The American Scholar Revisited (2010)

by George Anastaplo

When I have fears that I may cease to be

Before my pen has glean’d my teeming brain,

Before high-piled books, in charact’ry,

Hold like rich garners the full-ripen’d grain;

When I behold, upon the night’s starr’d face,

Huge cloudy symbols of a high romance,

And think that I may never live to trace

Their shadows, with the magic hand of chance;

And when I feel, fair creature of an hour,

That I shall never look upon thee more,

Never have relish in the faery power

Of unreflecting love!—then on the shore

Of the wide world I stand alone, and think

Till Love and Fame to nothingness do sink.

–John Keats, When I Have Fears (1818)

Table of Contents

1.  The Challenge of “The Occasion”:   On How One May “Work”

Appendix. Table of Contents for Further Thoughts on Abraham Lincoln: A Discourse on Politics, Chance and the Good (2011?)

2.  What Can It Mean to be “A Community of Scholars”?

Appendix. References to Discussions of Eric Railroad Company v. Tompkins (1938)

3.  Publish and Perish

Appendix. George Anastaplo’s Published Books and Available Book Manuscripts (prepared for the American Political Science Association Convention, Washington, D.C., September 2010)

See, also,  See, as well, Yale Biographical Dictionary of American Law (New Haven: Yale University Press, 2009), pp. 12-13; John A. Murley, ed., Leo Strauss and His Legacy: A Bibliography (Lanham, Maryland: Lexington Books, 2005), pp. 733-855.


I have been asked to say something about how I try to work as a scholar.  My book, The Christian Heritage: *Problems and Prospects, builds upon my collection in a 2001 issue of the Brandeis Law Journal.  This article (in volume 40, at pages 191-533 of the Journal) was entitled “Law & Literature and the Christian Heritage.”

That 2001 law review collection drew on more than two dozen “things” that had been originally prepared by me ever since 1956.  When the opportunity developed for preparing those 2001 materials for a 2010 publication in book form (with its twelve hundred notes somewhat brought up to date), I was able to add as appendices for the volume a dozen more not-unrelated things prepared by me during the past decade.  Thus, I would have added, if not already used, an essay on Islam included as a chapter, in my volume, But Not Philosophy:  Seven Introductions to Non-Western Thought (2002 ).  That essay inquires into how religious movements drew on their predecessors: originality in these matters seems to be hard to come by, at least on a comprehensive scale.

The first of my Christian Heritage appendices records one of a dozen conversations I had in 2000 with a Shoah (or Holocaust) survivor (a distinguished mathematician who had grown up in Lithuania).  Publishers are understandably reluctant, these days, to add still more Holocaust-related materials to their lists, no matter how “special” an author might (not unnaturally) believe his contribution to be (in this case, partly because the survivor has to deal again and again, with what he regards as the persistent questions of a naïve American).  And so I am publishing these conversations seriatim, appending them one by one (when relevant) to other things of mine.  One-fourth of them have already been published this way—and who can know because of this, what might be done with all of them together long after all of us are gone?

This Christian Heritage volume is testimony to my not liking to repeat myself when I am invited to prepare something for an audience.  Thus, I am reluctant simply to read something in any book of mine on such an occasion as this, especially since what is published is apt to be “fixed.”  That is, I cannot afford to waste any opportunity to think further about questions that challenge me.  Such an opportunity need not depend, of course, on the size of the audience on any particular occasion.

There are, because of the way I “work,” always several volumes that I am in the course of completing—and so what I prepare on such an occasion as this can usually be developed with the expectation of its eventually being useful in print somewhere.  On this occasion, of course, I would be glad to try to answer questions about things in my Christian Heritage book. But it should be useful, in introducing this volume, to make some suggestions about how the Christian heritage can be drawn on in an effort to understand what happens among us in this country.  Thus, I am challenged, on this occasion, to see how that heritage may be seen in the career of Abraham Lincoln, and for this purpose I have prepared remarks entitled “Golgotha on the Potomac.”  (especially since Lincoln himself is drawn on in a half-dozen places in my Christian Heritage volume).

These “Golgotha on the Potomac” remarks, I can add, should be the concluding essay in a volume, otherwise already prepared, in which there are to be collected thirty-nine discussions related to the career of Abraham Lincoln.  My first volume on Abraham Lincoln, published in 1990, was entitled by its publisher, Abraham Lincoln:  A Constitutional Biography.  My preferred title for that volume is Thoughts on Abraham Lincoln:  A Discourse on Prudence. My preferred title for a second Lincoln volume (nearing completion) is Further Thoughts on Abraham Lincoln: A Discourse on Politics, Chance and the Good.

I can add, as well, that routinely having at least a half-dozen volumes in view can seem to reduce, if it cannot altogether eliminate, the effects of unsettling chance in one’s scholarly career.  This can mean that what one does, even routinely, is neither wasted nor merely work.  That is, there can usually be found a place for whatever one may be privileged to “work” on from time to time, often in response  to such an invitation as brings me here on this occasion.


Table of Contents for George Anastaplo, Further Thoughts on Abraham Lincoln: A Discourse on Politics, Chance and the Good (2011?)


Part One: Looking Ahead to and also Beyond the Lincoln Presidency

1.     A Preliminary Conversation

2.     The Bank Bill Controversy of 1791: A Precursor to the Secession Crisis of the 1860s

3.     A Murder Trial in Springfield

4.     The Everyday Lawyer in a President for the Ages

5.     Abraham Lincoln, a Lawyer-President

6.     Our Disputed “Created Equal” Heritage

7.     The Declaration of Independence Revisited

8.     Abraham Lincoln and the Pursuit of Happiness

9.     Abraham Lincoln and the Family

10.       Slavery in the Territories

11.       The Cooper Institute Address

12.       Abraham Lincoln and the “Hard Spots” of Right-of-Revolution Doctrine

13.       A Political Autobiography

Part Two: The Lincoln Presidency

1.     Passion and Race Relations in the United States

2.     Freedom of Speech and the Coming of the Civil War

3.     Secession and the Rule of Law

4.     Abraham Lincoln at Independence Hall

5.     The Risks and Rewards of Civil War

6.     Songs of the Civil War

7.     The Remarkable Practicality of the Emancipation Proclamation

8.     Abraham Lincoln’s Four Annual Messages to Congress

9.     Life and Death in Abraham Lincoln’s Gettysburg Address

10.       Abraham Lincoln and Constitutional Amendments

11.       The Second Inaugural Address

12.       Abraham Lincoln and the Aboriginal Peoples of North America

13.       Superstition and Abraham Lincoln

Part Three: Looking Back to and also Before the Lincoln Presidency

1.     God in the Hands of an Angry Preacher

2.     The Geography and Economics of Slavery

3.     Aaron Burr, an Ill-fated Genius

4.     Abraham Lincoln, the Civil War Generals and Slavery

5.     Justice Chipman and the Perceived Greatness of Abraham Lincoln

6.     Abraham Lincoln’s Shakespeare

7.     The “Shakespearean” John Wilkes Booth’s Abraham Lincoln

8.     Walt Whitman’s Abraham Lincoln

9.     Nineteenth Century Giants: How Did They Matter?

10.       A Modern Realist’s Assessment of Abraham Lincoln

11.       Abraham Lincoln and the Republican Party Today

12.       But for the Civil War…

13.       Golgotha on the Potomac and the Resurrection of Abraham Lincoln


Afterword by Eva T.H. Braun, George Anastaplo’s Abraham Lincoln


The serious law school faculty aspires to be “A Community of Scholars.”  A scholar, we have been told, is “a learned person,” even “a specialist in a particular branch of learning.”  Community, we have also been told, is derived from communitas, suggesting a fellowship devoted to common interests, with its members informing, disciplining, and sustaining one another.

Specialization can make particular scholars both more useful to an extended community and yet less connected with one another in any particular place.  The most modern forms of electronic communication can make it ever more likely that the specialist will have more in common, and be more in meaningful contact, with someone thousands of miles away than with someone just down the hall.  Even so, a particular faculty may share enough to distinguish it from other faculties in the same institution.  This is evident at great universities today, where the typical public colloquium is apt to be attended only by scholars and students of the department, or even only of the section of the department, that happens to offer it.

Such isolationism can become even more acute with respect to the professional schools that may be part of a university “community.” These schools—which train professionals such as business managers, doctors, engineers, lawyers, ministers, nurses, and social workers—tend to be dependent on associations of practitioners in “the everyday world.”  This dependence is reinforced by the understandable need to place in plausible employment the multitudes of students graduated annually by such schools.  It can be expected, therefore, that an emphasis would be placed, by these faculties and students, on “the practical.”

All this can mean that the underlying principles and issues vital to the various professions among us are apt to be neglected, when they are not simply dismissed as (perhaps important) concerns better left to those (elsewhere?) of a more speculative turn of mind.  This may be seen, for example, in how few Constitutional Law specialists in this country these days recognize the serious misconceptions about the very nature of law (and especially of Anglo-American common law) at the core of the approach that has been ratified by Erie Railroad Company v. Tompkins (1938).  A “realistic” power-oriented approach, championed among us by Oliver Wendell Holmes, Jr., tends to be unaware of the alternative approach championed, across millennia, by scholars such as Aristotle, Thomas Aquinas, and Joseph Story, scholars concerned about enduring standards with respect to Right and Wrong.  In the circumstances made so much of by the modern realist there tends to be relatively little concern (as well as respect?) for the “community.”

An odd development with respect to “community” (as traditionally understood) has been the ever-increasing deference to “globalization.”  It can be prudent to wonder, however, whether peoples who attempt to associate intensely with one another on a worldwide basis can truly know (or really care for) one another.  Particularly misleading may be the assumption that economic relations can be fundamental to (if not even decisive for) meaningful human relations.  We should be reminded, for example, that perhaps the greatest of modern economists was once also celebrated as the author of a significant treatise on Moral Sentiments.

The perennial challenges confronted by professional schools are dramatized by the criticism made these days about business schools, as may be seen in a recent article in the Wall Street Journal (Diana Middleton, “B-Schools Try Makeover,” May 6, 2010, p. B-5).  It is there observed,

Business schools have been chastised publicly during the [current] financial crisis and for the better part of the past decade going back to the collapse of Enron…Many have blamed business-school education for creating the mind-set to manipulate the financial system and critics—even some inside the Ivory Tower have questioned whether management education is partly to blame.  “We taught our student how to look for cracks in the economy,” says [one business school dean].  “And we taught them how to exploit” those cracks.

Other professional schools can be troubled enough by all this to wonder how applicable the criticisms made of business schools apply to them also, criticisms such as these:

[P]lenty of skeptics, including business school insiders, say that… efforts to change curriculum and the tenor of management education will be difficult.  That’s partly because there’s little incentive to change the win-at-all-costs culture.  Despite the poor reputation [business] schools suffer, 66% of full-time programs received more applications in 2009 than in 2008…And companies, while pulling back on hiring over the last several years, haven’t made significant requests for changes in the skills graduates are learning…

It remains to be seen whether enduring changes will be made in what business-school students are taught to take most seriously, especially as it is recalled,

After the Enron and World-com scandals, many schools added ethics coursework to their curriculum, some weaving it into nearly every core class for M.B.A.s.  Others began requiring white-collar prison visits for students, and some schools began regular lectures from white-collar criminals.  But as the Enron fervor died down, so did these efforts.  None of the programs is still running today and most ended by late 2003.

Critical to any enduring reforms in such matters (and not only in business schools)—more important than such efforts as the “ethics coursework” just described—is a sustained inquiry (among established scholars, even more than among students) into the fundamentals upon which healthy communities depend (“in theory,” as well as “in practice”).  Scholars who aspire to sustain, and even to enrich, the community to which they owe allegiance may sometimes be tempted to recognize, with the “futility”-struck author of Ecclesiates (12:12), “The making of many books is without limit and much studying is a wearying of the flesh.”  Indeed, it may even seem to be a matter of chance whether any scholar’s efforts confer any immediate benefit upon the community thereby served, however significant such reflections may be toward such a scholar’s personal understanding of the Good.


References to Discussions of Erie Railroad Company v. Tompkins, 304 U.S. 64 (1938) and Related Matters

–William W. Crosskey, Politics and the Constitution in the History of the United States (Chicago: University of Chicago Press, 1953), pp. 818-937.

–William T. Braithwaite, “The Common Law and the Judicial Power:  An Introduction to Swift-Erie and the Problem of Transcendental versus Positive Law,” in John A. Murley, Robert L. Stone, and William T. Braithwaite, eds., Law and Philosophy: The Practice of Theory (Athens, Ohio: Ohio University Press, 1992), pp. 774-818.

–George Anastaplo, The Constitutionalist: Notes on the First Amendment (Dallas:  Southern Methodist University Press, 1971; Lanham, Maryland:  Lexington Books, 2005), p. xxxvii (in the 2004 preface); The Constitution of 1787: A Commentary (Baltimore: Johns Hopkins University Press, 1989), p. 333 (Index); The Amendments to the Constitution: A Commentary (Baltimore:  Johns Hopkins University Press, 1995), p. 458 (Index), Campus Hate-Speech Codes, Natural Right, and Twentieth Century Atrocities (Lewiston, New York: E. Mellen Press, 1999), p. 139; Abraham Lincoln: A Constitutional Biography [preferred title: Thoughts on Abraham Lincoln: A Discourse on Prudence] (Lanham, Maryland: Rowman &  Littlefield, 1999), pp. 283-84;  On Trial: From Adam & Eve to O.J. Simpson (Lanham, Maryland: Lexington Books, 2004), p. 477 (Index); Reflections on Constitutional Law (Lexington, Kentucky: University Press of Kentucky, 2006), p. 263 (Index);  Reflections on Freedom of Speech and the First Amendment (Lexington, Kentucky:  University Press of Kentucky, 2007), p. 309 (Index); Reflections on Life, Death, and the Constitution (Lexington, Kentucky:  University Press of Kentucky, 2009),  p. 288 (Index); The Christian Heritage:  Problems and Prospects (Lanham, Maryland:  Lexington Books, 2010), p. 344.


A “community of scholars” can indeed be a community, with its members helping one another understand and assess what is steadily offered worldwide as intellectual fare.  Efforts are made to let “everyone”(“everywhere”) know what has been done by way of “publication.”  It sometimes seems that the sophistication of current modes of electronic cataloguing and distribution may surpass that of the material being processed.

Particularly influential among legal scholars, it can seem, is law review publication.  Suggestions can be heard from time to time, from particularly sophisticated observers, about how law reviews are to be assessed, approached, and dealt with.  It is obvious that technicalities can be mastered about format, footnotes, and the like (an observation to which I presume to add the recollection that I have published books with more than one thousand notes and others with no notes at all).  Even the most propitious times for submitting articles can be suggested with plausible authority.

Major concerns here include our routine reliance on youngsters who (after only a year of study in the law) begin to assume responsibility for the publication of even the most prestigious law reviews in this country.  But by then they (with their fellow students) have already become practiced in passing judgment, anonymously, on how their professors have conducted their classes.  Be that as it may, we have all become accustomed to having ready access to hundreds of legal journals nationwide, usually produced on a quarterly basis.  It would not surprise us, therefore, if not too much of enduring worth should be produced under the supervision of youngsters who must sense that they themselves have a lot to learn.

That law journals are as respectable as they no doubt are can perhaps be attributed, at least in part, to the law professors who are their major contributors.  Such contributions are critical to the never-ending processes of tenuring and promoting in which law faculties engage.  That these rites of passage are somewhat ephemral is suggested by one’s suspicion that not 5% of what is printed in our law journals at any time is likely to be of much interest a decade later.  Yet this is where much legal scholarship ends up, supplementing what may be seen in lawyers’ briefs and judges’ opinions.

These exercises, on the part of those seeking tenure or promotion, are understandable.  And they do provide tests of sorts, subjecting prospects to a useful discipline (like close-order drill in the army). But it can be a mistake if such adroitness is mistaken for serious and enduring intellectual effort.  One may even be reminded of King Philip’s supposed rebuke to the future Alexander the Great, after hearing him perform at a banquet like a master of music, “Are you not ashamed, my son, to sing so well?”

All this bears on how carefully scholars (not only legal scholars) should be expected to read.  Consider, for example, the significance of Socrates’ observation, in justifying how he had conducted himself by sticking at the dangerous intellectual post divinely assigned to him in Athens, that he had done no more than that when he was assigned to military posts by the generals in the battles of Potidae, Amphipolis, and Delium (all battles, we may be intended to remember, in which the commanders died).  Consider, also, the significance of the inclusion, in Article I, Section 8 of the United States Constitution, of an explicit counterfeiting-suppression empowerment for Congress even though that very section includes as well both an extensive coinage power and a Necessay and Proper Clause.

It can be salutary to be reminded of an old-fashioned caution: one should not (as a scholar, or otherwise) be concerned primarily to advance one’s career, but rather to be genuinely instructed and instructive about the most important matters for the human being.  Consider, for example, this caution for the Human Being (with old-fashioned male-dominated language) found in Ralph Waldo Emerson’s celebrated 1837 address,“The American Scholar”:

Man is . . . metamorphosed into a thing, into many things.  The planter, who is Man sent out into the field to gather food, is seldom cheered by any idea of the true dignity of his ministry.  He sees his bushel and his cart, and nothing beyond, and sinks into the farmer, instead of Man on the farm.  The tradesman scarcely ever gives an ideal worth to his work, but is ridden by the routine of his craft, and the soul is subject to dollars.  The priest becomes a form; the attorney, a statute book; the mechanic, a machine; the sailor, a rope of the ship.  In this distribution of functions, the scholar is the delegated intellect.  In the right state he is Man Thinking.  In the degenerate state, when the victim of society, he tends to become a mere thinker, or, still worse, the parrot of other men’s thinking.

To be “metamorphosed into a thing” is to make oneself too much a prisoner of “the magic hand of chance” and passing influences, sacrificing thereby (for the sake of transitory nominal achievements) an enhanced examination of enduring questions.


George Anastaplo’s Published Books and Available Manuscripts (September 2010)

A. Published Books

I. The Constitutionalist:   Notes on the First Amendment (Dallas, Texas:   Southern Methodist University Press, 1971), pp. i-xiii, 1-826  [See, also, Item XV, below.]

II.  Human Being and Citizen:   Essays on Virtue, Freedom, and the Common Good (Chicago, Illinois:   Swallow Press; Athens, Ohio: Ohio University Press, 1975), pp.i-xiii, 1-332

III.The Artist as Thinker:   From Shakespeare to Joyce (Chicago, Illinois:   Swallow Press; Athens, Ohio: Ohio University Press, 1983), pp. i-xv, 1-499

IV. The Constitution of 1787: A Commentary (Baltimore, Maryland:   Johns Hopkins University Press, 1995), pp. i-xviii, 1-339 (with a Chinese translation evidently arranged for)

V.The American Moralist:   On Law, Ethics, and Government (Athens, Ohio:  Ohio University Press, 1995), pp. i-xxiv, 1-624

VI. The Amendments to the Constitution:   A Commentary (Baltimore, Maryland:   John Hopkins University Press, 1995), pp. i-xxii, 1-466

VII. The Thinker as Artist:  From Homer to Plato & Aristotle (Athens, Ohio:   Ohio University Press, 1997), pp. i-xv, 1-405

VIII. Campus Hate-Speech Codes and Twentieth Century Atrocities (Lewiston, New York: Edwin Mellen Press, 1997), pp. i-vi, 1-121 [See, also, Item XI, below.]

IX. Liberty, Equality & Modern Constitutionalism:   A Source Book (Newburyport, Massachusetts:   Focus Publishing House, 1999), vol. 1, From Socrates and Pericles to Thomas Jefferson, pp. i-xvi, 1-279; vol. 2 From George III to Hitler and Stalin, pp. i-xvi, 1-301

X. Abraham Lincoln:   A Constitutional Biography [alternative title: Thoughts on Abraham Lincoln:   A Discourse on Prudence] (Lanham, Maryland:  Rowman & Littlefield Publishers, 1999), pp. i-x, 1-373 (Foreword, in the next printing, by Eva Brann, to be taken from 46 South Dakota Law Review 666 [2001])

XI. Campus Hate-Speech Codes, Natural Right, and Twentieth Century Atrocities (Lewiston, New York:   Edwin Mellen Press, 1999), pp. i-vi, 1-196 [See, also, Item VIII, above.]

XII. But Not Philosophy:  Seven Introductions to Non-Western Thought (Lanham, Maryland:  Lexington Books, 2002), pp. i-xxix, 1-397  (Foreword by John Van Doren)

XIII. On Trial:   From Adam & Eve to O.J. Simpson (Lanham, Maryland:  Lexington Books, 2004), pp. i-xx, 1-499 (Foreword by Abner J. Mikva)

XIV. Plato’s “Meno”, Translation and Commentary (with Laurence Berns) (Newburyport, Massachusetts:  Focus Publishing House, 2004), pp. i-viii, 1-86

XV. The Constitutionalist:   Notes on the First Amendment (Lanham, Maryland:   Lexington Books, 2005), pp. i-lxxix, 1-826 (Foreword by Laurence Berns)  [See, also, Item I, above.]

XVI. Reflections on Constitutional Law (Lexington, Kentucky:  University Press of Kentucky, 2006), pp. i-xiii, 1-269

XVII. Reflections on Freedom of Speech and the First Amendment (Lexington, Kentucky:   University Press of Kentucky, 2007), pp. i-xviii, 1-321

XVIII. The Bible:   Respectful Readings (Lanham, Maryland:  Lexington Books, 2008), pp. i-viii, 1-401

XIX. Reflections on Life, Death, and the Constitution (Lexington, Kentucky:   University Press of Kentucky, 2009), pp. i-xii, 1-299

XX. The Christian Heritage:   Problems and Prospects (Lanham, Maryland:   Lexington Books, 2010), pp. i-xviii, 1-446 (Foreword by Martin E. Marty)

B. Available Book Manuscripts

1. Further Thoughts on Abraham Lincoln:  A Discourse on Politics, Chance and the Good (with a Foreward anticipated from Harry V. Jaffa)

2. September Eleventh:   A Decade of a Citizen’s Responses (with a Foreword anticipated from Ramsey Clark)

3. Simply Unbelievable:   Conversations with a Holocaust Survivor (the first three, of a dozen, conversations have been appended to recent Anastaplo publications, with one of these conversations translated for publication as well in a Spanish journal)

4. Shakespeareans All, More or Less (with a Foreword anticipated from David Bevington)

5. Reflections on Slavery and the Constitution

6. Reflections on Religion, the Divine, and the Constitution

7. Leo Strauss and the Strassians

* Remarks prepared as a Preliminary Statement for an Author Event, Seminary Cooperative Bookstore, Chicago, Illinois, May 13, 2010 (upon the publication of The Christian Heritage: Problems and Prospects [Lanham, Maryland: Lexington Books, 2010]).

* Remarks requested for a Faculty Retreat, Loyola University of Chicago School of Law, May 20, 2010.

* Remarks prepared for the launching of the 2010-2011 Academic Year.

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