Constitutional Interpretation and the "Original Intent" of its Framers and RatifiersThe following piece is an attempt to define the natural right principles (those stated in the Declaration of Independence as our "inalienable rights" of "life, liberty, and the pursuit of happiness") with sufficient precision to serve as a reliable and rational guide to Constitutional Interpretation. The context of this piece is a review of Storm Over the Constitution by Harry Jaffa, which book centers on a debate between proponents of natural right/natural law and legal positivists, especially Judge Bork. The central questions of the book are "What was the original intent of the Framers and Ratifiers?" and "Can we know it with sufficient clarity to use it non-arbitrarily to interpret contradictions and ambiguities in the Constitution?" The authors hope that their solution will serve as the foundation of a reconciliation between the positivists and the natural law advocates, as well as a counter to the liberal judicial activism that has created our modern climate where the violation of the individual rights of our citizens is commonplace. TITLE
VI. THE CIVILIAN: AN ATTEMPTED RECONCILIATION A.
Grounding Natural Rights in Rational Experience Prophets, Lawyers, Philosophers, and Civiliansby Mark Michael Lewis and Harrison Sheppard A Review of Storm Over the Constitution, Harry V. Jaffa; I. INTRODUCTION AND SUMMARY Storm Over the Constitution, by Professor Harry V. Jaffa, lucidly presents a remarkably heated debate between two conservative schools of thought on the meaning of "original intent" as a guiding principle of U.S. constitutional interpretation. It addresses the conflict between legal positivists on the one hand, and proponents of natural right and natural law on the other, relating to the foundations of the American Constitution. Professor Jaffa began the debate with his vigorous criticism of the positivist views of Judge Robert H. Bork. Jaffa, following Lincoln, argues that the natural law and natural right principles of the Declaration of Independence are implicitly incorporated into the U.S. Constitution and must guide its interpretation if the Founders original intent is to be carried out faithfully. The contrary excoriating writings of Lino A. Graglia and Charles J. Cooper, supporting Judge Bork's position, are presented in a lengthy afterword. They criticize Jaffa's challenge to Bork and insist (along with Chief Justice Rehnquist and Justice Scalia) that proper application of original intent precludes interpreting the Constitution as the embodiment of any authoritative moral teachings or principles, including those stated in the Declaration of Independence. They argue instead that only a democratic majority has the right to determine what binds (or liberates) its citizens. The debate is introduced with a helpful, brief preface by Larry P. Arnn and a lengthier introduction by Edward J. Erler, placing the debate in its philosophical context. The educated intelligence and depth with which Jaffa asserts and defends his basic position make it highly persuasive. Jaffa's antagonists score telling points in the vigorous joust, but their position is internally inconsistent and seems flawed in its foundations. Jaffa's position, while not without flaws, seems, on the whole, to be truer to the political spirit in which the U.S. Constitution was conceived, debated, and adopted. There is an abundance of typographical errors in Storm Over the Constitution, which can be distracting, and the absence of any index impedes diligent consideration of its contents. II. THE ISSUESThe debate presented in Storm Over the Constitution follows an initial agreement between the debaters. Both Jaffa and his antagonists reject "judicial activism," (i.e., the view that a judge's personal "refined" moral values may properly be used to modify and update the Constitution to accord with modern understandings and practical necessities). They also agree that any questions requiring constitutional interpretation be resolved by recourse to the original intent of its framers and ratifiers. As Professor Jaffa writes, referring to published writings by Judge Bork; however:
In exploring this issue, much of Storm Over the Constitution is devoted to Chief Justice Roger Taney's opinion in the Dred Scott case (Dred Scott v. Sanford, 19 How. 393, 1857). Both Jaffa and the Borkians agree that the decision resulted in an improper extension of the rights of slave holders into federal territories, but they hold opposite views on the significance of Taney's reasoning in construing the "original intent" of the Constitution's framers and ratifiers. In light of this case, Jaffa profitably explores the problematic moral, political, and legal ramifications of a positivist view of original intent as it regards the issue of slavery. III. THE PROPHETWoe unto you also ye lawyers! The heart of Jaffa's position is fairly summarized (without detailing his supporting arguments) in the following four statements: A genuine jurisprudence of "original intent" with respect to the Constitution would have to recognize the principles of the Declaration of Independence as the principles of the Constitution (Jaffa, 1999, p.3). The statement of principles in the Declaration of Independence is a compressed summary of "the laws of nature and of nature's God." It represents the convictions of those we still call the Founding Fathers. It consists in an articulation and, I would contend, a perfection of a natural law tradition that goes back at least to Aristotle, and that embodies the ethical core of the Judeo-Christian tradition as well (P. 51). The American Revolution represented natural right, more than any regime that had preceded it, ancient or modern (P. 65). The Constitution was framed and ratified by those who believed that all positive law had as its purpose, to give effect to the natural rights that human beings possessed under the natural law. Because Judge Bork denies this, his jurisprudence has little in common with the original intent of those who framed and those who ratified the Constitution (P. 46). In asserting these propositions, Jaffa not only follows Jefferson's understanding of constitutional interpretation, but also hearkens to the guidance provided by Blackstone, whose precepts surely influenced the Founding Fathers. On the role of ascertaining original intent in constitutional interpretation, Jefferson urged that: On every question of construction, let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed. (Jefferson, 1986, p. 322) Speaking more broadly of legislative interpretation, Blackstone likewise emphasized reliance upon the legislators original intent in interpreting their enactments: The fairest and most rational method to interpret the will of the legislator is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either words, the context, the subject-matter, the effects and consequence, or the spirit and reason of the law ...Words are generally to be understood in their usual and most known signification; not so much regarding the propriety of grammar, as their general and popular use ... But, lastly, the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it ... (Commentaries, Section the Second, emphases in original)
In the words of Alexander Hamilton, the Constitution is "a bundle of compromises." It is filled with contradictions and terms that require interpretation. Jaffa agrees with Lincoln that, where the Constitution is clear, it is sufficient unto itself. But where it is ambiguous, or even self-contradictory, it requires interpretation consistent with the Founders original intent. Jaffa, following Blackstone, urges the necessity of ascertaining the Founders original guiding principles by recourse to their writings and expressed thoughts at the time. Jaffa's central argument is that without an understanding of the natural law principles summarized in the Declaration of Independence, we cannot understand the original intent of the framers and ratifiers, and we have no adequate principled means to resolve inconsistencies in the Constitution. Using various state constitutions, The Federalist, party platforms, Supreme Court majority and dissenting opinions, and other seminal writings of the founding period, Jaffa argues persuasively that (1) the Founders constitutional vision was deeply grounded above all, in the natural right tradition articulated in the Declaration of Independence; and (2) the original intent of the framers and ratifiers of the Constitution was to enumerate and protect those natural rights while creating a system of national government. In light of this, Jaffa suggests that the Borkians moral relativism and their refusal to appreciate the vital political importance of the morality of the framers and ratifiers are usurpations, and immoral usurpations at that, of the original intentions of the Constitution's framers and ratifiers. Like Lincoln, Jaffa is persuaded, as are we, that refusal to appreciate the vital political importance of the Founders moral principles by those entrusted with interpretation of the Constitution is a subversion of the Founders intent which is unfaithful to historical fact. Given Jaffa's position, his moral righteousness is understandable, even if its particular expression is politically imprudent, perhaps even uncharitable, and contributes to his being misunderstood by his antagonists as more prophet than philosopher. As Graglia critically rights: Jaffa does not so much engage, or even purport to engage, in rational discourse, as in religious and moral exhortation (P. 134). IV. THE LAWYERS "When I use a word,"
In response to Jaffa's moral righteousness, the Borkians accuse Jaffa (accurately, in our opinion) of using natural law concepts as vehicles for importing his religious beliefs into principles of constitutional interpretation and charge him with seeming to be"incapable of arguing issues in moral and political theory without labeling his opponents and their views immoral" (P. 141). Philosophically, they dispute the substantial political significance Jaffa finds in the Declaration of Independence's reference to "the laws of Nature and of Nature's God." The Borkians own position can be simply stated: The Constitution is complete in itself. It does not require that the principles of natural law or natural right from the Declaration of Independence or any other document be read into it. This position, which we term "internal sufficiency," evidently aims to insulate the Constitution's integrity from contaminating liberal interpretation; that is, judicial activism. By thus insisting on internal sufficiency as the basis for proper construction of original intent, the Borkians (at best) seek to create an impenetrable shield against constitutional distortions promoting partisan (and especially liberal) interests. The Borkian conception of constitutional interpretation requires judges to remain faultlessly true to the "letter of the law." Hence, " a good originalist yields to the intended meaning of a constitutional provision even when it hurts" (P. 139) or violates his moral sensibilities. The Borkians maintain that the Constitution is not endowed with any binding moral principle other than that the majority shall rule. They are strict legal positivists. The words of Chief Justice Rehnquist state their position succinctly: If ... a society adopts a constitution and incorporates in that constitution safeguards for individual liberty, these safeguards do 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. It is the fact of their enactment [i.e., ratification] that gives them whatever moral claims they have upon us as a society, however, and not any independent virtue they may have in any particular citizen's own scale of values (P. 22). It is, therefore, an explicit tenet of the Borkians position that there is no intrinsic morality or goodness to the freedoms that are protected by the Constitution of the United States. Hence, any references to "natural law" or to our natural rights to life, liberty, and the pursuit of happiness, are only the prejudices of one "particular citizen's own scale of values." Under this view, any constitutional interpretation based on such values is properly understood as judicial activism. The Borkians thus argue that, although Jaffa claims to be using the principles of original intent, he is, in fact, a "bad originalist" because he rejects the principle of internal sufficiency and goes beyond the four corners of the Constitution to find original intent. In this context, the Borkians argue that Jaffa's repeated reference to Revelation indicates a mystical Judeo-Christian moral bias that is wholly inappropriate to constitutional interpretation. Professor Graglia, arguing as a lawyer, rejects Jaffa's moral righteousness in the following terms: While theological discussion is beyond my ken, law is my field of professional expertise. The only useful contribution I can hope to make in a discussion on natural law is to point out that it is not "real" or "legal" law law created by a government and properly enforceable by government officials that is being discussed [by Jaffa] (p. 135).
A: The Philosophy of Natural Right and the Theology of Natural Law: a Seminal Distinction Prof. George Anastapalo has recently written:
Prof. Anastapalo distinction between natural right and natural law may be essential for both proper understanding of the irreconcilable disagreements between Jaffa and the Borkians, and the possible basis for the reconciliation. The question is: to what source do we look in constitutional interpretation to discover enduring standards for distinguishing good from bad, right from wrong, and just from unjust? The natural law tradition suggests that we look to Revelation, while the natural right tradition suggests that we look to nature and reason. As Anastapalo points out, the tradition of natural right ultimately finds authority for its propositions in reason, rationality, and human experience. These sources of authority are universally available to all people at all times. Any mentally competent individual can verify the soundness of the natural right position by reflecting on and examining his or her own actual experience. One needs no sacred text or written authorities to judge the validity of natural right claims, but only common sense and rational reflection through examination of relevant data and experience. Natural law, on the other hand, looks ultimately to Revelation as the source of its authority. In any deviation from the standard offered by Revelation is, therefore, unnatural and immoral as a matter of definition. Although the natural law tradition gives reason a place and encourages rational examination of scriptures, its revelations are still the ultimate authority in any debate. What is determined as "natural" through this process is what an orthodox reading of the sacred text dictates is "natural." It is important to mention here, however, as we suggest below, that reference is in the Declaration of Independence to "the laws of nature and if nature's God," may much more reasonably be understood as intended by the Founders to refer, not to the revelatory theological principles of St. Thomas Aquinas, but to worldly principles of nature expanded by Sir Isaac Newton. The distinction between the respective sources of authority for philosophical match for right and theological natural law is a crucial importance to the following analysis of the opposing position set out in Storm over the Constitution. B. The Irony of the Borkian Position The central difficulty with the Borkians position is that it offers no set of principles by which to resolve the inconsistencies or "bundles of compromises" in the Constitution. Given these inconsistencies and gaps in the Constitution, the need for judicial interpretation and construction to resolve particular cases and controversies is inevitable. Without recourse by judges to those principles that in fact animated the constitutional Founders and ratifiers, they are compelled to look for some other principle(s) to decide cases. This necessarily opens the door to importation of values extrinsic to the intent of the Founders. This is the ironic consequence of the Borkian position: By divorcing an understanding of original intent from historical and contextual considerations of natural law, natural right, and reason, the Borkians create a clear need for some sort of judicial activism. As the following demonstrates, the Dred Scott case illustrates exactly this kind of inevitable judicial activism. Jaffa points out that the question at issue in Dred Scott was the legal status of African slaves: where they "property" or "persons"? On the one hand, the Constitution (1) provided that slaves who had escaped into free states were to be returned to the owners in slaveholding states and (2) permitted the international slave trade for a specified time. On the other hand, it referred to the slaves as persons for purposes of determining population for representation in Congress (the three-fifths rule). The Constitution thus treated Negroes inconsistently: as property in some respects, and as persons in others. Taney, Calhoun, and the South chose to rely on the articles that treated Negroes as property, while Lincoln and the North focused on the articles that treated them as persons. There was no way to resolve this inconsistency by recourse to express provisions of the Constitution itself. In this situation, the doctrine of internal sufficiency posed a dilemma for the Justices deciding Dred Scott. They had to decide the case without unambiguous guidance from the Constitution. Unless there exist discernible principles of constitutional interpretation external to the Constitution (such as the natural right principles as stated in the Declaration of Independence) to which the justices could refer, either decision in effect supporting or rejecting the institution of slavery would be an expression of personal prejudice. Taney, using the doctrine of internal sufficiency, had no such external standards, chose to understand the Negro as property rather than person, and returned Dred Scott to his owner. As Jaffa points out, the positivist doctrine of internal sufficiency deprives positivists of any constitutional basis for antislavery sentiments before adoption of the Thirteenth Amendment. Indeed, as discussed further below, the positivist position rejects the existence of any morality inherent in the Constitution. If a different majority had obtained and an amendment had passed demanding that slavery be legal in all the states and territories, the Borkians would, by their own logic, have to say that such law was "morally right." Similarly, if a constitutional amendment were somehow adopted that claimed public ownership of all property, repealed the first Ten Amendments, or otherwise altered the foundations of the Constitution, the Borkians would be compelled to support both the constitutionality of such changes and their morality. We suggest that any position that leads to such conclusions is not only fundamentally flawed, but also repudiates the objectives of our constitutional system stated in the preamble to the Constitution, namely, to "establish Justice ... and secure the Blessings of Liberty." The Borkian view is also in clear conflict with the views of the third President of the United States and chief author of the Declaration of Independence, Thomas Jefferson, who, in his first inaugural address, declared: All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression (As quoted in Jaffa 1999, P. 116). In fact, by reducing all moral arguments, including those founded in on the principle of natural rights, to personal biases, the positivists deny the relevance of the principles and original intentions that were explicitly stated by the Founders to be the basis for the framing and ratification of the Constitution. As Jaffa points out, "in asking what were the original intentions of the Founding Fathers, we are asking what principles of moral and political philosophy guided them" (P. xxxiv). The Borkians understanding of internally sufficient original intent actually precludes them from an historical inquiry into the actual original intentions of the framers and ratifiers of the Constitution. In so doing, they not only cripple our ability to interpret the Constitution in a principled way, they write out of existence the revolutionary nature of the American experiment. As Jaffa puts it: The American Revolution is rooted in the convictions that there is a non-arbitrary standard of just and unjust, right and wrong, rooted in man's nature as a rational being (P. 65). The authors of this review add their personal disbelief that, even if a majority voted for it, most Borkians would in fact support as constitutional and moral such measures as restoration of the institution of slavery, repeal of the Bill of Rights, or the abolition of private property, even though such support would be required by their position. "For what a man says, he does not necessarily believe." Indeed, as one Borkian (Cooper) puts it, "There is no support among decent people for such ideas" (P. 147), and the Borkians undoubtedly consider themselves to be decent people. Most significantly, however, the very concept of "decency" is a broad moral concept to which the Borkians, by their own reasoning, have no "rightful" recourse. References to intrinsic decency, justice, virtue, or any similar moral conceptions contradict their basic positivist stance. Their instinct to employ such standards is, however, both laudable and understandable. Without rational moral concepts such as justice, virtue, and liberty, among other classical ideas, a polity of rights as conceived by our Founding Fathers would be impossible to formulate or champion. Whether consciously or unconsciously, the Borkian positivists understand the necessity of an intrinsic morality as the basis for American governmental institutions, though they explicitly pretest otherwise. It is for this reason that they refer, both implicitly and explicitly, to moral concepts, such as rationality and decency, to support their position, despite the logical inconsistency of doing so. They thus appear to recognize, as Jefferson put it, that the political philosophy expressed in the Declaration of Independence is nothing more or less than an "expression of the American mind," conveying "the common sense of the subject," and "the harmonizing sentiments of the day" (Jefferson 1984, P. 1501) sentiments most "decent" Americans evidently still share. As a matter of historical fact, the speeches, pamphlets, and other writings preceding the framing and adoption of the Constitution clearly disclose that it was the perceived morality of the political principles embodied in the proposed Constitution that was emphasized by its advocates to promote its acceptance and ratification. The moral relativism characteristic of the Borkians would probably have horrified the Founders; it certainly does not reflect the expressed original intent of those involved in the creation and adoption of the Constitution. The challenges to the positivist position, however, go even deeper than this. As Jaffa points out, because the Borkians maintain that the Constitution is sufficient in itself to support adequate interpretation, they find themselves in great difficulties when attempting to deal with its intrinsic contradictions and compromises. Nowhere is this challenge more evident than in their difficulties with the reservation of rights to the people in the Ninth Amendment. It reads as follows:
This statement manifestly presupposes, first, that the Constitution "enumerates" certain natural rights that the Federal Government is forbidden to infringe upon or prohibit; it does not positively confer those rights upon the people; and, second, that there exist other natural rights not enumerated in the Constitution that the people have and retain. James Wilson, credited by some with as much responsibility for authorship of the Constitution as James Madison, acknowledged the absurdity of this proposition in arguing against a Bill of Rights (but not against the Ninth Amendment): ... Who will be bold enough to undertake to enumerate all the rights of the people? And when the attempt to enumerate them is made, it must be remembered, that if the enumeration is not complete, everything not expressly mentioned will be presumed to be purposefully omitted. So it must be with a bill of rights, and an omission in stating the powers granted to the government is not so dangerous as an omission in recapitulating the rights reserved by the people (James Wilson, as quoted in The Debate on the Constitution, Vol. I, p. 808) The Ninth Amendment is most reasonably understood, and at the time of our nation's founding was clearly understood, to refer directly to the tradition of natural, and hence inalienable, rights as argued in hundreds of documents throughout the period and eloquently summarized in the Declaration of Independence. If, however, the Borkians are correct and all of the rights possessed by citizens are positively conferred by the Constitution, then the Ninth Amendment becomes a nullity, something impossible to comprehend and hence disposable. It is, therefore, not surprising that Judge Bork is quoted as arguing that the words of the Ninth Amendment are "a meaningless inkblot" (P. 47). This preference for interpreting a constitutional amendment as nonsense is a virtual libel of the drafters of a document that may be the most deliberatively crafted Constitution in world history. Is this not itself a kind of flagrant judicial activism, in effect writing the Ninth Amendment out of the Constitution?
The central difficulty with Jaffa's position as articulated in Storm over the Constitution is his equation of natural law and natural right principles in describing the original intent of the founders. By equating natural right and natural law, Jaffa attributes theological natural law sentiments and convictions to the Founders where their actual positions expressed the rationalist tradition of natural rights. By repeatedly attempting to integrate revelation and natural right, Jaffa inappropriately imports Judeo-Christian moral principles founded on natural law into the morality of the Constitution. This confusion has far-reaching implications not only in the viability of Jaffa's position but in the conclusions he reaches for how to resolve important issues of Constitutional interpretation Jaffa offers strong (and, we think virtually irrefutable) evidence that the Founders original intent was an expression of moral and political convictions that were commonly held and debated the time of our founding. In the process of defining original intent however, Jaffa repeatedly use is "natural law" and "Judeo-Christian ethic" in the same sentence to describe the philosophical context of the founders, commonly implying that they are one and the same. Where he might accurately demonstrate the reliance of the founders on the natural right tradition, Jaffa instead finds evidence for reliance on theological natural law .In fact, he not only implies but suggests it directly, as in his discussion of Reverend Samuel Chase: & the dictates of reason are the dictates of God as much as those revealed in the sacred oracles (P. 66, emphasis ours) Although Jaffa at one point (see p. 55 67) offers a reasonable foundation for a purely rational justification of natural law, he seems more intent on proving that reason is equal to or the same as revelation than demonstrating the sufficiency of reason for an understanding of natural law. This might be useful in persuading the religious minded to consider the natural law tradition, but it creates tremendous difficulties in persuading the nonreligious minded. In reference to human will and the human mind's ability to abstract, Jaffa asks, "What difference does it make whether we call it God or agent intellect?" (p. 62) We (along with the Borkians) are forced to answer all the difference in the world. In the all-important attempt to resurrect the "spirit of the law," the original intent of the Constitution, from the positivism of the lawyers, Jaffa unnecessarily and provocatively opens the door to religious debate. By conflating Christian theological and Enlightenment rationalist conceptions of natural right, he mistakenly and, in our view, unnecessarily imports doctrines of revealed religion into secular interpretation of a civil constitution. As we will suggest below, natural right and needs no reference to any religious tradition for a foundation or legitimacy. In fact, any attempt to do so actually compromises its legitimacy. To be clear, Jaffa does not deny or repudiate the rational, nonmystical basis of "natural law." In fact, he correctly suggests that rationalist natural law notions were "in the air" and in the minds of the Constitution's framers and ratifiers: 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 (Jaffa 1999, p. 65). Rather, Jaffa's problem is that, in trying to reconcile the rationalist natural law tradition and the Judeo-Christian tradition, he contaminates the rationalist natural law tradition with all the problems of religion. In the process, his position defiles the secular natural law/natural right conception, and compromises both its political utility and its universality. When Jaffa suggests that God is the source of natural rights, he immediately alienates all those whose objections to religious dogma inform their philosophy from considering the legitimacy of the rational basis for natural right. Most importantly for the purposes of this review, the Borkians almost universally attribute this error to Jaffa's position. Many of the arguments against Jaffa's position stem directly from the confusion he invites between natural right and a Judeo-Christian ethical interpretation of natural law. The Borkians appear to identify natural right and natural law claims exclusively with a religious tradition and overlook their Enlightenment and Deist foundation and roots (see, for example, Professor Graglia's statement quoted above). Part of Jaffa's problem is that, in discussing the philosophical context of the Founders, he fails to acknowledge or explicate the Deist conception of nature on which Enlightenment notions of natural law and natural right were largely founded. Without clarification and understanding of the Deist conception of "the Laws of Nature and of Nature's God" as referred to in the Declaration of Independence, we cannot rightly understand their intended significance. We therefore turn to consideration of the differences between a specifically Judeo-Christian and a Deist conception of natural law. D. Deism: A Nonreligious Foundation for Natural Law During the seventeenth and eighteenth centuries, the European understanding of the world was undergoing radical changes. Isaac Newton had provided what appeared to be a remarkably complete explanation of the previously incomprehensible forces of nature; knowledge was being tied increasingly to experimental science; the literature of comparative religion and religious tolerance was on the rise; the Divine Right of Kings and the divine order of social ranking were being discredited; and a rational critique of the truth of the Bible and Christianity was becoming commonplace. In light of these trends, a new understanding of the natural order of the world was being formulated. This understanding was widely expressed among Enlightenment humanists in the philosophy and theology of Deism. In simple terms, Deism as most widely understood holds (1) that an unknowable God, Creator, or First Cause created the universe, and then absented itself from earthly involvement; (2) that we can deduce the natural laws of existence from the rational study of creation, or nature, including precepts of human morality and just civilization, which are intrinsic to the nature of human beings; (3) that any asserted "revealed truth" that does not conform to rational knowledge is thereby demonstrably invalid. This leads, for example, to such arguments as a Deist denial of the resurrection and special divinity of Jesus. A common list of expressly or implicitly declared American Deists not only includes Thomas Paine, Ethan Allen, and Benjamin Franklin (all notoriously Deist), but also George Washington, John Adams, Thomas Jefferson, and James Madison. The prevalence of Deism among the Founders has been characterized as "One of the embarrassing problems for the early nineteenth century champions of the Christian faith [because] not one of the first six Presidents of the United States was an orthodox Christian" (Adler 1968, p. 420). This assertion is founded on a variety of contemporary and near contemporary sources (see, for example, Remsburg 1906, 119 122.) We must interpret the references to the "Creator" and the "Laws of Nature and of Nature's God" in the Declaration of Independence in this Deist context if we are to interpret them with historical accuracy and integrity to the Founders original intent. Unfortunately, by slighting the Deist context of Enlightenment conceptions of natural right, while suggesting that the reference in the Declaration of Independence to the "Creator" and "Nature's God" refer, in effect to the God of Christian revelation, Jaffa confuses the rationalist concept of natural right with revealed religion. Jaffa is explicit in drawing his interpretation of the Founders meaning from the Bible. While examining the words "good" and "created" as used in the Declaration of Independence, for example, Jaffa (referring to Genesis) asserts that "the meeting of these words is drawn from the Bible." (p.58). He thus distorts the conception of natural right that guided the Founders thinking and compromises its utility as an objective, rational guide to constitutional interpretation. The Borkians, like Anastapalo - who is otherwise much in agreement with Jaffa's constitutional views - may thus see the Jaffa position "as a way of surreptitiously foisting revealed, as distinguished from natural, religion upon the citizen body" (Anastapalo, p.321) in exposition of a mystical political theology rather than rationalist political philosophy. An illustration of this that relates to contemporary constitutional interpretation may be Jaffa's suggestion that homosexuality is "unnatural," and hence that the natural law tradition would take such behavior outside of constitutional protection. Homosexuality might be unnatural to traditional Judeo-Christian sensibilities, but it remains to be demonstrated whether it is in conflict with notions of natural right rightfully understood. In sum, if we are going to accept natural right as the basis for understanding the "original intent" of the founders as Jaffa suggests, we must be rigorous in distinguishing between a purely rationalist formulation of natural right on the one hand and the Judeo-Christian (Thomistic) tradition of natural law on the other. Without such care, we open the door wide to a Judeo-Christian oriented judicial activism. It is precisely this kind of judicial activism the Borkians accuse Jaffa of promoting, and not without good reason. In our view, the most essential ideas in Jaffa's work can easily be grounded in the Deist conception of natural right and may be profitably used to address challenges in constitutional interpretation while avoiding the difficulties that follow from a religious construction. Another major challenge to Jaffa's work in Storm Over the Constitution is, most essentially, a sin of omission. While Jaffa refers to natural law principles and cites the Declaration of Independence, he does not define natural law sufficiently for use as a standard to apply to constitutional interpretation. The Borkians rightly argue that even if some notion of natural law was involved in the Founders original intent, the concept of natural law as summarized in the Declaration of Independence is so poorly defined that it opens the door wide to judicial activism and can be used (as it has been used) to support contradictory positions on many issues. Although he refers constantly to the principles of natural law, Jaffa never undertakes to list these principles, or even define or describe them, except by reference to the few phrases quoted ... from the Declaration of Independence. To a lawyer, at least, this is highly unsatisfactory (p. 133). To constitute effective judicially enforceable law, statements must provide meaningful guidance to those to whom they apply, and they must limit the discretion of those who apply them. Nothing could be clearer, it seems to me, than that the quoted phrases from the Declaration do not do this; they may be useful as exhortations or aspirations, they may embody the core of religious tradition, but they are not useful as rules of law (p. 131). Now that we have outlined the Enlightenment and Deist philosophical context of the Founding Fathers, we can better articulate how natural right principles may be applied and produce a set of standards for constitutional interpretation.
A. A Return to Fundamentals: Grounding Natural Rights in Rational Experience Storm Over the Constitution brings to our attention a powerful struggle between the positivist lawyers who want to protect the Constitution from judicial activism by rigorously maintaining the letter of the law, and Jaffa who wishes to protect the Constitution while preserving the spirit of the law. We have seen that a purely positivist position on constitutional interpretation cannot resolve inconsistencies within the Constitution itself, nor adequately reflect the original intent of the framers and ratifiers. To adapt Lewis E. Lehrman's formulation (in effect following Chief Justice John Marshall), "judges cannot know in such cases what the positive law of the Constitution is unless they know what natural right is" (Lehrman, 1994, p. 7). We have also seen that the concepts of natural law and natural right, while essential to an understanding of original intent, may be abused by judicial activists whether New Age, Christian, Socialist, or partisans of any other dogmatic or fashionable doctrine if these concepts are not clearly defined or understood in their historical Enlightenment and Deist philosophical context. It becomes critical, therefore, if any civil reconciliation of the debate in Storm Over the Constitution is to be possible, to define the Enlightenment view of natural right to serve as a guide to constitutional interpretation. We attempt to do so here. We believe that a Deist formulation of natural right is (1) sufficiently well defined to meet originalist objectives supported by both Jaffa and the Borkians, and (2) "provide[s] meaningful guidance to those to whom they apply, and limit the discretion of those who apply them" (p. 131). We do not claim that our approach is a definitive formulation. It is, rather, a working hypothesis as to how more exact inquiry into, and consideration of, the political meaning intended by the Founders in their references to natural right and natural law may provide a basis for civil resolution of the issues raised in Storm Over the Constitution. We begin this analysis by restating Jaffa's original thesis that if the phrase "original intent" is to have any significance, inquiry into the original intentions of the Founders in forming this republic must, inescapably, begin with examination of the first document issued by the United States of America in Congress assembled: the Declaration of Independence. As Jaffa has pointed out, writing of Jefferson and Madison: These two ex-presidents and Founding Fathers concluded and recommended to the Board of Visitors [of the University of Virginia], of which both were members and Jefferson was president that, of the "best guides" to the principles of the Constitutions, of Virginia, and of the United States, the first was "the Declaration of Independence as the fundamental act of Union of these States" (Jaffa 1994, 22, citing Writings of James Madison, Hunt. ed., Vol. IX, 221, and The Complete Jefferson, Padover, ed., 1112). The seminal proclamation of that Declaration is its world historical proposition: 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.... (emphasis added). As Jaffa suggests, these words from the Declaration of Independence summarize the essential political propositions of the natural right tradition informing the Revolutionary (and post- Revolutionary) American moral and political conscience. Similar lists of inalienable rights are to be found in numerous state constitutions and bills of rights of the same period, and demonstrate wide indeed, general acceptance of this formulation (see, for example, Jaffa 1994, p.31), especially as specifically enumerated in the first ten amendments. As Jefferson described his intent in drafting these words: This was the object of the Declaration of Independence. Not to find out new principles, or new arguments, never before thought of, not merely to say things which had never been said before; but to place before mankind the common sense of the subject, in terms so plain and firm as to command their assent, and to justify ourselves in the independent stand we are compelled to take. Neither aiming at originality of principle or sentiment, nor yet copied from any particular and previous writing, it was intended to be an expression of the American mind, and to give to that expression the proper tone and spirit called for by the occasion. All its authority rests then on the harmonizing sentiments of the day, whether expressed in conversation, in letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, &c. (emphasis added) (Letter to Henry Lee, cited above) Or as John Adams put it, 'there is not an idea in [the Declaration of Independence] but what had been hackneyed in Congress for two years before" (as quoted by Boaz 1997, pp. 43 44). At the heart of the Declaration of Independence's summary of "the common sense of the subject" is an assertion of the natural capacities of a human being free from coercion described perhaps most definitively by the secular spiritual father of the Founders, John Locke, in his Second Treatise on Civil Government: To understand political power aright, and derive it from its original, we must consider what state all men are naturally in, and that is a state of perfect freedom to order their actions and dispose of their possessions and persons as they see fit. Within the bounds of the law of nature, without asking leave or depending upon the will of any other man.... ... The state of nature has a law of nature to govern it, which obliges everyone; and reason, which is that law, teaches all mankind who will but consult it, that, being all equal and independent, no one ought to harm another in his life, health, liberty or possessions... (emphasis ours). If, that is, our civil government is sufficiently established to free us from the constant fear of being subjected to the physical force of others, we are freed from a constant fear of being murdered (which, in Thomas Hobbes's view, was the "state of nature"). This is the right to life referred to in the Declaration of Independence. Under such circumstances, we are then also free to make and act on our own decisions our right to liberty and, therefore, free to pursue our own happiness as we see fit. Because all "men" who are not mentally incompetent are essentially equal owners of such native capacities; all "men" have equal rights to enjoy such liberty. Hence, when people voluntarily form political communities, they institute governments specifically designed to protect these liberties for each individual in the community and, in broader terms, "to establish Justice." These rights to life, liberty, and the pursuit of happiness are self-evident, natural, inalienable, fundamental, and individual human rights. They are self-evident because they are immediately and universally experienced in every rational individual's consciousness and evidenced in all human behaviors whenever a person is free from coercion. The central feature of human beings is their ability to choose their course of action by a process of thought, according to the goods they cherish. They are natural because they describe attributes and capacities intrinsic to the very consciousness of mentally competent human beings. They are inalienable because, even if one attempts to contract them away, the nature of a human being will be to act to achieve what he determines to be most valuable. We cannot contract away our essential nature, even if we want to. These rights are also fundamental because our ability to realize our human capacities most fully depends, above all, upon our not being prevented from exercising such freedoms. Without these rights, all "higher" forms of health, wealth, and happiness are in constant jeopardy. The respect and protection of these rights creates the context in which the ordering of our lives, the acquisition of property, and the pursuit of happiness are made possible. They are individual rights because it is the individual human being that lives or dies, thinks, makes choices, acts on those choices, and determines the ends he or she will pursue. How government can best secure the liberty and happiness of each individual was the focus of Enlightenment political thought. As Jaffa suggests more generally: 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 that what is meant by the natural law foundation of the Constitution (p. 67. Most important to the truly revolutionary Enlightenment view of the Founders, these are "rights" because an inherent equality exists among all individual mentally competent "men" in their capacity to choose their own course of action. This fundamental equality means that no one neither king, nor bishop, nor legislator can justly be given the power to deprive other human beings of their freedom to exercise this capacity in their personal or public life, except to protect the exercise of similar rights by others. The government was to be ordained and established, not by the divine right of kings, nor the superior strength of a conqueror or leader, but by the collective will of the individual citizens who ordain it. Again, "to secure these rights [of life, liberty, and the pursuit of happiness], Governments are instituted among men deriving their just powers from the consent of the governed." It is the focus on this intrinsic concept of justice as understood through natural law that forms the focus of Enlightenment political theory and speaks most directly to the framers' and ratifiers' "original intent." In applying these natural right principles of original intention to determine the constitutionality of any particular piece of legislation, it is important to recognize that these "rights" are essentially negative in character. They negate a threat to our life, liberty, and ability to pursue happiness. The purpose of government is to secure us against interference by government or other persons acting to violate these rights. Or to put it another way, the U.S. constitution does not confer positive rights to individuals or groups, but safeguards them against transgression of their natural rights. In sum, it is protection of these natural rights of individuals from external coercion that forms the heart of the natural right political tradition. As the constitution's preamble states (in its beginning and conclusion): "We the people of the United States, in order ... to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution." The U.S. constitution created a government of limited powers. When we examine the constitution, we find that every article and clause concerns the authorization and regulation of governmental power. It does not regulate the behavior of its citizens, but of the government in relation to its citizens. Specifically, it provides the government the power to protect the rights of its citizens and limits the ability of government to violate those rights. This is the understanding of natural right and natural law stated in various forms in hundreds of documents, speeches, and pamphlets at the time of our nation's founding. This is the moral and political philosophy that the framers embodied in the Constitution and used to promote its ratification. It is a philosophy, not a theology. We suggest that these principles of natural rights and natural law, so understood, are sufficiently defined and clear to help properly guide reconciliation of inconsistencies in the Constitution according to the essential original intent of the Founders. Although this formulation of natural right may not be sufficiently precise to resolve every challenge to faithful interpretation of constitutional ambiguity, its acceptance could provide helpful guidance in most cases. Moreover, with continued research and refinement, it can lead the way toward an increasingly precise and principled understanding of original intent; one that can be widely understood and accepted by those who choose to approach the questions involved with a more truly historical interpretation and analysis. A distracting feature of Storm Over the Constitution is vitriolic tone of the arguments. As one aggressive response incites another, the writings become more condescending and ad hominem. It seems that rather than attempting to understand and honor the contributions each author offers to the discussion, the participants were more eager to demonstrate the mistakes and ignorance of the other party. In the process, the quality of communication breaks down, and the arguments become more dogmatic and focused around positions. Experiencing such an uncivilized discourse about the foundations of a civilized society is ironic to say the least. We suggest that such a breakdown in discussion on such a fundamental issue heralds a fracture in the solidity and security of our society that the first modern political scientist Machiavelli predicted was the potentially tragic fate of long enduring republics. In Book III, Chapter 1 of his Discourses on the First Ten Books of Livy (1521), Machiavelli wrote:... And those are the best constituted [political] bodies, and have the longest existence, which possess the intrinsic means of frequently renewing themselves. And it is a truth clearer than light that, without such renovation, these bodies cannot continue to exist; and the means of renewing them is to bring them back to their original principles. Storm Over the Constitution, in effect, depicts a crisis in our republic of exactly the kind Machiavelli wrote about in his description of the degeneration (and means of restoration) of longstanding republican regimes. The debate in Storm Over the Constitution indicates dissolution of the principles on which our republic was founded. As we have argued, we believe that a proper understanding of the Enlightenment principles of natural law, divorced from religion, may furnish a means for renewing our republic and a potential common ground between Professor Jaffa and the Borkian positivists. Their acceptance does not rely upon the workings of Divine Providence in the affairs of men, nor does it exclude it. Renewal of recourse to those original principles would, moreover, provide a healthy renewal to the vitality of our long enduring republic. Acceptance of the Declaration of Independence as a prudent summary of the natural right principles upon which our Constitution was founded would reaffirm and give meaning to our Constitution as an instrument designed both "to establish Justice" and "secure the Blessings of Liberty to Ourselves and Our Posterity." As Jaffa poignantly asks, "Why should the understanding of these general principles, which guided the framers and ratifiers of our constitutions, not guide judges in construing those same constitutions?" (P. 67] VII. CONCLUSIONStorm Over the Constitution is a significant book. The debate it records is immediate, important, and has crucial implications for the future of our American republic and the security of our civil liberties. Both sides have valid concerns, which must be integrated if our country is to continue a second two hundred years. One might say, in fact, that since its central subject is the very nature of our civil government as regulated by our Constitution, the debate calls for nothing less than the most civil and serious conversation possible among the contending parties. After all, the continued security of our rights to life, liberty, and the pursuit of happiness are at stake. We have suggested that reconciliation between Java and the Borkians positivists on the question of original intent and constitutional interpretation may be possible. We can bridge the gap between Jaffa's desire to use the principles of natural law and the Borkians insistence on a nonreligious and well-defined standard judgment, through a nonreligious, philosophical Enlightenment clarification of natural right and natural law, specifically a consideration of negative individual rights. The potential value of continued research can hardly be doubted: It could provide nothing less than refreshment and reinvigoration of the principles that have made our republic endure for as long as it has. It would provide our Justices with a sufficiently precise and principled understanding of original intent to guide its judicial interpretation where its text is inadequate to decide cases because of ambiguity, inconsistency, or omission. Without searching and serious consideration of the principles of government the Founders and ratifiers actually intended for our Constitutional system, as they understood it, any judicial construction of the Constitution ostensibly founded on original intent seems to us to become a hollow misuse of the phrase. REFERENCES Adler, Mortimer. "Religion and religious groups in America." Volume 2, chapter 22 in Great Issues in American Life. Chicago: encyclopedia Britannica, 1968. Anastapalo, George. But Not Philosophy, Lexington Books, Lanham, Maryland, 2002. Boaz, David. Libertarianism. New York: Free Press, 1997. The Debate on the Constitution. Library of America. New York: Literary Classics of the United States, 1993. Jaffa, Harry V., with Bruce Ledewitz, Robert L. Stone, and George Anastapalo. Original Intent and the Framers of the Constitution--a Disputed Question. Washington: Regenery Publishing, 1994. Jefferson, Thomas. Letter to Henry Lee, May 4, 1825. In Thomas Jefferson, Writings. Library of America. New York: Literary Classics of the United States, 1984. ___. Letter to William Johnson, June 12, 1823. In The Complete Jefferson. Edited by Saul K. Padover. In Irvington, New York: 1986. Remsburg, John E. Six Historical Americans. New York: Truth Seeker, 1906. Mark Michael Lewis |
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