Jaffa v. Bork: an exchange - philosophical debate between Claremont Institute Senior Fellow Harry V. Jaffa and former Judge Robert Bork over issues of constitutional law and Bork's review of 'Original Intent and the Framers of the Constitution' by Jaffa

National Review, March 21, 1994

In 1854 Congress passed the Kansas-Nebraska Act, which said that the Missouri ban of 1820 was inconsistent with the policy of the 1850 laws, and was therefore "inoperative and void." Senator Douglas, the author of the Kansas-Nebraska Act, always claimed that the policy of the 1850 laws was one of congressional non-intervention. The hard-line Southerners, who had a dominating influence on both the Presidents who preceded Lincoln, as well as on the Senate during the same period, were not satisfied with Douglas's "popular sovereignty," which left the decision on slavery in each territory to the local inhabitants. They wanted guarantees that slave property, no less than any other kind of property, would have the protection it needed. When Taney wrote that the only power conferred by the Constitution on Congress in the territories "is the power, coupled with the duty, of guarding and protecting the owner in his rights" they finally got it.

On the eve of the decision in March 1857, both the outgoing and the incoming Presidents (Pierce and Buchanan) exhorted the American people to accept the forthcoming decision of the Supreme Court as a final resolution of the question of the status of slavery in the territories. There is little doubt that these "doughface" Presidents were in some kind of collusion with Taney. When the Court acted as it did, it was attempting to cut the Gordian knot which had immobilized the political process. The decision, and Taney's opinion, were evidence that the Southern Democrats at that moment dominated the Presidency, the Senate, and the Supreme Court. But the rising tide of Republicanism marked the imminent end of that dominance. Dred Scott was a desperate attempt to transform a moral and political question into a legal and constitutional one. But it was political, not legal forces, that produced the result. "Substantive due process" had absolutely nothing to do with it.

Judge Bork finds it a "complete mystery"' how the constitutional recognition of the right of slave ownership "adds up . . . to a constitutional right to own slaves in federal territory." The mystery is solved once one understands that the debate over slavery in the territories was also a debate between two theories of the nature of the Union and the Constitution. This was also a debate between two rival opinions about the "original intent" of the Constitution. The Civil War itself was nothing more or less than a continuation of this debate "by other means."

The architect of the Southern view of the Constitution was John C. Calhoun. Although he died in 1850, he is rightly regarded as the Moses of the Confederacy, the lawgiver who showed the South the promised land. Jefferson Davis was his disciple. Roger B. Taney was his disciple. (In NR's history, Willmoore Kendall, Frank Meyer, Garry Wills, Mel Bradford, and Russell Kirk are among those who have subscribed to the view of Calhoun as the supreme sage of American constitutionalism.) Public opinion in the states that seceded in 1860-61 was influenced decisively by Calhoun. It is nearly impossible to imagine the Civil War except in the light of the Southern mind as shaped by Calhoun.