by Milner S. Ball*
GEORGE ANASTAPLO, Reflections on Constitutional Law. Lexington: University Press of Kentucky, 2006. Pp. xii + 269.
George Anastaplo has been publishing treatises and commentaries on constitutional subjects since 1971. In this book he does not engage in systematic analysis or sustained argument. He offers instead exactly what the title advertises, a collection of reflections. He alternately identifies them as “sonnets” (x). They compose an experiment.
Anastaplo taught law and political science in Chicago for decades—at the University of Chicago’s extension division, at Dominican University, and at Loyola Law School. That, though, hardly begins to describe him. Graduating first in the University of Chicago’s law school class of 1951 after serving in the Air Force during World War II, Anastaplo applied for admission to the Illinois bar, starting a saga that ended a decade later. The Bar’s character and fitness committee noticed that one of his answers on their standard questionnaire indicated that Anastaplo believed in a right of revolution as expressed in the Declaration of Independence. This led the committee to ask him whether he was a member of the Communist Party. Anastaplo refused to answer, on First Amendment grounds. The committee then denied him admission to the bar, an action upheld by the Illinois Supreme Court. The U.S. Supreme Court refused to review that decision. [See, on the original Character Committee hearing, the note appended to this generous book review.]
A few years later Anastaplo renewed his application, citing intervening Supreme Court decisions. The committee held what Justice John Marshall Harlan later called “a wide-ranging exchange” with Anastaplo about his views of political theory, after which the committee again voted, 11 to 6, against his admission to the bar because his refusal to answer questions about his membership in the Communist Party made it impossible for the committee to certify that he was “worthy of the trust and confidence of the public.” This time the U.S. Supreme Court did hear Anastaplo’s appeal, which he argued himself, but it didn’t matter. Five justices agreed that he could be denied admission to the bar because of his refusal to answer questions about his political affiliations. Dissenting, Justice Hugo Black wrote that Anastaplo’s actions resulted “from a sincere, and in my judgment correct, conviction that the preservation of this country’s freedom depends upon adherence to our Bill of Rights, and that the “very most that can fairly be said against Anastaplo’s position…is that he took too much of the responsibility of preserving that freedom upon himself” (366 U.S. 82, 114 (1961)). He was, according to Justice Black, one of those “who have most greatly honored the profession of the law” by “dar[ing] to speak in defense of the causes and clients without regard to personal danger to themselves.”
Anastaplo’s service and scholarship earn him the freedom to experiment. He supports his exercise of it here with a tight structure. His discussion of cases and subjects more or less follows the order of a standard, two semester constitutional law course. He divides the whole into two parts of thirteen chapters each, roughly corresponding to the number of weeks in a semester. The chapters follow a pattern. Each covers six to seven pages and is divided into nine subparts. Each subpart contains three short paragraphs. There are no footnotes.
The absence of footnotes is a welcome aid to readability and so, too, is the brevity of the chapters, subparts, and paragraphs. But the format is vulnerable to repetition. It can also lend to Anastaplo’s voice a sermonic tone. For example, the briefest chapter, five pages (97-101), is devoted to the broadest subject. It warns against realist skepticism’s promotion of nihilism and commends “reliability in the workings of human nature,” the “sense that peoples have of the Divine” (100), and an “awareness of an enduring goodness that we have and that we expect others to have, if properly guided” (101). A reader’s doubts are aroused: What reliability? What sense of the Divine? What enduring goodness? What proper guidance?
Anastaplo writes out of a devotion to reading the Constitution “rigorously” (xi). This means “notice[ing] what is there,” recognizing the “document’s vital elements,” and being aware of “the principle of order implicit in the document” (5). Such reading requires that the eye be schooled by careful attention to other, relevant documents. Those he draws on and recognizes as primary are included in an eighty page appendix: Magna Carta, for example, the Declaration of Independence, the Northwest Ordinance, and the Confederate Constitution, too, “which throws light back on the Constitution of 1787” (108).
The Confederate Constitution provides an example of his approach (108-13). He points out that its authors were good students of the 1787 Constitution and certainly believed that its language mattered very much (7). They copied more than 75 percent of it (109), and what they chose to exclude, add, or change calls attention to what is there in the 1787 Constitution. The Confederate Constitution’s embrace of slavery, for example, highlights the original’s toleration of it. Its omission of reference to the people as a whole and to the general welfare draws attention to the United States’ support of both. Its invocation of “the favor and guidance of the Almighty God” (239) marks a shift “from reliance upon the political religion of the Declaration of Independence…to the actual religion(s) of the day” (111-12).
Perhaps, he suggests, the Confederate Constitution’s limit of one term of six years for the president (113, 248) was premonitory of the present limit of two terms of four years, and its line item veto (113, 243) an indication of the modern struggles over the practice. And maybe the Confederacy had a good idea in providing for cabinet officers a seat in Congress with the privilege of discussing matters relevant to their departments (113, 242).
As it turns out, noticing what is in the 1787 Constitutional text requires not only noticing other, related documents but also noticing what is not in the text: common law and natural law. One of the cases Reflections returns to several times is Erie Railroad Company v. Tompkins, and the treatment of it is illustrative of the book’s method and the author’s basic commitments.
Anastaplo notes that the terseness of the U.S. Constitution’s Article III reflects the Framers’ understanding of common law as “integral to their system” (xiii)”: “[L]ittle had to be said about the national judiciary because it was to be very much like the long-relied-upon British judiciary—and this meant, among other things, that it should have significant power for helping to shape the common law of the Country” (86).
The Erie doctrine is to be understood as an assault on this essential power and responsibility of the federal courts. The Court held in Erie that, in diversity cases in the absence of an applicable federal statute, federal courts are to follow the law of the state involved. They are not, Brandeis wrote for the Court, to develop “a federal general common law” (44). Anastaplo agrees that there should be no federal common law but only because there is not a division between federal and state common law. There is but one, and federal courts “should, in a properly explained system, have had considerable influence, if not even authority, in all common law courts (whether state or federal) in the United States” (42).
More than uniformity is lost with Erie. The inherent value of the common law is that, with the aid of lawyers and scholars, judges have developed a centuries-old process of legal reasoning that draws “on precedents and on a reliable sense of what is by nature right” (43). Instead of encouraging judges to nurture and rely upon their natural inclination “toward the sensible and the fair” (73), Erie ratifies a jurisprudence that undermines “respect for natural law/natural right which questions the Nihilistic tendencies of a hedonisitic modernity” (xiii).
I have doubts about natural law and am unprepared to raise alarms about hedonisitic modernity, but Anastaplo’s emphasis on concentrated ways to read the Constitution is worthy.
And he is right to chastise Congress’ refusal to read the Constitution responsibly when it failed to take issue with “the remarkable judicial usurpation evident in Bush v. Gore” (77).
That systemic breakdown left enough “doubts about the legitimacy of the Bush Presidency” to make one wonder “whether a more secure Administration” might have acted differently in its early days and after 9/11. It may even be suspected “that unnecessary measures (and especially the ‘preemptive’ war against Iraq)” may have been “resorted to partly in order to secure the political legitimacy that the Supreme Court had failed to confer…in December 2000” (79). Has the Court’s own legitimacy by now escaped unharmed?
[This is George Anastaplo’s recollection, as of November 2010, of how his Illinois bar admission controversy began in November 1950: The two-member subcommittee, of the Character and Fitness Committee, asked George Anastaplo (as it was asking many other candidates at that time on an evidently random hasis) whether he had “an opinion as to whether or not a member of the Communist Party would be eligible to take the oath of office of a lawyer in the state of Illinois, honestly, and he admitted as a lawyer.” His reply was that he did not see why not. He was then told that members of the Communist Party believed in revolution. He replied that it is fundamental to the American creed that the overthrow of an unsatisfactory government was possible and sometimes desirable. It was this recognition by him of the right of revolution, as set forth authoritatively in the Declaration of Independence, which moved a Subcommittee member to ask whether George Anastaplo was a member of the Communist Party. His repeated refusals to answer such a question (about membership in various organizations, such as the Communist Party and the Ku Klux Klan, among others) meant he would not be admitted to the Illinois bar.]
* Milner S. Ball is the emeritus Caldwell Professor of Constitutional Law at the University of Georgia. Citations to Reflections on Constitutional Law appear as parentheticals in the text.