Jaffa v. Bork: an exchange.

Judge Bork concludes his discourse in NR's February 7 issue as follows:

Written in dyspeptic prose, Original Intent
 and the Framers of the Constitution is one of
 the least coherent, least consequential, and
 most disingenuous pieces of constitutional
 theorizing on record: incoherent because
 Mr. Jaffa offers conclusions that cannot
 possibly be tortured out of constitutional text,
 history, or structure; inconsequential
 because, so far as is apparent, his argument
 has applicability only to one pre-Civil War
 case; disingenuous because he misrepresents
 not only that case but the Constitution
 itself. This may sound unduly harsh. I
 have tried to show that it is only duly
 harsh.

I have been writing for NATIONAL REViEW for nearly thirty years, and I believe its readers are sophisticated enough to tell a book review from a temper tantrum. No one before has pronounced my prose "dyspeptic," although clearly it has given Judge Bork heartburn. It is not difficult to know why.

The July 9, 1991, issue of NATIONAL REViEW published an article entitled "The Closing of the Conservative Mind: A Dissenting Opinion on Judge Robert H. Bork." In it I offered a critique of the central thesis of Judge Bork's then recently published book, The Tempting of America: The Political Seduction of the Law. In the intervening two and a half years Judge Bork has studiously ignored that critique, but now that it is incorporated in Original Intent and the Framers of the Constitution, he has condescended to descend from his pedestal.

Bork's book is built around the proposition that liberal judges write their own subjective opinions into constitutional law. They attribute to the Constitution rights that are the judges' own invention, and then devise remedies on the ground that the Constitution requires them. Judge Bork and I are agreed that that is wrong and bad. I don't like liberal judicial activism any more than he does.

According to Bork, however (in Tempting), the first case in which this occurred was that of Dred Scott v. Sandford, in which Chief Justice Taney, in his opinion for the Court, discovered a constitutional right of slave ownership, which "right is nowhere in the Constitution." Because of this alleged right, says Bork, Taney pronounced the Missouri Compromise ban on slavery, er any prospective congressional ban on slavery in any United States territory, to be unconstitutional. According to Bork,

  this was the first appearance in American
  constitutional law of "substantive due
  process," and that concept has been used
  countless times since by judges who want to write
  their personal beliefs into a document that,
  most inconveniently, does not contain such
  beliefs.

The only trouble with this analysis is that Taney did not invent a right to slave ownership that is "nowhere to be found in the Constitution." The recognition of the right of slave ownership is massively present within the Constitution of 1787. Taney did not, as Bork says, read a right of slave ownership into the Constitution.

This is not the only example of Bork re-writing the Constitution to suit his purposes. He does the same thing to the Ninth Amendment, which reads: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." Professor Douglas Kmiec of Notre Dame University Law School, who was head of the Office of Legal Counsel in the Meese Justice Department, takes Bork to task for arguing that these words "are a meaningless 'inkblot.'" In The Attorney General's Lawyer (1992, pp. 35 to 37), Kmiec writes that "Bork's inkblot assertion cannot stand. If the Constitution is law, no part of it can be unenforced." Kmiec also writes that "Madison... perceived the Ninth Amendment as incorporating natural law . . ." which is of course why Bork de-incorporates it from the Constitution. So much for the advocate of a jurisprudence of "original understanding" ! It is just as illegitimate for a conservative to deny rights that are recognized by the Constitution as it is for liberals to invent rights not recognized by it. I wrote that no one, so far as I knew, in two hundred years (that is, before Judge Bork) had ever denied that the Constitution of 1787 recognized the lawfulness of slave property. This is why I said that Bork had bowdlerized the Constitution. Judge Bork now admits that

 The Constitution certainly recognized that
 slaves were held pursuant te the laws of
 some states, but the Constitution most
 emphatically did not guarantee such a right.

It bears repeating that in his book Judge Bork asserted categorically that recognition of a right of slave ownership was "nowhere to be found" in the Constitution. Now he admits that the Constitution of 1787 "certainly recognized" such a right. But he pours out his invective upon me for discovering his error.

Judge Bork compounds his error, even while denying it. He says that the Constitution did nothing to guarantee slave property. But consider the words of Article IV, Section 2:

 No person held te service or labor in one
 state, under the laws thereof, escaping into
 another, shall, in consequence of any law or
 regulation therein, be discharged from such
 service or labor, but shall be delivered up on
 claim of the party to whom such service or
 labor may be due.

Contrary to what Bork says elsewhere, the Constitution does not say that fugitives are to be returned by the states. A good indication of the "original understanding" of this clause is the fact that the first federal fugitive-slave law was passed in 1793, and remained in effect until a much more stringent law was passed in 1850. Returning fugitive slaves was therefore recognized as a federal responsibility during almost all of the period between the adoption of the Constitution and the adoption of the Thirteenth Amendment. Even after the Emancipation Proclamation the fugitive-slave law continued in effect--legally if not practically--in slave-holding counties that were loyal to the Union. Thus there can be no question but that the Constitution of 1787 made the Federal Government an active agent in preserving and protecting slavery.

Bork writes that the "three-fifths clause [Article I, Section 2] was designed to limit slave-state representation." But consider: A man in antebellum Pennsylvania owns property in land and buildings and livestock. Another man, in Virginia, owns property of the same value; but the Virginian's property is invested in part in five slaves. The Virginian in effect casts one vote for himself and three more for his five slaves. (Of course, the Virginian would have liked to have five more votes, rather than three. Perhaps this is what Judge Bork meant by limiting slave-state representation. All the Virginian had to do to have his slaves counted as whole persons, rather than three-fifths of persons, was to free them. But then he could not have cast their votes.) And these additional votes were registered in representation in the Electoral College as well as in the federal Congress. If Judge Bork had read any of the antebellum debates over slavery, he would have found this to be one of the leading free-state grievances, and one of the reasons for their opposition to adding more slave states to the Union. Judge Bork writes that

The importation clause [Article I, Section 9]
 was a compromise that delayed a federal
 ban on the importation of slaves for twenty
 years.

This article merits more notice than Judge Bork's passing glance. Taney relied upon it when he wrote that under the Constitution of 1787

the negro . . . was bought and sold and
 treated as an ordinary article of merchandise
 and traffic, when ever a profit could be
 made by it.

Consider that, contrary to Judge Bork, the Constitution says nothing about delaying a ban. Article I, Section 9, only forbids a ban. This clause constitutes an exception to the power of Congress "to regulate commerce with foreign nations and among the several states .... "And it is a powerful exception, so powerful that Article V of the Constitution says that this clause may not be amended. It is true that when the twenty years had elapsed, the foreign slave trade was in fact banned. But the interstate slave trade was never banned, nor was any serious attempt ever made to regulate it, despite repeated efforts of antislavery societies to promote legislation requiring humane and sanitary treatment of the Negroes. Moreover, at least one reason why the foreign slave trade was banned in 1808 was that states like Virginia and Kentucky were exporting their surplus slaves to newer slave states which could more profitably employ them. Cheap African imports lowered the price at which they could sell their homegrown products on the domestic market. The banning of the foreign slave trade was a protectionist measure as well as a humanitarian one. (The protectionist interest in limiting foreign competition is also apparent in Article I, Section 9, in which it is said that a duty may be imposed on each imported slave, "not exceeding ten dollars for each person.") In short, even after 1808 there was that in the "original understandin" of the Constitution which justified Taney in saying that the Constitution recognized slaves not only as chattels, but as ordinary commercial property.

Judge Bork has now admitted at least three conspicuous clauses of the Constitution of 1787 that recognize a right of slave ownership. But, he says,

How any of this adds up to justifying
 Taney's invention of a constitutional right

 to own slaves in federal territory remains a
 complete mystery.

Bork then asserts that

  Congress has legislative power over territories
  more complete than a state legislature
  has over its state, for the state legislature
  may not interfere with the exercise of
  federal power. There can be nothing
  constitutionally wrong, therefore, if Congress
  defines what may or may not be property
  within a federal territory. In the Missouri
  Compromise, Congress said that persons
  could not be property in a designated part of
  federal territory. That is why Dred Scott
  was a usurpation of congressional power
  accomplished, Mr. Jaffa to the contrary
  not-withstanding, through Taney's invention of
  substantive due process.

Judge Bork writes as if Taney's opinion in Dred Scott was merely a judicial idiosyncrasy. In fact, it was an outcome of the firestorm over slavery in the territories that began during the Mexican War and that culminated in the Civil War. Judge Bork says that there "can be nothing constitutionally wrong . . . if Congress defines what may or may not be property within a federal territory." That may be true today, but in the generation before the Civil War, no resolution to that effect could have passed Congress. In fact, during the Mexican War, just such a resolution the Wilmot Proviso-- repeatedly passed the House and just as repeatedly was defeated in the Senate. (The Wilmot Proviso--for Judge Bork's information--said that in all the territory acquired from Mexico as a result of the war, slavery would be prohibited. Abraham Lincoln said, somewhat hyperbolically, that as a member of Congress he had voted for the Wilmot Proviso "as good as forty times.") The 1862 law that finally banned slavery in all United States territories passed during the Civil War only because the representatives of 11 slave states had withdrawn from Congress.

Long before Taney joined the Supreme Court, the Missouri Compromise ban of 1820 was widely regarded in the South as unconstitutional. It was permitted to pass, however, as a concession necessary to have Missouri admitted as a slave state. Moreover, at the time it appeared to be a settlement of all outstanding constitutional questions in regard to slavery. With the acquisition of vast new territories conquered from Mexico, all previous concessions were rescinded. In the 1850 territorial laws for Utah and New Mexico, Congress could not agree either to permit or to ban slavery. It provided that any states formed from these territories might be admitted into the Union, with or without slavery, as their constitutions might prescribe. But the crucial question was: What would be the status of slavery in the territories before the time for adoption of a state constitution? This would determine whether such constitutions would or would not sanction slavery. And on this question Congress, like the country, was irreconcilably divided. Hence it was written into the territorial laws of 1850 that any dispute about the status of slavery in any territory could be appealed directly from the Supreme Court of the territory to the Supreme Court of the United States. In short, Congress itself, and not any gratuitous intervention by the Court, handed the Court the question of the constitutional status of slavery in the territories. Of all this, Bork appears to know nothing.

In 1854 Congress passed the Kansas-Nebraska Act, which said that the Missouri ban of 1820 was inconsistent with the policy of the 1850 laws, and was therefore "inoperative and void." Senator Douglas, the author of the Kansas-Nebraska Act, always claimed that the policy of the 1850 laws was one of congressional non-intervention. The hard-line Southerners, who had a dominating influence on both the Presidents who preceded Lincoln, as well as on the Senate during the same period, were not satisfied with Douglas's "popular sovereignty," which left the decision on slavery in each territory to the local inhabitants. They wanted guarantees that slave property, no less than any other kind of property, would have the protection it needed. When Taney wrote that the only power conferred by the Constitution on Congress in the territories "is the power, coupled with the duty, of guarding and protecting the owner in his rights" they finally got it.

On the eve of the decision in March 1857, both the outgoing and the incoming Presidents (Pierce and Buchanan) exhorted the American people to accept the forthcoming decision of the Supreme Court as a final resolution of the question of the status of slavery in the territories. There is little doubt that these "doughface" Presidents were in some kind of collusion with Taney. When the Court acted as it did, it was attempting to cut the Gordian knot which had immobilized the political process. The decision, and Taney's opinion, were evidence that the Southern Democrats at that moment dominated the Presidency, the Senate, and the Supreme Court. But the rising tide of Republicanism marked the imminent end of that dominance. Dred Scott was a desperate attempt to transform a moral and political question into a legal and constitutional one. But it was political, not legal forces, that produced the result. "Substantive due process" had absolutely nothing to do with it.

Judge Bork finds it a "complete mystery"' how the constitutional recognition of the right of slave ownership "adds up . . . to a constitutional right to own slaves in federal territory." The mystery is solved once one understands that the debate over slavery in the territories was also a debate between two theories of the nature of the Union and the Constitution. This was also a debate between two rival opinions about the "original intent" of the Constitution. The Civil War itself was nothing more or less than a continuation of this debate "by other means."

The architect of the Southern view of the Constitution was John C. Calhoun. Although he died in 1850, he is rightly regarded as the Moses of the Confederacy, the lawgiver who showed the South the promised land. Jefferson Davis was his disciple. Roger B. Taney was his disciple. (In NR's history, Willmoore Kendall, Frank Meyer, Garry Wills, Mel Bradford, and Russell Kirk are among those who have subscribed to the view of Calhoun as the supreme sage of American constitutionalism.) Public opinion in the states that seceded in 1860-61 was influenced decisively by Calhoun. It is nearly impossible to imagine the Civil War except in the light of the Southern mind as shaped by Calhoun.

Calhoun's idea of states' rights was the cornerstone of his constitutional architecture. Each state, he held, became a member of the Union under the Constitution of 2787 solely by virtue of its ratification of the Constitution. The Constitution was a "compact" among the states so ratifying. Each state was an equal partner in this compact. The territories of the United States belonged equally to all the states. The Federal Government was their agent, deriving all its authority from their acts of ratification. It had no power to govern the territories, except as that power had been delegated to it by the states in the Constitution. The constitutional equality of the states forbade the Congress, as the common agent of the states, from discriminating among the property rights recognized as lawful by any of the states. It therefore had no lawful power to discriminate against slave property, or to offer it less protection than other property. Hence, the Missouri law was unconstitutional. This was the Calhounian theory behind Taney's opinion.

This is a powerful argument. If it is true, then the Missouri law was in fact unconstitutional. And if that law was unconstitutional, then Taney was correct in saying that anyone deprived of his slave property because of it, and who had committed no punishable offense, had been deprived of his property without due process. "Substantive due process" does not enter into the argument.

The only question is whether the theory of states' rights, whose truth is assumed by Taney, is in fact true. Suffice it to say that the theory of states' rights stands in opposition to the theory of natural rights. In the true doctrine of original understanding, as held by the Framers and ratifiers of the Constitution, all rights of all legitimate civil societies are derived from the consent of the governed. And the consent of the governed arises from the equality of the natural rights of all human beings, under "the laws of nature and of nature's God." The states severally, and the Union as a whole, exist to secure man's natural rights. States' rights are therefore derived from natural rights. Circumstances arising from British rule during the colonial period may have justified slavery as a necessary evil where it already was deeply rooted, at the time the Constitution was ratified. But there could be no justification for extending that evil to virgin territory. Hence Congress did have the right to outlaw slavery in any or all of the territories.

The natural-rights theory enables us to distinguish the principles of the Constitution from the compromises of the Constitution. In Original Intent and the Framers of the Constitution I have tried to show how understanding this distinction in Dred Scott unravels many of the mysteries surrounding the equal-protection clause of the Fourteenth Amendment today. Judge Bork, as a legal positivist, is no more able than Calhoun to distinguish the Constitution's principles from its compromises. Judge Bork tries to draw Lincoln's conclusion--plenary congressional power over property rights in the territories--from Calhoun's premises. But such plenary power can be inferred only from the doctrine of natural rights. Calhoun, and Taney, reached their conclusions only by severing the doctrine of states' rights--and hence of constitutional power--from its original foundation in natural rights. Judge Bork has done the same.

O.K., Judge, the ball is in your court ! Harry V. Jaffa 

Senior Fellow, Claremont Institute

Claremont, Calif.

Mr. Bork Responds

Not really. After Professor Jaffa's latest effort, the ball has disappeared over the fence and is lying in the weeds, far from any court. Rarely has historical learning been deployed to so little effect. I am pleased Professor Jaffa has quoted my assessment of his book as "incoherent, inconsequential, and disingenuous." It cannot be said too often. His response ignores most of the points made in my review of his book in order simply to repeat two of his most obvious errors.

The odd notion, which Jaffa shares with Taney, that the Constitution contained a right, good against the Federal Government, to own slaves rests entirely upon a few provisions that attempt to cope with the brute fact that slaves were held in the Southern states and that the North could do nothing about that if a nation was to be created. Robert Goldwin has pointed out, quite correctly, that the Framers assiduously avoided giving slavery constitutional standing. Thus, there was no "evidence [in the original Constitution] of the kind of thinking ascribed to the founders by Chief Justice Taney in the Dred Scott case... there is no such racism to be found in the Constitution, then or now, not a word of it" (Why Blacks, Women, and Jews Are Not Mentioned in the Constitution, and Other Unorthodox Views). So far as the Constitution was concerned, slavery was a fact that had, for the time being at least, to be endured, not the guaranteed right that Taney made it.

Even more peculiar is Professor Jaffa's insistence that substantive due process had nothing to do with the Dred Scott decision. Here he parts company with Taney, and about time, too. Taney advanced many arguments for slavery but he also said quite clearly that depriving a man of his property (a slave) merely because he brought his property into a particular territory of the United States (where slavery was forbidden by the Missouri Compromise) "could hardly be dignified with the name of due process of law." As Professor David Currie has written, Taney's Dred Scott opinion "was at least very possibly the first application of substantive due process in the Supreme Court, the original precedent for Lochner v. New York and Roe v. Wade."

By now every reader must be heartily sick of arguments about the correct interpretation of an opinion almost 140 years old. It is time to bring this bootless discussion to a close. In doing so, I would remind Professor Jaffa that the first discussant to resort to the ad hominem, which is his standard style of argument, has no standing to complain if he is treated severely in return.

--ROBERT H. BORK