Review of Anastaplo’s “The Amendments to the Constitution: A Commentary”

by Herman Belz,

University of Maryland at College Park

 

 

 

Copied from The American Journal of Legal History, vol. XL, pp. 395-97 (1996).

GEORGE ANASTAPLO, The Amendments to the Constitution: A Commentary. Baltimore: Johns Hopkins University Press, 1995. xx, 466 pp. $48.50 (cloth), $16.95 (paper).

This book, a sequel to the author’s The Constitution of 1787:  A Commentary, is a learned, illuminating and idiosyncratic analysis of the American regime as seen in the amendments to the Constitution.  Although Anastaplo is a professor of law, his writing on the Constitution is decidedly nonlegalistic.  Adopting the perspective of the political scientist, he analyzes constitutional developments not only in relation to their social and cultural context, but also in the light of moral and political philosophy.  I do not imply that Anastaplo gives anything less than the most thoughtful and scrupulous attention to the constitutional text.  Indeed, his concern for the words of the Constitution, and the ideas and principles to which they refer, gives his commentaries their distinctive character as philosophically informed, humanistic treatises.  Anastaplo’s constitutional writing differs notably from conventional treatises and commentaries that explicate judicial interpretation of the Constitution in a legalistic manner.

Conceived and presented in the form of public lectures, the book analyzes the 27 amendments to the Constitution. It also includes chapters on education in the early republic, the Confederate Constitution of 1861, and the Emancipation Proclamation of 1863.  Anastaplo’s thesis is that the amendments to the Constitution have generally refined, if not merely confirmed, changes and developments in the society.  The first twelve amendments left the original constitutional system essentially intact.  The Bill of Rights, comprising most of these amendments, identified and enumerated rights which were always applicable against governments in the Anglo-American tradition.  In Anastaplo’s view, these amendments extended and reinforced the rule of law under the supreme power of the people.  Rather than being libertarian in a modern sense, the Bill of Rights, no less than the Constitution, rested on the idea that the protection of individual rights is dependent on the establishment and perpetuation of good government.

Amendments 13 through 27 reflect political and social developments generated largely by the equality principle of the Declaration of Independence, which Anastaplo says was taken for granted, though compromised, in the Constitution of 1787.  The “end,” or as we would say the principal motive and driving force of constitutional developments in the United States, the equality principle is in Anastaplo’s view a historical manifestation of the effects of modernity.  The strong philosophical tendency of the author’s commentary can be seen in his observation that the contending applications of the equality principle, implicated in many episodes in constitutional politics, must be accommodated on the basis of even higher principle.  This is the “principle of excellence grounded in liberty that finds just and substantial expression through the dictates of prudence.” (p. 6)

Anastaplo’s commentary embodies and is informed by the classical philosophical concept of natural right.  Not to be confused with the modern idea of “natural rights,” the idea of natural right holds that human beings, through the faculty of reason, have access to and can obtain knowledge of that which is “right by nature.”  This idea is found, for example, in Anastaplo’s appeal to “natural constitutionalism.”  He states that although the framers of the Constitution to a remarkable degree “rose above circumstances,” they recognized that “there had to be compromises that would keep the Constitution from conforming even more that it did to that natural constitutionalism which it is salutary to recognize as guiding the strivings of Americans from the beginning” (p. 169).  The same idea appears in Anastaplo’s view of the common law, the existence of which the Constitution takes for granted, as a significant carrier of morality which attempts “to apply enduring natural-right teachings to the ever changing circumstances of the day” (p. 205).  Although he reflects the anti-positivist and anti-utilitarian outlook evident in much constitutional theory today, Anastaplo is not an uncritical proponent of natural right.  Nothing that the proponents of equality at times tend to ignore aspects of nature, he says: “Perhaps no single topic is in as much need of serious examination today by thoughtful students of politics, as well as of philosophy, as is the topic of the nature of nature” (p. 123).

A concluding chapter presents Anastaplo’s reflections on political tendencies likely to shape constitutional development in the twenty-first century.  He discerns a trend toward the expansion of the electorate and continued democratization of the electoral process, toward what he regards as the delusive end of limiting the activities of government and encouraging the people to believe they are capable of exercising the legislative function.  The constitutional significance of this development is further to transform the polity from a republican regime grounded in representative legislatures, to a plebiscitary democracy that elevates the President and other executive officers to preeminence.  The problem, however, is that this preeminence is defined by proliferation of expectations on the part of the electorate which it is impossible to fulfill.  This is what happens when political thinkers and actors fail to understand the natural limits of politics.

Anastaplo takes an irenic, nonideological and holistic approach to constitutional interpretation that is in marked contrast to the aggressively instrumental and deconstructive tendency found in much contemporary legal commentary.  From a more strictly historical standpoint, Anastaplo’s book will be of interest to legal historians as an attempt to recover a type of commentary and analysis characteristic of early American constitutionalism.

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