The Declaration as the Constitution
Conservatives today are generally devoted to the scheme of constitutional interpretation known as “original intent jurisprudence.” As first defined by James Madison in the Federalist, and later exposited by such men as John C. Calhoun and Robert Bork, a jurisprudence of original intent is one which seeks the meaning of a given statute or constitutional position in the understanding of that provision held by those who ratified it at the time they ratified it.
Harry V. Jaffa’s latest work, Original Intent and the Framers of the Constitution: A Disputed Question, states the author’s case against original intent, understood thus. For Jaffa, as readers of his previous works are well aware, what matters is not what the sovereign people, as represented in a ratifying body or a legislature, understood a legal provision to mean at the time they enacted it, but how that provision squares with the Declaration of Independence.
In the most common understanding of American constitutionalism, the American nation was not born in July of 1776, thirteen “free and independent states” were. Thus, the Declaration of Independence was not in any way a founding document; it was, to use the legal phrase, a bill of particulars against King George III and, so far as independence goes, an ordinance of secession. The story continues that the thirteen states (a word which, up to that time, had always connoted independence) were made aware of their interdependence by their common military effort, which led them in 1787 to establish “a more perfect union” (if still not a perfect—that is, complete union).
Jaffa disapproves of that account, saying that it reveals a certain moral relativism. Such statesmen as have endorsed it, such as Chief Justices Taney and Rehnquist and John C. Calhoun, he accuses, at different times, of moral relativism, nihilism, and worse.
Original Intent and the Framers of the Constitution: A Disputed Question is not wholly the product of Harry V. Jaffa’s pen. Rather, it had its genesis in a series of articles written by Jaffa, beginning with one published in the Puget Sound Law Review some years ago. Interspersed among Jaffa’s contributions to the book are responses from three other writers, which also appeared originally in similar places. The most unfortunate aspect of the book is that none of these is from Jaffa’s foremost antagonist, the late M. E. Bradford.
Jaffa’s argument is that the Constitution has its “principles” and its “compromises”: those provisions he finds consistent with the second sentence of the Declaration of Independence are “principles,” and those he considers inconsistent with it are “compromises.” This he knows to be true, he says, because James Madison and Thomas Jefferson, long after the two of them had retired from public life, agreed that the Declaration, in its chief author’s words, had captured the “American mind.”
Several answers to this are possible: first, that Madison was being kind to his egotistical, older friend in a private exchange which neither of them expected to have any public impact; second, that Congress had not considered the Declaration to be a founding document when it was drafted (else John Adams, not Jefferson, would have been its main author); third, that no one ever ratified the Declaration, so by what rationale can it be held superior to the Constitution?
Jaffa’s answer to this last question is that the Union war effort in 1861–1865 was based on that notion, and the Confederates had no right to complain, for they were fighting against the idea of government by the consent of the governed, anyway. It is fortunate for Jaffa that George III, whose seceding colonies were all “slave” colonies, did not think of that argument in 1776, else where would Jaffa be? Of course, his argument on this point is simply fatuous.
That is the principal weakness of this book, the reason for its ahistoricity. The equation of Jefferson and Madison with “the Founders” is necessary to bootstrap the Declaration above the Constitution, “equality” above consent, Lincoln above the people as ratifiers. When Jaffa says none of the Founders disagreed with his notion, one may rightly ask, what of Patrick Henry’s objection to the Constitution’s reference to “We, the People”? If the states had already been in a union (by which Jaffa means a nation), what can have been the nature of Henry’s objection?
The answer is that the states were, before the ratification of the Constitution, thirteen “free and independent states,” a fact that Madison, as Publius, recognized when he said ratification was a federal, not a national, act. The Publius letters, later collected in the Federalist, unlike Madison’s and Jefferson’s private correspondence after their retirement from office, may be taken to have had some effect on the ratifiers’ understanding of what they were doing in 1787, yet Jaffa strangely ignores this statement, as he does Publius’ statement that the Constitution must always be read in light of the ratifiers’ understanding. His motive for ignoring these passages is simple: he cannot possibly point to a time when South Carolina or Georgia (at least) consented to the notion that black people are equal to white, which means that the ratifiers never consented to put the Declaration before the Constitution, which shoots down the entire project of a Lincoln apotheosis.
Jaffa is often unfair to his opponents. Readers familiar with his work will know that he has sometimes seemed to endorse the Supreme Court’s decision in Griswold v. Connecticut. In Griswold, the Supreme Court ignored the Tenth Amendment’s command that powers not delegated to the federal government be left to the States (much as Jaffa and his fellows ignore that provision here). The refusal of such as Justice Rehnquist and Judge Bork to go along with this usurpation, Jaffa derides as lack of “principle.”
Judicial “principle,” like “principles” of the Constitution, seems to mean in Jaffa’s language principle or principles with which he agrees. Thus, Lincoln was “principled” because he eliminated slavery, never mind the means; Taney was “unprincipled” because he held protection of slave property an aim of the Constitution (which the performance of Major Butler and the other South Carolinians in Philadelphia and thereafter would seem to bear out), never mind that it was; Rehnquist and Bork are “unprincipled” because they prefer to defer to the elected branches, never mind that that is the essence of republicanism. Harry V. Jaffa would replace Brennanism, a constant search for the latest liberal ideal, with more of what ails the American political system: government by judiciary.
Kevin Gutzman was, at the time of writing, a graduate student in American history at the University of Virginia.
Posted: August 19, 2012 in Best of the Bookman.
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