Making Constitutional Law Great Again

Harry Jaffa advocated a fringe theory of the Constitution that is untenable and unworkable as constitutional law

This essay appeared in American Greatness on March 24, 2019 (here). Thanks for the links, by: Real Clear Policy (here), the Minnesota Sun, the Ohio Star, and the Tennessee Star! Thanks also to The Originalism Blog (here).

Claremont-trained political philosophers represent some of the strongest voices in conservative intellectual circles, but many of them share a flawed view of the Constitution, expressed vigorously—and sometimes splenetically—by the late Harry V. Jaffa.  Edward Erler’s recent essay, “Don’t Read the Constitution the Way Robert Bork Did,” channels both Jaffa’s truculent spirit and the doctrinaire position of West Coast Straussians, complete with familiar—albeit irrelevant–references to Abraham Lincoln and the Declaration of Independence. Unfortunately, Erler’s essay illustrates why the Left’s conception of constitutional law is ascendant while conservatives continue to dither: Unlike progressives, discordant conservatives have been largely ineffective in articulating—let alone advancing—a coherent vision of constitutional law. 

As I explained at greater length elsewhere (here and here), conservatives are all over the map when it comes to constitutional interpretation, and spend as much time in internecine feuds as they do in battle with liberal activists. Jaffa notoriously picked fights with respected conservative legal figures such as Robert Bork and Antonin Scalia, and espoused fanciful theories that have never been embraced by mainstream originalists (and almost certainly will never be adopted by a majority of Supreme Court justices).

Not surprisingly, therefore, the Left has made consistent advances, while fractious conservatives often chase their tail. Erler persists in this futile gambit, repeating discredited nostrums and making numerous errors.  Rather than advance a workable theory of constitutional law, he finds common cause with libertarians who would have unelected judges divine new “rights” in séance fashion with unwritten “natural law” serving as the ersatz crystal ball. Erler concedes that Justice Kennedy’s risible “mystery passage” from the Casey case is an inevitable consequence of this approach.

Erler’s response to my articles (here and here) rests on a number of false premises. He contends that the states did not exist as separate sovereign entities prior to the Constitution (and, thus, the Constitution cannot be a compact among the states); the Declaration automatically formed the United States as a single national entity; the Declaration is central to the Constitution; and “natural law” lurks invisibly in the Constitution, waiting to be “discovered” by discerning judges. None of these contentions withstands scrutiny. For that reason, his entire analysis fails.

The Declaration served an important but limited role in the Founding. The Declaration was merely a proclamation of secession of the 13 colonies from Great Britain. As Matthew Franck pointed out in Against the Imperial Judiciary (1996), the Declaration was not a charter of government. (Scalia agreed in A Matter of Interpretation (1997), describing the Declaration as reflecting only philosophical “aspirations.”) The Declaration cannot possibly be regarded as a social compact—let alone a “quintessential statement of social compact”—because it was never ratified by the states (or the people). It simply declared that the colonies would henceforth be “Free and Independent States.” The purpose of declaring independence was not to live in an anarchic “state of nature,” but to permit the former colonists to institute governments (plural) “deriving their just powers from the consent of the governed,” in order to secure their natural rights. In a civil society, positive law (statutes and constitutions) serve that purpose. The U.S. Constitution was drafted 11 years after the Declaration was signed, and fully ratified some 14 years after.

The Articles of Confederation officially created “the United States of America. The Articles of Confederation, approved by the Second Continental Congress on November 15, 1777 and ratified by all 13 states on March 1, 1781, comprised a loose federation of the states, which continued until the Constitution was drafted in 1787 and ratified by the requisite number of states (nine) in 1788. The Articles referred to the confederation as “The United States of America” but expressly stated that “each state retains its sovereignty, freedom and independence.” The Constitution was drafted because the individual states realized that the confederation created by the Articles was too weak to be effective. The states clearly existed prior to and independent of the Constitution. It is absurd to contend otherwise.

The Constitution is a “compact of the states.” The Constitution became effective, by its own terms, upon the ratification of nine states in 1788, representing three-quarters of the then-existing states. U.S. Constitution, Arts. V & VII. The last state to ratify the Constitution, Rhode Island, did so in 1790. In Federalist 39, Madison referred to ratification by “the distinct and independent states.” Each state, he explained, was “a sovereign body independent of all others.” In Federalist 45, Madison assured readers that “the states will retain under the proposed Constitution a very extensive portion of active sovereignty.” Madison described the government to be formed by the proposed Constitution as dual sovereignty, constituting a “federal” rather than a “national” government. The Constitution took effect, and the federal government began to operate on behalf of the participating states, upon the ratification of the first nine states. The remaining four states joined the U.S. and became subject to the Constitution upon their ratification. The Bill of Rights—and in particular the 10th Amendment–was added to protect the sovereignty of the states. This is the essence of federalism—a concept that Jaffa’s fervid disciples apparently can’t fathom.

State constitutions predated the Constitution (and in some cases the Declaration itself). Despite what the 16th President may have said, possibly for self-serving reasons, historians agree that four colonies adopted constitutions even before the Declaration was signed on July 4, 1776, and the remaining states either drafted constitutions or revised their colonial charters during the Founding period. This is confirmed by references to existing state constitutions throughout The Federalist Papers, especially the discussion in Nos. 47 & 48. Denying the existence of antecedent state constitutions is bogus history, worthy of Howard Zinn, not a Claremont Institute senior fellow.

The Declaration is not central to the Constitution. The Declaration is never mentioned in the Constitution, in the 14th Amendment or otherwise, and is scarcely mentioned in The Federalist Papers. The Declaration’s author, Thomas Jefferson, was absent from Philadelphia—indeed, in Paris, serving as minister to France—during the constitutional convention. True, the Constitution was enabled by the Declaration, but inapt Biblical imagery of golden apples and silver pictures cannot alter the Constitution’s status as our ultimate positive law. Slavery was eradicated, not by treacly sentiment or pious philosophizing, but by a Civil War and constitutional amendments–positive law, in other words.

Natural law does not infuse the Constitution. If the Framers believed that “natural law” (whatever that is) was sufficient to govern their affairs, what was the point of drafting the Articles or the Constitution? Scalia described the Constitution as “a practical and pragmatic charter of government,” and so it is. Like all written laws, it is a text, the moral authority of which–the consent of the governed—depends on government officials honestly enforcing its express terms. In a system based on popular sovereignty (“we the people”), there is no room for unelected judges to impose their will in the form of imagined or desired provisions—a ruse that Erler feebly attempts to dignify with the oxymoronic labels “substantive due process and substantive equal protection rights.” Jaffa had a long-running debate over natural law with Walter Berns. Berns made the better case; natural rights exist only in nature, and are not self-enforcing. Thus, man enters into civil society and seeks the protection of laws.

Among modern legal scholars, Michael McConnell is regarded as the most meticulous and reliable student of constitutional history. He concludes that the Ninth Amendment does not serve as a font of natural rights, and that, in any event, at the time of the Founding natural rights were not understood to override positive (or written) law. If “natural law” connotes deeply-held moral sentiment, aren’t the people, or their elected representatives, the best arbiters of such matters? Unelected judges are the least reliable barometers of the community’s “conscience.” Tellingly, Erler has nothing whatever to say about Obergefell, and lamely asserts—without explanation–that abortion rights fall outside the amorphous “ambit of the rights of conscience” that he believes lurk invisibly within the Constitution. The problem with pretending to discern such unwritten rights is that they are totally subjective, indeterminate, and susceptible to infinite manipulation and distortion—as we have frequently experienced at the hands of activist judges in recent decades. The Framers, practical men skeptical of human nature, put no stock in such dubious notions.

Due to space constraints, I refer the reader elsewhere for an explanation of why Bork, whom Erler unfairly maligns, is the most important legal thinker in the second half of the 20th century. President Reagan agreed with this assessment, which is why he wanted Bork to join Scalia—one of the greatest jurists in our nation’s history–on the High Court. (Jaffa also reviled Scalia.) Likewise, I will not repeat here the arguments (made in American Greatness and elsewhere) debunking the libertarian theory of “judicial engagement,” which Erler (like Jaffa) unwittingly mimics. I displayed no “animus” toward Justice Thomas, whom I compared to Homer and referred to as “normally exemplary.”

Finally, Erler cites Raoul Berger, author of the magisterial treatise Government by Judiciary (1977), as favoring a “reanimation” of the “privileges or immunities” clause of the 14th Amendment, but that grossly overstates Berger’s position. Erler contends that the 14th Amendment effected a “radical change” or “revolution” of the federal relationship, heralding the incorporation of the Bill of Rights and opening a Pandora’s Box of unenumerated rights. Berger disagreed, concluding that the 39th Congress meant only to assure that the recently-freed slaves were accorded the basic legal rights generally available to white citizens—to validate the provisions of the Civil Rights Act of 1866. The right to vote had to be guaranteed separately, and Berger is emphatic that the “limited purposes” of the 14th Amendment did not include encroaching on state sovereignty. Once again, Erler is totally off base.   

In sum, no one on the Right questions the ultimate source of our rights: They were endowed to us by our Creator. The question is, in a constitutional republic, how do we protect those rights? The Framers looked to representative self-government, tempered by federalism, filtered popular rule, the separation of powers, and the delineation of certain rights beyond the reach of majoritarian interference—all preserved in written constitutions at the state and federal level. Judges review the constitutionality of laws in the deliberate manner envisioned by Alexander Hamilton in Federalist 78—firmly tethered to the constitutional text. If the people want to protect additional rights, they can amend their state or federal constitutions to do so. This is the essence of sound constitutionalism and the rule of law, not Lincoln idolatry, utopian resort to Platonic Guardians, or parroting the eccentric—nay, silly–rhetoric of cantankerous ideologues.  

How can we make constitutional law great again? To paraphrase the title of Erler’s article, don’t misread the Constitution the way Jaffa did.

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