Misrule of Law

The notoriously contentious scholar left behind a trail of foolish notions and bizarre invective. Why do his followers persist with this counterproductive nonsense?

Thank you to Real Clear Policy and The Originalism Blog (here) for the links. And to LewRockwell.com (here). And to Paul Gottfried in Chronicles (here).

My recent exchange (here, here, here, here, here, and here) with a disciple of the late Harry V. Jaffa, the vituperative political philosopher long associated with Claremont McKenna College, prompted me to explore in greater detail Jaffa’s many feuds with leading conservative figures, such as Chief Justice William Rehnquist, Associate Justice Antonin Scalia, former Attorney General Ed Meese, Judge Robert Bork, law professor Lino Graglia, and noted constitutional litigator Chuck Cooper of the law firm Cooper & Kirk (who clerked for Rehnquist and served in the Department of Justice under President Reagan)—all of whom he harshly condemned. [1] These feuds were pursued for the most part in the pre-digital age, and cannot easily be accessed in detail via the Internet. Accordingly, I recently obtained a copy of a 1999 compilation of Jaffa’s essays on the Constitution, Storm Over the Constitution, that is a fascinating summary of his eccentric views. Storm Over the Constitution features a Preface by Larry P. Arnn, an Introduction by Edward J. Erler, and essays by Graglia and Cooper (reprinted from elsewhere).   

Here are some highlights:

Jaffa compared Bork to Confederate States of America President Jefferson Davis (page 1); he mocked Bork’s supporters for treating Bork like a “martyred saint of conservatism” (page 2); Senator Orrin Hatch’s defense of Bork is dismissed as a “hosanna” (id.); Jaffa compared Bork’s prose to “Andy Warhol’s Campbell’s soup can” (page 3); Jaffa declared that Bork “really has no principles” (page 4); Jaffa claimed that Bork’s bestselling book, The Tempting of America (1990), contains “innumerable errors” (page 8) and amounts to a “shambles” (page 50);  Jaffa resorted to his familiar technique of impugning the motives of his opponents by comparing Bork and others to John Calhoun (pages 20-23, 54, 74, 78, 82); Jaffa feigned embarrassment at the need “to instruct Judge Bork in these the simplest elements of the political philosophy of the American Founding” (page 23); Jaffa embraced the notion of “substantive due process,” the doctrinal foundation for Roe v. Wade and Obergefell v. Hodges (page 34); Jaffa also endorsed the dissenting opinion in The Slaughter-House Cases (1873) (page 46); Jaffa supported the open-ended reading of the Ninth Amendment that Justice Goldberg relied upon in Griswold v. Connecticut (1965) (pages 47, 81-82); and Jaffa charged that Rehnquist and Bork are guilty of “legal positivism” (page 53) –which he contended was “grounded in moral relativism and philosophical nihilism” (page 56)–for believing that political majorities are allowed to enact their moral preferences into law.

Jaffa’s tone in making these arguments was nasty, intemperate, and sometimes bitter, as if he resented the fact that the group of originalists he was criticizing had achieved much greater influence and esteem than he had (or ever would). Few prominent people in conservative legal circles (as opposed to the world of political philosophy) ever took Jaffa seriously, and that must have stung an ego as large as Jaffa’s.  Perhaps for that reason, Jaffa’s criticisms often turned personal, even vicious, as he allowed differences in opinion to become an excuse to engage in childish insults, arrogant taunts, and petty attacks. For example, Jaffa referred to Cooper as “Robert Bork’s Johnnie Cochran” (page 87). Jaffa’s essays were, moreover, annoyingly repetitive, tediously verbose, pedantic, and prone to circular reasoning. Reading such fanatical, mean-spirited invective flowing from the pen of a scholar blindly admired by so many cult-like acolytes made me cringe. These are the rants of a kook, I thought—a crank. How could his followers possibly find his vindictive rhetoric to be within rational bounds, let alone persuasive? I remain baffled. It is a mystery to me.

Many people supposed that Jaffa’s quixotic theory of constitutional law—resting on the premise that the Declaration of Independence infuses, and even transcends, the Constitution—and adherence to unwritten principles of natural law and natural rights that supposedly supersede the written text of the Constitution, were laid to rest upon his demise in 2015. The moral absolutes symbolized by the Declaration—discernable, Jaffa argued, through reason–impose immutable constraints that cannot be altered by the people through representative self-government. Jaffa believed, for example, that the Declaration’s overriding commitment to human equality would prevent the American people from repealing the Thirteenth Amendment (page 109). In other words, despite the amendment provisions in Article V, unwritten notions of “natural law” (to be divined by judges) would control over the express provisions of the Constitution itself. The Constitution, even if properly amended, could be unconstitutional! This is self-evidently absurd—even asinine.

It is difficult enough for committed constitutionalists to hew to the original meaning of the Constitution if they rigorously follow the document’s text. Ignoring the actual words of the Constitution in favor of ethereal concepts of “natural law” and “human equality” (among other “unenumerated rights”) invites—indeed, compels—subjective decision-making by judges who have shown themselves in many cases to be unprincipled activists. The aspirational language from the Declaration could—and certainly would—be putty in the hands of progressive judges. It is the role of judges to interpret the law, not to engage in moral reasoning (or some other abstract philosophical inquiry) from the bench. Jaffa’s naivete in ignoring the open-ended license for judicial activism that his untenable theory would confer on unelected judges is truly staggering. Perhaps political philosophers should leave constitutional law to lawyers.

During his lifetime, Jaffa tenaciously advanced his peculiar views and doggedly railed against anyone who disagreed. He “won” many arguments due to attrition; he wore his opponents out with endless (and ever more intemperate) disputation. Yet Jaffa’s disciples continue to parrot his eccentric views, even after his demise.

In Storm Over the Constitution, Jaffa frequently—and triumphantly–relied upon the concurring views of law professor Doug Kmiec, whom Jaffa characterized as a Republican stalwart with impeccable conservative credentials (e.g., pages 14, 47-48, 85). Inconveniently for Jaffa, Kmiec—even in his prime a maverick who evidently nursed a grudge against some of his conservative colleagues–subsequently went completely off the rails when he endorsed Barack Obama for president in 2008 and actively campaigned for him. When Obama became President, he rewarded Kmiec with an appointment as Ambassador to the Republic of Malta, a position Kmiec held for less than two years amidst considerable controversy, and from which he resigned in 2011. Kmiec later expressed interest in serving as Hillary Clinton’s running mate as vice president on an HRC-Kmiec ticket. Hillary declined. Running for Congress in Ventura County, California, in 2014 as an Independent candidate, Kmiec got a mere 2.3% of the vote. In short, Kmiec’s concurrence no longer has any credence, if it ever did.

University of Texas law professor Lino Graglia (now retired), whom I have profiled in Misrule of Law and the Texas Review of Law & Public Policy, [2] is arguably the most outspokenly-conservative law professor to have taught at a top-ranked law school in the past several decades. Graglia’s principal focus as a scholar was constitutional law. Graglia, one of the most passionate opponents of judicial activism, regarded Jaffa as a misguided—or even deluded–gadfly. Jaffa’s “campaign of vilification” against Bork and Rehnquist was, Graglia believed, “both sad and shabby” (page 127). Graglia rejected Jaffa’s view that “the Constitution incorporates the Declaration of Independence” (page 128), and felt that allowing unelected judges to divine the mandates of unwritten “natural law” would lead to even greater judicial activism—a concern shared long ago by Justice James Iredell in Calder v. Bull (1798).  Graglia noted that

The Constitution makes no mention of the Declaration of Independence, and Jaffa has not produced a single statement by anyone at the constitutional convention or during the ratification debates indicating that it was intended to incorporate the Declaration. (Page 130)

Calling Jaffa’s theory “incredible” (page 130), Graglia dismissed the lofty rhetoric of the Declaration as “exhortations or aspirations…not useful as rules of law” (page 131). Graglia concluded that Jaffa’s theory—predicated on the supremacy of the laws of nature and of nature’s God–ultimately rested on mystical notions amounting to a “religious exercise,” and not constitutional interpretation (page 134).

Chuck Cooper coined the label “bad originalism” to describe Jaffa’s novel theory, and pronounced that Jaffa was a “bad originalist extraordinaire” (page 140). “A bad originalist is just another judicial activist,” Cooper concluded (page 139). Reviewing Jaffa’s book, Original Intent and the Framers of the Constitution (1994) [3], Cooper objected to Jaffa’s tendency to resort to personal attacks, referring to him as a “master of the cheap shot” (page 141). Cooper explained the difficulty of subordinating the express provisions of the Constitution to one’s subjective notions of “natural law” based on the vague provisions of the Declaration: “[Jaffa] is certain that natural justice is objectively determinable through reason, and his writing drips with the moral conceit that he is possessed of the ability, ‘supplied by right reason,’ to discern the ‘philosophic truth concerning the just and the unjust, the right and the wrong, the good and the bad’” (page 144). The problem is, Justice Sotomayor or Justice Ginsburg is likely to reach a quite different result than Jaffa would, applying the same amorphous standards in séance-like fashion. Unwritten “laws” are inherently subject to arbitrary interpretation in accordance with judges’ personal predilections. It is nonsensical to suggest otherwise.

Because—in Jaffa’s daft world—unwritten principles of natural law override the written Constitution and even control the polity’s ability to govern itself through the legislature, Jaffa believed that legal protections cannot be extended to certain groups if doing so would offend nature. “Positive” (or written) law must conform to “natural law.” Allowing the elected branches to deviate from “natural law” constitutes “moral relativism.” Specifically, Jaffa believed that state legislatures are helpless under his vision of the Constitution to enact laws protecting homosexuals from discrimination (let alone granting them the right to same-sex marriage) because “sodomy and lesbianism …are unnatural acts and, being unnatural, the very negation of anything that could be called a right according to nature” (page 147).

Jaffa’s disciples, such as Edward Erler, continue this misguided campaign. Erler concurs that any legal arrangement other than traditional marriage—between one man and one woman—is constitutionally forbidden. Thus, not only is Obergefell wrong, but in the view of Jaffa and Erler courts should strike down any democratically-enacted recognition of same-sex marriage as contrary to “natural law.” Erler is emphatic on this point:

There is no doubt that the family is integral to the foundation of free society. But does that include all types of family structure? Polygamy? Same sex? Polyamory? Or is it simply a matter of indifference to be left to the conscience of the community (whatever that is)? Natural law or natural right easily answers that question: marriage is between a man and a woman; the family begins with the distinction between the sexes. Community conscience cannot be the standard because the conscience of the community is ever evolving whereas the principles that brought us our Constitution are permanent….

In other words, voters and elected officials are bound by the Jaffa camp’s conception of “permanent” natural law, and can never change the Constitution to deviate from Jaffa’s moral agenda, even by amendment or the unanimous consent of the polity. As Erler says, “Natural law placed moral limits on the majority—the majority, for example, could not approve anything that violated the laws of nature.” 

The same bizarre “reasoning” extends to other areas—abortion, for example. Jaffa objected to Roe v. Wade, but his theory of “natural law” would go even further than rescinding a constitutional right to abortion. As Erler confirms, Jaffa’s theory of  the Constitution holds that the right to life is protected by the Declaration, and therefore legislatures are powerless to grant any right to abortion. Abortion, Erler argues,

violates the right to life, one of the natural rights of the Declaration and a right incorporated in the Constitution and belonging to the privileges or immunities of U.S. citizens. It is a precept of natural law written into the plain text of the Constitution. It is a natural right—it does not have to be approved by the vote of a majority or the conscience of the community. According to the Declaration, it is a right—a natural right intrinsic to human nature—that has been endowed equally upon human beings by the Creator.

Jaffa and his disciples believe that, contrary to Bork, political majorities do not have the right to pass laws on any matters not expressly governed by the text of the Constitution. Instead, the Constitution is brimming with unwritten (or “unenumerated”) rights grounded in “natural law” or arising from the vague language of the Declaration. These “natural laws” are immutable and permanent, waiting to be discovered by judges. The people are helpless to alter the rules laid down for them by their black-robed masters.   Thus, Cooper rightly concludes, “Jaffa’s natural justice theory of constitutional interpretation is …the very negation of the idea of self-government” (page 147). Citizens in a free society are not slaves to judges’ conception of “natural law.” It is a ludicrous, untenable theory, laughable on its face, and repugnant to any serious student of democratic self-government, federalism, or civil liberties. [4]

Moreover, Jaffa’s theory is utterly impractical. No proponent of his theory would ever be nominated to the federal courts or be confirmed, and—aside from Harry Jaffa himself—no one could be trusted to reach the moral conclusions that he felt he had the unique capacity to reach. It is a preposterous theory that all rational people should repudiate. Instead of letting Jaffa’s addled rhetoric rest in peace, however, his disciples insist on resurrecting Jaffa’s ceaseless feuds, and for inexplicable reasons some “conservative” journals of opinion are intent upon giving his discredited theory a platform.  Drinking Jaffa’s toxic Kool Aid will not make America great again, or make constitutional law great again. It will only harm the cause of originalism, re-introduce incoherence and rancor into the conservative ranks, and bring disrepute to the conservative movement when Jaffa’s crankish views are cited by the Left as representative of center-right thought.

President Trump may have the chance to alter the course of the Supreme Court for decades to come. Center-right scholars should unite in advancing a mainstream theory of originalist jurisprudence. It is time to let Harry Jaffa, and his cantankerous constitutional theories, Requiescat in pace. Enough is enough.

[1] Disclosure: I am an admirer of each of the figures listed above, and wrote a retrospective on Bork for City Journal, entitled “The Original Originalist.”

 [2] Mark Pulliam, “Lino Graglia: The Happy Warrior Soldiers On,” 23 Texas Review of Law & Politics 387 (2019).

[3] I have also recently obtained a copy of this book and will write about it shortly.

[4] As the great scholar M.E. Bradford noted in his classic book, Original Intentions: On the Making and Ratification of the United States Constitution (1993), speaking of extra-textual innovations such as “substantive due process” and “natural rights”: “No written constitution or limited government of laws such as the Framers intended can coexist with such a doctrine.” Id. at 120.

P.S. Ed Erler responded in Real Clear Policy (here). I am pleased to join the pantheon of those attacked by the Jaffa cult. According to Erler (who does not deny making the absurd arguments I attribute to him), I “lack any talent for constructing a coherent argument,” exhibit “disdain for the Constitution,” become “hysterical,” and engage in “scribbling.” I rest my case.