Judicial Conscience and Natural Rights: a Reply to Professor Ledewitz

• Jurisdiction: United States,Federal
• Citation: Vol. 11 No. 02
• Publication year: 1987

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 11, No. 2WINTER 1988

Judicial Conscience and Natural Rights: A Reply to Professor Ledewitz(fn*)

Harry V. Jaffa(fn**)

In our Spring 1987 issue, Professor Jaffa authored an essay in which he posited that the fundamental principles of equality and other tenets of natural law expressed in the Declaration of Independence were originally intended to be the principles of the Constitution of 1787. Professor Jaffa asserted that while the Framers believed in the "law of nature and nature's God," many contemporary constitutional thinkers, including fellow conservatives Chief Justice William Rehnquist and Attorney General Edwin Meese, do not. Thus, Jaffa argued, those conservatives "who today most aggressively appeal to the doctrine of original intent are among its most resolute antagonists." In a responsive article, Professor Bruce Ledewitz, described what he considered to be a gap in Jaffa's essay "between the consciousness of the Framers and the practice of judicial review today." According to Professor Ledewitz, Jaffa provided no insight into how today's judges, by relying on the principles of the "Declaration of Independence whether they believe in self-evident truths or not," might actually resolve disputes concerning the implications of equality, liberty, and the pursuit of happiness. For Professor Ledewitz, the ultimate question is, "What sort of jurisprudence would result from a modern commitment to the natural law principles of the Declaration of Independence?" A question, he asserted, Jaffa did not expressly resolve. In the following essay, Professor Jaffa rejoins Professor Ledewitz in this timely and provocative exchange.

I am grateful to Professor Ledewitz for the kind words with which he both prefaces and concludes his critique. There are, I should add, many welcome expressions of agreement in between. I am heartened to believe that we are not going to talk past each other, and that continued-but candid-discussions of our differences will not so much intensify those differences, as expand the areas of agreement between us.

Let me begin with footnote one of Professor Ledewitz's article. In it he says that my paper "does not deal with all of the problems that the original intent position . . . faces. Such questions as 'who counts as a framer,' 'what is the relevance of the ratification process?' or even 'why should intention matter in the first place?' do not occupy him. . . .'(fn1)

According to Professor Ledewitz, I dealt "primarily with a much narrower question, how well do the self-professed advocates of original intent understand the intellectual and political presumptions of the generation they accept as Framers?"(fn2)

Professor Ledewitz says that it was appropriate for me to have limited myself to a question of manageable scale. He says that his reply will be similarly limited, "but from a different, one might say left-wing, perspective."(fn3) Professor Ledewitz says, also correctly, that he senses a sympathy on my part with what Attorney General Meese, Chief Justice Rehnquist, and Judge Robert Bork are attempting to accomplish.(fn4) Yet he generously concedes that I have approached "the politically charged field of constitutional interpretation with the trustworthy attitude of the scholar, rather than that of the advocate."(fn5)

It is true that I addressed myself primarily to conservatives-primarily because I share with them an a priori commitment to the idea of "original intent" jurisprudence. I set out to prove-as Professor Ledewitz agrees that I have proved-that their jurisprudence does not, in the most important respect, correspond with the intent of those who framed and those who ratified the Constitution. I felt these conservatives would be obliged by their own premises to "alter or abolish" whatever was manifestly inconsistent with the intent to which they professed themselves to be committed.

But "a man convinced against his will is of the same opinion still."(fn6) I am well aware that however great is the obligation of men to their premises, they are seldom as attached to those premises as they are to their conclusions, whether or not those conclusions actually follow from the premises. My larger purpose, however, was to illuminate the profound break with the thought of the Founding Fathers, which is represented by the "mainstream" of American conservatism (including most particularly, neo-conservatism). The legal positivism of those such as Rehnquist has much in common with Calhoun. It has nothing in common with the political philosophy-or jurisprudence-of a Jefferson or a Madison. What Ledewitz fails to notice, however, is that the Brennanite (or left-wing) perspective that he shares is one that is basically the same as that of the conservatives, with whom he mistakenly thinks he differs. For what is most important about left and right wing jurisprudence today is not that they are of the right or of the left, but that they are "result oriented." Their so-called principles are not in their premises, but in their conclusions. They differ in the particulars of their "value judgments," but not in the subjectivity of that which they propose as the ground of constitutional law. Calling their subjective preferences "traditional morality" on the one hand, or "human dignity" on the other, does not make their preferences any more than "value judgments," or less subjective. If the basis of law is believed to be subjective, however, then the basis of law is believed to be will, not reason. The goal or perfection of the law, according to the whole tradition of western civilization, is that it should be, in Aristotle's words, "reason unaffected by desire."(fn7) This is what law means according to the natural rights and natural law teaching of the Declaration of Independence. But law that rests upon nothing but "value judgments" is desire unaffected by reason.

* * *

Professor Ledewitz is mistaken in supposing that I did not deal with " 'who counts as a framer,'" or " 'what is the relevance of the ratification process.' "(fn8) The political philosophy of natural rights and natural law, expressed in virtually all of the great documents of the Revolutionary and Founding period- but quintessential in the Declaration of Independence-was the common ground for both the Framers and the Ratifiers. It is in the rejection of this common ground that we see the common ground of both the left and right today. Professor Ledewitz, in his delight at my exposure of the inconsistencies of present-day conservatism, fails to notice that the same inconsistencies characterize his own "left-wing perspective."

Professor Ledewitz is also mistaken in supposing that I did not address the question of "why should [original] intention matter in the first place."(fn9) I pointed to the fact that Madison and Jefferson agreed that the principles of the Declaration of Independence are the principles of the Constitution.(fn10) But I also argued, notably but not exclusively in Appendix B,(fn11) that the principles of the Declaration are the true principles of the rule of law and the ground of political justice. Original intention ought then to govern because "ought" refers to what is right or just. But these principles, being governed in their application by "the dictates of prudence," do not of themselves determine the conclusions which the people of the United States or their representatives should draw from them. They are a necessary, but not a sufficient condition for just judgment. Professor Ledewitz is thus correct when he writes that I am not "proposing to consult the Framers on the specific issues that come before the Supreme Court today."(fn12)

It is the essence of prudence, to which the Founding Fathers appealed, that it be directed to the particular circumstances to which it is to be applied. Our circumstances are not identical to those of two hundred years ago. (Neither, of course, are they altogether different.) Justice Brennan, and his partisans, have a field day in denouncing the utility of any appeal to the opinions of the Framers. But in this denunciation, they-like their conservative adversaries-fail to distinguish between principles and the prudent or wise application of principles. This is because their conception of principles is always, at bottom, the belief that principles are "value judgments." But "value judgments" are essentially non-rational, and the ends of prudence are, and must be, essentially rational. Hence, properly understood, the very idea of "value judgments" as the principles or ends of law excludes the idea of prudence.

* * *

Professor Ledewitz seems to accept, for the most part, that my interpretation of "original intent" is historically authentic. But he cannot accept the authority of that intention because he believes that in its decisive respect, the thought of the present is wiser than the thought of the past. He agrees-as do I-with Aristotle's dictum that what is intrinsically desirable is not the old but the good.(fn13) I believe that Professor Ledewitz is justified, as any man is justified, in arguing for the superiority of one idea over another. He would be justified, for example, in arguing that the central idea of the Communist Manifesto ("that all history is the history of class struggle")(fn14) is a wiser and better ground for political understanding than the central idea of the Declaration of...