Liberty, Prudence, Imperfection, and Law

West Coast Straussians, Harry Jaffa, Bad Originalism, and Telocratic Fantasies, Part 2

Scene_at_the_Signing_of_the_Constitution_of_the_United_States (2)

Part 1 of this essay considered Jaffa’s telocratic view of the Constitution in his “The American Founding as the Best Regime,” and it critiqued his claims that the Declaration of Independence and the ideal of equality have constitutional status. Part 2 will consider interpretative problems with Jaffa’s argument that “natural justice” has constitutional status as well.

With respect to the moral ideal of “natural justice” (i.e., natural law or natural rights), reference to this is obviously also lacking within the original Constitution. The Constitution mentions several purposes in its Preamble—e.g., “more perfect Union,” “Justice,” “domestic Tranquility,” “common defence,” “general Welfare,” and the “Blessings of Liberty to ourselves and our Posterity.” Although it is clear from this list that “natural justice” is not among the explicit black-letter purposes, Jaffa seeks to identify it as being implied within “Blessings of Liberty.” In the paragraphs that follow, I will show both (1) that “natural justice” probably cannot be viewed as implied in the Constitution’s reference to “Justice” in the Preamble and also (2) that Jaffa is wrong in regards to his interpretation that “natural justice” is constitutive of “Blessings of Liberty” in the Preamble.

I. “Justice” in the Preamble Probably Does Not Connote Philosophical Notions of “Natural Justice” (i.e., Natural Law or Natural Rights): 

The term, “Justice,” in the Preamble probably does not imply “natural justice” (i.e., a natural law or natural rights concept). Less philosophical connotations of the term, such as Anglo-American legal notions of procedural fairness and the protection of common law and statutory rights, seem much more likely definitions of “Justice” in the Constitution. As my fellow Nomocracy in Politics colleague, history professor Nathan Coleman[1], has suggested, “The constitution was a legal instrument, not a philosophical tract,” and this bodes poorly for interpretations that seek to identify grand philosophical concepts of “natural law” within its text. In a legal document like the Constitution, such procedural notions would most likely be implied, especially when additional definition would be needed (and, yet, is not provided) to connote something more philosophically substantive given the controversial character of justice as a moral ideal. Such added philosophical cues are not provided in the text of the Constitution, and its text and context suggest that contextual-legal notions of justice and injustice are what is most plausibly implied by “Justice” in the Preamble.

Coleman considers how the context of the Constitution reveals its framers thinking on the issue of justice and injustice: “The key to remember, contextually, is that the Constitution is written as a response to the events of the 1780s.” This decade entailed significant legal miscarriages of procedural justice in cases involving “Loyalists (whom Hamilton defended) or even westerners like Kentuckians.” As partial evidence for this, Coleman points to Madison’s “Vices of the Political System of the United States” essay where Madison describes unjust State laws:

10. Mutability of the laws of the States.

This evil is intimately connected with the former yet deserves a distinct notice as it emphatically denotes a vicious legislation. We daily see laws repealed or superseded, before any trial can have been made of their merits: and even before a knowledge of them can have reached the remoter districts within which they were to operate. In the regulations of trade this instability becomes a snare not only to our citizens but to foreigners also. 

11. Injustice of the laws of States.

If the multiplicity and mutability of laws prove a want of wisdom, their injustice betrays a defect still more alarming: more alarming not merely because it is a greater evil in itself, but because it brings more into question the fundamental principle of republican Government, that the majority who rule in such Governments, are the safest Guardians both of public Good and of private rights. To what causes is this evil to be ascribed? 

In “10.” Madison refers to the prevalence of State governments insufficiently respecting the value of stable and  well promulgated laws via these governments continually repealing and superseding already enacted laws. These new laws, no doubt, included the instances of “injustice” (referenced in “11.”). Madison identifies two major causes of such “injustice” at the State-level: (1) bad political leadership and (2) the ease of forming factious majorities. With respect to the latter, Madison reveals the nature of the “injustice” that he has in mind:

2. A still more fatal if not more frequent cause lies among the people themselves. All civilized societies are divided into different interests and factions, as they happen to be creditors or debtors—Rich or poor—husbandmen, merchants or manufacturers—members of different religious sects—followers of different political leaders—inhabitants of different districts—owners of different kinds of property &c &c. In republican Government the majority however composed, ultimately give the law. Whenever therefore an apparent interest or common passion unites a majority what is to restrain them from unjust violations of the rights and interests of the minority, or of individuals?

Here we see Madison’s suggestions that majority factions, as coalitions consisting of certain (often economic) groups around certain “interests” or “passions” that are opposed to a competing minority, are often the cause of injustice within the laws of the States. Such an unjust law, then, would entail examples like (1) a majority of debtors legally depriving creditors of what is contractually owed to them or (2) a majority sect depriving a minority sect of certain basic liberties, etc. Here injustice refers to a majority depriving a minority of what would be legally recognized as property and/or rights according to recognized standards of the Anglo-American legal tradition. Such was the case within respect to treatment of the Loyalists, etc.

Aside from such considerations of context, the text of the Constitution suggests that its purpose of “Justice” is procedural (and not a natural-rights/natural-law philosophical concept) in the sense of establishing protection from violations of recognized standards of Anglo-American law. Article I, Section 9, for example, prohibits Congress and the Federal Government from violating well established and/or corrected conventional Anglo-American legal principles: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. No Bill of Attainder or ex post facto Law shall be passed.” Similarly, Article I, Section 10, for example, prohibits States from violating several principles that were either conventional protections from British and colonial American law or new protections recognized as necessary for correcting imperfections in conventional law: “No State shall. . .pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts. . . .”

In both cases, the prohibition of Bills of Attainder (i.e., a legislative deprivation of property and/or life) proscribed a hated practice that had occurred in both English and early American history, including the American Revolution. As both Coleman and Jacob Reynolds both separately discuss, one famous example of the latter was the Bill of Attainder, which was developed via the collaboration of Thomas Jefferson and Virginia Governor Patrick Henry, against the criminal Tory, Josiah Philips, who reportedly used his British commission as a means of perpetuating thievery against Virginians. When Philips was finally apprehended, Virginia’s Attorney General, Edmund Randolph, prosecuted him for robbery, rather than on the charges from the Attainder. The Bill of Attainder against Phillips was memorialized as a shameful event in Virginian history, and it was referenced by Federalists in the Virginia ratifying convention who emphasized how the proposed Constitution would preclude State legislatures from unilaterally issuing such Attainders in the future. As this example suggests, Bills of Attainder were considered unjust by many of the Framers and Ratifying State Peoples, but this conception of injustice was focused on deprivations of property and/or life resulting from legislative enactment and, hence, addressed an injustice within a legal context, not abstract philosophical notions of natural right and law.

The remaining prohibitions protected long established principles of legally contextualized justice from the Anglo-American legal tradition. Protections of the “Privilege of the Writ of Habeas Corpus,” against “ex post facto Laws,” and against State governments “impairing the Obligation of Contracts” are examples of protecting legally conceptualized justice from that established tradition of English and American law. At the Philadelphia Convention, John Dickenson noted that Blackstone mentioned ex post facto laws with reference to criminal cases.  The “[p]rivileges of the Writ of Habeus Corpus” can also be found in Blackstone’s Commentaries where he writes:

But the great and efficacious writ in all manner of illegal confinement, is that of habeas corpus ad subjiciendum; directed to the person detaining another, and commanding him to produce the body of the prisoner with the day and cause of his caption and detention. 

Hamilton in Federalist 84, moreover, directly appeals to Blackstone’s authority when discussing the importance of habeas corpus. Finally, rights of contract were also well ensconced in the prevailing legal tradition, and discussion occurred in Philadelphia about whether the Contracts Clause in Article 1, Section 10 was even necessary, given that it was already so well protected by statute and could be effectively enforced via judicial means without such a clause in the Constitution. Madison’s Notes make this clear:

Mr King moved to add, in the words used in the Ordinance of Cong[res]s establishing new States, a prohibition on the States to interfere in private contracts. 

Mr. Govr. Morris. This would be going too far. There are a thousand laws relating to bringing actions—limitations of actions & which affect contracts— [t]he Judicial power of the U[nited] S[tates] will be a protection in cases within their jurisdiction; and within the State itself a majority must rule, whatever may be the mischief done among themselves. 

As these examples suggest, the Framers viewed the notion of “justice” in nomocratic or Rule of Law terms. They sought to establish a new constitutional system that was both based upon the prevailing British and American legal tradition in which they had been trained and that they currently functioned within.

This argument for the legally-contextualized character of “Justice” in the Constitution must also consider “Privileges and Immunities” from Article IV: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” The term “Privileges and Immunities” raises initial concerns for the above argument, because it is clearly (as even Rauol Berger concedes) connected to natural-law/natural-rights notions. In Government By Judiciary, for example, Berger observes that “[i]nstead of the ‘absolute rights’ of ‘life, liberty, and property [,which were viewed by Locke as terms of natural law but, as Blackstone notes, had long been recognized and incorporated within English common and statutory law,]  the Framers restored to the terminology of Article IV, S[ection] 2: ‘The Citizens of each State shall be entitled to all Priviledges and Immunities of Citizens in the several States.’” (italics added)[2]

Even this possible objection, however, may be found wanting when one considers how English notions of natural-law/natural-rights had been legally-contextualized within the Anglo-American legal tradition by the time that Article IV was drafted. Blackstone shows this in his essay, “The Absolute Rights of Individuals”:

The absolute rights of every Englishman, (which, taken in a political and extensive sense, are usually called their liberties,) as they are founded on nature and reason . . . have been from time to time asserted in parliament, as often as they were thought to be in danger. 

Furthermore, as Berger notes, Blackstone demonstrated the limited nature of these rights within British law with respect to both their limited three categories and how they can be deprived through “due course of law” and “laws of the land” (i.e., references to mere procedural processes for their deprivations via law, not a substantive term inviting the enlargement of protected rights). Blackstone lists three categories of such rights that basically correspond, albeit are slightly more inclusive than, Berger’s list of “life, liberty, and property” denoted as “Privileges and Immunities” in Article IV:

I. The right of personal security consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation [(these last two being limited to the “preservation of a man’s health from such practices as may prejudice or annoy it; and . . . The security of his reputation or good name from the arts of detraction and slander”)] . . .

II. Next to personal security, the law of England regards, asserts, and preserves the personal liberty of individuals. This personal liberty consists in the power of locomotion, of changing situation, or moving one’s person to whatsoever place one’s own inclination may direct, without imprisonment or restraint, unless by due course of law. . . .

III. The third absolute right, inherent in every Englishman, is that of property: which consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land. 

Although deprivations of personal security, liberty as motion, and property were considered violations of natural-law/natural-rights or even natural justice, Blackstone shows how such philosophical notions had been legally-contextualized. This, in turn, partially puts into perspective the employment of normative nature language in reference to “life, liberty, and property” during the Revolutionary period.  Reference to these in the Declaration and Resolves of the First Contintental Congress, which used the phrase, “immuntable laws of nature,” was immediately qualified by also describing “life, liberty, and property” as “principles of the British Constitution”[3]

Barry Shain, moreover, shows that the inclusion of the words “immutable laws of nature” in the Declaration and Resolves of the First Continental Congress was driven by a small group, that included John Adams, against a wide group of delegates who represented similar hostilities within the colonies toward such natural-law/ natural-rights language:

Wholly ignored, for example, are the tensions highlighted by John Adams who reported on September 22, 1774 that the grand committee considering America’s rights was unable to decide whether any reference to nature should be placed in their appeal and, thus, this body was forced to ask that Congress as a whole make this determination. And, as he writes, “two days afterwards it was determined, against the views of Mr. Adams, that nothing should be said, at that time, of natural rights. This is said to have been caused by the influence of the conservative Virginia members, still anxious to avoid stumbling-blocks in the way of a possible return of good feeling between sovereign and people.” But the conservative Virginians were not alone. The sober New Yorkers, James Duane in particular, greatly preferred “grounding our Rights on the Laws and Constitution of the Country from whence We sprung and Charters, without recurring to the Law of Nature—because this will be a feeble support. . . . Privileges of Englishmen were inherent, their Birthright and Inheritance, and cannot be deprived of them.” Arguing in much the same fashion, Joseph Galloway from another mid-Atlantic colony, Pennsylvania, responded “I have looked for our Rights in the Laws of Nature—but could not find them in a State of Nature, but always in a State of political Society. I have looked for them in the Constitution of the English Government, and there found them. We may draw them from this Source securely.” While giving voice to the contentiousness of this issue, Adams split the difference between the radical and conservative positions that had deadlocked the committee for much of a month in holding that he “was very strenuous for retaining and insisting on it [natural law], as a Resource to which We might be driven by Parliament much sooner than We were aware.” His position, after being initially rejected and Congress’s studied change of the proposed language from that of natural rights to that of natural law, in the end came to embody the moderate position adopted by a majority of the delegates.

Shain continues:

In ways that Jaffa never considered, the decision to mention even once the word natural in a text with a dozen claims to English rights was contentious and ultimately prevailed only because of the actions of British regulars in Massachusetts and the alienating proclamations of the British king. The use of such language and that which it represented, independence from Britain, was neither the intention of those elected to Congress, to say nothing of the majority of Americans who were either indifferent or hostile to the actions of Congress, nor something welcomed by those mid-Atlantic delegates who well understood that a language of natural rights, even if useful in particular circumstances, in the future might well prove difficult to control.

If Shain is correct, his analysis raises significant questions about the normative use of nature language in the Declaration of Independence (less than two years after the Declaration of Resolves): “to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. . . . We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Given the strength (in late 1774) of conservative apprehension toward such normative nature language within the Continental Congress and the colonies and given their preference for legally-contextualized constitutional rights language, are we to presume that the colonies and their delegates were transformed into true-believing Lockeans by July 4, 1776, less than two years later? Moreover, is it possible that even some of the leading advocates of such normative nature language, such as Adams, were primarily motivated by their attempts to find sufficient justifications in their struggle with “King-in-Parliament” (i.e., a British constitutional arrangement that did not allow the colonists to legally avoid the Parliament’s taxation and regulations in the manner that was widely desired)? Putting such questions aside, Shain’s above analysis does show that conceptions about rights to “life, liberty, and property” had been so legally contextualized as constitutional rights of Englishmen that many Americans, even during their struggle with Britain, preferred such legal connotations and were inclined to oppose natural-law/natural-rights connotations. All of this is included to prove a narrow point: by the time Article IV was penned, the concepts of “life, liberty, and property” implied in the “Privileges and Immunities” clause had become very legal, nomocratic terms. Hence, it would be a mistake to use this clause from Article IV as evidence that the Framers understood “Justice” in the Preamble as meaning abstract philosophical “natural justice” (i.e., natural rights or natural law).

The “Justice,” then, specified by the Constitution’s Preamble appears to have been originally understood as legally-contextualized in connotation and well known within the Anglo-American tradition of law. It is a nomocratic, Rule-of-Law concept, not a telocratic one implying Jaffa’s desired “natural justice” (i.e., natural rights or natural law).

II. “Blessings of Liberty” in the Preamble Probably Does Not Constitutively Include “Natural Justice” (i.e., Natural Law or Natural Rights):

Jaffa immediately goes out on a limb when extrapolating about the implications of the Preamble’s clause, “secure the Blessings of Liberty to ourselves and our Posterity.” He suggests that this clause, then, constitutively implies possession of virtues such as “justice, moderation, temperance, frugality, and virtue, and by a frequent recurrence to fundamental principles” which he finds stated in the Virginia Bill of Rights from 1776. It is his view  that “Blessings of Liberty” in the Constitution constitutively implies moral goodness and rightness and, hence, brings in the dictates of natural law as a correction to raw negative liberty. This is suggested in the following passage Jaffa’s “The American Founding as the Best Regime”:

The idea of liberty—or the liberty which is a blessing—being an emancipation of the passions from moral restraint had no place in the constitutional doctrine of the novus ordo seclorum. The liberty which is a blessing must be good for the one who possesses it. It must therefore be a good in the sight of God, who is the source of blessings. Such a good must point to felicity, whether in this world or the next, as its consummation. By calling the advantages of liberty “blessings,” the Constitution, which in certain respects makes perhaps the most radical break in all human history with all that has gone before it, nonetheless, in its understanding of the connection between happiness and virtue, aligns itself decisively with traditional moral philosophy and moral theology. 

When the thick-level moral norms implied by the modern peccadillos (i.e., “the exhibitionism of lesbians, sodomites, abortionists, drug addicts, and pornographers”) that Jaffa links to the “Blessings of Liberty” as antitheses[4], are factored into the considerations in the above passage, his vision of the moral ideals implied as purposes in the original Constitution seems quite rigorous and extensive.

As tempting as social conservatives might find this bait, it is easily resisted by recognizing both: (1) that Jaffa’s interpretation of the connection between the Virginia Bill of Rights language and the “Blessings of Liberty” language in the Preamble is incorrect; and (2) that Jaffa’s view of rigorous and extensive moral ideals being implied within the Constitution appears anachronistic. With respect to the first point, the passage Jaffa cites from the Virginia Bill of Rights does NOT equate “Blessings of Liberty” to “justice, moderation, temperance, frugality, and virtue, and by a frequent recurrence to fundamental principles”; rather, the passage suggests that the “Blessings of Liberty” can only be “preserved” by the people possessing these virtues: “. . .no free government, or the blessings of liberty, can be preserved to any people, but by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by a frequent recurrence to fundamental principles.” Thus, although these are connected as necessary conditions for preserving the “Blessings of Liberty,” they are still conceptually distinct from the “Blessings of Liberty.” Therefore, Jaffa goes too far in portraying the above list of virtues as constitutive elements within the Constitution’s reference to “Blessings of Liberty,” even if the Virginia Bill of Rights is correct in asserting that they are necessary conditions for the “Blessings of Liberty.” A thousand necessary conditions for a good does not that good make.

In extending the analysis of this first point, it is helpful to recognize that the Constitution, as a promulgation of positive law, can declare the “Blessings of Liberty” to be one of its purposes, but this does not mean that it also includes all the conditions conducive to or necessary for realizing such a purpose. In fact, it is plausible that the Framers, as competent statesmen in a Protestant 18th century culture, understood that other social, non-legal institutions would also be conditions for achieving the purposes set forth by their proposed Constitution. They would, for example, (especially given their 18th century vantage point, which was far nearer than our own to the Protestant Christian traditions of the West) believe that religious socialization and influence is a much more proper inculcator of the virtues that Jaffa wants linked to the Constitution’s positive law.[5] Even though the First Amendment was not part of the 1789 Constitution, its advocates (e.g., Hamilton in Federalist 84) were clear that Federal intrusions into religion and any attempts to establish a national church, as well as other issues ultimately made explicit in the Bill of Rights, were not allowed under the 1789 Constitution’s delegated-powers structure. If the sphere of religion was NOT viewed by the Framers to be within the legal jurisdiction of the Constitution’s Federal Government and if the Framers clearly understood religion to be the proper institution for inculcating virtues, then it follows that the Framers probably would not identify Jaffa’s identified virtues to be part of an explicit purpose of the Constitution’s positive law.

This conclusion is even further corroborated by the lack of evidence from the Philadelphia Convention that advancing virtue was implied by the “Blessings of Liberty” in the Preamble (or that it was otherwise a purpose in the Constitution). Again, the delegated-powers structure of the Constitution helps explain why this was the case. As mentioned previously, advocates of the Constitution (like Hamilton in Federalist 84) understood (at least in their public statements) the limited nature of the Federal Government’s powers. This entailed recognition that the States would retain the police powers involved in regulating morals. Since, then, advancing virtue was not seen as a Federal-level concern, the Framers naturally did not focus on this in their deliberations about the character and content of the Federal Government that they were creating in the Convention. Thus, even if the Framers did see some role for government in advancing virtue (e.g., even if they did not believe that religion alone was sufficient for inculcating the virtues), they would have viewed this as a function that properly belongs to the States, not the Federal Government.

Second, with respect to anachronism, key questions arise about Jaffa’s view that the Constitution implies his rigorous understanding of moral ideals. Assuming that the Framers would identify the list of virtues in the Virginia Bill of Rights of 1776 as conditions for the “Blessings of Liberty,” can we also presume that they understood such conceptions of virtue in the rigorous and extensive way that Jaffa suggests? Furthermore, even if (for the sake of argument) the Framers did intend to imply that the Constitution’s “Blessings of Liberty” included and gave constitutional status to this 18th century list of virtues from the Virginia Bill of Rights (i.e., “justice, moderation, temperance, frugality, and virtue, and by a frequent recurrence to fundamental principles”), can we presume that the Framers would also extend this constitutional status to the moral vision that Jaffa has in mind (e.g., norms against modern vices such as “the exhibitionism of lesbians, sodomites, abortionists, drug addicts, and pornographers”)? This smells of an anachronistic application of an 18th century cultural understanding to problems and concerns that were foreign to the 18th century context.

III. Critique of Jaffa’s A-Member-of-the-Founding-Generation-Said-It-So-It-Should-Be-Interpreted-as-Part-of-the-Constitution Defense:

The lack of serious textual and historical evidence for the presence of “natural justice” or natural law in the Constitution (e.g., in the “Blessings of Liberty” purpose), in turn, may be what prompts Jaffa to look to statements from various Founding generation members who articulated belief in such a normative ideal. This strategy entails suggesting that the philosophical beliefs of the Founding generation must be interpreted into their Constitution. He cites and interprets, for example, Jefferson’s inaugural address to this effect:

[Jefferson:] “All too will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression.”. . .[Jaffa:] It is clear from the foregoing that “rightfulness” and “reasonableness,” being restraints upon the will of the majority, are not themselves mere expressions of will. Here Jefferson is not only saying what the Constitution is, but why it is what it is. In truth, the “what” of the Constitution is inseparable from its “why,” and the attempt to understand the former without the latter is—[in] all but the simplest cases—vain.  

Here Jaffa resorts to suggesting that the “why” (the reasons or beliefs of the Framers) must be viewed as implied in the “what” (the actual black-letter text) of the Constitution. For, as Jaffa says in continuation to the above passage, “[t]he 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. . .while denying the ideas of natural justice which formed the ‘why’ of the Constitution, is to go to the uttermost limit of self-contradiction.”[6]

Never mind the fact that Jefferson was not present at either the Philadelphia Convention or for the ratifying debates. There are obvious additional replies to Jaffa’s above reasoning. Even if, for the sake of argument, all of the Framers (not to mention the peoples of each State who ratified the Constitution) believed in “natural justice” as a personal, social, and/or political ideal, this does not mean they intended to encode it within the United States Constitution. There are many prudential reasons for not establishing “natural justice” as a purpose of the Constitution, which largely establishes the organization and powers of the Federal Government. These include for example, the two already discussed above: (1) the often Protestant cultural view that the inculcation of virtue is appropriately left to the religious sphere; and (2) that whatever role government may have in advancing virtue, given the Constitution’s delegated-powers structure, such a role jurisdictionally belongs to the States.

Here it also seems appropriate to mention a third prudential reason against encoding “natural justice” in the Constitution: even if it was proper for government to advance virtue (to some degree), the history of Western Philosophy has been rife with disagreements about how such normative ideals should be appropriately defined and limited. Robert Bork, who is one of the originalists that Jaffa criticizes, elucidates this point by using important insights from Alasdair MacIntyre’s writings:

The claim that moral philosophy cannot create primary rules, or major premises, that we will all come to accept may be supported in two ways. The first reason to doubt that moral philosophy can ever arrive at a universally accepted system is simply that it never has. Or, at least, philosophers have never agreed on one. The revisionist theorists of the law schools are merely semiskilled moral philosophers, and it seems all the more unlikely that they will succeed where for centuries philosophers of genius have failed.[7]

Bork continues:

The state of affairs in moral theory is summed up, accurately so far as I can tell, by Alasdair MacIntyre. After canvasing the failure of a succession of thinkers to justify particular systems of morality, MacIntyre says that if all that were involved was the failure of a succession of particular arguments, “it might appear that the trouble was merely that Kierkegaard, Kant, Diderot, Hume, Smith and their other contemporaries were not adroit enough in constructing arguments, so that an appropriate strategy would be to wait until some more powerful mind applied itself to the problems. And just this has been the strategy of the academic philosophical world, even though many professional philosophers might be a little embarrassed to admit it.”[8]

Bork is entirely correct to ally his skepticism about judges serving as capable philosopher-kings with MacIntyre’s ethical theory, for MacIntyre has successfully demonstrated that one’s views about ethics and morals are inherently tradition-dependent. In other words, one’s chosen (or inherited) philosophical tradition will often dictate the meta-assumptions that govern many premises and ultimate conclusions of one’s ethical/moral views. MacIntryre successfully shows that there is not an a priori philosophical means (via the use of human reason) of evaluating the various traditions, for human reason itself is tradition-dependent. He argues for the impossibility of non-tradition-dependent rationality, which he claims has been a false touchstone of many within Western thought since the Enlightment. Based on this, MacIntrye is skeptical about the West developing significant philosophical agreement about ethics and morals, aside from the remote possibility that a single tradition or a few highly compatible traditions become fully dominate—e.g., the people within a currently pluralistic nation becoming socialized into such a single (or a few compatible) moral tradition(s).[9]

With these considerations in mind about the difficulty of philosophically resolving moral pluralism, it also seems appropriate to be skeptical about imposing a telocratic regime on a Western federation of States with different religious-political-cultural perspectives. MacIntyre’s analysis of Western philosophy seems further applicable to the different religious-political-cultural perspectives that held sway in the various State cultures. David Hackett Fischer chronicles this well in Albion’s Seed. Think, for example, about the significant difference in worldview between the Anglican Cavalier culture in Virginia compared to the Enthusiast Puritan culture in Massachusetts at the time of the Revolution and Founding. These two British people groups possessed differing religious-political-cultural perspectives. The differences were significant enough to prompt their ancestors to fight against one another in the English Civil War. Although they were able to find common cause during the Revolution and Founding periods that was sufficient enough for them to fight together against the British and ultimately ratify the Articles and, then, the Constitution, they had different cultural conceptions of “liberty” and other facets of social-political culture, not to mention the wide differences in their Protestant religious views. The cleavages between these people groups would come to a head again in the American antebellum period, and they would, again, fight another war with one another, this time in America.[10] Given the obvious differences between the Cavalier cultures of the (especially seaboard side) Southern Atlantic States, and the Puritan cultures of New England (especially Massachusetts), and even the Quaker culture in the Middle Atlantic States (e.g., Pennsylvania and Delaware) that surfaced during the Philadelphia Convention regarding, for example, the question of slavery, it would seem plausible that the Framers and the ratifying people of the States could have prudently refrained from positing natural justice (i.e., natural law or natural rights) as a telocratic purpose to be realized by the 1789 Constitution.  For, doing so might result in disunion, civil war, or even have required imposing a centralized tyranny to determine a governing interpretation of controversial ideals that had eluded the great minds of the West and would further bedevil the American States with respect to questions about slavery and other matters.

Even more, given the high probability that there would be disagreement about defining and limiting the fine points of moral philosophy, it is conceivable that a wise elite would have had to be empowered to identify a single functioning conception of what natural justice and natural law meant for the Republic. Even if, for the sake of argument, some of the nationalist-minded Framers may have secretly viewed elite-rule to be enticing, rule by philosopher kings certainly would not have been accepted by the people of the States who ratified the Constitution. Anti-Federalists feared that the Supreme Court, for example, would become an elite-dominated institution that would suppress republican government. Federalists, in turn, had to convince moderate Anti-Federalists that many of the Anti-Federalists’s objections were not valid in order to win such moderates’ votes, which were necessary for ratification in several pivotal states. In Federalist 78, for example, Hamilton argues for a judicial review that is limited by “judgment” and not authorized to engage in “WILL” (i.e., the federal judiciary is not authorized to assume legislative functions). This was one such reassurance. Federalists in the Massachusetts and North Carolina conventions also reassured Anti-Federalists that the Court would be limited in its jurisdiction.[11] Most importantly, Federalists in the various State conventions repeatedly assured the Anti-Federalists that the Federal Government in general, would be limited to its delegated powers and that the reserved powers of the States would be respected and preserved.[12] As M.E. Bradford describes, “That the powers of the new government are few and explicit is in the ratifying conventions the central theme of the Federalist defense of the United States Constitution and a primary explanation of why the sequence of ratifications went as it did.”[13] These considerations of how “an essentially conservative people” viewed the “new government” provide grounds for “‘minimalist’ interpretations of the authority” of the Federal Government “created” by the original Constitution.[14] This highlights the strong possibility that the Constitution would have never been ratified if it had been understood to entail the thick-level moral ideals that Jaffa desires, for these would likely require identification and enforcement by an authoritarian elite with a high concentration of power.  

IV. Conclusion: The Nomocratic 1789 Constitution:

It is important to conclude this essay with a final argument for how the 1789 Constitution is essentially nomocratic in character and certainly not natural-law/natural-right telocratic in the manner that Jaffa desires. A very important piece of contextual evidence from the Philadelphia Convention displays the nomocratic intentions of the Framers. This can be found in written records from the Philadelphia Convention’s Committee of Detail, which is included in Volume II of Max Farrand’s Records of the Federal Convention of 1787.

When drafting the Preamble, several issues were noted by the Committee of Detail. The second passage cited below is most relevant for our purposes; however, in an effort to present these passages in their proper order and context, I will cite and analyze the first before the second. The first passage is as follows:

In the draught of a fundamental constitution, two things deserve attention:

1. To insert essential principles only, lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accomodated to times and events. and

2. To use simple and precise language, and general propositions, according to the example of the (several) constitutions of the several states. (For the construction of a constitution of necessarrily differs from that of law). . . 

Take note of the phrases “essential principles only” (in the first point) and “simple and precise language” (in the second). First, these logically qualify interpretations of other broader terms like “general propositions.” Second, this limiting suggests that purposes of the Preamble were not intended to be catch-all terms that willful advocates could, in turn, substantively interpret so as to include their list of favorite moral ideals. Yes, Framers thought that “operations of government” need to be “accommodated to times and events,” but only in a manner that is consistent with the Constitution’s structure of delegated powers. Yes, “the construction of a constitution necessarily differs from that of law,” but this implies the Constitution’s role as positive legal arrangement for establishing and limiting the institutions of governmental power. Moreover, this differs from the elucidation of precise details of compliance and penalties for non-compliance of actual legislation. Even more, the sequel to this passage makes it very evident that the Framers did not deem abstract, philosophical notions to be proper to the Constitution’s Preamble:

1. A preamble seems proper not for the purpose of designating the ends of government and human polities — This (business, if not fitter for the schools, is at least sufficiently exausted) display of theory, howsoever proper in the first formation of state governments, (seems) is unfit here; since we are not working on the natural rights of men not yet gathered into society, but upon those rights, modified by society, and (supporting) interwoven with what we call (states) the rights of states — Nor yet is it proper for the purpose of mutually pledging the faith of the parties for the observance of the articles — This may be done more solemnly at the close of the draught, as in the confederation — But the object of our preamble ought to be briefly to (represent) declare, that the present foederal government is insufficient to the general happiness, that the conviction of this fact gave birth to this convention; and that the only effectual (means) 〈mode〉which they (could)〈can〉devise, for curing this insufficiency, is the establishment of a supreme legislative executive and judiciary — (In this manner we may discharge the first resolution. We may then proceed to establish)6a Let it be next declared, that the following are the constitution and fundamentals of government for the United States. . . 

Here the Committee makes clear what the Preamble should and should not include. Most relevant to our purposes, note how the Committee indicates that the Preamble will not include “the ends of government and human polities,” which, in turn, are clearly linked to a “display of theory” that includes the “natural rights of men.” Such “natural rights” are more appropriately considered when “men [are] not yet gathered into society.” Instead, the Preamble and the Constitution are related to “those rights, modified by society, and (supporting) interwoven with what we call (states) the rights of states. . . .” Moreover, the Preamble “ought to be briefly to (represent) declare. . .” both that “the present foederal government [(i.e., the one established by the Articles of Confederation)] is insufficient for the general happiness. . .and that the only effectual (means) (mode) which they [(i.e., the Philadelphia Convention)] (could) (can) devise, for curing this insufficiency, is the establishment of supreme legislative executive and judiciary. . . .” In other words, the Preamble, and the Constitution in general, is not primarily about establishing clear ends of government; rather, it is largely focused on erecting the means of government—i.e., the mechanisms of government that the Constitution proceeds to elucidate within its body.

This contextual evidence form the Committee of Detail, then, makes clear that the Preamble, and the purposes of the Constitution in general, are largely nomocratic in character. They are not focused on establishing elaborate and broad ends of governments, they are certainly not grandiose philosophical moral ideals. Rather, the Constitution and its Preamble seek to elucidate the means for which the new system will operate for the “general happiness”—i.e., the public good, which (according to the terms and limitations in the above two passages) is not a grand philosophical concept but a minimal, thin-level notion that will itself vary and be worked by the future generations who function under this new constitutional system. All of this goes well beyond merely showing that Jaffa’s desired “natural justice” was not given constitutional status in the 1789 Constitution; it also shows that the Constitution did not give constitutional status to Jaffa’s other desired telocratic end, equality. Although the Framers, as well educated men of the 18th century, had to have been somewhat concerned with philosophical issues related to ethics and morality, the historical record suggests that they did not intend to make such concerns part of the fundamental positive law. This task would be left to the jurisdiction and discretion of the States.

The Constitution is largely a nomocratic establishment of the Federal Government that both (1) provides this federal authority with limited delegated powers in relation to the State governments, which retain the overwhelming bulk of governmental powers, and (2) separates the division of federal powers among legislative, executive, and judiciary departments. The Constitution explicates very limited purposes for this system in its Preamble, and these were also intended to be nomocratic, not telocratic, in character. Contrary to this historical document, Harry Jaffa wishes for a constitution with philosophically substantive moral ideals, and he attempts to creatively read these ideals into the Constitution. Such a historically questionable project can (based on the conclusions reached in the argument above) be dismissed as a telocratic fantasy.

Endnotes (Including Works Cited Without Use of Embedded Links):


[1] I want to thank to Nathan Coleman for his excellent help and insight during the drafting of this essay.

[2] Raoul Berger, Government By Judiciary: The Transformation of the Fourteenth Amendment (Indianapolis, IN: Liberty Fund, Inc., 1997), 30-31

[3] Raoul Berger discusses early American uses of “life, liberty, and property” in Government By Judiciary, 30–31.

[4] Recall the previously quoted passage (in Part 1) from Jaffa’s essay: “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. ”

[5] There are notable quotations from members of the Founding generation about the importance of religion for the sake of virtue. In his 1796 Farwell Address, George Washington said the following: “Let it simply be asked: Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths which are the instruments of investigation in courts of justice? And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.” (http://avalon.law.yale.edu/18th_century/washing.asp)  Similarly, John Adams  (in his Letter to Zabdiel Adams, June 21, 1776) speaks to the importance of religion for virtue and even alludes to these being distinct from the function of statesmen: “Statesmen, my dear Sir, may plan and speculate for liberty, but it is religion and morality alone, which can establish the principles upon which freedom can securely stand. The only foundation of a free constitution is pure virtue.” (http://www.founding.com/founders_library/pageID.2144/default.asp)

[6] The full passage previously quoted in Part 1 is as follows: “In truth, the ‘what’ of the Constitution is inseparable from its ‘why,’ and the attempt to understand the former without the latter is—[in] 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. ”

[7] Robert Bork, The Tempting of America (New York, NY: The Free Press, 1990), 254.

[8] Ibid.

[9] Alasdair MacIntyre, Whose Justice? Which Rationality? (Notre Dame, Indiana: University of Notre Dame Press, 1988), 7-10 and 359-360.

[10] David Hackett Fischer, Albion’s Seed: Four British Folkways In America (New York, NY: Oxford University Press, 1989), 13-604 and 783-898.

[11] M.E. Bradford, Original Intentions: On the Making and Ratification of the United States Constitution (Athens, Georgia: University of Georgia Press, 1993), 51–52.

[12] Ibid., 81.

[13] Ibid., 40–86.

[14] Ibid., 41.

4 Responses to “West Coast Straussians, Harry Jaffa, Bad Originalism, and Telocratic Fantasies, Part 2”

  1. gabe

    All this just to demonstrate that as you show that Blackstone has shown the whole issue may be nothing more than the legal textualizing of natural rights and law. It seems to me that not only was this appropriate but that this was also necessary to make evident to all that the ultimate end of this positivist document was to assert its intent to make real certain natural rights principles and, yes, “ends” were enshrined in the American regime.
    Were this not the case, why not simply accept the fact that the States could legislate in a manner contrary to natural rights. What is the “limit” on their actions and to what ultimate principle or end do we look to define those limits.
    Apparently, the Declaration is the “word that shall not be mentioned” – yet it is as apparent in this affair as is the swollen belly of the poor unfortunate lass for whom the preceeding phrase was used in olden times.

    Reply
    • Marvin Edwards

      Until there is an objective criteria for determining the “inherentness”, “naturalness”, or “Goliness” of a right, the terms are merely rhetorical.

      Rights are properly evaluated by their moral effects, by the benefits and harms they produce for everyone. That is the only valid criteria.

      Reply
  2. Amicus Jaffae

    It seems to me that this post gets sidetracked a lot more than the previous post. There’s a lot here to think about here, but between the status of the Preamble, procedural justice, Alasdair MacIntyre, and the Committee on Detail, it’s hard to know where to start.

    Reply

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