On Seeing the Constitution Plain

George Anastaplo

Ah, did you once see Shelley plain,
And did he stop and speak to you,
And did you speak to him again?
How strange it seems and new!
–Robert Browning, Memorabilia

Prologue

We have, on this September 12th, begun the thirteenth year since the spectacular assaults on recognized landmarks in New York City and Washington, D.C. with the use of hijacked airliners on September 11, 2001. My own first public response to that event was here at this law school on September 12, 2001. This was the beginning of my running commentary on these matters that has totalled several hundred pages in American law journals (with Ramsey Clark, a law school classmate of mine, agreeing to provide a Foreword if this decade-long commentary should ever be collected in one place).

My September 12, 2001 remarks were entitled, “A Second Pearl Harbor? Let’s Be Serious.” I argued, on that occasion, as I have done many times since then, that a Sense of Proportion should restrain and otherwise guide our responses to the dreadful September Eleventh assaults. But, of course, a proper restraint has not always been evident in our responses either abroad (in, say, Afghanistan, Iraq, and Guantanamo) or at home (with our Homeland Security measures).

That is, the September Eleventh assaults should have been treated as serious crimes, not as acts of war. The restraint called for was evident, I hope, in the three short letters with suggestions sent by me to the Federal Bureau of Investigation (on September 12, September 13, and September 17. 2001). The properly therapeutic culmination of this kind of response would have seen Osama bin Laden, the alleged leader of the September Eleventh assaults, brought alive to the United States for a trial that could have reinforced the salutary Nuremberg Trial of 1945-­1946.

I.

A properly-disciplined response to the September Eleventh crimes would have testified to an informed respect for our political principles, thereby providing other troubled peoples much-needed instruction. But the erosion of our constitutional sensibilities is evident in what is, and is not, routinely taught in the constitutional law courses in this Country, where considerable (usually virtually exclusive) emphasis is placed on what the United States Supreme Court is moved to say about these matters. Unfortunately, however, the Justices themselves (who were, after all, misled [decades earlier] by their constitutional law teachers) do not really know what they are talking about when they venture to interpret the Constitution and our almost-millennium-old constitutional heritage (as may be seen, for example, in their casual abandonment in 1938 of centuries of judicial duties with respect to the Common Law in the Anglo-American tradition).

Indicative of a lack of a solid grounding in such matters among our most influential citizens is what is surprisingly evident in remarks made by our President a fortnight ago. My September 3, 2013 Letter to Editors (entitled, “On Mr. Obama’s Constitutionalism”) recalls what he had said:

Barack Obama, upon announcing his plan to consult Congress about an armed intervention by this Country in Syria, observed that he is “mindful that [he is] the President of the world’s oldest constitutional democracy.” This use by him of “the world’s oldest” is rather curious and perhaps instructive.

Do we not see here a conventional academician at work, something I am aware of in what follows in my September 3rd letter?

That is, I suggest in this letter how the conventionally learned among us talk about such matters these days:

He, as a former constitutional law professor, exhibits in such language the tendency, both of all too many of our legal scholars and of most of our judiciary, to ignore the authoritative guidance still provided us by an even older “constitutional democracy,” the British system upon which the republican Framers of the Constitution of 1787 very much depended.

I then venture, in an effort to recognize solid grounding for our system, to use recent British experience:

That was, and continues to be, a political system in which the ultimate supremacy of Parliament is always taken for granted, something that David Cameron was dramatically reminded of recently when the House of Commons vetoed an armed intervention by Britain in Syria. Such legislative supremacy obviously governs the judiciary as well as the executive in the British system, which it was originally intended to do as well in the United States, something that it is still prudent to insist upon in this Country.

My invocation of prudence here suggests that the history available in Britain with respect to these matters (a salutary history which may be in some respect mythic) continues to be relevant to our proper efforts both to understand and to “work” our constitutional system.

II.

We can see, in Springfield, Illinois today, what may be regarded as a minor-league version of what is said and done in Washington, D.C. these days. Consider, for example, my Letter to Editors (published in the Chicago Tribune on August 20, 2013) about how still another political Executive conducts himself:

I have no informed position on the current pension crisis and related matters in this State (except perhaps to suspect that an increase in our income tax rates is probably prudent). But I do believe there is something highly improper in the current effort by the Governor to coerce State legislators with respect to such matters by denying them their monthly salary payments. Citizens who do not believe that any legislators should be bullied this way may want to consider how they may immediately help financially those Members they happen to know personally.

I have been told that this letter has been well received among the leaders of the Illinois General Assembly (who especially liked the title given to it by the Tribune, “Governor’s bullying.”

I have also been told that some Members of the State Legislature have been seriously inconvenienced by this evidently unprecedented denial of their monthly pay. That money is depended on to pay mortgage charges and to provide for children in school. And, of course, many of these legislators are still expected (pay or no pay) to provide the everyday services that their constituents have properly come to rely upon.

Both the Governor and the legislative leaders (if not also the public at large), I further suspect, would prefer not to face up to the substantial increase in the State income tax rates that may be needed at this time. However that may be, the Governor’s bullying is “highly improper.” Such a tactic (abusing thereby his line-item veto power) might once have even been considered an impeachable offense, something far more serious (at least in principle) than the conduct that led to the impeachment and removal from office of our last Governor.

III.

Then there is to be noticed here the recent review, in a respectable journal (The Review of Politics), by an established political scientist (James H. Read), of my Reflections on Slavery and the Constitution. That 2012 book on slavery had received an enthusiastic recommendation from the Choice reviewer, a review so encouraging that I reprinted it in my subsequent Reflections volume (which has just been published with the title, Reflections on Religion, the Divine, and the Constitution). And Professor Read does here and there in his review, commend my Reflections on Slavery and the Constitution.

But as he prepares to draw to the end of his review (while he and I are still “ahead”) he registers serious reservations about what I have and have not done:

Anastaplo’s treatment of the scholarship on slavery and the Federal Convention is the same as his treatment of the scholarship on the other topics examined in the book: he disregards all of it, old or new. Significant bodies of literature exist, for example, on Jefferson’s racial views, slavery in the American Revolution and the early republic, the economics of slavery, the Abolitionist movement, the Dred Scott case, and of course Lincoln. On all these points Anastaplo’s narrative would be enriched if he engaged with at least some of the scholarship, but he does not. He draws instead almost entirely from original documents, a handful of general reference works, and his own understanding. There is something oddly inspiring about his willingness to defy the rules about how scholarly books are written. But at the same time his unwillingness to engage other scholars in conversation comes at a cost.

These are reservations that do seem to reflect the “methods” and “values” of respectable scholars today. Particularly intriguing for me is the recognition, “[Anastaplo] draws… almost entirely from original documents, a handful of general reference works, and his own understanding.”

It is odd, at least for me, to hear someone complain about an author’s reliance upon “original documents,” etc. I do try (so far) to do this throughout my projected ten-volume Reflections of “constitutional sonnets.” Besides, I have done my share of books with considerable reliance on recognized authorities, so much so that there are in my first book (published in 1971) almost 400 pages of notes (in small type) accompanying almost 300 pages of text (in regular type), while in the essays for my currently-developing Reflections series there are no notes at all.

Epilogue

It can be added, recalling what I have already said on this occasion, that I am more and more dubious about what is being said about the Constitution and related matters by the generally acknowledged authorities of our day. Skepticism is called for even when exalted language is used, such as Mr. Obama’s reference to the “world’s oldest constitutional democracy.” Indeed, I was startled, two nights ago, when the President (in his Speech to the Nation about his current Syrian crisis) used exactly the same language (about “the world’s oldest constitutional democracy”) that he had used earlier.

Of course, my relevant Letter to Editors had not yet been published (except on the anastaplo.wordpress site). But that is not the point here for it is highly unlikely that my letter would have been called to his attention even if it had been already published in a newspaper. What is startling here is the recognition that there does not seem to be anyone close to the President who could point out to him here (and on other occasions as well) the serious problems with his “history” and vocabulary.

Thus, there does not seem to be available, among the counselors to this President (or, indeed, to any recent President?), anyone who has a reliable “feel” for the fundamental traditions of this Country. What we have seen insisted on, instead, is a tendency to be moved by rhetorical exercises that can leave one wondering about our leaders’ sensitivity to constitutional principles. In such circumstances, a solid Sense of Proportion is likely to be disregarded, especially wherever Executive Power has come to be regarded as somehow sovereign, if not even as divinely inspired.

____________________
These remarks, of September 12, 2013, were prepared for a Faculty Forum at the Loyola University of Chicago School of Law. My September 12, 2001 remarks and my three letters of September 2001 to the Federal Bureau of Investigation (referred to in the Prologue to these remarks) have been posted on anastaplo.wordpress.com.

The reader can get some notion of what a proper commentary by me on Professor James H. Read’s review of my Reflections on Slavery and the Constitution might look like by consulting George Anastaplo, “Notes toward an ‘Apologia pro vita sua,'” Interpretation: A Journal of Political Philosophy (May 8 September 1982), vol.10, nos. 2 & 3, posted here.

The development of a proper critique of the Reed review of Reflections on  Slavery and the Constitution (the fourth of a projected ten-volume Reflections series) could well begin with an explanation of something in my text that Professor Read seems puzzled by, a reference to my Illinois bar admission controversy (1950-1961). That reference (in my book’s Preface) obviously serves to recall the thoughtful generosity of Richard M. Weaver, the North Carolina patriot to whose memory this Reflections  volume is dedicated. Professor Read’s reference to two Holocaust survivors reflects his failure to notice that the two Holocaust Conversations drawn on by me (among the appendices to this Reflections volume) were with only one such survivor, a distinguished mathematician, conversations that were part of a dozen such encounters in 2000 (with two-thirds of them already published). Even more critical, it can seem, was Professor Read’s failure to gauge properly the considerable use made by me of various slavery-related provisions in the United States Constitution of 1787, provisions which implicitly revealed how questionable chattel slavery in the Western Hemisphere always was (something reflected in Lord Mansfield’s assessment of it as “odious”).

It can be wondered, of course, whether experienced book review editors should take into account what they may happen to know about the capacity of any author reviewed in their pages, thereby obliging them to question those assessments by reviewers that may seem rather dubious on their surface.

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