Report on a Loyola University Chicago School of Law Research Project, “The Constitution and Criminal Justice” (Summer 2013)

George Anastaplo

The only medicine for suffering, crime, and all the other woes of mankind is wisdom.
–Thomas Huxley,
Science and Education (1868)

This is the season for the Annual Convention of the American Political Science Association, which is to be held this year here In Chicago. I am reminded by this occasion of an A.P.S.A. Convention I attended in Washington. D.C. some years ago. When it was learned by a young man at the Supreme Court that I would be attending that Convention, I was invited by him to a luncheon with Fellows and Clerks at the Court who wanted to discuss with me something strange that they had heard–that I actually had my law students study the Constitution of the United States in my constitutional law courses. (I was not only provided a nice lunch but was also shown on that occasion the Justices’ Conference Room and the place where their robes were hanging which I could even stroke as we walked by them.) All this was recalled for me as well during one of my courses last Spring when one of our graduating law school students told me that it was not until he had taken my course in his last semester here that he had had to read the Constitution all the way through.

Truly to read the Constitution is to notice and then to think about various things taken for granted in that document. Among these is the understanding about crime evident in the Constitution. An inquiry into these matters is anticipated in the opening lines of my proposal, “Summer 2013 Research Project: The Constitution and Criminal Justice”:

“What is the understanding of the criminal justice system implicit in the Constitution of 1757 and thereafter in its Amendments? Undergirding such a system are opinions about human nature and about the character and purpose of political organization and social arrangements. These opinions are more elaborate than is usually recognized. Clues are provided, for dealing with such and related questions, by the terminology of these documents. Thus, there are references to high crimes and misdemeanors, to trial by jury, to fugitives from justice, etc.

An inquiry into these matters can remind us of the then-quite familiar system of law taken for granted In the Constitution, a system adjusted for the circumstances in which the Framers of 1787 found themselves. It was also obviously a system that applied, for the most part, to the Governments of the Thirteen States that made up the initial Union.

The dating of the Constitution of 1787 (in the Year … of the Independence of the United States of America the Twelfth”) recalls the Declaration of Independence. One can be reminded, by various of the grievances collected there, of the system of law and order (including an understanding about how crime is to be regarded) that was generally taken for granted. Efforts are made in the Constitution of 1787 to provide for how the new government should deal with the repeated abuses of the criminal justice system that the British Government had been charged with in the Declaration of Independence and elsewhere.

How crime and those accused of criminal activity were understood may be seen in even earlier documents, such as the English Bill of Rights of 1689. Drawn on in such statements are common notions about human nature, society and government. Those concerns are addressed further thereafter in the American Bill of Rights of 1789-1791 developed for the Constitution of 1787. How seriously crime is to be regarded is suggested by the remarkable provision in the Constitution that any official of the General Government removed from office by Congress by way of Impeachment and Trial may still be subject to criminal prosecution.

How deeply rooted the notions of 1787 were is suggested by the use long made of the Magna Carta of 1215 as a reminder of fundamental principles of Anglo-American constitutionalism. Of course, there may be mythic elements in such attributions. But it is not a myth that it could be said and somehow believed, century after century. that the Constitutional system being developed had its roots in the Thirteenth Century, if not even before. Particularly challenging are the assurances given by King John found in Chapters 39 and 40 of the 1215 draft of Magna Carta (provided her in an English translation of the Latin original made early in the Nineteenth Century):

[39] No freeman shall be seized, or imprisoned, or dispossessed, or outlawed, or exiled, or in any way destroyed; nor will we condemn him, nor will we commit him to prison, except by the legal judgment of his peers, or by the law of the land. [40] To none will we sell, to none will we deny, to none will we delay right or justice.

The system found in the 1787 Constitution was considered so fundamental (if not as so natural) that it could be retained, for the most part, in the constitution established by the slavery-oriented Secessionists in 1861.

The opening passage of Magna Carta, with the assurances given there by King John about the liberty of the Church, can remind us of systems of law and order that can be traced back, at least in part, to the Bible. (Particularly instructive here, of course, can he Thomas Aquinas’s Treatise on Law.) The Trial of Jesus has been subjected to repeated analysis with a view to assessing its significance as a criminal process. We can be reminded in, various ways, that is, of the Christian underpinnings for millennia of Western Civilization.

One consequence of my Summer 2013 inquiries into Crime and the Constitution can be said to be an essay scheduled to be published in the November 2013 issue of the American Bar Association Journal, “The Trials of Adam & Eve, of Socrates, and Especially of the Serpent” (the unedited version of which is to appear in at this site).

Other Biblical trials (criminal and otherwise) merit our attention as students of law. There is the testing of Abraham (on the occasion of the Binding of Isaac). There is also the testing of Moses and thereafter his “trial” of the multitude of idolators with their Golden Calf. What process, we can consider, had been relied on by Moses? Then, of course, there is the Trial of Jesus, something I have discussed at length in my book, On Trial: From Adam & Eve to O. J. Simpson (2004).

My Summer Research Project can be said to have been anticipated by the remarks I prepared as a “juror” for the January 2013 “trial of Socrates” conducted here in Chicago. They were entitled, “Reflections Upon Any Trial for Impiety Not Only of Socrates but Also of  Us (which can be found here on anastaplo.wordpress.com). I could draw on that occasion on the essay on Plato’s Apology of Socrates in my Human Being and Citizen volume of 1975 (which essay is also available here on anastaplo. wordpress.com).

Critical to any inquiry into Crime and the Constitution is a concern about how those with power (as well as their reckless victims) should be assessed. This is a concern drawn on in my Letter to the Editor of August 19, 2013 (“On Universal Corruption”):

We are all being corrupted by witnessing again and again, as part of worldwide audiences, massacres of hundreds at a time on Egyptian streets. Who are truly at fault in such dreadful circumstances? There are, of course, those who issue the orders to open fire on mostly unarmed civilians. Then there are those (in the police and in the military) who obey orders to destroy countrymen much like themselves. Why cannot they see what they are doing? (We can be reminded of the June 1989 Tiananman Square massacre.) Of course, there are also those, and especially any “leaders,” who provide tempting targets for systematic butchery. Should one “stand one’s ground” if it should mean that others will consider themselves “obliged” to subject one to ugly _slaughter, thereby corrupting everyone (including ever-eager spectators and would-be martyrs) in such mindless confrontations?

I am moved, upon being “sensitized” to these matters by current events, to recall a recent essay of mime about Dante’s Inferno (which should be posted on anastalplo.wordpress.com once it is properly typed). I record there my dismay upon being reminded of the horrendous punishments imposed (“forever”) upon various kinds of sinners. Particularly challenging for me has been the fact that I an now far more shocked by those punishments than I recall ever having been during several other readings of the Inferno  during the past half-century. And I was intrigued, upon encountering recently a learned Dante scholar (a worldwide authority), that he could be no more than amused by my having found vindictiveness appalling.  It was obvious that there was something that I simply did not understand.

My Summer Research efforts have already begun to be drawn on in the preparation for my Constitutional Law and Jurisprudence seminars this coning semester. They have also been drawn on in essays I have prepared for another volume in my projected ten-volume Reflections series, this one entitled Reflections on Crime, Character and the  Constitution.

Underlying all of these Inquiries can be said to be the concerns developed in an essay of mine (“Suggestions For One’s Law School Colleagues in Challenging Times: Let Us Continue to be Educators”), which has been published as a Letter to the Editor in the August 14, 2013 issue of the Chicago Daily Law Bulletin. That essay includes these opening and closing passages:

There is beginning to happen in our law school what has been happening for some time now even in the better graduate schools in this country. Scholars who earn advanced degrees-­such as J.D.s and Ph.D.s–can find themselves unable to do professionally with their degrees what had once been routinely done with such credentials. This is true for newly-minted Ph.D.s in. say, Physics or English literature. Thus, Physics doctorates may have to use their computer skills in brokerage firms. . . Critical to the best legal training in the United States, therefore, is the development in our students of an awareness both of what the most important questions are for human beings and of how one might best begin to answer such questions. Similarly, the Ph.D. in physics should be encouraged not only to think about what it means to demonstrate something but also and even more important, about what is truly most worth thinking about.

Loyola University Chicago
The School of Law
August 23, 2013

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