Reflections on Constitutional Law

George Anastaplo

• Publisher: The University Press of Kentucky
• Year: 2006
• ISBN:
  9780813137292
• Topic: Law
• Subtopic: Public Law
• Index: Law

Constitutional scholar George Anastaplo believes that many judges and lawyers draw upon a skimpy, if not simply unreliable, knowledge of history. He proposes that in order to write reliable opinions, these men and women must have a deeper understanding of the enduring principles upon which the law naturally tends to draw. In the study of constitutional law, Anastaplo argues that it is more important to weigh what the Supreme Court has said and how that is said—what considerations it weighed and how—than it is to know what it is recorded that the Court "decided."

In Reflections on Constitutional Law, Anastaplo makes the case for a renewed focus on a now often-overlooked aspect of the study of law. He emphasizes the continuing significance and importance of the Constitution by thoroughly examining the most important influences on the American constitutional system, including the Magna Carta and the Declaration of Independence.

PART ONE

1. An Introduction to Constitutionalism

I

Some years ago, not long after I began teaching in the Loyola School of Law, I was invited to a luncheon at the United States Supreme Court. This was during a visit by me to Washington to attend an American Political Science Association annual convention. The invitation was issued on behalf of the Fellows, and of some of the Clerks, at the Supreme Court that year.

It seems that those youngsters had heard something odd about my constitutional law courses which they wanted to look into. They had heard that we actually spend considerable time studying the Constitution of the United States before we begin to look at Supreme Court cases. That preliminary inquiry can run to three or four weeks, a mode of proceeding which is reflected in my two published commentaries on the Constitution.

The typical constitutional law course spends little if any time on the text of the Constitution. Perhaps features of the Constitution will be noticed during the opening class meeting. But soon thereafter, if not even in the opening session of the typical course, the first of the dozens of cases to be surveyed will be examined.

II

Far fewer cases are examined in my constitutional law courses, no more than a score or so during a term. This may seem rather “theoretical” to the typical law students, but it may be the most practical way to lay a sound foundation for them in constitutional law. It is this which I had to explain to my luncheon companions at the Supreme Court—and which I recall here.

Most of the cases studied in the typical constitutional law course when I was in law school a half-century ago are no longer made much of in constitutional law casebooks. Even many of the cases that were in constitutional law casebooks when I began teaching constitutional law a generation later are now ignored. In short, such cases have become obsolete.

This is not surprising, considering how contrived and “topical” many of those cases have always been. I recall, for example, the mysteries of the “original package” criteria to be made sense of by students of the Commerce Clause. Even though cases are constantly being weeded out of the garden of constitutional adjudication, the more popular collections have ever more cases noticed in them, often in no more than snippets from the Opinions of the United States Supreme Court.

III

Despite the constant pruning that is required to keep casebooks both affordable and portable, the typical constitutional law course can easily become a course in constitutional history. Or, depending upon the professor’s inclinations, it can become an exercise in political advocacy. Either way, the Constitution itself easily drops out of sight, if it is noticed at all.

The history that judges and lawyers are apt to draw upon tends to be rather skimpy, if not simply unreliable. Something more reliable than such history has to be worked with if sense is to be made of (and with) the historical record that is discussed. Critical to reliability is a grasp of the enduring principles upon which the law naturally tends to draw.

Such principles are not likely to be given sufficient scope in the fragments of judicial opinions which law students are provided, a limitation that is not apt to be corrected by the “research” that is done by the “words and phrases” search engines upon which much legal inquiry evidently depends these days. I have, in recent years, given up altogether on casebooks, asking students to read instead the complete set of Opinions for the one or two cases we discuss each week, along with, for the older cases, the synopses of the arguments of counsel that are often provided in the United States Reports. One is more apt to notice there, than in the fragmented Opinions in the typical casebook, the principles, standards, and mode of argument invoked by the contending parties.

IV

It is more important, in a study of constitutional law, to weigh what the United States Supreme Court said and how it was said—what considerations it weighed and how—than it is to know what the Court “decided.” Some may wonder, of course, how “practical” this approach is for students of law. I believe it is far more practical than what is usually done in constitutional law courses in this Country today.

If and when one does have, as a lawyer, a controversy apparently involving the Constitution, one must no doubt investigate in some detail what the Supreme Court has recently said about the issues considered relevant. This may be quite different from what was said at the time one’s constitutional law casebook was prepared, years before. But what one is not likely to do in practice, when confronted by such a controversy, is to stop to think much about the Constitution itself, especially if one has not been equipped by one’s constitutional law courses to do so.

Only if one has a reliable grasp of the Constitution is one likely to be equipped to understand what the Supreme Court has done. A proper reading includes an assessment of what may be intrinsically flawed, or at least quite limited, in what the Court has done and said from time to time. I mention, in passing, that bar examiners, evidently sensing the unreliability of much that passes for constitutional law, do very little with that subject on the typical State bar examination—and that little is adequately prepared for (I gather) by the bar review courses that applicants for admission to the bar usually take.

V

Perhaps unique to the course I prefer—not only as a constitutional law course but perhaps also as a law school course—is that it is very much a course in how to read. If one is to learn to read legal documents properly, much is to be said for studying the best-crafted legal document in the annals of this Country, the Constitution itself. Such study depends, in large part, upon habituating oneself to be simpleminded enough to notice what is there.

Essential to noticing what is there is a recognition of a document’s vital elements. Central to grasping how something is put together, and hence what is said there, is an awareness of the principle of order implicit in the document one is considering. It helps if one does not underestimate either the seriousness or the competence of the draftsmen whose work one is considering.

The thinking required here is not something to be used only on occasion; rather, it is something that invites one to return again and again to the contemplation of enduring principles. The skills one develops as a reader can be put to good use when one becomes in turn the writer of legal documents, documents for which one must expect both the many typical readers and a few serious readers. As one becomes practiced in these matters, one can develop a reliable “feel” for both the Constitution and Constitutionalism.

VI

Although it is not truly practical to be too practical, it is well to recognize the common sense that a serious study of the Constitution can promote. A proper grasp of the Constitution can put the ever-transitory cases in perspective. Otherwise, one’s study of this subject becomes mostly an exercise in memorizing what “the situation” is at any particular moment.

Even so, it can help one see what is momentarily there if one has a reliable sense of how flimsy a particular line of cases might be. One can be helped to anticipate what is likely to be made much of, and not only by judges, especially as one senses the character of our regime. The vulnerability of a line of cases should be evident to anyone who has a feel for that regime.

The classic instance of this kind of recognition in the history of the United States was with respect to the status of slavery “in the long run.” This awareness may have contributed, in the first half of the nineteenth century, both to the zeal of abolitionists in the North and to the defensiveness of conservatives in the South. A similar development could be seen in the struggle, in the second half of the twentieth century, with respect to civil rights.

VII

In these and like matters, chance can play a significant part. Chance can affect, for example, where one studies and with whom. The luck of the draw may even be decisive in determining what kind of constitutional law course one is exposed to.

The luck of the draw may also be seen, more significantly, in what finds its way into the United States Reports. For example, chance can affect what issues are brought before the Supreme Court, in what shape, and by whom. And then there are such factors to be considered as the personnel of the Court of the day—and how the Constitution has come to be talked about.

Chance may have also been critical in the circumstances of the Constitutional Convention of 1787, including both the political and economic conditions of the day and those available to serve as delegates. 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. That is, the timing of the war was such as to make it likely that the struggle would be devastating and hence both soul-searching and revolutionary in its demands and in its consequences.

VIII

History does offer us material to think about—and to think with. Particularly significant, of course, is the Constitution of 1787. Although there was no necessity that it be precisely the way it is, there was much in the circumstances of the day which called for an effort along the lines evident in the Constitution we do have.

The materials offered by history for the constitutionalist to consider include the Confederate Constitution of 1861. That constitution (set forth in Appendix I of this volume) testifies to its drafters’ belief that the language of the Constitution of 1787 did very much matter. This is evident in the changes made in 1861—the changes carefully made, it is obvious—to the language (in the Constitution and its first twelve amendments) inherited from 1787 and from 1791–1804.

Among the 1861 changes were, of course, those which locked slavery into the new system—that slavery which the Secessionists had come to recognize had been left quite vulnerable by the Constitution of 1787. Reinforcing this effort was the tendency to make the 1861 system more federal, less national, than the 1787 system had been. Thus, a study of the Confederate Constitution (to which we return in Part Two of these Reflections) can help us to see better than we otherwise might that which preceded it, and which stood as a formidable challenge to it, the Constitution of 1787.

IX

Also instructive, for a proper reading of the 1787 Constitution, are vital documents that preceded it. These include what has long been identified as the other three “Organic Laws of the United States.” They are the Declaration of Independence, the Articles of Confederation, and the Northwest Ordinance.

In addition, we shall examine with some care an “Organic Law” of the overarching Anglo-American constitutional system, the Great Charter of 1215. It is odd how little has been said in constitutional pronouncements in recent decades not only about Magna Carta but also about the Declaration of Independence and its immediate progeny. It should not be surprising, therefore, that little is done these days with such documents in constitutional law courses.

We will begin, then, with the study of these documents in their chronological order, culminating in the emergence of the Constitution of 1787. Thereafter we will discuss a series of United States Supreme Court cases and other cases of note, including a couple that are usually ignored in constitutional law courses. I offer indications both of the discussion to be expected in constitutional law classes and of what else might well be said about the subject.

2. Magna Carta (1215)

I

The circumstances of my Commentary on the Amendments to the Constitution were critical in the choice of the translation used there for the Magna Carta text. The translation used here as well (in Appendix A of this volume) is one published in 1829, a version which represents the nearest date in time to the Founding Period, available today, for an English translation in the United States. We can thus get a sense of how the provisions of Magna Carta seemed to American citizens during the early decades of the Republic.

This reminder of the importance of circumstances bears upon what any documentary interpretation should take into account. My constitutional law teacher (William W. Crosskey) took as the epigraph for his monumental treatise on the Constitution a sentence from a United States Supreme Court Justice, Oliver Wendell Holmes Jr., who could himself be sometimes rather unreliable in constitutional interpretation: “We ask, not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used.” Of course, a reliable grasp of circumstances may sometimes be hard to come by.

It might help, in thinking about Magna Carta, to know more than we do about its drafting: the contribution made by the Archbishop of Canterbury was evidently critical. One has the impression that various Barons had pet grievances which they insisted upon, without much concern about where precisely they should be placed in the document. That is, no draftsmen may have had as much control over the arrangement of the elements of the Great Charter of 1215 as is evident in the arrangement of the elements of the Constitution of 1787.

II

It does seem that the King had some bargaining power, however much he was coerced into accepting this proclamation. We notice, in passing, that coercion can sometimes be used to good effect—and that it does not automatically invalidate what has been “agreed to.” Partisans of the King may have contributed such provisions as Chapter 60, obliging the Barons to concede to their subjects what they had demanded from the King as his subjects, a concession necessary if the Barons were not to surrender the high ground they claimed for themselves.

It is an implicit claim to high-mindedness which has contributed to the enduring reputation of Magna Carta. Indeed, that Charter seems to have become even grander in retrospect than it might have been understood to be from the beginning. This kind of development might be seen as well in this Country for the Declaration of Independence, for the Fourteenth Amendment, and even for the Constitution of 1787, which (despite the passions of the 1787–1788 Ratification Campaign) soon became something of a political icon.

Critical documents can impress us as meaningful, even when we have not had an opportunity to study them. That...

Table of contents

• Cover
• Half title
• Title
• Copyright
• Dedication
• Contents
• Preface
• Part One
• Part Two
• Appendixes