The 'Wayward Sisters' and constitutional interpretation.

Author:White, D. Jonathan
Position::Ideology vs. Constitutionalism - Essay

It has been said that every religious heresy proceeds from a misunderstanding of the nature of God. Something similar could be said about constitutional heresies. They proceed from a misunderstanding of the nature of the Union. From the time the conservative intellectual movement emerged in the United States in the early 1950s, for example, its self-professed members have been divided into hostile camps who disagree sharply on the nature and meaning of the constitutional system that all federal office holders are bound by oath to support or uphold. The differences over constitutional interpretation reflect even more fundamental differences concerning human nature and man's historical predicament.

For those who might be called mainstream or traditional conservative thinkers, such as Russell Kirk and Peter Viereck, the Constitution that emerged from the Philadelphia convention was the product of a culture and worldview, deeply rooted in European and especially English history, that was acutely aware of flawed human nature. Men and women are torn between higher and lower inclinations. Because we cannot always count on individuals and groups to do what is right for its own sake, governments are instituted to put restraints on the governed in furtherance of community. But since government itself is composed of imperfect human beings, we also need to limit the power of public officials. As Madison explained in Federalist 51:

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place, oblige it to control itself. To achieve the latter, the framers built into the new federal system a two-part set of checks and balances, many flowing from compromises mediating the conflicting interests of different states and regions. First, political power within the new general government would be divided among the legislative, executive, and judicial branches. Second, the overall power of the new government itself would be confined to the performance of certain enumerated purposes, with all other powers to be retained by the states or the people.

In Federalist 45 Madison noted: The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce. ... The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State. Madison added that the operations of the federal government would be most extensive during wartime and that the states would predominate in peace time. And, since peace would be the normal condition, the state government generally would have a more significant effect on the lives of the people than the central government.

As mentioned, most intellectual conservatives have cherished the division of powers between the federal and state levels of government as providing much-needed opportunity for individuals and groups to seek to advance their own and the common good in diverse and complex circumstances. However, a tight-knit faction of intellectuals influenced by the writings of Leo Strauss, many of whom consider themselves part of the conservative movement, has sought to diminish the importance of traditional restraints as supports for man's moral quest, including the role of the states under federalism as a check on federal power. Harry Jaffa and his followers have been especially prominent among "Straussians" in insisting that to celebrate America is to celebrate, not constitutional restraint but radical revolution and innovation. (1)

Jaffa has argued that the Constitution should be interpreted not with reference to the explicit restraints on government, including federalism, approved by the framers and ratified by the people of the individual states. Instead, he asserts, it is to be interpreted with reference to the abstract principles set forth in the Declaration of Independence, in particular, that "all men are created equal" and that they are endowed with Lockean natural rights.

The implications of Jaffa's preferred standard of constitutional interpretation are far-reaching. In one fell swoop the Constitution is changed from a constant reminder of the need for all men and women, including public officials, to exercise restraint in deference to a higher moral power into a blanket justification of governmental power as a "moral force" that is potentially applicable to all people everywhere. The Declaration, he writes, "tells us why the political authority of the United States is also a moral authority, and why the physical force by which the United States may protect and defend itself is a moral force and not merely the expression of collective self-interest. " (2)

In support of his position, Jaffa emphasizes his agreement with Lincoln that--unlike other nations held together by historical ties of religion, tradition, and common experience--the United States was "brought forth" in 1776 as "a new nation . . . dedicated to the proposition that all men are created equal": a proposition described by Lincoln as "an abstract truth, applicable to all men and all times." (3) Jaffa also frequently stresses his agreement with Lincoln on another issue: whether the Union as now constituted pre-existed the states or vice versa.

Arguing against the constitutionality of secession in his First Inaugural Address on March 4, 1861, Lincoln stated: "The Union is much older than the Constitution." (4) Later that summer, in his address to Congress, the new President said, "The Union is older than any of the States, and in fact it created them as States. . . . Not one of them ever had a State constitution independent of the Union." (5) This is demonstrably false. Virginia, for example, in her constitution of June 29, 1776, declared that "the government of this country, as formerly exercised under the crown of Great Britain, is TOTALLY DISSOLVED." (6) Virginia's decision was prior to, and independent of, the other colonies. Virginia had no way to force the other colonies to join her in her declaration, although she obviously hoped they would do so. If, however, the other colonies chose not to declare their independence, Virginia would have been on her own. The fact remains, however, that Virginia was independent before the other colonies. Perhaps Lincoln was unaware of Virginia's history, or perhaps he was only speaking polemically.

In any case, Jaffa has continued in much the same vein. At a debate in 2002 at the Independent Institute, Jaffa said:

[The states] declared independence and union together, and there was never any time in which any state acted on the international sphere, having diplomatic relations--and the Constitution itself forbids each state to have any diplomatic action. They could not act independently of the other states in the international arena (7) Yet this, too, is demonstrably false. To cite but one example, albeit an important one, in the Treaty of Paris of 1783, which brought the Revolutionary War to a conclusion, Great Britain formally granted independence not to the United States of America as a single, unitary state but to each of the thirteen former colonies as independent sovereignties:

His Brittanic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free sovereign and independent states, that he treats with them as such, and for himself, his heirs, and successors, relinquishes all claims to the government, propriety, and territorial rights of the same and every part thereof. (8) Despite the weakness of his position in opposition to the historical sovereignty of the states, Jaffa on numerous occasions has impugned the motives of those who differ with him, asserting that all support for the notion of reserved state powers can be traced to a single source: the constitutional doctrine of John C. Calhoun in support of Southern secession and of slavery. In a 1987 law review article, for example, Jaffa wrote:

The Declaration, from Calhoun's point of view, created not one union but a league of thirteen separate and independent states. All Confederate apologists, from Jefferson Davis and Alexander Stephens to the late Willmoore Kendall, would repeat this. (9) But if viewing the United States prior to ratification of the Constitution as a league or alliance makes one a disciple of Calhoun, then Madison, when writing the Federalist papers, was such a disciple, even though Calhoun at that time was but five years of age. In direct contradiction to Jaffa's position--and Lincoln's--Madison, in Federalist 43, raised the question: "On what principle the Confederation, which stands in the solemn form of a compact among the States, can be superseded without the unanimous consent of the parties to it?" In response, Madison observed that the union under the Articles of Confederation was based on a "compact between independent sovereigns, founded on ordinary acts of legislative authority" that were subject to repeal at any time. Hence, the confederation, according to Madison, could "pretend to no higher validity than a treaty or league between the parties," i.e., a treaty among independent states such as the present-day NATO alliance.

Yet Jaffa, in his book A New Birth of Freedom, argues that no state ever acted independently of the others. (10) The remainder of this inquiry...

To continue reading