by George Anastaplo
It can be instructive to see the uses made of one’s published work by an author whom one does not personally know. An opportunity to do this was recently offered me upon my being provided, by its author, The Just State: Rethinking Self-Government (published by Humanity Books/Prometheus Books in 2005). The author of this book, Richard Dien Winfield (Distinguished Research Professor of Philosophy at the University of Georgia), explained that he was sending me a book which has drawn on two of my books, The Constitution of 1787 (1989) and The Amendments to the Constitution (1995).
There are, in Professor Winfield’s instructive book, twenty-one indexed citations to my work. In all but one of these citations the points drawn upon from my books are apparent. Each of these notes is collected here in its entirety. (The citation in one of these notes to my work [pages 387-388, note 15] cannot be understood without the Winfield text to which the note is keyed [pages 379-380], and so that text is provided here as well.) The complete note is provided in each instance, along with an indication of the page where the note may be found in the Winfield book.
The Just State, which is the latest in a serious of books on this and related subjects by Professor Winfield, is described in this way on its cover:
At a time when the enemies of democracy cannot be dissuaded by appeals to shared values and conventions, nothing is more pressing than a thoroughgoing investigation of what the state should be. Whereas contemporary thinkers have mostly relativized political justice or conceived it as a formal concept lacking institutional detail, The Just State provides a comprehensive theory of self-government, legitimating democracy and concretely conceiving how political institutions should be organized. Carefully and clearly evaluating the fundamental options of normative political theory, philosopher Richard Dien Winfield shows how political self-determination possesses validity independent of any assumptions, enabling democracy to be successfully defended against its postmodern and fundamentalist opponents.
The description of The Just State continues with a more detailed account of its contents:
Winfield first examines the household, social, and cultural transformations that enable political emancipation. He then methodically details how self-government should be organized. Uniquely addressing all the central issues embroiling contemporary politics, The Just State determines how political parties should function, resolves controversies between participatory and representative democracy, majoritarian and proportional representation, presidential and parliamentary systems, and federalism and centralization; and examines the ramifications of international relations for political freedom. By tackling all the questions that political philosophers have abandoned to neutral descriptions by political scientists, Winfield reclaims political relevance for normative theory.
The publisher’s description of the book then ends with this salutary expectation:
The Just State will be of key interest to law students, politicians, and citizens at large who wrestle with what a just constitution should mandate, how positive laws should be legislated and enforced, what content they should have, and how their constitutionality should be determined.
It is instructive to notice that the use made of my work by Professor Winfield is often more wide-ranging (that is, more philosophical, less technical) than would be expected from the typical constitutional law scholar or in texts prepared primarily for legal audiences. Thus, at page 153, note 27, we are reminded of the standards and ultimate good by which constitutional amendments, as well as the Constitution itself, are guided. That is, something higher than the Constitution is recognized as essential to a proper grasp of constitutional documents. I have said more about this, in effect, in a Letter to the Editor published by the Chicago Sun-Times on September 25, 2005:
A serious flaw has developed during the past half century in the process for nominating United States Supreme Court Justices. This is the current tendency of Presidents to look for nominees primarily to persons already serving as federal judges.
At the highest level of jurisprudential reasoning, however, the “constitutional” and the “political” can and should be hard to distinguish.
The United States Supreme Court, for this and other reasons, is always in need of justices who have had considerable political experience before they are nominated. Useful guidance (as well as salutary cautions) can be provided here by the careers of John Marshall, James Wilson, Joseph Story, Salmon P. Chase, Roger B. Taney, William Howard Taft, Charles A. Hughes, Hugo L. Black, and Earl Warren.
Related to this general understanding of things is the recognition of the need to determine who is truly free. (See page 69, note 13.) Here, too, standards are looked to beyond the Constitution—and beyond the reach of the terms employed therein.
Again and again, Professor Winfield recognizes what can properly be said about the ultimate superiority of the legislature among the branches of government established by the Constitution. (See page 287, note 42, page 288, note 49, page 290, note 70, page 292, note 79, page 295, note 116, page 297, note 136, page 329, note 1, page 330, note 7, page 331, note 14, page 362, notes 15, page 387, note 8.) Along with this is an awareness of how legislatures are constituted and also of how they work. There is an awareness as well of the risks that plebiscitary democracy poses not only to a proper legislative supremacy but also to an enduring constitutionalism. (See page 281, note 3.)
Critical for an understanding of the American constitutional system is the guidance provided by the standard taken for granted in the Republican Form of Government guarantee in Article IV of the Constitution. There may be seen in Professor Winfield’s book a recognition of this as fundamental. But this, too, is seen as ultimately subordinated to those enduring standards and principles in the light of which constitutions are framed, adopted, implemented, amended, and superseded. (See, for example, page 388, note 21.)
These and like matters are illuminated by the passages in my books, and of course by many other materials, drawn on by Professor Winfield. Underlying any serious inquiry into such matters are the principles that we, in our varying ways, seek to clarify and to be guided by. Certainly, the generous use made by others of one’s work can help one to see what one has said—as well as what one has not said that perhaps needed to be said.
The School of Law
Loyola University of Chicago
October 3, 2005
Richard Dien Winfield, The Just State (2005)
Index to George Anastaplo Items in the Winfield Book
69n13, 122n20, 151n13, 153n27, 281n3, 287n42, 255n49, 290n70, 292n1, 330n7, 330-31n12, 331n14, 331n16, 332n25, 362n15, 387n8, 387-88n15, 388n21
Anastaplo Materials Referred to in the Index
P. 69 Introduction
N. 13. It needs to be emphasized that the recognition in question is always mutual. If recognized freedom is regarded instead as coming only from the sayings and doings of others, then a distinction can be drawn between recognized and actual freedom. In that case, as George Anastaplo points out, not everyone who is recognized to be free is actually free. For example, ex-slaves may be emancipated in the eyes of others, but they may need considerable purgation of previous dependent behavior and training in the independent exercise of rights before they can actively participate in the practices of freedom and become actually self-determining. See Anastaplo, The Amendments to the Constitution: A Commentary (Baltimore: Johns Hopkins University Press, 1995), p. 149.
P. 122 The Preconditions of Political Freedom
N. 20. Thus it is not surprising that, as George Anastaplo observes, the United States Constitution takes for granted the common law. See Anastaplo, The Constitution of 1787: A Commentary (Baltimore: Johns Hopkins University Press, 1989), p. 4.
P. 151 The Basic Features of Political Self-Determination
N. 13. George Anastaplo suggests that resident aliens should be entitled to vote in local elections insofar as these elections are concerned with such civil affairs as property ownership and public schools, in which national loyalty need not arise. See Anastaplo, The Amendments to the Constitution: A Commentary (Baltimore: Johns Hopkins University Press, 1995), p. 222. Yet, if resident aliens have no real opportunity to exercise self-government in their land of origin, are there any legitimate grounds for depriving them of full citizenship in the one nation in which practical participation is possible?
P. 153 The Basic Features of Political Self-Determination
N. 27. As Anastaplo observes, the amendability of a constitution suggests that there are separate enduring standards by which it, as well as positive laws, should be judged. See Anastaplo, The Constitution of 1787: A Commentary (Baltimore: Johns Hopkins University Press, 1989), pp. 188, 189, 228. Of course, the possibility of such standards, which ultimately comprise the principles of self-determination, equally indicates that any amendments should likewise be subject to judgment and that not every constitutional statute should be subject to repeal.
P. 281 The Legislative Branch Self-Government
N. 3. Moreover, as George Anastaplo observes, increased reliance on referenda initiatives tends in the direction of a plebiscitary democracy where the power of the executive gets enhanced over and against the legislature. See Anastaplo, The Amendments to the Constitution: A Commentary (Baltimore: Johns Hopkins University Press, 1995), pp. 226-27.
P. 287 The Legislative Branch of Self Government
N. 42. Selection by lottery would, as Anastaplo puts it, undermine the belief that the citizenry are in fact governing themselves. See Anastaplo, The Constitution of 1787, p. 94.
P. 288 The Legislative Branch of Self-Government
N. 49. Moreover, as Anastaplo argues, compulsory voting hardly encourages voters to become properly informed about the electoral issues and vote with thoughtfulness. See Anastaplo, The Amendments to the Constitution, p. 226.
P. 290 The Legislative Branch of Self-Government
N. 70. As Anastaplo points out, legislative term limits subvery the institutional memory of Congress, permanently excluding our more experienced elders, something no other major enterprise or government elsewhere would think of doing. See Anastaplo, The Amendments to the Constitution, pp. 209-10.
P. 292 The Legislative Branch of Self-Government
N. 79. As Anastaplo points out, the bare majority of total seats in a legislative chamber ordinarily qualifies as a minimum quorum, since that number can prevail even if all legislators are in attendance. See Anastaplo The Constitution of 1787, p. 28.
P. 295 The Legislative Branch of Self-Government
N. 116. Anastaplo properly indicts both interest-driven state referenda and “supermajority” rules (including filibusters) in legislative bodies as measures that undermine the deliberations of citizenry’s elected representatives. See Anastaplo, The Amendments to the Constitution, p. 194.
P. 297 The Legislative Branch of Self-Government
N. 136. Anastaplo maintains that the differentiation of House and Senate has produced two chambers sufficiently different in composition and experience to make it more likely that legislative proposals will receive thorough consideration (see Anastaplo, The Constitution of 1787, p. 195). If the difference rests on longer term length and statewide election for senators, the alleged likelihood is all too indeterminate.
P. 329 The Authorizing Branch of Self-Government
N. 1. United States history strongly testifies to the fallibility of the authorizing power. As the Dred Scott and early New Deal cases remind us, George Anastaplo observes, whenever Congress and the Supreme Court have differed on great matters of constitutional interpretation, Congress has been correct. See Anastaplo, The Constitution of 1787: A Commentary (Baltimore: Johns Hopkins University Press, 1989), p. 142.
P. 330 The Authorizing Branch of Self-Government
N. 7. As Anastaplo points out, the moment judicial review is used for constitutional certification, the thorny question arises as to whether striking down a law is retroactive to when the law was enacted. See Anastaplo, The Constitution of 1787, p. 48. Right would seem to require retroactive application, but the practicalities of retroactive enforcement become progressively more challenging with the passage of time.
Pp. 330-331 The Authorizing Branch of Self-Government
N. 12. These extreme situations underpin Anastaplo’s claim that adherence to the constitution depends upon much more than judicial or any other official supervision. See Anastaplo, The Amendments to the Constitution: A Commentary (Baltimore: Johns Hopkins University Press, 1995), p. 90.
P. 331 The Authorizing Branch of Self-Government
N. 14. Indeed, as David P. Currie points out, Article 5 of the United States Constitution, which outlines the right to amend the constitution, can be looked at as the prime remedy for judicial usurpation. See Currie, The Constitution of the United States: A Primer for the People (Chicago: University of Chicago Press, 1988), p. 24. Or, as Anastaplo suggests, final judicial review can foster the view that the constitution is whatever the Supreme Court says it is. See Anastaplo, The Constitution of 1781, p. 145.
P. 331 The Authorizing Branch of Self-Government
N. 16. As Anastaplo points out, congressional regulation of United States federal courts is offset by lifetime tenure and the provision that compensation may be increased but not diminished while in office. See Anastaplo The Amendments to the Constitution, p. 125.
P. 332 The Authorizing Branch of Self-Government
N. 25. Although the United States Constitution does not require any special qualifications for appointment as Supreme Court justice, it does, as Anastaplo notes, backhandedly emphasize concern for their competency by allowing that judges, unlike presidents and members of Congress, need not be citizens. See Anastaplo, The Amendments to the Constitution, p. 90.
P. 362 The Executive Branch of Self-Government
N. 15. Even though the United States president has partial authorizing powers and operates as a chief legislator when Congress is controlled by the same party, presidential power tends, as George Anastaplo observes, to be overestimated. Without Congressional support and judicial authorization, the president can do little. Even as commander in chief, the president’s hands are tied if Congress does not finance a sufficient military force. And whereas Congress can override a presidential veto, the president cannot override the Senate’s refusal to approve treaties or executive appointments. See Anastaplo, The Constitution of 1787: A Commentary (Baltimore: Johns Hopkins University Press, 1989), pp. 110, 112, 122.
P. 387 Federalism and Political Freedom
N. 8. Bicameralism is also superfluous when a federal union exclusively privileges states’ rights at the expense of popular representation. This alternate superfluity is exemplified by the Articles of Confederation, which mandated a single-chamber legislature for its loose confederation of states, before being supplanted by the bicameralism of the United States Constitution. See George Anastaplo, The Amendments of the Constitution: A Commentary (Baltimore: Johns Hopkins University Press, 1995), p. 7.
Pp. 379-380 Federalism and Political Freedom
Provincial representatives may simply follow their own drummer or act on the basis of party loyalties, already transcending provincial boundaries through national party participation in local and federal elections. Of course, within provincial government itself, the very same problems of constitutionality play themselves out, calling for the same division of powers at the regional level, with the caveat that provincial government always remains subject to the national constitution and its federal guardian. If, on the other hand, following John C. Calhoun’s states’ rights interpretation, federalism were reduced to a confederation whose member states each remain empowered to judge infractions by the federal government, the body politic would be hostage to permanent minority rule, undermining any self-government by individuals in their capacity as citizens of a common state.15 Consequently, federalism is hardly needed to uphold the constitutional division of powers.
Pp. 387-388 Federalism and Political Freedom
N. 15. Anastaplo makes this point. See Anastaplo, The Constitution of 1787: A Commentary (Baltimore: Johns Hopkins University Press, 1989), p. 230
P. 388 Federalism and Political Freedom
N. 21. Section 4, Art. 4 of the United States Constitution thus seeks to “guarantee to every state in this Union a republican form of government.” As Anastaplo points out, this mandate reflects how the republican character of the federal government is duly understood to depend upon the form of government in “every State in this Union.” See Anastaplo, The Constitution of 1787, p. 168.