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The Mises Review

Edited and written by David Gordon, senior fellow of the Mises Institute and author of four books and thousands of essays.


Original Intent and the Framers of the Constitution

Harry Jaffa

2 1995
Volume 1, Number 2


Not Even Scholars Are Equal

Summer 1995

ORIGINAL INTENT AND THE FRAMERS OF THE CONSTITUTION
Harry V. Jaffa
Regnery Gateway, 1994, xv + 408 pp.

Peter Abelard confounded the readers of Sic et Non by placing side-by-side opinions of the Church Fathers that seemed contradictory, while offering no reconciliation. Harry Jaffa has done him one better. Much of his Original Intent consists of contradictory opinions of his own, without excuse or explanation.

As Jaffa sees matters, many alleged conservatives misunderstand original intent. They attack liberal Supreme Court Justices such as William Brennan for reading into the Constitution their own value judgments. Instead, they urge, judges should confine themselves to the text as meant by its Framers.

To Jaffa, this conservative approach, like the view it ostensibly opposes, is a variety of moral relativism. It offers no reason why the text of the Constitution should be taken as authoritative. Instead, a correct method of interpretation will read the Constitution in the light of its fundamental principles, as stated in the Declaration of Independence.

The "all men are created equal" clause of the Declaration, in particular, underlies the American system and in Jaffa's mind should exercise decisive force in all matters constitutional. It encapsulates the basic principle of natural law, and only by recourse to it can the snares of relativism and legal positivism be avoided. Abraham Lincoln, for Jaffa a figure of superhuman proportions, best understood the Constitution's inner meaning. He saw that, fundamentally, the Constitution takes slavery to be immoral, its compromises with that institution notwithstanding. Lincoln correctly maintained that the Constitution intends slavery to be in the "course of ultimate extinction."

Jaffa shows himself well aware of a crucial objection to his reading of the Declaration. If the equality clause mandates the abolition of slavery, why did many signers of the Declaration, including of course Jefferson, hold slaves? No problem, Jaffa responds: the signers realized that it would be practically impossible to abolish slavery immediately. Instead, the equality clause states an ideal to be approached, as prudence best dictates, in the course of time.

In other words, the alleged basic principle of morality commits one to no concrete action at all. "Lincolnian morality—the morality of the Founding Fathers—was prudential . . . we cannot decide upon an intelligent policy to deal with slavery, unless we know that slavery, in principle, is morally wrong. But knowing that it is wrong does not, of itself, tell us what to do about it" (p. 29).

Thus, the signers of the Declaration could, in Jaffa's view, consistently join absolute rejection of slavery with slaveholding. Jaffa does not tell us why, if practical exigencies made the advocacy of immediate abolition impossible, the anti-slavery signers did not state their commitment to a more gradual program. Was this, too, unprudential? Why, if, as Jaffa maintains, belief in the immorality of slavery was widespread, even in the South?

Jaffa, the supposed defender of morality against relativism, in fact supports principles that are empty of content until some wise statesmen, quintessentially Lincoln, deigns to fill in the blanks as he wishes. To think that moral principles have prescriptive force in all circumstances makes one a Kantian, heedless of consequences. "Prudential morality means doing the most good, or the least evil, in any given situation. As Lincoln once said, `I would consent to any great evil, to avoid a greater one'" (p. 29). Nothing, then, is intrinsically evil, if one credits Jaffa with meaning what he says. You may cheat, steal, or murder, if by so doing, you prevent a greater evil. Why he attributes his prudential view to Aquinas, who taught that some acts are always wrong, escapes me.

Jaffa will no doubt respond that I am a moral relativist, if not a dread Calhounite. How can anyone fail to see that there is a clear proof, starting from self-evident premises, that slavery violates natural law? Unfortunately, Jaffa never sets out this proof rigorously; at most he gestures at an argument. His basic point seems to be that human beings do not differ from one another as do men from animals, or men from God. Thus, it is wrong to treat human beings as if they were beasts and not persons.

Jaffa appears to believe that from the mere recognition that human beings and beasts differ in nature, some proposition about the immorality of slavery follows; he thinks that those who question this cannot acknowledge that human beings have a distinct essence. Why not? I wish Jaffa would state his inference explicitly: vague comments about the invalidity of the fact-value distinction will not suffice.

But suppose my criticism is mistaken: then we know, don't we, that slavery is wrong. Or do we? Jaffa also tells us, appealing to the authority of his teacher Leo Strauss, that there is an unsolvable conflict "between Jerusalem and Athens—between revelation and reason" (p. 351). We are left then in skepticism: we cannot know with certainty the ultimate truth about the world. (Incidentally, how do Strauss and Jaffa know this?) But, if so, how can we claim to have "self-evident" demonstrations of the moral truth of equality? Certainly some have interpreted the claims of revelation differently. Who is Jaffa to say that they are wrong? And, by his own statement, he cannot demonstrate that revelation is invalid. (I pass over his attempt to deduce equality from the Golden Rule as unworthy of comment.)

So far, then, we have a morality that commits one to nothing and a self-evident demonstration founded on skepticism. But Jaffa is not yet done. He tells us that the equality clause is basic to the proper interpretation of the Constitution. And yet he readily acknowledges that several provisions of the Constitution appear to sanction slavery. The fugitive slave clause is the "most powerful evidence of slavery within the Constitution. . . . For not only does it give federal constitutional recognition to the law of chattel slavery within the slave states, but it requires the government of the United States to assist in the enforcement of that law" (p. 65).

Further, the clause guaranteeing to the states a republican form of government "implies that every state then existing was already republican. It implies thereby not only that there was no `intolerable' conflict between slavery and republicanism, but that there was no conflict at all" (p. 66).

Faced with such facts, one might think the appropriate response obvious. Should not Jaffa abandon his claim that the Constitution incorporates his understanding of equality? But, as we have already abundantly seen, Jaffa is no ordinary man. He responds by drawing a distinction between principles and compromises. The provisions that allow slavery are mere compromises, inconsistent with the Constitution's principles: they may be set aside as the prudence of the true statesman dictates.

Jaffa gives no argument that the provisions he terms "compromises" were intended to have less force than anything else in the Constitution; nevertheless, he is certain that he has grasped the true intent of its Framers. The explicit provisions of the document are to be read in terms of a principle, equality, that never appears there. Nothing must be allowed to interfere with Jaffa's Transcendental Deduction of Abraham Lincoln.

Jaffa's book rests on a fundamental misconception. He acts as if only two alternatives exist: accept his version of natural law or embrace moral relativism. But why can there not be an objective morality that arrives at different conclusions from Jaffa? Why is he so sure that Calhoun, e.g., did not believe in rights apart from interests? Many Southerners (and some Northerners) at the time of the Civil War believed that the Bible allows slavery. Were all of them moral relativists? For all that Jaffa has shown, one can even accept natural law ethics and think slavery sometimes licit. St. Thomas Aquinas, whose standing to expound natural law is at least equal to Jaffa's, held this position (I hasten to add that I am here concerned with Jaffa's arguments, not the morality of slavery).

Jaffa seems incapable of proceeding for more than a few pages without tripping up. He claims, though in more muted form than elsewhere , that Alexander Stephens's "Cornerstone Speech" was influenced by Darwin's Origin of Species, a work that says nothing about human races or evolution (p. 48). He finds the three-fifths clause of the Constitution contradictory: "how can three-fifths of a person be counted, when there is no such thing in nature" (p. 64)? Perhaps Jaffa will find faulty a recipe that calls for a half-teaspoon of sugar, since there are no such things in nature as half-teaspoons.

I have every confidence that regardless of what I, or any other critic, has to say to Professor Jaffa, nothing will disturb his belief that he is one of the blessed possessors of political truth.


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