Review of Anastaplo’s “Reflections on Life. Death, and the Constitution”

by Jules Gleicher,

Rockford College

Copied from The American Journal of Legal History, Vol. L, pp. 459-60 (2008-2010).

 

GEORGE ANASTAPLO, Reflections on Life, Death, and theConstitution. Lexington:   The University Press of Kentucky, 2009. 312 pp. $70.00 (cloth). $26.95 (paper).

This book is the third installment of a projected ten-part series of “Reflections,” the previous two having revolved around the themes of constitutional law (2006) and freedom of speech (2007).  Each book in this Decalogue is to consist of twenty-six essays (suggesting perhaps the comprehensiveness of covering its topic from A to Z), organized into two parts of thirteen chapters (reminiscent of the tablets of the Ten Commandments and Moses Maimonides’ “Thirteen Articles of the Faith”?), plus a Preface, supplementary Appendices, and an extensive Index.  The magnitude of this undertaking, as well as other considerations, leaves the reader in awe of Professor Anastaplo’s authorial ambition.

Further, each chapter is divided into nine numbered sections, each section containing three paragraphs of three sentences (not counting sometimes lengthy block quotes, but including quotes worked transformatively into the author’s sentences).  Other mathematical organizing principles are alluded to in the Preface and suggested by the thematic ordering of chapters.  In a word, this is a very premeditated work, the deliberate structure of which must moderate any first impression of desultory or meandering or merely whimsical discourse.

One may appreciate the usefulness of this formalism (which the Preface calls “constitutional sonnets”) in terms of an observation by Marcel Proust, which Professor Anastaplo quotes in his first book, The Constitutionalist:  Notes on the First Amendment (1971), that “the tyranny of rhyme [may] force [great poets] into the discovery of their finest lines.”  As well as imposing discipline upon himself, the author may in this way convey “subliminally” the teachings that we inhabit an ultimately orderly cosmos and that we should seek rational informing principles even in apparently random phenomena.  Still, I cannot but wonder whether this kind of textual order has been bought at the price of often substituting rhetorical questions for elaborating arguments as thoroughly as the author certainly could.

The book’s announced primary audience is “the student of law”—or, more expansively, “legislators, judges, and other citizens interested in the principles and practices of the Constitution.”  The coverage of significant cases in American constitutional law which occupies half the chapters—on such topics as public health regulations, compulsory flag salutes, conscientious objection, religious liberty, contraception, abortion, capital punishment, assisted suicide, licensing of medical marijuana, and the teaching of evolution and of anti-Darwinian doctrines—contains little analysis of the actual judicial opinions with which law students would not already be acquainted.  Rather, the essays’ considerable value lies in the author’s application to these cases of political, philosophical, and (surprisingly) personal observations developed more fully in some of the thirteen other chapters.

Stated otherwise, this book (and, I suppose, the other in the series) attempts to expand the intellectual and moral horizons of students of law by attuning them to the scope and the subtlety of great works of literature and longstanding issues of politics.  It may thereby also compensate for a possibly inherent tendency toward narrow technical concerns in modern legal training and practice.  Especially enlightening in this regard are the discussions of non-Western attitudes toward suicide, of Dostoyevsky, of Shakespeare’s Hamlet, and of Allied obliteration bombing during World War II, and expressions of the author’s affection for the ancient Athenian polis and the English Common Law tradition.

I must note, however, that the connection between the separate concepts announced in the book’s title sometimes seems forced.  It should, of course, not surprise that the literary chapters dealing with human morality say nothing about the U. S. Constitution, but neither do they in every case evidently speak to the concept of constitutionalism—unless we think in the most abstract terms about the way things in general are “constituted.”  Conversely, the link between the flag salute cases and “life and death” seems to be the Jehovah’s Witnesses’ religious motivation, which may in fact have had as much to do with their desire to lead righteous lives as to secure eventual immortality through the resurrection of the privileged dead, and which the U. S. Supreme Court ultimately disregarded by resolving the controversy on free speech grounds.

These and other peculiarities—e.g., the discrepancy on how many people’s deaths Hamlet causes; the author’s reticence to identify Justices McReynolds, Frankfurter (even in the Index), and Black by name; or his seemingly easy assumption of “liberal” positions on contemporary issues—should not, however, obscure the virtues of this book or the author’s many other books and articles.  Foremost among these virtues is these pieces’ ability to surprise by viewing the familiar from unaccustomed perspectives.  Nor can one disregard the common sense, decency, and (in its peculiar way) heroic optimism that make this and Professor Anastaplo’s other works objects of wonder and perhaps of emulation.

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