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

O.K., Judge, the ball is in your court ! Harry V. Jaffa

Senior Fellow, Claremont Institute

Claremont, Calif.

Mr. Bork Responds

Not really. After Professor Jaffa's latest effort, the ball has disappeared over the fence and is lying in the weeds, far from any court. Rarely has historical learning been deployed to so little effect. I am pleased Professor Jaffa has quoted my assessment of his book as "incoherent, inconsequential, and disingenuous." It cannot be said too often. His response ignores most of the points made in my review of his book in order simply to repeat two of his most obvious errors.

The odd notion, which Jaffa shares with Taney, that the Constitution contained a right, good against the Federal Government, to own slaves rests entirely upon a few provisions that attempt to cope with the brute fact that slaves were held in the Southern states and that the North could do nothing about that if a nation was to be created. Robert Goldwin has pointed out, quite correctly, that the Framers assiduously avoided giving slavery constitutional standing. Thus, there was no "evidence [in the original Constitution] of the kind of thinking ascribed to the founders by Chief Justice Taney in the Dred Scott case... there is no such racism to be found in the Constitution, then or now, not a word of it" (Why Blacks, Women, and Jews Are Not Mentioned in the Constitution, and Other Unorthodox Views). So far as the Constitution was concerned, slavery was a fact that had, for the time being at least, to be endured, not the guaranteed right that Taney made it.

Even more peculiar is Professor Jaffa's insistence that substantive due process had nothing to do with the Dred Scott decision. Here he parts company with Taney, and about time, too. Taney advanced many arguments for slavery but he also said quite clearly that depriving a man of his property (a slave) merely because he brought his property into a particular territory of the United States (where slavery was forbidden by the Missouri Compromise) "could hardly be dignified with the name of due process of law." As Professor David Currie has written, Taney's Dred Scott opinion "was at least very possibly the first application of substantive due process in the Supreme Court, the original precedent for Lochner v. New York and Roe v. Wade."

By now every reader must be heartily sick of arguments about the correct interpretation of an opinion almost 140 years old. It is time to bring this bootless discussion to a close. In doing so, I would remind Professor Jaffa that the first discussant to resort to the ad hominem, which is his standard style of argument, has no standing to complain if he is treated severely in return.

--ROBERT H. BORK