THE CONSTITUTIONALIST

Vol. 17 No. 9 (September, 2007) pp.724-726

THE CONSTITUTIONALIST: NOTES ON THE FIRST AMENDMENT, by George Anastaplo. Lanham, MD.: Lexington Books, 2005. 888pp. Softcover. $42.95. ISBN: 9780739110997.

Reviewed by Clifford Angell Bates, Jr., Warsaw University, Institute of the Americas and Europe. Email: c.a.bates [at] uw.edu.pl.

Lexington Books has done a new generation of students of the Constitution a great service in reissuing George Anastaplo’s 1971 classic. Discontinued by its original publisher, Southern Methodist University Press, and generally available at university libraries, the reissuing of this book makes available once again Anastaplo’s famous case for not only a detailed examination of the freedom of the speech and press provisions of the First Amendment but also an examination of the very working of the American constitutional system.

Anastaplo’s renown comes mostly from his quixotic fight against the decision of the Illinois Bar regarding his fitness to be a lawyer. Over a question about the right of revolution, his answer, which was directly taken from the Declaration of Independence, led to that familiar question from the McCarthy period being asked of him – was he a member of the Communist party – which he refused to answer. His refusal led the Bar to declare him unfit to be a member of the Illinois Bar. Taking his case (twice) all the way up to the US Supreme Court, Anastaplo ultimately did not prevail in his quest to be admitted to the Bar. Today, the case, IN RE GEORGE ANASTAPLO, is now more remembered, not for the case, but for a line from Justice’s Black dissent: “We must not be afraid to be free.” The history of the case can be found in Appendix F of this book.

The main text of THE CONSTITUTIONALIST has nine chapters. The first introduces the goal of the book and gives a sketch of the whole. Chapter Two provides some “preliminary reflections on the nature of liberty and of constitutional government.” Chapter Three focuses on the language used in the first amendment and how it should shape our understanding of it. Chapter Four focuses on the role of Congress and its powers under the Amendment and the Constitution in general. Chapter Five examines the common law authorities that frame the meaning of liberty of the press within that tradition. Chapter Six turns to the Constitutional text itself and a discussion of its character and operation. Chapter Seven exams the reasons the states were not included in the original provision of the Bill of Rights and assesses the conditions that led to the 14th Amendment which applied directly to the states and allowed the Court to extend liberties in the 20th century. Chapter Eight is an extensive review of the general issue of freedom of speech and the press. Chapter Nine completes the central text of the book, with an examination of the central question of the virtues of freedom and republican government, and their [*725] inherent limits in the context of American political life.

As other critics have noted, THE CONSTITUTIONALIST, is three books in one. One is the main text, the second is in the Appendixes, and the third consists of the end notes. In fact, the length and depth of notes in this text was one of the few reasons many publishers shied away from originally publishing it in the late 1960s. As one critic argued, the notes offer readers an education in the philosophic and intellectual foundation of American Constitutional Thought. Yet, in the reprinted edition, the notes have a most dated feel to them. It was a shame that Anastaplo did not add a current addendum to the notes to update most of the scholarly issues that they address. That being said, the main text, on the other hand, reads as well today as it did when it first appeared over 30 years ago. This only gives testimony of its status as a classic on the First Amendment and the American Constitutional order.

Added to this volume is the long preface and a nine-part addendum to his original book. The preface allows Anastaplo to address not only THE CONSTITUTIONALIST but also his whole career and the outcome of his unsuccessful legal travail. Now in his 80s, Anastaplo continues to be a quite prolific scholar, with 17 books published and at least three more immediately on the way. Most of this scholarly output has focused on the American Constitution and the concepts and ideas that underlie it, apart from his interest in political philosophy, law and literature, and liberal education.

But the heart and soul of Anastaplo’s scholarly works is the question of the American Constitutional order. This fact is clearly shown in the two detailed textual commentaries on the Constitution (published in 1989) and its Amendments (published in 1995), where Anastaplo presents close and detailed analyses of the Constitutional text. This textualist approach of his two commentaries is conspicuous in THE CONSTITUTIONALIST, albeit in a narrower focus on the speech and press provisions of the First Amendment. Currently he is in the middle of his originally planned five-volume Reflections on the Constitution series, the first two volumes of which have already been published by the University of Kentucky Press.

Returning to THE CONSTITUTIONALIST after looking over the scope of his prolific scholarship we find that Anastaplo has never wavered or deviated from his defense of the American Constitutional order. As his career has shown, this continual loyalty to truth and intellectual probity in looking at these political and legal questions, has all too often been at odds with the political tones of the times. Anastaplo’s intellectual curiosity and the desire to know what is true, and what is not, and his tendency to say how things really are to people who may not really want to hear it – from his original troubles with the McCarthy regime in the 1950s, to the racism charges leveled at him in the 1990s, to his current criticism of the Bush Administration’s war on Terror – often makes him come off as a Socratic character contra mundum. [*726]

This characterizing of Anastaplo as a kind of grumpy Socrates of Chicago, like all such characterizations, is a distortion of the truth, but, nonetheless, with a trace of truth within. Like the plaintiff of over 40 years ago, fighting with the Illinois Bar, Illinois Courts and then the Supreme Court, the trial and its outcome do bear some similarity to the fate of Socrates. The difference, however, is that Anastaplo’s hemlock was a fate teaching at the margins of American higher education, a fate that he turned into opportunity to get an education. As one commentator in a fabricated dialogue remarked, “it’s a funny way to get an education.” One wonders what we all would have lost if Anastaplo prevailed and he turned to the legal career he desired.

REFERENCES:

Anastaplo. George. 1989, THE CONSTITUTION OF 1787: A COMMENTARY. Baltimore, Md.: The Johns Hopkins University Press.

Anastaplo, George. 1995. THE AMENDMENTS TO THE CONSTITUTION: AN INTERPRETATION. Baltimore, Md.: The Johns Hopkins University Press.

Anastaplo, George. 2006. REFLECTIONS ON CONSTITUTIONAL LAW. Lexington: The University Press of Kentucky.

Anastaplo, George. 2007. REFLECTIONS ON FREEDOM OF SPEECH AND THE FIRST AMENDMENT. Lexington: The University Press of Kentucky.

CASE REFERENCE:

IN RE GEORGE ANASTAPLO, 366 U.S. 82 (1961).

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