Review of Anastaplo’s The Constutionalist (expanded version)

On the Interplay of the First Amendment with the Known Universe

by  Ed Buckner

Council for Secular Humanism, Smyrna, Georgia

a review of George Anastaplo, The Constitutionalist: Notes on the First Amendment. Lanham, Maryland: (Lexington Books, 2005, 826 pp.) (expanded version of the 1971 publication by Southern Methodist University Press). 

            To dip into George Anastaplo’s masterpiece in search of a simple interpretation of how the First Amendment affects a particular policy or controversy is somehow parallel to dipping into James Joyce’s Finnegan’s Wake in search of an interesting plot:  One will not succeed without investing more time and effort than one would think a few pages are  likely to require, but persistence may be repaid handsomely. Anastaplo is just too richly educated to gloss over complexity and provide a simple answer where there is none. As with Joyce, his explanations go off in every direction, with allusions that seemingly connect everything to everything, deepening a patient reader’s understanding as Anastaplo brings history, Greek mythology, poetry, philosophy, and theories of justice to bear on every point and on nearly every point that underlies the starting one. Anastaplo assumes an educated reader even while he further educates his reader.

            As an example, if a reader wanted to learn Anastaplo’s view on a writ of habeas corpus, referring to the book’s index would lead to 30 different pages scattered throughout the long book, some of them multiple-page entries. Because one of the few defects in the book is an occasionally inaccurate index (some corrections are provided in the 2004 addenda, but errors persist), even the hours needed to search out all those references might not give that reader an absolutely comprehensive answer. But he would learn nearly all there is to know about habeas corpus, especially if he branched out to examine, for example, all 35 references to the related “clear and present danger” test. Many of the index references are to notes, of course, and if a reader studies with care all of those plus all the related notes (the notes to this work make up nearly half the text), his knowledge would be deepened even further.

            A reader interested in the relationship between the First Amendment and religious freedom, racism, political correctness, obscenity, the Alien and Sedition Act, Jefferson’s correspondence with John Adams, the common law, or Aristotle could likewise enjoy Anastaplo’s erudition as one might enjoy an encyclopedia. The time needed to follow up on all the cross-references would be close to endless but rewarding.

            Anastaplo can perhaps be best “stereotyped” as the kind of thinker who personally opposes burning an American flag in political protest but who opposes a Constitutional amendment to protect the flag even more vigorously. Flag desecration is one of the few First Amendment issues not discussed in this book—in 1971, when the original edition was first published, testing that aspect of free speech had not yet worked its way through the courts—but Anastaplo did write on the subject later, in a Chicago Sun-Times newspaper article in September 1995 (entered into the Congressional Record thereafter by Paul Simon, U.S. Senator from Illinois). His reverence for and broad understanding of free speech and its protection as the most crucial freedom led Anastaplo, unsurprisingly, to argue that the Constitution, especially the First Amendment, deserves greater protection than the flag.

            In 1972, C. Herman Prichett wrote, in a review of the original edition of this book, that George Anastaplo had been held to be “unfit for admission to the Illinois Bar” by the Committee on Character and Fitness and that the Committee’s decision had been affirmed by first the Illinois Supreme Court and then, in 1961, by the U.S. Supreme Court. As Pritchett noted,

This was not Anastaplo’s only such experience with power structures. In 1960 he was expelled from Soviet Russia for protesting the 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. (quoted in Anastaplo, 2005, p. xv)

             The story of Anastaplo’s rejection for admission to the bar and the appeals is included, in much detail, in the appendices to this book and serves as a perfect example of Anastaplo’s principled commitment to free speech, broadly construed. There are unlikely to be any other examples in recent American history of a man with such a distinguished and honored career as a legal scholar and professor who has never been admitted to the bar. (The Illinois Bar came close to begging him, years later, to accept admission, but by that point he took more satisfaction in not reapplying than he would have in admission.) Anastaplo’s “mistake” in the 1950s came down to nothing more than refusing to answer inappropriate questions about whether he was a Communist, though there is no evidence he ever was, and refusing, as any principled American should, to deny that there is ever any reason to violently overthrow the government.

The Constitutionalist belongs on the bookshelf and should be referred to by any of a select few:  anyone who cares about freedom, the U.S. Constitution, American history, justice, free speech, the law—or related subjects.

Criminal Justice Review –  Volume 32, No. 2, pp. 173-74 (2007)

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