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.



IN RE ANASTAPLO. 1961. 366 U.S. 82.


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