Book Review: Anastaplo, G. (2005). The Constitutionalist: Notes on the First Amendment. Lanham, MD: Lexington Books. 826 pp., 79 pp. of prefaces and preliminary material

• DOI: 10.1177/0734016807300501
• Date: 01 June 2007
• Published date: 01 June 2007
• Author: Ed Buckner
• Subject Matter: Articles

Book Reviews

Anastaplo, G. (2005). The Constitutionalist:

Notes on the First Amendment. Lanham, MD:

Lexington Books. 826 pp., 79 pp. of prefaces and preliminary material.

DOI: 10.1177/0734016807300501

“On the Interplay of the First Amendment

with the Known Universe”

To dip into George Anastaplo’s masterpiece in search of a simple interpretation of how

the First Amendment affects a particular policy or controversy is somehow parallel to dip-

ping into James Joyce’s Finnegan’s Wake in search of an interesting plot: One will not suc-

ceed without investing more time and effort than one would think a few pages likely to

require, but persistence may be repaid handsomely. Anastaplo is just too richly educated to

gloss over complexity and provide a simple answer where there is none. As with Joyce, his

explanations go off in every direction, with allusions that seemingly connect everything to

everything, deepening a patient reader’s understanding as Anastaplo brings history, Greek

mythology, poetry, philosophy, and theories of justice to bear on every point and on nearly

every point that underlies the starting one. Anastaplo assumes an educated reader even while

he further educates his reader.

As an example, if a reader wanted to learn Anastaplo’s view on a writ of habeas corpus,

referring to the book’s index would lead to 30 different pages scattered throughout the long

book, some of them multiple-page entries. Because one of the few defects in the book is an

occasionally inaccurate index (some corrections are provided in 2004 addenda, but errors

persist), even the hours needed to search out all those references might not give that reader

an absolutely comprehensive answer. But he would learn nearly all there is to know about

habeas corpus, especially if he branched out to examine, for example, all 35 references to

the related “clear and present danger” test. Many of the index references are to notes, of

course, and if a reader studies with care all of those plus all the related notes (the notes to

this work make up nearly half the text), his knowledge would be deepened even further.

A reader interested in the relationship between the First Amendment and religious free-

dom, racism, political correctness, obscenity, the Alien and Sedition Act, Jefferson’s corre-

spondence with John Adams, the common law, or Aristotle could likewise enjoy Anastaplo’s

erudition as one might enjoy an encyclopedia. The time needed to follow up on all the cross-

references would be close to endless but rewarding.

Anastaplo can perhaps be best “stereotyped” as the kind of thinker who personally opposes

burning an American flag in political protest but who opposes a Constitutional amendment to

protect the flag even more vigorously. Flag desecration is one of the few First Amendment

issues not discussed in this book—in 1972, when the original edition was first published, test-

ing that aspect of free speech had not yet worked its way through the courts—but Anastaplo

did write on the subject later, in a Chicago Sun-Times newspaper article in September 1995

(entered into the Congressional Record thereafter by Paul Simon, U.S. senator from Illinois).

His reverence for and broad understanding of free speech and its protection as the most cru-

cial freedom led Anastaplo, unsurprisingly, to argue that the Constitution, especially the First

Amendment, deserves greater protection than the flag.

173

Criminal Justice Review

Volume 32 Number 2

June 2007 173-174

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