God and man in court - constitutional law; part 1 of debate

National Review, August 14, 1995 by Lino Graglia

Mr. Graglia is A. Dalton Cross Professor of Law at the University of Texas. This article is adapted from a paper responding to "Storm over the Constitution: Jaffa Answers Bork," a paper delivered by Mr. Jaffa at a symposium on natural law sponsored by the Southern California Interdisciplinary Law Journal. The complete symposium record is published by the Journal in its Spring 1995 issue.

HARRY Jaffa has long engaged in a campaign of vilification against Robert Bork and William Rehnquist, a campaign I consider both sad and shabby. It is sad because he is attacking people who are on my and, he says, his side on the basic issue of constitutional law -- the issue of the proper role of the Supreme Court in our system of government. One must expect attacks on Bork and Rehnquist from Ronald Dworkin, Bruce Ackerman, and Larry Tribe, and one can derive satisfaction from refuting them. But Jaffa is a hard-core political conservative; he was an advisor to Senator Barry Goldwater at a time when the name Goldwater was a liberal epithet. Indeed, he claims to be responsible for the famous slogan about extremism in defense of liberty being no vice, a stroke of genius that surely cost Goldwater whatever slim chance he ever had of winning the election. More important for present purposes, he is also, he tells us, a staunch foe of the judicial activism that has served to make the Supreme Court the enacting arm of the ACLU's political agenda.

If Jaffa is opposed to judicial activism, why does he devote his time and energy to reviling its two most prominent and effective opponents in the past half-century -- excepting possibly only Learned Hand and the newer arrivals, Justices Scalia and Thomas? How is the public interest served by that? And reviled them he has. His campaign against them has been shabby because he has attacked them not as a friendly critic or a disinterested scholar but personally, bitterly, and arrogantly. He has written that Bork "no doubt in his own mind . . . has taken on something of the status of a martyred saint of conservatism," a statement for which he has not the slightest basis.

Senator Hatch's support of Bork, Jaffa says, has "the tone of triumphant martyrology." "Surely hyperbole can go no further," he sneers, than for Senator Hatch to "compare . . . Bork's prose to Churchill's," something that Senator Hatch has not done. (Hatch's statement was that Bork, like Churchill, is one of the rare "great scholars or writers of a talent to explain momentous events.") Bork, Jaffa says, engages in "the most shameless expurgating and bowdlerizing of the Constitution's text." Jaffa substitutes arrogance for argument when he says: "It is embarrassing to have to instruct Judge Bork in . . . the simplest elements of the political philosophy of the American Founding." Rehnquist is not the subject of his paper, but Jaffa cannot resist a passing contemptuous reference to him as "that fountain of authority."

What sins can Bork and Rehnquist have possibly committed to deserve such contempt? Which of Bork's many decisions as a Court of Appeals judge or of Rehnquist's many more on the Supreme Court does Jaffa even disagree with? As far as I can tell, there are none. I could fault Bork and Rehnquist -- as well as Scalia, Thomas, and even Hand -- as too activist themselves, too ready to hold unconstitutional laws that are not, but that is not Jaffa's complaint. How, then, have Bork and Rehnquist offended him? It happens that Harry Jaffa's principal contribution to constitutional scholarship is his peculiar notion, following Abraham Lincoln, that the Constitution incorporates the Declaration of Independence. He considers this the most crucial and incisive insight in the history of American constitutional theory, and is enraged that Bork and Rehnquist have failed to appreciate it.

Jaffa agrees with Bork, he says, that, "the notion that the Justices of the Supreme Court may in any way alter or amend the law of the Constitution by importing into it ideas or principles drawn from outside the Constitution itself is utterly abhorrent to sound jurisprudence. Like Judge Bork, I am devoted to the principle that the Justices of the Supreme Court are bound unqualifiedly by the positive law of the Constitution, and that the positive law of the Constitution is to be understood in terms of the original intent of those who framed it and those who ratified it." What Bork fails to understand, according to Jaffa, is that "natural-law principles are present within the Constitution, as elements of the positive law of the Constitution." Thus, Jaffa insists that he is, like Bork, a positivist -- a proponent of the view that the only function of judges is to enforce enacted law -- despite being a believer in natural law. In fact, he is chasing an oxymoron, "positive natural law."

It is very important, Jaffa agrees with Bork, that judges stick to enforcing positive law in order to avoid the danger of having unelected officials substitute their policy views for the views of the elected representatives of the people. This danger is avoided, however, Jaffa apparently thinks, when the positive law (here, the Constitution) simply enacts the natural law even if it does so without codifying or otherwise specifying the content of that "law." Natural law then becomes positive law, and a judge who decides cases on the basis of his understanding of the principles of natural law is simply performing the ordinary judicial function of interpreting and applying law.