Professor Engeman’s Instructive Review

George Anastaplo

            The reservations recorded by Thomas Engeman in his generous 1989 review of The Constitution of 1787 pale upon comparison with the accompanying commendations of my book by this thoughtful student of American institutions.

            A reminder of the volatile circumstances in which the Federalist articles were issued should put us on notice about how they should be regarded and hence read. Those eighty-five articles, published in New York journals between October 1787 and April 1788, were prepared to deal with the formidable difficulties faced in getting the draft Constitution of 1787 ratified in that State. What “needed” to be said could vary markedly as volatile issues developed in public discourse in New York. Sometimes, indeed, changes in circumstances could even lead to reliance by the Federalist on arguments contradicting what had had to be maintained earlier by its authors.

            It is this, in part, which makes it difficult to regard the arguments in the Federalist articles as virtually authoritative interpretations of the Constitution of 1787, however instructive the rhetoric resorted to by the eminently talented authors of these articles may be. The primacy of the Legislature, among the three branches of the General Government, is not only evident in the 1787 text but is consistent with the constitutional system understood to have been inherited from the British. Adjustments had been made to strengthen the Legislature even further by permitting Congressional overriding of any Executive veto.

            Systematic review of the constitutionality of Acts of Congress by the National Judiciary is obviously not provided for in the Constitution, a development that would have been regarded by the Framers as an unwarranted (if not even as a dangerous) empowerment of men not readily subject to correction. The supremacy of Congress among the branches of the General Government echoes that supremacy of the People taken for granted throughout the Constitution.

            The perhaps natural inclination of any Executive toward self-aggrandizement is evident in how the Presidency has tended towards ever-greater power in this Country since the Civil War. Even so, it should be obvious that any Congress, aware of its power and its duties and determined to act sensibly, can properly discipline severely any Executive or Court that steps out of line. The Congress itself is, of course, subject to continuing discipline by the People at Large in ways that the Executive and the Courts are far less likely to be.

            The calibre of the authors of the Federalist (we again notice) is obviously such that whatever they published, however necessarily partisan it may have had to be, can be quite instructive for the student of politics in this Country. For a careful study of these remarkable articles there is available the quite useful concordance to word usage in the Federalist published (in 1988) by Professor Engeman and his colleagues.

            Also useful is the thoughtful survey provided, in the Engeman review, of the organization of The Constitution of 1787. There may even be heard here an echo of Harry V. Jaffa’s observation about this Commentary, that it was the first time that anyone had read the Constitution like a book.  The 1787 document indeed a great book which draws upon and recognizes, as properly authoritative, the well-documented constitutional heritage of the English-speaking peoples.

____________________
These remarks were prepared for Professor Anastaplo’s constitutional law seminar at the Loyola University of Chicago School of Law during the Spring 2012 semester. That seminar had been provided copies of Professor Engeman’s 1989 review of Professor Anastaplo’s The Constitution of 1787. That Engeman review has been posted here.

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