A debate unfolded in March last year in American Greatness between Chronicles contributor Mark Pulliam and the Claremont Institute’s Edward Erler, a devotee of Harry Jaffa. According to Erler, Robert Bork and others who adhered to strict constitutional originalism were essentially moral nihilists because they would not apply natural law standards to our governing document.
From Erler’s Jaffaite perspective, the Constitution’s authors supposedly viewed the Declaration of Independence as America’s true founding text. The Founders supposedly felt the Constitution had to be interpreted through the passage in the Declaration about all men being created equal. That “natural right” principle enabled the Founders, and later Abraham Lincoln and Civil War-era Radical Republican Thaddeus Stevens, to grasp properly the Constitution’s true meaning. In contrast, Erler alleged, Bork and Pulliam’s morally adrift originalist views would uphold abortion laws and other outrages, provided they were enacted under constitutional rules.
Erler’s brief reveals questionable assumptions. For example, even assuming the authors of the Constitution thought the Declaration was important, we have no reason to think the Founders were infatuated with the phrase “all men are created equal.” There were certainly other thoughts found in the Declaration; perhaps the most relevant fact about it for the Constitution’s writers was that it recognized the independence of the American colonies. Praise for that document when I was growing up in the 1950s centered on the achievement of American independence, and far less on the equality that Erler wants us to celebrate.
Although Lincoln stressed a founding based on the notion that “all men are created equal,” he did so during the Civil War to justify a bloody invasion of the seceded Southern states, as driven by a crusade against slavery. Why should we make Lincoln’s wartime strategy the cornerstone of the American national experience going back to the gaining of national independence in 1776? And why would I think, like Erler, that Radical Republican efforts to create a permanent black electorate in the South, partly by stripping former Confederate soldiers of their citizenship, was driven by Harry Jaffa’s favorite passage in the Declaration? Why wouldn’t I rather think that Stevens and other ruthless business tycoons were just taking advantage of their onetime fellow-Americans who lost disastrously in a bid for independence?
According to Barry Shain’s voluminous study, The Declaration of Independence in Historical Context (2014), natural rights had a specific meaning for early Americans. It referred to rights to self-preservation, religious freedom, and national independence. Shain finds it impossible to extract from this limited understanding of rights the idea of a universalized democratic equality.
According to Shain, John Dickinson of Pennsylvania, who attended the Second Continental Congress as one of its most prominent members, regretted the mention of natural rights in the Congress’s proceedings. A monarchist, hoping for reconciliation with the British Crown, Dickinson insisted on “no claims, no rights” in petitioning the British sovereign. His view was not uncommon among the moderates in the Congress. In the Virginia Declaration of Rights promulgated in 1776, the principle of equality applies specifically to existing property rights, “Namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”
Although John Locke, whom the Claremonters place on a pedestal, spoke about natural rights, these inborn rights did not confer an equal right to citizenship. Locke lived easily with the institution of slavery and inserted passages protecting it into the Fundamental Constitutions of Carolina, which he drafted for property owners in the Carolinas in 1669. Those who came out of Locke’s mythic State of Nature had the right to accept or reject applicants for membership in civil society.
In any case, Locke’s notion of equality was far more limited than the modern egalitarianism promoted by Jaffa or Erler and did not exclude the protection of human bondage. Locke invested without apparent scruples in the Royal African Company that monopolized England’s slave trade.
Although Locke made frequent references to natural law as well as natural rights, he viewed them as different concepts. While the latter was about the rights to self-preservation and property, the former was about duty, e.g., the obligation not to steal and the care that parents owe children. With due respect to Erler, it is impossible to figure out what Locke’s position on the Obergefell decision legalizing gay marriage would have been from the references to Natural Law in his Two Treatises on civil society. Presumably, Locke would have opposed that bizarre decision, as would have most of humanity until a few years ago. Still, he does not provide a full-blown theory of natural law of the kind one might find in the medieval scholastics.
One of Erler’s concerns is to arrive at the proper legal and moral position on abortion. Unfortunately, I cannot get an idea of the proper moral position on abortion from reading the Claremonters’ favorite lines in the Declaration. Does the fact that we are all created equal mean that a pregnant woman should not be able to dispose of her fetus? The left would still be able to emphatically deny this, based on their belief that a fetus is not a human being. The all-men-created-equal passage does not answer the question about the ontological status of the fetus. It simply asserts something about how we should view the status of those already widely assumed to be human.
But perhaps we should read the passage through the authorized gloss of Harry Jaffa, which supposedly would remove the hermeneutical difficulty. Since there is no other way one could arrive at Erler’s interpretations, faith in that source of revelation may be necessary!
On a more serious note, for those who have time to spare, I recommend David Gordon’s exhaustive refutation of Professor Jaffa’s efforts at combining political philosophy with moral edification, which is found in his writings on The Mises Institute’s website.
In his past writing on this topic for American Greatness, Pulliam has observed:
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.
We may wonder whether Erler’s judges should be required to wait until the Claremont Institute speaks before interpreting constitutional law. Having at one’s disposal a vast network of publications and websites all presenting a definite point of view is impressive, but not quite the same thing as providing a usable standard for interpreting constitutional law.
Remarkably enough, I am in agreement with one of Erler’s main points, but first I’ll restate Pulliam’s objections to his argument, and add some of my own. Perhaps originalism, which Erler dismisses as “positivism,” is not enough for making sound constitutional decisions. More may be needed to hold back the flood of social engineering coming from the decisions of leftist judges and administrators, abetted by our media and elite law schools. The left is driven by moral conviction as well as a desire for power; and assuring the public that our judges are adhering to the clear meaning of the Constitution may not be enough to stem the advances of the cultural left.
Moreover, a young legal scholar, Jesse Merriam, has noted that the appeal to originalism by some conservatives often means no more than affirming an earlier leftist precedent and using it to check further leftist advances. Merriam seems to have taken my view of Conservatism, Inc., and correctly applied it to so-called judicial conservatives, who reflect larger trends on the American establishment right.
This is not an attack on the originalists, whom I shall gladly side with against their critics on the left as well as those at the Claremont Institute. But their position is at best a pis aller—a temporary measure for holding back the intersectional left and the centralized administrative state.
What is needed as a guide for understanding the Constitution, and what Erler intends to present, is what the Austrian jurist Hans Kelsen called a “foundational norm (Grundnorm).” Our understanding of constitutional law and judicial decisions should reflect shared assumptions about the social and moral good.
We once had such a foundational norm, when the country was predominantly Protestant (generally Christian, then) with a large admixture of Old Testament morality and a respect for classical learning. We were still dealing then with an ordered society, with gender roles and generally intact families and communities. In that past we did not need Harry Jaffa or his acolytes to invent a “conservative” civil religion for us. Americans, to paraphrase Willmoore Kendall and George Carey, were once virtuous practitioners of republican government who did not need to be told what was “right.” They understood it in their bones, or at least were forced to understand it by social pressures.
What Pulliam defends as originalism would have made sense in an earlier age because it would have reflected a worldview that most people accepted. Restraints were needed on government, which existed mostly to protect lives and property and to provide social assistance to those who had no other resources. The state existed not to advance weird lifestyles but to curb violence and maintain civil peace and (in the U.S.) to promote commerce. Back then settled social prescriptions and natural hierarchy took care of the “value question.”
It was when these arrangements ceased to exist, partly because government had turned toward reconstructing families, communities, and gender relations, that the foundational norm ceased to operate. Various attempts have been made to replace it, and Erler’s attempt may be a nonstarter except for followers of Harry Jaffa.
Merriam has argued that various forms of originalism have been devised in order to recover a sense of republican government. This originalism was meant to avoid a straying of the Constitution after our political culture had begun to change. But this may be a case of closing the barn after the horse has already bolted.
In any case, like Pulliam, I have no idea of what the Claremonters’ claim to an identifiably conservative higher morality is based on. But something may be necessary to fill this void on the right, since the left has a foundational norm: social-cultural destruction. And the only hope I see for buying time against its march through the courts is the frail reed of originalism.
[Image by WikiImages via Pixabay.]