A BOOK REVIEW BY CAROLYN AMADON

of

George Anastaplo, Reflections on Life, Death, and the Constitution (University Press of Kentucky, 2009)

            Professor George Anastaplo is a space-time philosopher. A Constitutional and Lincoln scholar, Anastaplo explores both Eastern and Western thought traditions about human life and society, as gleaned through selected pieces of literature written over the past two and a half millennia. The threads of these ideas are drawn together, helping the reader understand what may have been in the minds of the drafters of the Declaration of Independence and the U.S. Constitution, and in the minds of various U.S. Supreme Court Justices as they handed down case law that simultaneously shaped and reflected their contemporary society. A student of Socrates, Anastaplo teaches by questions and by combination of ideas.

Life, Death and the Protection of Society

            Anastaplo focuses his initial thoughts on the importance of life by looking at death—specifically how society may proscribe and, in some instances, prescribe the death of its citizens. When can a country or society claim the lives of its individual citizens, and at what point are individual citizens willing to die to secure “life, liberty and the  pursuit of happiness” possibly for themselves, but certainly for the future longevity of their country? From scenes of a Japanese hara-kiri to advance nationalist sentiment in postwar Japan, Dionysian cult killings, and the move from the Allies’ ban on civil bombings to the use of obliteration bombing to the dropping of the atomic bomb in World War II, the reader is challenged to observe the varying shifts of perception and societal norms regarding life and death as political and military needs develop and change. The physical and moral devastation of the Holocaust generates the question, “Do all somehow aim at the good (even in their own minds)?”  What can a society do when faced with palpable evil? What is the appropriate response for the individual?

Lincoln’s Gettysburg Address and Pericles’ Peloponnesian War Funeral Speech to Athenians are directly compared in what Anastaplo calls the “constitutional sonnet” structure of the book. Both are battlefield speeches spoken to survivors; both tell of the sacrifices made so their respective democracies “shall not perish from the earth.” Pitted against the instinct for individual survival are questions about the meaning of life, and the still stirring ideal of “liberty or death.”

Life, Death and the Protection of the Individual

            The reader’s attention also is focused on the tension between the exertion of individual rights protected by the Constitution and the protection and defense of the government established by the Constitution itself—for example, cases regarding conscientious objection and military conscription (U.S. v. Seeger, Welch v. U.S.; Gillette v. U.S.), and the flag-salute cases (Minersville School District v. Gobitis; West Virginia State Board of Education v. Barnette). Other questions about the lives of citizens are raised regarding capital punishment and abortion issues, including discussions about the Furman v. Georgia, Gregg v. Georgia, and McCleskey v. Kemp capital punishment cases; as well as the Griswold v. Connecticut, Roe v. Wade and Planned Parenthood v. Casey cases regarding the abortion issue.

The question of eugenics is raised with citation of the chilling 1927 Buck v. Bell U.S. Supreme Court decision regarding sterilization of the mentally ill, which is placed in a position of comparison to the Nancy Cruzan “right to die” case and the assisted suicide case, Washington v. Glucksberg. Other cases dealing with the line between individual freedom and society’s health and welfare goals are discussed, such as the 1905 Jacobson v. Massachusetts decision regarding small pox vaccinations and the more recent Gonzales v. Raich decision regarding the California law authorizing private access to marijuana for medical purposes.

The Events of 9/11 and “The Unseemly Fearfulness of our Time”

            Closing the book are Anastaplo’s thoughts on the events of 9/11 and their lingering effects on American’s daily lives. Noting that citizens are generally aware and apprehensive of threats to their own mortality, Anastaplo, a World War II veteran of Greek origin, urges a “sense of proportion” and “clear thinking.” Anastaplo counts on this good sense to permit Americans to “identify what kind of life is truly worth having and how it might best be secured.”

There are no easy answers to the questions considered by Anastaplo in this book. Rather, the reader becomes increasingly aware that the roles of the individual and of society remain intertwined, each living, each shaping the other, each preventing the other’s death. As the Constitution is often viewed as a “living” document, it is in our individual and collective interest to keep it that way.

____________________

Editorial Note

Life, Death, and the Constitution is part of Professor Anastaplo’s Reflections series, which includes Reflections on Freedom of Speech and the First Amendment. Professor Anastaplo’s personal and courageous experience with free speech issues and the Constitution can be read in In re Anastaplo (366 U.S. 82 [1961]). In Justice Hugo Black’s dissent, excerpts of which were read at his funeral, Black commended Professor Anastaplo, stating, “We must not be afraid to be free.”

 

Chicago Bar Association Record

October 2011, pages 52-53

 

[[Carolyn Amadon, a graduate of the Loyola University Chicago School of Law, is with the Chicago Law firm of Jenner & Bloch. See, for her interview of Professor Anastaplo, chicagobar.org/anastaplo (also linked on anastaplo.wordpress).]]

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