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Vol. 17 No. 9 (September, 2007) pp. 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] Lexington Books has done a new generation of students of the Constitution a great service in reissuing George Anastaplos 1971 classic. Discontinued by its original publisher, Southern Methodist University Press, and generally available at university libraries, the reissuing of this books makes available once again Anastaplos 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. Anastaplos 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, lead to that familiar question from the McCarthy period being asked of him was he a member of the Communist party , to which he refused to answer. His refusal led to the Bar to declare his character to bem unfit to be a member of the Illinois Bar. Taking his case (twice) all the way up to the US Supreme cCourt, Anastaplo ultimately did not prevail in his attempt quest to get 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 Justices Black dissident, where his famous quote: We must not be afraid to be to be found. The history of thise case can be found in Appendix F of this book. The main text of THE CONSTITUTIONALISTthe book has nine chapters. The first introduces the goal of the book and gives a sketch of the whole. Chapter tTwo gives provides some preliminary reflections on the nature of liberty and of constitutional government. Chapters tThree focuses on the language used in the first amendment and how it should shape our understanding of it. Chapter fFour focuses on the role of Congress and its powers under the Amendment and the Constitution in general. Chapter fFive deal with the examininges the common law authorities that frame the common law meaning of liberty of the press and the meaning of the liberty itself within that tradition. Chapter sSix turns to the Constitutional text itself and a discussion of its character and operation. Chapter sSeven exams the reasons the states and the reasons they were not included in the original provision of the Bill of Rights and how the Civil War resulted inassesses the conditions that led to the addition of the 14th Amendment which subjectedwhich applied directly to the states to it asand allowed the Court will later argueto extend liberties in the 20th century. Chapter Eeight is an extensive review of the general issue of freedom of speech and the press. Chapter Nnine finished offcompletes the central text of the book, with an examination of the central question of the virtues of freedom and of republican government, and their 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 in 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 this bookit in the late 1960s. The extensive notes, aAs one critic argued, the notes offers a readers an education in the philosophic and intellectual foundation of American Constitutional Thought. Yet, in this the reprint of this volumeed edition, the notes have the a most dated feel to them. It was a shame that Anastaplo did not go though and add a current addendum to the notes in this volume, to bring up 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 came outappeared over 30 years ago. This only gives testimony of its status as a classic on the First Amendment and the American Constitutional order. What was aAdded to this volume from the original is the long preface and the a nine -part addendaum to his original book. The preface allows Anastaplo to address the issue of not only THE CONSTITUTIONALIST but also his whole career and the outcome of his not being admitted to the barunsuccessful legal travail. Now in his 80s, Anastaplo is nowcontinues to be a quite prolific scholar, with 17 books published, with and at least 3three 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, which can be seen in his publications. But if the heart and soul of Anastaplos scholarly works is the question of the American Constitutional order. This can be seen in the great majority of his opus being focused on the Constitution and issues focused on it. 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 give to the Constitutional and its Amendments, for the first time anywhere,presents a close and detailed analysies of the Constitutional text. This textualist approach of his two commentaries can be firstis noticedconspicuous 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 5 five-volume Reflections on the Constitution series, the first two volumes of that series iswhich have already out 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. Anastaplos intellectual curious charactersity 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 Administrations war on Terror , often makes him come off as a Socratic character contra mundum.

This characterizing of Anastaplo as a kind of grumpy Socrates of Chicago, like all such characterizations, is a distortion of the truth, but with, nonetheless, with a trace of the 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 have echoesdo bear some similarity to the fate of Socrates. The difference, however, is that Anastaplos hemlock was a fate teaching at the margins of American higher education, a fate that that he turned into opportunity to get an education. As one commentator in a fabricated dialogue remarked, its 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). ************************************************* Copyright 2007 by the author, Clifford Angell Bates, Jr.