West Coast Straussian perspectives on American political thought and constitutional law have increasingly been posited into the center of conservative media outlets. Ken Masugi , for example, has recently written an essay on issues related to teaching law, originalism, and religious liberty. Although there are valuable insights within this piece as a whole, I am troubled by what is implied by the following passage and its embedded link to Harry Jaffa’s essay, “The American Founding as the Best Regime”:
The originalist understanding of law would tame democratic majoritarian passions as well as anti-democratic ones. Whether this vital enterprise can be accomplished without recourse to the Declaration of Independence and other founding documents is highly problematic.
My central nomocratic concern is Masugi’s (implied) and Jaffa’s (explicit) view that the Constitution basically established a telocratic American regime that is dedicated to values such as “equality” and “natural justice.” The historical record does not support such notions, and I will respond to this West Coast Straussian perspective in a two-part essay. The following is my first installment of this larger project in which I both (1) elucidate Jaffa’s creative view that equality and natural justice have constitutional status in the 1789 founding document and, then, (2) demonstrate how his conclusion about the former (i.e., the constitutional status of equality) cannot be sustained from an originalist perspective given the lack of evidence in both the Constitution’s and Declaration of Independence’s respective texts and historical contexts. [Note: both spellings, “telocracy” and “teleocracy,” are correct. Oakeshott used the former, and I often (and others sometimes) follow his convention. However, the alternative spelling is more in keeping with contemporary usage and may also be technically superior, for as Paul Gottfried observes “‘teleio’ or ‘teleo’ should precede ‘kratikos’ if we are following the classical Greek form.”]
I. Jaffa’s 1789 Constitutional Regime: Reading in “Equality” and “Natural Justice”
Jaffa’s essay, which Masugi links to in his above cited passage, is quite revealing. Here he claims that the Constitution established “equality” as a telocratic commitment of the 1789 constitutional regime:
The Constitution of the United States meant to do what, in fact, it has done. By grounding the regime in the doctrine of human equality, proclaimed in the Declaration of Independence, it has, as Lincoln said, cleared paths for all, given hope to all, and, by consequence, enterprise and industry to all. To a degree hitherto unimagined as possible, it has lifted the burden of unjust inequality—”the oppressor’s wrong, the proud man’s contumely”—from the backs of the common people.
The sequel further suggests that the Framers also intended to ensconce a mode of ordered liberty that includes natural-law-like limits on individual negative liberty:
As the Virginia Bill of Rights shows, the Framers never conceived the blessings of liberty in nonmoral terms. They never imagined it to encompass the exhibitionism of lesbians, sodomites, abortionists, drug addicts, and pornographers. The people are the source of the authority of the Constitution—of all lawful authority. In Jefferson’s words, the people “are inherently independent of all but moral law” (letter to Spenser Roane, September 6, 1819) Let us not, however, forget, that “but.” Absent the moral law, a people becomes a mob. And mobs give rise not to free government, but to despotism. That is the theme of Lincoln’s Lyceum speech in 1838.
Jaffa also takes direct aim at more nomocratic and historically grounded conceptions of originalism, arguing instead that the proper originalism includes interpreting the Constitution as including a commitment to “natural justice”:
In truth, the “what” of the Constitution is inseparable from its “why,” and the attempt to understand the former without the latter is—all but the simplest cases—vain. Yet this is precisely what Chief Justice of the Supreme Court William Rehnquist attempts when he writes, for example, that constitutional “safeguards for individual liberty” are grounded neither in “intrinsic worth” nor in “someone’s idea of natural justice,” but simply in the fact that “they have been incorporated in a constitution by the people.” The Framers’ ideas of natural justice were the very ground and origin of their intent. To appeal to the conception of “original intent” in interpreting the Constitution—as do Justices Rehnquist and Antonin Scalia and Judge Robert Bork—while denying the ideas of natural justice which formed the “why” of the Constitution, is to go to the uttermost limit of self-contradiction.
Here the more positivist oriented originalism of Rhenquist, Scalia, and Bork is condemned because (according to Jaffa) it fails to recognize that the Framers wanted individual liberty to be balanced with the demands of “natural justice”, which Jaffa seems to interpret as a dictates of natural law. Jaffa believes that because he can find statements from various Founding generation figures (thereby revealing their “ideas”) about the importance of “natural justice” (i.e., natural law) this must mean that the Framers incorporated such moral ideals into the Constitution as positive law.
II. Criticism of Jaffa’s Feigned Originalism: No Equality in the 1789 Compact
Jaffa’s analysis of the original Constitution is seriously flawed. This reality becomes apparent, in part, through recognizing that the Constitution’s Preamble, which articulates the ends and purposes of the 1789 compact, does not mention “equality.”[i] (“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”) Furthermore, the Constitution that was drafted in the Philadelphia Convention clearly allowed the States to encode all sorts of inequalities (in the Lincolnian sense) with respect to the legal status of their inhabitants. This is evidenced by (1) the original Constitution allowing the international slave trade to continue without threat of Congressional prohibition until 1808 and (2) that the issue of slavery did not have a highly moralistic character in the Philadelphia Convention.[ii]
Jaffa presumably believes that such objections can be overcome via linking the Constitution to the Declaration of Independence; he assumes the appropriateness of interpreting the former via the moral principles expounded in the latter. This seems clear from the following previously quoted lines: “The Constitution of the United States meant to do what, in fact, it has done. By grounding the regime in the doctrine of human equality, proclaimed in the Declaration of Independence, it has, as Lincoln said, cleared paths for all. . . .”
Such reasoning, however, is highly problematic for a number of reasons. First, the Declaration, placed in its proper historical context, was a joint statement by thirteen, separately, self-declared sovereign States speaking in unison via their Continental Congress, which existed merely as a body of representatives whose entire legal authority was wholly derivative of these separate colonies becoming States. This congress would not obtain any legally independent status until these newly sovereign States agreed to confederate with one another under the terms of the Articles of Confederation, which were not even proposed to the States by the congress until 1777 and not, then, ratified by the States until 1781, well after the Declaration of 1776.
Second, as Willmoore Kendall and George Carey also show, the text and context of the Declaration demonstrates the fallacy of the Lincolnian (and Jaffa) view that the Declaration established a single nation:[iii] (1) it begins with “‘The unanimous Declaration of the thirteen united States of America’” suggesting that it could have been a declaration of less than thirteen and, hence, that “united” was merely descriptive term and not the name of a new nation; (2) the last paragraph of the Declaration makes clear that the former colonies had become separately sovereign States and not derivative, subordinate entities to a larger nation-State (“‘Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which independent States may of right do.” Italics were added by Kendall and Carey.); and (3) an examination of the historical context reveals that the “states or colonies (whatever one prefers to call them) understood” that the Declaration did not create a nation-State because eleven of the thirteen new States began “establish[ing] independent governments (that is, independent of Great Britain)…” due to their recognition that no other governing authority existed in the wake of their secession. [iv]
This view that the Declaration did not establish a single nation is also implied by historian Forrest McDonald in his book, States’ Rights and the Union: Imperium in Imperio, 1776–1876. Here McDonald observes that the document has three parts, and the third (final) part employed precise language, in contrast with the first part (i.e., “a two-paragraph preamble”) in which “ringing, almost poetic, phrases” were used:
The third part is the actual declaration proper, in which precise language is crucial: “We therefore, the Representatives of the united States of America. . .do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare” themselves to be ”FREE AND INDEPENDENT STATES,” and as such ”they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all Acts and Things which Independent States may of right do.” The plural language is used throughout. In addition, in keeping with an eighteenth-century convention, nouns in the document are capitalized, and what the delegates represent are united States—that being not a name, but “united” being merely an adjective describing the stance of the states in opposition to Britain.[v]
McDonald’s revelation about the plural language corroborates Kendall and Carey’s above mentioned analysis, but he also adds to their observations by showing that the Declaration follows “eighteenth-century convention” by capitalizing “nouns.” Hence the lowercasing of “united” throughout the document indicates that this was just an adjective connoting loose affiliation via a common cause and, therefore, was NOT part of a proper-noun name (i.e., it did NOT connote that the States were formally a united, single nation). In turn, this point complements and further corroborates the above analysis that the Declaration itself and its context implies that the document was not establishing a single nation, but rather was a joint statement of thirteen, independently sovereign and only-united-via-their-common-cause-of-declaring-and-defending-their-new-independence, States.
Third, Kendall and Carey argue that the Declaration cannot be viewed as having “constitutional status.” Here (as in their analysis presented in the prior paragraph) they are directly confronting Lincoln’s statements, which Jaffa relies upon, in the Gettysburg Address that “‘Four score and seven years ago, our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.’” Kendall and Carey identify an implication in these famous words that the Declaration entailed and imparted to us a “commitment as a people to an overriding purpose” that is “a hereditary one that presumably we, as a people or nation. . .are bound to act in fulfillment of. . .” According to Kendall and Carey’s reasoning, Lincoln assumed that the Declaration had constitutional status in the sense that it bound us to a purpose (i.e., to further realize equality among all men) and that future generations would continually be bound to this purpose (i.e., the obligations stemming from it) by virtue of their tacit consent given through continuing to live within and, hence, partaking in the benefits and protections of the United States. In response, Kendall and Carey maintain that this Lincolnian perspective has a problem: it arbitrarily “fixes our beginning as a people” at a point that is convenient for Lincoln’s purposes (i.e., justifying his organic theory of a union, which stipulates that the American nation came before the States, because of its political and legal importance to his war policy against the seceding South) but seems to be a less historically relevant starting point than either the true colonial beginning (e.g., an event like the signing of the Mayflower Compact) or the most obviously bona fide legal founding, the proposing and ratification of the 1789 Constitution. Kendall and Carey believe that the latter is the most persuasive option for a beginning point of America as a people, especially when it is contrasted with Lincoln’s view that the Declaration established this beginning:
[A] claim could be made that the adoption of our Constitution essentially marks our beginning, for at this juncture we did through deliberative process—far more deliberative, candid, and sober than those surrounding the adoption of the Declaration—set forth our supreme symbols. What is more, the fifty-five at Philadelphia knew precisely what their task or mission was, namely, that of fashioning a new government for the separate thirteen on such foundations and with such process that would allow for union.[vi]
Kendall and Carey continue:
Put still otherwise, to speak as Lincoln does about binding commitments off of the Declaration, on the facet of it, is not at all convincing for one who wants to argue, as we presume Lincoln would, about obligation in the same sense as the consent theorists. Those who would want to renege on the alleged promises would have more than one reason to say [about the Declaration of Independence]: “We know nothing about the binding commitments you suggest. The document in which you presumably find that commitment does not bind us. It is merely a declaration which states our reasons for separation from Great Britain. It was not intended to be, nor is it, a document which binds us to commitments as a nation and people.”[vii]
Of course, one can question Kendall and Carey about whether even the 1789 Constitution truly established an American nation and people, for (as I have implied elsewhere) the historical context of the Constitution’s founding suggests that the proper locus of sovereignty still remained with each People of the States and, hence, that the Constitution merely continued a confederational union of multiple peoples and nation-States on different terms. With this in mind, final enactment of the Articles of Confederation in 1781 is perhaps a superior, real beginning of the American union, albeit not the starting point of a nation-State. Nevertheless, Kendall and Carey’s analysis definitely shows that the framing and ratification periods are a much superior option, when contrasted to the Declaration of Independence, for a starting point of a constitutional union that imparted legal obligations on individual citizens and the governments of the States (to the extent that each State People remained within this confederal union and, hence, under the Constitution).
Finally, Kendall and Carey show that even if (for the sake of argument) the Declaration could be viewed as having “constitutional status” and even if its “‘all men are created equal’ clause contains within it our supreme symbol,” the “Declaration, in light of the Preamble,” does NOT “still obligate us.” Kendall and Carey argue this is true for two reasons:
(a) The Constitution, a document which does enjoy constitutional status, gives us new commitments, new purposes, new symbols, and equality, however defined, is not one of them. (b) Precisely to the extent we acknowledge that the Framers were, so to speak, “backing off” from the symbols or symbol of the Declaration (in the sense we have indicated above), we have every reason to believe that they wanted to let us “off the hook” or, more bluntly, to indicate clearly that equality is no longer one of our basic commitments.[viii]
In other words, even if (arguendo) the Declaration did constitute a nation and, hence, gave us a commitment to “equality,” the Constitution, which was adopted through a far more consent-oriented process than the Declaration, would have re-founded the union such that it no longer possessed a commitment to this telocratic ideal.
III. Conclusion to Part 1
Much more can obviously be said about all of these issues. Jaffa, for example, has written numerous seminal books and articles, such as Crisis of the House Divided and A New Birth of Freedom, that elaborately develop his interpretation of the American political tradition; thus, he is entitled to a more a complete review and evaluation than I am conducting within this web essay. Furthermore, additional criticism of Jaffa’s project can be found, for example, in both Barry Shain’s (a Nomocracy in Politics colleague) “Harry Jaffa and the Demise of the Old Republic” and in Geoffrey Vaughan’s new ANAMNESIS print article, “Harry Jaffa’s Natural Law.” Nevertheless, my examination of Jaffa’s “The American Founding as the Best Regime” is still a worthwhile project, for it demonstrates many of the overall weaknesses with the West Coast Straussians’ approach to interpreting the American Founding and the Constitution. The current installment has briefly shown crucial problems for Jaffa’s attempt at reading equality into the 1789 Constitution via his suggestions that this document should be interpreted in light of the Declaration of Independence. It goes without saying that I am not here attacking the normative value of equality per se; rather, I am just criticizing ideologically motivated attempts to incorrectly revise the history of the Founding and, in turn, falsely reconstruct the Constitution’s positive law. In Part 2 of this essay, I will critique Jaffa’s interpretation of the original Constitution as encoding “natural justice” (i.e., natural law) into our fundamental law. So, please stay tuned.
[i] It is possible that a defender of reading “equality” into the Constitution might retort that “equality” does find expression in the later Fourteenth Amendment, which includes the clause, “No State shall. . .deny to any within its jurisdiction the equal protection of the laws.” Such a response would probably include something to the effect that even if, arguendo, the original Constitution should not be interpreted in light of the Constitution and even if the original Constitution did not commit us to “equality,” the re-founded Constitution via the Fourteenth Amendment does accomplish this. Such an approach would not be taken by Jaffa and his followers because of their position that the Constitution should be read in light of the Declaration, but they might be tempted to suggest that the Fourteenth Amendment reiterates this founding commitment. To this and other similar claims, one just needs to cite Raoul Berger’s detailed analysis of how the Fourteenth Ammendment’s Equal Protection Clause merely established the standard that all laws passed within a state would apply to all persons equally. It did establish a deeper principle that can be further deepened through a substance reinterpretation akin to the substantive due process approach of judicial review. See Raoul Berger, Government By Judiciary (Indianapolis, IN: Liberty Fund, Inc., 1997), 18, 198–220.
[ii] Charles Warren, The Making of the Constitution (Boston, MA: Little, Brown, and Company, 1929), 584–585.
[iii] Kendall and Carey, Basic Symbols of the American Political Tradition (Washington, DC: The Catholic University of America Press, 1995), 75–91. Kendall and Carey use Benjamin Perley Poore’s anthology, The Federal and State Constitutions, Colonial Charters and other Organic Laws of the United States.
[iv] Kendall and Carey, 75–95.
[v] Forrest McDonald, States’ Rights and the Union: Imperium in Imperio, 1776–1876 (Lawrence, KS: University Press of Kansas, 2000), 10.
[vi] Kendall and Carey, 89–90.
[vii] Kendall and Carey, 90.
[viii] Kendall and Carey, 104.