Judicial Conscience and Natural Rights: a Reply to Professor Jaffa

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

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

Judicial Conscience and Natural Rights: A Reply to Professor Jaffa

Bruce Ledewitz(fn*)

Professor Jaffa's paper represents an important step in interpreting the United States Constitution.(fn1) Professor Jaffa demonstrates that the advocates of historical interpretation are in fact descendants of John C. Calhoun rather than of the Framers; that they consider Edmund Burke, but not Abraham Lincoln, a "Defender of the Constitution;"(fn2) and that they read God and natural rights endowed by man's creator out of the Constitution.

Professor Jaffa's critique is all the more devastating because he is himself a conservative and a historian. Because he is a conservative, the reader senses his sympathy for what Attorney General Meese, Chief Justice Rehnquist and Judge Robert Bork are attempting to accomplish. Because he is a historian, Professor Jaffa, like his predecessor in many ways, Edward Corwin, approaches the politically charged field of constitutional interpretation with the truthworthy attitude of the scholar, rather than that of the advocate.

Despite my admiration for both his undertaking and the soundness of his results, I confess an impatience with his paper. I would like to understand his critique at the point of actually interpreting the Constitution. If, as it appears at various points in his text, Professor Jaffa agrees with the votes cast by the Calhounites on current issues before the Supreme Court, how is it that their flawed methodology can yield reliable results? Is Dred Scott v. Sanford(fn3) the last case in which a proper understanding of original intent mattered? Is slavery the last issue on which the Framers may be said to have spoken a word of liberation?

My subject is this gap in Professor Jaffa's paper between the consciousness of the Framers and the practice of judicial review today. The understanding that Professor Jaffa brings to the intent of the Framers is one that opens up the Constitution to the call of justice. Professor Jaffa's Framers are not enemies of the poor and the oppressed, the criminal defendant and the homosexual. Nor are they protectors of the rich and powerful, the washed and the comfortable.

Professor Jaffa begins with Dred Scott.(fn4) For conservatives today, Dred Scott represents the unfortunate triumph of mor-alism in judicial review. Because Chief Justice Taney did not stick to the principles of original intent, but instead responded to the passions of the day, he condemned blacks as mere property, which Congress then must protect as property in the territories.

Professor Jaffa asserts that this conservative account is false. Taney was in no sense responding to the passions of the day. Taney was in fact interpreting the Constitution precisely in accordance with original intent as Meese and the others understand that concept. In analyzing the rights of black people, Taney considered the Constitution to be no more than positive law.

Here, according to Professor Jaffa, was Taney's great error and the great error of today's conservatives. Though faithful in a sense to the constitutional text and its treatment of slavery, Taney failed to deal with the "genuine principles" of the Constitution that are found in the Declaration of Independence.(fn5) It is in the light of the equality of all men, a light binding on constitutional interpretation, that Dred Scott stands condemned.

Professor Jaffa's analysis of Dred Scott illustrates a fundamental ambiguity about original intent that permeates his paper. In his view, Taney did not rely on any sort of Framers* intent. In determining the Constitution's view of blacks, Taney looked to the text of the Constitution, noted its obvious acceptance of slavery and concluded from the text that blacks had no rights that the white man was bound to recognize.(fn6) This approach may be called textual intent, and Taney's account of the text's intent is said by Professor Jaffa to be a plausible one.(fn7)

In contrast to, or in amplification of, the method of textual intent, one might employ original intent, asking what was the intent behind the text. "Original intent" employed in this fashion might mean the views of the Framers on the issue at hand. For example, their attitude toward blacks. On the other hand, "original intent" might refer instead to the intent of the Framers generally in creating the Constitution. For purposes of this paper, I will call the first, specific intent, and the second, general intent.

Professor Jaffa is criticizing Taney for ignoring the Framers' general intent, not for ignoring the Framers' specific intent concerning the status of blacks as human beings. This criticism may at first seem odd. Taney was wrong in Dred Scott in terms of specific intent as Professor Jaffa demonstrates.(fn8) Madison and Jefferson clearly believed blacks were human beings entitled to the inherent rights of all men. But Professor Jaffa criticizes Taney for misinterpreting the Declaration of Independence, not for ignoring the opinion of those who framed the Constitution's pro-slavery clauses. For Professor Jaffa, the Declaration of Independence is the lens through which the text of the Constitution must always be studied, however clear the text seems to be. After all, in the case of blacks, the text was relatively clear and could be read fairly as racist. Thus Professor Jaffa is arguing for the method of general intent; he is not proposing to consult the Framers on the specific issues that come before the Supreme Court today.(fn9)

What was the Framers' general intent as revealed in the Declaration of Independence? Professor Jaffa states that the Framers' primary purpose was the creation of a government that would "secure" certain rights.(fn10) Indeed, "to secure these rights" was viewed by the Framers as the sole legitimate purpose of any government.(fn11) The Framers were attempting to establish in positive law, "[t]he primacy of rights and of right, understood in the light of the laws of nature . . . ."(fn12) Professor Jaffa describes these rights: "These rights were the unalienable rights with which all men had been equally 'endowed by their Creator' under 'the laws of nature and of nature's God."(fn13) Certain of these rights are denominated in the Declaration of Independence: "Life, Liberty and the Pursuit of Happiness." For Professor Jaffa the Declaration is not merely a precatory document to be trotted out for Fourth of July speeches. Rather, he calls the Declaration "the most fundamental dimension of the law of the Constitution."(fn14)

Professor Jaffa's major example, Dred Scott, illustrates the role that he thinks general intent should play in interpreting the Constitution. The Declaration's assumption of basic human equality represents the Constitution's "genuine" principle on the issue of slavery. The doctrine of the inequality of blacks, strongly supported by hints in the constitutional text, should be considered a mere compromise with transient political forces.

Professor Jaffa's main purpose is to show that neither today's conservatives nor today's liberals understand and follow original intent. The conservatives who claim to embody original intent do not understand "what . . . original intent was."(fn15) They are "antagonists" of original intent(fn16) because, like the apologists for slavery of an earlier time, they "rejected the ground of the Constitution in natural justice. . . ."(fn17)

At much less length, Professor Jaffa criticizes liberal jurisprudence on precisely the same ground, that liberals reject "natural rights teaching."(fn18) Because the individual has no inherent rights that the majority is bound to respect, liberals seeking to enhance liberty must refer to an evolving conscience of a future, reformed "scientific" society."(fn19) Conservatives and liberals, thus, "stand upon common ground."(fn20) That ground turns out, jurisprudentially, to be a positivist vision of law that grounds authority in the will of the people, either today's will or that of tomorrow.

What are the implications of this powerful critique? What sort of jurisprudence would result from a modern commitment to the natural law principles of the Declaration of Independence?

Professor Jaffa does not expressly venture onto this ground. Unfortunately, his implied prescription for conservatives is to accept an antiquated natural rights outlook, and for liberals, to abandon the search for a modern one.

To see the first point, imagine Professor Jaffa addressing Chief Justice Rehnquist, the "pure legal positivist."(fn21) Chief Justice Rehnquist would assert that there are no "self-evident truths," that there is no accessibility to a divine intention for humankind, and, thus, no endowed rights.(fn22) Or at least Chief Justice Rehnquist would say that if people disagree about these matters, discussion must be closed. At the point of disagreement, there is nothing more than subjective preference, which may or may not be backed by power.(fn23)

Professor Jaffa associates the Framers with a different view of the universe. According to this view, political science and law are capable of uncovering a "true understanding"(fn24) of the individual and her relation to society. There are principles, "truths 'applicable to all men and all times,' "(fn25) that Chief Justice Rehnquist must accept if he wishes to interpret the...