Thursday, October 20

WHAT IS MEANT BY AN ORIGINALIST?

My friend Frank Laughter writes in this post (and I wonder if he has me in mind, given my admitted preoccupation with "Roe v. Wade" in the context of President Bush's nomination of Harriet Miers):

I’m afraid some of my friends on the Right have fallen into a trap. I’m hearing rumblings of, “will she or won’t she?” But it’s comforting to find other conservatives that agree with my belief that a blind surge to define SCOTUS nominees as pro- or con-abortion is not a good plan. Roe v. Wade per se must not be the debate. For the long term, the arguments must go to the root of the evil, which is radical judges that have botched the interpretation of the Constitution.


Eminent political scientist and noted Lincoln scholar, Harry V. Jaffa, argues that an "originalist" cannot properly interpret the U.S. Constitution without first properly interpreting its antecedent Founding document -- the "Declaration of Independence" -- and acknowledging the inseperable linkage between the two.

Professor Jaffa, in a "Letter To The Editor" sent to the "Wall Street Journal" in response to its publication yesterday of Robert Bork's Op-Ed piece, "Slouching Towards Miers," wrote:

To the Editor of the Wall Street Journal:

In “Slouching Toward Miers” Judge Robert Bork has made a persuasive case against that nomination. The heart of his objections is that “She cannot be expected to endorse originalism…” “For the past 20 years,” Judge Bork writes, “conservatives have been articulating the philosophy of originalism, the only approach that can make judicial review democratically legitimate. Originalism simply means that the judge must discern… the principles the ratifiers understood themselves to be enacting.” This leaves open however the question of what are the aforesaid principles. Judge Bork has placed himself at the forefront of those who refuse any constitutional status to the Declaration of Independence. Yet it is the principles of the Declaration alone that make the original Constitution morally defensible.

In 1987 Justice Thurgood Marshall refused to celebrate the bicentennial of the Constitution because, he said, it was a racist document that enshrined slavery. Quoting Justice Taney in Dred Scott (1857) he said that the original Constitution regarded black people “as so far inferior that they had no rights that white people were bound to respect.” It is this view of the Constitution that has justified liberals, in their own minds, in rewriting the Constitution to conform to their own opinions of what it ought to be.

Judge Bork, in his book The Tempting of America says that judicial activism entered constitutional jurisprudence in Taney’s opinion in Dred Scott in the form of “substantive due process”. Taney had, he said, invented a right to own slaves that was “nowhere in the Constitution.” How anyone can read the original Constitution, and not see the guarantees to slavery therein, is beyond comprehension. Article I, Sect. 2, provides that the numbers for representatives shall be computed by “adding to the whole number of free persons…three fifths of all other persons.” On the eve of the Civil War, the 4 million slaves added 2.8 million to the numbers in the slave states represented to the House and Electoral College. Article I, Sect. 9, provides that the importation of slaves from Africa cannot be prohibited for a period of 20 years. Article IV, Sect, 2, provides that fugitive slaves “shall be delivered up” to their owners. This clause, which obligated the federal government to provide for the capture and return of runaway slaves, was the most massive of the guarantees of slavery. Without it slavery could not have long survived. Bork reads the Constitution as if the foregoing provisions are not there. Like the liberals, he invents his own Constitution, while denouncing them for doing the same.

The original Constitution can be defended by taking into account that it could not have been ratified without the concessions to slavery. Had the Constitution not been ratified, the position of slavery would have been far stronger. The Constitution created a government powerful enough to deal with slavery, when the crisis came. But the text of the Constitution does not distinguish the safeguards of liberty from the safeguards of slavery. This distinction must be made on the basis asserted in the Republican Party platform of 1860—upon which Abraham Lincoln was elected—“That the maintenance of the principles promulgated in the Declaration of Independence and embodied in the Constitution…is essential to the preservation of our Republican institutions…” A jurisprudence of original intent is possible only if the distinction is made between the principles of the Constitution and the compromises of the Constitution. This distinction can only be made only if one understands, as the framers did understand, that the principles of the Declaration are “embodied in the Constitution.” This is the only basis upon which there can be a genuine jurisprudence of original intent. It is this that Judge Bork and the other so called originalists refuse to admit. Yet it is this that stultifies and nullifies the political influence that they so passionately seek.

Harry V. Jaffa*
The Claremont Institute
Claremont, California
October 19, 2005


As Ken Masugi of the prestigious Claremont Institute explains in his concise analysis of Dr. Jaffa's letter to the WSJ:

Then there’s Harry V. Jaffa’s view. No fan of Miers, he argues, as he had before, that Bork’s notion of original intent jurisprudence is useless without the Declaration of Independence as its basis. I paste his letter to the WSJ below. His criticism of Rehnquist and Scalia is here. In sum, Jaffa argues that the legal positivist view of the Constitution omits its moral basis in the Declaration. For conservatives to argue that a judge must separate his conscience, morality, and thus his political views from judging is not only an impossibility but an invitation to grotesque hypocrisy. It is at odds, ultimately, with the notion that we are governed by consent.


As Jaffa has previously written in assailing "moral relativism":

Such moral relativism dominates political thought in our time far more profoundly than when Douglas and Lincoln had their debates. And this moral relativism, now even more than then, takes the form of a rejection of the principles of the Declaration of Independence. This is not because it is the Declaration alone that embodies moral realism and moral rationalism. Indeed, the principles of the Declaration are expressed in many other places, in the Revolution, and in the Founding generally. The "laws of nature and of nature's God" in the Declaration represent, however, a distillation of the wisdom of a tradition of more than two thousand years.

They — and the American Founding generally — represent the culmination of the attempt by Socrates, described by Cicero, to bring philosophy down from the heavens. They also represent the agreement of reason and revelation — of Athens and Jerusalem — on the moral ground of human government.


As Jaffa posits:

The Declaration is today the first of the Organic Laws of the United States in the United States Code. All acts and deeds of the United States since 1776, including the original Constitution, have been dated from its signing. According to a joint statement of Madison and Jefferson in 1825, the Declaration is not only the act of separation of the thirteen colonies from Great Britain but "the act of Union" by which the thirteen became one.

And as he concludes profoundly:

In the House Divided speech, and in the ensuing debates with Douglas, Lincoln transformed the Founding itself from an event in time into an eternal idea. In the event, Lincoln compelled the American people to understand that no one deserved freedom for himself who would deny it to another.

And therein you'll find my issue with Roe v. Wade and abortion-on-demand, namely that the United States Supreme Court majority in 1973 excluded from its considerations in arriving at its abominable pro-choice ruling the truths of the Founding -- as Harry Jaffa has written, those eternal truths "discerned in human nature by human reason grounded in 'self-evident truths."'

As Jaffa cautions us:

For Lincoln as for Jefferson — and, I need hardly add, for Pope John Paul — the great principles of right and wrong must govern the people, for the people to be able to govern themselves. No majority, however great, can authorize what is intrinsically immoral.

Abortion, when the mother's health is not directly threatened by the continuation of her pregnancy, is in my view unalterably immoral and contrary to the laws of nature and of nature's God. And that is why, as a right-of-center conservative and traditionalist, I have no compunction whatsoever about applying a right-to-life litmus test to any SCOTUS nominee.

Just as slavery was an abomination -- an appalling political compromise embraced in our country's Constitution -- so too are 48+ million dead, codied in a reprehensible SCOTUS' decision that must be reversed if our country is ever to return to its moral underpinnings and the roots of its Founding in nature's law.