Vol. 5 No. 12 (December, 1995) pp. 277-280
THE AMENDMENTS TO THE CONSTITUTION: A COMMENTARY by George
Anastaplo. Baltimore, Md.: The Johns Hopkins University Press,
1995. xx, 466 pp. Cloth $48.50. Paper $16.95.
Reviewed by D. Grier Stephenson, Jr., Department of Government,
Franklin and Marshall College.
Justice Hugo Black was impatient, perhaps annoyed. "I'm not
going to write a dissent this time. I've written enough on
these." George Anastaplo is "too stubborn for his own
good. This whole thing is a little silly on his part,"
opined Black privately in December 1960. A majority of the
Brethren had voted in conference to reject Anastaplo's petition
arising from his refusal in 1950 to answer questions about his
political beliefs as a condition for admission to the Illinois
bar (Newman 1994, 504). Black's irritation was understandable: no
one thought Anastaplo was a Communist or any other kind of threat
to the Republic. Justice Harlan's majority opinion was factually
correct: Anastaplo "holds the key to admission in his own
hands" IN RE ANASTAPLO (1961, 97). Nonetheless, Black did
write a dissent, defending without qualification the petitioner's
First Amendment right to silence. "We must not afraid to be
free," he concluded IN RE ANASTAPLO (1961, 116).
His defeat in the Supreme Court -- Anastaplo personally argued
his case -- highlights a curiosity in the professional
accomplishments of one whom a former teacher described later as
an "adamantly principled philosopher and scholar,"
adding "any man who is kicked out of Russia, Greece [as had
happened to Anastaplo] and the Illinois bar can't be all
bad" (Pritchett 1972, 1476). Had the bar committee been more
tolerant, had Anastaplo been more flexible, or even had he won
his case in the U.S. Supreme Court a decade later, his career
path might have been vastly different. Without both his primary
and secondary contributions, the literature on the American
Constitution would surely be far less interesting and rich.
Expressly billed as a companion to the author's THE CONSTITUTION
OF 1787 (1989), THE AMENDMENTS TO THE CONSTITUTION, like its
sibling, is based on a series of lectures the author delivered to
a college and community audience between September 1990 and April
1991 in Hickory, North Carolina. Of the 17 chapters in THE
AMENDMENTS, four review the background and purposes of the Bill
of Rights, and nine explore the amendments themselves. Only the
First Amendment merits a chapter all its own. In addition
discrete chapters explore "Education in the New
Republic," "The Confederate Constitution of 1861,"
"The Emancipation Proclamation of 1862-1863," and
"The Constitution in the Twenty-first Century." [One
hopes that a future printing can correct a minor error in the
"Education" chapter. John Adams and Thomas Jefferson
were not the "last two surviving signers of the Declaration
of Independence" (109) when they died on July 4, 1826.
Maryland signer Charles Carroll of Carrollton lived until 1832.]
As published, the lectures seem to have been revised only
slightly from their original delivery. Even the material added on
the Twenty-seventh Amendment in Chapter 16 only restates for the
most part points made in Chapter 5 about the two proposed
amendments, preceding the one now called the First Amendment,
that were not ratified with the rest of the twelve in 1791. While
hardly conversational in tone, the books's prose is more akin to
what one writes to be spoken, not read. Moreover, like any series
of well-crafted lectures, most of Anastaplo's are replete with
references to that which has already been said as well as to that
which lies ahead. The advantage of this style is that one needs
neither to read the chapters in succession nor even to read all
of them to benefit from the volume; the disadvantage is that,
when one does either, repetition seems far more abundant than was
probably apparent to the audiences that heard them. For example,
the chapter on the First Amendment consumes twelve pages, yet
discussion of the First Amendment in whole or in part occurs on
an additional 24 pages scattered from the first to the last of
the lectures. Nonetheless, in contrast to lectures, endured by
many, that were written to be read and not heard, Anastaplo's are
more easily comprehend ocularly than are the former aurally.
Together, these lecture/chapters comprise slightly more than half
of the 454 pages in the volume prior to the index. About a third
of the remainder consists of 13 sets of documents, letters, and
other sources, ranging from Magna Carta (1215) and Thomas More's
petition to Henry VIII on parliamentary freedom of speech (1521)
to the Constitution of the Confederate States and the
Emancipation Proclamation. The balance consists of extensive
documentation in support of the 17 chapters.
To grasp both the essence and the significance of THE AMENDMENTS,
it may be helpful to make clear what the book is not. In both
content and perspective it is not at all like Irving Brant's now
venerable THE BILL OF RIGHTS (1965), which in the first half
probes the origins of constitutionally protected liberties
through a series of case studies and in the second traces the
Supreme Court's application of those liberties. Neither is
Anastaplo's book similar to John R. Vile's CONSTITUTIONAL CHANGE
IN THE UNITED STATES (1994) or A COMPANION TO THE UNITED STATES
CONSTITUTIONAL AND ITS AMENDMENTS (1993), which are case-oriented
and emphasize amendment politics and process. Nor does the volume
pretend to be a substitute for references such as Jack W.
Peltason's UNDERSTANDING THE CONSTITUTION (1994) which focuses in
compressed fashion almost entirely on the prevailing
interpretation of each provision in the Constitution. Rather,
Anastaplo's is a jurisprudentially visionary discourse on
American political thought as manifested in the 27 amendments.
Like Learned Hand's Holmes Lectures published as THE BILL OF
RIGHTS (1958), the reader learns as much (or more) about the
author's thinking as about the subject promised by the title.
THE AMENDMENTS continues the author's efforts "to redeem the
story of this Country in such a way as to contribute ... both to
the edification of this generation of my fellow citizens and to
the education of the teachers of future generations" (xvi).
That edification and education derive from a view of "the
Constitution and its amendments [that] presuppose an established
constitutional system. The amendments ratified from time to time
have either acknowledged rights already recognized or adjusted
arrangements in a way consistent with the overall system"
(229). A political system that guards basic rights and functions
smoothly needs a citizenry with "moral judgment, including
the sense of civility..." where emphasis [is] placed more
upon duties than upon rights (236-7, emphasis omitted).
Accordingly, for Anastaplo the idea of rights must be properly
understood. Herein lie several ironies.
First, the Supreme Court has done both too much and too little
with the First Amendment. Following Alexander Meiklejohn,
Anastaplo believes that political speech is what the First
Amendment, outside its religion clauses, was intended to shield.
The sin of omission stems from the Court's refusal not only to
accept his free speech claim nearly 35 years ago but ever to
acknowledge in principle absolute protection for political
speech. Practically speaking, the author would surely acknowledge
that political speech now comes very close to absolute
protection, although there is admittedly no certainty that
Anastaplo would win, were his case to come before the Court
today. BAIRD v. STATE BAR OF ARIZONA (1971) argues strongly in
his favor (as Justice Blackmun's dissent in that case
maintained), but LAW STUDENTS RESEARCH COUNCIL v. WADMOND,
decided later in the same term, suggests that not all political
queries are improper. The Court's sins of commission consist of
broadening "speech" to encompass "expression"
(such as artistic works) which, Anastaplo holds, is not essential
to "effective self-government" and "can, in some
circumstances, undermine the character and education needed for
sustained self-government" (53-4). Even were one to concede
the point that the First Amendment is so limited, one still faces
the formidable task, unaided by THE AMENDMENTS, of separating
political from non-political speech.
Second, although Hugo Black was Anastaplo's most energetic
champion on the Court and corresponded with him as late as 1969,
the Justice and the author were jurisprudentially at odds on the
nature of constitutional rights. Black, the legal positivist,
looked to the text of the Constitution as a source of rights. For
Anastaplo, by contrast, these were rights "the people were
already exercising ... by 1789. ... These were rights that were
confirmed, not created, by the speech, press, assembly, and
petition provisions of the First Amendment" (53). Such
rights predated even the Declaration of Independence (30): the
term "declaration" he finds "revealing" (15).
Aside from rights recognized in common law, others derive from
natural right. Precisely how one discerns the latter, however,
THE AMENDMENTS leaves unexplained.
The third irony is that, while Anastaplo is comfortable with an
expansive reading of constitutionally recognized rights beyond
those enumerated in the text, he remains uncomfortable with the
Court's expansion of judicially protected constitutional rights,
such as those the Court has found suggested by the Ninth and
Fourteenth amendments. In other words, the mere existence of a
fundamental right does not necessarily legitimize its judicial
guardianship. Thus, one who argued against judicial timidity
three and a half decades ago is by no means an advocate of a
broad-based judicial activism. "[I]t is difficult to
recognize a general or comprehensive right to privacy without
calling into question many of the seemingly legitimate powers of
government" (96). In this position he and Black would share
some common ground, although for different reasons. Nonetheless,
Anastaplo does not say that all unenumerated rights are
nonjusticiable; yet he offers only the vaguest guidelines for
selecting those that are.
The reader is left with the sense that most of those
"other" rights are ones that the people choose to
protect for themselves through the ordinary workings of the
political process. "[M]uch has been done and continues to be
done by statute" (234). Legislative action on the people's
behalf is thus a manifestation of the implied right of revolution
"retained" and "reserved" by the people, in
the words of the Ninth and Tenth amendments, respectively. This
is the "key right and power of ... a self-governing
people" that make both state and national governments
subordinate to the popular will (100).
THE AMENDMENTS is provocative, engaging, and not an inappropriate
introduction to George Anastaplo. Discourse on the "right of
revolution," it turns out, was precisely what got him into
trouble with the Illinois bar 45 years ago. He remains important
as much for what he has written since as for what he did then.
References:
BAIRD V. STATE BAR OF ARIZONA. 1971 401 U.S. 1
IN RE ANASTAPLO. 1961. 366 U.S. 82.
LAW STUDENTS RESEARCH COUNCIL V. WADMOND. 1971. 410 U.S. 154
Newman, Richard K. 1994. HUGO BLACK: A BIOGRAPHY. New York:
Pantheon Books.
Peltason, Jack W.. 1994. CORWIN AND PELTASON'S UNDERSTNADING THE
CONSTITUTION. 14th ed. Orlando, FL: Harcourt Brace College
Publishers.
Pritchett, C. Herman. 1972. "Book Review." CALIFORNIA
LAW REVIEW. 60: 1476-1485. .
Copyright 1995