Graglia's quarrel with God.

Response

Harry Jaffa

PROFESSOR Graglia denounces my critiques of Judge Robert Bork and Chief Justice William Rehnquist because, as a "hard-core political conservative" I should not have called into question the authority of these high priests of judicial conservatism.

I do believe the quest for consensus in a major political party justifies many concessions for the sake of larger goals. I supported Judge Bork's nomination and contributed money to his cause. Even today I believe he would have made a better Justice than Kennedy, Souter, or O'Connor. But Rehnquist and Bork have identified themselves with a jurisprudence of original intent. I share with them the conviction that only such a jurisprudence can counteract the liberal judicial activism that like a cancer is eating away the substance of our Constitution. I have, however, proved -- beyond I think a reasonable doubt -- that what they call original intent is not that of those who framed and ratified the Constitution. They identify original intent -- as does Graglia -- with a legal positivism that is completely alien to the thought of the founding generation.

While I may agree with what Bork or Rehnquist says (or decides) concerning particular cases, I do not believe that legal positivism, grounded in moral relativism and philosophical nihilism, can effectively counteract that very same legal positivism when it appears in the form of liberal judicial activism. Alienation from the genuine principles of the American Founding, whether by those calling themselves conservatives or by those calling themselves liberals, can undermine fatally, not only constitutional law, but the loyalty and conviction of the citizens themselves, upon which everything else depends.

The core of Graglia's disagreement with me concerns the status of the principles of the Declaration of Independence in their relationship to the Constitution. These are the principles of the natural law, as the founding generation understood them. Graglia describes the Declaration as "a lengthy indictment of King George III." Actually, in this indictment nearly every element of American constitutionalism is presented, in the denunciation of its violation: e.g., rendering "the Military independent of and superior to the Civil Power," "depriving us, in many cases, of the Benefits of Trial by Jury," "imposing Taxes on us without Consent," etc. The Declaration is a very textbook of constitutionalism. Graglia should read it some time.

Graglia reserves his greatest derision for my statement that "the goodness of the Constitution is rooted in the goodness of the created universe." Nothing is more revealing than his doubt "whether 'goodness' and perhaps even 'created' are words that can properly be applied to the universe." Let me introduce him to the first chapter of Genesis, which begins, "In the beginning God created the heavens and the earth," and ends, "And God saw everything that he had made, and behold, it was very good." For most of us, "goodness" and "created" are understood primarily and essentially, as well as properly, as applied to the universe. For most of us, all other meanings of "goodness" and "created" are derivative from this. Within the context of Western civilization, and certainly of American civilization, the meaning of these words is drawn from the Bible.

The very first sentence of the Declaration of Independence appeals to "the laws of nature and of nature's God" as justification of our separation from Great Britain. Everything that follows is an elucidation of what is meant by this appeal. The violations charged to the British Crown and Parliament are violations not merely of positive law, but of those provisions of positive law that were regarded as implementations of the natural law. In the Summary View of the Rights of British America of 1774 -- whose composition led to his selection by the Continental Congress as draftsman of the Declaration of Independence -- Jefferson told the King that the colonists "shall [not] be taxed by any power on earth, but our own. The God who gave us life, gave us liberty at the same time: the hand of force may destroy, but cannot disjoin them." Certainly no more unconditional commitment to the idea of a non-arbitrary standard of political right is imaginable, a standard in nature to which positive law is subject.

GRAGLIA declares that my "call for judging on the basis of 'the laws of nature and of nature's God' is obviously an invitation to participate, not in policy analysis or constitutional interpretation, but in theological or philosophical speculation."

But let us consider what is implied in knowing the laws of nature. I will here present a simplified course in Aristotle. Let us call it "Aristotle for lawyers."

All human rationality derives from the common noun. "Dog" is a common noun. "Fido" is a proper noun. When we say "Fido" we mean a dog of that name. But Fido is identified as a dog before he is identified as Fido. It is the common noun that is the foundation of all thinking. It is a universal, abstracted from the particulars of sensible reality. If I say, "This is a chair," I am saying, by necessary implication, that there are an infinite number of possible chairs, each different from this one. Since it refers to any possible chair, the common noun "chair" can itself have no color, form, or size. If we imagine a chair having any sensible attribute, then we are imagining a particular chair.

The great proposition that all men are created equal rests upon the same metaphysical foundation as any common noun. For the same reason that the idea of the chair can have no color, the idea of man can have no color. This is the ultimate source of the doctrine that the Constitution is, or of right ought to be, color blind.

Other creatures than man -- such as bees and ants -- live a communal life, in which there are complex divisions of labor and elaborate relationships of ruling and being ruled. The queen bee is not elected, but is marked out by nature to perform the functions that she does perform. And the distinction between worker and drone is also marked by nature. There can be no justice or injustice in the allocation of work and food within the bee hive.

It is the teaching of the Declaration of Independence -- which Graglia thinks is a mere effusion of religious mysticism -- that there is no such distinction between man and man as there is between bees. Nature does not mark out who is to rule, and who is to be ruled.

Shortly before his death, Jefferson wrote an address for a celebration of the fiftieth anniversary of the Glorious Fourth, in which he expressed the doctrine of the Declaration as the "palpable truth, that the mass of mankind has not been born with saddles on their backs, nor a favored few, booted and spurred, ready to ride them . . ." No more succinct summary is possible of how the American Revolution broke with the ancien regime of modern Europe, as well as of the ancient world. It is not therefore mysticism, but the voice of reason itself that says the law of nature and of nature's God is on the side of equal rights, self-government, and the rule of law.

Because no man has a natural right to rule another, constitutional government is a system of majority rule and minority rights. In Jefferson's words, "the minority has equal rights, which equal laws must protect, and to violate which would be oppression." There is no lawful power in the majority to do anything that would jeopardize the lawful rights of the minority, whether of speech, press, religion, or property. And this is neither more nor less than what is meant by the natural-law foundation of the Constitution. Why should the understanding of these general principles, which guided the Framers and ratifiers of our Constitution, not guide judges in construing that same Constitution? How can understanding the theory of limited government and the rule of law incite judges to engage in judicial activism in disregard of the rule of law?

Graglia writes that: "The Constitution makes no mention of the Declaration of Independence . . ." The Constitution, however, ends as follows: "Done in convention . . . the seventeenth day of September, in the year of our Lord one thousand seven hundred and eighty-seven and of the independence of the United States of America the twelfth . . ." Article V of the Constitution refers to "the year one thousand eight hundred and eight." The Framers clearly had the option of not referring to Christianity, yet "the year of our Lord" does so. And the dual dating links the origin of Christianity with the origin of the independence of the United States. What the Gospels were to Christianity, the Declaration of Independence was to the novus ordo seclorum.

Graglia simply ignores what I have written about the relationship of the Preamble of the Constitution to the Declaration. Suffice it to say that the "one people" that separated from Great Britain in 1776 is the same one "people" that ordained and established the Constitution in 1789. The same laws of nature that entitled them to their separate and equal station entitled them to institute new government. It would have been merely redundant to have repeated that justification.

Graglia writes: "Jaffa offers only two items of evidence in support of his implausible theory. First, his theory or something like it was asserted in the Republican Party platform of 1860 . . ." Now we come to the very head and front of our differences. What Graglia calls my "implausible theory" is embodied, by his own account, in two documents, the Declaration of Independence, and the Republican Party platform of 1860. Here are the key resolutions from the latter document that, according to Graglia, violate all canons of legal reason.

2. That the maintenance of the principles promulgated in the Declaration of Independence and embodied in the Federal Constitution, "that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness, That, to secure these Rights, Governments are instituted among Men, deriving their just powers from the Consent of the Governed," is essential to the preservation of our republican institutions . .

7. That the new dogma [viz., of Dred Scott] that the Constitution, of its own force, carries slavery into any or all of the Territories of the United States, is a dangerous political heresy, at variance with the explicit provisions of that instrument itself . . .

8. That the normal condition of all the territory of the United States is that of freedom; as our Republican fathers, when they had abolished slavery in all our national territory [viz., by the Northwest Ordinance], ordained [by the Fifth Amendment] that no person should be deprived of life, liberty, or property without due process of law, it becomes our duty . . . to maintain this provision of the Constitution against all attempts to violate it . . .

According to Graglia, Lincoln and the North undertook a "non-legal or extra-legal violent action" against the South. By calling the action of the elected government of the Union "non-legal or extra- legal," he implies that the action of the secessionists was legal. But unlike the American people who, in 1776, were not represented in the British Parliament, in 1861 the Southern states were fully represented in the United States Congress. Those states had freely ratified the Constitution of 1787. In so doing, they had ratified the lawfulness of elections conducted by the rules of that Constitution. What they called the right to secede meant nothing more or less than setting aside a constitutional election because they did not like the results. Whereas constitutional self-government entails looking only to future elections to reverse the outcomes of elections one does not like. Here is a practical application of that natural-law reasoning that Graglia denounces.

Why then did the South secede? The heart of the sectional conflict of the 1850s concerned the status of slavery in the territories. The South claimed, as a constitutional right, the right of citizens of the slave states to have the same access to the territories, with their human property, as citizens of the free states had with their non-human property. With it they claimed, also as a constitutional right, a federal guarantee of the security of that property. This opinion of what the Constitution required had long been held in radical pro-slavery circles. These people believed that it had received final confirmation in 1857 in the opinion of Chief Justice Taney in the case of Dred Scott.

Taney himself had recognized that Negroes did in fact belong to "the human family," not to be treated as property. But, he said, the Framers and ratifiers of the Constitution did not, and he was bound by their opinions. But why was he bound by their opinions if they were so wrong about what was a human being? Taney, like Graglia, was a legal positivist, who believed the judge was bound by the positive law, whatever it was. In a Nazi regime that would mean enforcing the laws against Jews or anyone else whose racial inferiority did not qualify them for membership in the same species as the master race.

I RETURN to Graglia's accusation against me of "a campaign of vilification" against Judge Bork and Chief Justice Rehnquist. In that alleged campaign, I have repeatedly quoted Rehnquist's assertion that if 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 the people."

In Original Intent and the Framers of the Constitution I have subjected this astonishing oracle to extended analysis. Suffice it for now to notice that, on Rehnquist's own premises, such constitutional safeguards of individual liberty as the free exercise of religion, freedom of speech and of the press, and trial by jury do not of themselves have "any intrinsic worth." That is to say, they are not chosen because they possess goodness, but possess goodness simply because they are chosen. By Rehnquist's doctrine, the safeguards of slavery in the Constitution of 1787 possess the same claim to goodness as the safeguards of individual liberty. By this doctrine, if the law says that Negroes are chattels, then it is as morally good that they be bought and sold like animals, as that white men be secure in their persons and property. To point out that this is the logical and necessary consequence of Rehnquist's and Graglia's legal positivism may indeed be shocking. But it is not vilification to tell the truth, however unpleasant that truth may be.