's very interesting.

INTERVIEWER: We're talking late '60s to now early '20s.

DICK HOWARD: OK, I've done no statistical study of the people who are here versus then. We were a bit smaller, so that's one obvious change. But in terms of the students themselves, I think I was a very typical University of Virginia law student in those days from Richmond, White, Anglo-Saxon, all the rest of them.

INTERVIEWER: There were women right? Just not very many of them, right?

DICK HOWARD: OK, first change is gender. I mean women were admitted and did come, but only a handful. Because the women's rights movement in this country really took off in the '70s. That's when Ruth Bader Ginsburg was arguing the six cases of which she won five in the US Supreme Court. And of course, the number of women in law school just rocketed from that point to something near parity today.

So one difference was gender. Second would have been race and ethnicity. Black students were admitted but there were only a handful at that time. Not many Asian students. You have to think about the change in the American popular demography generally, that in the mid 20th century, it was much more nearly white protestant Anglo-Saxon than it is today. So the student body mirrored that. It was a more southern school. I mean there were of course students from all over the country.

Virginia was already becoming a national law school in those days, but I think it's become more national since then. I don't recall that they had ratings then. But so difference in gender, difference in race and ethnicity. I mentioned the lack of a culture of clerkships. I think-- if I'm not mistaken-- that I was the third UVA graduate to have a clerkship at the US Supreme Court. I can think of one John Rhinelander the year before me and Barrett Prettyman in the late '50s before that.

And of course today as you know, we regularly place students all over the country, but some years as many four clerks at the US Supreme Court. So I think the notion of what students wanted to do directly after law school has changed enormously. And this is more subjectively but I think students come to the law school today having lived in a much larger world than what I lived in at this time. I mean, I had a good education. I mean, I loved my courses. I followed foreign affairs and all that, but today's students I think simply know more about the world they live in and have probably done more in this country and abroad than was true of my generation.

And that's partly because it's hard to find a decent university that doesn't have internships and programs and study abroad that they encourage people to go abroad for a semester or a summer. So people came to the classroom then I think simply less sophisticated, or at least less aware of the larger world. I don't think there was a profound difference in quality. I mean my students-- I'm prepared to accept that some of my students are smarter than I am. But I've got experience. Seasoning, it's called.

I keep the ball moving so that they don't stop long enough to think, well he's not that smart. I'm just not going to give him time to think about that. I think probably the median of students here has risen. I mean we're more selective than we were and for lots of good reasons.

INTERVIEWER: Because they say every year at graduation they say this is the best class.

DICK HOWARD: Inevitably. And they will say it again this year. You can count on that.

INTERVIEWER: What about the subject? I mean you taught constitutional law. Obviously the issues there have changed over time or have-- what the hot topics were. Has that seemed like-- or has it always been race and gender and--

DICK HOWARD: Think about we've had the Warren Court, the Burger Court, the Rehnquist Court, the Roberts Court, four chief justices. And it's convenient-- sometimes misleading-- to assume that constitutional law's evolution tracks those four courts, but in a rough sense, it has. I mean when Earl Warren stepped down, Richard Nixon famously campaigned against the Supreme Court. Elect me as president and I will put judicial conservatives on the Supreme Court. He had four vacancies to fill, what in 2 and 1/2 years? Wow. Rehnquist and as Chief Justice, I mean Burger as Chief Justice and then Blackmun and Powell and Rehnquist.

But I think in many ways to respond to your question, I think the way I've thought about and taught constitutional law has really tracked the changes in the court itself, and of course in the country at large. I mean, the court doesn't change unless politics makes it possible for presidents to appoint the people that they do. But I think the moment I stepped into the classroom on the heels of my clerkship, was precisely the point that the Supreme Court was remaking the Constitution and the country at large.

I mentioned one person, one vote and criminal justice, and even the first glimmerings of the right to privacy. Griswold for example was in the '60s. So the field was exploding. There were so many areas into which the court was going. It was constitutionalizing so much of American life. One concrete example, privacy-- the libel law.


DICK HOWARD: Until New York Times versus Sullivan privacy law was simply-- I mean libel law as a matter of state law. Well New York Times versus Sullivan brought it within the ambit of constitutional law. And you can go through so many areas of American life-- school integration, prison reform, mental hospitals, gender equality-- I mean there's so many of them that became really the warp and woof of constitutional law from about the '60s onwards. Manifestly increased by the Burger Court, the counter-revolution that people predicted never happened. The Burger Court did more of what the Warren Court did.

I mean, judges had more work to do in the '70s from what the '60s were. And then as I say in my teaching and thinking about constitutional law, I was always obviously aware of the court. And then in the '80s-- the Reagan years-- some changes begin to set in. The Federalist Society is appointed, is created. And you start having conservative public interest law firms like the liberals, ACLU, NAACP had Lewis Powell put it in his memo to the US Chamber of Commerce, they're eating our lunch.

And so the conservatives started creating groups like the Pacific Legal Foundation and the like. And of course, nominations were changing after the Bork hearings, 1987, and also the appearance of originalism. In the Warren Court nobody talked about-- in fact, the Warren Court was not very philosophical. They just did the right thing. Just looked at a problem, it needs to be fixed, here's a way to fix it. They were not much about jurisprudence. And that really when Scalia got on the bench in 1986, and on the Supreme Court bench, then originalism becomes part of it. Whether you liked it or didn't liked it, it was an inevitable part of the discourse.

And then finally as you turn into the 21st century, up to that point there had not since the Warren Court been a working majority. You had floating different factions beginning to coalesce around Rehnquist in the late '90s. But you had the moderates on the court, you had Lewis Powell, you had Sandra Day O'Connor, you had Anthony Kennedy always keeping the court from just lurching to the right. So then finally, of course after Roberts becomes Chief Justice, Alito comes to the court. Kennedy leaves the court soon thereafter and finally you get the super majority on the Supreme Court.

I mean, one could write books about those last two minutes. But my point is with each generation on the court, with each change of the faces on the court, and the jurisprudence that comes with it, that obviously affected how I teach. I mean, my teaching of constitutional law is probably unconventional in the sense that I put a lot more history and personality into it than perhaps other people will do.

INTERVIEWER: That relates to-- we're almost out of time. There are two questions I want to make sure to get to. One is just that one interesting thing about your career is that your career represents a kind of model of being a law professor that is in some ways vanishing. Which is someone who's really engaged in public life and public service. And I'm curious, I know you started out writing about Magna Carta, a form of Constitution. Do you feel like that those of have they affected each other? Do you think of them as part of the same thing or do you just view them as separate?

DICK HOWARD: That's interesting. I think in the academic world, in the law academy we talk about scholarship of teaching and service. When I started teaching, I think I was pretty much at liberty to do whatever I liked. And it just happened partly because of the writing of the Virginia Constitution. Sort of as it were got-- I liked it. Something I cared about but it had a chance to do it from the very beginning. I think it was easier to do that 50 years ago. I think it was easier to write and teach and then do public service.

And now I think law schools typically have clinics. We have very good ones here. They do a wonderful job but they become sort of specialized. I mean that was a one man clinic in those days. I would just go do things. I would grab a bunch of students and have them help me out. And we had a wonderful time doing it. But I think because I liked it, I wasn't paying a price for it. I think today is if you're a young professor being hired today and you want to make your mark, I think it's difficult.

I think because you have to-- the scholarship has to be first rate, you have to really work at it and of course you have to be a good teacher. But I think what loses out is public service. It's not a conscious decision to play down public service, but it's just the realities of a young academic's life. So in my case, I've just had the good fortune first in Virginia and then abroad. And since that time I can't turn around without getting a call from Richmond governors, attorneys general.

I just had an email yesterday from a staff member of one of the legislators in Richmond who wants me to help him sort out a really complicated problem of the relation of the governor to the legislature in the veto process, and it's very complicated. I don't live down there and watch it happen every day. I have to stop and really think about it and go back. And of course, all of this is pro bono. I mean if I got emails that said we'd be happy to pay you handsomely, I think the pain would be less I think.

But I'm like a public utility, the water you turn on. Oh, yes you teach at the University of Virginia, that's a state law school. You're on the public payroll. Of course you're supposed to help me the legislator or the executive official. And usually they're interesting questions. I mean I enjoy doing this stuff but there are only so many hours in the day. And I should say no more of the time than I do.

INTERVIEWER: OK, well that's a natural segue. So the last question I want to ask, I mean one interesting thing of our discussion now is that the kind of through-line of each of these. You've gone to Richmond a lot, gone to Eastern Europe, but you're always coming back here.

DICK HOWARD: That's right.

INTERVIEWER: Why do you think that you've spent your entire career here and what makes this place special?

DICK HOWARD: Well, it's also the question of why so long?

INTERVIEWER: Yeah. 60 years.

DICK HOWARD: My 60th year. As far as I know, the record holder before that time was John Minor who taught from 1845 to 1895, 50 years. And that includes the Civil War when the school wasn't even opened. But he was the record holder. His bust is in the library. I've left him in the dust 10 years ago. Now why in the world would-- I mean I love to travel. I have a family. I have friends. There's so much to do that I like doing. Why in the world would I hang around here and keep on teaching? I really love it.

If you had told me when I started teaching that I would-- first place I'd even be here teaching 60 years later, I would say, Charles, you've been smoking something? That's just not going to happen. And if you further said you will enjoy it as much as you did the first year you taught, I'd say you're quite mad. You've taken leave of your senses. I can honestly say that I enjoy the classroom and my students as much now as I did then. I mean, they just are constantly refreshing. It's like a fountain of youth.

It's just amazing because, now I'm not sure if I'd been teaching at some other school like Berkeley or NYU or you pick a school, I'm not sure it would have turned out that way. I mean I'm sure I would have enjoyed it, but would I feel the same passion for it? I'm not sure I would, because it is UVA. All of us students and faculty, we tell people how special UVA and the law school are. You do it yourself to your friends, but you come here and you settle into this place-- sometimes it happens on an admitted student weekend. You get a sense of the place.

I remember having a conversation with one of our graduates who's now clerking for Justice Kavanaugh. She went to UVA undergraduate law school here, and she had done some work for me as an undergraduate. So I knew her very well. She could have gotten into any law school in the country and her final choice was UVA and Yale. Well typically, when people have that choice, statistically the break typically is toward Yale, right? People do that. I knew her well enough to try to sit down with her and have a long conversation.

I mean, I couldn't be completely impartial obviously. But I was trying to talk to her in her own interest. I said, you are the kind of person-- she was first in her class by the way here at the law school-- but I said, you're going to open any door you like. Your future is assured whether you go to UVA or Yale. But I said, I know you well enough to think that will prosper in every sense as a human being at UVA. You will like it better. It's three years of your life, that's certainly worth something. And she came here.

Yale was blown away. The Dean had called her. Kavanaugh, who was then a judge had called her. I mean it was just-- they put the big press on her and she came here. She absolutely knows she did the right thing. She just wanted-- I give one example of many I could give of the reality of the specialness of this place. I mean, now to turn it over to these folks who are students now and they could probably answer the question better than I. But I am persuaded in the bottom of my heart that UVA is different. In that sense better but certainly special.

INTERVIEWER: Well I agree, but the culture of a place is a product of the people there. And there's no person who has had a greater impress on this institution than you. So we have been lucky to have you and thank you for your effort and your time.

DICK HOWARD: Thank you. Thank you so much.