Wednesday, October 30, 2013

Shain on Jaffa

Originally published in 2007, it was just recently re-published here.
According to Jaffa, then, the poorly defined natural-law doctrines embodied in the Declaration are fully incorporated in the positive law of the United States Constitution. It is, therefore, to the Declaration, and its condensed natural-law holdings, that Supreme Court Justices should turn for guidance in properly interpreting the constitutionality of positive law.29

Missing from this part of Jaffa’s account, though, are two things: facts and common sense. Simply put, Jaffa’s claimed connection between these documents is offered wholly without evidence. As Lino Graglia reminds us “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 rati-fication debates indicating that it was intended to incorporate the Declaration.”30 Of great interest here is the ex-change between Justice Scalia and Jaffa. Jaffa writes that “in response to a question of the relationship of the Constitution to the Declaration of Independence— and to ‘the laws of nature and of nature’s God’—Scalia responded as follows: ‘Well unfortunately, or to my mind fortunately, the Supreme Court of the United States, no federal court to my knowledge, in 220 years has ever decided a case on the basis of the Declaration of Independence. It is not part of our law.’ … [As Jaffa then explained] Scalia is simply mistaken when he says that the Declaration of Independence is ‘not part of our law.’”31 ...

1 comment:

Tom Van Dyke said...

Interesting controversy. I'd recommend constitutional scholar and "natural lawyer" Hadley Arkes over Harry Jaffa for that side of the argument.

Again, America is more than just her constitution--the axioms and presuppositions of the law, the spirit of the law, precedes the latter of the law; the "right to have rights" precedes any attempt at enumerating them:

The philosopher John Locke unfolded the logic of the matter in a series of questions. What was the source, he asked, of the positive law, the law that was “posited” or enacted. Answer: the legislature. What was the source of the legislature? Answer: the constitution, for it tells of whether we have a legislature and of how many chambers.

But then what was the source of the constitution? It had to be found, said, Locke in some source “antecedent to all positive laws” and that authority was “depending wholly on the people,” on their natural right to be governed with their own consent.

As Abraham Lincoln understood, the American republic did not begin with the Constitution. What we have come to know as the Constitution is really our second Constitution, coming in 1788. The American regime began with the Declaration of Independence, with the “Laws of Nature and Nature’s God,” with the Creator who “endowed” us with certain natural, “unalienable rights.”

The task of a Constitution was to arrange a practical structure of governance that would be consistent with those underlying principles. And that was why some of the most notable Founders were resistant to adding a “Bill of Rights.” The Constitution was not the source of our rights, and there was a concern that the mention of some rights would imply the lesser importance of those not mentioned.

And that list of rights would foster the mistake we commonly hear when people invoke “those rights we enjoy through the First Amendment” – as though in the absence of the First Amendment and the Constitution we would not have those rights.

That first generation of American lawyers, of the caliber of John Marshall and Alexander Hamilton, persistently traced their judgments back to those axioms of the law that were never set down in the text of the Constitution.