Our Embattled Constitution

Professor Emeritus of Government, Claremont McKenna College and Claremont Graduate School

-------------------------------------------------------------------------------- Harry V. Jaffa is professor emeritus of government at Claremont McKenna College and Claremont Graduate School and a distinguished fellow of the Claremont Institute. He received his B.A. from Yale in 1939 and holds a Ph.D. from the New School for Social Research. He is the author of numerous books on political philosophy and American politics, including Crisis of the House Divided: An Interpretation of the Lincoln-Douglas Debates; Equality and Liberty; The Conditions of Freedom; American Conservatism and the American Founding; and, most recently, A New Birth of Freedom: Abraham Lincoln and the Coming of the Civil War.

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William F. Buckley, Jr., once remarked that as hard as it is to disagree with Harry Jaffa, it’s even harder to agree with him. He was referring to Dr. Jaffa’s penchant for attacking his friends and allies within the conservative movement for their theoretical inconsistencies. Although many of Jaffa’s students, I among them, often wince when he spares liberals his ire and criticizes conservative heroes like Justices Rehnquist and Scalia – as in the following speech, delivered recently on the Hillsdale campus – we continue to find much to learn from what he says.

Dr. Jaffa is the leading scholar of Abraham Lincoln of our time, and his magisterial book, A New Birth of Freedom: Abraham Lincoln and the Coming of the Civil War (recently published in paperback by Rowman & Littlefield) is the culmination of over 50 years of intense study. The issue of the Civil War, as Jaffa demonstrates, was nothing less than whether America’s founding principles were true or false. That this issue remains so alive in our politics today explains why Jaffa is so unsparing with those of us who agree with him on the rightness of those principles, but come up short in understanding and defending them.

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The unique power of the Lincoln theme is suggested by the fact that it has occasioned more titles in the world’s libraries than any other name. For some time it has been one of the three most numerous – the other two being Jesus Christ and William Shakespeare. This is even more remarkable when one considers the comparative shortness of time since Lincoln’s life. It is also remarkable, in this light, that Allen Guelzo, in his 1999 book, Abraham Lincoln: Redeemer President, declared that my 1959 book, Crisis of the House Divided, was “incontestably the greatest Lincoln book of the century.” I hasten to point out that this is not a consensus view – but, as Thomas Aquinas would say, what is evident to the wise is not evident to all.

Whatever the rank of Crisis, it is now supplemented by its sequel, A New Birth of Freedom: Abraham Lincoln and the Coming of the Civil War. What is unique about both books, in the context of Lincoln literature, is that I have taken Lincoln’s teaching about the Declaration of Independence as Lincoln himself regarded it – as a standard, not merely for Lincoln’s time, but for all time. I have done this, not merely as agreeing with Lincoln, but as a matter of demonstrable philosophic truth.

When I began my work on the Lincoln-Douglas debates in 1946, there had never been an attempt to describe or analyze the arguments put forth in those debates. To the historians, they were merely links in the chain of causes that brought Lincoln to power. The scholarly consensus then was that the Civil War came about because unscrupulous politicians on both sides of the slavery issue, seeking political advantage, inflamed public opinion until compromise became impossible. Of all those who rode to power by exploiting the slavery question, the most prominent was Lincoln. He was regarded simply as the most successful of the unscrupulous.

Douglas, his opponent in the 1858 Illinois senatorial contest, tried vainly – it was said – to dampen the passions over slavery with his doctrine of popular sovereignty. By letting the people of each territory decide for themselves whether or not to have slavery among their domestic institutions, the slavery question would be confined to the territories and kept out of Congress. It would thus cease to agitate the nation as a whole. Douglas, by ignoring or denying the immorality of slavery, was seen as the more moral of the two! He was thus a model statesman, someone who would calm the turbulent waters.

This was the view of Lincoln dominant before the publication of Crisis of the House Divided. In 1946, the prevalent academic view of moral questions was that they were insoluble by reason. By considering slavery a question to be decided by self-interest rather than morality, Douglas was thought to be actually on the side of morality. By so doing, he made the uncompromisable compromisable. Lincoln, by insisting that the moral condemnation of slavery had to be the basis of all public policy concerning it, was held to be a herald of unreason, of passion and of war.

I believe I was the first to defend Lincoln on Lincoln’s own ground. I did so by taking the self-evident truths of the Declaration of Independence – as did Lincoln – as assertions of right reason, and not of opinion merely. And I have maintained with Lincoln that right reason, no less than Scripture, is the voice of God. According to Lincoln, those who would deny freedom to others could not, under a just God, long remain in possession of their own. When Lincoln said that as he would not be a slave, so he would not be a master, he was saying neither more nor less than Jesus when he said, “Whatsoever you would that others do unto you, do you unto them.” Prophecy was with us then. It is with us yet, if we would hear it.

Academic opinion on the rationality of morality has declined much further in the 40-plus years since I wrote Crisis. Campuses across the country are in the grip of something called political correctness. A main feature of political correctness is something called cultural relativism or diversity. Since we do not know what is right or wrong, we show our sophistication by patronizing indifferently the different concepts of right and wrong as they manifest themselves in different cultures or different ways of life. Unfortunately, some cultures celebrate (among other horrors too numerous to mention) human sacrifice, suttee, cannibalism and slavery. So political correctness arbitrarily rules out those cultures it does not like, and morality becomes a matter of what you like. Since reason is held to be impotent, it is replaced by passionate commitment, as it was in the Third Reich. Theoretical indifference thus mutates into blind partisanship.

We see the effects of this all around us. Perhaps it is most conspicuous in heterosexual and homosexual promiscuity and, in general, in the disintegration of the monogamous family. We see it as well in the rise of an environmental movement, which, like communism, claims the authority of spurious science as a means to despotic control of our lives.

But the bad news is not only from the campuses. Two of my books, Original Intent and the Framers of the Constitution and Storm Over the Constitution, record the complete alienation of conservative jurisprudence from the principles of the American founding and of Abraham Lincoln. The classic text in this regard is the following:

If such a [democratic] society adopts a constitution and incorporates in that constitution safeguards for individual liberty, these safeguards do indeed take on a generalized moral rightness or goodness. They assume a general social acceptance neither because of any intrinsic worth nor because of any unique origins in someone’s idea of natural justice, but instead simply because they have been incorporated in a constitution by a people.

The foregoing is from Chief Justice William Rehnquist’s celebrated essay on “The Notion of a Living Constitution.” The contemptuous reference to “someone’s idea of natural justice” is all the consideration he gives to the Constitution of Madison, Jefferson, Marshall and Lincoln! This reflects as well the dominant irrationality of the academic climate within which Lincoln historians (and American historians generally) have pursued their vocation.

Consider the implications of what the Chief Justice has asserted. If safeguards for individual liberty do not have “any intrinsic worth,” then neither does individual liberty, nor individual life. This is pure nihilism. The illusion of morality – and it is here regarded only as an illusion – has as its cause nothing but the will of the people who have adopted it.

Now, the Constitution of 1787, besides having safeguards of individual liberty, had safeguards of slavery. These were adopted by the same people at the same time, and hence on Chief Justice Rehnquist’s premises, these safeguards of slavery took on the same “generalized moral rightness or goodness” as the safeguards of liberty. This is also exactly the position of the seceding states in 1860 and 1861. By declaring slavery to be a moral wrong, the Republican Party, they contended, had violated the consensus by which the Constitution had been ratified and the Union formed. This was the position against which Lincoln had to contend.

How can a people – any people – adopt a constitution? It must be by some electoral process. In that electoral process, must there not be freedom of speech and of the press, and of the people peaceably to assemble? Must these rights not be recognized beforehand for the election to have any validity? Must it not be recognized, a priori, that the majority has no right to decide how the citizens may worship their God? Must it not be understood, a priori, that the majority may not enslave or expropriate the minority or drive them into exile?

The entire concept of legitimate majority rule is bounded on all sides by a priori conditions, within which alone majority rule may be legitimized. The sum of all these conditions is embodied in what the Founders understood to be the social contract, by which majority rule is authorized. Consent is given thereby, not to the powers of government, but to the just powers of government. This also is Lincoln’s teaching. On the other hand, Chief Justice Rehnquist’s idea of unbounded popular will is perfectly consistent with the plebiscite, which has been the instrument of “legitimacy” for tyrants from Napoleon to Hitler and Stalin.

Justice Antonin Scalia, following Chief Justice Rehnquist, declares, “The whole theory of democracy . . . is that the majority rules; that is the whole theory of it. You protect minorities only because the majority determines that there are certain minority positions that deserve protection.” But what if the majority does not elect to protect minority positions? Or what if some minorities are protected but not others? In 1857, the Supreme Court, speaking through Chief Justice Roger Taney, declared that majority opinion at the time of the ratification of the Constitution held that black men and women were “so far inferior that they had no rights which white men were bound to respect,” and that they might be reduced to slavery for their own benefit. The proposition “that all men are created equal” was not, he falsely asserted, understood to include black human beings.

Now, Chief Justice Taney was wrong about opinion at the time of the founding. But it was certainly true, on the eve of the Civil War, that white majorities in most, if not all, of the slave states believed in the inferiority of Negroes, and did not believe that Negroes, whether free or slave, were entitled to constitutional protection for their lives, liberties or property. And it is precisely this point of view – whether he knows it or not – that Justice Scalia endorses, when he says that in a democracy, minorities depend upon the majority for their rights. Consider also how this view of minority rights would today justify the “ethnic cleansing” with which whole peoples are obsessed in the Balkans, in Africa, and in Asia. And let us not forget the role of “know-nothingism” in our own history.

The struggle over the Constitution today is between those who believe in a “living Constitution” and those who profess their allegiance to a jurisprudence of original intent. The former think the original Constitution to be a mere legacy of a reactionary past, featuring slavery, the subjection of women, capital punishment, and economic and social inequality. Their constitution is one in which a wise Supreme Court can order wise constitutional remedies for an endless list of alleged wrongs. Since there is no limit to what may be alleged to be wrong, there is no limit to what may be a constitutional remedy. This is unlimited government by a judicial oligarchy, a virtual negation of everything the Founders believed. In substance, the jurists of this “living Constitution” have seceded from the Union of the Founders, as completely as did the slave states that formed the Confederacy in 1861.

We can save the Constitution only by restoring to it a genuine jurisprudence of original intent. This can only be done, as Lincoln did it, by distinguishing the principles of the Constitution of 1787 from the compromises of the Constitution. Lincoln believed that safeguards of individual liberty were indeed possessed of intrinsic worth. They were possessed of intrinsic worth because each individual was endowed by his Creator with unalienable rights. Without question these principles condemned slavery. But slavery was deeply intertwined with the roots of colonial society and could not quickly or easily be extirpated. Slavery was perhaps the oldest institution of human society next to the family. No attempt was ever made to abolish it in the ancient world, notwithstanding the importance of individual liberty to the greatest of the Greeks and Romans. The compromises with slavery in the Constitution of 1787 were means necessary for the ratification of the Constitution. And the ratification of the Constitution, even with its compromises, was morally justified, because every alternative to the Constitution would have been far more favorable to slavery. We must remember that the Founding Fathers, like ourselves and every generation of mankind, were born into a world they did not make. Yet no generation did more to remake for the better the world they inherited. However impatiently and unhistorically we look upon our past, the fourscore and seven years that separate the Declaration of Independence from the Gettysburg Address, seen in the light of all human history, is a remarkably short time in which to have accomplished the great work of emancipation.

Today, nearly every good thing that we enjoy, and nearly every good thing that the world enjoys because of us, we owe to the principles enshrined in our founding. It is shameful that, at the very moment in which the work of our Founders is displaying its greatest success, we witness the abandonment of their principles. Nowhere is the genesis of this intellectual and moral breakdown more visible than in the scholarly writing on Abraham Lincoln. The logic of Lincoln’s commitment to the principles of the Declaration of Independence has, however, never been refuted. It has rather been ignored, and that ignorance treated as if it were a refutation. Our opponents are tied by interests that they cannot admit to arguments that they cannot defend. And the alienation of conservatives is not less than that of liberals. The struggle for truth will be hard. The end of this deadly ignorance and alienation is not at hand. This is not the beginning of the end. It is not even the end of the beginning. But the battle is joined.

I found this to be a very illuminating article for a discussion of "original intent" versus "living Constitution". My favorite passage in his essay was "...I have maintained with Lincoln that right reason, no less than Scripture, is the voice of God. According to Lincoln, those who would deny freedom to others could not, under a just God, long remain in possession of their own." The moral foundation of the Constitution and Declaration of Independence exists independently from our experience. We can apprehend the truth of the principles of freedom enshrined in the Constitution merely by reflecting upon their content.

the interesting point is that conservatives have failed in creating a strongly theoretically grounded alternative to liberal activists. we have relied almost solely on the positivistic jurisprudence of rehnquist.

no doubt rehnquist is infintely to be preferred to liberal activism.

but a deeply grounded "conservative" (ie, an anti-liberal, anti-activist jurisprudence) would get us much further down the road.

"We can apprehend the truth of the principles of freedom enshrined in the Constitution merely by reflecting upon their content."

of course, isn't this precisely what Burke argued against in the french revolution, ie, apprehending what rights men ought to have by pure reason rather than by reflecting on real men in real time and space?

just posing the question.

One historical point that the author does not mention is also that in 1787, slavery was not very widespread and it appeared that slavery in the US might disappear on its own. At this time, slaves were used on tobacco, indigo and rice plantations, but there was thought that it would be more economical to use paid laborers. It was only after the development of the cotton gin that slavery really became widespread. It is a possibility that the founders really believed that slavery would end on its own, so they didn't take steps to end it in order to gain support from the wealthy and influential southerners who did own slaves at that time. In any case, I don't think that the protection of slavery had the same status in the Founder's minds as, for example, freedom of religion or freedom of speech or any of the other principals in the Constitution.

How can a people – any people – adopt a constitution? It must be by some electoral process. In that electoral process, must there not be freedom of speech and of the press, and of the people peaceably to assemble? Must these rights not be recognized beforehand for the election to have any validity?

This bothers me. "Some electoral process" is terribly vague, and I don't recall the people of the United States every being allowed to vote on the Constitution.

First, the Constitution WAS submitted to popular will by the mechanism of having ratifying conventions elected in every state to decide the issue of whether the Constitution would be accepted.

That was a dangerous gamble by the Framers, as events proved. New York and Virginia, either of which would have caused the Union to fail, ratified by seven or less votes in their conventions. North Carolina refused to act until after a Bill of Rights had not been drafted. And Rhode Island utterly refused to act at all, until 1781.

On the question of the Professor's attack on Scalia, I have read just about every word that Justice Scalia has written on the Court. I think he and the Professor are on the same page, nor opposite pages, on the subject of original intent. Both agree with that conclusion, though they come to that conclusion by slightly different means. It's a tempest in a teapot, in other words.

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I'm surprised that such a scholar as Mr. Joffa would omit addressing the constitutional path that Lincoln could have chosen - that of compensated emancipation, as founding father James Madison would have wished it:

http://press-pubs.uchicago.edu/founders/documents/v1ch15s65.html

"Without the concurrence of the Master, the benefit will be very limited as it relates to the Negroes; and essentially defective, as it relates to the U. States; and the concurrence of Masters, must, for the most part, be obtained by purchase."

"They are too just to wish that a partial sacrifice shd. be made for the general good; and too well aware that whatever may be the intrinsic character of that description of property, it is one known to the constitution, and, as such could not be constitutionally taken away without just compensation." - James Madison - 15 June 1819, in a letter to Robert Evans

It is in fact impossible to agree with Harry on this subject.

This little assertion, also is impossible to agree with:

"The logic of Lincoln’s commitment to the principles of the Declaration of Independence has, however, never been refuted",

because four score and seven years before Gettysburg, our Fathers signed the Declaration of Independence, which, besides stating that no man has superior divine rights over another, established the equally moral principle of State Independence, later more commonly referred to as "states' rights". To Wit: "These united colonies are, and of right ought to be free and independent States... as free and independent states, they have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do.

They weren't so free and independent, to Mr. Lincoln.

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