Sunday, August 24, 2008

Jaffa v. Graglia & Bork

For those who have time, you may want to check out this interesting past debate from National Review that is accessible online. It is relevant to American Creation in that it focuses on how the notion of "unalienable rights" and the organic law of the Declaration of Independence were intended to exist (if at all) in America's constitutional system.

It all started when Harry Jaffa, in his book, Original Intent and the Framers of the Constitution: A Disputed Question, trashed Robert Bork's and William Rehnquist's jurisprudence as "phony originalism."

So Bork responded in a review of Jaffa's book in National Review:

Written in dyspeptic prose, Original Intent and the Framers of the Constitution is one of the least coherent, least consequential, and most disingenuous pieces of constitutional theorizing on record: incoherent because Mr. Jaffa offers conclusions that cannot possibly be tortured out of constitutional text, history, or structure; inconsequential because, so far as is apparent, his argument has application only to one pre-Civil War case; disingenuous because he misrepresents not only that case but the Constitution itself. This may sound unduly harsh. I have tried to show that it is only duly harsh.

Later, National Review gave Jaffa equal time to respond, where he wrote:

The natural-rights theory enables us to distinguish the principles of the Constitution from the compromises of the Constitution. In Original Intent and the Framers of the Constitution I have tried to show how understanding this distinction in Dred Scott unravels many of the mysteries surrounding the equal-protection clause of the Fourteenth Amendment today. Judge Bork, as a legal positivist, is no more able than Calhoun to distinguish the Constitution's principles from its compromises. Judge Bork tries to draw Lincoln's conclusion--plenary congressional power over property rights in the territories--from Calhoun's premises. But such plenary power can be inferred only from the doctrine of natural rights. Calhoun, and Taney, reached their conclusions only by severing the doctrine of states' rights--and hence of constitutional power--from its original foundation in natural rights. Judge Bork has done the same.

O.K., Judge, the ball is in your court ! Harry V. Jaffa

To which Bork replied:

Not really. After Professor Jaffa's latest effort, the ball has disappeared over the fence and is lying in the weeds, far from any court. Rarely has historical learning been deployed to so little effect. I am pleased Professor Jaffa has quoted my assessment of his book as "incoherent, inconsequential, and disingenuous." It cannot be said too often.

....It is time to bring this bootless discussion to a close. In doing so, I would remind Professor Jaffa that the first discussant to resort to the ad hominem, which is his standard style of argument, has no standing to complain if he is treated severely in return.

Shortly thereafter, Jaffa goes round II v. Lino Graglia. Graglia begins:

HARRY Jaffa has long engaged in a campaign of vilification against Robert Bork and William Rehnquist, a campaign I consider both sad and shabby. It is sad because he is attacking people who are on my and, he says, his side on the basic issue of constitutional law -- the issue of the proper role of the Supreme Court in our system of government. One must expect attacks on Bork and Rehnquist from Ronald Dworkin, Bruce Ackerman, and Larry Tribe, and one can derive satisfaction from refuting them. But Jaffa is a hard-core political conservative; he was an advisor to Senator Barry Goldwater at a time when the name Goldwater was a liberal epithet. Indeed, he claims to be responsible for the famous slogan about extremism in defense of liberty being no vice, a stroke of genius that surely cost Goldwater whatever slim chance he ever had of winning the election. More important for present purposes, he is also, he tells us, a staunch foe of the judicial activism that has served to make the Supreme Court the enacting arm of the ACLU's political agenda.

If Jaffa is opposed to judicial activism, why does he devote his time and energy to reviling its two most prominent and effective opponents in the past half-century -- excepting possibly only Learned Hand and the newer arrivals, Justices Scalia and Thomas? How is the public interest served by that? And reviled them he has. His campaign against them has been shabby because he has attacked them not as a friendly critic or a disinterested scholar but personally, bitterly, and arrogantly. He has written that Bork "no doubt in his own mind . . . has taken on something of the status of a martyred saint of conservatism," a statement for which he has not the slightest basis.

Graglia hones in on what his (and Bork's) real problem with natural law is:

The last thing an opponent of judicial activism should want, I would think, is to authorize a Brennan, Douglas, or Blackmun to determine the content of "certain unalienable rights." Of course, the Justices have already undertaken to do this on their own, discovering such new "fundamental" constitutional rights as a right of "privacy," which somehow includes a right to an abortion.

THAT incorporating the Declaration and therefore "natural law" into the Constitution is a formula for judicial activism seems so clear to me that I have trouble understanding how it can be less than clear to anyone else.

Jaffa responds:

While I may agree with what Bork or Rehnquist says (or decides) concerning particular cases, I do not believe that legal positivism, grounded in moral relativism and philosophical nihilism, can effectively counteract that very same legal positivism when it appears in the form of liberal judicial activism. Alienation from the genuine principles of the American Founding, whether by those calling themselves conservatives or by those calling themselves liberals, can undermine fatally, not only constitutional law, but the loyalty and conviction of the citizens themselves, upon which everything else depends.

It should be noted that Justice Thomas has endorsed Jaffa's, not Bork's or Graglia's version of originalism.

1 comment:

bpabbott said...

Graglia: "[...] incorporating the Declaration and therefore "natural law" into the Constitution is a formula for judicial activism seems so clear to me that I have trouble understanding how it can be less than clear to anyone else. [...]"

Jon / others,

Is not the manner of how the law is interpreted up to the Judicial Branch?

My understanding is that the court generally favors a position of "what was the intent of those who wrote and ratified the law". Is that a fair summary?

If the founders intended all natural rights to be preserved from infringement by the government (I think it clear that they did), it would appear to me that Graglia et al's position is an abdication of their intended responsibility.

I agree with Graglia's implication that the job becomes more subjective, but if that was the intent, then to object to it qualifies as "judicial activism" also, no?