by George Anastaplo. Lexington: The University Press of Kentucky, 2006. 288pp. Cloth. $65.00. ISBN: 9780813123967. Paper. $24.95. ISBN: 9780813191560.
Reviewed by Philip A. Dynia, Department of Political Science, Loyola University New Orleans. Email: dynia [at] loyno.edu.
George Anastaplo, Professor of law at Loyola Chicago School of Law and lecturer in liberal arts at the University of Chicago, may well be the Energizer Bunny of American constitutional scholars. His academic career began in 1964, and by the 1990s his scholarly output was sufficiently prodigious and noteworthy to be celebrated in a two-volume festschrift (Murley, Stoner and Braithwaite 1992) and a collection of essays (building upon an APSA panel – sponsored by the Claremont Institute – devoted to Anastaplo’s contributions) in the 1997 volume of POLITICAL SCIENCE REVIEWER. Many would have taken these honors as occasions to retire, or at least slow down, but that has not been the case with Anastaplo. In the past decade, he has produced, in addition to the volume under review, six other books, a seventh (REFLECTIONS ON FREEDOM OF SPEECH AND THE FIRST AMENDMENT) forthcoming this year, several other volumes in preparation, and nearly a dozen articles to add to scores of previous ones.
Certain themes inevitably recur, and that is true with respect to the work being reviewed here. Anastaplo has always sought to bring the insights of classical and political philosophy to his writings on the American Constitution. As he puts it in REFLECTIONS: “Critical . . . [is] the relation between the old (if not even the ancient) and the good. There is something to be said for the proposition that that which is long-established, at least among a civilized people, has likely been ‘certified’ by nature as somehow good. It is this expectation that makes precedents attractive” (p.122).
Two figures are crucial to understanding Anastaplo’s work: Leo Strauss, who taught Anastaplo political philosophy at the University of Chicago, and William W. Crosskey, another of Anastaplo’s Chicago teachers, who introduced him to constitutional law.
The close and careful reading of classical texts that informed the work of Strauss is consistently used by Anastaplo to read the Constitution. In the present volume,
Anastaplo describes this endeavor as drawing on “the literary, philosophical and theological materials that can illuminate how we should think about self-government and the common good” (p.x).
Anastaplo shares with Crosskey the belief that the Constitution is internally consistent, a work of extraordinarily fine legal craftsmanship (chiefly attributable to Gouverneur Morris and James Wilson). According to Crosskey (and Anastaplo as well), the Framers created a national government of plenary powers and intended the Congress to be [*287] supreme, with the executive and judiciary playing subordinate roles.
Perhaps Anastaplo’s approach is best understood by consulting two of his earlier works (Anastaplo, 1989 and 1985) that take the form of commentaries on the original constitution and subsequent amendments. In the present volume, Anastaplo quotes approvingly a reviewer who described these commentaries as “the first time anyone has tried to read the Constitution like a book” (p.x).
In REFLECTIONS, Anastaplo is more concerned than in many earlier works with case law and the way the Supreme Court has understood (or in several important instances misunderstood, Anastaplo would argue) the Constitution. Anastaplo offers the reader “two dozen sets of constitutional sonnets” (p.x) about these cases (more on their “sonnetness” below). Anastaplo eschews any attempt to provide exhaustive or extensive accounts, but rather selectively reflects upon aspects of these cases and the relevant constitutional provisions not generally noticed by jurists and scholars.
As Anastaplo himself concedes, most of his topics here are quite familiar to experienced students of constitutional law and track fairly closely the syllabus of a typical constituonal law course. Anastaplo does urge students to read the cases in their entirety rather than to rely on the edited versions found in casebooks (although it seems to this reviewer that most of the language he scrutinizes is highly likely to be found in most leading casebooks).
Two cases to which Anastaplo returns several times are SWIFT v. TYSON (1842) and ERIE RAILROAD CO. v. TOMPKINS (1938). Together, he tells his readers, they demonstrate different approaches to a most fundamental question: what is the nature of law. Anastaplo prefaces his discussion with Thomas Aquinas’s definition of law: “an ordinance of reason, for the common good, promulgated by those who have the care of the community.” Modern legal positivism, Antastaplo notes, stresses only the element of promulgation—law is the directive of those who have authority. Anastaplo, true to the natural law/natural right tradition he reveres, praises Justice Joseph Story’s opinion in SWIFT while denouncing ERIE as a “jurisprudential development [furthering] the nihilistic tendencies of a hedonistic modernity” (p.xiii). Anastaplo presents, needless to say, quite a different perspective from that which simply describes the earlier case as endorsing the notion that federal judges discover federal common law principles as opposed to the later case’s leaving federal understandings of common law to the insights of state judges.
There are a few other areas in which Anastaplo’s approach differs from standard constitutional law course fare. He has far more to say about the pervasive effect of the slavery issue on the development of constitutional law, including a genuinely masterful discussion of the relationship between slavery and understandings of the commerce power in the first half of the nineteenth century. [*288]
A chapter on the constitution of the Confederate States of America is also quite insightful. By noting what the Confederate Framers did or did not retain from the 1787 Constitution that was their model and starting point, he is able to illuminate some essential elements of the original Framers’ philosophy, as well as pointing to mechanisms that later generations found problematic. Thus, while the Confederate constitution is much more direct than the 1787 Constitution in its protections of slavery, it also contains some innovations that today are regarded by many as commendable: limiting the President to a single six-year term, provision for a line-item veto, participation by Cabinet members in legislative debates on the floors of the two houses of Congress, and a clear statement of presidential power to dismiss nonjudicial appointees.
One extremely salutary aspect of REFLECTIONS, particularly in light of developments in American politics since 2000, is Anastaplo’s persistent mistrust of the modern presidency and the corresponding weakening (or if you will abject surrender) of congressional authority. The present reviewer recalls his early years of graduate study. Lyndon Johnson’s Great Society was sailing through Congress, the “deadlock of democracy” seemed to be broken, and people like Willmoore Kendall (another influence on Anastaplo and a thinker much-admired by some of my own professors and mentors) seemed quaint and slightly out of touch in their insistence on the importance of congressional prerogatives. And then along came a little glitch—Vietnam. Currently, that glitch, a little bigger, is Iraq (by way of Iran-Contra)—arguably, the inevitable product of a century of war and national emergencies that saw the aggrandizement of executive authority and the corresponding dwindling of congressional authority and oversight. Anastaplo’s argument that such an arrangement was not desired by the Framers, and that it must be corrected, seems more vital than ever. To his credit, Anastaplo made these same arguments even when presidents were thought to be doing good things.
Thus, while there is much familiar ground in REFLECTIONS, the reader should recall, as Anastaplo himself once suggested, that after two hundred years too much originality in such matters would be suspect. Anastaplo summons us to return to fundamental principles, and he does so with considerable command of our history, traditions, and the scholarly literature.
Certainly, there are things about which one might quibble. There are no footnotes in this volume. Much of what he says is indeed common knowledge (at least among scholars). At times, though, one would appreciate a source, as in the following: “Chance was critical as well in the timing of the Civil War: Union forces would have been markedly inadequate a generation earlier, and Southern forces would have been markedly inadequate a generation later” (p.7). There are some idiosyncracies that seem inexplicable: why is “opinion” (as in “the opinion of the Court” or “dissenting opinion”) consistently capitalized? (Indeed, why is “Dissenting” capitalized?) Same for [*289] “country” (as in “the Civil War in this Country was devastating”).
Most puzzling, though, is the reason for each chapter to consist of nine sections (headed by a Roman numeral) and each section to contain exactly three paragraphs. Is this the “sonnet” form to which Anastaplo refers in the Introduction? The prose does not seem to reflect the traditional abba abba form of a poetic sonnet. While certainly a display of concise, ordered, indeed virtuosic organizational and writing skills, it leaves this reviewer at least wondering if there lurks beneath the form some underlying mystery or truth known only to Straussian initiates, to whose ranks this reviewer does not belong.
But, at the end of the day, Anastaplo’s REFLECTIONS is an interesting, thoughtful, provocative look at American constitutional law and some of its most famous (and infamous) cases, as well as many of the fundamental legal and philosophical origins of American constitutionalism and constitution. I would certainly offer it as a supplementary reading to my undergraduates. In fact, I suspect I will require it.
Anastaplo, George. 1989. THE CONSTITUTION OF 1787: A COMMENTARY. Baltimore: The Johns Hopkins University Press.
Anastaplo, George. 1995. THE AMENDMENTS TO THE CONSTITUTION: A COMMENTARY. Baltimore: The Johns Hopkins University Press.
Murley, John A., Stoner, Robert L., and Braithwaite, William T. (eds.) 1992. LAW AND PHILOSOPHY: THE PRACTICE OF THEORY. Athens: Ohio University Press.
ERIE RAILROAD CO. v. TOMPKINS , 304 U.S. 64 (1938).
SWIFT v. TYSON , 41 U.S. 1 (1842).
© Copyright 2007 by the author, Philip A. Dynia.