Review of Anastaplo’s “The Constutionalist”

by C. Herman Pritchett

GEORGE ANASTAPLO, The Constitutionalist:  Notes on the First Amendment. Dallas, Texas:  Southern Methodist University Press, 1971. 826 pp. $20.00.

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.1 This was not Anastaplo’s only such experience with power structures.  In 1960 he was expelled from Soviet Russia for protesting harassment of another [tourist], 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.

This huge book is primarily a treatise on the First Amendment, with notes.  As such it is probably the most original, extended, learned, dogmatic, tightly-structured, eloquent, unorthodox, and altogether heroic essay in constitutional explanation, interpretation, and plain and fancy assertion since the two volume blockbuster of William W. Crosskey,2 who incidentally was one of Anastaplo’s professors at the University of Chicago Law School.

But the publisher, who in this period of astronomical printing costs deserves some kind of Pulitzer Prize, has also indulged the author in a considerable spate of autobiographical appendices, the most important of which is appendix F, entitled “In re George Anastaplo (1950-1961).”3 This is an in-depth study of Anastaplo’s eleven year effort to gain admission to the Illinois bar, told largely through the official records, briefs and court decisions.  (It even includes Anastaplo’s diverting conversation with a Justice of the Illinois Supreme Court who happened to hail the cab Anastaplo was driving in Chicago some months after his first appearance and defeat in that court.)4 The best way to understand the constitutional positions taken by this adamantly principled philosopher and scholar may be through an account of his misadventures with the Illinois bar, and so we begin with appendix F.

Up to November, 1950, Anastaplo’s life was a mid-America, middle-class, melting-pot success story.  He was born in 1925 in [St. Louis, Missouri] of parents who had recently immigrated from Greece.  Interrupting his education at 18, he fought his way into the Air Force despite official medical concern about a heart murmur and flew as a navigator in all major theaters of World War II.  Discharged in 1947, he completed his undergraduate education and emerged from the University of Chicago Law School with the highest grades in his class.  After he passed the bar exams, all that remained before his admission to the bar was the pro forma hearing before the Committee on Character and Fitness.

Anastaplo’s hearing was not pro forma.  Asked on a personal form to state what he considered to be the principles underlying the Constitution, Anastaplo listed three—separation of powers, the Bill of Rights and the right of revolution against a government destructive of these rights.  Alerted by the mention of revolution, committee members, who apparently had not read or did not believe in the Declaration of Independence, began an investigative colloquy culminating in the predictable question, “Are you a member of the Communist Party?”

Anastaplo refused to answer on the ground that the question was not reasonably related to the committee’s function and violated his constitutional rights.  There had not been the slightest suggestion from any source of the remotest connection with the Communist Party.  At any time during the next eleven years Anastaplo could have won admission to the bar by saying the single word, “No,” but he never did.  Most of the committee members and judges with whom he had to reckon could not understand such obduracy.  As Justice Harlan, a great and good man who can scarcely have been happy with the decision which he felt his judicial scruples required him to make, said almost plaintively, “petitioner holds the key to admission in his own hands.”5 The only thing that kept him from using the key was his principles.

Excessive adherence to principle can be very disconcerting, and the relatively few individuals afflicted by this malady invariably generate trouble for themselves and annoyance in their fellows.  As one of the majority members of the fitness committee complained to a friend, “Anastaplo always conducted himself before our committee as if he was better than us.”6 It does take an egoist to beheve that what he does really matters, and something of a masochist as well to endure willfully chosen deprivations.  While one would hesitate to say that Anastaplo enjoyed those eleven years, he did have the stimulant of a cause, and he dramatized it with superlative skill.  To how many men does the opportunity come to file a petition for rehearing in their own case with the Supreme Court beginning with a Biblical quotation, “And let us not be weary in well doing:  for in due season we shall reap, if we faint not,”7 and this first sentence:  “It is highly probable that upon disposition of this Petition for Rehearing, petitioner will have practiced all the law he is ever going to.”8 And assuredly no one else has ever written a “Farewell Letter to the Illinois Supreme Court,” as Anastaplo did after the U.S. Supreme Court had denied his final petition, offering his services to that court should his “position or temperament ever be recognized as useful to the administration of justice in this state. . . .”9

Anastaplo was defeated by the judicial theory that he was obligated to assist the fitness committee by answering any question it chose to ask, whether or not that question was related to any evidence received by the committee, and no matter what the grounds for his refusal.  Ten years later in Baird v. State Bar of Arizona10 the Court by another five to four decision sharply modified this position and held that a state may not inquire about a person’s views or associations solely for the purpose of withholding a right or benefit because of what he believes.  Justice Black, author of the Anastaplo dissent, and now speaking for the Baird majority, did not say whether Baird overruled Anastaplo, but Justice Blackmun for the Baird minority appeared to think so.  By 1971, however, Anastaplo was well advanced in an alternative career as a professor of political philosophy.  He had embarked on a Ph.D. program in the Committee on Social Thought at Chicago and became a disciple of the foremost American classical philosopher, Leo Strauss.  The volume under review developed out of Anastaplo’s doctoral dissertation.

Anastaplo calls his study an exploratory inquiry into the First Amendment.  One may be surprised that it is possible to “explore” such a well-worn subject as the First Amendment, but the fact is that the book is full of original and at times startling theories or explanations of constitutional language and intentions.  The method of analysis is historical-philosophical.  The source materials are primarily from the Constitutional Convention, The Federalist, and the debates in the First Congress, but this is history filtered through the premises of an assiduous classical scholar.  Actually, a fairly accurate intellectual profile of the author might be drawn simply by noting the names most often cited in the index.  References to Lincoln extend over 12 lines, Plato and Publius are tied at 11, Madison comes in with 10, Aristotle, Burke, and Blackstone get 9 each, Tocqueville 7, and Hobbes, Jefferson, Montesquieu and Leo Strauss receive 6 lines each.

Anastaplo turns to the “records of the men of 1789,” he says, not to “satisfy a mere craving for history,” but because their discussions “surpass in subtlety, precision, and relevance” most of the more recent thinking on the subject.11 A source he definitely does not turn to is the Supreme Court.  He is highly critical of Justice Holmes, the Court’s principal theoretician on First Amendment problems, and he believes his own approach through the language of the Constitution, taking due account of historical and documentary evidence, “offers a more reliable guide to what the law should be than the vacillations of the Supreme Court of the United States with respect to these matters since the First World War .”12 Indeed, he suggests that even “the thoughtful citizen,” may be in a better position than the Court to understand the First Amendment, “since he is neither bound as a judicial body may feel itself to be by precedent and dicta of earlier courts nor swayed by improper considerations that men in public life are sometimes not equipped or disposed to disregard.”13 Anastaplo proceeds also on the assumption that the Constitution has a “meaning, life, and purpose of its own,”14 in which every part has a role, and that recourse to fundamental principles will provide guidance for the resolution of conflicts in applying the Constitution to practical affairs.  The result, he admits, is an interpretation which differs substantially from the views of any other student of the Constitution.

His initial proposition is not that novel.  It is basically the Meiklejohn-Black “absolutist” interpretation of the constitutional command, “Congress shall make no law…”  The First Amendment “prohibits Congress, in its law-making capacity, from cutting down in any way or for any reason freedom of speech and of the press.”  Like Meiklejohn,15 he is impressed that the Framers knew how to use qualifying language when they wanted to, and that in the First Amendment they did not choose to do so.  For over a century after 1798, Congress in fact did “make no law” affecting speech and press.  The Civil War was fought without enactment of a sedition act.  The nineteenth century thus saw a “daring experiment” in which “a great government proved able to survive and even prosper, notwithstanding the fact that it possessed no power to curtail or punish the most severe criticism of either its men or its measures.”16

This record is flawed, however, by the fact that Congress did pass the Alien and Sedition Acts in 1798, in spite of the First Amendment.  Leonard Levy has argued that this proves the First Amendment did not invalidate the common law of seditious libel and that it was only after the controversy that those statutes generated that a consensus was established on this point.17 But Anastaplo rejects Levy’s “mournful account.”18 He doubts that the Jeffersoman position sprang full blown from the Sedition Act controversy and believes that the way had been prepared for it by popular understanding and general usage.  He thinks Levy failed to credit the influence of the Declaration of Independence or to appreciate the intimate relation between freedom of the press and a republican regime.

Anastaplo also decisively rejects the theory that the First Amendment did nothing more than incorporate Blackstone’s “no prior restraint” doctrine.  The purpose of this rule had been to rescue the English press from the special liabilities imposed on it by nervous sovereigns and to assure that the press was subjected only to the normal rule of law.  The First Amendment did more.  It included speech as well as press, and of course the prior restraint rule had never been applied to the people at large.  The new concern was with public freedom rather than private liberties—“the enthronement of the principle of self-government.”19

But Anastaplo reads the First Amendment narrowly as well as broadly.  He contends that the amendment, though absolute where applicable, protects only one category of speech—“political discussion.”  In support of this assertion he quotes an earlier Madison draft of the First Amendment in which freedom of speech and press was specifically linked to permitting the people publicly to address their representatives or privately to advise them.20 Freedom of speech for the public was intended to be the prototype of that freedom of speech traditionally guaranteed to members of the legislature so as to permit full and frank discussion of public business.

In a further narrowing, Anastaplo concedes that there are even subcategories of discussion of public affairs that are not protected by the first amendment.  There he lists as treason, espionage, sabotage of military installations, or assassination of government officials, “all of which crimes may be inaugurated or advanced by the use of words.”  There is no ground for constitutionally protecting these kinds of activities.  “None of these cases raise free speech problems.”21

Thus by withdrawing first amendment protection from specific speech classes Anastaplo solves the “danger to public order” problem that Holmes dealt with by his relativistic and unpredictable “clear and present danger” doctrine.  Anastaplo would argue that his categories are comparatively narrow and explicit, whereas “clear and present danger” dilutes the First Amendment all across the board.  Experience has shown that the scope for Holmes’ formula runs all the way from hauling a street orator off his soapbox22 to validating sedition acts.23 By contrast, Anastaplo regards as unconstitutional “most if not all of the convictions secured by the general government in this century against the political speech reported in cases from Schenck through Dennis and beyond.”24

Holmes in formulating his test in the Schenck case spoke of evils that Congress has a right to prevent.  Anastaplo denies that the government has the right to prevent evils by criminal punishment.  It can deal with evils already perpetrated, but it cannot constitutionally imprison men who might become evildoers.  According to Anastaplo, Holmes has begged the question.  He and his disciples “have left in American law a deposit of facile thoughtlessness which runs deep and of which the ‘clear and present danger’ test is merely a dramatic outcropping.”25 They have transformed the First Amendment into a mere “caution” to Congress, and the Bill of Rights into this piece of advice:  “Everybody should try to do his best and, when possible, behave himself.”26

Limiting the coverage of the First Amendment to political discussions means that it does not apply to private defamation; consequently Anastaplo would not follow Black into a rejection of all libel laws.27 More importantly, Anastaplo does not apply the amendment to artistic or imaginative literature.  He thus falls into the same trap as Meiklejohn, who was challenged on this score by Harry Kalven in his classic article, The Metaphysics of the Law of Obscenity.28 Meiklejohn, who made a distinction between “public” (protected) and “private” (unprotected) speech, escaped from the trap and brought art back into the Constitution by conceding that “novels and dramas and paintings and poems” are part of the process for education in self-government and thus properly in the “public” category.29

Anastaplo does not concede.  Like his colleagues in the Strauss school, Harry Clor30 and Walter Berns,31 he believes that there is such a thing as obscenity, that it has dangerous effects, and that the state has an obligation to enforce standards of morality.  “It may be true that all serious art has a political bearing and effect—but to consider art as political expression would both ignore essential distinctions and deprive us of an intended and useful limitation.”32 Artistic expression is entitled to the rule of law, by which Anastaplo means essentially that there can be no prior restraint.  Moreover, whether the circulation of obscenity can be punished is itself a political issue which can be freely discussed.  But the decision would be a political decision, not one based on the First Amendment.  Anastaplo sees current policy as the mirror image of what it should be:  the utmost latitude in artistic matters is combined with serious limitation on political discussion.  “The authors of the First Amendment might well wonder….what the Communist Party leaders have been doing in jail and the authors of much of our corrupting trash are doing out.”33

From his initial proposition, that the First Amendment absolutely forbids Congress to impose restraints on political discussions, Anastaplo proceeds to a second, more surprising, idea—that the Constitution intended no similar limitations on state legislatures.  Anastaplo thinks—and this is perhaps the most unorthodox view in the book—that this was a good thing.  First, an absolute prohibition on both Congress and the states would not have worked; “an absolute prohibition that is not properly limited in its application tends to buckle under the strain of the necessities that governments encounter.”34 The reason that the First Amendment “did not at once become a dead letter [was] simply because the states…..were permitted to retain some power to deal with speech and the press.”35

Second, this residual state power was not unlimited. The states were restrained by the American tradition of freedom and by the obligation to maintain a republican form of government, rather than by the First Amendment. A republican form of government requires genuine choice by the people, and that is possible only with freedom of speech and press, at least on electoral issues. Anastaplo would rescue this Constitutional guaranty from its studied neglect. 36 Congress would have the obligation to encourage these freedoms, and the courts would be available to check significant departures from republican institutions or violation of procedural standards. This train of thought is similar to that recently developed by Charles L. Black Jr. 37 He likewise concludes that if the Fourteenth Amendment had never been adopted, the states would still, because of their relationship to the federal government, be forbidden to infringe freedom of utterance.

Third, state repression of freedom is preferable to national repression, partly because it is less likely to be effective. Where restraints are imposed on a state-by-state basis, there will always be some states that will be pockets of good sense, asylums to which victimized individuals may retire. 38 The resources of the states are limited; they cannot pursue subversives or establish loyalty systems with the boundless resources of the federal government. State power over speech and press is not directly linked, as it is in the national government, to responsibility for war or peace. States are smaller communities, less impersonal than the general government, and state officials are less likely to persecute their neighbors or friends. Anastaplo notes that Senator McCarthy attacked Harvard, not the University of Wisconsin. But he does not mention the Tiemey Committee in California, Attorney General Wiynan in New Hampshire, or Senator Broyles in Illinois, to name only a few of the talented state witch-hunters. While he does test his theory by one case, the twenty-year sentence imposed by Pennsylvania on Steve Nelson for a “Smith Act”-type of offense, which he admits shows how state power may be abused, 39 he is not without rebuttal. The state prosecution, he claims was stimulated by widespread federal prosecutions; federal court evidence was used in the Pennsylvania trial; Nelson could have fled Pennsylvania, and might not have been extradited; for their part, the federal courts sentenced many Communists to long terms; and finally, Pennsylvania never did anything as reprehensible as executing the Rosenbergs.40

Anastaplo never explicitly expresses regret over the Gitlow decision, which took away the limited state power to restrain freedom of expression and brought them under the rule of the First Amendment. 41 He understands this as part of general post-Civil War developments, internal and external, which stripped the states of their original status in the federation. It was not the Fourteenth Amendment alone that was responsible for Gitlow. It was the desire to develop a large and powerful government that could, and did, overpower the sovereign states and the idea of state sovereignty. As the states were subordinated, it seemed anomalous to leave with them the duty of handling serious matters. So the original rationale for distinguishing between the state and federal government roles in handling speech and press was forgotten. Gitlow is proof that the states had ceased to be considered responsible instruments capable of policing severe threats to the national community. 42

But there was a price to pay, Anastaplo thinks, for making the general government rather than the states the principal guide with respect to sedition. To interpret the First Amendment as forbidding any abridgement of freedom by any American government was too rigid a standard. It had to crack. The first crack was the clear and present danger test.

Anastaplo does not appear to be entirely comfortable with his theory about the relation of American freedom to the states’ rights, and he admits that the “advocate of freedom” must continue to desire supervision of the states by the Supreme Court. He agrees that he may be thinking too much of the states as they were in an earlier time, when they were considered more reliable protectors of the rights of the people than the general government. He concedes that “the caliber of the state legislator and indeed of the states has declined since those heroic days.” 43 But he does not despair. “Is it too much to hope that since the state courts are also rooted in the American tradition, they can be induced, if given both the opportunity and the duty, to revive their former dedication to freedom under law?” 44 The recent record of the California supreme court suggests that this may not be an idle dream.

In the latter part of the book Anastaplo departs from the First Amendment and undertakes to state the philosophical case for freedom of speech and press, to view those freedoms in the perspective of other basic rights, and to suggest the fallacy of claims for unlimited freedom. He is not entirely convinced that the First Amendment deserves the “preferred position” that some have claimed for it. For purposes of comparison he ranks it along with four other basic rights—habeas corpus, trial by jury, suffrage, and property. 45 He points out that freedom of speech and press is the only one of these five not explicitly recognized in the original Constitution. At that time, he thinks, speech and press had less status than the other rights because it was regarded as supportive of them, not a right standing on its own. It was seen essentially as a substitute for popular control of a government, required only against an arbitrary regime not subject to the will of the people.

The preferred position now given freedom of speech Anastaplo attributes to the ascendency of American republicanism. In a government that is popularly controlled, the role of this freedom is essentially aristocratic—to protect minority opinion from popular tyranny, to provide asylum to dissenters, to encourage thoughtful men to contribute to public affairs by promising them immunity for what they say, The principal safeguard against the abuses that freedom of speech is subject to likewise has an aristocratic flavor: it is the “good sense and self restraint  of the best citizens, of men who know when and how to use delicacy while ‘in pursuit of the public good.’ ” He does not approve of those who come into public debate armed with “a terrible righteousness.” 46

The extended philosophical disquisition on the First Amendment that has just been summarized is only the upper part of this book’s iceberg. Below the waterline there is an incredible mass of 390 fine-print pages of notes, some 300,000 words, on which the author is reported to have spent four years. 47 In these notes the positions taken in the text are supported, elaborated on, or illustrated by a staggering array of sources ancient to modern, sacred to profane, serious to popular, and by the author’s own observations that he did not have room for in the text. Sample: “The freest press in the world today may be, in one sense, the Congressional Record.” 48 On one page of notes, chosen completely at random, he refers to or quotes Aristole (three times), Meiklejohn, St. Augustine, Plato (three times), Euclid, Maimonides, the Chicago Sun-Times, Life, the London Observer, and Portnoy’s Complaint. One commentator has suggested that reading these notes, which must be the product of total recall, would be the equivalent of a college education.

In his dissenting opinion in Anastaplo in 1961 Justice Black wrote: “The very most that can fairly be said against Anastaplo’s position in this entire matter is that he took too much of the responsibility of preserving [this country’s freedom] upon himself.” 49 Perhaps that was true, Anastaplo conceded in his petition for rehearing, but he did not really think so. His petition, and his farewell to the legal profession, concluded: 50

Petitioner is satisfied he has acted as one ought. He is further satisfied that his action will continue to serve the best interests of the bar and of the country…. 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.”

Notes

1.                       In re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1957), aff’d, 366 U.S. 82 (1961). See also, 3 Ill. 2d 471, 121 N.E.2d 826 (1954), cert. denied, 348 U.S 946, petition for rehearing denied, 349 U.S. 908 (1955).

2. POLITICS AND THE CONSTITUION IN THE HISTORY OF THE UNTITED STATES (1953).

3. THE CONSTITUINALIST, 331-418

4. Id. At 338-40.

5. 366 U.S. 82, 97 (1961). See the incisive critique of Justice Harlan’s position by Harry Kalven, Jr. and Roscoe T. Steffen, The Bar Admission Cases: An Unfinished Debate Between Harlan and Justice Black, 21 LAW IN TRANS. 155 (1961).

6. THE CONSTITUTIONALIST, 361.

7. Galatians, 6:9. Anastaplo acted as his own attorney throughout this prolonged legal struggle, and paid out $5,000 in filing fees.

8. THE CONSTITUTIONALIST, 381.

9. Id. At 407.

10. 401 U.S. 1 (1971).

11. THE CONSTITUTIONALIST, 25.

12. Id. at 13.

13. Id. at 24-25

14. Id. at 5.

15. A. Meiklejohn, POLITICAL FREEDOM: THE CONSTITUIONAL POWERS OF THE PEOPLE (1960).

16. THE CONSTITUTIONALIST, 176.

17. LEGACY OF SUPPRESSION (1960).

18. THE CONSTITUTIONALIST, 103.

19. Id. at 103-04.

20. Id. at 115.

21. Id. at 120.

22. Feiner v. New York, 340 U.S. 315 (1951).

23. Dennis v. United States, 341 U.S. 494 (1951).

24. THE CONSTITUTIONALIST, 127.

25. Id. at 189.

26. Id. at 47.

27. Id. at 122.

28. THE SUPREME COURT REVIEW, 1960, 1, 15-16 (P. Kurland ed.).

29. The First Amendment Is An Absolute, THE SUPREME COURT REVIEW, 1961, 245, 263 (P. Kurland ed.).

30. OBSCENITY AND PUBLIC MORALITY (1969).

31. Pornography vs. Democracy: The Case for Censorship, 22 PUB. INT. 3 (1971).

32. THE CONSTITUTIONALIST, 121.

33. Id. at 261-62

34. Id. at 53.

35. Id. at 174.

36. Id. at 86-87.

37. STRUCTURE AND RELATIONSHIP IN CONSTITUTIONAL LAW (1969).

38. THE CONSTITUTIONALIST, 179.

39. Pennsylvania v. Nelson, 350 U.S. 497 (1956).

40. THE CONSTITUTIONALIST, 187-189.

41. Gitlow v. New York, 268 U.S. 652 (1925).

42. THE CONSTITUTIONALIST, 191-195.

43. Id. at 190.

44. Id. at 191.

45. Id. at 204-24.

46. Id. at 252.

47. Id. at 419-808.

48. Id. at 423.

49. 366 U.S. 82, 114 (1961).

50. THE CONSTITUTIONALIST, 399-400.

This book review was published in 60 California Law Review 1476-1485 (1972). The reviewer is identified in this way: A.B., Millikin University, 1927, Ph.D., The University of Chicago, 1937; Professor of Political Science, The University of California, Santa Barbara. The Constitutionalist was reissued in 2005 with a Foreword by Laurence Berns and with an additional Preface by George Anastaplo.

The following dedication may be found in George Anastaplo, Campus Hate-Speech Codes, Natural Right, and Twentieth Century Atrocities (Edwin Mellen Press, 1999):

Vital to the concern expressed throughout this Collection is the need to restore the standard of civility by which productive discourse is sustained. A model of such civility was graciously provided by a teacher of mine at the University of Chicago, four decades ago, C. Herman Pritchett (1907-1995). It is appropriate, therefore, that this volume be dedicated to his memory.

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