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

Calhoun's idea of states' rights was the cornerstone of his constitutional architecture. Each state, he held, became a member of the Union under the Constitution of 2787 solely by virtue of its ratification of the Constitution. The Constitution was a "compact" among the states so ratifying. Each state was an equal partner in this compact. The territories of the United States belonged equally to all the states. The Federal Government was their agent, deriving all its authority from their acts of ratification. It had no power to govern the territories, except as that power had been delegated to it by the states in the Constitution. The constitutional equality of the states forbade the Congress, as the common agent of the states, from discriminating among the property rights recognized as lawful by any of the states. It therefore had no lawful power to discriminate against slave property, or to offer it less protection than other property. Hence, the Missouri law was unconstitutional. This was the Calhounian theory behind Taney's opinion.

This is a powerful argument. If it is true, then the Missouri law was in fact unconstitutional. And if that law was unconstitutional, then Taney was correct in saying that anyone deprived of his slave property because of it, and who had committed no punishable offense, had been deprived of his property without due process. "Substantive due process" does not enter into the argument.

The only question is whether the theory of states' rights, whose truth is assumed by Taney, is in fact true. Suffice it to say that the theory of states' rights stands in opposition to the theory of natural rights. In the true doctrine of original understanding, as held by the Framers and ratifiers of the Constitution, all rights of all legitimate civil societies are derived from the consent of the governed. And the consent of the governed arises from the equality of the natural rights of all human beings, under "the laws of nature and of nature's God." The states severally, and the Union as a whole, exist to secure man's natural rights. States' rights are therefore derived from natural rights. Circumstances arising from British rule during the colonial period may have justified slavery as a necessary evil where it already was deeply rooted, at the time the Constitution was ratified. But there could be no justification for extending that evil to virgin territory. Hence Congress did have the right to outlaw slavery in any or all of the territories.

The natural-rights theory enables us to distinguish the principles of the Constitution from the compromises of the Constitution. In Original Intent and the Framers of the Constitution I have tried to show how understanding this distinction in Dred Scott unravels many of the mysteries surrounding the equal-protection clause of the Fourteenth Amendment today. Judge Bork, as a legal positivist, is no more able than Calhoun to distinguish the Constitution's principles from its compromises. Judge Bork tries to draw Lincoln's conclusion--plenary congressional power over property rights in the territories--from Calhoun's premises. But such plenary power can be inferred only from the doctrine of natural rights. Calhoun, and Taney, reached their conclusions only by severing the doctrine of states' rights--and hence of constitutional power--from its original foundation in natural rights. Judge Bork has done the same.