Misrule of Law

See also my essay entitled “‘Bad Originalism’: Harry Jaffa’s Toxic Constitutional Legacy” (here). And thanks to Paul Gottfried at Chronicles (here).

Today, Ed Erler responded with the latest volley in a tedious debate over unenumerated (or “unwritten”) rights supposedly lurking in the Constitution. The full exchange can be found at American Greatness (here and here). I do not intend to respond to Erler’s increasingly splenetic arguments, which channel the eccentric views of his former teacher, Claremont’s Harry Jaffa. I posted this comment in lieu of a reply:

Oh my. I will spare American Greatness readers the tedium of further exchanges, but I must point out several glaring errors in Erler’s surrebuttal: 1. I never stated (or suggested) that “the Declaration was a dangerous idea.” This is a lie, and AG’s editors should be ashamed for publishing such a laughably false statement. What I said is that the Declaration is not enshrined in (and does not substitute for) the Constitution itself. 2. Erler continues to insist that that states did not ratify the Constitution. The Constitution says otherwise. Article VII states that “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.” Article V makes constitutional amendments dependent on ratification by “three fourths of the several States.” 3. Erler convincingly demonstrates why Jaffa has never been taken seriously by constitutional scholars (or the Supreme Court) when he repeats the risible denunciation of Bork, Scalia, and Rehnquist–three conservative icons–as deluded positivists engaged in “moral relativism.” Instead Erler cites Kennedy’s “mystery passage” in Casey as a correct application of natural law and unenumerated rights. I rest my case. 4. Erler also reveals why “natural law” is an outlandish and unworkable guide for constitutional interpretation when he argues that state legislatures lack authority to legalize abortion or same-sex marriage. This fringe theory is far outside of the mainstream of constitutional scholarship, and is incompatible with federalism and democratic self-government. American Greatness forfeits its credibility as a journal of opinion by giving a platform to such crankish notions.

I am embarrassed for American Greatness.

P.S. Professor Lee Strang, currently a Visiting Fellow at Princeton’s James Madison Program, convincingly refutes the Jaffa thesis in a recent article in the Harvard Journal of Law & Public Policy (here). The full text is here.

P.P.S. Erler, who posted two comments to his own article in American Greatness, continuing a ceaseless argument from which I had chosen to disengage, sua sponte wrote a follow-up piece (obligingly published by the Claremont-affiliated American Greatness, now serving as the newsletter for the Harry Jaffa Fan Club) attacking me (!) for Lee Strang’s article, and purporting to rebut the article without even linking to it. This behavior is exceedingly odd, on the part of both Erler and the editors of American Greatness. I should have expected as much from a Jaffa disciple emulating both the pugnacity and doctrinaire rhetoric of his mentor, but I am very disappointed in American Greatness, which has proven to be more loyal to the Claremont cult than to its professed editorial mission of promoting the MAGA agenda. Live and learn.