FOREWORD TO THE 2005 RE-ISSUE OF GEORGE ANASTAPLO, THE CONSTITUTIONALIST: NOTES ON THE FIRST AMENDMENT

FOREWORD TO THE 2005 RE-ISSUE OF GEORGE ANASTAPLO, THE CONSTITUTIONALIST: NOTES ON THE FIRST AMENDMENT (Southern Methodist University Press, 1971; Lexington Books, 2005)

Laurence Berns

I.

            This fascinating eight-hundred-and-forty-page book is really three books, and more.1

First is the text, a detailed legal, historical and, above all, dialectical analysis of the First Amendment with special attention to the reasoning of the Founding Fathers, Their reasoning is shown to be more subtle than many recent critics have been able to appreciate. George Anastaplo concludes that the prohibition on the Congress, and hence on the “General Government,” against abridging freedom of speech (political speech, not, for example, obscenity) was rightfully intended to be absolute. The privileges and immunities of legislators in their respective legislatures are by analogy extended to the people as a whole in their capacities as self-governing citizens.

But is there no remedy against the abuse of this freedom? Must not, or should not, legislatures, by rules of relevance and decorum, restrain that kind of speech which would defeat the possibility of arriving at any reasonable legislation? Anastaplo faces the problem, but in a different way from what is suggested by the last question. He invokes a kind of patriotic piety in arguing that Americans have always been at their best when extending, and at their worse when restricting, the limits of toleration for that abuse. But he argues that the States are, and should be, left free by the Constitution to restrain political speech in those rare instances calling for it. In fact, the prohibition on the Congress is likely to “lose some of its effect if directed in its fullness against the States as well.” “[P]ressure upon Congress to ‘do something’ becomes very great if trouble spots in particular States cannot be taken care of in those States.” This discussion is developed in conjunction with a general argument for the importance of the relative autonomy of State governments (“States’ Rights”) and with an analysis and critique of the Fourteenth Amendment and the “clear and present danger” test. However, in addition to the limits that may be imposed by the Fourteenth Amendment, the Congress is obliged, according to Anastaplo, to supervise and restrain the States in the exercise of their power, especially when the Republican Form of Government in a State is jeopardized. And in the most extreme emergencies, in “Cases of Rebellion or Invasion,” the President, subject to later correction by Congress or by the People, can, in effect, abridge the freedom of speech by suspending the writ of habeas corpus.

Beyond the legal analysis, the First Amendment is seen as a democratic right for protecting against, controlling, or influencing government, and as an aristocratic right which “provides protection for minority opinion, even against the popular will.” Protection of the thoughtful dissenter serves primarily to advance the interest of the community. “A people with popular government [like the Government of the United States], where there are no recognized spokesmen of merit [as there are in Great Britain], needs to rely upon an aristocratic right.”

These remarks about differences between British and American conditions take Anastaplo’s argument beyond the limits of strictly American doctrine. Lord Bryce wrote of the British policy that “though the constitution has become democratic, the habits of the nation are still aristocratic.” Although many Britons seem to doubt whether that is still true, many more seem to deplore the extent to which it is still true, I believe it is still impressively true to American eyes. At any rate, Anastaplo argues, it is precisely because it is not true, or not as true, for the United States, that freedom of speech in the United States (and its inevitable attendant abuses) has been buttressed by rigid constitutional protection against the General Government. To put it bluntly, where aristocratic habits prevail, legal and governmental control over speech is apt to be more salutary, less oppressive and less needed; where they cannot be counted on (and where there is something of a manly spirit of independence in the population), it is more prudent not to entrust the General Government with such powers.

The second “book” is the appendices, especially the appendix of close to one hundred pages drawing on the record of the author’s own remarkable bar admission case.2

II.

            The third “book” is the notes. As the author explores the question of what kind of character free institutions and self-government presuppose in a populace, the reader is led into depth after depth—that is, the reader who is able to accept the author’s invitation to explore. The range of topics dealt with penetratingly and carefully in those notes must be seen to be believed:     this part of the book is like a little university, a second University of Chicago (the author’s alma mater). Many important political events are discussed; but more important is the wealth of discriminating references, commentary and often detailed analysis of the anthropological, sociological, psychological and, above all, poetic and philosophical writings that the author has found useful:     useful for his explorations into the nature of American institutions, into the meaning of the American way of life, the nature of human beings, and the nature of nature. Serious students of American institutions, of political life, and of what transcends and is the ground of political life have here a guide to where to go as they face the dilemma posed by the realization that the good citizen and the good man are not simply identical. Students of the law will be pleasantly surprised to learn how fascinating their field of study can be.

Judging roughly from the frequency of references, Anastaplo seems to have learned most from Shakespeare, from his fellow Illinoisan Abraham Lincoln, and from Plato. This book is a major attempt to discover and to articulate the harmony, or at least the compatibility, that exists between the principles of the American polity and the principles of classical (“Greek”) philosophy?

III.

            Accounts of the life experiences of an author may sometimes help to clarify his thought. I believe this book stands on its own with no essential need for biographical detail about its author. Yet during the time that the doctoral dissertation on which this book is based was being researched, Anastaplo was carrying on a dramatic legal battle, his Bar Admission Case, where the subject matter of this book, the principles of American governance, were being worked out and discovered by him in practice. The materials on his case, found in Appendix F of this volume, do provide an “instructive” supplement to the body of the book.

During those years, while we were both studying at the University of Chicago, I had the good fortune to be in frequent contact with him. We talked about many things, including our respective studies and, of course, his case. I felt that I could write something about the case from a somewhat unique perspective. But I was troubled about what form it should take. One evening, after a pleasant dinner at the home of a highly respected and thoughtful colleague and friend [G. A.: Joseph Cropsey], my host and I enjoyed an hours-long argument about Anastaplo and his case. When I left his house, I knew I had my form:     a philosophic dialogue, of course.4 I tried, in the last two speeches of that dialogue, to characterize what Anastaplo had been thinking and how he had conducted himself. The character B is speaking:5

At the beginning of the case I think he thought he had little choice. He was too honorable and too intelligent to behave much differently. We were in the middle of the McCarthy episode, before things began to turn against McCarthy.6 The atmosphere created then made him feel obligated to act as he did. The demagogic use of political power to silence debate, especially intelligent debate, seemed to him to strike at the heart of the American scheme of government.7 If that hadn’t been the case, he might have been able to swallow the foolishness of his first examiners. They had been aroused, you know, by what was almost a word for word quotation from the Declaration of Independence. Acquiescence would have meant to him contributing knowingly to what for others was an unwitting subversion of the animating principles of constitutional government in this country. To derive personal profit from what he thought was a disservice both to his country and to his principles must have been utterly repugnant to him.

He admits he might be wrong about his high expectations for lawyers. But, if so, is that the profession to which he ought to belong? As one gets into that record, which he so largely shaped, one begins to wonder whether the real issue was his fitness to become a member of the Bar, or the Bar’s fitness to be associated with men like him. Although he has done, and continues to do his best to encourage, if not even to goad, the profession to return to what he regards as its better self, his case, especially near its end, begins to look like the story of one rather uncommon man’s search to find out where he rightly belongs.

He certainly has been able to educate himself in a way that he might never have been able to do as a practicing lawyer.

  1. It’s a funny way to get an education.

 

NOTES

  1. The 1971 edition of The Constitutionalist has been supplemented at this time by this Foreword, by George Anastaplo’s 2004 Preface, and by his 2004 Addenda.
  2. See In re George Anastaplo, 366 U.S. 82 (1961).
  3. Sections I and II of this 2004 Foreword are adapted from my review of The Constitutionalist in the Dallas Morning News, November 28, 1971, p. 6H, and in Interpretation, A Journal of Political Philosophy, vol. 10, p. 322 (1982).
  4. See Laurence Berns, “Two Old Conservatives Discuss the Anastaplo Case,” 54 Cornell Law Review 920 (1969) (reprinted in John A. Murley, Robert L. Stone, and William T. Braithwaite, eds., Law and Philosophy, The Practice of Theory: Essays in Honor of George Anastaplo [Athens, Ohio: Ohio University Press, 1992], vol. I, p. 456).
  5. The characters of the dialogue are labeled A and B. A does not stand for Anastaplo.
  6. Things began to turn against McCarthy when his carelessness led him to attack the military and clergyman in addition to his usual, more vulnerable prey: lawyers, academics, and government officials.
  7. As his old friends and his students know, Anastaplo has a remarkable capacity to deal with and to articulate all kinds of arguments in their own terms, including arguments that he disagrees with strongly. More than once, when I was inclined to make an argument that I knew would anger most auditors and that I knew he disagreed with, I could, with him, have the rare pleasure of a calm, reasonable, and extended conversation. The only possible drawback connected with this virtue was that he sometimes seemed to underestimate the difficulty that most others had in doing what was so easy for him.

 

St. John’s College

Annapolis, Maryland

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