Original Intent and the Framers of the Constitution: A Disputed Question

by Harry V. Jaffa

Original Intent and the Framers of the A Disputed Question is a unique contribution to the debate, begun by Attorney General Edwin Meese in the second Reagan administration, over the "original intentions of the Framers." Professor Jaffa agrees entirely with Meese's opinion that there is a need to confine judges to interpreting, not making law. Jaffa also agrees that original intent, rightly understood, is the only sound basis of constitutional jurisprudence. But he contends that Meese, Chief Justice William Rehnquist, and Judge Robert Bork - original intent's leading conservative proponents - have misunderstood its meaning.
The Framers, and Abraham Lincoln, their greatest proponent, believed that the Constitution was anchored in the principles of natural law invoked by the Declaration of Independence. Rehnquist and Bork are moral relativists and legal positivists, says Professor Jaffa, who repudiate the very existence of natural law and deny that the Declaration of Independence has any role whatsoever in constitutional interpretation.
Nearly all the great constitutional controversies of our time have swirled around the meaning of the "due process" and "equal protection" clauses of the 14th Amendment. Professor Jaffa contends that it is impossible to interpret the intent of the 14th Amendment without understanding the conflict between the principles and the compromises of the antebellum Constitution. This conflict came to a head in 1857 in the case of Dred Scott. Professor Jaffa shows that Rehnquist, Bork, and Meese have completely misunderstood that case, attributing to "substantive due process" or "judicial usurpation" what was in fact a failure on the part of the Court to understand that in a federal territory the black man's human nature gave him constitutional standing, slavery in the states to the contrary notwithstanding.
Jaffa also shows that in their determined effort to avoid recourse to the Declaration in their interpretation of Dred Scott, Rehnquist, Bork, and Meese are heirs, not of the Founding Fathers but of the father of the Confederacy, John C. Calhoun. Present-day conservative jurisprudence, in its positivist rejection of the Declaration, the Framers, and Lincoln is descended from Calhoun, not the Framers. Jaffa shows in Original Intent that this jurisprudence is no more principled than its liberal opposition; it merely seeks different results.

Genres: Politics, American History, Law, American

408 pages, Hardcover

First published January 25, 1993

About the author

A graduate of Yale University, Harry Victor Jaffa taught at Queens College, the City College of New York and at the University of Chicago before earning his doctorate in 1951 at the New School for Social Research in New York. A student of Leo Strauss, Jaffa taught at Ohio State University from 1951-64, and over the next 25 years was on the faculties of Claremont McKenna College and Claremont Graduate School in Claremont, Calif. He was the Henry Salvatori research professor of political philosophy from 1971-89, when he became professor emeritus and a distinguished fellow at the Claremont Institute.

Reviews

[Nathan Albright · Rating 5 out of 5]

The most impressive aspect of this book is that it is a conversation between several people who are of two different mindsets.  On the one hand, Harry Jaffa has some serious criticisms to make of several figures who are viewed very highly in general within the world of conservative jurisprudence.  On the other hand, the other three contributors to this book wish to speak in defense of these conservative figures (including Judge Bork) and believe that Jaffa is reading too much into statements and dividing the conservatives with an insistence that original intent must include principles and not mainly compromises.  The egalitarian stance of Jaffa is in marked contrast to the vast majority of originalist thinking, which tends to view egalitarianism in a somewhat hostile fashion.  Yet Jaffa's insistence on philosophical rigor, Straussian close reading and interpretation, and Madisonian egalitarian political thinking is a remarkable approach that manages to win over a great deal of readers and framing this as a conversation over multiple stages is a brilliant move in showing Jaffa's confidence to let others have a word to question his thinking so that he can then provide a rejoinder to the cross-examination.

This book is five parts and 400 pages long.  It begins with part one, an essay on Jaffa, Lincoln, and original intent from Lewis Lehrman.  The second part of the book is an essay from Jaffa about the original intent of the founders with several appendices relating to Meese, to the self-evident principles of the Declaration of Independence, and Chief Justice Rehnquist's views in particular.  The third part of the book then consists of critiques of Jaffa's essay by Ledewitz, Stone, and Anastoplo, who all take issue with different aspects of Jaffa's thinking and approach, questioning Jaffa's understanding of the natural rights approach and how it relate to Taney, Rehnquist, Bork, etc, the prudential morality of exposing divides among Conservatives, and a list of questions from someone whose life story is deeply interesting as it relates to a refusal to play along with the popular mood.  The fourth part of the book then consists mostly of Jaffa's replies to the critiques as well as a further back and forth with Anastoplo about Jaffa's "old time religion," which appears to be a bit of an inside reference in the world of political philosophy as it is something I have heard referred to other thinkers as well in the same circles.  The book then ends with four unanswered letters from Jaffa to Meese, who appears to have been totally unwilling to answer Jaffa's concerns about his hostility to egalitarian thinking.

Throughout Jaffa's work as a whole there is an impressive rhetorical array.  In Crisis Of A House Divided the reader is treated to a Thomist masterpiece concerning prudential morality in the antebellum period.  A New Birth Of Freedom, on the other hand, is a great commentary that focuses on the first half of Lincoln's presidency (sadly, the second volume of this work was not able to be finished before Jaffa died).  This work is different from both of those, presenting a work that resembles the structure of the Lincoln-Douglas debates themselves, with Jaffa opening with a pointed and provocative essay on original intent and how that is not always a good thing, critical responses from three people who wish to present opposition to one or another aspect of Jaffa's argument, sometimes posing questions to him or critiquing his own perspective, and then closed by Jaffa's response to these criticisms and rejoinders with his own discussions.  The result is fascinating and accomplished, and something to respect.  It takes a thinker of considerable confidence and skill to do what Jaffa did in this book, and it is all the more impressive when one considers the limited nature of political conversation in the contemporary world.

[Dave Franklin · Rating 4 out of 5]

Harry V. Jaffa’s “Original Intent” argues that the framers of the Constitution were adherents of a natural law perspective informed by the Jeffersonian principles of the Declaration of Independence. Jaffa, an American political philosopher, historian, and professor, taught at Claremont McKenna College and the Claremont Graduate University. Jaffa attempted to apply the teaching of his mentor, Leo Strauss, to combat the relativism and nihilism he perceived were threatening American politics.

Jaffa is not only contemptuous of the left, he also asserts that many conservatives misinterpret original intent. While he is sympathetic regarding attacks on liberal jurists for reading into the Constitution value judgments, he believes judges should derive the meaning of the text by looking to the Declaration. This, Jaffa claims, is foundational for any understanding of the framer’s intent.

To Jaffa, some conservative approaches also exhibit the legal realism and positivism he decries. Jaffa is particularly offended by the Constitutional reasoning of Rehnquist and Bork. Both of whom are hesitant to interpret the Constitution by looking at extraconstitutional texts.

In Jaffa’s thought, the “all men are created equal” clause of the Declaration, is critical for comprehending the framers project and the American system. It encompasses basic principles of natural law, and only by referencing it can we avoid grave errors of jurisprudence. According to Jaffa, Abraham Lincoln demonstrated that he was America’s greatest statesman and best understood the Constitution’s meaning. He saw that the Constitution—despite its compromises-- viewed slavery as an immoral aberration not countenanced in natural law or the Declaration.

In short, the Declaration is an aspirational document, but it is unclear how it commits one to action or binds jurists in any way. Lincoln’s moral compass, informed by natural law, was fully cognizant that slavery was an abomination. That said, Lincoln’s actions were prudential.

Jaffa’s adherence to natural law is a bulwark against relativism and nihilism; however, absent a prudential statesman, theory and practice diverge. Deontological moral principles may be prescriptive but may lead to untoward consequences. Both Lincoln and Churchill understood the reality of evil, yet both men acted with circumspection and prudence.

Jaffa argues that the equality clause is basic to the proper interpretation of the Constitution, yet he notes that three provisions in the Constitution sanction slavery. Further, the republican form of government clause implies that every state ratifying the Constitution was implicitly republican. Hence, slavery and republicanism were compatible in the eyes of the framers.

Jaffa’s book points to an incautious willingness to look outside of the Constitution in order to discern its meaning. The author’s veneration of the Declaration is widely shared; however, what then should we say to liberal jurists who argue that FDR’s “Four Freedoms” should inform judicial interpretation. Jaffa is quick to label those with whom he disagrees with as Calhounites. But at times he is unfair toward Calhoun. Why is Jaffa certain that Calhoun conflated rights and interests? We can disdain much of what Calhoun averred without reaching this conclusion.

For all its tendentious points, Jaffa has written a thought-provoking book. The author has included replies to his arguments by several scholars. One may not be fully convinced by the author’s arguments, but his seriousness of purpose cannot be gainsaid.

[Bruce · Rating 5 out of 5]

William F. Buckley once said, "If you think it's hard to disagree with Harry Jaffa, you should try agreeing with him." Having read Original Intent I understand exactly what he meant. Jaffa's defense of natural rights is both intransigent and detailed. Anyone with less than a completely cohesive and internally consistent argument, no matter how much in agreement, would be the target of his relentless dissection until everything was straightened out.

Jaffa sees "the Laws of Nature and of Nature's God" enunciated in the Declaration of Independence as the literal philosophical foundation for the rights expounded in the U.S. Constitution. This philosophy of natural rights is the original intent of the Founders which must be consulted to properly interpret the Constitution.

After an initial essay, Jaffa invites three Constitutional scholars -- Bruce Ledewitz, Robert L. Stone and George Anastaplo -- to criticize his thesis, then answers their criticism. Jaffa is brilliantly incisive and argues with great force and clarity, and I'm eagerly anticipating reading his most famous book, Crisis of the House Divided, an analysis of the Lincoln-Douglas debates.

However, there is a fly in the ointment, for me at least. Jaffa considers homosexuality a violation of natural rights, and therefore criminal in nature. His argument is that homosexuality cannot be considered natural since the "very root of the meaning of nature is generation. . . . To conceive of marriage apart from the possibility of the generation and regeneration of human society is contra naturam." Homosexuality is thus to be classified with incest and polygamy.

My immediate tactic is to treat this as an aberration based on ignorance (insufficient information). Given, however, my substantial agreement with his thesis and enormous respect for his scholarship, this tactic seems at the moment both feeble and vulnerable. Viewed as positively as possible, it is one of those contradictions that often lead to genuine intellectual progress. We'll see.