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Richard Mertens has written an article about George Anastaplo for The University of Chicago Magazine (print edition Mar-Apr, 2012, link originally posted 03/08/12). The online version of the full issue can be viewed by clicking here. The article itself is linked below … Continue reading
George Anastaplo
Dare to be naïve.
—Buckminster Fuller (1975)
Prologue
I presume to provide on this occasion (a few hours before the Greek Orthodox Easter) a confession of my serial indulgences in naiveté. Perhaps Harvey Lomax can be of help here, drawing on the considerable work he has done probing the psyche of the confession-prone Jean-Jacques Rousseau, after having done somewhat the same with respect to Friedrich Nietzsche.
A dozen or so episodes can be recalled by me at this time in an effort to illuminate (or is it really to conceal?) the career that is the ostensible subject of two events today—a panel discussion of my work this afternoon at a political science gathering and a celebratory reception this evening. These events have been made possible and graced by the efforts of Charles Butterworth, William Braithwaite, Christopher Colmo, Harvey Lomax, Robert L. Stone, and Michael Zuckert.
I
I have, for almost four decades now, been called on from time to time to offer birthday talks. Perhaps those talks, with my remarks on this occasion, can be collected and posted on the Internet website established by Joel Rich and maintained by John Metz. The 20,000-plus “hits” received thus far suggest that someone is interested in that somewhat improbable enterprise.
II
My explorations in naiveté can be said to have started with my insistence upon enlisting, at age 17, in the Air Cadet Program of the United States Army Air Corps. That service was a remarkably liberating experience, taking me as far west as Formosa, as far south as Liberia, and as far east as Saudi Arabia. All that was, in short, a long way (spiritually as well as physically) from the small town I grew up in Southern Illinois after having almost been killed by diphtheria (I am told) in the city of my birth, St. Louis. In my case, at least, repeated volunteering has proved to be most rewarding, even though I could wonder at times whether I would survive my military service. (One odd consequence of my years of service as an aerial navigator is that I have not worn a watch ever since. I can even wonder whether that has anything to do with my avoidance of e-mail.)
III
Then there was my decade-long encounter with the Character and Fitness Committee of the Illinois Bar. I learned very soon that I would not get much support in my folly from either my law school teachers or my classmates (no matter what I said about the crippling and hence dangerous effects among us of Cold War “witch hunts”). Indeed, most of my teachers even seemed to resent what I was doing, not least because of what I was presuming to say about the Declaration of Independence and the right of revolution. My classmates were, in their vulnerability, understandably wary—but, at least, they were not hostile, especially since a good third of them must have made use, at one time or another in law school, of the very good course notes I was known to be making. I notice in passing here that there has been published this year, by the Oxford University Press, a collection of essays on the First Amendment using as its title the closing sentence in Justice Hugo Black’s magnificent dissent in my bar admission case, “We must not be afraid to be free.” (The same title was used, a couple of decades ago, in an exhibit about Dissidents mounted in the Soviet Union by a San Francisco lawyer.) A comment, on the unfriendly reception to the bar admission controversy by my law school dean, was made by me in the course of a May 2011 interview posted on the Chicago Bar Association website (during which I noticed, however, that that man got better and better the more power he got).
IV
A far more hostile reaction than even that of most of my law school teachers was exhibited by Sidney Hook, a reformed Leninist who was then the chairman of the philosophy department of New York University. I, as a graduate student, had naively presumed to write him about a Cold War issue. (His general Cold War stance was such that he later opposed the American withdrawal from Vietnam.) I continue to be startled when I have returned to this correspondence (which has long been deposited at the Hoover Institute and which is now also on my wordpress site). The unrelenting passion he exhibited, in taking a presumptuous student to task, can sometimes make me wonder how we managed to avoid turning the Cold War into a Very Hot General Conflagration.
V
Once I finished my doctoral dissertation—which, by the way, was never submitted to my faculty for formal approval but was simply accepted, sight unseen, upon the insistence of David Grene—once I finished it, I prepared it for publication and offered it to the University of Chicago Press. I learned, years later, that the Press’s editors had wanted to publish it, but they could not do so after an outside reader from Yale came down hard against it. This turned out for the good, however, in that I was able (because of years of delay) to prepare the hundreds of pages of notes that remain (at least for me) the continuing attraction of that 800-page book (which was reissued in an expanded version a few years ago).
VI
A further exercise in naiveté, in connection with that book, could be seen in my expectation about book reviews. I eagerly consulted the New York Times the Sunday after publication in 1971. But, alas, I have had a score of books published by now—and none of them has been noticed by the New York Times. The Chicago Sun-Times once noticed my work, but stopped doing so when I made some critical remarks in a review commissioned by them of one of their favorite authors. (I was nevertheless asked, years later, to speak at a memorial service for that author.)
VII
Then there was my expulsion from the Soviet Union in 1960. An article about me, in the current issue of the University of Chicago Magazine, has gotten the story right. That is, I had presumed to advise a car of English tourists (who included a daringly-dressed niece of the then-Archbishop either of Canterbury or of York) that they should not continue the disturbance they were creating on a Moscow street by distributing copies of an American magazine they had been given at the American Embassy. When the police rounded them up I was apprehended as well as one who had been seen “associated” with them. Particularly noteworthy was the determination of my 5’2’’ wife, pushing her way past my guards to get our car keys for herself and our children. If she had been a better driver, she might well have taken the car and children and left for the Finnish border, leaving me to deal with my folly. This episode contributed to a 1972 passage in C. Herman Pritchett’s work that may be his most quoted lines: “As W.C. Fields might have said, any man who is kicked out of Russia, Greece and the Illinois bar can’t be all bad.”
VIII
Then there was the visit scheduled with Justice Black at the Supreme Court, culminating the correspondence we had after my litigation. I was also scheduled on that occasion to visit Leo Strauss in Annapolis. I had mentioned this to Hans Jonas at a conference we were attending. He expressed an interest in accompanying me to Annapolis, which I agreed to. It thereafter occurred to me, however, that I should alert Mr. Strauss about an extra visitor. His response was firm: I was welcome to come at any time, but not Mr. Jonas. (This antipathy was due, it seems, to the Jonas reconciliation with Martin Heidegger.) What could I do? I decided (perhaps naively) that the only way to get out of a quite sticky situation was to return to Chicago, cancelling all appointments (that is, especially at the Supreme Court and in Annapolis). And thus I forfeited my opportunity to visit with Justice Black. (I do not recall the date of my reluctance, at least on that occasion, to lie myself out of my difficulty—but it can probably be determined by consulting the Black-Anastaplo correspondence file deposited, I believe, in the Library of Congress.)
IX
Then there was my involvement in Greek Affairs after the Colonels’ Coup in April 1967. I believe I was the only American ever to be declared persona non grata by the Colonels (something that was done twice), in large part because of articles critical of them that I wrote which were put in the Congressional Record by Law School classmates of mine, Abner J. Mikva and Patsy T. Mink. I was particularly concerned about what both our State Department and influential Greek-Americans were doing to keep a band of dangerously incompetent Colonels in power. I, in conversations in Rome with King Constantine II, presumed to advise him that he should return to Greece (after his failed Counter-coup of December 1967). “But they would arrest me,” he replied. That would be even better, I presumed to say, but to no effect—and that, I still believe, cost him his throne. He has lived ever since in exile, in England (where he is a friend of Prince Philip). I campaigned thereafter for the restoration to power in Athens of Constantine Karamanlis, living in self-imposed exile in Paris. I even had a visit with the Greek Desk people in our State Department (evidently arranged by someone in the C.I.A. who agreed with my assessments)—but I got nowhere. Then there was the Colonels’ desperate effort to redeem themselves by taking over Cyprus—and this led to the disturbing Turkish occupation of part of that island (to this day) and to the fall of the Colonels in July 1974 (upon which Mr. Karamanlis did return to power in Greece). By that time I was “booked” for the summer, unable to return to Greece until the spring of 1975. But during those six months I heard nothing from anyone in Greece—and I recognized that the Greeks would be able to carry on without me, and so I stayed home. The only Greek I have heard from since 1974 is King Constantine, who sends us (from London) every year a very nice Christmas card featuring a photograph of his ever-growing family.
X
Then there were some silly charges of “racism” leveled against several of the faculty at Loyola. I was the only one who responded publicly, left pretty much to my own devices by my colleagues (who probably figured it would all “blow over” if simply ignored). (Much more could have been done by me at that time if Bill Braithwaite had still been on our faculty.) I mounted my own campaign which resulted in articles published by me in the South Dakota Law Review. Those articles elicited an enthusiastic endorsement from Gerald Gunther, the leading constitutional law casebook editor in our time.
XI
Then there was the launching, in my seventy-fifth year and thereafter, of three major “projects.” The first “project” is a collection of a dozen conversations with a Holocaust Survivor from Lithuania. Half of these are now in print. The second “project” is a running commentary (in the Thucydidean mode) on the September Eleventh attacks and their aftermath. There are by now some five hundred pages of such commentary in print. Another law school classmate, Ramsey Clark (a former Attorney General of the United States) has agreed to provide a Foreword if these materials should ever be collected in one offering. The third “project” is a contemplated series of ten volumes of “constitutional sonnets.” Four of the volumes are now in print and a fifth should be out next year (and all without any notes!).
XII
Then there are my travel plans—or, perhaps more precisely, by un-travel plans. I have decided, despite my considerable interest in Confucian thought, not to venture a trip to China. Members of my family have gone—but I am really too old to be sidetracked by months (if not even by years) of unwanted attention from a tyrannical regime if I should be moved to say something controversial while there. I have decided it is more prudent for me to observe China from a distance, including in a series of articles (now available on the Internet) in which I have deplored the shortsighted Chinese Government’s efforts to subjugate Tibet and Taiwan.
XIII
Then there is, finally, an encounter I recently had at an academic conference in New York City where a son of the executed spies, Julius and Ethel Rosenberg (who is a respectable Eastern academic) was a participant. He reminded me at once that we had been together on a Chicago broadcast several decades ago. “You were right,” he then conceded in New York about the Rosenberg Espionage controversy, “when you insisted that the Death Penalty was the issue, not Guilt or Innocence.” This had finally become generally apparent, it seems, when a Rosenberg co-conspirator confessed a few years ago to espionage on behalf of the Soviet Union (but not to atomic espionage).
Epilogue
I have recalled a dozen indulgences in naiveté during my career. Perhaps it is particularly naïve (to the point of supreme folly) to try to proceed as if I can continue doing indefinitely (if not “forever”) what I have long been doing. This perseverance may reflect, I suppose, what is known as “the Human Condition”—and, as such, may be more or less desirable, if not even inevitable, for reasoning beings, however mortal they may really be.
Thus, I can close these reminiscences by recalling a recent session of the weekly University of Chicago Physics Colloquium that I have been attending for decades. The topic on that occasion was, with all kinds of data and charts: “Do worms sleep?” I, on the other hand, could not help but wonder throughout that talk, “Are worms ever awake?”
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These remarks were made, April 14, 2012, at an evening celebration following upon a panel discussion, that afternoon, of the work of George Anastaplo. That panel had been part of the annual Midwest Political Science Association convention at the Palmer House in Chicago, Illinois.
George Anastaplo
To the Editor, The New York Times
Re “Robert Bork, Romney Standard-Bearer” (Editorial, April 27, 2012).
My University of Chicago Law School classmate is attacked in your editorial for his “extreme views.” However, Mr. Bork’s criticism of the “imperial judiciary” finds considerable support in the Constitution itself, which obviously did not contemplate the kind and extent of judicial review of Acts of Congress we are now capriciously subjected to. His opposition to “broad protection for free speech” is also grounded in the Constitution, which did not contemplate (even with its invaluable First Amendment) what we have had to become accustomed to, including the routine desecration of military funerals, the ever-increasing dissemination of corrupting obscenity, and even something decried in your lead editorial of April 27, “the unlimited money being spent on television ads” during political campaigns. In addition, his questioning of “the constitutional right to privacy” should be encouraged by citizens troubled by our growing emphasis on that obsessive self-centeredness which steadily depreciates among us both the requirements and the satisfactions of old-fashioned citizenship. All this is aside from the issue of how one should vote in November.
George Anastaplo
Professor of Law
Loyola University of Chicago
(wordpress.anastaplo.com
April 29, 2012
[Not published by The New York Times]
Appendix: New York Times Editorial, April 29, 2012, p. A22
Robert Bork, Romney Standard-Bearer
Robert Bork has been among the most divisive figures in American law and a right-wing standard-bearer in Republican politics for nearly 40 years. In 1973, when he was solicitor general, he fired Archibald Cox as special prosecutor on the order of Richard Nixon to aid the Watergate cover-up. When Ronald Reagan nominated him to the Supreme Court in 1987, the Senate rejected him by a vote of 58 to 42, the largest margin in American history.
Now Mitt Romney has made Mr. Bork a chairman of his Justice Advisory Committee. As with other Republicans leaders, Mr. Bork’s central position in Mr. Romney’s legal team says a great deal about the presumptive presidential nominee’s approach to the law, none of it good.
The right wing has always claimed that Mr. Bork’s defeat was entirely partisan. In fact, it has made a verb out of his confirmation battle. To be borked is to be destroyed by whatever means it takes, and his confirmation struggle was, therefore, not about the substance of his legal views.
In fact, the confirmation shed considerable light on Mr. Bork’s extreme views. As a critic of what he called the “imperial judiciary,” he contended that, except when the Constitution expressly says otherwise, the court must defer to the will of the majority. Otherwise, he said, it makes “corrupt constitutional law” that is constrained only by the personal values of justices, leaving government subject to the “tyranny of the minority.”
That led Mr. Bork to be on the wrong side of many settled legal issues: he opposed broad protection for free speech; he questioned the constitutional right to privacy; he once opposed integration of public accommodations by the 1964 Civil Rights Act, calling it “unsurpassed ugliness.” Even after a confirmation conversion, his views on civil rights were decidedly unfavorable to minorities.
After his defeat for being outside the mainstream, he resigned his federal judgeship and became a polemicist for ultraconservative ideas. Whether Mr. Romney picked Mr. Bork for his legal views, to arouse the right wing or both, the choice is disturbing.
George Anastaplo
The reservations recorded by Thomas Engeman in his generous 1989 review of The Constitution of 1787 pale upon comparison with the accompanying commendations of my book by this thoughtful student of American institutions.
A reminder of the volatile circumstances in which the Federalist articles were issued should put us on notice about how they should be regarded and hence read. Those eighty-five articles, published in New York journals between October 1787 and April 1788, were prepared to deal with the formidable difficulties faced in getting the draft Constitution of 1787 ratified in that State. What “needed” to be said could vary markedly as volatile issues developed in public discourse in New York. Sometimes, indeed, changes in circumstances could even lead to reliance by the Federalist on arguments contradicting what had had to be maintained earlier by its authors.
It is this, in part, which makes it difficult to regard the arguments in the Federalist articles as virtually authoritative interpretations of the Constitution of 1787, however instructive the rhetoric resorted to by the eminently talented authors of these articles may be. The primacy of the Legislature, among the three branches of the General Government, is not only evident in the 1787 text but is consistent with the constitutional system understood to have been inherited from the British. Adjustments had been made to strengthen the Legislature even further by permitting Congressional overriding of any Executive veto.
Systematic review of the constitutionality of Acts of Congress by the National Judiciary is obviously not provided for in the Constitution, a development that would have been regarded by the Framers as an unwarranted (if not even as a dangerous) empowerment of men not readily subject to correction. The supremacy of Congress among the branches of the General Government echoes that supremacy of the People taken for granted throughout the Constitution.
The perhaps natural inclination of any Executive toward self-aggrandizement is evident in how the Presidency has tended towards ever-greater power in this Country since the Civil War. Even so, it should be obvious that any Congress, aware of its power and its duties and determined to act sensibly, can properly discipline severely any Executive or Court that steps out of line. The Congress itself is, of course, subject to continuing discipline by the People at Large in ways that the Executive and the Courts are far less likely to be.
The calibre of the authors of the Federalist (we again notice) is obviously such that whatever they published, however necessarily partisan it may have had to be, can be quite instructive for the student of politics in this Country. For a careful study of these remarkable articles there is available the quite useful concordance to word usage in the Federalist published (in 1988) by Professor Engeman and his colleagues.
Also useful is the thoughtful survey provided, in the Engeman review, of the organization of The Constitution of 1787. There may even be heard here an echo of Harry V. Jaffa’s observation about this Commentary, that it was the first time that anyone had read the Constitution like a book. The 1787 document indeed a great book which draws upon and recognizes, as properly authoritative, the well-documented constitutional heritage of the English-speaking peoples.
George Anastaplo
I
The only extensive discussion of Thomas Aquinas in Leo Strauss’s Natural Right and History (1953) is during the transition in the book from “Classic Natural Right” to “Modern Natural Right.” That passage begins thus (at page 163):
The Thomistic doctrine of natural right or, more generally expressed, of natural law is free from the hesitations and ambiguities which are characteristic of the teachings, not only of Plato and Cicero, but of Aristotle as well. In definiteness and noble simplicity it even surpasses the mitigated Stoic natural law teaching. No doubt is left, not only regarding the basic harmony between natural right and civil society, but likewise regarding the immutable character of the fundamental propositions of natural law; the principles of the moral law, especially as formulated in the Second Table of the Decalogue, suffer no exception, unless possibly by divine intervention [G.A.: as perhaps may be seen in the attempted Sacrifice of Isaac?].
Among the consequences of the kind of shift noticed here is that natural law is more apt to be used among us today than is natural right (something evident, by the way, in the title “correction” by law review editors in 1993 of an article of mine, “Natural Law or Natural Right?,” so as to read, “Natural Law or Natural Rights?”).
II
The availability to Thomas of what he evidently considers reliable revelations permits him to recognize moral precepts that can be acted on virtually without exception. This is in marked contrast to the Strauss reading which had included these observations (p. 162):
The variability of the demands of that justice which men can practice was recognized not only by Aristotle but by Plato as well. Both avoided the Scylla of “absolutism” and the Charybdis of “relativism” by holding a view which one may venture to express as follows: There is a universally valid hierarchy of ends, but there are no universally valid rules of action.
Further on, Mr. Strauss can suggest (p. 163), “The only universally valid standard is the hierarchy of ends,” ends which should take into account what may be “most urgent in the circumstances” (p. 162).
III
The Thomistic (if not, generally, the Christian) approach to these matters can be usefully compared to that of, say, the young Moses Maimonides who responded, in his Letter on Apostasy, to a desperate inquiry from a North African Jewish community that was facing a dreadful ultimatum, “Convert to Islam or die.” Those vulnerable Jews were advised by Maimonides that they could (indeed, should) do much to seem to convert if that would permit them to survive in order to return eventually to an open practice of their ancient faith. Maimonides, exercising on that occasion a prudence that Aristotle would probably have endorsed, could dismiss as a “fanatic” another (older) rabbi who had insisted that this community should become martyrs to their faith, a rabbi who may have been unduly influenced by the greater openness of both Christianity and Islam to martyrdom as the gateway to that eternal personal bliss that Jews have always seemed far less sure of.
IV
These observations might suggest for some a question about how well Thomas understood Aristotle. This is not to deny, of course, that the Thomistic commentary on the Nicomachean Ethics may be the best available. But it can be wondered what a millennium and more of Christian experience and expectations had done to the grasp in the West both of human nature and of the requirements of prudence.
V
A clue to Thomas’ limitations here may be found in how he comments on the discussion, in Book One of the Nicomachean Ethics, of the question whether the Dead are affected by what happens on earth to their descendants. Of course, whether the Dead thus care (as Achilles, in Hades, is presented in the Odyssey as very much caring about his son’s earthly exploits) does depend in part on whether the Dead live beyond the grave. Thomas so reads the relevant passage in the Ethics, however, as to be able to ignore what Aristotle may be discreetly suggesting there about the temporal limits of human life.
VI
Leo Strauss seems to indicate that Thomas helped prepare the way to modern natural right. Particularly important here may be the Christian reliance upon the conscience, or synderesis (and hence upon constant access to divine guidance?), something that Aristotle (among others in antiquity) had not considered available enough to rely on. And this access may be seen to contribute to that emphasis on the individual that can be said to be critical to modern natural right.
VII
Mr. Strauss observes (p. 164) that “intellectual perfection or wisdom, as unassisted human reason knows it, does not require moral virtue.” I have chanced to question this assumption, particularly in my identification of Martin Heidegger as “the Macbeth of philosophy.” That is, I have been moved to wonder about the ultimate reliability of any serious thinking about critical philosophical questions by anyone as morally flawed (that is, as unable to see critical moral realities) as Heidegger was revealed to have been (a presumptuousness on my part which may even seem to question therefore the Straussian lifelong commendation of Heidegger as a remarkable Thinker, indeed as perhaps the greatest in the Twentieth Century, however dreadfully flawed he turned out to have been morally).
VIII
Aristotle, it can be recalled, has been said to be the teacher of Alexander the Great. But what, we must wonder, could Alexander, who turned out to be remarkably flawed, have truly learned from Aristotle? He did sense, it seems to me, that Aristotle would not have approved of much that he had come to be and hence to do, an awareness on his part reflected in the report by Plutarch that Alexander (without any reliable evidence) came to suspect Aristotle of plotting his overthrow from a great distance.
IX
The remarkable astuteness of Thomas Aquinas, in dealing competently with one subject after another across decades, might even make one wonder what he “really believed.” I myself somehow gathered that Leo Strauss, in his last years, came to suspect that the remarkably intelligent and learned Thomas Aquinas he had come to know must have had more reservations about the religious orthodoxy of his day than he considered it responsible to make explicit. This would permit us to question, among other things, the story that has Thomas eventually repudiating his massive intellectual accomplishments as mere “straw,” an assessment that might even call into serious question any Faith that may have seemed to require such an apparent absurdity.
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These remarks, of April 21, 2012, were prepared for the graduate students in a seminar on Leo Strauss’s Natural Right and History (1953) offered by Professor Larry Arnhart at Northern Illinois University. See, for the challenging work of Professor Arnhart, his blog, Darwinian Conservatism.
Our Character Is Our Fate: The Constitutionalism of George Anastaplo
George Anastaplo, The Constitution of 1787: A Commentary
(Baltimore: The Johns Hopkins University Press, 1989).
Cited in the text as (I: – ).
George Anastaplo, The Amendments to the Constitution: A Commentary
(Baltimore: The Johns Hopkins University Press, 1995).
Cited in the text as (II: – ).
If we could first know where we are, and whither we are
tending, we could better judge what to do, and how to do it.
-Abraham Lincoln
One benefit of George Anastaplo’s prolific publishing is that his readers are able to see what Anastaplo thought years ago about controversial issues now generally considered somewhat settled. This should equip readers to judge what he thinks about important issues today. Thus, since the early 1950s Anastaplo has been critical of many of our actions during the Cold War, just as he is now critical of many of our actions in the Persian Gulf struggle against the tyrant Saddam Hussein.
I recall that thirty years ago, upon the sudden death of Willmoore Kendall, Anastaplo was recruited to offer a series of seminars in political philosophy at the University of Dallas. (These were semester-long courses on Plato, Aristotle, Machiavelli, and Hobbes.)
I also recall how receptive I, a veteran of three years in the Army, and a conservative student at the University was at the time to arguments supportive of our campaign in Vietnam. Anastaplo, in the course of conversations in and out of the classroom, questioned the easy acceptance of the common opinion of the day in support of that war. I myself have come over the years, to see the wisdom of his critique of the whole Cold War in general and of our efforts in Vietnam in particular, however noble our original intentions no doubt were. Indeed I am, and I suspect others are also, embarrassed now by the arguments we found persuasive during that dreadful time.
It was also at the University of Dallas that I learned from Willmoore Kendall to question the claims by Presidents and their supporters to have knowledge, understanding, or authority superior to the Congress in both domestic and foreign affairs. How much less would have been the cost to the generation that had to fight in Vietnam, and to the generations that followed, had the views of Congress and of critics such as Anastaplo carried the day. However much punishment Saddam Hussein personally deserves, has our Gulf War policy been just or prudent? Are there not likely to be serious costs not yet anticipated?
Anastaplo’s The Constitutionalist, Human Being and Citizen, The Constitution of 1787, “On Freedom,” Lessons for the Student of Law, The American Moralist, and The Amendments to the Constitution- all discussed in this symposium- provide compelling examples of how a scholar, working from the public record and drawing upon a constantly reexamined set of moral and political principles, may benefit his fellow citizens as they attempt to deal with passions that are necessary but not sufficient for a sound patriotism.
I
With the publication of The Constitution of 1787: A Commentary and its companion volume The Amendments to the Constitution of the United States: A Commentary, George Anastaplo completes his bicentennial-inspired reflections on the aspirations, character and limits of American constitutionalism. Twenty-five years earlier in his treatise The Constitutionalist: Notes on the First Amendment, Anastaplo examined the principles upon which the American regime rests from the perspective of the First Amendment. In these two later Commentaries he further elaborates on that theme, this time from the perspective of the entire Constitution. There are significant differences as well as similarities between The Constitutionalist and these Commentaries. The differences and the similarities may be summed up in the suggestion that The Constitutionalist addresses a limited audience of scholars, while these two Commentaries address the wider audience of citizens and beneficiaries of the Constitution.
a PDF of the full text is here.
Explication De Constitution
Thomas Engeman
George Anastaplo: The Constitution of 1787: A Commentary (Baltimore: The Johns Hopkins University Press, 1989. Pp. i-xx, 340. $10.95.)
This is a unique and intelligent work of Constitutional interpretation. George Anastaplo, a professor of law at Loyola University and lecturer in the liberal arts at the University of Chicago, has written a work of deep learning and, arguably, of deep error. However, one cannot read the Commentary without learning a great deal about the political thought and jurisprudence of the Founders.
The Constitution of 1787 has seventeen chapters, expanded from the original fifteen public lectures delivered at the Rochester Institute of Technology in the academic year 1985-1986. Essentially this is a direct commentary on the text of the Constitution. All but four of the chapters are concerned with an analysis of the Preamble though Article VII. An indication of the focus of Anastaplo’s interpretation can be observed in the different weight assigned to the four chapters devoted to Article I, in comparison to the four chapters devoted to Articles II and III combined. This leaves one chapter each for the preamble and the last four articles (IV-VII).
Framing and completing the Commentary are four background chapters: Chapter 1, “The Constitutions of the Americans”; Chapter 7, “Anglo-American Constitutionalism”; Chapter 12, “The State Constitutions in 1787”; and Chapter 17, “The Americans of the Constitution.” Finally, there is an extended “Appendix and Sources” of 68 pages. Here 13 key documents are assembled, including the usual Founding documents, plus vital, but often ignored, texts: “Resolutions of the Federal Convention Providing for the Transmittal of the Proposed Constitution to the Confederation Congress (1787),” “Congressional Resolution Transmitting the Proposed Constitution to the States (1787),” and the “Congressional Act for Putting the Constitution into Operation (1788).” Also included here are the “Proposed Amendments to the Constitution Not Ratified by the States (1789-1978).”
What shines through Anastaplo’s interpretation are the remarkable powers of the American people for self-government. This theme may be best seen in the fourth of Anastaplo’s seven epigraphs: “The Constitution of the United States…is internally consistent in a remarkable degree, an extraordinarily fine example of eighteenth-century legal craftsmanship. …So, if the Constitution were allowed to operate as the instrument was drawn, the American people could, through Congress, deal with any subject they wished, on a simple, straightforward, nationwide basis, and all other subjects, they could, in general, leave to the states to handle as the states might desire” (William Winslow Crosskey) (p. ix).
To elaborate this thesis, the Commentary analyzes the “dozen or so constitutions” of the American people. English constitutionalism, especially the “public common law,” was, according to Anastaplo, “repeatedly drawn upon by the British Colonies in North American and thereafter by the American States in the way they organized themselves in deliberative bodies (that is, in conventions and legislatures), as well as in the way they selected the members of various assemblies of government. This law of public bodies is evident also in the way the Federal Convention of 1787, and thereafter the State Ratification Conventions, assembled and conducted themselves” (p. 4). This is probably the most intelligent paean to the capacity of the American people for self-government that can be found.
Anastaplo analyzes the constitutional limitations on executive power, especially the provisions sharing foreign policy powers with Congress. It is within this context that his overall argument, that Congress has sufficient powers to be the dominant body in a strong national government, is most controversial. Anastaplo points to the excesses of executive power in recent administrations, especially Iran-Contra (pp. 32-33, 312n.; 41, 317-19n,; 85). (It should be added that Anastaplo argues that the Supreme Court has also acquired excessive power through its capitalization of judicial review). Although Anastaplo concedes that Congress may overstep its power in foreign affairs, he does not believe that such a point has been reached in such measures as the War Powers Resolutions.
Anastaplo denies that the strong, independent executive of the Federalist is a necessity. “Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number” (Federalist, No. 70). It perhaps goes without saying that Anastaplo’s reading of the Constitution is openly critical of the Federalist (pp. 225-26, 315n.; 71, 322n.; 106). This depreciation of the executive is the most problematic part of Anastaplo’s Commentary.
However, the virtues of Anastaplo’s analysis are great. His Commentary does more than remind the reader of the democratic basis of the regime. It clearly focuses his attention on the extraordinary rationality of the electorate and of the American political process, as a whole. The Framers’ political culture can be trivialized, as Forrest McDonald has done in his E Pluribus Unum (1965). And their constitutional compromises, especially on federalism and slavery, are not above reproach. Anastaplo, however, strips away the frequently simple-minded criticisms of most intellectual analyses of American institutional history (on both the left and the right). He reveals the remarkable tradition of Anglo-American law and democratic organization animating the Framer’s constitutionalism. No one, in recent years, has captured this natural American populism, and the Framer’s fine legal craftsmanship, as well.
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[This book review was published in The Review of Politics, vol. 51, no. 4 (Autumn, 1989), pp. 612-13. The reviewer was, at that time, Professor of Political Science, Loyola University of Chicago.]