‘And Gaim fnew bis wife; and she conceived, and bare Enoch: and be builded (tbe fst) city, and called the name of the city, after the name of bis 40m, Enoch. ores Undertakings (on the Acropolis, any one of ‘which singly might have required for ther com- Dletion, several sucesions and ages of men, were very one of them accomplished im the bvig ht and rime of one man's politcal rervie.... Ease and speed in doing « thing do not give the work last- ing wldity or exactness of beeuty; the expendi- tare of time allowed to man's pains Dforeband for the production of « thing tepaid by way of interest with a tal force for tbe. prowrvation when once produced. For which resion Pericles works are especially admired, at baving beew made quickly, to let long. For every partcalar piece of bis work was immediately, even at tbat time, for its beauty and elegance, antique; and yet iv ih vigour and fresbuess looks to this day ar if if were inst exrcnted. There i «sort of Bloom of newness ‘upon those works of bis, prererving them from the touch of time, as if they bud rome perennial spirit and undying vitality mingled in the composition of them. —neranctt The youth gets together bis materials to build « bridge to the moon, or, perchance, « palace oF temple on the earth, and, at length the middle aged men concludes to build « wood-ibed with Front MATTER (esith Corrects ons) The Constitutionalist Notes on the First Amendment, pages (-bextit George Anastaplo c& LEXINGTON BOOKS A Division of ROWMAN & LITTLEFIELD PUBLISHERS, INC. “Lanham Baldr New York Trot Oxford 20057 MY CHILDREN tnd to my Childen's Childe ‘wth the Reminder tha shee revoluionaty Forefathers ot only made the American, Grek, and Texas Wars of Independence but eerefer insite and maintained ew Governments of ther own LEXINGTON BOOKS, ‘division of Rowman & Litlfeld Publishers ‘sly owned sibsstiay of The Rowman & Littell Publishing Grou, le {501 Fobes Boulevard, Suite 20 anbas MD 20706 PoBoR317 Oxtnd OX29RU, UK Frnt Rowman & Lite eon pled n 205. Reprinted by permission of Southern University Mths Pres. Alright reserve No pt fh publication may be eee, Store in real sy ranted ay frm any ‘mens leon, mechan potscapying candies ‘iho he rie pemsson othe pbk rh Library Cataloguing in Pubcon Infornation Ave ‘The Southern Unversity Method Press dition of his hook mas previously signed the following Library of Congress Card Catalog number: ra6s793 ISBN 0.7391. Primed inthe Ui Stes of Americ © paper used inthis publication meets the nim rexuiements of American ‘atonal Stir fo Iomaton Sciences Pemtanenc of Paper fr Pied Lary Matera, ANSINISO 73948-1992POOL CONTENTS EMNEMESTS OFTHE Het AND NOTES SP PARE THE CONSTIUTIONALIST MODIFICATIONS OF THE "AKT § OTHER ASESWENTS OF GEORGE ANASTAPLO'. 1. "A )oURNAL oF mhoczEDMcs |W. "ALL LEGISLATIVE PORES HEREIN GRAWTED”CONSPIRACY AND THE JUDGE: ATRIAL IN CHICAGO FIN RE GEORGE ANASTAPLO (80-6) OO ER, FOREWORD TO THE 2004 EDITION This fascinating three books, and mor, First isthe text, detailed legal, historical and, above all, i lectical analysis of the First Amendment with special attention 9 the reasoning of the Founding Fathers, Their reasoning is shown to be more subtle than many recent criti have been able to ap preciate. George Anastaplo conchudes that the prohibition on the Congress, and hence on the “General Government,” against abridging freedom of speech (political speech, no, for example, obscenity) was rightfully ineended to be absolute. The privileges and immunities of legiators in their respective legislatures are by analogy extended to the people as whole in their capacities as self-governing citizens, ‘Buti there no remedy apainst the abuse of ths recdom? Must tundred-and-forty-page book is rellynot, oF should nor, legislatures, by rules of relevance and deco- rum, restrain tat kindof speech which would defeat the possibil- ity of arriving at any reasonable legislation? Anastaplo faces the problem, but in a diferent way from what is suggested by the last question. He invokes a kind of patriotic piety in arguing that ‘Americans have always been a thie best when extending, and at their worse when restricting, the limite of toleration for that abuse. But he argues chat the States are, and should be, left free by ‘the Constitution to restrain politcal speech in those rare instances calling for it In fac, the prohibition on the Congres is likely to “ose some ofits ellect if directed in its fullnes agsnst the Stater as well” "[Plressure upon Congress to ‘do something’ becomes very greatif trouble spots in particular States cannot be taken care of in those States.” This discussion is developed in conjunction ‘with 2 general argument for the importance of the relative auton omy of State governments (“States’ Rights”) and with an analysis and critique of the Fourteenth Amendment and the “clear and present danger” test. However, in addition to the Kits that may be imposed by the Fourteenth Amendment, the Congress is obliged, according to Anastaplo, to supervise and restrain the States in the exercise oftheir power, especially when the Republi- can Form of Government in a State is jeopardized. And in the most extreme emergencies, in “Cases of Rebellion or Invasion,” the President, subject to Inter correction by Congress or by the People, can, in effect, abridge the freedom of speech by suspend- ing the writ of habeas corpus ‘Beyond the legal analysis, che Fist Amendment is seen as 4 democratic right for protecting against, controlling, of influenc- ing government, and as an aristocratic right which “provides pro- tection for minority opinion, even against the popular will” Protection of the thoughtful dissenter server primarily o advance the interest of the community. "A people with popular govern rent [like the Government of the United States), where there are no recognized spokesmen of merit [as there ae in Grest Britain), ‘needs to rely upon an aristocrat right." “These remarks about differences becween British and Ameri- can conditions take Anastaplo’s argument beyond the limits of sricdly American doctrine. Lord Bryce wrote of the British polity that “though the constitution has become democratic, the habits of the nation are sil aristocratic." Although many Britons seem to doubt whether thai stil tre, and many more seem to deplore the extent to which iis still tue, I believe i 1 still impressively true to American eyes. At any rate, Anastaplo argues, itis pre- cisely because i is ot crue, or not as true, forthe United States, that freedom of speech in he United States (and its inevitable attendant abuses) has been buttressed by rigid constitutional pro. ‘ection against the General Government. To put it bluntly, where aristocratic habits prevail, legal and governmental conttol over speech is apt ro be more salutary, less oppressive and les needed, where they cannot be counted om (and where there is something of 2 manly spirit of independence in the population, itis more prudent not to entrust the General Government with uch powers The second “book” is the appendices, especially the appendix of close to one hundied pages drawing on the record of the at thor’s own remarkable bar admission ease? ‘The third “book” is the notes. As the author explores the question of what kind of character free institutions and self-gov- ‘rnment presuppose in a populace, the reader is led into depth after depth—that is, the reader whois able to accept the author's ‘invitation to explore. The range of topics dealt with penetratingly and carefully in those notes must be seen to be believed: this part of the book is ikea lite university, a second University of Chi- <3go (the author’ alma mater). Many important poitial events are discussed; but more important is the wealth of diseriminating references, commentary and often dealed analysis of the anthro pological,sociologica, psychological and, above all, poetic 2nd philosophical writingstha che author has found useful useful for his explorations into the nature of American institutions, into the meaning ofthe American way of life, the nate of human beings, and the nature of nature. Serious students of American insti, tions, of politcal life, and of whae transcends and isthe ground ‘of politica life have here a guide to where to go as they face the dilemma posed by the realization thae the good citizen and the ‘rood man are not simply identical. Scudents of the law will bepleasandly surprised to learn how fascinating their feld of study. can be, ‘Judging roughly from the frequency of references, Anastaplo seems to have learned most from Shakespeare, from his fellow Llinoisan Abraham Lincoln, and from Plato. This book isa major antempt to discover and to articulate the harmony, or a least the compatibility, tha exists berween the principles of the American polity and the principles of classical (“Greek”) philosophy. tL ‘Accounts of the life experiences of an author may sometimes help to clarify his thought. I believe this book stands on its own, with no essential need for biographical detail about its author, Ye during the time thatthe doctoral dissertation on which this book, i based was being researched, Anastaplo was carrying on 3 dra- smatic legal bate, his Bar Admission Case, where the subject mat- ter of this book, the principles of American governance, were being worked out and discovered by him in practice. The materi als on his case, found in Appendix F of thi volume, do provide an “instructive” supplement to the body of the book. During those years, while we were both studying at che Uni- versity of Chicago, I had the good fortune to be in frequent con: tact with him. We talked about many things, including our respective studies and, of course, his case. I felt that I could write ‘something about the case from 3 somewhat unique perspective. But I was troubled about what form ie should take. One evening, ater 4 pleasant dinner at the home of a highly rerpected and thoughtful colleague and friend, my host and I enjoyed an howrs- Jong, argument about Anastaplo and his case. When I left his house, I knew I had my form: a philosophic dialogue, of course tried, in the last two speeches of that dialogue, to characterize what Anastaplo had been thinking and how he had conducted hhimelf. The character B is speaking? [Ac the begining ofthe case I think he thought he had lil choice He wat too honorable and too intelligent ro behave mach diferenty ‘We were in the middle of the McCarthy episode, before things began to tur against McCarthy The atmosphere created then made him fee! ‘obligated to act ar he did. The demagopie use of political power to lees db, ceil iige bt seed to hi sik he ‘cart ofthe Amerae scent of goverment’ I eked ee Se Cit emit hr ena aa foot of eien e miners They hed bean rvs, you now Wye ot ar a ice word quctacon how te Bectraon of tndepenence Aegon cence would have mee vo him conrivcng Kastner 8s ches wat an uniting seron of he antmaing recip owe ‘tonal govrnmen inthis coy Yo derve pera pat on Sat he hougt wars diners ba io scanty toed es Pls must hae bon vel cpg shin "He sds he migh be sony sou hi igh expectations fo a= epi the jain wih he gt ag {vege int the reo, whch he wo lp ape Soe tebe solar whether al se wath fnencberoee tment he eo thea fen tobe sated with mene nee aagh fe ‘done and commas odo hi eto meouape ne eo Sh pooner to wha be rege ae beer sll hata ey nd pi ke they ns ‘mon man's earch fd et here he lly bane Te cera hsb ale osc hl a he might sever ne bee het doses peng ne A. Ie a funny way to get an education Launence Beans St Jobn's College, Arnapolis, Maryland NoTES ie Sceeroane ra “ Dike reeeen thera cah oer er cea ee ‘ine rong Moreno shen orcad ta ee | Seacoast ae oe re2 BI PREFACE TO THE 2004 EDITION ‘On. April 196i the Supreme Court ofthe United Sats, bya wote of five 19 four, affirmed the action of the Illinois Supreme Court which, by 2 wote of four to three, bad upheld the decison of the Committe on Charate and Finest ofthe Illinois Bar which, by 2 ote of eleven to sx, had decided that George Anastaplo wt waft for admission to-helinois Bar. This was not Anavapl’s ely uth ‘experience with power structures. In 1969 he war expelled from So. ‘vet Runa for proesting the harazement of another American, and in 1970 from the Greece ofthe Colonels. As W.C. Fields might have said, any man whois hcked out of Rasa, Greece, and the Minos Bar can't bell ad =. Hamas Prereserr (1973) A delightful chronicle of my “professional” career is provided in the opening paragraph, just quoted in the epigraph for thisPreface, of the 1972 review of The Consttutionalist by a Past President of the American Political Science Astociation. That re view, originally published in the California Law Review, was te printed in 1992 in my two-volume fetscbrif, Law and Philosophy. (That review could serve as another Foreword for thie second edition of The Constitutional. And a 1983 article of ‘mine, “Notes Toward an Apologia pro vita sua,” could serve at another Preface on this occasion. Full citations to the texts e~ ferred to in this Preface are provided in Parts 4-9 of the 2004 ‘Addenda for The Constitutionali.) ‘The Pritchett book review, by a scholar recognized for his treatises on the Supreme Court and constitutional law, is quite {generous. He does express reservations about some of the arg ‘ments that I venture to offer ceservations that I now find rather compelling, suggesting as they do the cautions that the reader of thit book should be aware of. Profestor Pritchett, ater chroni- cling, at we have seen, the more dramatic features of my career, proceeded to introduce The Constittionalist in this fashion: “This huge book ie primarily a tretizeon the Fire Amendment, with notes, Ax ich itis probably the most orginal, extended, learned, Jog: imate, dightlystractured, eloquent, anerthodox, and altogether heroic ‘may in constitutional explanation, interpretation, and plain and fancy Secrion since the two-volume blockbuster of Willan W. Crowkey, ‘who incidentally was one of Anasteplo'sprofersrs atthe University of Chicago Law School ‘But the publisher, who inthis period of astronomial printing cost deserves some kind of Pulitzer Pree, has als indulged the autho ina considerable spate of autobiographical appendicen, the most imporant ‘of mbich it Appendix enided “In re George Anasaplo (1950-1961 ‘Tid ean cde sty of Anastapl’seloven-yenr effort to gain ad mission to he Ilinois Bar, cold largely through the official records, beefs and coure decisions {It even includes Ansstplo’s diverting com” sertion with [a Junce ofthe lines Supreme Court, who happened To bal the cab Anttaplo was diving in Chicago some tonthe afer hit Sat appearance and defeat in tht court) The best way to understand the constitutional positions taken by this adamantly principled philoso- fhe and scholar may be through an account of his misadventres with the Minos Bar (Citations to other reviews of The Consitutonalis are provided, along with almost ewo hundred corrections of this book, in its 2004 Addenda. Also provided in the Addenda are citstions to ther materials referred to inthis Preface.) T was able, a quirter century after this generous review, 10 salute Mr. Pritchet in the Preface to my 1999 book, Campus Hate-Speech Codes, Natural Right, and Twentieth Century Atroc- ‘Vital to the concerns expressed throughout thi collection isthe need to testore the standard d ciiley by which productive discourse iv russ tained. A model of such city was graciously provided by a teacher of ‘mine ar the University of Chicago four decades ago, C. Herman Peit- ‘het (1907-1995) Is appropriate, therefore, that tht Campus Hate- Speech volume be dediated ta his memory, 1 1 will return to the Pritchett review when I consider the scope ‘of the Notes for The Consttutionalist. But before setting Mr. Pritchete aside forthe time being, I draw wpon his recapitulation ‘of my upbringing, aecapituation which makes me in my youth, ‘more exceptional than I really was: Up 10 November 1959, Anastaplo's life was + mid-Amerca, middle elas, melting por sucess tory. He was bora fin St Lous} in 1925 and brew up] in’ Souther Minos small town, of parents who had recently Imvmigrated from Greece. Toterrupting his ecation a cightern, he fought his way ino the Air Force despite offcil medial concern about seart murmur snd fw as navigator in ll major testers of World ‘War Tl. Discharged in 1947, he completed his undergraduate education snd emerged rom the Unversity of Chicago Law School with the high ft grader in he clas. Aor he passed the bar exams, al that remained before his admission tthe bar mar the pro forma hearing before the Committe on Charscer and Fitness, My ewo brothers (both younger, and now dead) and I were very much aware, a8 we grew up in Southern Tinos, that we were diferent from most of our associates. Thus, akhough we regularly attended 2 Southern Baptist Sunday School, we knew that “the ‘al church’” was the St. Nicholas Greek Orthodox Church in St. Louis (bout hundred miles away), where we had been born and where we would go for Easter Week and for the Cardinals baseball games‘The food we ate at home (as distinguished from what was served in my father’s restaurant) tended to be different from the local fae, as were the stories we heard both about historic diffi- culties with the Tasks and about the exploits of the Ancients, I associate my mother with the picty of the Greck village and my father with Aesop's fables. They had been born inthe same Pelo- jonnesian village (my father probably in 1884, my mother in 1897). They met and were marred in this country. ‘My awareness of the challenges confronting my parents, and many others with origins abroad, may be seen in the dedication for my second book, Human Being and Citizen: "To MY PAR- ENTS who discovered as Immigrants from Greece how dificult it is for one to become a Human Being where one is not horn a Citizen.” mt Then there came the Second World War and he immediate onwar period, which ined teri for mein the Pac Europe, North Atica and the Middle Eat 1 ad somehow man: aged, a age seventeen, to persuade light surgeon at Chante Fld co dieynd my aparen physical dir, My inses were sound: my Air Corps sevice proved to be profoundly Terai enperene (At for my bea have no hao mis & cls bene of ns since my eat grade school days in Se Unis) Thecame a fying oficer—and I contin to wonder how 1 ver managed the formidable “Barma Road” obstacle cure in San Antonio that we, a Avision Cadets ad o deal with again and again. One od feature of ty Air Corpecoeet was tht L Iesnel how to fy am aiplane belore I even ted 0 drive 20 sstomobileI was que compeen an el naviguar, omer sho was willing to volutes for saignmen that oes ded ot Sane Onc lseed, ser “close clo here and there Gus inthe oral course of things, without being shot a) thn there was resto why we were automatically swarded Bfy percent fight ot r Thad not wanted to be an athlete in high school, But I was the nly one in my clay, or inthe cats immediately before and afer mine who euned an active-duty commision and winge during the Wat aso ate my “indigenous” schoolmate be ‘cametally a chizepétspipecuse of my service (eter one of my brothers fought wth the Army in Koren. He is buried nthe miliary cemetery st St. Lovin, where I should end wp se wal No doubt or parents had their sara enbanced by oo miley service) ‘One contequene of my Air Corps service was meeting people suite unlike those {had known esther inthe GreckAercees ommuniy in Se Lois or nour coal-mining town in Southern Minin This led t,among oder things, my marrying in 9484 “eas Presbyterian anol wildaters daughter), soncone he vse connec” withthe American hertape I below i wee ot unt after we ad been married awhile that I lard of es family’s connections with Sam Houston ofthe Repco Tense anu with General Dividson of Davidson College “his then, is what "a good wa can do for an energetic youngster, someone who cou thereby be spiritaalyconfrened inthe eizenhipin which he happened to be bore ". ‘Then there came, in a rally unexpected way, the accidental loyalty-oath-like chillenge posed by the Illinois Bar authorities, Ie soon became evident that their “subversion” challenge, which ‘engaged me sporadically between 1950 and 1961, involved serious differences of opinien about the principles of the regime. It was a controversy keyed to momentous events of the day, something that was evident in the Character and Fitness Committee's sure repttiously waiting on the decision in Dennis v. United States une 1951) before i: issued its frst rejection of my application, (See The Consttutionalist, p. 630.) By that time my wile, infant daughter and I were using at che Sorbonne what was left of my G.LBill sedent eligibility. ‘When my troubles with the bar began, Iwas left prety much ‘to myself by my former associates—both by those I had grown, ‘up with in Southern Illinois (exeept for my family, of course) and by those Thad gone o law school to and with Particularly telling vas the simply disgraceful failure of my law faculty, and especially its Dean, to speak out on behalf of someone who (however imprudent he may have been) had done very well in thee school (and who even happened still to hold a commission in the Air Force Reserve), (Se, for example, The Consitaionalist,p. 333.) “My most recent comment on all this may be seen in the dedics- tion for my latest book, On Tia: From Adam & Eve ro O. J Simpson: "To the Memory of my Law School teachers (1948 1951) who, with a few noble exceptions, presched (and hence taught) far berer than they could practice” My On Thal book, ‘which includes appendices about my litigation, is graced by 2 Foreword from Abner J. Mikva, a law school classmate who 25, from early on, friendly to my cause. He has probably been the most successful profersionally of our class, having served as 4 Member of Congress, at 2 Judge on the United States Court of Appeals, and at Countel to the President. See, on how those in suthority should conduct themselves, Appendices C and E of The Contiutionalitt. See also, The Consituionalist,p. 340, for Irving Dillard's suggestion to the deans of Mlinois law schools about bar-admission abuses) have roggerted that my military service confirmed my ere- dentals a a citizen, deepening my ties with the country in which iy parents had settled. My service thereafter as litigant meant, in effect, tha the principles of the regime became decisively mine, specially since others (the great majority all round me) had abandoned if not even repudiated chem. Thus, whereas the Ai ‘Corps had helped me become fully a part of thie country, the bar ‘admission controversy left me invoking 4 patriotism that most ‘thers no longer recognized, The United States became thereby, fever since the 1950s, more my country than it was theirs, which is a emarkable state of affairs for someone who (1 am old) did ‘not know any English before he began grade school in St. Louis. (We moved to Carterville, Illinois, when I was in the fifth grade, seer Thad barely survived a bout with diphtheria and its debilitat- ing aftermath ) v [My naivete in these matters throughout my carer is no doubt evident in what Ihave jut said. But my position did deepen over Holt fonl A the years. Our Cold War follies, culminating in the Vietnamese debacle, confirmed what sense there wat in what I had been say- ing about the risks we ran (at home as well as abroad) because of the miscalculations fostered by our repressivenes. Some useful recognition did come in due course, dramatized by the cover story about mein the Chicago Tribune Magazine of ‘November 26, 2008 Justice Black's distenting opinion in my case came to be acclaimed at one of his best a judgment anticipated by his selection of an excerpt from it to be read at his funeral in Washington Cathedral. Much is made of that opinion in Irving Dillard's One Man's Stand for Freedom, in Harty Kalven's A Worthy Tradition, and in Roger Newman's Hugo Black biogra- phy. More than adozen articles about my scholarship haveillumi= nated my career, achad the anmal Nobel Peace Prize nomination ‘of me by a Chicago committee berween 1980 and 1992. (I had, since our 1960 camping trip across Western Russia, insisted upon the severe economic and socal disabilities of the Soviet Union See, e.g The Constcwtionalisrp.742; Human Being and Citizen, p.226-28; The American Moralit, pp. 161-80.) have already referred to the festachrif volumes, Law and Phi- osophy, issued in my name in 1992. In addition, the annual No- vember lecrure in the long-established University of Chicago adult education Works ofthe Mind Lecture series has been named jn my honor. And Tam told there may be found on the Internet a mukitude of (novatogether-rliable) entries about my career ‘There is included in my On Trial book an appendix, “Chance and the Good Life” which suggests how things have fallen out for me. Also instructive isa tall I gave in November 2003 to the Hyde Park Historical Society of Chicago, “If You're as Good as ‘You Look, Why Aren't You a University of Chicago Professor?” (This too may be found on the Internet) 1 treasure, among the responses generated by my bar admis- sion efforts, the rwo-sentence lener (of June 7, 1961) from one of iy teachers, Leo Seuss, after the United States Supreme Court ruled against me in 1961: “This is only to pay you my respects for your brave and just acion. Ifthe American Bench and Bar Ihave any sense of shame they must come on their knees to apolo- fize to you.” This letter is hardly that of the neo-conservative ura that some of my fellow liberals consider partly responsiblefor dhe presumpeuus imperaiom ofthe aSvetrins who hee net mimencan foreign policy im recent Yas Meee ce inose in spirit here to hice Hugo L. Black, who Me ect dctang opinion in my cane withthe sae se ame te mt ot beside fee (GOR Buc eta’ rm pon ne aoring Co ee neat ago by Ramsey Clark, a former ce baed ster (The Lawyers Duy of tomer sso dre juice 10 indie we and ways pre je 0 hae 4 ingen ey Sain ne gan rt ene et ee wl far i bese cn Sr ee a ll mee, al fe 7 pana to foto ce we ull you with is Monae mst not barat be ee ae wii ep et eect ted er ML ade hve noted tat on an eet be lee prety ro eee shorn one cvia the more det See ee ce conform of one's ine, deans aor ee ae of baring of te nia 1 ay a ns much aL hve om my ove sous ee tach do Bede amply do 98 nd peed ent oe recently, many of dhe things 1 develop See ee caps fom of slbrlane ean enosrge Sees by wha they ae and do ‘That one might indeed be on one's own, in critical “situa tions.” was something I bad been accustomed to well before my somewhat accidental encounter with the Committee on Character and Fitness ofthe Ilinois Bar on November 10, 1950, three days after my twenty-fifth birthday. Afterall, (asa twenty-year-old) hnad, on more than ene occasion, been the only one awake of our air crew as I kept tack (usually by celestial navigation) of where ‘we were in long nigh flights (on autopilot) across the Pacific Teis not only when one ie attacked from the “Right” that one can find oneself fey isolated. The sare thing can happen when fone is attacked from the “Lele” a I discovered in the 1990s (asa seventy-year-old) when “racism” charges were leveled ata few of the Loyola law facul:y by undisciplined students who had misun- derstood what they had heard in their clases, L-was the only member of our faculty to mount 4 public counterattack, calling into question more che peculiar timidity of my colleagues than the obvious silliness ofthe students ‘My “racism” responses steadily found their way into prin, as ray be seen in three volumes of the South Dakota Law Revicw. ‘The late Gerald Gunther, of the Stanford Law School (th leading ‘constitutional law casebook editor of his time), commented in this ‘way (in his August 4, 1997 leer to me) upon the first installment of my South Dakota Law Review “racism” collection: 1m only partly drough the mos powerful pice [you sent meh your collection of statement, speeches, and memoranda regarding Your ‘school's "racism" contovesy Think you have dane a rel service to the profession i collecting All these in ‘one piece for I dont know of single university that hag ‘ot encountered this knd of problem in recent years, Your celection i instructive in he bere ene of the word, I think tis the ultimate tony that you, ofall peopl, should have been target of such charges and 1 tm ally glad that you have continued to speak up about the sues. Twit, for now, in haste and just briefly.» (We) are about to take ‘vacation in Europe. but {thought woul acknowledge receipe and, ‘specially, to express my enhusim about the “racom™ piece (One set of consequences of the Loyola School of Law “rac- ism” controversy is commented on in the following December 2000 letter to the Bulletin of the Atomic Scientists, by a veteran political science professor (see On Thal pp. 497-48):i asrAce 70 THe 2004 eoITON read with interert your profile of George Anastaplo (Bulletin of the Atoms Scents, November/Desember 2902). You are correc It {ras not only wel known siemats and members of he Ars and Lees Community who were forced ether to Kowtow to McCarthy ami-Com= tmunism hysteria orto lve their carsers, We will never know how many Young men and women just beginning their careers inthe 19508 were thus alfeced "Today a similar danger is posed by the McCarthy of the Lele Political Correctness regarding rac, gender, and clas intimidateseduea- thom and professional decision-making throughout Academia in this County, Anastaple as continued his esl tobe intimidated this die bythe Feckles charges of racism dhat wee leveled agains several mem= bess of the Loyola lw faculty in 1995-1996, (Ths is reported in the ‘Chicago Tribune Magazine, Newerber 26,2000) "The mowt recent consequence of Anastplo' esiance to intimida- tion may be seen inthe elevation last spring of two other faculty me bers in the Loyola School of Law to the newly crested positions of ‘Research Professor, This was done s time when George Anasaplo Se likely the only member of tha facley witha national epotation a. Tegal scholae. Te somesimes seems that he had published as much af fot more than al of the ert ofthe then-ativefcutyof that aw schol contin, “George Ananaplo demonstrated how one responded properly to ‘McCarthyism inthe 1980s, He has now shown us how men and women ‘Of good will in Academia might properly respond tothe reat posed by Polial Correenere today. Ik should at once be added, however, that I did have, “this time around,” 4 tenured academic post which was never put in jeop- tardy by the “racism foolishness 1 encountered-—and I also had tecess to editors who were willing to publish fully the responses in which [set the record straight. But, sad to say, my colleagues did watch quietly {rom the sidelines, evidently unconcerned about how their own integrity was thereby being called into ques- tion—and also evidently unconcerned about what such neutrality ‘would do thereafter tothe spirit of academic collegiality. Within a decade thereafter, however, several quite respectable members ofthat law faculty did undertake the heroic burden of submitting a heavly-documented proposal to the University that 1 be designated the Loyols Professor of the Year. On such occa sions the effor ean mean more than the nominal objective. vu Ic can be useful, before delving further into The Consttution- ats, co lis somewkat systematically the dates of various relevant developments in mr career, some of which I have alteady men- tioned. (Se, for a detailed chronology of my bar admission ef- forts, The Consitutionalist, pp. 334-35. See, also, my 1986 law review collection, “What Ts Sill Wrong with George Anas- plo?) was born in November 1925. My experiences with the United States Army Air Corps were between 1943 and 1947. My first. round of educatior at the University of Chicago was between 1947 and 1951 My encounters with the Hlinais Bar admission authorities, which very much influenced my opinions about the use and abuse of the Consttutior, were between 1950 and 1961, In the mid~ 1950s, returned to school, a a graduate student, earning a PhD. degree in 1964. The dissertation submitted to the Committe on Social Thought at she University of Chicago, Noter on the First “Amendment, was th basis forthe book reprinted here. Thad by thar time been teaching for almost a decade in the Basic Program of Liberal Education for Adults atthe University of Chicago, a program in which Icontinue to lead seminar. (I is that program. which is responsible for the Works of the Mind Lecture Series already referred to. The Program's eeading lit may be found in iy book, The Artis as Thinker, pp. 299-300.) ‘The preparation of the book reprinted here, The Consttation- als, rook place between 1964 and 1971. Most ofthe work during that period was devoted to the Notes now found in this volume (at pages 419-808). In the meantime I had begun teaching in the Political Science and Philosophy Departments at Chicago-area Rosary College (now Dominican University). I also conducted Politics and Literature seminars on a regular basis, 263 fortnightly commuter, at the University of Dallas for two years. Then, in 1981, I moved from Rosary College to the Loyala University School of Law (where I still ars), even as [continued to conduct “great books" adult education seminars atthe University of Chi cago. (See on the Fukish character of the Loyola appointment,The Constituionalst, p 409, Or Tal p. 441, See, om the Univer~ sity of Chicago teachers (Malcolm P. Sharp, William W. Crosskey, tnd Leo Strauss] who happened to be most important for me, my fecolletions of them cited in Parc 6 of the 2004 Addenda for The Consttutionais,) One important consequence of my appoint ‘ment to a law school faculty in 1981 has been to provide me much feasier access than I would otherwise have had to publication in law reviews, Even the mort modest of such journals is now likely to be readily available worldwide on the Internet ‘Another indication that my bar admission difficulties did not prove a crippling as they might have been isthe face that our four Children managed to secure access to respectable careers—1wo as lawyers, one at an architect and one ara surgeon. No doubt, my ‘wile (of more than a half-century) i largely responsible for this. Her aspirations are reflected in one of her challenging poems, “What Is Virtue?” (Lave and Philosophy, vol 2, p. 1036 Virus isthe prize achieved by breakneck courage Vieni iss teavre hidden underground, Which throws the ight of glory back int che sun's rays Past the books and ides where knowledge wil be found. Soch vigor ie errction bu affematon, too. Lec noone tech you virtue ‘Whe dare nar defor you “The limitationfof the life of scholarship are suggested by her two- line poem, "Fragment by 2 Graduate Student's Wife” ibid, p. 1045): Hashand, husband, burning bright, Vil tarn off your srody igh! (Gee, for another reminder of the “human” sde of the world of scholarship, her poem, “Allan Bloom at 26," in Law and Philoso- ‘phy, vol. 2p. 1034, See, on Allan Bloom {a Basic Program col- feague a the University of Chicago a half-century ago), the index for my most recent bibliography.) vi. My dissertation, of 843 pages, had almost half ofits space de- vyoted 10 “Lectures on Constitutional Government” which I had given between 1957 and 1964. Their sels suggest some of my inerests during chat decade: (1) On the Use and Abuse of Old Books (1963); (2) The Declaration of Independence; Explanation and Reminder (1961) (9) Another Look at the Declaration of In- dependence (1963); (4) The American Constitution of 1787: Form and Mater (1961); (5| The First Amendment: A Doctoral Lecture (1968) (6) The Geurysburg Address: America’s Political Religion (1963); (7) The American Heritage: Words and Deeds (1963); (8) Freedom, Justice, ané the Rule of Law: An Introduction to Due Process of Law (195%); (9) In re George Anastaplo, 366 US. 82: Principiis Obst (1962), (10) Civil Liberties and Civil Rights: A Memorial [for Justice George W. Bristow of the Hlinois Supreme Court} (1961); (11) Realism and the Practice of Law: A Lecture for Law Seudents (1961); (12) Justice and the Common Good: Roman Catholies ané American Communists (1962); (13) Prin ple and Passion: The American Nazi Speaker on the University ‘Campus (1963) (14) Neither Black nor White: The Negra in ‘Ameria (1963); (15) Church and State: The Beginning of an Ar- tgument (1961); (16) Utopia or Tyranny: The Universal Declara- ‘ion of Human Rights (1963); and (17) Old Books and the Pursuit of Excellence (1962). ‘Almost all of these lectures have been published since 1964, ‘The interested reader can trace the origins and fate of each of ther lectures by conmlking the detailed "Atobiographical Bibl ography” which I have prepared over the years. Stages of that bibliography may be found in the Law and Philosophy festsbrift (1992), in the Norebom Illinois University Law Review (2000), and in the massive bibliography in political philosophy compiled by John A. Murley ior Lexington Books (2005). The tables of contents for my books and published collections may be found inthe Brandeis Lawe journal (2001). (See, for these bibliographies, Pare 4 of the 2004 Addenda for The Consttntionalizt.) x Temay seem rather curious that there should be such a detailed inellectual history auilable of someone who was denied admis- sion tothe bar because he refused to tell some headstrong lawyers shat they believed they “had” to learn about him. It should beei nBPAcE TO TAH 3004 EDITION ‘noticed, however, that I was given to understand, few years ago, that I could perhaps be admitted tothe Ilinos Bar, with no ques. tions asked (so 0 speak), if should simply apply again. Burl did fetire from the practice of law in 1961—and lam now much more “comfortable” outside than in, especially since my challenge to the legal profession is thereby continually recalled ia an instrve ‘The bibliographies Ihave noticed here are also useful in tracing the development of various articles cited in The Constitationalist, Some of these articles, which had originally appeared in the jour. nals cited, may now be found in my books. A roster of those books is provided in Part 8 of the 2004 Addenda for The Const, ‘wtionalst (The sources of materials in my books and articles ate systematically catalogued inthe bibliographies referred to) ‘There can be said to be exhibited, in that meticulous account- ing for one’s thinking across half a century which is provided in my bibliographies, the compulsiveness of the poct who strives 9 ‘order the “world” he creates, All this can be, in effect,» kind of self-examination, if not even reassurance in the face ofan occ sional awareness af one’s mortality ‘And, like the poet, one does tend to draw upon the voeabulary ‘of one’s day. This may be seen, for example, in the use made in The Constitntionai of terms such a8 “tan” instead of our cat rent “human being,” or such as "Negro instead of our current “African American.” (I have never liked the use here of “black, which the publisher of The Constitationalist nevertheless inserted in place of my “man of color” atthe last mimute [a page 645)) In addition, most of the dots in quotations should appear in threes rather than in fours. Iti also important to recognize tht I intend CK" to mean “Compare,” pointing thereby toa qualifestion of (oF something diferent from what has just been said or cited, ‘Accommodations had to be made by me in 1971 to the pub- lishing practices of the day. My user of capitalization were se. verely limited (with respect to General Government, States States’ Rights, Members of Congress, Presidents, and the like), ae was my attempted use of “Mr.” with contemporaries in thie country. But these are minor complaints when one notices the remarkable extent to which the publisher, led by the wonderfully competent Margaret L. Hartley, went in publishing so massive 4 book (and, I shotld add, on very good paper and in a most ‘workmanlike way). This is how Mr. Pritchett has described part of what we ended up with ‘The extended philosophical dsquistion onthe First Amendment inthe ‘Tet of The Gonsiutionalist) is only the upper part of this books see, beng, Below the watrine there ean incredible mast of 399 bee proc eer of notes, some 300,000 words, on which the authori seponied fave spent four years In these notes the postions taken in the Tee one supported, elaborated on, or illsated by a staggering arty of sourees ancient to'modern, scred to profane, serious te popular: and by the authors own observations that he didnot have root for ithe Tare Sample “The feet press in dhe world may bein onc senses he Coos {grentonal Record." Onone page of notes, chosen completly wrnlony he refers to or quotes Aristorle (thre times), (Alenander] Metiljohey St Augustine, Plto (iver time), Euclid, Maimonides, the Chores Sio-Times Life, Te London Obrercer, snl Portnoy Complaint Oke ‘commentator has suggested that reading these notes, which asthe the product of toal recall, would be the equivalent of = cllege eduction Also “incredible” isthe face that 20 massive a book as this can be republished more than three decades later x ‘The personal “history” that I have provided inthis preface can remind us ofthe unanticipated benefits of adversity. For example, 1 was spared, by the bar admission authorities, the lucrative and other entanglements of the successful eareer I would likely have had as a lawyer. Malcolm Sharp, one of my law teachers, declared himself to be quite impressed by the way that I talked (in Spring. ficld) o the Justice of the Ilinois Supreme Court when T ap. peared before them in 1954, He even suggested that I had the ‘makings ofan effective politician. Ido not know whether he re- vised these assessments when that Court ruled unanimovely against me on that occasion. (Se, for my limitations a4 practic ing “politician,” Appendices C and E in this volume.) ‘One consequence of my rejection by the bari that Ihave been able (inthe Basic Program) to read good books, again and again, for half «century now. That has been liberating and empowering, just as my service in the Air Corps had been,[All this was reinforced by sy determination and ability 10 represent myself during a decade of litigation. It is evident, from the way that the United States Supreme Court routinely ruled on “subversion”-related eases at that ime, tat I did not do anything. to jeopardize the chances I might otherwise have had. (ustice Black, evidently aware of the questions that some mighe have had about the prudence of my decision to represent myself, spoke ‘yell in hs dissenting opinion of my oral argument) “Thus, Ihave had, in my career at the bar as in my encounter with the bese Books, to work things out far more by myself than Hf Thad had a conventional carer either atthe bar or in the acad- temy. thas long been obvious to me chat the very foundations of things for us as a community are very much in need of examina xt “he bene of adversity may be seen a wellin the publishing sinony of The Contiusnel. The est polisher wo whom tris ollered, dhe University of Chicago res, almon accepted i bsnl years ier, as the adore at Chicago very much ‘ind to publish Bat a soveely negate atsesment rom an Ini relen aber Yl lw profesoy,nimidated them Tr would probably have sped my acaemie carer if Chicago had published the book in 1963, But that would ave mean the wee ee ofthc buneds of pager af Notes that are now to be TERE in The Conmtonalst=and ii those Notes that will fave the mos enduring appeal wo thougtfal readers however Wert they do rouble other teers That, Chicago would have Published fay prompely » book which would have been lie Move than cael evision of my disereaion, dat Txt which fond ac pages 1-285 ofthis volume "Thc sean publishes to whom the book was offered was the southern Methoise Universi res im age parece my Seu tborm wife ied the poy they sometimes wed a log Southern Methodist quickly accepted the Book, even sending me Seg otha ef. Bo shen there occrred unaspted age ch ere for me asthe de quite fasting dlys phish hd nothings allt do wih what myself had or had not So while 1 waited for the Press to begin to work on my book, produced the Notes we now have (many of them capsule essays), Notes which were several yeas in the making. (Those Notes i clude, by the way, favorable references to the Yale law professor who had proved my uniatended benefactor. I did not lesen of his contribution to my career until many years later, by which time I, along with others, aad lost interest in his once-topical work on the First Amendment. See "Notes Toward an Apologi« pro vite 4a,” pp. 34445) Ie shard for me w realize that I had once found and used all the materials I draw upon in the Notes in this volume—and all this without the sid ofthe electronic and other devices that now promise ro empower sn author. There is, about the developments Trecollect here, something wonderful. xml 1 explore in the Notes the foundations of the serious argu- ‘ments made in the Text. There i, in that Text, a study of Anglo- ‘American constitutionalism. This is done in the courve of devel- oping my interpretation of the Fiest Amendment, an interpret tion which i summed up in this way (The Constitutional, pp. 15-16) ‘The First Amendment tothe Constiation prohibits Congres, in its law-making capacity, fom cutting down in sty may ot for any Tes ‘eedom of speech and 3 the press. The extent of ths feedom iste be measured not merely by the common law treatises and cases avaable ‘on December 15, 1791—the date of the ratification ofthe First Amend ‘ment but alo by the general understanding and practice ofthe people {ofthe United States who insisted upon, had writen for them, sod Fat fed (chrough their Se legislatures) the Fest Amendment. Aa impor tantindication ofthe erent of thi freedoms tobe seen nthe teachings ofthe Declaration of Independence and inthe event leading up to rhe Revelation, “Although che prohibition in the First Amenudment i absolute—we see here a esrint upon Congres tha is unqualified, among resin thac are qualifed~thesbrolate prohibition doesnot relate toll forms ‘of expression but only to tht which the termss "freedom of apecthy oFofthe pres" were then taken to encompass, political speech, sperch faving to do with the dies and coneerns of bell governing ctvens. “Thon for example, this constitutional provision is not primarily or di Tently concerned with what we now call artic expresion oF with the problems of absconty. Rather, the First Amendment acknowledges that The soverign eitien haste righ rely to discuss the public business, { pailege theretafore claimed only for members of legative bodies. ‘Absolute as the constitutional prohibition may be with respect to ‘Congres it doesnot touch directly the great State pone o affect free ‘Som'of speech and ofthe pres. fat, Tsall argue, one condition or efecive negation of Congressional power over this subject which togaton is important for the plical freedom of the American people) Ir The the Stats should retain some power to eopsate politi expres tion, It seems 0 me, however, thatthe General Government has the tly o police or restrain the power of the States in this respect a duty dicted by such commands in the Coneiewion of 1787 a8 that which provides thatthe “Unied Sete ball guarantee to every Stat inthis {inion # Republican Form of Government (Che reader may se, in the adjustments made in this quotation here, the mode of capitalization, with respect to terms such as "General Government” and "States," that I would have preferred throughout this volume. My stylistic preferences may be seen as wwellin the use of three dots instead of four atthe end of this quotation.) “Much further on, I observe, asthe argument in my Text draws to.aclose (The Contitationalis,p. 266), My references to truth wulgar minds, the common good, passions snd rhetoric. point to the need for tradiuonal poisal philosophy, to the need for that seedy of (human beings) and communities which ‘ands abovescven a takes account of ranitory and acidetal polit St things Tes nly aginst the background of such study tha prude al judgments can be expested. Iti in ight provided by politcal philosophy thatthe underlying prudence ofs sound consxatona a- Pingemans can best be scen and thats cometation eam be properly de- Fended and, if ned be, reformed “We find, as we approach te end of our inquiry into the Constesion and its bearing on my seading of She Fist Amendment hat we have Come to s new beginning. For we have yet to explore, to understand, Sad evaluate the foundations and aspirations of our community. ‘Thos, wn we have learned what Amerians do, should, and can want, ur findings and suggesions must remain provisions ‘The exploration called for here was begun in the Notes found in this volume. (Ic is ceveloped further in various of my publica- tons since The Consitutionalis.) The typical reader can usefully ‘ead the Text of this volume, pages 1-285, with litte reference 10 the Notes (pages 419-808) chat accompany it eis that surface of my presenta thatthe cizen, as etizen, should take mow 0 ‘The citizen should ind salutary ae well the materials provided in the Appendices (pages 287-418), particularly Appendix F about my bar admisron case, extensive materials that the pub- Tisher insisted upon. Left to myself, I probably would have said Tie more about that case (which I never discuss in my classes) than is now found inthe Notes. Even s0, I cannot regret offering in this way Justice Black's remarkable dissenting opinion in my met in Chicago, some years ago, Fred Korematsu of In re Korematsu fame, the 1944 case dealing with the Japanese Reloca- tion Measures during the Second World War. I told Mr. Kore- rmatsu chat Jstice Blac is widely believed to have written one of his best opinions in my case and perhaps his worst in his case. “Unfortunately,” I added, “the one he wrote about me was i dissent, while the one he wrote about you was forthe majority.” xm, Al this, having been done long ago (as careers are measured), seems something new, even fresh, when [return to it And I must confess that Ido find this massive volume most interesting, p ticularly for the guidance it provides to both the identification and the reading of the most important things, This assessment includes the three Appendices (C-E) which deal with casestudies of the practical application of the principles developed in the Text (of The Consutuionalt. T move in this book from distinctively American concerns to the sources of perennial questions and provisional answers that ‘may be found in the enduring texts of the West, These texts are drawn on freely in the Notes—and with an intensity and a range that would be difficult for me (in my cightith year) to match today.All this sos the resuls of much reading. But reading, unfort- nately, is not “in” these days. "Seeding into” a subject is no Tonger either recommended or facilitated even for our beter st- dents. Students ate far more apt instead, to try to be “realistic.” ‘The more sophisticated they are, the more likely itis that they willbe crippled in this way. Law students, for example, often limit themselves to snippets from judicial opinions in the cases they study, not concerning themselves with what are easly dismissed as irrelevant speculations about the jurisprudence implicit in these ‘opinions, This means, among other ching, that such students are fot likely to know either where they cruly are or where they are heading, This is a condition that a veteran navigator instinctively finds dseressing. "The Noten, therefore, suggest primarily an education—in the first instance for me. The student may properly be distinguished in these matters {rom the citizen, (See The Constitutional, p. 590) One can see in the Notes what che foundations, as well as the limitations, of a way of life might look Uke. The materials chibited there and the arguments made are not apt to be available to the typical student today of law, of polities, or even of the classics of the Western tradition. The superficiality that is pro- ‘moced these days among the passionate contri ously silly allegations either about “subversion” oF about “raciom,” depending on the political climate ofthe times. (These days fonce did in both directing and misdirecting the people of this ‘country.) TT must again recognize that these Notes include many things I ro longer know as well ar T once believed 1 did. And Tam re minded by my Notes of my long-cherished, but sill unfulfilled, desire to study the work of Pierre Bayle, among others, far more than Thave, [find hope here in the face that anther long-ches [shed “projet” of mine has recently been completed, the publica- tion ofa quite reliable translation of Plato's Meno. (Fis has been ‘done in collaboration with Laurence Berns a St. John’s College scholar who knows the ancient Greek language far beter than T do. This edition of the Meno inlades oue innovation for Platonic ialogues, the numbering of the speeches, something which should facilitate classroom discussion ofthis seminal text. In ad- nspnct 0TH 2004 EDITION aw dition, there is provided by us a detailed step-by-step reconstruc: tion of the Slave Boy's celebrated geometrical exercise. (This reconstruction, I have been told, has already been copied by a Polish scholar for a uanslation of the Meno into his language) Mr. Berns and I first et in 1947, a8 college students at che Ur versity of Chicago, where he eventually wrote a doctoral dissert ‘ion on Francis Bacon which was highly praised by Leo Strauss, ‘There may be found, at pages 362-65 of The Constitutional, Mr. Berns’ eyewitnes account of my December 1960 oral ar srwment before the United States Supreme Court. He has coa- teibuted as well the Foreword for this 2004 edition of ‘The Comsiutionalist) XN, However steady che light provided by the material drawn on in the Notes may be, their application tothe isues of one's day is bound to be more changeable. Ie should not surprise the reader that various things I sid in the Text of this book more than a ‘quarter-century ago may be in need of reconsideration in the ight of changed circumstances. The is something for which the Prit chett review, if not several other reviews as well, provides i formed guidance. (All of the reviews of The Comsitutionalis that Thave are sampled in Part 7 ofits 2004 Addenda, 1 had been personally acquainted with one-third ofthe reviewers drawn on here, including thore who published the most severe critiques of ry book. I could hardly have been expected by such reviewers, ‘or by me, that all of Tbe Consttutionalise would be republished in its entirety Four decades after it was originally accepted for publication.) Critical here isthe question of what should be done with the Fourteenth Amendmest by the General Government in it cor rection of apparent abridgments by State Governments of free- ddom of speech or freeiom of the press. A major concern that I hha, in the Tex of this book thirty-three years ago, was to empha- size (especially in the troubled circumstances of the Cold War) the absolute restraint placed upon Congress by the First Amend- ment. That emphasis was dramatized and perhaps made more plausible for my readers by recalling the considerable flexibility thatthe States had originally had, so far as the Constitution andite Bill of Rights were concerned, in dealing with freedom of speech and of the press. Sul, Targue in The Consttwtionalie that Congeess (the prop- «rly dominant branch of the General Government) was expected to keep the States somewhat in line even with respect to these ‘matters. The much-neglected Republican Form of Government ‘Guaranty suggests the kindof concern that Congress should have. Te should also be noticed that if the General Government does conduct itself properly with respect co the freedom of political discourse in this country, then State Governments are far less apt to be effectively mischievous in subverting such discourse; State ‘Governments may even be encouraged thereby to respect the bills cof rights in their own State constitutions ‘There should be recalled here the suggestion T made to the United Seater Supreme Court in 1954-1955 and in 1960-1961, that if the Court believed that it should not interfere with a State's regulations of its ba, then an applicanc should (in circumstances such as mine) be considered eligible for possible admission to the ‘United States Supreme Court Bar without having fr to comply with the Courts usual rule chat one has to be a member, for cree years, of a State bar. (This suggestion war clled, by another Yale law professor, “an ingenious pestion.” (The Constitaionalis,p. 4$10)) My “direct admission” petition was another way of dealing with the Fourteenth Amendment “problem.” Thats, ifthe Court ‘wants to respect State prerogatives, it should also do whar it can to moderate the National consequences of any State repressve- nes, We have here, in effec, a particular instance of my overall argument thatthe General Government has the power, and per~ hhaps even the duty, to moderate what the States may do to the politcal freedom of American citizens. The Court dismissed my ‘novel proposal in footnote. (See The Consttnionalist, pp. 34— 35, 408-17.) Even #0, I do remain open to an invitation from the United Stater Supreme Court to join its bar. Such recognition could have a useful effect on aspiring lawyers. Be allthis a it may, I have developed, during the past decade and half, wo volumes of commentary on the Constitution that ‘we are bound by: The Conititution of 1787 and The Amendments, to the Comititution. These commentaries, along. with my Abra hham Lincoln study, include consideration of the importance of the Civil War for constitutional interpretations. Naturally ‘enough, there developed, even before the War, the insistence that the States should bess much obliged as the General Government to respect the longrestablished rights of the English-speaking peoples, (The dedication for my 1999 Lincoln book is, “To MY CHILDREN'S CHILDREN and to their children with the 1 minder that their patriotic forebears were among the brave men. [North and South who both counseled against and fought in the ‘American Civil Wu.” Sam Houston was among those who coun- selled agsinst Secession.) T do examine, especially in the Notes for The Constitationalist, the principles by which my argumencs in the Text of thie book ‘might well be judged and adjusted in ovr ever-changing circum- stances. The great alitions ofthe Westin which these principles are grounded, are chamselves examined, tested, and perhaps ret forced by considrirg the challenges posed by quite different ways of lif, especialy those ways which are examined in another bbook of mine, But Not Philosophy: Seven Introductions to Nom- Western Thought. Important ss the Constitution is, as our Law of laws, the fact tha i cam be amended recognizes a set of stan- dards—intimations of things both good and bad—that can permit tus to assess the Consitution itself I should not conclude my observations about the Fourteenth ‘Amendment without noticing tha it isthe long-neglected Privi- leges and Immunities Clause of the Fourteenth Amendment, not its often-mirused Dur Process Clause, which should be the focus fof attention for those who want to ree venerable rights respected by State Governments (Se, on the limite of judicial satetman- ship, ewo of my artides: "Bush v. Gore and a Proper Separation ‘of Powers" “On the Sometimes Salutary Illusions of Judicial Re- view." See, also, my discussions over the years ofthe ill-conceived cease of Ene Railroad Company v. Tompkins (1938}) go KT ‘The issues of our day include those that have shaped the # sponser by the United States to the monstrous assaults of Septem- ber 11, 2001, on New York and Washington. There has been, in ‘our responses, considerable unseemly fearfulness as well at 2 ‘waste of vast resource in “protecting” ourselves, I examine these matters in a rwo-husdred-page collection, September Eleventh: The ABC's of « Citiven’s Responses, published this year by thevit ‘erace To TH 3004 noxTION Oklahoma City University Law Review, anticipating my hoped for publication of it in book form. (This collection includes, in an appendix, much of the 1976 Final Report of the Governor's ‘Commission on Individual Liberty and Personal Privacy, State of linois, with which I served as Research Director.) ‘We can see in our “War on Terrorism” the revival of some of the limitations of our Cold War passions, especially as we not ‘unnaturally yearn for far more security than can ever be available for mortal beings. It should be noticed, however, that freedom of speech in this country remain largely unimpaired for most citi= zens at this time. But we do have some troubling abuses, such as the extended Bastile-ike detentions of suspected adversaries, that we did not have ducing the Cold War. (See The Constitutional, chapter 8, note 162.) However important sensible security mes- sures can be, our most reliable protection against “terrorism” is the nurturing worldwide of sound opinions about what ie just and ‘unjust, about what is ood and bad, and abour what is honorable and dishonorable. ‘We can also see, as an aspect of our “War on Terrorism,” the remarkable incompetence in our intervention in Iraq in 2003~ 2004. Ihave been reminded, by recent Bush Administration poli- es in the Middle East, ofthe chronic incompetence exhibited by the American State Department in its responses tothe even more incompetent Colonels who tried to rule Greece in 1967-1974. ‘One of the lamentable consequences of al this has been the vio- lent partition of Cyprar which has poisoned relations between Greece and Turkey fora generation. (A score of my reports about the Colonels’ regime was reprinted in the Congressional Record beeween 1969 and 1975.) The relaions between Greece and the United Seates, too, have been adversely affected ever since. "We can see ar well that that coarsening of language and of gen- ral sensibilities which had become evident by the 1970s has in recent years become even worse in this country, if not worldwide, ‘This observation is related tothe argument I make in The Const tutionaise thatthe First Amendment does not apply to all kinds ‘of expression, but primarily to that dicourse which is essential to four vital poltieal process, Among my Lost Cause, of relevance here, is that abolition of broadcast eleision, and expecially with respect to political matters, which T have advocated since 1972. PREIACE TO THE 3004 rO-TION vex (hat argument maybe found in among oter places my 1992 tollecion, The Ameren Morale less oo more died shee ‘ays woamicpatethelikely efecs of masse vchnolopal sce ‘ations, sch athe Invent on legismanecommmunigh rons ‘see and to regulate who is doing what to whom aed whee, Much of what I rgued decades age inthis bock and sectors, shouldbe recnadered nthe ligt of such inners) ‘And then there ce the conte uct eo Be comedic femtine ine Onis enn epee ine unt these days about dargerousimpicatongg ay offcd secce hion of “same-sex murgen”depening ches foreneth ‘cognition takes and on what preenly iis taken to mean Ieean teom rather odd, natn when obvious senal prowiscuty i Fhmpant among ws haeroctuals and when so many coment tnartages routinely end diver, that others among ts oo te vigorouly resid in therefore tp quite for themes the advancage (ar wells the dues anda Labilest) of "mer, tags” however fils thi tlaons oe Ukely tobe (Alle {in tide from wha various slgius communi, se ellos ce 2s at large, ae let rest regu a proper seal flan and {ali marriage) The porn wa minority among ut ‘would be more ueeet (and. eli) int relatos than ic is now if our haronene)tajonty bad oe Beco, fa ‘recent decades, 0 bla and hence wo generally coruptng i a frotcam. Ar mater row sand, a conviutona aerdmest Herc be expected to an ar much (ha ia ie) ental ect a balancedsbudget socdment or as an antifog deren fnendment (Eons woul stl have o be made to Porat see Ue Goancial snd ober rangement for wil domestic pastor ships, homosenul or herscrua) One an be reminded hereof ‘hell ofthe Prokibiton Amendment whieh not only cost sted tothe development of organized cme in de Unved Ses but, even worse, pve governmental promotion af moray «bal ‘sume In there a like maters, bos cusage and apathy shold Bercurape nds morn greet sal be naa "ven 2, religious fundamentals and militant homosexual + should atleast recognize that they do share these days, despite their sometimes bitter rivalry, a considerable expect for any part ership that can plausibly be called “marriage” In this they arenow apt to appear more “old-fashioned” than most of the rest of the community. In addition, exch of these factions may be some- what suicidal in how ie conducts itself with respect to these and like matters. That is, it can be instructive to figure out why the status of nature does seem to be, for each faction, an enduring problem, albeit in signficandly diferent ways, promoting iema- turity among some and superstition among others. ‘Whatever may be atempted, by constitutional amendment oF otherwise, to regulate the names applied tothe intimate, oxtensi- bly permanent, relations ofa somewhat sexual character that peo- ple venture to establish among themselves, itis widely accepted that lawlessness is on the rise among us. Such lawlessness seri- ‘ously limits what the community can reasonably be expected to do in regulating the language and personal conduct of citizens. Symptomatic of this lawlessness is how we have become accus: ‘omed to secing stop signs and red lights treated by motorists, My own personal campaign here—another Lost Cause in the smaking?—is to discourage eyelists from riding on sidewalls when there are pedestrians preset. (speak here at someone who bikes some fifty miles each week, when the weather permits) Why do some cyclists behave this way? The ones Ihave stopped explain to me that itis dangerous for them to ride inthe street! My rejoin ders fall on deaf ears, even when I suggest the shamelesenes of, their deliberately shifting the risk from themselves to unwary pe- destrians. A curious feature ofall thi is that am vireally alone in protesting this kind of thoughtless assault upon vulnerable pe- desrians ‘We can see, here ar cleewhere the self-centeredness that we are somehow promoting among ourecles. This kind of attitude is tometimes ratified at the highest levels of our community, as when a leading politician can explain, without any evident regret, that he had had “other priorities” than to serve in hie youth in 2 war that he was willing if not even eager to have others con scripted to fight. Ocher such illstratione readily come to mind, including that of a man who could parade asa “War President” ‘even though he had, in hir youth, evidently used family influence to avoid the risks of military combat. He proved a fitting sucees- tor to another President who refused to resign after having been 004 rorion i exposed as 2 reckless deceiver of = trusting public, once again placing thereby his personal interests hove those of his patty. Xv Vital to any serious consideration both of what consttutional- jam means and of when and how our rights should be insisted ‘upon is the problem of prudence, something I have made more and more of over the years. That i, itis not simply enough to be tented to rights. Ici vital that citizene should be influenced, by an informed public opinion if not directly by goveenment, in how they claim and use those rights. ‘A ease in point is provided, in some detail, in Section XII of Chapter 8 of The Constcwionalist, where there is recalled the drama of John Quiney Adame in the House of Representatives in the 1830s and 1840s. Should he have conducted himself as he did, fora decade, in opposing the questionable “gag-law” restrictions ‘upon the acceptance of abolitionists" petitions by the House? We «an se anticipated here the provocative challenges posed by John Brown (in 1859) and by others of like mind. Not unrelated to such an approach—whether itis Adams or Brown's may be ‘what Southern Secessonists attempted to doin 1860-1868. Hire, too, we should take care lest shallow notions abowt “rac- iam” be allowed to dominate our discourse, including our at- ‘tempts to figure out che proper efforts chat sill seem to be needed to develop and co us effective “affirmative action” programs in thie country. xvi have, in Section V ofthis Preface, noticed acknowledgments Ihave received because ofthe efforts I have made over the years, both as a human being and 26a citizen. (See Parte 7 and 8 of the 2004 Addenda for The Consttwionalist) should not treasure any of these more than one recently voiced by fellow teacher who recalled that I had bien, during the biter controversies of the ‘Vietnam War period his only academic opponent of our involve- ment in that war who listened with respect ro his defenses of Ad- ministration policies. This acknowledgment was anticipated by anobservation by Richard M. Weaver in the 1950s (The Constituc tionalist,p.336),""My own publications have often been attacked for their conservatism, but T must say that Mr. Anastaplo has shown a better and more sympathetic understanding of the point of view expressed in them than the vast majority of students I Such determined openness does seem to me to testify to our common humanity. One can recognize thereby one’s own limita tions. There is, that i, usually something to be said for “the other side” in any sustained controversy. One does not grasp one's own postion fully, or firmly, if one docs not attempt so discover what others” believe they se, Thave been fortunate to have had some of my own serious limitations dramatized for me by the Physics Colloguiven that 1 hhave attended for decades at the University of Chicago. There is usally very litle that I understand, week after weck, a leaders in their diverse scientific fields describe in the Colloquium the pioneering work they are doing, Consider in this connection, a as a reminder ofthe human- ity of that discourse (in all ts forms) which can help us begin to understand what is truly worth studying, the concluding para- sraphs ofa tribute I conteibuted toa book on the Nobel Laureate, Subrahmanyan Chandraselhar: Something... ofthe man, and of modern scence, i suggested by 2 conversation tat I had with Me. Chundrarekha inthe Physics Com ‘mon Room before a department clloguis in Apil 193, He remarked Upon the fact that I war sell atendig the weekly Colloquium Tre- sponded shat wa like my going regularly to Orchestra Yall le sug ested that I overestimated the mic | could hea at 2 Calloggium, Tis ‘that T understand much of what (hear at ether place, I explained, bt cannot help but admire the imagination, the competence nd the devotion T ean observe in both places and occasionally I do get glimpee ‘ofthe wonderful things on diapay, ll of which i quite instructive ae svellas edifying. Idi not nee to 24d what should be obvious to anyone ‘ho knows me there is much chat Ihave yer to learn shou both esc tnd physics. Then asked Mr. Chandrasekhar, “I hear you ae studying Newton these days Are you Finding him at intresting ax you had hoped he ‘would be?" He plied that somebody ele who had heard he wat ody ing Newton had recently asked him, "How do you feel?” And (Mr. Chandra coi) he ad sented“ mie mal fie the ofr he fn tie a ng + Boe Sa Set omhing fhe magna don we Chandi ed SEEN cecroraps ne ro mite hohe seat sta ae hogan wife oon raring komen ei el Genie powel te thee ti dx mend say Copa tli Sing weit cider of hr“ ie Sade wonony aly fhe Unisys fe ee Sci Ser ene tng oon ey ef orn Profesor Chris Se ase nie ea eo haere twa wl have speed othe oboe oe sect whe hha el (George Anastaplo, “Thursday Afternoons,” pp. 128-29, See, also, my review of a Chandrasekhar book on Newton. See, 36 well, The Constitationalist, pp. 806-08, and my essay, "The Forms of Our Knowing”) (OF some relevance here may be my 1974 speculations about something I have called the ulivon, (See The Artist as Thinker, pp. 252-53, 355.) My ultror invokes an absolute aspect of fundamen tal particles comparable perhaps to that absolute aspect of the movement of things asociated with the speed of light. We may even be moved to wonder how much of such absolutism helps make sense of freedom cf speech and ofthe press in Anglo-Amer. ican constiutional law. We are thus moved to return, in closing, to the Law, its implic tions and aspirations. A classmate recalled, a few years ago, hi est memory” of our law school classes at the University of (Chicago Law School John V. Long, ABA Journal, uly 2001): Trofesor “Afr everyone alive st the time «covenant is placed om lund in died and some current ownes isaes the covers wie «aces? Although the cls includes many nadens who later Became ‘Eigse inching Amer ln, Robert Bork aod Patsy Mia ‘onl one had is aised~ bya dent ho undl tht moment sppesed p00 "Mr. Anatapo,” who relies: “The lind cares." To which the distinguished scholar from Onford myn "Cort rect and gocs on with his eeture Af the end of ear there x crowd of students around Anastaple asking, “George, what dd you ty?" ‘There are several questions raised by our law school episode ‘of more than a half-century ago. The most trivial question is