Sunday, May 01, 2005

Jaffa versus Mansfield

There is a long but interesting article by Thomas G. West at the Claremont Institute, titled "Jaffa versus Mansfield; Does America Have a Constitutional or A "Declaration of Independence Soul".

The complete piece runs to almost twenty pages and covers a great deal of ground in areas of history, philosophy, religion, and Constitutional law. I think it is well worth reading, even though I disagree with it in many respects. To set the stage for those who have not read the complete article, he discusses an argument which has been simmering for a long time between legal scholars on the political Right; is the purpose of the Constitution to reflect the ideals of the Declaration?

He identifies the two parties to the debate as "traditionalists" and Straussians. The former I think is a reasonable designation, the latter I think is not; however I'll use his terms for the purpose of discussion.

He comes to a few conclusions, which I'd like to take issue with.

First, he feels that the traditionalists do not have firm ground from which to assess the Constitution, and apply corrections to it when necessary. By contrast, the Straussians can turn to the principles in the Declaration and measure the Constitution by how successful it is at realizing them.

Second, moving from the general to the specific, he brings up the issue of slavery. A strict constructionist judge, he says, could not strike down slavery as un-constitutional, prior to the 14th Amendment. However, a judiciary which views it's role as correcting the errors in the Constitution by reference to the principles of Natural Law, as embodies in the Declaration, could in fact strike down slavery or any other practice which violates Natural Law.

"..the original Constitution was a noble but incomplete attempt to secure the equal right to liberty for all. Lincoln's career, and the constitutional amendments that it inspired, are at once the vindication and the completion of the original imperfect founding. The principles of the Declaration, in Jaffa's view, not only help us to understand the Constitution, but also helped us, in the nation's greatest crisis, to correct the Constitution and bring it into conformity with the true principles of justice."

"Unlike Mansfield, Jaffa never wavers in his insistence that the Constitution is only intelligible in light of its end, stated in the Declaration."

"But if we read the Constitution as ( the traditionalists) recommend(s), namely, as a document whose authority is not derived from the idea of equal individual natural rights, we cannot know, on the basis of the Constitution, that slavery is wrong. We cannot know that anything is wrong."

There are some glaring incongruities between the historical record and what West describes. Historically speaking, the Abolitionist movement in America was not driven by an abstract view of Natural Rights or social contract theory; it was motivated by religious zeal. Among those West includes in the traditionalist camp is Edmund Burke. Burke was an early advocate of abolishing slavery, even without the guidance of the Declaration, and even though he took a dim view of social contact theory. Conversely, Thomas Jefferson, who wrote the Declaration and whom West ropes into the Straussion camp, was a slave owner all his life.

Although West gives the impression that the Founders were of one mind in their dedication to the ideal of the Declaration and of Locke, there was considerable disagreement among them, which is why the slavery compromise was made in the first place.

Russell Kirk, another traditionalist he mentions, actually wrote a book, The Roots Of American Order, describing the moral foundations of the American Founding in the idea of Jewish and Christian religion, and Greek, Roman, and British philosophy and legal thought. The notion that "we cannot know that anything is wrong" if we accept the traditionalist perspective, appears to be nonsensical on it's face. It only makes sense if it is read as "we cannot know that anything is wrong, simply by reading the Constitution."

And that gets us to the heart of the matter. For West, and a great many people who think as he does, the Constitution is primarily a moral document, a secular version of the Ten Commandments. This is the Constitution as "living document", being constantly improved to bring it ever closer to some Platonic perfection.

Mr. West gives the impression that he would like to assign the responsibility for contemplating the "Natural Law" to the political class generally and the judiciary specifically. Such judges would become practically a new class of priest-kings, determining the proper structure of American society on the basis of their interpretation of the works of John Locke. This is the ultimate abolition of the separation of church and state, with the state now presuming to be the final authority on all moral questions.

The traditionalist response to this is that we do in fact believe in a moral law, which must in some sense be able to supersede the written Constitution on (rare) occasions, but that the keepers of this law are not some narrow class, but the people as a whole, and that it is their responsibility to see to it that virtue as they understand it is reflected in their Constitution to the degree they deem necessary. The Constitution, even with the inclusion of the Declaration, is not intended to be a comprehensive moral framework. Its role is to provide a structural civic framework within which the citizens may work out for themselves "the truth about the good society". In many cases, people will do this by reading the Bible, or Torah, or Koran, and the conclusions they come to me well be at variance with the views of John Locke, Thomas Jefferson, and the preamble to the Declaration. Or perhaps not. An often-overlooked clause in that preamble states that among our rights are those to self-governance.

If the Supreme Court decided tomorrow that the practice of allocating Senate seats by state rather than by population violated the principle that "all men are created equal", I'd hope that Mr. West would disapprove. But I don’t think he would have very solid grounds to do so.



At 10:14 PM, Blogger vancanadalaw said...

There is no practical difference between taking the position that the principles of the constitution are “true” only to apply and interpret them with personal beliefs as a guide and as the times will permit, versus viewing the constitution as a ‘living tree’ (language adopted by the Supreme Court of Canada).

I am no expert in the American Constitution, and while much of its content may be framed more narrowly than the Canadian Charter of Rights and Freedoms, it undoubtedly has ample breadth in language and ideas to permit its self-serving use and interpretation by all concerned. Not that this is an evil; this is what one would want. Without the flexibility inherent in such a document, it seems to me civil unrest would be occasioned much more frequently than is presently the case.

The Canadian Charter of Rights and Freedoms surely has both a moral component, in connection with its content, and at the same time reflected a view of the executive branch of Government that did not always exist and, conceivably, may not exist in the not-too-distant future. I say ‘executive’ because save for exceptional circumstances the ‘legislative’ branch of the state is largely a fiction in our system of government. The choice reflects something of a paradox: citizens seeking to enjoy inalienable “rights”, but demanding government ‘by the people’. The very creation of “rights” in any state governed by the rule of law results in governance by the supreme court of that state.

Thankfully, Canada’s Supreme Court does not pretend (for the most part) that it does not play a policy-making role in society. They allow themselves to be sensitive to the times in which they write their decisions and their legitimacy and that of the Constitution is preserved by doing so. Sure, they must develop a body of principle, but this is a pragmatic issue: society would be too chaotic if citizens did not have some sense of the rules they must play by. Constitutional jurisprudence is not, in Canada at least, simply moral doctrine applied to facts. It is the reflection of evolving moral views using as its starting point the morality of the time of founding.

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