Original Intent and the Framers of the Constitution: A Disputed Question.

Original Intent and the Framers of the Constitution: A Disputed Question, by Harry V. Jaffa (Regnery, 400 pp., $24)

THE meaning of the Constitution of the United States, it turns out, is no more and no less than one's heart's desire. Both constitutional jurisprudence and constitutional scholarship are largely exercises in wish fulfillment. That conservative intellectuals are as guilty of this as Liberal intellectuals probably means that a jurisprudence of the actual principles of the Constitution as those were understood by the men who made them law is impossible for the foreseeable future.

There is one way to tell the Liberals and conservatives apart at a glance. On picking up a book on constitutional theory--if, for some reason, you should wish to do that--look for the animating catchphrase. If the author says "moral reasoning," he is a liberal; if he says "natural law," he is a conservative. In either case, he will find things in the Constitution that are not there. Whichever, put the book down at once and go on to something useful.

These somber thoughts are inspired by Professor Harry Jaffa's new book, Original Intent and the Framers of the Constitution: A Disputed Question. 'The book reprints various essays by Mr. Jaffa and by some of his milder critics. To the uninitiated, the title may offer hope. At last, such an innocent might think, we are to get an historical account of what the Framers did intend and a demonstration of why their intentions are the only legitimate basis for constitutional jurisprudence. Alas, that reader will soon find that Mr. Jaffa is no more committed to the original understanding than the rest of the constitutional clerisy: he defines original intent so that it rises above the meaning of the Constitution itself.

Before turning to the substance of the essays, it must be said that one of the book's notable qualities is the venom with which Professor Jaffa addresses those he regards as adversaries, just about all of them conservatives: Jeane Kirkpatrick, Irving Kristol, Edwin Meese, Russell Kirk, Oliver Wendell Holmes Jr., William Rehnquist, and, I rejoice to say, given the company to which I am assigned, me. It turns out, for reasons that are not entirely clear, that most of us are disciples of the late, unlamented John C. Calhoun. At other times we are identified with Karl Marx. Mr. Jaffa claims Thomas Jefferson, James Madison, and Abraham Lincoln for himself, thus gaining a sizable head start in the debate.

Putting aside what would be a very considerable quibble over intellectual antecedents, when Mr. Jaffa launches into his argument he quickly dissipates the advantage he has awarded himself. His reasoning runs like this: The Declaration of Independence enunciates truths of natural law; the principles of the Declaration inform the Constitution; and, for that reason, the Constitution must be interpreted as if those principles had been written into it. (I have discussed three rather more temperate theorists who adopt similar positions in "Natural Law and the Constitution," First Things, March 1992, and "Natural Law and the Law: An Exchange," First Things, May 1992.)

Natural law appears in the first paragraph of the Declaration in the claim that Americans are entitled to separate from Great Britain and to assume "the separate and equal station to which the Laws of Nature and of Nature's God entitle them." These laws begin the second paragraph:

We hold these truths to be self-evident, 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.

These are noble words, words of high aspiration, but it is unclear what they add to our reading of the Constitution. We know, for example, that the "unalienable Rights" did not become constitutional absolutes: the Bill of Rights expressly contemplates the punishment of crimes by the deprivation of liberty and life, both of which certainly tend to interfere with the pursuit of happiness. The upshot is that, so far as the Constitution is concerned, these rights are unalienable unless society has reason to take them away.

Mr. Jaffa takes me severely to task for having said that "our constitutional liberties arose out of historical experience...They do not rest upon any general theory." Citing the Declaration once more and a number of state constitutions asserting that all men are born free and equal, etc., he wonders whether I have "ever read a single document of our Founding." Well, I suppose the Constitution qualifies as one. The liberties to be found there clearly derive from historical experience with the British Crown and the states' fear of the new federal power. The First Amendment's prohibition of the establishment of religion reflected not only the fact that various denominations feared a federal choice of one but that six states had established religions which they did not want Congress to supplant. The Second Amendment's right to bear arms was supposed to protect against any tyrannizing tendencies of the central government. The Third Amendment's prohibition of the quartering of troops in private homes in peacetime was a reaction to the British practice in the colonies, as was the Fourth Amendment's ban of unreasonable searches and seizures and general warrants. And so it goes. One wonders, for example, what natural-law theory produced the Seventh Amendment's guarantee of a jury trial in common-law suits involving more than twenty dollars.

NOR IS THE original Constitution much more help to the proponent of a general theory of human liberty. The writ of habeas corpus is guaranteed and bills of attainder prohibited, again based on historical experience. The ban on state laws impairing the obligation of contracts reacted to the practice of relieving debtors of their obligation to repay. There is simply no point in nattering on about declarations of freedom and equality as though they constituted a general theory of liberty that was written into the Constitution. They don't and it wasn't.

It is the proposition that "all men are created equal" that Mr. Jaffa finds particularly enlightening for purposes of constitutional interpretation. It is not clear, however, what the principle means for modern problems. Equality was not explicitly incorporated in the Constitution (as the "equal protection of the laws") until the Fourteenth Amendment was ratified in 1868. The history of its judicial interpretation reminds us that "equality" is a most ambiguous concept, one whose content fluctuates with the mores and fads of the times. It is not at all clear how the tenet that all men are created equal would bear upon issues such as women in combat, abortion, homosexual rights, affirmative action, the death penalty, or other topics that vex us and the courts today. This suggests that the Declaration offers a very liraited glimpse of natural law and hence, even on Mr. Jaffa's terms, offers little guidance for constitutional interpretation.

The subject he most wishes to discuss, and does so over and over again, is the bearing of the Declaration, and hence the Constitution, on slavery. Here, his argument is startling. Though the Framers left slavery untouched out of a prudent desire to form a Union, Mr. Jaffa thinks the Supreme Court could, nevertheless, properly have used their document, without benefit of any federal legislation, to extinguish slavery in the federal territories. Mr. Jaffa focuses on Dred Scott v. Sandford. The facts are familiar. Scott, a slave, was taken by his master from a slave state, Missouri, to federal territory where Congress had forbidden slavery in the Missouri Compromise of 1820, and then back to Missouri. Scott sued for his freedom on the theory that he became free when on land where slavery was outlawed. The Supreme Court, in an opinion by Chief Justice Roger Taney, ruled against Scott and in the process held that the Missouri Compromise's outlawing of slavery in federal territory was unconstitutional. That effectively denied the Federal Government the power to prohibit slavery not only in federal lands but in new states admitted to the Union.

In a passage that infuriates Mr. Jaffa, I have written that Taney created a constitutional right to own slaves in federal territories although there is no such right to be found in the Constitution. Taney created such a right by converting the due process clause of the Fifth Amendment from a guarantee of fair procedures to a guarantee of what he regarded as fair substance: "an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offense against the laws, could hardly be dignified with the name of due process of law." Hence Scott remained a slave.

Mr. Jaffa attacks my analysis in terms that might, if one wished to be generous, be called offensive. He argues that the Constitution recognizes a right to own slaves in the clauses requiring states to return fugitive slaves to their owners, providing for state representation in the House by adding to the number of free persons three-fifths of all others, and preventing Congress from prohibiting the importation of slaves prior to 1808. Thus, he concludes, I made my "case against Taney only by the most shameless expurgating and bowdlerizing of the Constitution's text." Let us examine that claim.

The Constitution certainly recognized that slaves were held pursuant to the laws of some states, but the Constitution most emphatically did not guarantee such a right. The obligation of states to return fugitive slaves did not mean that Congress could not forbid slavery in territories it governed any more than the state obliged to return the fugitives was forbidden to outlaw slavery on its own territory. The three-fifths clause was designed to limit slave-state representation in Congress. The importation clause was a compromise that delayed a federal ban on the importation of slaves for twenty years. 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.

At the time of Dred Scott, slavery was left to state laws, which could protect or prohibit the institution. 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 notwithstanding, through Taney's invention of substantive due process.

THE MOST that can be made of the unexpurgated and unbowdletized text is that the Constitution did not of its own force forbid slavery. That is why it is startling to see Mr. Jaffa reverse his field and, in a mirror image of Taney's opinion, pour his own substance into a purely procedural provision in order to state that the due-process clause of the Fifth Amendment accomplished just that. Taney went wrong, he says, because that clause prevents a person from being deprived of liberty without due process of law, which slaves were not afforded. This reflects "the laws of nature and nature's God," so that the "positive law of slavery might overrule the law of nature in the slave states, but it could not extend beyond their boundaries, except for the reclaiming of fugitives."

That is, quite literally, an incredible proposition. It produces two preposterous results. If a slave and his owner entered a Northern territory where slavery was forbidden by the Missouri Compromise, the due-process clause would have no effect whatever because that clause forbids only the Federal Government from depriving a person of liberty. It has no application to private individuals. Thus, Dred Scott, who was not deprived of liberty by any federal law, could not have been freed by the due-process clause. Mr. Jaffa's position collapses. He has rewritten the Constitution to transform a prohibition of government action into a prohibition of private action.

But matters are worse even than that. Mr. Jaffa's argument means that if Scott had been taken to a Southern territory where the Missouri Compromise allowed slavery, he would have been able to claim freedom under the due-process clause because the Compromise was federal law that deprived him of liberty. Thus, the Missouri Compromise was unconstitutional not, as Taney thought, because it barred slavery in the northern part of the Louisiana Territory, but, following Mr. Jaffa's argument, because it allowed slavery in the southern part. Not even Lincoln made that claim. But perhaps he did not understand the Constitution's incorporation of the Declaration of Independence as well as Professor Jaffa does.

Mr. Jaffa asks us to believe that the men of the Philadelphia Convention who wrote the Constitution, those in Congress who proposed the Constitution and the Bill of Rights, and those in the states who ratified both laid down principles which they clearly had no intention of endorsing and which are contradicted by the words of the document itself. There would have been no Constitution and no Fifth Amendment due-process clause if the ratifying Southern states had understood that a later natural-law sleight of hand could deprive them of what they had bargained for.

One of Mr. Jaffa's many difficulties is that he, like the liberal activists he resembles, displays no awareness of the difference between politics and law. My writings, which he savages, dealt with the duty of the judiciary in applying existing law, not with the declaration of political principles. Thus, he is wrong when he says that my position "rejects, root and branch," a resolution of the 1860 Republican Platform proclaiming that the principles of the Declaration of Independence embodied in the Constitution, which are quoted above, are "essential to the preservation of our Republican institutions." He also quotes, without noticing the contradiction, another part of that platform promising not to interfere with states' control of their own institutions. Moreover, if Mr. Jaffa thinks that slavery was somehow guaranteed by the Constitution, it is he who rejects the first resolution.

Again and again, Mr. Jaffa quotes Jefferson, Madison, and others about the principles of equality, liberty, and natural rights. "No one can at one and the same time be a legal positivist and an adherent of the original intentions of the Framers. For the Framers were very far from being either moral skeptics or legal positivists. Their commitment to the natural rights and natural law doctrine of the Declaration of Independence represented the most profound of their original intentions." That observation is simply silly. The Framers were not legal positivists for the very good reason that no one who makes law can be. The lawgiver must have ideas of right and wrong that antecede the law he makes. The Framers wrote law, presumably embodying as much of their thinking on natural rights as prudence allowed, and the judge is bound to follow that law no matter what he thinks of its correspondence to natural law. That means that, in his judicial capacity though in no other, the judge must be a legal positivist. Which further means, contrary to Mr. Jaffa, that only a legal-positivist judge can be an adherent of the Framers' original intent.

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 application 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.