Professor Harry v. Jaffa Divides the House: a Respectful Protest and a Defense Brief

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

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

Professor Harry V. Jaffa Divides the House: A Respectful Protest and a Defense Brief

Robert L. Stone (fn*)

There are in nature certain fountains of justice, whence all civil laws are derived but as streams.(fn1) Man's [natural] capacity for justice makes democracy possible, but man's [natural] inclination to injustice makes democracy necessary.(fn2)

I. Introduction

A. The Context

Professor Harry V. Jaffa has done it again. His remarkable essay, "What Were the 'Original Intentions' of the Framers of the Constitution of the United States?," together with his related book, The Crisis of the House Divided,(fn3) should help "provoke the most profound and far-reaching debate of our generation about American politics."(fn4) Both works are required reading for anyone who would know what is this thing called law. Both address the central question in American Constitutional law today, which is the same question over which the Civil War was fought: How should the law be interpreted if the Declaration of Independence is correct that it is self-evidently true that all men are created equal?

Science is not egalitarian. In the study of the law there is a natural(fn5) hierarchy of the importance of the questions asked and answered. If the law is like a house, the Constitution of 1787 is like the foundation of the house in which we Americans live; statutory law is like the supporting walls; and case law is like the roof. To begin legal education, as do many law schools, with case law is like building a house by starting with the roof. Professor Jaffa demands that we proceed from the ground up. In fact, he goes so far as to look to see what lies under the foundation by exploring the nature of obligation: "[E]very human being has the indefeasible right to ask anyone proposing to exercise authority over him,"Why should I obey [the Constitution or any other law]?"(fn6) We are indebted to Professor Jaffa for a profound if passionate elaboration of the enormous consequences to Constitutional law of the fact that in American positive law the answer to the question of obligation is found in the same document as the doctrine of the equality of all men and an invocation of natural right: In the Declaration of Independence, the first "organic law" in the current edition of the United States Code.(fn7) Abraham Lincoln showed that some Supreme Court decisions such as Dred Scott(fn8), which denies the doctrine of natural equality set forth in the Declaration, are not the supreme law of the land. Furthermore, he argues that this is the case because the question of obligation determines not only what the law should be, but also what the law is in concrete practical cases.(fn9)

Why is it that virtually all Americans say that they honor and obey the Constitution? Is it because the majority ratified it, and we should honor and obey anything for which the majority voted? If so, why? Is it because the majority outnumbers the minority? If so, is this just another way of saying, "Might makes right?" A majority once voted for Hitler and his political program. Do Nazi laws then have the same status as our laws? On the other hand, do we obey and honor the Constitution not because the majority voted for it, but because it is good-and the majority voted for it because it is good. Both reasons are important, but which is more so? If the Constitution is good, it must be because it is good for human beings. What, then, is a truly human being? If the nature of being human, i.e. human nature, is shaped by history or the environment rather than being fixed, then human nature can be adapted to any constitution, even a Nazi constitution or a cannibal constitution, and we must in principle be indifferent to the kind of constitution we have.

However, if human nature cannot change, then the status of the Constitution, and hence also of all subordinate laws, depends upon whether or not the laws adapt themselves to the requirements of human nature. If a law is adapted to the requirements of human nature, it is naturally right or just. If it is not adapted to the requirements of human nature, it is naturally unjust. That is the doctrine of natural right. And if this doctrine is true, then nature or being is the deepest question underlying the science of law-just as it is the deepest question underlying all the other sciences.

Does this doctrine mean that students of the law may not differ on the questions posed by their discipline? Not at all. For an example of the flexibility and undogmatic character of the doctrine of natural right, we should turn to the fullest elaboration of the doctrine in the Anglo-American legal tradition: Not the Declaration, but rather Judge William Black-stone's Commentaries on the Laws,(fn10) the "oracle of the common law." (The Constitution of 1787 does not explicitly mention natural right. But Judge Blackstone's understanding of the common law is incorporated implicitly into the Constitution of 1787 through Article III and the Seventh Amendment's reference to the common law.)(fn11)

Judge Blackstone throughout his work compares the common law with the civil or Roman law, showing how these two very different systems of law adapt themselves to the requirements of nature. For example, in the chapter on family law,(fn12) Judge Blackstone assumes that, because human nature is invariable, all human societies must provide institutions for the care of the young. Beasts do not care for the young of other members even of their own species, because they cannot reason. Also, because human nature is invariable, all civilized societies must provide for legally appointed guardians when the parents are unable to care for their children. Human nature being what it is, the common law does not permit an infant's heir to be also his guardian. (For the same reason, it may be against public policy for a parent to be the beneficiary of a large insurance policy on the life of his child or otherwise to have a direct interest in his child's death.) The common law seeks to protect the life of the child. However, Roman or civil law does permit an heir to be a guardian, because, human nature being what it is, an heir will take much better care of the infant's property than would a disinterested non-heir.

Both approaches, common law and civil law, assume natural self-interest, and both are coherent and sensible-but there are a strictly limited number of such approaches. Thus nature suggests the questions, although it does not dictate one set of answers. Judge Blackstone does not claim that the common law is the only natural law. But any legal arrangement that does not adapt itself both to nurturing of the young and to self-interest would not make sense or be respected. Hence, it would be unnatural and could not endure. Judge Blackstone states the general relationship between positive law and natural right as follows:This law of nature, being co-eval with mankind and dictated by God himself, is, of course, superior in obligation to any other. It is binding over all the globe, in all countries, and at all times; no human [positive] laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.(fn13) Therefore, "Aristotle himself has said, speaking of the laws of his own country, that jurisprudence of the knowledge of those laws is the principal and most perfect branch of ethics."(fn14) However, as mentioned above, the Constitution of 1787 does not mention explicitly natural right. Is it thereby rejected, or is it thereby assumed? As important as this question is, many lawyers today would be hard pressed to answer it. Professor Jaffa provides a most cogent and eloquent reminder that the foremost American source of natural rights that is recognized as law is the Declaration of Independence.

Professor Jaffa's argument is that the deepest and most characteristic division in American politics is the debate between Abraham Lincoln and John C. Calhoun(fn15) (Stephen A. Douglas was standing in for Calhoun)(fn16) on the question of slavery or States' Rights. The earlier debate between Alexander Hamilton and Thomas Jefferson did not represent opposite poles, because they were not as clear in their thought and took both sides of the fundamental question: Is the ground beneath the foundation of our law ultimately morality or force-the natural rights of man or majority rule? (A third possible position, associated with the Critical Legal Studies movement, is that law is basically fraud,(fn17) but this doctrine is similar to Calhoun's.) In this debate, Lincoln and Calhoun stand in for Aristotle and Machiavelli, respectively. One of the deepest issues at stake in this titanic conflict is the question of the status of nature: Aristotle teaches that the world is naturally so ordered that good men tend to prevail in the end. Machiavelli teaches(fn18) that force and fraud are justified because the world is naturally so ordered that good men finish last.

Professor Jaffa argues incisively that Dred Scott(fn19) is an application of Calhoun's doctrine to the question of the legal status of slavery in the territories. Calhoun held that the Constitution of 1787 established a government of concurrent majorities composed of the State governments and the federal government, with...