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Reflections on Life, Death, and the Constitution$

George Anastaplo

Print publication date: 2009

Print ISBN-13: 9780813125336

Published to Kentucky Scholarship Online: September 2011

DOI: 10.5810/kentucky/9780813125336.001.0001

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(p.ix) Preface

(p.ix) Preface

Reflections on Life, Death, and the Constitution
University Press of Kentucky

I strove with none, for none was worth my strife:

   Nature I loved, and, next to Nature, Art:

I warmed both hands before the fire of Life;

   It sinks; and I am ready to depart.

—Walter Savage Landor, Dying Speech of

the Old Philosopher (1849)

The Essays in this volume draw on my half-century of Great Books seminars in the Basic Program of Liberal Education for Adults at the University of Chicago and on my quarter-century of Constitutional Law and Jurisprudence courses in the School of Law at Loyola University Chicago. This volume of constitutional sonnets includes suggestions (1) about texts that illuminate enduring issues with respect to mortality and the law, (2) about United States Supreme Court cases that attempt to deal with such matters, and (3) about how life-and-death issues might well be regarded by us. Both public policy and constitutional questions are dealt with in the light of principles that draw upon long-familiar notions about life, death, religion, liberty, natural right/natural law, nature, chance, morality, and the common good. An effort is made thereby to suggest—to legislators, judges, and other citizens interested in the principles and practices of the Constitution—how to think further about the matters examined in these Essays.

The Essays developed here begin with reminders of what is said elsewhere (in space and in time) about the matters critical for understanding the life-and-death issues addressed in American constitutional law. The first half of Part One mostly recalls the ways that such issues were addressed by gifted authors prior to the emergence of the United States.

After the Declaration of Independence and the Constitution are drawn on in this context, there is a series of examinations of the modern efforts to reconcile the attractions of individualism with the demands of (p.x) citizenship. Particularly relevant here are the measures considered necessary for the waging of war today.

Part Two of this volume discusses cases in which parties are even more influenced by religious doctrine than may be seen in the cases considered in Part One. Some of the matters touched upon here are considered even further in the projected fifth volume of this series of constitutional sonnets, Reflections on Religion, the Divine, and the Constitution.

Life-and-death matters are considered further in the second half of Part Two of this book, leading to a reconsideration of the underlying issues addressed in the opening Essays of Part One. The concluding Essays return to matters developed in the projected fourth volume of this series of constitutional sonnets, Reflections on Slavery and the Constitution. (My Reflections on Freedom of Speech and the First Amendment listed, on page xiv, the then-remaining volumes of a hoped-for ten-volume series. The three volumes already prepared for publication in this series have benefitted significantly from the informed and meticulous copy editing of Derik Shelor. All of my work in recent years has benefitted as well from the considerable research assistance provided by Charles Fisher and Wendy Wermerskirchen of the Loyola University of Chicago School of Law Library.)

It is intended in my Reflections volumes to suggest, again and again, the enduring questions that bear upon how various cases, many of them well known, can be usefully reconsidered. It is hoped that a wide enough range of cases is presented in these volumes to permit the student of law to think usefully about the many other important cases that cannot be discussed here. The student of law also has available several generous reviews of my Reflections on Constitutional Law (Milner S. Ball in the Journal of Legal Education, Philip A. Dynia in the Law and Politics Book Review, and Shawn G. Nevers in the Law Library Journal) and of my Reflections on Freedom of Speech and the First Amendment (Ira L. Strauber in the Law and Politics Book Review). Also generous are the reviews of both books by Joseph Goodman (The Federal Lawyer). Even though Howard Schweber’s review of Reflections on Constitutional Law (in The Review of Politics) can identify it as “alternatively delightful and infuriating,” he (in his criticisms) does quote or paraphrase enough from my book to permit the thoughtful reader to work out for himself (especially after consulting the six other book reviews acknowledged here) the limitations of the conventional approach to these matters depended on by this reviewer.

(p.xi) Abortion-related issues continue to divide Americans, and understandably so. The volatility of and interest in this subject are reflected in a front-page headline in the January 17, 2008, Chicago Tribune:

Abortions at 30-year low

Illinois sees large drop: 19% in five years

Such fluctuations can be expected to continue, especially as contraception and abortion-inducing medications come to be used in such a way as to leave it uncertain as to how things really stand among us with unwanted pregnancies and their deliberate termination. (A Steve Chapman column in the Chicago Tribune of January 20, 2008, addressed these issues.) Much of the debate here, for three decades now in this Country, turns around the issue of precisely what is being killed (once there is a conception) and the issue of when any killing may properly be done, by whom, and how. We can be reminded, here as elsewhere, of the significance of the law in the regulation of both living and dying. Killing on a much larger scale, and clearly of human beings, may be seen as well in the systematic destruction (by aerial bombardment and otherwise) of civilian populations in times of conflict. Obliteration bombing itself is discussed in Essay Twelve of Part One of this volume.

The perhaps unprecedented campaigns by the Nazis during the Second World War against Jews, Gypsies, and others, as well as the depredations of the Stalinists, have long been notorious. It is suggested, in some detail, in the materials drawn on in Appendix I of this volume, how much such atrocities depend for their “effectiveness” on the victims’ law-abidingness and on the general “reliability” of everyone involved in such dreadful programs. Respect for the law did come to be undermined.

The atrocities in Lithuania and in Dachau chronicled in the accounts excerpted in Appendix I of this volume are grim samples of what was happening in much of Europe between 1939 and 1945. (Perhaps the most ferocious version of such crimes against humanity is what the Pol Pot regime did in Cambodia a generation ago.) Particularly telling is an observation by the Holocaust survivor drawn on in Appendix I of this volume, upon encountering respectable gentiles who could see the dreadful plight of their Jewish acquaintances: “That’s what bothers me more than anything—that they did not have any pity for us.”

We can, in assessing the worldwide responses to such revelations, be (p.xii) reminded of the reliance placed in 1776 by the Declaration of Independence (Appendix A of this volume) upon the judgment of civilized opinion everywhere. It was recognized, or at least hoped, thereby that there are enduring standards—of right and wrong, of good and evil, and hence of better and worse—that it is prudent to expect civilized peoples everywhere to insist upon, and for this we can be grateful.

—George Anastaplo

Hyde Park

Chicago, Illinois

May 2, 2009