Explication De Constitution

Thomas Engeman

George Anastaplo: The Constitution of 1787: A Commentary (Baltimore: The Johns Hopkins University Press, 1989. Pp. i-xx, 340. $10.95.)

This is a unique and intelligent work of Constitutional interpretation. George Anastaplo, a professor of law at Loyola University and lecturer in the liberal arts at the University of Chicago, has written a work of deep learning and, arguably, of deep error. However, one cannot read the Commentary without learning a great deal about the political thought and jurisprudence of the Founders.

The Constitution of 1787 has seventeen chapters, expanded from the original fifteen public lectures delivered at the Rochester Institute of Technology in the academic year 1985-1986. Essentially this is a direct commentary on the text of the Constitution. All but four of the chapters are concerned with an analysis of the Preamble though Article VII. An indication of the focus of Anastaplo’s interpretation can be observed in the different weight assigned to the four chapters devoted to Article I, in comparison to the four chapters devoted to Articles II and III combined. This leaves one chapter each for the preamble and the last four articles (IV-VII).

Framing and completing the Commentary are four background chapters: Chapter 1, “The Constitutions of the Americans”; Chapter 7, “Anglo-American Constitutionalism”; Chapter 12, “The State Constitutions in 1787”; and Chapter 17, “The Americans of the Constitution.” Finally, there is an extended “Appendix and Sources” of 68 pages. Here 13 key documents are assembled, including the usual Founding documents, plus vital, but often ignored, texts: “Resolutions of the Federal Convention Providing for the Transmittal of the Proposed Constitution to the Confederation Congress (1787),” “Congressional Resolution Transmitting the Proposed Constitution to the States (1787),” and the “Congressional Act for Putting the Constitution into Operation (1788).” Also included here are the “Proposed Amendments to the Constitution Not Ratified by the States (1789-1978).”

What shines through Anastaplo’s interpretation are the remarkable powers of the American people for self-government. This theme may be best seen in the fourth of Anastaplo’s seven epigraphs: “The Constitution of the United States…is internally consistent in a remarkable degree, an extraordinarily fine example of eighteenth-century legal craftsmanship. …So, if the Constitution were allowed to operate as the instrument was drawn, the American people could, through Congress, deal with any subject they wished, on a simple, straightforward, nationwide basis, and all other subjects, they could, in general, leave to the states to handle as the states might desire” (William Winslow Crosskey) (p. ix).

To elaborate this thesis, the Commentary analyzes the “dozen or so constitutions” of the American people. English constitutionalism, especially the “public common law,” was, according to Anastaplo, “repeatedly drawn upon by the British Colonies in North American and thereafter by the American States in the way they organized themselves in deliberative bodies (that is, in conventions and legislatures), as well as in the way they selected the members of various assemblies of government. This law of public bodies is evident also in the way the Federal Convention of 1787, and thereafter the State Ratification Conventions, assembled and conducted themselves” (p. 4). This is probably the most intelligent paean to the capacity of the American people for self-government that can be found.

Anastaplo analyzes the constitutional limitations on executive power, especially the provisions sharing foreign policy powers with Congress. It is within this context that his overall argument, that Congress has sufficient powers to be the dominant body in a strong national government, is most controversial. Anastaplo points to the excesses of executive power in recent administrations, especially Iran-Contra (pp. 32-33, 312n.; 41, 317-19n,; 85). (It should be added that Anastaplo argues that the Supreme Court has also acquired excessive power through its capitalization of judicial review). Although Anastaplo concedes that Congress may overstep its power in foreign affairs, he does not believe that such a point has been reached in such measures as the War Powers Resolutions.

Anastaplo denies that the strong, independent executive of the Federalist is a necessity. “Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number” (Federalist, No. 70). It perhaps goes without saying that Anastaplo’s reading of the Constitution is openly critical of the Federalist (pp. 225-26, 315n.; 71, 322n.; 106). This depreciation of the executive is the most problematic part of Anastaplo’s Commentary.

However, the virtues of Anastaplo’s analysis are great. His Commentary does more than remind the reader of the democratic basis of the regime. It clearly focuses his attention on the extraordinary rationality of the electorate and of the American political process, as a whole. The Framers’ political culture can be trivialized, as Forrest McDonald has done in his E Pluribus Unum (1965). And their constitutional compromises, especially on federalism and slavery, are not above reproach. Anastaplo, however, strips away the frequently simple-minded criticisms of most intellectual analyses of American institutional history (on both the left and the right). He reveals the remarkable tradition of Anglo-American law and democratic organization animating the Framer’s constitutionalism. No one, in recent years, has captured this natural American populism, and the Framer’s fine legal craftsmanship, as well.

[This book review was published in The Review of Politics, vol. 51, no. 4 (Autumn, 1989), pp. 612-13. The reviewer was, at that time, Professor of Political Science, Loyola University of Chicago.]


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