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Reflections on Constitutional Law

Reflections on Constitutional Law

George Anastaplo
Copyright Date: 2006
Pages: 288
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  • Book Info
    Reflections on Constitutional Law
    Book Description:

    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.

    eISBN: 978-0-8131-7134-0
    Subjects: Law, Political Science

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Preface
    (pp. ix-xiv)
    George Anastaplo
  4. Part One

    • 1. An Introduction to Constitutionalism
      (pp. 3-8)

      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...

    • 2. Magna Carta (1215)
      (pp. 9-14)

      The circumstances of myCommentaryon 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...

    • 3. The Declaration of Independence (1776)
      (pp. 15-20)

      Each reading of the Declaration of Independence is a challenge and an opportunity. One’s circumstances may determine how the Declaration is read on any particular occasion. Such circumstances may include current events, what else one may be working on at the moment, or the questions one is asked by others.

      We notice here that “one People” is used at the outset of the Declaration and that the signatures of the delegates appended to this declaration are collected State by State. This juxtaposition anticipates the tension there has always been in this Country between the Union and the States, a tension...

    • 4. The Articles of Confederation (1776–1789); The Northwest Ordinance (1787)
      (pp. 21-26)

      There is evident in the Articles of Confederation something that may be seen again and again in Anglo-American constitutional history, a building on what has already been done. This is particularly obvious when the recognition of various great rights is developed. The institutions and processes provided for in the Articles of Confederation are pretty much those that the Colonies had developed in the course of their decade-long “confrontation” with the British government.

      Such continuity with the immediate past meant, among other things, that the Articles of Confederation could be used even before ratification (which was delayed until 1781). That is,...

    • 5. Emergence of the Constitution (1786–1791)
      (pp. 27-32)

      A competent grounding in Constitutionalism is evident in how the Constitution of 1787 was developed and implemented. One gets the impression, as steps are taken from 1786 through 1791, that a considerable reservoir of experience and skills is drawn upon. There must have been everywhere in the Country reliable leaders who could not only do what had to be done but who could also explain what was going on, leaders whom the Framers depended upon and had to reckon with.

      This is not to assume that there was unanimous agreement as to what should be done with respect to the...

    • 6. Marbury v. Madison (1803)
      (pp. 33-39)

      Constitutional law courses in this Country traditionally begin withMarburyv.Madison.One can see there, especially if one is so minded, what it is that our courts aspire to be and to do. But surprisingly little was really done by the United States Supreme Court onthatoccasion, however “big” it talked.

      Indeed, one can sense here (whateverBushv.Gore[2000] might suggest) the inherent limitations of courts whenever the political stakes are high. The “big” talk of theMarburyCourt concealed the retreat that it managed in 1803. As far as the immediate controversy was concerned—as...

    • 7. Swift v. Tyson (1842); Erie Railroad Company v. Tompkins (1938)
      (pp. 40-46)

      We have here two United States Supreme Court cases, a century apart, which are regarded as critical to common law determinations by the Courts of the United States, cases that are difficult, perhaps impossible, to explain to readers not trained in the law. One,Swiftv.Tyson,dealt with negotiable instruments; the other,Erie Railroad Companyv.Tompkins,dealt with tort law. It seems to be widely believed by legal scholars that the ruling inErie,markedly reducing both the authority and the flexibility, in common law and related disputes, of the Courts of the United States (that is, the...

    • 8. Martin v. Hunter’s Lessee (1816); M’Culloch v. Maryland (1819)
      (pp. 47-52)

      There may be seen in these two United States Supreme Court cases, as in several others in the first half of the nineteenth century, reminders of the sectional differences that culminated in the Civil War. The restiveness evident here is on the part of Southerners. Earlier, however, there had been similar restiveness exhibited by New Englanders, in part perhaps because Virginia seemed to monopolize the Presidency.

      There may also be seen in such cases the tendency in the United States to translate political differences into legal controversies. It seems to be hoped that legal adjudications can resolve political issues, or...

    • 9. Gibbons v. Ogden (1824)
      (pp. 53-59)

      The scope of any Congressional power is recognized in this case, of 180 years ago, to be, for practical purposes, virtually unlimited—and this despite the arguments made on behalf of States’ Rights. This is obvious enough when the power considered is that of, say, the power to “establish Post Offices and post Roads.” Congress, if it should wish, could open a post office in every block on every street in every town and city in this Country.

      Why did it not do so, even in the days when it could create thereby a multitude of patronage jobs? There is...

    • 10. Burdens on Interstate Commerce (1905–1981)
      (pp. 60-66)

      Some State Governmental interferences with, or burdens on, regulations by the General Government can be said to have been properly curtailed by the United States Supreme Court. One such set of burdens was addressed, we have seen, inM’Cullochv.Maryland(1819), when an effort was made to put the National Bank out of business in one State. And there was, inGibbonsv.Ogden(1824), we have also seen, the invalidation of the exercise of a State licensing power which threatened to impede steamboat operations that had been authorized by an Act of Congress which went back to 1793....

    • 11. Missouri v. Holland (1920); Wickard v. Filburn (1942)
      (pp. 67-73)

      The absurdity of the situation inState of Missouriv.Hollandis never noticed by the United States Supreme Court. It is remarkable, if not even bizarre, that the Government of the United States had to resort to a treaty arrangement with Great Britain in order to be able to legislate effectively about any hunting of birds conducted solely within the United States. An earlier attempt to handle all this only “among us,” by Congressional legislation, had been “held bad” by a District Court of the United States.

      It is recognized by the Supreme Court, in the concluding paragraph of...

    • 12. The Presidency and the Constitution
      (pp. 74-80)

      An awareness of the timing of events related toYoungstown Sheet & Tube Companyv.Sawyer,theSteel Seizure Caseof April–June 1952, is critical to an understanding of how this constitutional controversy is to be understood. One event, of course, is the Korean War, which had begun in June 1950 and of which much was made in this case by the President and his supporters. Another event was anticipated in some quarters, the 1952 election, but that was not as critical as it would have been if it had been anticipated that the incumbent President would be running for...

    • 13. A Government of Enumerated Powers?
      (pp. 81-88)

      Much is made of the Constitution of 1787 as a charter enumerating all the powers of the General Government. This could be said, of course, of any constitution providing for any national government. But the enumerated powers of the Constitution of 1787 usually referred to are particular powers, such as those listed in Section 8 of Article I.

      Excluded from this kind of identification are the powers implied by the references, as in the Preamble to the Constitution, to the great ends of the People in establishing the Constitution. Two of those great ends—the Common Defense and the General...

  5. Part Two

    • 1. Realism and the Study of Constitutional Law
      (pp. 91-96)

      One can hear intelligent law students insist these days that all that really matters, in their law school careers, is their class rank. Everything they do, in class and out, is evidently regarded by some of them as done only with a view to the grades they will receive. Perhaps many, if not most, students have always felt this way—but it is now more fashionable than it may ever have been to talk this way.

      Contributing to this state of mind may be the emphasis placed, throughout the career of a prelaw student, upon one standardized test after another,...

    • 2. The Challenges of Skepticism for the Constitutionalist
      (pp. 97-101)

      A challenge put to us from time to time should be examined, for it is always with us. It takes the form of the suggestion that one needs to know everything if one isto be sure of(that is, if one isto know) anything. There is something to this reservation about what is usually believed to be known.

      And yet we do sense (if not even “know”) that “knowing everything” is, at least in our circumstances, highly improbable, if not simply impossible. This challenge is an aspect of the fashionable emphasis these days on “realism.” The skepticism that...

    • 3. Constitutionalism and the Common Law: The Erie Problem Reconsidered
      (pp. 102-107)

      Whatislaw? This is a question that applies to all forms of law, ranging from a village rule to that Law of laws, the Constitution. What, if anything, do such laws have in common?

      The traditional account of what law is may be found in Thomas Aquinas’sSumma Theologica.He collects there, in Question 90 of hisTreatise on Law,the elements of law. That description is summed up in this fashion: “Law is an ordinance of reason, for the common good, promulgated by those who have the care of the community.”

      One of Thomas’s four elements is apt...

    • 4. The Confederate Constitution (1861–1865)
      (pp. 108-113)

      Our primary interest in this volume ofReflectionsis in the reading of the Constitution of 1787. The circumstances of its drafting can help us notice features of that instrument. It can also help us if we understand the language of the Constitution, which language is, in effect, another set of relevant circumstances.

      It could perhaps help as well if we had drafts of the document. But we are pretty much limited here to records of provisions agreed upon, from time to time in Philadelphia, between May and September of 1787. We also have some discussions, and consequent modifications, of...

    • 5. The Japanese Relocation Cases (1943, 1944)
      (pp. 114-119)

      The treatment of West Coast residents of Japanese descent during the Second World War can be instructive in assessing what has been done by us in response to the attacks on the East Coast of September 11, 2001. One can be reminded also of what was done, with far more harmful long-term effects, to North American Indians for more than a century. One can be reminded as well of what was done, in a considerably less rigorous manner, to Americans of German descent (as in Milwaukee) during the First World War.

      The situation in this Country after the Pearl Harbor...

    • 6. Calder v. Bull (1798); Barron v. Baltimore (1833)
      (pp. 120-125)

      Calderv.Bullprovides venerable authority for the proposition thatex post factoprohibitions refer only to criminal matters. Some State constitutional provisions do provide for this explicitly. The language in Sections 9 and 10 of Article I of the Constitution of 1787, however, is not limited, in itslanguage,to criminal matters.

      Even so, such a limitation does make sense. That is, an attempt to limit retroactivity with respect to legislation about civil matters invites conscientious attempts to circumvent it. And, as George Mason warned the Constitutional Convention, such necessary circumvention could undermine general fidelity to the Constitution.


    • 7. Corfield v. Coryell (1823) and the Privileges and Immunities Puzzles
      (pp. 126-131)

      “The importance of [United States Supreme Court] Justice Bushrod Washington’sCircuit Courtopinion [inCorfieldv.Coryell(1823)] [we are told by theEncyclopedia of the American Constitution] derives from the fact that it contains the only judicial exposition of Article IV, Section 2 [of the Constitution of 1787], prior to the adoption of the Fourteenth Amendment, that also uses the phrase ‘Privileges and Immunities.’” That Clause in Article IV declares, “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” “Corfieldarose,” theEncyclopediacontinues, “because the plaintiff’s vessel had...

    • 8. The Slaughter-House Cases (1872): A False Start?
      (pp. 132-138)

      When I first came to Chicago to go to school in Hyde Park after the Second World War, one could, from time to time, smell the stockyards a few miles to the northwest. The city was then one of the principal sites in this Country for the slaughter of livestock. New Orleans, although much smaller, similarly dominated the livestock market in Eastern Louisiana in the late nineteenth century.

      Our experience in Chicago could remind us that the collecting and slaughtering of animals can be the concern of the community at large, reaching far beyond those immediately engaged in such operations....

    • 9. The Civil Rights Cases (1883); Plessy v. Ferguson (1896): More False Starts?
      (pp. 139-145)

      The Civil Rights Act of 1875 was declared by a near-unanimous United States Supreme Court, in 1883, to be unconstitutional. Section 1 of the Act provided: “That all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement.” Thus, the activities covered are in the more or less public associations for which people are likely to pay something.

      It is also likely that those providing the services involved here were licensed,...

    • 10. Shelley v. Kraemer (1948); Brown v. Board of Education (1954, 1955)
      (pp. 146-152)

      Changes in race relations in the United States were “in the wind” after the Second World War. Racial segregation was still very much in evidence in much of the South, something which could disturb Northern servicemen stationed in that part of the Country during the war. Additional challenges to racial segregation came from around the world as the United States developed its Cold War foreign policies.

      Such challenges drew, in large part, on widely accepted opinions both about human decency and social justice and about an effective use of resources. Less salutary were the challenges to segregation that questioned the...

    • 11. Affirmative Action and the Fourteenth Amendment
      (pp. 153-159)

      Practice, as well as guidance, is needed for an effectiveobservationof the things that are routinelyseenby us that bear on race relations in this Country. Consider, for example, what can be learned upon noticing the complexion of the crowds evident these days on television screenings of baseball, basketball, and football games. It can seem that those crowds are ninety-nine percent white.

      The same can be said, of course, about the adults in attendance at art museums, symphony halls, opera houses, and (except for the presence of “Asians”) the more prestigious universities. But the sporting events are significantly...

    • 12. San Antonio Independent School District v. Rodriguez (1973)
      (pp. 160-166)

      TheRodriguezplaintiffs, identified as “Mexican American” parents with children in the San Antonio public school system, complained that their schools had far fewer resources allocated to them than did some other public schools in the area. Those resources were derived primarily from local property taxes, supplemented by some funds from the State treasury. The schools are established pursuant to State law, as are the revenue provisions relied upon.

      These Mexican Americans are part of the Latino (or Hispanic) community, which is now said to be the largest minority population in the United States. They seem to make up one-fourth...

    • 13. Whose Votes Count for What—and When?
      (pp. 167-174)

      It was apparent, by the middle of the twentieth century, that the allocations of seats in many State legislatures did not reflect the considerable urbanization of this Country since 1900. Thus, a Concurring Justice, in the revolutionizing case ofBakerv.Carr(1962), noted that “37% of the voters of Tennessee elect 20 of the 33 Senators [in the State legislature] while 40% of the voters elect 63 of the 99 members of the [Tennessee] House.” It was evident that such disparities, all over the Country, would become ever greater if no changes were made in the drawing of long-established...

  6. Appendixes

    • Appendix A Magna Carta (1215)
      (pp. 175-186)
    • Appendix B The Declaration of Independence (1776)
      (pp. 187-192)
    • Appendix C The Articles of Confederation and Perpetual Union (1776–1789)
      (pp. 193-202)
    • Appendix D The Northwest Ordinance (1787)
      (pp. 203-210)
    • Appendix E The United States Constitution (1787)
      (pp. 211-224)
    • Appendix F A Chart for Article I, Section 8, of the United States Constitution
      (pp. 225-226)
    • Appendix G The Amendments to the United States Constitution (1791–1992)
      (pp. 227-236)
    • Appendix H Proposed Amendments to the United States Constitution Not Ratified by the States (1789–1978)
      (pp. 237-238)
    • Appendix I The Confederate Constitution (1861)
      (pp. 239-256)
    • Appendix J Roster of Cases and Other Materials Drawn On
      (pp. 257-260)
  7. Index
    (pp. 261-268)
  8. About the Author
    (pp. 269-269)