Graglia's quarrel with God - constitutional law; part 1 of debate; rebuttal to article by Lino A. Graglia

National Review, August 14, 1995 by Harry Haffa

Response

Harry Jaffa

PROFESSOR Graglia denounces my critiques of Judge Robert Bork and Chief Justice William Rehnquist because, as a "hard-core political conservative" I should not have called into question the authority of these high priests of judicial conservatism.

I do believe the quest for consensus in a major political party justifies many concessions for the sake of larger goals. I supported Judge Bork's nomination and contributed money to his cause. Even today I believe he would have made a better Justice than Kennedy, Souter, or O'Connor. But Rehnquist and Bork have identified themselves with a jurisprudence of original intent. I share with them the conviction that only such a jurisprudence can counteract the liberal judicial activism that like a cancer is eating away the substance of our Constitution. I have, however, proved -- beyond I think a reasonable doubt -- that what they call original intent is not that of those who framed and ratified the Constitution. They identify original intent -- as does Graglia -- with a legal positivism that is completely alien to the thought of the founding generation.

While I may agree with what Bork or Rehnquist says (or decides) concerning particular cases, I do not believe that legal positivism, grounded in moral relativism and philosophical nihilism, can effectively counteract that very same legal positivism when it appears in the form of liberal judicial activism. Alienation from the genuine principles of the American Founding, whether by those calling themselves conservatives or by those calling themselves liberals, can undermine fatally, not only constitutional law, but the loyalty and conviction of the citizens themselves, upon which everything else depends.

The core of Graglia's disagreement with me concerns the status of the principles of the Declaration of Independence in their relationship to the Constitution. These are the principles of the natural law, as the founding generation understood them. Graglia describes the Declaration as "a lengthy indictment of King George III." Actually, in this indictment nearly every element of American constitutionalism is presented, in the denunciation of its violation: e.g., rendering "the Military independent of and superior to the Civil Power," "depriving us, in many cases, of the Benefits of Trial by Jury," "imposing Taxes on us without Consent," etc. The Declaration is a very textbook of constitutionalism. Graglia should read it some time.

Graglia reserves his greatest derision for my statement that "the goodness of the Constitution is rooted in the goodness of the created universe." Nothing is more revealing than his doubt "whether 'goodness' and perhaps even 'created' are words that can properly be applied to the universe." Let me introduce him to the first chapter of Genesis, which begins, "In the beginning God created the heavens and the earth," and ends, "And God saw everything that he had made, and behold, it was very good." For most of us, "goodness" and "created" are understood primarily and essentially, as well as properly, as applied to the universe. For most of us, all other meanings of "goodness" and "created" are derivative from this. Within the context of Western civilization, and certainly of American civilization, the meaning of these words is drawn from the Bible.

The very first sentence of the Declaration of Independence appeals to "the laws of nature and of nature's God" as justification of our separation from Great Britain. Everything that follows is an elucidation of what is meant by this appeal. The violations charged to the British Crown and Parliament are violations not merely of positive law, but of those provisions of positive law that were regarded as implementations of the natural law. In the Summary View of the Rights of British America of 1774 -- whose composition led to his selection by the Continental Congress as draftsman of the Declaration of Independence -- Jefferson told the King that the colonists "shall [not] be taxed by any power on earth, but our own. The God who gave us life, gave us liberty at the same time: the hand of force may destroy, but cannot disjoin them." Certainly no more unconditional commitment to the idea of a non-arbitrary standard of political right is imaginable, a standard in nature to which positive law is subject.

GRAGLIA declares that my "call for judging on the basis of 'the laws of nature and of nature's God' is obviously an invitation to participate, not in policy analysis or constitutional interpretation, but in theological or philosophical speculation."

But let us consider what is implied in knowing the laws of nature. I will here present a simplified course in Aristotle. Let us call it "Aristotle for lawyers."

All human rationality derives from the common noun. "Dog" is a common noun. "Fido" is a proper noun. When we say "Fido" we mean a dog of that name. But Fido is identified as a dog before he is identified as Fido. It is the common noun that is the foundation of all thinking. It is a universal, abstracted from the particulars of sensible reality. If I say, "This is a chair," I am saying, by necessary implication, that there are an infinite number of possible chairs, each different from this one. Since it refers to any possible chair, the common noun "chair" can itself have no color, form, or size. If we imagine a chair having any sensible attribute, then we are imagining a particular chair.