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02/19/2011

The Textualist
Mike Rappaport

Robert C. Power (Widener University- School of Law) has posted The Textualist (Northwestern University Law Review, Vol. 84, 1990) on SSRN. Here is the abstract:

This essay reviews George Anastaplo's book The Constitution of 1787: A Commentary. Anastaplo is a follower of William Winslow Crosskey, the iconoclastic constitutional law professor at the University of Chicago in the middle part of the 1900's. Anastaplo revisits several of Crosskey's major theories - a unique version of textualism, unbridled commerce power, and a Supreme Court with the duty to make national common law (but no power of judicial review). Anastaplo's book takes a methodical approach through all of the provisions of the Constitution, including some often overlooked as excess verbiage, such as the Preamble. He also notes the organization of the list of congressional powers and draws conclusions about their meaning. He also concludes from the relative absence of language delegating executive power that the President has less power than is generally accepted today. The essay praises Anastaplo for rekindling interest in Crosskey's work and for encouraging contemporary constitutional scholars and interested laypersons to rethink what they learned as unquestioned truth in law school or civics class. In the end the essay rejects most of Anastaplo's conclusions about constitutional meaning for a variety of reasons, with emphasis on the failure of either originalism or textualism to provide a useful answers to the most important constitutional questions of our time.