In re. George Anastaplo

by John A. Murley [1991]

Just because you can do it doesn’t mean it can be done.

–Sara Prince Anastaplo, to her husband

I.

George Anastaplo, who was born in St. Louis in 1925, has long been distinguished among the first generation as perhaps the most “liberal Straussian.”  Not that he is conventionally liberal, as may be seen in the puzzlement Studs Terkel exhibited when interviewing him.1 Nevertheless, over a fifty-year career Anastaplo has recorded serious reservations about the Cold War policies of the United States, including our involvement in Vietnam.2 And independent of how much punishment he thought the dictator Saddam Hussein personally deserved, Anastaplo was critical of the Persian Gulf War.  He considers that war poorly advised, in part the result of the personal anger of a provoked President who was willing to manipulate the United Nations and American public opinion, and “virtually force upon the Congress a fait accompli.”  He remains quite dubious about our overwhelming support of a war that inflicted enormous casualties on a subject people “unable to defend themselves at all from our devastating sea, air, and ground attacks.”3 But Anastaplo can be “hawkish” when needed.  He supported in word and in deed the Second World War as well as the initial United Nations response in 1950 to the invasion of South Korea.  He is also on record as favoring a much tougher response during the Iran Hostage Crisis than was exhibited by the United States, whereas elsewhere in the Middle East he leans toward a “greater Israel” policy.

In domestic politics Anastaplo opposed McCarthyism and its harmful contemporary manifestations.  He supports well-thought-out and carefully monitored affirmative-action measures as well as governmental aid to inner-city parochial schools.  He also favors much more stringent gun regulations and has questioned the usefulness of capital punishment in our circumstances.  He has urged support for various public welfare/public works programs, directed at “the long depression” that continues to hold in its grip large numbers in our inner cities.  On the other hand, he has over the years been easier on the shortcomings of former President Nixon than have liberals, and harder on the shortcomings of President Reagan during the Iran-arms/Contra-aid affair than have conservatives.4 As for President Clinton, although Anastaplo has observed certain “Lincolnesque” characteristics in him, he believes that Clinton’s resignation was called for after his August 1998, “confession.”  In addition, he is dubious about the surprise missile attacks ordered by Clinton in August 1998 upon Afghanistan and the Sudan as well as about the December 1998 bombardment of Iraq, though less dubious about the NATO disciplining of Serbia.5

One reason Anastaplo may appear to be one of the most liberal Straussians is because he has been the most politically active of the first generation.  This is not meant in the sense of holding political office, or of participating as a political consultant, or of serving as a member of an administration in Washington or in Illinois—for there have been other Straussians much more involved than he has been in those ways.  Rather, he has been a public “player,” as may be recognized in his decade-long bar admission litigation, in his service as director of research for the Illinois Governor’s Commission on Personal Privacy (1974-1976), in his outspoken exposure of and engagement with the Greek Colonels between 1967 and 1974, and even in his defense of other tourists during his family’s 1960 camping trip in the Soviet Union.

C. Herman Pritchett, past President of the American Political Science Association and former Chairman of the Political Science Department at the University of Chicago, nicely summed up Anastaplo’s public opposition to bullies and dictators:

On April 24, 1961, the Supreme Court of the United States, by a vote of five to four, affirmed the action of the Illinois Supreme Court which, by a vote of four to three, had upheld the decision of the Committee on Character and Fitness of the Illinois bar which, by a vote of eleven to six, had decided that George Anastaplo was unfit for admission to the Illinois bar.  This was not Anastaplo’s only such experience with power structures.  In 1960 he was expelled from Soviet Russia for protesting harassment of another American, and in 1970 from the Greece of the Colonels.  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.6

Leo Strauss, evidently after reading Anastaplo’s 1961 Petition for Rehearing to the United States Supreme Court, wrote this short letter to him of June 22, 1961: “This is only to pay you my respects for your brave and just action.  If the American Bench and Bar have any sense of shame they must come on their knees to apologize to you.”  We can be reminded by this letter that just as George Anastaplo is not a conventional liberal, so Leo Strauss was not a conventional conservative.  Another perspective on Anastaplo’s liberalism was offered by the unconventional conservative thinker Willmoore Kendall who, commenting on Anastaplo’s remarkable bar admission case, described Anastaplo as “himself the author of perhaps the only ‘apology’ of our time that demands a place in any anthology of American Oratory. . . .”7

Most recently, Anastaplo has felt obliged again to be a public “player,” this time in opposing that form of McCarthyism of the Left, which is contemporary “political correctness.”  Responding to accusations of racial heresies in his law school courses, he has produced what amounts to a manual showing how vulnerable academics of goodwill might respond in their own circumstances to situations that, however political sensitive, are destructive of responsible political and academic discourse if not countered with a restrained vigor.8

II.

Anastaplo’s work habits and level of energy remain astounding.  Laurence Berns reports that one of the most striking things about him, first noticed when they were together in the College of the University of Chicago in 1947, was that “he did and does, quite naturally without any apparent strain, the work of about three men.”  In more than forty years of teaching at Dominican University (formerly Rosary College), Loyola University of Chicago School of Law, and elsewhere, he has never missed a class because of illness or accident.  Over those forty years, Anastaplo has also conducted at least two seminars each quarter (the equivalent of a second full-time teaching post) in the Basic Program of Liberal Education for Adults at the University of Chicago.

Anastaplo’s running afoul of the Illinois Bar (beginning in 1950), reinforced perhaps by his reluctance to leave permanently his native Midwest, made unlikely a post in graduate departments of political science.  Even so, for two years he flew six times a semester to the University of Dallas to offer three-day marathon graduate seminars that met for ten to twelve hours a day.  And for a decade he convened, “The Irregular Seminar on Political Philosophy” for graduate students (mostly in political science) at the University of Chicago.  Participants in that seminar consider it to be one of the best experiences of their graduate school years.9 If all this were not sufficient for “about three men,” Anastaplo continues to attend, as he has for more than a quarter of a century, the weekly Thursday afternoon Physics Colloquium at the University of Chicago, ministering to an interest in physics that is derived from his demonstrated talent in mathematics.10 And for some years now, weather and daylight permitting, Anastaplo bikes the ten miles each way for his classes at Loyola University of Chicago School of Law.  Anastaplo’s energy is evidently in part attributable to a sound physical constitution and moderate habits.11

Anastaplo did not allow his ordeal with the Illinois Bar Inquisitors to define him.  Representing himself in his bar admission litigation, he made the arguments he thought appropriate, and when the United States Supreme Court finally ruled against him in 1961, he walked away from the practice of law.12 Denied a career at the Bar and circumscribed in his academic career, he recognizes that his somewhat accidental bar admission difficulties may have had a profoundly liberating effect, permitting and encouraging him “to explore as teacher (and hence as student), without any sustained concern for ordinary academic achievement, only the books written over the centuries by the most thoughtful men.”13

Among the first generation of Straussians, Anastaplo may have the widest range of subjects upon which he has published well-documented books and articles.14 Those subjects include ancient philosophical and literary texts, legal and constitutional issues, modern philosophical and literary texts, contemporary political issues, Biblical texts, non-Western thought, and modern scientific issues posed by the work of Subrahmanyan Chandrasekhar, the cosmology of Stephen Hawking, and the physics of Aristotle.  Reflecting the Renaissance-man diversity of Anastaplo’s scholarship is the recently published collection, “The Scholarship of George Anastaplo.”  In that Symposium John Alvis discerns ten rules of literary criticism that Anastaplo observes in his study of ancient and modern literature; Larry Arnhart discusses the status of nature and natural right in Anastaplo’s examination of non-Western texts; Laurence Berns focuses on Anastaplo’s classicism, offering a spirited criticism of Anastaplo’s spirited critique of American foreign policy; Christopher Colmo investigates Anastaplo’s treatment of freedom, nature, and community; Stephen Vanderslice discusses Anastaplo’s essays on religion, in relation to the good man, the good citizen, and the good society; and I review various facets of Anastaplo’s constitutionalism.15

To date Anastaplo has published ten books, and hundreds of articles, including nearly a dozen book-length law review collections, indentified as “Explorations,” a genre he developed.16 Considerable care is devoted by him to whatever he writes, no matter where it is to appear.  Mindful of Carl Van Doren’s observation to a meddlesome publisher “I write, you print,” Anastaplo prefers having his texts and his annotations published as he has written them rather than having them revised for publication in prestigious journals.  Thus he is able, in his deservedly renowned notes, to range far and wide, calling forth ancient, modern, and contemporary “friends” as guides to support the moral, intellectual and political life of a free people.  He freely cites his own work, cross-referencing for the interested reader the text now at hand to what he has offered elsewhere.  As he has observed: “I have note written the things I have, with the care I have, only to have them ‘lost’ in diverse journals.”17

III.

Vital to Anastaplo’s study of American constitutionalism is his opinion that the Constitution of 1787 is a well-crafted text that requires and rewards careful reading.  Richard H. Cox (another of the “first generation” of Straussians) has observed that Anastaplo’s commentaries on the Constitution and on its Amendments “treat the Constitution as a coherent whole whose parts throw light upon each other and thus require careful, sustained study.”18 A proper reading of the Constitution, Anastaplo maintains, depends on the recognition that

there is a sense to the whole of the Constitution, that the document can be thought about, part by part as well as in terms of the relations among the parts.  This thinking about the Constitution—the very insistence that it can be thought about—is critical. . . .19

No one mind could control completely what went into the Constitution.  But it is only when one mind takes a subject and molds it that there is even the opportunity for the kind of unity which sees chance eliminated and every part fitted into the whole….The quest for a unified interpretation is complicated by the fact that a constitution, unlike a play or a philosophical work, must be immediately applied to practical problems.  Thus theoretical formulations, which permit the philosophical writer to seek a unity on the highest level, may not be useful for this purpose.  Was the mistake of the early American politicians to assume there had to be such consistency?  But what alternative is there in expounding a constitution?  Indeed, what alternative is there other than repeated recourse to the fundamental principles and issues which provide guidance for the resolution of the conflicts in allegiances implicit in practical affairs?20

Careful reading by him of well-constructed texts reflects the influence of Leo Strauss.  Anastaplo first looked in on classes of Leo Strauss while he was still in law school.  After his bar admission controversy, he was able to audit Strauss’s courses regularly for more than a decade.  One can see, in the arguments about the Declaration of Independence and the right to revolution that Anastaplo made at age 25 to the Character and Fitness Committee of the Illinois bar, that he had (independent of Strauss) developed a strong interest in natural right and its meaning for American Constitutionalism.  One can also see that he was well on his way to developing his understanding of and admiration for his fellow Midwesterner, Abraham Lincoln.  From Strauss, Anastaplo received guidance as to the important issues raised by Anglo-American and modern political thought, with special emphasis upon the work of Hobbes and Locke, and behind them Machiavelli.  Anastaplo also learned from Strauss that a proper grasp of these and like thinkers depends upon an appreciation of the ancient political and moral principles, both classical and biblical, of which these thinkers were very much aware.  His studies with Strauss permitted him to refine and deepen his early inclinations and to come to grips with modernity and the desperate struggles of our time, reinforcing in the process his long-standing respect for the virtue of prudence.  (The influence of Leo Strauss was evident by the time Anastaplo prepared, in 1961, his Petition for Rehearing, the last document he filed in the United States Supreme Court.  Passages from that document are quoted at the end of this chapter.)

Anastaplo also has long drawn upon and been the most persistent academic defender of the constitutional views of William Winslow Crosskey, another of his teachers at the University of Chicago.  The influence of these two teachers, Strauss and Crosskey, is found in his report that “[Mr. Crosskey] tried to read the Constitution itself with the care and seriousness with which Mr. Strauss approached the greatest works in political philosophy.”21 To the way of reading illuminated by Strauss, Anastaplo joins Crosskey’s constitutional jurisprudence.

The common ground shared by Crosskey and Anastaplo is found in Crosskey’s insistence that

The Constitution of the United States…is internally consistenet in a remarkable degree, an extraordinarily fine example of eighteenth-century legal craftsmanship, and a great credit to Gouverneur Morris and James Wilson whose work it chiefly is….The scheme of the Constitution is simple and flexible:  general national power, subject only to a few simple limitations, with the state powers, in the main, continuing for any desired local legislation.  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, nation-wide basis; and all other subjects, they could, in general, leave to the states to handle as the states might desire.22

Anastaplo agrees with Crosskey that the Constitution created a government of plenary powers, with the Congress possessing all the national legislative power, especially the authority of Congress to regulate commercial activity “among the several States” to include, but not to be limited to, trade moving between the states.  Thus he has long doubted that the traditional judicial distinction between “interstate” and “intrastate” commerce ever had any foundation in the Constitution, independent of whatever use it may have in political debate.  Further the Constitution gives to Congress the power to enact legislation “necessary and proper” for all the objects of government, including those recognized in the Preamble to the Constitution.23 He finds instructive the insistence of the Framers of the Confederate Constitution of 1861 upon removing all “general welfare” language from the Confederate Constitution.24 Thus Herman Beltz, reviewing Anastaplo’s The Amendments to the Constitution:  A Commentary, observed:

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 priciples to which they refer, gives his commentaries their distinctive character as philosophically informed, humanisitic treatsies.25

The Preamble has usually been regarded as a rhetorical flourish that adds nothing to the enumerated powers found in the Constitution.  Anastaplo, as did Crosskey, reads the Constitution by the light of the comprehensive ends found in the Preamble.26 For Anastaplo, the Preamble explains why “We the People” “ordained and established” the Constitution, a constitution which provides the republican form required to meet the ends of a national government.27 The Preamble serves furthermore as the link between the Declaration of Independence and the Constitution.  Thus, the “one People” of the Declaration becomes “We the People” of the Preamble.  “We the People” having exercised the inalienable right of revolution recognized in the Declaration of Independence, then exercised an inalienable right to institute a new government through the Constitution.

It is from this perspective that Anastaplo joins the supreme authority of the people in a regime “dedicated to the proposition that all men are created equal” to the constitutional supremacy of the legislature.  On Anastaplo’s reading of the Constitution, “Congress is to have the decisive, or authoritative, voice as to what the controlling measures of the United States are to be,” with both the President and the Supreme Court properly subordinate to it.  Congress is given all the law-making power granted by the Constitution while “the Executive and the Judicial branches are dependent upon, and bound by, the laws Congress chooses to make.”28

IV.

Anastaplo, consistent with his emphasis upon the supremacy of the legislature, maintains that too much is now made of Presidents and presidential authority.  For more than seventy years there has been considerable support by Democrats and Republicans, liberals and conservatives alike, for an aggrandizement of the Presidency at the expense of Congress.  This, together with the “growing reliance upon public opinion polls and referenda,” suggests for Anastaplo “the danger that we are moving from a republican regime grounded in representative legislatures to a plebiscitary democracy in which much is made of Presidents…who cannot fail to disappoint the expectations of those who depend upon them, both at home and abroad.”29

The expectation that Presidents can solve all problems has bred both public discontent and constitutional risk, raising for Anastaplo serious questions about the modern Presidency.  Can any President deliver all he is tempted to promise?  How are we to discuss and deal with the issues that confront us as a people?  Should “We the People” look to a single citizen to solve our problems?  Do such expectations reflect a smothering of the American genius for republican government?  “Is there not something demeaning to a republican people to make what we now do of our Presidents and of their families and other intimates?  Among the consequences of our unbecoming obsequiousness,….[of the way we now kowtow to the President,] which the mass media ‘naturally’ exploit, is that we are diverted both from serious politics and from a proper reading of the Constitution.”30

Anastaplo has long been critical of the mass media’s effect on our self-discipline, on our politics, and on the modern Presidency.31 The effect of the media on Presidents and presidential elections has often reduced political discourse to little more than images designed to manipulate the electorate and to reduce complex issues to sound bites and bumper-sticker slogans.  “[M]odern Presidential politics play much better on television.  The President is easy to dramatize; the Congress tends to be boring.  All the Congress does is talk (or deliberate); the President acts (with little or no show of deliberation required).  That which can be readily presented by television in an ‘interesting’ way affects what we are now apt to consider government to be.”32

The disparity in appearances between Congress and the President, reinforced by television, “does not settle the question of where the ultimate power lies.”  For Anastaplo, the critical question centers on how far the powers of the President go and what the President is able to do.  “It is important,” Anastaplo argues, “to insist that the President is very much confined by the Constitution.”  Most troublesome for him is the increasing “emancipation of Presidents from Congressional guidance and sound political assessments,” an emancipation that is apparent in the errors surrounding Vietnam, Watergate, the Iran-arms/Contra-aid affair, and the presidential maneuvering that foreclosed any real Congressional deliberation leading to the Persian Gulf War.  It is this “presumptuousness of Presidents,” who have become “regal and extra-constitutional in character,” that leads Anastaplo to question the movement toward a plebiscitary-based Presidency that is in danger of becoming an “incipient Caesarism.”33

V.

Both too much and not enough, Anastaplo argues, is made of the “Judicial Power of the United States.”  Too much has been made of judicial review, with the Supreme Court tending for more than a century to turn itself into “a superlegislature,” entitled and obliged to review the laws passed by Congress.  It remains an open question for Anastaplo to whether the Court in Marbury v. Madison was “wrong, or at least not clearly right,” when it asserted that the First Congress had overreached its Constitutional authority in Section 13 of the Judiciary Act of 1789.  Doubt that judicial reviews of acts of Congress was intended, Anastaplo argues, should be raised by the fact “that the slightest acquaintance with the British Constitution…[or] Blackstone’s Commentaries would have reminded the Framers that the Legislature is by nature supreme, not any court, nor the executive alone, whatever its part in the legislative process may be and thus the Framers would have known that if something other than legislative supremacy had been intended, it should have been provided for unequivocally by the Constitution.”34 The somewhat similar presidential veto power was fully discussed and spelled out in detail, as was the authority of the Congress to override such a veto.  Although Federalist No. 78 may seem to argue for judicial review, there is no indication at all in the Constitution that judicial review of acts of Congress was intended.

Related to Anastaplo’s argument about the undue emphasis now placed on judicial review is his contention that not enough emphasis is placed on a full realization of the Court’s proper role in developing a general common law.  He argues that fully to understand the Constitution one must recognize the degree to which it takes for granted and relies upon the common law.  Some cases posing common law issues were understood by the First Congress to be part of the Supreme Court’s jurisdiction over “all cases in law and equity arising under this Constitution.”  The question addressed in Swift v. Tyson (1842), in a diversity-of-citizenship dispute involving negotiable instruments, was whether the United States Supreme Court had to take its lead from a state judicial system in settling the common law for commercial-law issues raised by the case.35 The question arose because Section 34 of the Judiciary Act of 1789, enacted by the First Congress, provides, “The laws of the several states, except where the Constitution, treaties, or statutes shall otherwise provide or require, shall be regarded as rules of decision in trials at common law in the Courts of the United States, in cases where they apply.”

Anastaplo argues, as did Crosskey, that Section 34 did not have to be made any more explicit than it is because it was generally understood that, when faced with conflicting common-law precedents in diversity cases, the Courts of the United States (which we know as the federal courts) would make their own independent determination of what the applicable law was.  This, he argues, was the intended approach.  Both Anastaplo and Crosskey acknowledge that the election of Thomas Jefferson and the ascendant Anti-Federalists and later “states’ rights” positions supported the view that common-law cases should be authoritatively decided by state courts and should not be subject to any Supreme Court oversight.  By 1938 the “states rights” view of “a juridicial system with many bodies (the states) but no head had triumphed.”36

Anastaplo traces depreciation of the Supreme Court’s role in common-law cases back, at least in part, to the Southern insistence on a narrow interpretation of the commerce power of Congress in order to make it more likely that the General Government would not interfere with how the Southern States dealt with slavery.  The formal end of the Supreme Court’s independent role in common-law cases came when the Court in Erie Railroad Co. v. Tompkins abandoned Swift v. Tyson by asserting that there is no “federal common law” in the United States, thus renouncing any role for itself in expounding an authoritative reading of a national (or truly common) common law.37 Since Erie the Court has assumed a subordinate position, attempting to address in the typical diversity cases only two less important questions: (1) Which state’s common law is controlling here? (2) What does that state’s common law have to say about the issue in question?38

For Anastaplo, Swift and Erie depend upon divergent positions on fundamental issues in constitutional law and politics, including the question of the nature of law, the relationship between unwritten law (including the common law) and positive law, the role of the Supreme Court in jurisprudence, the relationship between Congress and the Court, the relation between national and state courts, and even the extent of the Congressional power to regulate commerce.  The Court in Erie, by rejecting the existence of a federal common law, also tacitly rejected the understanding of the Framers, evident in Swift, that there are enduring standards of right and wrong which judges discover and apply to the cases that come before them.  Anastaplo argues, in the mode of Swift, that the Court’s role in expounding the Common Law

is not a historical question or even a question about the original intention of the Framers.  Rather, it is a question about the very nature of law and how justice is to be arrived at by courts working on their own, somewhat independently of legislatures.  It is a question about the way that reason and nature may be looked to in establishing justice, something that common-law courts have always been thought of as most adept in doing….

The common law is a way of applying, case-by-case, the enduring standards of the community, and in such a way as to bring the community along, even as reforms are being made.  It is salutary to emphasize here that common-law judges discover the law; they do not simply make it.  Reason looks to nature (instead of will looking to desire) in declaring the rule that is to be followed.39

Erie proclaimed, in effect, that all law, written or unwritten, is positive law.  Anastaplo argues that contemporary jurisprudence has looked to law “not as the product of reasoning with a view to justice, but rather as merely the exercise of sovereign power, and the States could be looked to as sufficient repositories of such power.”40

Law, whether unwritten or in statutes or in judicial decisions, is now widely regarded as simply the expression of the power and will of the sovereign, at least by the more sophisticated judges and their counterparts in the academy.  Even so, Anastaplo notices that the Supreme Court, using the Fourteenth Amendment and the doctrine of incorporation, has, in recognizing “a second bill of rights” applicable to the states, acted in a way “that may be somewhat similar to what English common-law courts did in the seventeenth and eighteenth centuries in building up the great body of common law privileges and immunities.”  This has allowed the General Government to protect the citizens of this country “against state infringements of traditional (if not even natural) rights.”41 We are thus reminded by Anastaplo, that this development is an example of what courts can do as expositors of the principles of a regime.

VI.

We return to the constitutional authority of Congress. Anastaplo offers, in The Constitution of 1787, a persuasive reading of the structure and substance of Article I.42 It is widely believed that the Constitution is an instrument of enumerated powers, powers which are found mostly in Section 8 of Article I.  Anastaplo suggests that there is in the Constitution even more power, particularly economic power, taken for granted to achieve the great ends of government expressed in the Preamble than that provided for “either expressly or by implication” in the bare enumeration in Section 8.  He notices that the common-defense power has always been regarded as very broad, even though it is given no greater emphasis in that section than the general-welfare power.  Thus he finds little constitutional basis for interpretations which have assumed that much more can be done by Congress for the common defense than for the general welfare when the explicit constitutional authority for both seems to be similar in scope.43

One explanation for this discrepancy Anastaplo suggests is found in the cramped interpretation of the power of Congress under the Commerce Clause that became critical, as we have noticed, to the South’s attempt to protect its interest in slavery.44 Three Southern States in the Constitutional Convention had demanded a twenty-year moratorium upon Congressional power to prohibit the international slave trade if they were to ratify the Constitution.  In support of his broad reading of the Commerce Clause, Anastaplo asks

Does not this [1808-slave-trade] guarantee implicitly recognize that without it the Congress would have been able, at once, to forbid Americans to engage in the international slave trade?  A further question:  If so, what would have permitted Congress to do this?  The answer:   The Commerce Clause with its grant of power to Congress to “regulate Commerce with foreign Nations.”  This leads to still another question:   What does the grant of power to Congress to “regulate Commerce… among the several States” permit Congress to do about the slave trade moving between the States of the Union, to say nothing of slavery’s influence and effects upon the commercial life of the Country as a whole.  Does not the twenty-year international slave-trade guarantee tacitly recognize a quite broad commerce power in the Congress of the United States, and perhaps also a broad general-welfare power?45

Anastaplo identifies seventeen sets of congressional powers in Section 8 or Article I, sets of powers that he divides into seven categories:  financial, commercial, monetary, intellectual, judicial, defensive, and managerial.  He believes that five of the seven categories are, to some degree, overlapping, reflecting a variety of opinions about the pre-Constitution character and usage of those powers.  He suggests that some of the listings were meant to assure for Congress powers that had previously been thought by some to be either judicial or executive in nature and, in some instances, powers that had been previously exercised only by the states.

The power to borrow and coin money had been thought by some to be part of the domestic authority of the English Crown; the power to declare war and to raise armies had been thought by some to be part of the Crown’s military authority; and the great power to regulate commerce had been thought by some to be part of the states’ authority.  All now are explicitly (but not necessarily exclusively) given to the national legislature, probably in part “to suppress executive [as well as state?] pretensions.”46

Thus the provision of Article I for “[a]ll legislative powers herein granted,” Anastaplo contends, is not limited by the enumeration in its Section 8 nor later by the Bill of Rights, but only by such prohibitions as those found in Section 9 of Article I. Section 8 reflects the attempt of the country as a whole to permit self-government, restoring “to the national legislature the plenary powers over matters of obvious national concern, such as taxation, commerce, peace, and war, that had been imprudently denied under the Articles of Confederation.” Anastaplo argues that the powers provided for by the Constitution were intended to be, from the beginning, far more extensive than they are yet recognized to be in principle, however broad they may now be in practice.47

One intention of listing congressional powers, as has been indicated, was to clarify the location of each of those powers within the national government rather than to spell out an exhaustive enumeration of congressional power. This caution, Anastaplo notices, has had “a perverse effect”—it may even be “a cosmic joke”: the intention of Section 8 “to fill out and confirm the authority of Congress and to avoid controversy might have had the unanticipated result of making the powers enumerated here virtually the only generally recognized powers of Congress.”48

The necessities of the twentieth century, Anastaplo acknowledges, have promoted the expansion of specific powers found in Section 8 and secured for Congress almost the full range of intended powers required to deal with the social and economic interests of the American people. But that full recognition, he contends, “has come about in such a way as to obscure the order and symmetry,” and ultimately the authority, of the Constitution.49 The commerce power has proved decisive in determining the scope of the General Government as well as serving the cause of justice and civil rights all over the country. It is now generally acknowledged that Congress may regulate as much of the economy of the United States as it deems necessary for the general welfare, including for example, the regulation of commerce so as to discourage segregation.50 But, as Anastaplo observes, this latter development (which is sufficiently, perhaps better, authorized by Section 5 of the Fourteenth Amendment) has occurred in such a way that it can seem to many citizens  that the Constitution has had either to be circumvented or “to grow” in order to serve contemporary needs.

From Anastaplo’s reading of the Commerce Clause and the rest of Article I, Section 8, it is evident that his constitutional perspective is neither one of “a living Constitution” nor one of “original intent,” as conventionally understood. He suggests that both are partially correct. Proponents of original intent are correct in that “we do want reliable guidance from our constitutional instruments; while proponents of a living constitution are correct in that we do want to be able to take care of pressing and ever-changing needs.” But he contends that both are also incorrect in that “a living or gorwing Constitution need not be  resorted to if it should be recognized what the true original intent of the Framers of the Constitution was, an intent to invest Congress with broad powers to regulate both the economy of the Country and its interests in the world at large. Those originally broad powers have been enhanced by such constitutional amendments as the Fourteenth, which permit the General Government to supervise many activities in the States, particularly those concerned with race relations and with the administration of justice.”51

VII.

Related to Anastaplo’s reading of the Constitution of 1787 is his reading of the Bill of Rights and the other amendments to the Constitution. It is perhaps an overstatement to suggest that Anastaplo thinks that none of the amendments with the exception of the Thirteenth Amendment have been required. But he does maintain that none of the amendments thus far has touched the core of the Constitution or reduced the authority of the Government of the United States. Thus, the Framers of the Constitution did not intend to threaten the liberties and rights, or the privileges and immunities, of citizens. He argues that it is highly unlikely that the First Congress, led by several members who had been in the Constitutional Convention, would have proposed the Bill of Rights if they had believed it undermined what had been done two years before. The Bill of Rights “makes explicit, or confirms, what had been taken for granted or at least had been aimed at from the outset. Even the Civil War amendments—the Thirteenth, Fourteenth and Fifteenth Amendments –are consistent with, if not called for by, the American constitutional spirit.”52

The 1791 amendments were largely declarative of rights, privileges, and immunities long recognized in the Anglo-American Common Law tradition out of which American constitutionalism developed. In The Constitutionalist, his mammoth treatise on the First Amendment, Anastaplo summed up in 1971 his understanding of the speech and press clause:

The First Amendment to the Constitution prohibits Congress, in its law-making capacity, from cutting down in any way or for any reason freedom of speech and of the press. The extent of this freedom is to be measured not merely by the common law treatises and cases available on December 15, 1791—the date of the ratification of the First Amendment—but also by the general understanding and practice of the people of the United States who insisted upon, had written for them, and ratified (through their State Legislatures) the First Amendment. An important indication of the extent of this freedom is to be seen in the teachings of the Declaration of Independence and in the events leading up to the Revolution.

Although the prohibition in the First Amendment is absolute—we see here a restraint upon Congress that is unqualified, among restraints that are qualified—the absolute prohibition does not relate to all forms of expression but only to that which the terms, “freedom of speech, or of the press” were then taken to encompass, political speech, speech having to do with the duties and concerns of self-governing citizens. Thus, for example, this constitutional provision is not primarily or directly concerned with what we now call artistic expression or with the problems of obscenity. Rather, the First Amendment acknowledges that the sovereign citizen has the right freely to discuss the public business, a privilege theretofore claimed only for members of legislative bodies.53

The provision for amendments, Anastaplo recognizes, reinforces the idea that “We the People” are and remain a self-governing people. Despite conservative “original intent” understandings that seek to limit the Ninth Amendment and to expand the Tenth Amendment, both amendments remind us that the rights of the people and the powers provided for in the Constitution remain in the control of the people. The Ninth Amendment acknowledges that there are rights of the people neither dependent on government nor expressly set forth in the Constitution or in the Bill of Rights. The Tenth Amendment says in effect that the Constitution means what it says about the division of power between the National Government and the governments of the states.54 What that division of power is, it is argued, is determined by other parts of the Constitution, not by the Tenth Amendment.

Throughout his study of the Constitution, Anastaplo indicate where and how he draws upon the constitutional history of Crosskey. Even so, he transcends his law school teacher’s constitutional history in that he reads the Constitution even more carefully than did Crosskey. Both of them emphasize the common-law context of the Constitution. But Anastaplo makes much more than did Crosskey of natural right and hence of the Common Law’s foundation in nature and reason. On Anastaplo’s reading, the great task of the Constitution was to establish the framework of government within which the self-evident truths of the Declaration of Independence would be applied and preserved. Anastaplo undergirds Crosskey’s constitutional history and legal positivism with an understanding of nature and political philosophy as the basis for understanding those documents.55 In this he is very much a student of Leo Strauss.56

VIII.

Politics and morality cannot be separated in any political community. But a democratic republic, more than any other, depends on the character of its citizens. Anastaplo continually places before the reader both the virtue of prudence—which is concerned with what is right by nature and is possible in the circumstances—and the best regime. His constitutionalism always includes, in one way or another, an examination of the habits and assumptions concerning the moral and political standards that form the character of the people presupposed by the Constitution. Laurence Berns noticed this when he wrote to Anastaplo:  “You are spelling out the virtues, the discipline, the qualities of character and behavior not usually thought about or expressed—though vaguely felt—that went into the making of the Constitution and that are required to make it work as it was intended to work.”57

How to maintain and reinforce the virtues required for republicans self-government has been recognized by some as the “Achilles’ heel” of American constitutionalism. One scholar referred to the question, “How shall ‘we the people’ be kept virtuous?” as “the missing section of The Federalist.”58 The first answer to this question was that the formation and care of the moral and intellectual character of citizens were left as the responsibility of the states. But slavery, segregation, and large-scale violations of the rights of citizens in the administration of criminal justice, have long compromised that claim.

Pervading Anastaplo’s writings on the United States is an insistence that decent self-government ultimately depends on the character of the people. As early as his first major essay (for the Leo Strauss Festschrift), “Human Being and Citizen: A Beginning to the Study of Plato’s Apology of Socrates” (1964), and his first essay on the Declaration of Independence (1965), Anastaplo adopted for himself George Washington’s observation in 1789: “There is no truth more thoroughly established than that there exists, in the economy and course of nature, indissoluble union between virtue and happiness, between duty and advantage, between the genuine maxims of an honest and magnanimous policy, and the solid rewards of public prosperity and felicity; since we ought to be no less persuaded that the propitious smiles of heaven can never be expected on a nation that disregards the eternal rules of order and right which heaven itself has ordained.”59 Even the best of constitutions, Anastaplo reminds us, is insufficient if the people do not maintain the spirit, the discipline, and the moderation, that is, the habits, necessary to make proper use of “the great guarantees enshrined in the Constitution of 1787 and its Bill of Rights.” Republican government, even under a well-crafted Constitution, cannot be expected to prosper when a people’s character and habits are no longer sound. It is the duty of the government to promote such soundness. The American people, he maintains, are truly self-governing and truly free “only when they know what they are doing,” which includes possessing a self-awareness grounded in the recognition that competence, moderation, self-restraint and civility are necessary to decent and sustained self-government.60

Anastaplo closed in 1971 the text of The Constitutionalist with this reaffirmation of American constitutionalism:

American republicanism remains not only “the world’s best hope” but also the noblest testimony that men have today of their faith in one another—in, that is, the ability of man to use his reason properly to secure for himself and his posterity the good things of this life.  Timid men should be reassured that our republican experiment not only has worked much better than eighteenth-century republicans had any right to hope for:  it may well be the best which our political circumstances, nature, and traditional opinions will admit.  The republican of our day, however subject to continual re-examination his salutary opinions should be, is entitled to conclude, “We must not be afraid to be free.”61

This reaffirmation was also voiced on the occasion of the Bicentennial of the Constitution, with Anastaplo adding his toast:  “On to three hundred!”62

IX.

Anastaplo’s high regard for American Constitutionalism is, however, not without qualification.63 Our political circumstances and our traditional opinions have, he recognizes, undergone significant changes during the second half of the twentieth century.  Though critical of some contemporary practices and policies, he nevertheless shuns prophecies of doom.  Instead he seems to have kept before himself, as he keeps before his readers, “the old saying” of Leo Strauss “that wisdom cannot be separated from moderation” and the understanding “that wisdom requires unhesitating loyalty to a decent constitution and even to the cause of constitutionalism.”64

From this perspective, Anastaplo reminds us that a well-established constitutionalism with its built-in sense of restraint may provide the best access for us to enduring standards of good government.  Depending on the people’s soundness of character, the very language of constitutionalism, such as equal protection and due process, can become the language of prudence and justice.65 How one regards the Constitution as well as the status of revelation and other manifestations of the divine can affect, among other things, the soundness of the family as the fundamental source of the moral instruction of a people.  As our customs and manners become even more diverse it must be our constitutional principles that unite and help define “We the People.”

However modern American republicanism may have been at its foundation, it shares with the classical republicanism the understanding that the human capacity for reason allows for discernment of universal principles of moral and political right.  Anastaplo draws upon that discernment to clarify the sources of American republicanism and to protect the supports of that republicanism from those aspects of contemporary life that threaten them.  His constitutionalism may thus be understood to correct both a pessimistic critique that exaggerates the shortcomings of the American regime and an indiscriminate defense that insufficiently recognizes what is faulty about that regime.

Anastaplo has acknowledged in The Constitutionalist, as well as in his later writing, that his work has at its core a tension inevitable “for anyone who tries to live with both the Apology of Socrates and the Declaration of Independence—for anyone, that is, who finds himself drawn to two public declarations which are, despite their superficial compatibility, radically divergent in their presuppositions and implications.  Thus, an attempt is made herein to see American constitutional law and political thought from the perspective of our ancient teachers.”66 A full account of the tension between the Apology of Socrates and the Declaration of Independence would also be a full account of the tension between ancient political philosophy and modern social thought.  Anastaplo neither disparages modern constitutionalism because it is not classical constitutionalism nor subordinates practical political teachings to philosophy’s metaphysical interests.  We have recognized that although he keeps the focus of the best regime before his readers, he does not allow the best regime in speech to become the enemy of a good regime in practice.  If the best regime is rare except in speech, an actual good regime requires considerable care by the most talented among us.67

The tension in Anastaplo’s constitutionalism exists because he is a partisan both of philosophy and of liberal democracy.  That is, he is a partisan of both the Spirit of 399 B.C. and the Spirit of 1776 A.D.  In practice this means that he is a partisan of liberty under the rule of law in a regime which is rooted in consent of the governed.  This he considers the best available alternative to the rule of philosophy in our time.  The Apology of Socrates is arguably the finest public speech to an ancient democracy, as Lincoln’s Gettysburg Address is the finest public speech to a modern democracy.  In his Apology, Socrates invokes a way of life derived from moral and political standards rooted in reason’s grasp of human nature.  American republican constitutionalism may have received at Gettysburg its authoritative interpretation when Abraham Lincoln looked back to 1776 and the Declaration of Independence as the beginning of “a new nation conceived in Liberty, and dedicated to the proposition that all men are created equal.”  Lincoln reaffirmed for the American people, North and South, the Declaration’s self-evident truths derived from nature’s standard as the “sheet anchor of American republicanism.”  In the Apology, one can see the attractions of antiquity in the embodiment there of reason and virtue.  In the Gettysburg Address one can see the attractions of modernity with its devotion to freedom, equity, and widespread personal fulfillment.

Anastaplo’s constitutionalism is located where the stream of the ancient understanding of virtue and the stream of the modern principles of natural right intersect.  It is the Declaration of Independence that marks the intersection of those streams:   “[T]he Declaration of Independence reflects an awareness among the American people of that which is by nature right. . . .Old-fashioned notions about that which is by nature right, influenced it seems by a sense of morality reaffirmed and refined by long-established religious influences, helped shape the Declaration of Independence in ways that Plato and Aristotle can perhaps help us notice.”68

From a different beginning leading to a different end, modern constitutionalism can, much like classical constitutionalism, look to reason to secure the advantageous and the just.  One part of the modern rebellion against classical political philosophy had at or near its center the recognition that however noble classical political philosophy was, classical political practice was often wretched for all but a very few citizens.  Modern political philosophy has substantially advanced the conquest of nature by modern science in order to secure the “relief of man’s estate.”  The considerable enlargement in material abundance, reinforced by widespread protection of private property, has contributed to the enhancement of citizenship for the benefit of the many and, it is hoped, for the security of all.

X.

The beneficial effect that ancient political philosophy can have on modern political practice is represented, at its best, by American constitutionalism.  And American political practice is grounded in the Declaration of Independence and the Constitution.  Anastaplo seeks to recall the perspective of classical republicanism, where possible, in support of modern political practice.  This means, in effect, fusing respect for excellence in all its forms with both the demands for equality and the consent of the governed.  Anastaplo offered in The Constitutionalist an observation on the character of the American people that continues to inform his study of American constitutionalism:

Is it not evident that the only practical access to nobility for this people remains its dedication to freedom and to the manliness, disciplined self-confidence, humanity, pride, and even justice which can be said to be implied by that freedom?  A vigorous defense of freedom seems to me the only cause which can have an enduring appeal for our young, especially when its defense is coupled, as it can be, with integrity of character.  Those who dilute our ancient faith in freedom threaten the principal support of our regime.  The swelling crusade for the justice of equality can have permanent worth only if our freedom, with its implications of excellence, can be preserved.69

Abraham Lincoln insisted that the self-evident truth that “all men are created equal” was “the father of all moral principle” among us.  Anastaplo recognizes the contribution of a dedication to equality to the pursuit of justice and the protection of rights since the Declaration of Independence and the Civil War.  But over the natural principle of equality he elevates the no less natural principle of freedom as the other mainstay of the American regime.  To the degree one values equality, Anastaplo insists, to that degree at least one must protect freedom.70

Modern freedom depends upon the concept of self-legislation and is ultimately justified by that capacity of a people to govern itself which makes effective freedom possible.  It is our equality as self-governing citizens that is precious, not an equality under the despotism either of tyrannical government or of personal self-indulgence.71 Even so, it can sometimes be a short step (especially in a democracy) from the equality of all men to the equality of the opinions and desires of all men, no matter how pernicious those opinions and desires may be.  An emphasis upon equality, Anastaplo warns, can lead to a numbing mediocrity, to a radical individualism, and to a demand for private rights amounting to a despotism of the individual “self” over the interests of the community, or the common good.

Leo Strauss recognized a half century ago that the nation dedicated to the modern natural-right teaching of the Declaration of Independence had become, “no doubt partly as a consequence of this dedication, the most powerful and prosperous of the nations of the earth.”  But, he added, “Does this nation in its maturity still cherish the faith in which is was conceived and raised?  Does it still hold those ‘truths to be self-evident’?”72 The succeeding decades have given us little reason to deny the importance of these and like questions.  Truths, to say nothing of self-evident truths regarding the ends of political life, seem everyday less evident, if not irrelevant to contemporary political life.

The classical discovery of natural standards ascertainable by reason permitted an appreciation of prudence or practical wisdom.  What the best constitutional form is for any particular people depends in large part, we have noticed, on the character of that people and the moral, political, and social conditions of their time.  These are the materials that the prudent statesman must take into account and work with.  Recognition of the limits imposed by time and place are critical to prudence.  A prudent statesmanship depending on circumstances sometimes requires making the best of a bad situation. But it is, Anastaplo maintains, only an awareness of the best that permits sensible determinations of what is possible and what must be settled for in any set of circumstances.73 He contends that the foundation for a justified hopefulness rests on a well-crafted Constitution appropriate to our democratic opinions, nature, and circumstances which takes for granted a comprehensive system of justice.  It rests also on a citizenry that recognizes and respects the enduring standards of public morality and discipline that the Constitution embodies.74

Anastaplo’s constitutionalism does appear to be intimately related to his Classicism.  The promise that modernity held out for all mankind is expressed by the Declaration’s dedication to “Life, Liberty, and the Pursuit of Happiness.”  Modern liberal constitutional government exists to secure and protect the personal rights of all, thereby protecting the private pursuit of individual happiness.  As Leo Strauss wrote:  “The quarrel between the ancients and the moderns concerns eventually and perhaps even from the beginning, that status of ‘individuality’.”75

I have, in the opening section of this chapter, quoted the letter written by Leo Strauss to George Anastaplo after receiving the June 1961 Petition for Rehearing filed by him in the United States Supreme Court.  It is fitting to conclude my account of this somewhat unusual Straussian by reprinting here the opening and closing paragraphs of that 1961 Petition for Rehearing, passages in which (it can be said) Leo Strauss must have recognized his influence:

Introduction

And let us not be weary in well

doing; for in due season

shall reap, if we faint not.

-Galatians, vi, 9.

It is highly probable that upon disposition of this Petition for Rehearing, petitioner will have practice all the law he is ever going to.  That is, he recognizes that this petition cannot reasonably be expected to affect a decision of this Court reached after long deliberation.  Nevertheless, petitioner is obliged, if only to complete his effort, not to let pass unnoticed the errors in the Opinion of this Court.

Since no one would profit from a mere repetition of arguments developed in earlier briefs, this petition is directed primarily to a discussion of the novel problems raised by the Opinion of this Court.  Petitioner will then have discharged the obligation to the profession and to the community that he assumed when this Court permitted him to appear as counsel pro se.  That is, he will not only have stated his legal position but will also have recorded, among the papers he has filed in this Court, an adequate answer to the arguments that have been marshaled against him.

It must also be recorded that this entire controversy is itself but an image of a much more fundamental one which bears on the problem of the education and character of the citizen as well as of the lawyer.  We must try to take seriously again the concern and conditions for virtue, nobility and the life most fitting for man.

Petitioner, exercising the prerogative of one retiring from a profession, would advise the new lawyer that he learn well not only the tools of his craft but also the texts that have come to us from the ancient world.  It is in those texts that one may find the best models, both in word and in deed, for the conduct of oneself in public as well as in private affairs.  It is there that the better natures are most likely to be exposed to the accents and majesty of human excellence.

*******

Conclusion

We have suggested that the exclusion order should be reversed, with instructions to the Illinois bar authorities on remand that they reconsider the record already made in this case without giving any adverse effect to petitioner’s allegedly “subversive” views on the right of revolution and the Declaration of Independence.  This modification would seem to be consistent with the position actually taken by this Court in its Opinion.

Reasons have also been advanced for a reversal and remand that would be even more respectful of the record and of natural justice, a remand with the ruling that petitioner has clearly established his character and fitness for the practice of law.  That is, we suggest that the record in this case has still to be given its due.

It is only by an ungenerous disregard of the record as it developed, of the kind of challenges petitioner alone faced and of the manner in which he met them, that the action of the Illinois authorities has been upheld.  The record—both before the committee and on appeal—that record of testimony and briefs remains as a guide to reforms that are needed in the education and character of the American bar.

Petitioner is satisfied he has acted as one ought.  He is further satisfied that his actions will continue to serve the best interests of the bar and of the country.  The generous sentiments of the dissenting opinions elicited by his cause in Chicago, in Springfield, and in Washington keep alive hopes for the success of efforts to make the institutions and laws of our people a reflection of decency and perhaps even of nobility.

Petitioner leaves in the hands of the profession—lawyers, law teachers and judges alike—the career he might have had.  He trusts he will be forgiven if he retains for himself only the immortal lines of another exile (Inferno, xv, 121-124), “Then he turned back, and seemed like one of those who run for the green cloth at Verona through the open fields; and of them seemed he who triumphs, not he who loses.”76

 

Notes

1.  Interviews by Studs Terkel in Law and Philosophy:  The Practice of Theory:  Essays in Honor of George Anastaplo, eds. John A. Murley, William T. Braithwaite and Robert L. Stone (Athens:  Ohio University Press, 1992), II, pp. 504-38.  I wish to thank Laurence Berns for his many helpful suggestions drawn upon throughout this essay.

2.  George Anastaplo, Human Being and Citizen:  Essays on Virtue, Freedom and the Common Good (Chicago:  Swallow Press, 1975), pp. 151-54; Anastaplo, The American Moralist:  On Law, Ethics and Government (Athens:  Ohio University Press, 1992), pp. xvi-xix, 108-21, 199-214, 225-95; Anastaplo, “‘McCarthyism,’ the Cold War, and Their Aftermath,” 43 South Dakota Law Review 103-71 (1998).  See also Anastaplo, “The Resenberg Case and the Perils of Indignation,” Chicago Lawyer, June 1979 (reprinted in Anastaplo, “On Trial:  Explorations,” 22 Loyola University of Chicago Law Journal 994-1009 [1991]).

3.  “Overwhelming Power and a Sense of Proportion,” in George Anastaplo, “On Freedom:  Explorations,” 17 Oklahoma City University Law Review 613, 618, 620, 589-630 (1992); Anastaplo, “U.S. turned its back on freedom in Iraq,” Chicago Sun-Times, December 29, 1998, p. 22.  See the exchange between Laurence Berns and Anastaplo in “The Scholarship of George Anastaplo—A Symposium,” 26 The Political Science Reviewer 90-113, 248-57 (1997).  See also John A. Murley, “Our Character is Our Fate:  The Constitutionalism of George Anastaplo,” ibid., pp. 36-37, which I draw upon throughout this essay.

4.  Anastaplo, The Amendments to the Constitution:  A Commentary (Baltimore:  Johns Hopkins University Press, 1995), pp. 88-89; The American Moralist, pp. 108-21, 319-26, 367-74, 422-30; Human Being and Citizen, pp. 160-74.  See also Anastaplo, “Penalty of Death Read in New Light,” Chicago Daily Law Bulletin, April 25, 1998, pp. 23, 25.  (This essay is appended to the “Crisis and Continuity” article cited in Note 5, below.)

5.  See George Anastaplo, “What Do We Really Want to Learn About the President?” Public Interest Law Reporter, April 1998, pp.2-7, “Crisis and Continuity in the Clinton Presidency,” Public Interest Law Reporter, July 1998, pp. 1-7.  See also Anastaplo, “Spiro Agnew’s Example,” New York Times, September 11, 1998, p. A26; Anastaplo, “Unseemly Characters,” Chicago Sun-Times, September 13, 1998, p. 38A.  See as well Anastaplo, “Bugs in the System,” Chicago Sun-Times, September 23, 1998, p. 50.

6.  See “What’s Really Wrong With George Anastaplo?” in Anastaplo, Human Being and Citizen, p. 105.  See, on how a citizen of a republic may speak to tyrants, “Dissent in Athens,” in ibid., pp. 3-7.  Anastaplo’s steady stream of Letter to the Editor suggests how a citizen should speak to his fellow citizens on the issues of the day.  This he calls his “busybody mode.”  See, e.g., Anastaplo, “Sports may benefit from NBA lockout,” Chicago Tribune, December 3, 1998, sec. 1, p. 28 (“5-foot putts” should be “4-foot putts”); note 5, above, note 58, below.  Anastaplo’s activities as a citizen prompted a committee of his former students to nominate him annually for the Nobel Peace Prize between 1980 and 1992.  The first letter to the Nobel Peace Prize Committee putting his name in nomination was by Malcolm P. Sharp, one of Anastaplo’s teachers at the University of Chicago Law School.  See note 21, below.

7.  Leo Strauss to George Anastaplo, June 22, 1961 (photocopy in possession of the author).  See George Anastaplo, The Artist as Thinker:  From Shakespeare to Joyce (Athens:  Ohio University Press, 1983), p. 474, n. 282.  What Leo Strauss thought notwithstanding, perhaps because they have long thought his bar admission case “imprudent” or, perhaps more so, because they believe Anastaplo made too much of Strauss’s Jewishness in his “On Leo Strauss:  A Yahrzeit Remembrance” (reprinted in Anastaplo, ibid. pp. 250-72), or more recently perhaps because of Anastaplo’s older-brother-like criticism of Allan Bloom’s The Closing of the American Mind, in Essays on the Closing of the American Mind, ed. Robert L. Stone (Chicago:  Chicago Review Press, 1989), pp. 225-34, 267-84, there appears to be, however, quiet, determined reservations concerning George Anastaplo among some of his fellow Straussians.  See Anastaplo, “Leo Strauss and Judaism,” The Great Ideas Today (Chicago:  Encyclopedia Britannica, 1998), his review of Kenneth Hart Green’s Jewish Philosophy and the Crisis of Modernity.  See also George Anastaplo, “Law & Literature and the Bible:  Explorations,” Oklahoma City University Law Review 23, appendix B (1999).  See as well Willmoore Kendall, Book Review, The American Political Science Review 61 (September 1967), 783; Law and Philosophy, I, ix-xii; Anastaplo, “Notes toward an ‘Apologia pro vita sua,’” Interpretation 10 (January 1982), pp. 333-34.  For the bar admission controversy, see In re Anastaplo, 121 N.E. 2d 826 (Ill. 1954); 163 N.E. 2d 429 (Ill. 1959); 163 N.E. 2d 928 (Ill. 1960); 366 U.S. 82 (1961).  See also George Anastaplo, The Constitutionalist:  Notes on the First Amendment (Dallas:  Southern Methodist University Press, 1971), pp. 331-418; “What is still Wrong with George Anastaplo? A Sequel to 366 U.S. 82 (1961),” DePaul Law Review 35 (1986), pp. 583-86; “A Letter to the President of the Chicago Council of Lawyers,” Chicago, Illinois, October 18, 1995 (reprinted in “‘McCarthyism,’ the Cold War, and Their Aftermath,” pp. 125-27.)  See as well “Subversion Then and Now,” in Anastaplo, “Freedom of Speech and the First Amendment:  Explorations,” Texas Tech Law Review 21 (1990), pp. 1941, 2041f.  See for comments on (including tributes to) Allan Bloom, Anastaplo, “‘McCarthyism,’ the Cold War, and Their Aftermath,” pp. 156-63, 165-66, 169-70.

8.  George Anastaplo, “‘Racism,’ Political Correctness, and Constitutional Law:  A Law School Case Study,” 42 South Dakota Law Review 108-64 (1997).  See Anastaplo, Campus Hate-Speech Codes, Natural Right, and Twentieth Century Atrocities (Lewiston, N.Y.:  Edwin Mellen Press, 1999).  Twenty-five years ago, Anastaplo was the first, and perhaps remain the only, political scientist to publish a systematic argument for the abolition of broadcast television.  Although he recognized his proposal had no chance of adoption, he entitled it “Self-Government and the Mass Media:  A Practical Man’s Guide.”  See The Mass Media and Modern Democracy, ed. Harry M. Clor (Chicago:  Rand McNally Co. 1974) (reprinted without notes in Anastaplo, The American Moralist, pp. 245-316).

9.  Anastaplo’s four semester-long courses at the University of Dallas were on Plato, Aristotle, Machiavelli, and Hobbes.  One former student of Anastaplo, commenting about his own law school experience, writes of Anastaplo’s classes in jurisprudence and constitutional law at Loyola University of Chicago School of Law as the place “where [he] learned about law while earning a J.D. from the University of Chicago.”  See Robert L. Stone, “Commerce and Community in the Constitution of the United States,” in Law and Philosophy, II, 771.  See George Anastaplo, “Law & Politics,” 25 Political Science Review 127-50 (1996).  See also Anastaplo, “The Bar Exam and a Proper Legal Education,” Chicago Daily Law Bulletin, November 6, 1998, pp. 20-21; “Bar Examination Put Under Microscope,” ibid., Novemeber 26, 1998, p. 5.  Another perspective on Anastaplo was offered in “A Sketch,” prepared by William Spielberger, a Chicago attorney (May 19, 1997):

A number of years ago, while still a student at the Loyola University School of Law, I was walking with a classmate down North State Street on a cold, foggy morning.  A block or so ahead of us we saw a man in a raincoat and stocking-cap waiting to cross the street at a red light.  Because of the fog and the distance, we could not determine whether the man was old or young, rich or poor.  Then we saw him retrieve a copy of the Chicago Sun-Time from a waste-basket and read it during the couple of minutes before the light turned green.  As we approached, my companion exclaimed, “Oh my gosh, it’s Professor Anastaplo! Isn’t it awful that he is acting like a bum!” I responded that from my point of view, he was acting in a manner which is not at all unusual for him.  Even in the briefest or most unpleasant of situations, he manages to find something of interest and instructive to reflect upon.  By doing so, he also manages to instruct his students in an interesting way.

 

Another former student, Professor Stephen Vanederslice of Louisiana State University offered this observation:

In Plato’s Hippias Major Socrates considers to kalon—the fine, the beautiful, the noble.  When Hippias imagines that “the fine” must always be something obviously magnificient, Socrates asks what would be more “fine” to use with a smooth, finely-fired (and fragile) pot full of hot soup, a stirring spoon of gold or one of figwood.  Hippias must acknowledge that the unpretentious wooden spoon is better because it is somehow more suitable to the fragile pot of hot soup than is the more splendid golden one.  “The fine” is thus the fitting, which is also in some way the best.

The reader of the Hippias naturally calls to mind further instances of to kalon, such as actions which can also be fine or noble if they are exactly what is fitting for a particular situation.  Thus we might consider a famous action of Socrates to be noble or fine.  He refused to follow the orders of the murderous Thirty Tyrants to go arrest a just man, Leon, and bring him from Salamis to be executed.  As the wooden spoon was fitting for the fragile pot of hot soup, so was Socrates’ principled resistance a fitting response to the Thirty.

Even as the example of the figwood spoon and the pot retains its simple charm, the example of Socrates’ response to the Thirty remains humanly compelling to this day.  Indeed, a good human example may be forever, not of course in that it goes unforgotten, but inasmuch as it does stand for all time.  Whoever does hear of it, soon or late, recognizes it, is drawn to it, and is affected by it as an instance of the noble, the fine, and the beautiful.

Just yesterday, shortly after a panel of the American Association of Law Schools meeting in New Orleans, I had occasion to introduce one of the panelists, a quite distinguished law professor from the Yale Law School, to my old teacher, George Anastaplo.  As soon as the Yale panelist heard Anastaplo’s name, he said, “Oh. I’m honored to meet you.  You are one of my heroes.”  I was bold enough to ask the Yale man, “Why is that? Why is he one of your heroes?”  He answered, “Because he is a man of consistent principle, and someone who has been willing to take positions which have cost him some ‘inconvenience’.”

The “inconvenience,” of course, has been the denial to Anastaplo by the Illinois Supreme Court of career in the practice of law.  Anastaplo had ranked first in his law class at the University of Chicago, but in a fateful decision (in 1950), he resisted, on principle, the Committee on Fitness’s muscular questions implying that there is no right to revolution under the American regime, a right (and a duty) explicitly permitted and in extreme cases commanded by the plain language of the Declaration of Independence.  At bottom, one should note, this right of revolution acknowledges the human being’s capacity for reason, the citizen’s ability to reflect, deliberate, and choose according to principle and prudence the regime most likely to lead to his well-being and happiness, and hence the good.

Anastaplo’s position in defense of the right of revolution was not very popular in the 1950’s, and it is not necessary, in fact, for the citizen to go around looking for ways to be provocative.  When it became clear, however, what Anastaplo was being require to assent to, he could not but take his position in defense of the principles of the Declaration.  He did not think it right to abandon sound principles because of the national passions of the moment.  His position was rejected when he took his case to the Supreme Court, but his position has since been generally vindicated.

It was Anastaplo’s adherence to “consistent principle” in his defense of the Declaration, in the face of “inconvenience”—and then his brilliant, exemplary subsequent life—which impressed itself so on the very successful Yale law professor.  This made George Anastaplo a “hero,” and this, in turn, made it an “honor” to meet him.

Even after years, it seems, a good example, a human action which is fine, is like a gem:  brilliant, diamond-like—in a way, perhaps, indestructible—standing forever.  A good human action stands as an enduring reminder of what human beings are capable of; makes us true believers; helps us keep faith in the high possibility when much seems to fail us, to suffer compromise and adulteration.  It is gratifying to catch the glint of such consistent principle in action or, as it was for the Yale men, to meet the “heroic,” to meet a man in whom a particle of the divine truly resides, which particle, and the fine, noble, and beautiful action it inspires, gives off a glint which endures, I think, forever.

Another former student, also a professor, could notice that Anastaplo, who earned his B.A. in the College of the University of Chicago, graduated first in his class at the University of Chicago Law School, and earned a Ph.D. from the University of Chicago, has, despire his prodigious published scholarship and his sterling reputation as a classroom teacher (including forty years teaching in the Basic Program of Liberal Education for Adults at the University of Chicago), never been offered a regular faculty position at the University.  See “The Scholarship of George Anastaplo—A Symposium,” pp. 16-17.  This silliness by the University of Chicago was carried beyond the absurd when “no one could be found” to teach the Human Being and Citizen course at the University of Chicago in 1983.  See Robert L. Stone, “Reader suggests a HBC teacher,” Chicago Maroon, April 15, 1983, p.7.  The University of Chicago’s shunning of one of its distinguished sons has been in effect for nearly fifty years, continuing one of the most ignoble responses in academia to McCarthyism.  See Anastaplo, “‘McCarthyism,’ the Cold War, and Their Aftermath,” pp. 115-27.  But the University of Chicago’s loss has been the gain of the Loyola University of Chicago School of Law.  See Anastaplo, “Law & Politics,” pp. 129, 141, n. 7.  Instrumental in Anastaplo’s Loyola appointment were Professor William T. Braithwaite and Dean Charles W. Murdock, of the Loyola School of Law.  Also useful were letters in support of that appointment by Professors Gerald Gunther, Stanley N. Katz, Charles E. Rice, and A.J. Thomas Jr. and by Judge Abner J. Mikva.  (Copies of the letters supplied to the Loyola School of Law Faculty are in possession of the author.)  See also Anastaplo, “What a Difference a Dean Makes,” National Law Journal, September 12, 1983, p. 12.

10.  Anastaplo’s mathematical ability is apparent to readers of pages 806-8 in The Constitutionalist.  See Anastaplo, review of Joe Sach’s translation of Aristotle’s Physics, Interpretation, Spring 1999.  See also “Notes toward an ‘Apologia pro vita sua,” p. 339.  An introduction to Anastaplo’s ongoing relationship with the University of Chicago since his Bar Admission Case can be found in Anastaplo’s, “‘McCarthyism, the Cold War, and Their Aftermath,” pp. 105-28.  See as well Anastaplo, “What is still Wrong with George Anastaplo?” pp. 551-647; Anastaplo, “The University of Chicago,” Academic Questions, Spring 1998, pp. 74-77.

11.  See the discussion by Andrew Patner, Larry Arnhart, Laurence Berns, Christopher Colmo, Stephen Vanderslice and John A. Murley in the WBEZ Transcript, “George Anastaplo, Human Being and Citizen,” in “The Scholarship of George Anastaplo—A Symposium,” pp. 7-9, 16.  Anastaplo’s responses to potentially incapacitating afflictions have reflected his insistence that the body should be in the service of the soul, rather than the other way around.  See also John Alvis, “Thinker as Thinker:  A Remedy for Literary Criticism Today,” ibid., p. 24.

12.  See “Farewell Letter to the Illinois Supreme Court, 1961,” reprinted in Anastaplo, The Constitutionalist, pp. 406-07.  See also “A Letter to the President of the Chicago Council of Lawyers,” Chicago, Illinois, October 18, 1995 (cited in note 7, above).  See as well the text at note 76, below.  For an eye-witness account of Anastaplo’s Oral Argument before the Supreme Court, see Laurence Berns, “Letter Regarding the Oral Argument in 1960 Before the U.S. Supreme Court, 1961,” in Anastaplo, The Constitutionalist, pp. 362-65.  See also Laurence Berns’s “Foreword,” to Law and Philosophy, I, xiii-xvi.

13.  Anastaplo, The Constitutionalist, p. xi.  See, regarding Anastaplo’s first regular academic appointment, “On Freedom:  Explorations,” pp. 699-700.  See also Anastaplo, “What is Still Wrong with George Anastaplo?” pp. 552, 601-8, 645-47.  During the Second World War, Anastaplo enlisted in the Army Air Corps at seventeen, obtained his wings and commission at nineteen, and flew thereafter as a navigator in the Pacific, Europe, North and Central Africa, and the Middle East.  After his sometimes harrowing experiences in the Air Corps, the frowns of the bar-admission authorities, as well as of educational institutions and colleagues, were unlikely to have any intimidating effect.

14.  In this respect, the Platonic Plutarch can be said to be his model.  Anastaplo often urges his readers not to read his notes until they have first read the text itself.  His notes have been described as gothic, as a treasure trove, as a guide to liberal education, and, by Laurence Berns in his review of The Constitutionalist, as “a little university, a second University of Chicago. . . .” (Dallas Morning News, November 28, 1971, p. 6H (reprinted in Anastaplo, “Notes toward an ‘Apologia pro vita sua,’” pp. 322-23).  It has been noticed that Anastaplo has raised annotation to an art form.  My own more modest notes, echoing his, are an attempt to blaze a trail for those whose introduction to Anastaplo will be this essay.

15.  “The Scholarship of George Anastaplo—A Symposium,” pp. 1-248.  The diversity of Anastaplo’s work may be seen in the organization by its editors of Law and Philosophy, the two-volume Festschrift in his honor.  Additional biographical information occasioned by celebration of his fiftieth birthday can be found in “Summing Up:  Body and Soul,” in The American Moralist, pp. 582-91, and by celebration of his sixty-fifth and seventieth birthdays, in “The Oklahoma Lectures:  Lessons for the Student of Law,” 20 Oklahoma City University Law Review 153-79 (1995).  See also George Anastaplo, “Thursday Afternoons,” in S. Chandrasekhar:  The Man Behind the Legend, ed. Kameshwar C. Wali (London:  Imperial College Press, 1997), pp. 122-29, and “On the Chandra Observatory,” Chicago Sun-Times, January 29, 1999.  See as well George Anastaplo, “Samplings,” 27 The Political Science Reviewer 345-78 (1998).  (See http://www.cygneis.com/anastaplo)

16.  In addition to the books already cited, George Anastaplo is the author of The Constitution of 1787:  A Commentary (Baltimore:  John Hopkins University Press, 1989); The Thinker as Artist:  From Homer to Plato & Aristotle (Athens:  Ohio University Press, 1997); and Abraham Lincoln:  A Constitutional Biography (Lanham, Md.:  Rowman & Littlefield, 1999).  The Constitution of 1787 was first developed in a series of lectures celebrating the bicentennial of the United States Constitution in the College of Liberal Arts at the Rochester Institute of Technology during the 1985-86 academic year.

Anastaplo’s series of book-length law-review “Explorations” include:

i. “Human Nature and the First Amendment,” 40 University of Pittsburgh Law Review 661-778 (1979).

ii. “What is Still Wrong with George Anastaplo? A Sequel to 366 US. 82 (1961),” 35 DePaul Law Review 551-647 (1986).

iii. “The United States Constitution of 1787:  A Commentary,” 18 Loyola University of Chicago Law Journal 15-249 (1986).

iv.  “Church and State:  Explorations,” 19 Loyola University of Chicago Law Journal 61-193 (1987).

v. “Slavery and the Constitution:  Explorations,” 19 Texas Tech Law Review 677-786 (1989).

vi. “Freedom of Speech and the First Amendment:  Explorations,” 21 Texas Tech Law Review 1941-2086 (1990).

vii. “The Constitution at Two Hundred:  Explorations,” 22 Texas Tech Law Review 967-1112 (1991).

viii. “On Trial:  Explorations,” 22 Loyola University of Chicago Law Journal 765-1118 (1991).

ix.  “On Freedom:  Explorations,” 17 Oklahoma City University Law Review 465-726 (1992).

x. “The Amendments to the Constitution of the United States:  A Commentary,” 23 Loyola University of Chicago Law Journal 631-865 (1992).

xi.  “Rome, Piety, and Law:   Explorations,” 39 Loyola of New Orleans Law Review 1-149 (1993).

xii.  “Lessons for the Student of Law:  The Oklahoma Lectures,” 20 Oklahoma City University Law Review 17-218 (1995).

xiii.  “Law & Literature and the Bible:  Explorations,” 23 Oklahoma City University Law Review 515 (1999).

xiv.  “Law & Literature and Shakespeare:  Explorations” (in course of preparation).

Included in Anastaplo’s series on non-Western thought are “An Introduction to Confucian Thought” (1984); “An Introduction to Hindu Thought:  The Bhagavad Gita” (1985); “An Introduction to Mesopotamian Thought:  The Gilgamesh Epic” (1986); “An Introduction to Islamic Thought:  The Koran” (1989); “An Introduction to Buddhist Thought” (1992); “An Introduction to North American Indian Thought” (1993);  “On the Use, Neglect, and Abuse of Veils:  The Parliaments of the World’s Religions, 1893, 1993” (1994); “An Introduction to ‘Ancient’ African Thought” (1995).  All of these articles have been published in The Great Ideas Today and are to be collected in a volume by Rowman & Littlefield.  See also his article, “On Beginnings,” in The Great Ideas Today, which includes discussions of Hesiod’s Theogony, of the Bible, and of Stephen Hawking’s A Brief History of Time.  Much more than is offered here can be found in “George Anastaplo:  Autobiographical Bibliography,” in Law and Philosophy, vol. II, pp. 1073-1145.

If one takes 1983 (with its “Notes toward an ‘Apologia pro vita sua’”) as the midpoint of Anastaplo’s publications, one can look back to “Human Being and Citizen:  A Beginning to the Study of Plato’s Apology of Socrates,” in Ancients and Moderns:  Essays in the Traditions of Political Philosophy in Honor of Leo Strauss, ed. Joseph Cropsey (New York:  Basic Books, 1964; reprinted in Human Being and Citizen) and to “The Declaration of Independence,” 9 St. Louis University Law Journal 390 (1965) (to be reprinted in Abraham Lincoln:  A Constitutional Biography), as critical beginnings.  One can then look forward to the works anticipated in “Notes toward an ‘Apologia pro vita sua,’” pp. 341-43, now mostly published, and see a perspective and a direction that are remarkably consistent.  One may thus discern a program of publication thought through well in advance.

Had Thomas I. Emerson (of the Yale Law School) not recommended against its publication by the University of Chicago Press, it is likely that The Constitutionalist (1971) would have been published (albeit with far fewer notes) about the same time as Anastaplo’s essays on the Apology of Socrates (1964) and “The Declaration of Independence” (1965).  The direction of his thought would then have been apparent early in his publications.

17.  Anastaplo, “Notes toward an ‘Apologia pro vita sua,’” pp. 342, 341-43, 338.  See also Anastaplo, “Don Quixote and the Constitution,” in The Supreme Court and American Constitutionalism, eds. Bradford P. Wilson and Ken Masugi (Lanham, Md.:  Rowman & Littlefield Publishers, Inc., 1998), p. 93.  See as well Anastaplo, “American Constitutionalism and the Virtue of Prudence:  Philadelphia, Paris, Washington, Gettysburg,” in Abraham Lincoln, The Gettysburg Address and American Constitutionalism, ed. Leo Paul S. de Alvarez (Dallas:  University of Dallas Press, 1976), pp. 78, 128-29.  See as well Anastaplo, “Samplings,” pp. 450-54.  For a hint regarding the prominence of the number 17 in Anastaplo’s work, as well as the benefit of “principles stated clearly and forthrightly,” see Leo Paul S. de Alvarez, “An Introduction of George Anastaplo” (Constitution Day, September 17, 1995, The University of Dallas).

18.  Four Pillars of Constitutionalism:  The Organic Laws of the United States, Introduction by Richard H. Cox (Amherst, New York:  Prometheus Books, 1998), pp. 69-70.

19.  Anastaplo, The Constitution of 1787, p. 61.  See Anastaplo, “How to Read the Constitution of the United States,” 17 Loyola University of Chicago Law Journal 1 (1985).

20.  Anastaplo, The Constitutionalist, p. 29.

21.  Testimony to Crosskey’s thouroughness is found in Anastaplo’s 1971 observation:  “Whenever I have tracked down an obscure publication on constitutional law or history in the University of Chicago Library, the most recent and often the only name on the card (many years before) has usually been Crosskey’s.”  The Constitutionalist, p. 568.  See also Anastaplo, “Mr. Crosskey, the American Constitution, and the Natures of Things,” 15 Loyola University of Chicago Law Journal 245, n.143, 227, n.57 (1984); “Crosskey’s Constitutional Blockbuster and the Limits of History,” Modern Age, Spring 1983, pp. 365-70.  See, as well, Malcolm P. Sharp, “Crosskey, Anastaplo, and Meiklejohn on the United States Constitution,” 20 University of Chicago Law School Record 51 (1973).

Anastaplo acknowledges in his writings various educational influences:  his Carterville (Illinois) Community High School teachers, Elbert Fulkerson, Fred Lingle, and Georgia Lingle; his University of Chicago College teachers, Henry Rago, Donald Meiklejohn, Henry Finch, John Hawthorne, and Richard Weaver; his University of Chicago Law School teachers, Edward H. Levi, Walter Blum, Bernard Meltzer, William WIndslow Crosskey, Malcolm Sharp, Harry Kalven, and Wilbur Katz; his Committee on Social Thought teachers at the University of Chicago, David Grene, Yves Simon, Edward Shils, Friedrich A. von Hayek, Peter H. von Blanckenhagan, and Otto von Simson; and from the general community, Robert Maynard Hutchins, Hugo Black, Alexander Meiklejohn, Jacob Klein, Mortimer Adler, and John Van Doren.  See Anastaplo, “Samplings,” pp. 349-62;  Anastaplo, “‘McCarthyism,’ the Cold War, and Their Aftermath,” pp. 167-71; “Lessons for the Student of Law:  The Oklahoma Lectures,” pp. 133-52.  See also Anastaplo, “Malcolm P. Sharp and the Spirit ’76,” Law Alumni Journal, The University of Chicago Law School, Summer 1975, pp. 18-24; Anastaplo, “A Little Touch of Harry,” 43 University of Chicago Law Review 43 (1975), p. 26.  See as well note 6, above.

22.  William W. Crosskey, Politics and the Constitution in the History of the United States (Chicago:  University of Chicago Press, 1953).  See Anastaplo, The Constitution of 1787, p. ix.

23.  See Anastaplo, The Constitution of 1787, pp. xviii, 52-58, 311, n.37.

24.  See Anastaplo, The Amendments to the Constitution, pp. 125-34.

25.  See Herman Beltz, review of The Amendments to the Constitution, in 40 American Journal of Legal History 395-97 (1996).

26.  Anastaplo, The Amendments to the Constitution, pp. 125-34.  See also Anastaplo, “Constitutionalism and Prudence,” p. 80.

27.  Anastaplo, The Constitution of 1787, pp. 13-14, 51.

28.  Ibid., pp. 32-33, 117.

29.  Anastaplo, The Amendments to the Constitution, p. 227.  See also Willmoore Kendall, “The Two Majorities,” in Wilmoore Kendall Contra Mundum, ed. Nellie D. Kendall (Lanham, Md.:  University Press of America, 1994), pp. 202-27.

30.  Anastaplo, The Constitution of 1787, pp. 122-23.

31.  “The Pentagon Papers and the Abolition of Television,” in Anastaplo, The American Moralist, pp. 245-74.  See also Anastaplo, The Constitution of 1787, p. 39; The Amendments to the Constitution, p. 237.

32.  Anastaplo, The Amendments to the Constitution, p. 214 (emphasis added).

33.  See Anastaplo, The American Moralist, pp. xvii-xviii; The Constitution of 1787, pp. 79, 109-110, 32-33, 317-19.  See as well his arguments for retention of most of the Electoral College system, pp. 100-105, 272-73, 314, n. 66; The Amendments to the Constitution, pp. 215-16, 445, 250-51.  See also Anastaplo, “Did Anyone ‘In Charge’ Know What He Was Doing,” in A Weekend with the Great War, ed. Steven Weingartner (Chicago:  White Mane Publishing Co. 1997), pp. 3-18 (to be included in the expanded 1999 edition of Campus Hate-Speech Codes, Natural Right, and Twentieth Century Atrocities).  See as well Anastaplo, “On Freedom:  Explorations,” pp. 604-30.

34.  Anastaplo, The Constitution of 1787, pp. 143-44.

35.  Ibid., pp. 134-35.  See William T. Braithwaite, “The Common Law and the Judicial Power:  An Introduction to Swift-Erie and the Problem of Transcendental versus Positive Law,” in Law and Philosophy, II, 774-818.

36.  See Braithwaite, “The Common law and the Judicial Power,” pp. 786-88, 774, 814 n.4.

37.  Ibid, p. 804.

38.  See Anastaplo, The Constitution of 1787, pp. 128-33.

39.  Ibid., pp. 132, 138.  An article by Anastaplo on what the Erie doctrine can teach us about the nature of law is to be published in the Brandeis Law Journal in 1999.

40.  Anastaplo, The Constitution of 1787, pp. 129-32, 136-38, 319-20.  This is a Thrasymachean view of things.

41.  Anastaplo, The Amendments to the Constitution, p. 170; The Constitution of 1787, p. 69.  See also Anastaplo, “The Supreme Court Is Indeed a Court,” in Is the Supreme Court the Guardian of the Constitution? ed. Robert A. Licht (Washington, D.C.:  The AEI Press, 1993), pp. 22-33.

42.  A critical concern of this essay is with George Anastaplo’s study of the Constitution of the United States.  His studies in religion and the Bible, philosophy, literature, and non-Western texts can illuminate for us his work on the Constitution.  Though it is impossible to sum up his scholarship in a note, perhaps a tentative step may be taken by noticing the reliance in Anastaplo’s non-constitutional works upon the idea of nature, upon prudence and natural right, and upon their bearing on legal, moral and political judgments.  From his earliest major essay, “Human Being and Citizen:  A Beginning to the Study of Plato’s Apology of Socrates,” through his series of introductory essays on non-Western traditions of thought, he has looked again and again to the ancient and modern teachers of the Founders and thereafter of the citizens of the American regime.  The idea of nature as reflecting an established and ascertainable order to the universe seems to have first come to light in Greek thought.  The understanding of the good and the bad, the just and the unjust in modern as well as in ancient natural-light thinking, is enhanced by the discovery of nature.  What is best for any people is determined in part by circumstance and by their character and limitations.  The prudent statesman is guided both by an awareness of nature and by an awareness of the conditions in which he must work.  But, as Anastaplo has reminded us, “It is one thing to figure out what natural right calls for in any situation.  It is, unfortunately, quite another thing to be able to share one’s conclusions effectively with one’s less thoughtful or more passionate fellows.”  Anastaplo, “On Trial,” p. 1033.  See also Arnhart, “George Anastaplo on Non-Western Thought,” in “The Scholarship of George Anastaplo—A Symposium,” pp. 215-20.  Throughout his non-constitutional work Anastaplo has shown that the Bible, literature, and other manifestations of the divine can be helpful in recognizing the natural and moral principles that the Constitution depends upon: “for even the snow on the boughs can evoke the image of cherries in bloom.”  Anastaplo, “Samplings,” p. 369.

43.  Anastaplo, The Amendments to the Constitution, pp. 51, 65, 310.  See Crosskey, Politics and the Constitution, pp. 363-78.

44.  Throughout his works on the Constitution, Anastaplo addresses the issues and implications related to the existence, the defense, and the abolition of slavery, with special attention paid to the Declaration of Independence, to the attractions and pitfalls of equality, and to Abraham Lincoln.  See Anastaplo, “The Declaration of Independence,” p. 390.  See also Murley, “Our Character is Our Fate,” pp. 61-63.  See, for Anastaplo’s single most extensive published treatment of slavery thus far, “Slavery and the Constitution:  Explorations,” pp. 677-786.  Worthy of the extended discussion by itself is his study of the Emancipation Proclamation of 1862-1863.  This is chapter 11 in The Amendments to the Constitution.  (It is included in his Abraham Lincoln book.)  His close reading of the Emancipation Proclamation has given us new insight into the Proclamation, reflecting the heights a truly superior President, acting as Commander-in-Chief, may attain.  In a message, dated August 25, 1995, and titled, “A Tribute to George Anastaplo,” Harry V. Jaffa wrote:

With the publication of his Commentary on the Amendments Anastaplo has complemented and completed his Commentary on the Constitution of 1787.  This is a major event in the history of the Constitution itself.  George’s commentaries, unlike any others, belong to a tradition very different from that of legal commentaries, as usually understood.  They have more in common with Leo Strauss’s The Argument and the Action of Plato’s “Laws” than with any other contemporary work.  As Strauss approached the Torah of reason with the reverence of the Torah of revelation, Anastaplo has brought a lifelong devotion to the American Constitution to his task.

Since it will be some time before I can have assimilated his magisterial work, I mention here only one of its features.  The chapter on the Thirteenth Amendment is preceded by one on the Emancipation Proclamation.  This is absolutely necessary, although George is perhaps the only one who would have recognized that fact.  After nearly a half century of constant reading and re-reading of Lincoln, and about Lincoln, I can say categorically that this chapter is the finest scholarly writing on Lincoln’s words that I know.  My feeling is that George must have sat at Lincoln’s elbow as he composed the Proclamation of September 22, 1862, and discussed it with him, paragraph by paragraph.  As proof of the possibility that one can understand a great writer as he understood himself, it is the definitive refutation of historicism.

 

This generous tribute to Anastaplo was prepared by Jaffa for a panel, “The Scholarship of George Anastaplo,” sponsored by The Claremont Institute for the Study of Statesmanship and Political Philosophy, at the Annual Meeting of the American Political Science Association, Chicago, Illinois, August 31, 1995.  Thereafter it was included in “George Anastaplo, Human Being and Citizen,” for “The Scholarship of George Anastaplo—A Symposium,” pp. 12-13.

This is the most recent installment of a forty-year dialogue between Jaffa and Anastaplo.  Nearly two decades ago, Anastaplo described Henry Jaffa as “the most instructive political scientist writing in this country today.”  See Anastaplo, The Artist, as Thinker, pp.476-81.  See also Anastaplo, Human Being and Citizen, pp. 61-73; “American Constitutionalism and the Virtue of Prudence,” p. 165; “On the Historic Significance of Abraham Lincoln’s ‘House Divided’ Speech:  For Harry V. Jaffa, Seventy-five and Still Counting,” prepared for The Lincoln-Douglas Debates Symposium (Ottawa, Illinois, August 28, 1993) (published in Anastaplo, Abraham Lincoln:  A Constitutional Biography).  See as well the exchanges in Harry V. Jaffa, Original Intent and the Framers of the Constitution:   A Disputed Question (Washington, D.C.:  Regnery Gateway, 1994) (with Bruce Ledewitz, Robert L. Stone, and George Anastaplo).  Both Anastaplo and Jaffa published “A Conversation with Harry V. Jaffa at Rosary College” (River Forest Illinois, December 4, 1980).  See Harry V. Jaffa, American Conservatism and the American Founding (Durham, N.C.: Carolina Academic Press, 1984), pp. 48-75; Anastaplo, The Artist as Thinker, pp. 476-81.  A thoughtful introduction to the relationship between the work of George Anastaplo and that of Harry V. Jaffa is found in Laurence Berns’s essay, “Aristotle and the Moderns:  On Freedom and Equality,” in The Crisis of Liberal Democracy:  A Straussian Perspective, eds. Kenneth L. Deutsch and Walter Soffer (Albany, N.Y.:  State University of New York Press, 1987), pp. 148-66.  See as well, Anastaplo, “Don Quixote and the Constitution,” p. 94, n. 3.

45.  Anastaplo, The Constitution of 1787, p. 64.

46.  See ibid., pp. 54-57, and at p. 280 the chart of the powers of Congress found in Article I, section 8.  See also Crosskey, Politics and the Constitution, pp. 409-508.  See as well Anastaplo, The Constitution of 1787, pp. 128-33, for his discussion of the “burdens on interstate commerce” doctrine.

47.  See Anastaplo, The Constitution of 1787, pp. 56-66.

48.  Anastaplo, “Mr. Crosskey, the American Constitution, and the Natures of Things,” pp. 197, 232 n. 87.  See also Anastaplo, The Constitution of 1787, p. 57.

49.  See Anastaplo, The Amendments to the Constitution, p. 235; The Constitution of 1787, p. 57.

50.  See ibid.  See also Anastaplo, “‘Racism,’ Political Correctness, and Constitutional Law:  A Law School Case Study,” pp. 108-64.

51.  Anastaplo, “Samplings,” p. 374.

52.  See Anastaplo, The Constitution of 1787, pp. 11, 24, 60-67, 228; The Amendments to the Constitution, pp. 34-41, 102-106, 168, 187, 229-36, 389-93.  See also Anastaplo, “The Making of the Bill of Rights, 1791,” in The Great Ideas Today, pp. 318-75.  See as well Anastaplo, “To Amend Means to Improve,” Congressional Record, vol. 141, March 3, 1995 (inserted in the Record by his law school classmate, Congresswoman Patsy T. Mink).  (During Anastaplo’s decade-long encounter with the Greek Colonels, a number of his articles about Greece were inserted in the Congressional Record by another of his law school classmates, Congressman Abner J. Mikva.)

53.  Anastaplo, The Constitutionalist, pp. 14-15.  See Anastaplo, “Freedom of Speech and the First Amendment:  Explorations,” pp. 1941-2086.  See also Anastaplo, “Censorship,” in Encyclopedia Britannica (15th ed.)  For extended discussions of “church and state issues,” see Anastaplo, “The Religion Clauses of the First Amendment,” 11 Memphis State University Law Review 151 (1981); “Church and State:  Explorations,” pp. 61-194.  See as well Stephen Vanderslice, “George Anastaplo on Religion,” 26 Political Science Reviewer 114-54 (1997); note 16 (item xiii) above.

54.  See Anastaplo, The Constitutionalist, pp. 159, 644; The Constitution of 1787, pp. 21-24, 52, 310; The Amendments to the Constitution, pp. 92-102.

55.  See Crosskey, Politics and the Constitution, pp. 557-58; Anastaplo, “Mr. Crosskey, the American Constitution, and the Natures of Things,” pp. 208-09, 252-53.  See also Anastaplo, “Teaching, Nature, and the Moral Virtues,” in The Great Ideas Today, pp. 2-45.  See as well Anastaplo, “Natural Law or Natural Right?” 38 Loyola of New Orleans Law Review 915 (1993).

56.  A listing of George Anastaplo’s writings on Leo Strauss can be found in note 1 in Anastaplo’s contribution to this volume.

57.  Anastaplo, The Constitution of 1787, p. xvii.  See also Anastaplo, “Constitutionalism and Prudence,” pp. 93, 106.

58.  Wilmoore Kendall Contra Mundum, pp. 399-402.  In this context it is worthy of note that Anastaplo’s constitutionalism depends less on the “intentions of The Federalist” or on “the intentions of the Framers”—that is, less on what this or that Framer said here or there—than on what they did:  the Declaration of Independence and the Constitution.  It can also be said that Anastaplo looks less to the Framers and more to the teachers of the Framers.  See Anastaplo, “The Founders of Our Founders:  Jerusalem, Athens, and the American Constitution,” in Jaffa, Original Intent and the Framers of The Constitution, pp. 181-97, Anastaplo, “Lessons of ancients still applicable today,” Chicago Sun-Times, January 15, 1999, p. 38.  See also Anastaplo, “The Constitution at Two Hundred,” pp. 1036-42, 1053-62; Murley, “Our Character is Our Fate,” pp. 58-60, 81.  See as well Anastaplo, “Lessons for the Student of Law,” pp. 44-45.

59.  Anastaplo, “The Declaration of Independence,” p. 390.

60.  See Anastaplo, The Constitution of 1787, pp. 164, 31, 38; The Amendments to the Constitution, pp. 32, 20, 236-37.

61.  Anastaplo, The Constitutionalist, p. 285.  “We must not be afraid to be free” is the concluding sentence of Justice Hugo L. Black’s dissenting opinion in In re Anastaplo, 366 U.S. 82, 116 (1961).  Justice Black prefaced his conclusion by observing, “Too many men are being driven to become government fearing. . .because government is being permitted to strike out at those who are fearless enough to think as they please and say what they think.”  Justice Black asked that this portion of his opinion be read from at his funeral service in 1971.  See Memorial Addresses and Other Tributes. . . Hugo LaFayette Black, 92d Cong., 1st Sess., House Document No. 92-236 (Government Printing Office, 1972), pp. 64-65; Roger K. Newman, Hugo Black:  A Biography (New York:  Pantheon Books, 1994), pp. 502-7, 699.  See also Anastaplo, “Mr. Justice Black, His Generous Common Sense, and the Bar Admission Cases,” 9 Southwestern University Law Review 977 (1977).  Justice William Brennan is reported to have said that Justice Black’s dissenting opinion “immortalized George Anastaplo.”  See Newman, Hugo Black:  A Biography, p. 507.  See also George Anastaplo, “Justice Brennan, Due Process, and the Freedom of Speech:  A Celebration of Speiser v. Randall,” John Marshall Law Review 20 (1986), p. 7.  Justice Black’s “We must not be afraid to be free” statement was featured in an exhibit of American and Russian “dissidents” (including a portrait of George Anastaplo), which toured the Soviet Union before the dissolution of the Communist regime.  (This exhibit was organized by Harrison Sheppard, a San Francisco lawyer.)  Anastaplo is preparing for publication his decade-long correspondence with Justice Black.  See 405 U.S. xxvii-xxviii (1972).  See as well, note 76, below.

62.  Anastaplo, “The Constitution at Two Hundred:  Explorations,” 22 Texas Tech Law Review 1097, 1109.

63.  “A salutary patriotism occasionally obliges us, at the risk of seeming naive, to overlook limitations and problems of the American Republic while we sing its praises.”  Anastaplo, The Constitutionalist, p. 283.  Patriotism is also exhibited in the dedication to The American Moralist:

To

THE SACRED MEMORY

of

SEVEN VERY YOUNG MEN

we grew up with in Carterville, Illinois

and who went off to war with us a half-century ago

but

WHO NEVER RETURNED

 

64.  Leo Strauss, “Liberal Education and Responsibility,” in Liberalism Ancient and Modern (New York:  Basic Books, 1968), p. 24.

65.  See Anastaplo, The Amendments to the Constitution, p. 145.

66.  The Constitutionalist, p. 420.  See Anastaplo, The Amendments to the Constitution, pp. 101, 107, 123.  See also Anastaplo, “Constitutionalism and Prudence,” p. 125; “A Beginning to the Study of Plato’s Apology of Socrates,” p. 12; “On Freedom:  Explorations,” p. 465.

67.  See Anastaplo, “On Freedom:  Explorations,” pp. 666-85.

68.  Anastaplo, The Amendments to the Constitution, p. 124.  See, on the significance of the declining importance of Plato and Aristotle for American constitutionalism, “Education in the New Republic,” ibid., pp. 107-24.  Harry V. Jaffa has many times said that Anastaplo was the first to notice that the Declaration of Independence refers to God as legislator, then as judge, and then as executor of the law.  See Anastaplo, “The Declaration of Independence,”  pp. 404-5; The Constitution of 1787, p. 21.

69.  Anastaplo, The Constitutionalist, pp. 284-85.

70.  See George Anastaplo, review of Harry V. Jaffa, “Equality & Liberty,” in Human Being and Citizen, pp. 61-73.  For further discussion of this position see Anastaplo’s 1997 and 1998 South Dakota Law Review collections, “‘Racism,’ Political Correctness, and Constitutional Law:  A Law School Case Study,” and “‘McCarthyism,’ The Cold War, and Their Aftermath.”  (These two collections are being prepared by Anastaplo for publication in one volume, What Can a Man Do? On “McCarthyism,” “Racism,” and “Political Correctness.”)  Liberty and Equality are examined in Anastaplo, Liberty, Equality & Modern Constitutionalism:   A Sourcebook (to be published in 1999, in two volumes, by the Focus Publishing Company).

71.  See Laurence Berns, “Aristotle and the Moderns on Freedom and Equality,” p. 153.

72.  Leo Strauss, Natural Right and History (Chicago:  University of Chicago Press, 1953), p. 1.

73.  Anastaplo, The Constitutionalist, pp. 144-65.  See also Anastaplo, “We the People, The Rulers, and the Ruled,” The Great Ideas Today, p. 64.

74.  Anastaplo, The Constitution of 1787, pp. 8-9.

75.  Strauss, Natural Right and History, p. 323.

76.  Anastaplo, The Constitutionalist, pp. 381-82, 399-400.  See, on the end implicit in the notion of a beginning, Anastaplo, “On Beginnings,” p. 140.  See also Irving Dilliard, ed., One Man’s Stand For Freedom:   Mr. Justice Black and the Bill of Rights (New York:  Alfred A. Knopf, 1963), pp. 413-15.  See as well note 61, above.

This essay, by John A. Murley, was published in Kenneth L. Deutsch and John A. Murley, eds., Leo Strauss, the Straussians, and the American Regime (Lanham,  Maryland:  Rowman & Littlefield, 1999), pp. 159-61.  The author is Professor of Political Science, Rochester Institute of Technology.

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