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

National Review, August 14, 1995 by Lino Graglia

The difficulty with this, of course, is that "natural law" would not become any less uncertain, debatable, and a matter of personal perspective if the Constitution authorized judges to discover and enforce it. The practical results of such authority, Bork correctly points out, would be not to lessen but to legitimize the role the Supreme Court has assumed even without such authority, the role of our supreme lawmaker in violation of the principles of separation of powers, representative self-government, and federalism that are the essence of the system of government established by the Constitution.

THE Constitution incorporates natural law because, according to Jaffa, it incorporates the Declaration of Independence. The Declaration, he thinks, constitutes "a compressed summary" and "perfection" of natural law, and the embodiment of "the ethical core of the Judaeo-Christian tradition" as well. The Declaration, however, consists largely of a lengthy indictment of King George III. It is hardly the sort of thing you would expect to find in a nation's constitution. What it is, of course, is a document meant to justify revolution -- that is, illegal action. Having no human law to rely on -- being in defiance of authority -- revolutionaries necessarily come to rely on the law of God, who, happily, rarely issues a protest.

The Constitution, however -- a framework of government constructed by law-abiding men to be ratified by the people -- did not require supernatural support for its validity. The Constitution makes no mention of the Declaration of Independence, and Jaffa has not produced a single statement by anyone at the Constitutional Convention or during the ratification debates indicating an intention or understanding that the Declaration was incorporated and thereby made judge-enforceable law. Jaffa offers only two items of evidence in support of his implausible theory. First, his theory or something like it was asserted in the Republican Party platform of 1860, on which Abraham Lincoln ran for President. That platform, however, was another document created in an attempt to justify a non-legal or extra-legal violent action, the North's waging war on the South to prevent its withdrawal from the Union.

The only evidence, if such it may be called, offered by Jaffa from near the founding era is a suggestion made by Madison in 1825 in response to a request by Jefferson for recommended materials for the law faculty at the newly established University of Virginia. Jaffa states: "Madison recommended, and Jefferson agreed, that of the 'best guides' to 'the distinctive principles of the government of our own state and that of the United States,' the first is, 'The Declaration of Independence, as the fundamental act of Union of the States."' This is, to say the least, a far cry from a statement that the Declaration is incorporated in the Constitution. In fact, Charles Cooper has recently shown that Madison actually denied that the Declaration could be used to interpret the Constitution.