On Jaffa, Lincoln, Marshall, and Original Intent

• Jurisdiction: United States,Federal
• Citation: Vol. 10 No. 03
• Publication year: 1987

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 10, No. 3SPRING 1987

FRAMERS' INTENT: AN EXCHANGE

On Jaffa, Lincoln, Marshall, and Original Intent

A Foreword by Lewis E. Lehrman(fn*)

If it should be said that Abraham Lincoln was one of the framers of the post-Civil War Constitution, then it may also be said that Professor Harry V. Jaffa is Lincoln's John Marshall. For in Jaffa's evangelization of Lincoln one discovers not the temperament of a lawyer but of a lawgiver, not the profession of a judge, but a prophet of first principles of jurisprudence. One need not agree with Jaffa, the philosopher and apologist of Lincoln, to declare him indispensable to the American republic. Indeed, if Harry Jaffa did not exist, I would want to invent him, if only to recover for Conservatives the first principles of the American Founding-the true meaning of the Declaration of Independence. This I would do because the future of the world depends in no small measure upon the future of America-and, therefore, upon American constitutional principles.

In the ongoing debate over the authentic Constitution, consider only several unresolved but fundamental issues: Are the legal positivists and legal realists, heirs of Justice Oliver Wendell Holmes, Jr., and Charles Evans Hughes, right when they declare constitutional law to be whatever the highest legislators or Supreme Court Justices say it to be? And is it then unappealable, even if such "law" plainly violates the fundamental law by which the nation was founded? Moreover, is the original intent, the meaning of the Framers, undiscoverable in the four corners of the Constitution itself, or in its history? And further, are these considerations irrelevant, as the "non-interpretists" imply, when finding and applying the fundamental law of the land?

On the other hand, and above all, are Jefferson, Madison, Washington, Adams, and Lincoln right when, according to "the laws of nature and of nature's God," they "hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator" with the unalienable rights to life, to liberty, and to the pursuit of happiness? And do the Framers thus not correctly hold that any legislation or judgment of a court fundamentally in violation of these unalienable rights is by its nature, obnoxious to the Constitution? Is it not obnoxious because according to the very words of the Declaration of Independence, "to secure these rights,(fn1) governments are instituted among men," so "that whenever any form of government becomes destructive of these ends [namely, securing the unalienable rights to life, liberty, and the pursuit of happiness] it is the right of the people to alter or abolish it and to institute new government. . . ." It is true that in the Constitution of 1787 a number of guarantees were provided to the institution of chattel slavery, as it had grown up and become deeply rooted before independence, when the Crown forbade the colonists to interfere with the importation of slaves from Africa. And chattel slavery, considered in itself, was assuredly a complete violation of the right to liberty of each person. But the Framers of the Constitution acted, in Lincoln's words, on the maxim that it is better to "consent to any great evil, to avoid a greater...