Liberty, Prudence, Imperfection, and Law

Harry Jaffa and the Demise of the Old Republic

Maximilien de Robespierre

The writing of history, as we have learned from authors as diverse as Thucydides, Voltaire, Nietzsche, Butterfield, Collingwood, and Oakeshott can and has been done in strikingly different ways while serving radically different purposes. We shouldn’t, therefore, be surprised to find that much the same might be said of American history. This is all the more likely because of the importance of history to America, a polity lacking some of the defining characteristics of national identity. The creation and dissemination of a historical narrative, in fact, is one of the ways that we have made up for these missing features: a common ancestry, a singular ethnicity, a long and continuous history, etc. These deficiencies, along with the opportunity for abuse in our judicial system, render history essential to American self-understanding. And among those features of the historical landscape of particular relevance to national identity are the Declaration of Independence and the principles undergirding the national Constitution.

While American foundational history is important, if for no other reason than the political advantages that flow from its use particularly relevant to American conservatives. This is true because: 1) such history is especially significant to the logic of conservative thought; 2) the relationship between conservatism and the Declaration of Independence is unavoidably awkward because of its defense of a violent rupture between two peoples using a universalistic language of natural rights;1 and 3) the federal system of government is believed by many Americans to be liberal, thus, rendering conservatism alien.2

What is surprising, though, is that one of the leading critics of the dominant historical understanding of America’s birth, largely shared by conservatives and professional historians alike, is a man who in some ways is a “conservative.”3 Indeed, for Harry Jaffa, Henry Salvatori Research Professor of Political Philosophy Emeritus at Claremont McKenna College and Claremont Graduate School, the complex portrait of America painted by both historians and conservatives is so dangerous that, if not corrected, it will place the fate of the West at risk. Yet despite his open hostility to this histori-cal understanding and, indeed, to Anglo-American conservatism, Jaffa enjoys a receptive audience among some self-identified conservatives who approve of his life-long belief that America at its core is liberal,4 if not radical. What is equally remarkable is that so many “conservatives” are drawn toward an argument that lacks grounding in the best of available scholarship. Because of this and the influence that Jaffa and those he leads have exercised on recent American foreign policy, his understanding of conservatism and American constitutionalism demands consideration.

 

Jaffa’s Prophetic History of America

How, then, can we make sense of the conservative attraction towards a man who has spent much of his life denigrating the thinking of every Anglo-American conservative of the past two centuries while simultaneously teaching that America is one of the most radical of polities? The answer is found in Jaffa’s decrying moral decline, his absolute stance against nihilism, and his messianic apotheosis of America—all beliefs which hold a certain seductive appeal to conservatives.5 Yet, whatever his attractions and family-resemblances are to conservatives, Jaffa, in his efforts to refound America and conservatism, is not, at least not in the Anglo-American tradition of Burke and Kirk, a conservative and his increasingly radical and self-congratulatory view of American history should not be endorsed by conservatives.

Jaffa’s ambitious project rests, modestly enough, on his ability to redefine conservatism and refound America in light of his “grand convergence theory of classical Greek, Christian, and modern natural rights.”6 As Jaffa notes, “the crisis of American constitutionalism—the cri-sis of the West—lies precisely in the denial that there are any such principles or truths [applicable to all men and all times]. It is no less a crisis in the heart of American conservatism than of American liber-alism.”7 Thus for Jaffa, the secular salvation of the world depends on American political beliefs and institutions being understood to have always rested on a natural rights foundation “so that West-ern nations could have a rational basis for the objective truth of their convictions instead of viewing them as arbitrary opin-ions or historical contingencies.”8 Indeed, for Jaffa and those among his colleagues and former students at the Claremont Institute who find his teaching compelling,9 refounding America and ridding it of conservatives whose thinking is shaped by or in agreement with the historical thinking of Burke and Kirk, even Oakeshott, is a matter of universal importance. This process of worldly salvation, we might add, is by their lights to be led by Jaffa and his follower political philosophers/statesmen.10

Jaffa’s project, the saving of the West from debilitating nihilism (of course, it is over the ranking of nihilism versus other modern dangers that Jaffa and most Anglo-American conservatives most impor-tantly differ), depends on his refounding both conservatism and America so that they are seen to rest on natural rights/ natural right foundations. Thus, Jaffa must demonstrate that:

The primacy of rights and of right, understood in the light of the laws of nature, was the argument of the American Revolution from the beginning. And this argument must be understood to constitute the “original intent” governing American constitutionalism, as it took shape in the Convention and in the ratification process—and in the adoption of the Bill of Rights that followed. . . . [while keeping in mind that] the statement of principles in the Declaration of Indepen-dence is a compressed summary of “the laws of nature and of nature’s God.”

Continuing, he elaborates that the Declaration of Independence embodies “an articulation—and, I would contend, a perfection—of a natural law tradition that goes back at least to Aristotle, and that embodies the ethical core of the Judeo-Christian tradition as well.”11 And, one might add, if such millennial ends de-mand a certain bending of the merely historical truth, this need not be an obstacle for the right-thinking political philosopher/statesman. As Edward Erler explains in the introduction to one of Jaffa’s recent volumes of assorted materials, “the task of such a [natural right] teacher in the first instance would then be to uncover and build upon the natural right elements of his regime—indeed perhaps even magnify and adorn those elements— for politically salutary results.”12 If one, indeed, makes truth-telling unnecessary in the service of “higher” goals, the task of refounding America and conservatism becomes less demanding.13

The more important of the twin-headed project, the refounding of America on a proper philosophical platform, rests on two, if not three, progressive developments: the embodiment in the Declaration of Independence, and extended to the Constitution, of a hybrid political philosophy that joins together in an awkward unity Aristotle, Aquinas, Locke, and Jefferson;14 the broad dissemination of a second set of more advanced teachings as developed in Lincoln’s creative Civil-War era reinterpretation of the Declaration of Independence; and possibly a third one, taught by Jaffa and his teacher, Leo Strauss, and embodied in America’s potential, if not reality. In this third development, philosophy and some kind of revelation are joined in a higher more perfect synthesis in which the spiritual and philosophical needs of individuals and communities come as close to being jointly fulfilled as at any time in human history.15

The first of these grand moral and political visions, embodying two millennia of diverse political and ethical thought, Jaffa believes is wholly captured by the Declaration’s claim that “all men are cre-ated equal” and that they “are endowed by their Creator with certain unalienable Rights; that among these are Life, Liberty, and the Pursuit of Happiness.”16 He glosses this passage by rightly highlighting that the “rights granted by civil society are rights which can be taken away by civil society. But the Declaration here is most explicit. The rights of which it speaks are not civil or political rights, rights resulting from human or positive law. They are rights with which they had been ‘endowed by their Creator.’”17 But, accepting this description as largely accurate,18 what are its positive political implications?

For Jaffa in 1959, possibly unexpect-edly given his current reputation, the consequences of embracing his composite Aristotle-Locke-Jefferson teaching on rights and equality were quite modest. Although African slaves did indeed enjoy moral standing as rights-bearing human beings, most remarkably, this teaching did nothing to render slavery illegitimate.19 Jaffa notes that the actual histori-cal Declaration’s awarding of natural equality and rights to African slaves “did not impose corresponding duties upon their white masters” and drives this point home in finding that:

We may say that no man, from the strictly Lockean standpoint, is under an obligation to respect any other man’s unalienable rights … And so far are they from being under any obligation to respect other men’s rights that they may kill or enslave other men whenever in their judgment this adds to their own security…. the masters would have had no obligation to free them [slaves] until and unless the Negroes had the physical power to make good their freedom…. those who do not have force at their disposal have no effective Lockean argument for denying the assertion of despotic power over them.20

The American Revolution, even if it did rest on a “natural-rights” foundation as Jaffa asks us to believe, was a boon only to those with the power to force others to respect their rights; for everyone else, the promise incumbent in their natural possession of such rights would have to wait for its fulfillment, according to the early Jaffa, to the next great moment in the unfolding of America’s secular millennial history.21

This next moment unfolds with Lincoln’s reinterpretation of the Declaration, a creative act that Jaffa knows, or knew, to be historically inaccurate.22 Lincoln radicalized the Declaration—and effectively post-Civil War America—by changing the Declaration’s natural pre-political claims into ones with positive legal and political standing. Jaffa is right to recognize that Lincoln’s all men are created equal “is conceived as a political, not a pre-political, condition, a condition in which—to the extent that it is realized—equality of right is secured to every man not by natural law (which governs Locke’s state of nature, in which all men are equal) but by positive human law.”23 This is a momentous transformation and, of course, was one of the changes in the meaning of rights sought at the end of the eighteenth century by British and French radicals, and some Americans.

However, by the middle of the nineteenth century in America, the previously radical stance of the eighteenth century had become a more common, though still contested, position. In his early writings, Jaffa understood the American Revolution (even if read through historically simplifying lenses, infused with an imaginary consistency, and elevated to an almost divine status) to be relatively modest in its aspirations. It was only with Lincoln’s innovative departure from the meaning of the actual historical text that political rights became radicalized,24 so that in effect, America could participate in Lincoln’s “new birth of freedom” and the newly egalitarian and individualistic mid-nineteenth-century America.

Beyond these two progressive developments is a third whereby America of-fers the promise for a still higher synthesis of philosophical reason and divine wisdom than that embodied in Lincoln’s fusion (which, according to Jaffa, was a more perfect model than that defended by Jefferson). In a secular millennialist fashion, Jaffa’s latest writings portray America as a synthesis of Socratic rationalism and revelation that produces a new kind of higher political order. This vision, according to Robert Kraynak, finds that “no regime [other than America] has ever been founded on this combination of theoretical openness to the highest ultimate questions and practical commitment to moral order through a morally virtuous conception of freedom. In Jaffa’s words: ‘the unprecedented character of the American founding is that it provided for the coexistence of the claims of rea-son and revelation in all their forms….  It is the first regime in Western civilization to do this, and for this reason, it is, in its principles or speech…the best regime.’”25 Indeed, this later stage of America’s development or, at least, its fullest develop-ment of its guiding principles is intoxicating stuff, but seemingly dependent on Jaffa and his followers properly refounding America and, for complex reasons, Anglo-American conservatism as well.

With millennial importance ascribed by Jaffa to his project, it is not surprising that, in the years following the high-water mark of his scholarly life in the late 1950s, he became impatient with the limited political success and reach of his historically responsible, even if contested, work in the Crisis of the House Divided. This may explain why in the years that followed, the target of his attacks shifted from historians to conservative intellectuals, the level of invective in his exchanges became ever more elevated, and the relative moderation of his earlier work atrophied. With these changes, Jaffa began to claim that the ideas undergirding the 1776 Dec-laration were as radical as those of the French Revolution. Thus, in 1978, he lauds Paine’s The Rights of Man, recognizing that “Jefferson himself never produced an orderly and systematic work of political theory, nor did any other native born American of his generation,” while insisting that Paine’s end-of-the-century radical treatise was the closest thing Americans have to a complete statement of their Revolutionary-era political thought. In his mind now there was little separating the French philosophes from those Americans who supported the War for Independence. Some fifteen years later, in an ugly exchange with Robert Bork, Jaffa went even further and wrote that “since the doctrine of the rights of man (embracing as it did ‘the abstractions of moral philosophy’) was at least as prominent a feature of the American as of the French Revolution, one wonders whether Judge Bork has ever read a single document of our Founding.”26 As Jaffa moved away from writing careful history and became increasingly engaged in bitter polemics with American conservative intellectuals, his view of 1770s America became less and less historically credible.

Not only did Jaffa’s view of the American War for Independence become increasingly radical, it began to be advanced with less and less regard for historical accuracy, and with less intellectual so-phistication than that found in his 1950s work. Increasingly, he began to make historically unsustainable claims concerning the Constitution and how best to interpret it. Over a twenty-year period, Jaffa came to argue doggedly, without evidence, and in a circular fashion, that “the principles of the Declaration of Independence were the principles of the Constitution. And that is indeed the truth of the matter, according to the greatest of all interpreters of the American Constitution, Abraham Lincoln.”27 A few years later, responding to another prominent student of Strauss, Walter Berns, Jaffa writes that “the compromise with slavery, in the Constitution of 1787, called into question all of the compromises of the Constitution…. Without recourse to the Declaration, there is no way of distinguishing principled from unprincipled compromises.” More recently, he summarized this line of thought in holding that because “the true principles of the Declaration are the principles of the Constitution,” we need

not look outside the Constitution but rather within it for the natural law basis of constitutional interpretation. Justice Black’s at-tack on alleged appeals to the natural law, as a pretext for judicial usurpation, is based upon his positivist prejudices against the idea of natural justice—the central idea of the American Founding and hence of the American Constitution.28

According to Jaffa, then, the poorly defined natural-law doctrines embodied in the Declaration are fully incorporated in the positive law of the United States Constitution. It is, therefore, to the Declaration, and its condensed natural-law holdings, that Supreme Court Justices should turn for guidance in properly interpreting the constitutionality of positive law.29

Missing from this part of Jaffa’s account, though, are two things: facts and common sense. Simply put, Jaffa’s claimed connection between these documents is offered wholly without evidence. As Lino Graglia reminds us “the Constitution makes no mention of the Declaration of Independence, and Jaffa has not produced a single statement by anyone at the constitutional convention or during the rati-fication debates indicating that it was intended to incorporate the Declaration.”30 Of great interest here is the ex-change between Justice Scalia and Jaffa. Jaffa writes that “in response to a question of the relationship of the Constitution to the Declaration of Independence— and to ‘the laws of nature and of nature’s God’—Scalia responded as follows: ‘Well unfortunately, or to my mind fortunately, the Supreme Court of the United States, no federal court to my knowledge, in 220 years has ever decided a case on the basis of the Declaration of Independence. It is not part of our law.’ … [As Jaffa then explained] Scalia is simply mistaken when he says that the Declaration of Independence is ‘not part of our law.’”31 And hard to believe but essential in understanding what deeply separates Jaffa from Anglo-American conservative judges, like Bork and Scalia, is Jaffa’s blind confidence that by positing a natural-law foundation for the Constitution he can lessen or prevent the moral decline and legal declension that he so laments. Again, Graglia offers the reader the common sense of the matter when he writes that “it seems incredible that Jaffa can think that his theory of the incorporation of natural law into the Constitution avoids the danger of rule by judges, that a judge authorized to enforce his view of natural law is or can be some-thing other than the ultimate policy maker. Jaffa is angry with Bork because Bork does not believe this.”32

Jaffa, in keeping with the importance he attaches to his project and his prophetic stance, does not respond well to disagreement. And, with a remarkable consistency, he claims that every conservative jurist or intellectual who is unmoved by his views on constitutional interpretation must be a secret admirer of John Calhoun and by not so veiled implication, a morally tainted racist.33 For example, in an insulting letter to Attorney General Edwin Meese in April 1992, Jaffa writes that “the late Martin Diamond… had adopted the view (earlier made famous by John C. Calhoun) that the Declaration offered ‘no guidance’ either in draft-ing, or for the constructing, of the Constitution…. If they [the fellows at American Enterprise Institute] could burn me at the stake, they would do it….  The truth is that Bork and Rehnquist fall right within the parameters of Kirk and Kristol and Dia-mond” and, thus, too are all followers of Calhoun and, by implication, racists.34 Jaffa’s use of often vicious ad hominems appear to have coincided with the radicalization of his view of the American War for Independence, his too-close linkage between the natural law claims in the Declaration and the positive law standing of the Constitution, and his move-ment away from doing careful history. Jaffa’s understanding of America’s eighteenth century became less and less credible as it became more and more extreme, and Jaffa’s personal mode of conduct ever less professional. While there may have been some justifiable interest in his early work on the Declaration and Lincoln’s alteration of it, there is little left that should attract a conservative.

 

Jaffa’s History as History

Given Jaffa’s readily encountered goals of refounding America and transforming conservatism, what, then, can be said of his history of the 1770s as history and his understanding of conservatism as conservatism? What is notable about his history is its simplicity. Almost everything that makes the study of history reward-ing and satisfying to a conservative mind—its complexity, its unpredicta-bility and the humility that this teaches, and the ways in which the intentions and designs of men are so rarely fulfilled—is absent. In his secular millennial account of America, with the exception of slavery, there are no wrong turns, no mistakes, no changing of goals after the fact, no mak-ing up of intentions to coincide with unintended outcomes.35 But his rarefied account of eighteenth-century American history is even more unacceptable because of its failure to consider the most immediate stuff of history, that is, the recent past and immediate present. In his account, one would be hard pressed to learn that the political actors in his drama were all British and, in some form or other, all nominally Protestant.36 Neither feature, quite probably the two most impor-tant formative elements of America’s political culture, is given any weight in his description of Americans as a univer-sal and largely secular people.

Still more of the stuff of history is missing from Jaffa’s thin explanation of the thinking of eighteenth-century North-American British colonists. For example, he ignores all the political maneuvering, both inter- and intra-colonial and imperial, of the colonists during the twelve-year long crisis that culminated in America’s break from Britain, and all of the striking changes in the posture and goals advanced by elite Americans during this period, as well as the regional differences that separated the political concerns of the middle colonies from both New England and Virginia (and these two, likely, from each other). Except for snippets from two documents from Massachusetts and one from Virginia, Jaffa shows no familiarity with any of the hundreds of petitions and declarations penned by British North Americans, continental and insular, during the imperial crisis, nor any knowledge of the intense debates occurring in the Continental Congress.

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 deter-mined, 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.”37 But the conservative Virginians were not alone. The sober New Yorkers, James Duane in par-ticular, 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 dead-locked 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.”38 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.

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.39 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.

Similarly, from Jaffa’s account, one would never learn that almost no one at the Philadelphia Convention viewed himself as constructing something new. Most who spoke looked longingly on what they still considered the most perfect of governments, the balanced government of Britain, but did so while recognizing that America, at least for the foreseeable future, lacked the essential ingredients with which to construct a comparably impressive governmental edifice. But, as a consequence of this deficit, the closely adhered to Whig political notions of good government, held to by most delegates, had to be revised. So much for a revolution in political theory. Thus, the federal government that they constructed in many, if not most, ways looked remarkably like that under which some colonies had developed for over a century. Close attention to the process suggests that if providence was at work in the Convention, it was not to be found in the genius of any of its members or their handiwork, but rather in the ability of the more moderate and patient delegates to craft a series of compromises that little satisfied the most inflexible ones, like Madison.40 The American Constitution, like most well designed human social and political institutions, appears to be the work of British historical precedent (old acci-dents), American slowly-developed prac-tices (not so old accidents), new refine-ments resulting from political compro-mises, considerable confusion, still more political bargains and compromises (new accidents), and the efforts of gifted men, like James Wilson, to make sense of their work post hoc. Whether God guided such activities with a particular intent is not something that history can tell us with any confidence.

When he is not attempting to explain the Declaration, the federal Constitution, and America’s eternal political culture by the creatively close reading of a few dozen words in a wartime document drafted by a young man of college age with an elegant pen or by showing how these words can only be properly understood through the lenses of a select number of authors in the history of political thought, Jaffa is whisking the reader away to the nineteenth century to explain the meaning of the Declaration and the Constitution in light of Lincoln’s vision of them,41 one that even Jaffa admits is more creative than historical.42 In the end, then, Jaffa attempts to make his case for the centrality of key phrases in the Declaration of Independence to America’s constitutional history and its unchanging political culture by shifting the reader’s focus from the Anglo-American eighteenth-century to select texts in the his-tory of political thought or nineteenth-century America (both subjects about which he writes with confidence and, concerning the latter, even considerable historical familiarity). Seemingly, knowing nineteenth-century American political history is needed to understand Lincoln and his words but knowing eigh-teenth-century American history is not needed to understand properly those words used by Jefferson and his colleagues in the Continental Congress.

For twelve years, almost all American spokesmen challenged the power of Parliament but never that of the king, consistently adhered to the necessity of a balanced government and viewed democracy as it had been viewed for a millennium as a dangerous pathology, while simultaneously defending their actions systematically on English and British constitutional grounds. Naturalistic law and rights, with its implication that a people or peoples lacked a common sovereign, were rarely used because of their separatist implications. After all, Americans before the Revolution viewed themselves as a separate British people with a common sovereign. Most Americans wanted to continue to benefit from the political, social, religious, and economic advantages of being part of the Protestant British Empire. Except for a small group of progressive political actors, authoritative spokesmen rarely made universalistic claims. Instead, they consistently relied on particularistic ones that reflected their highly valued Reformed Protestant and British legal and constitutional inheritances.

 

Jaffa’s Conservatism as Conservatism

Possibly no one more succinctly or pointedly emphasized these core features of American constitutionalism than did the ubiquitous John Dickinson in the next most famous line, after that of the Declaration’s preamble, to emanate from this period. In complete opposition to what Jaffa claims was the only mode of thought typical of the period, Dickinson explained in a most Blackstonian and Burkean manner how British and later American legal and constitutional institutions had developed and, in doing so, offered conservatives a legitimation of their political thinking as authentically American. He counseled that:

Experience must be our only guide. Reason may mislead us. It was not Reason that discovered the singular & admirable mecha-nism of the English Constitution. It was not Reason that discovered or ever could have discovered the odd & in the eye of those who are governed by reason, the absurd mode of trial by Jury. Accidents probably produced these discoveries, and experience has give a sanction to them.43

This Anglo-American and wholly conservative understanding of things political coincides with the actual history of how American political and legal institutions developed first in England, then in Britain and North America.44 But, more importantly, Dickinson’s remark makes clear that not all, and possible very few, Americans principally involved in the creation of separate governments in America in 1776 adhered to the progressive rationalism defended by Jaffa and claimed by him to be ubiquitous.

When we place Anglo-American con-servative thought back in to its late-eighteenth and early-nineteenth century point of origin, we see that it arose in response, like Orthodox Jewry and later Fundamentalist Protestantism (and possibly Islam) did to modern theological challenges, to a specific political challenge. It developed in opposition to the secular utopian pretensions of the French Revolution with its embrace of modern rationalism. That is, conservatism arose in opposition to a form of rationalism not dissimilar to that defended by Jaffa in which humans, with the aid of an appropriately rational method and without the assistance of Revelation, seek to reconstruct basic social, political, and legal institu-tions while rendering unnecessary right habits, customary constraints and limits, and slowly and incrementally developed institutions and traditions. Of course, such hubris is not new: Scriptural history begins with the same, but when married to the emerging successes of the physical sciences in the eighteenth century, modern rational political theorizing took on a new level of dangerous arrogance and utopian confidence.

Yet, Anglo-American conservatism born in opposition to modern secular utopianism, is itself also modern. Due to its opposition to the very grounds of its birth, it is necessarily awkward in its modernity and, most especially so, when forced to become articulate and to present itself as a self-conscience body of thought.45 Thus, conservatism—no matter how much it appreciates pre-modern thought—is itself shaped, even deformed, by its modern origins. But its modernism is less harmful than its rationalist alternatives because conservatism is necessarily humbled by its being an incomplete body of political and social principles rather than an all encompassing set of philosophical or theological teachings. Conservatism typically rests on deeper ethical and theological claims, most commonly transcendent and Revealed ones. Most authentic political conservatives, therefore, while sharing much in common, are generally identified by a hyphenated denomination as a Catholic-, Protestant-, Jewish-, etc. conservative.

Conservatism, therefore, is a cure, not to all manner of intellectual and cultural diseases, but to a particular one, that of enlightenment rationalism with its utopian propensities that found a frightening fulfillment in the French Revolution. Of course, there are many other bodies of political thought and many of them may, similarly, be shaped by a particular disease which, in large measure, they were designed to control (for example, classical liberalism and religious absolutism). Perhaps following Strauss, Jaffa and his colleagues seem to be particularly concerned with the dangers of nihilism and a lack of moral guidance in which all behaviors enjoy equal standing. If this is the intellectual development that he hopes to overcome, then, whatever he is, he is not an Anglo-American conservative. Jaffa, in essence, is fighting a different war than that of Anglo-American conservatives, one that seeks to contain a different disease, with a genesis likely in a later century, and demanding, most importantly, a different set of cures than that which most concerns Anglo-American conservatives.

Like most palliatives, those endorsed by conservatives are not without their own dangerous side effects. In addition to being concerned with an intellectual challenge different than the secular utopianism so feared by Anglo-American conservatives (and with two centuries of horrors corroborating the rightness of their choice), Jaffa makes too much of the flaws rightly associated with conserva-tive thought and too little of the greater dangers it hopes to control. Thus, while attacking conservatism as if he and his students alone understand its flaws,46 he naively defends an incoherent and quixotic mixture of classical and modern rationalism that is more likely to exacerbate than reduce the moral and political arrogance, blind certitude, and anthropo-centrism that authentic Anglo-American conservatives so distrust and rightly fear.47

However Jaffa’s overarching philoso-phy might be best characterized, it does not share with thinkers like Burke, Hume, Kirk, and Oakeshott their belief that secular utopianism, in its numerous progressive guises, is the most dangerous form of thought against which moderns must guard their political institutions. Indeed in stark opposition to Anglo-American conservatism, for Jaffa and his followers, all bodies of political thought that turn for guidance to history, be it highly particular or broadly universal, are for them difficult to distinguish. Anglo-American conservatism with its particularism is, for them, little different from Marxism with its universalist historical and rationalist foundations. Jaffa writes that “the Burkean attack on metaphysics is an attack on the possibility of that theoretical wisdom without which there can be no moral wisdom…. Both Burke and Marx oppose the idea of a right or just way of life, that is according to reason and according to nature. Burke’s praise of the British Constitution, for having no ‘unity of design,’ and being therefore consistent with, ‘the greatest variety of ends’ (cf. Natural Right and History, p. 314) is virtually the same as Marx’s praise of classless society in the German Ideology.”48

For conservatives, though clearly not for Jaffa and some of his Straussian colleagues, it is the creation of an intellectual berm against the dangers of modern egalitarian utopianism, not the suppression of a phantom nihilism, that defines conservatism. Jaffa and his colleagues instead flirt with modern political rationalism while seeking, they claim, to recover the pre-modern meanings of key political and moral concepts that have been deformed by modern rationalism. However, by promoting individualism, equality, abstract rationalism, natural rights, and national centralization of power, no matter how they attempt to control the definitions of these concepts, they do nothing to support a conservative and decentralist understanding of America49 and, to the degree anyone other than misguided conservatives are paying attention, do much to undermine it.

Once we admit the fundamental conservative opposition to enlightenment rationalism, we can see clearly how distant Jaffa and his colleagues’ are from the authentically conservative character of American constitutional history.50 Consider, then, conservatism’s essential traditionalism.51 This central tenet rests on a belief in social complexity and, perhaps more importantly, a fundamental humility concerning the human ability to construct anything as complicated as society through the bare-bones insights of abstract reason. Conservative thinkers, in fact, regularly warn against the dangers of apriori reason unconstrained by the sticky particulars of time, place, and history. But, given what was described earlier in this essay, aren’t the presence and endorsement of these standards entirely missing in Jaffa’s celebration of the universalism of American social and political practices as he dismisses the particularism of America’s British and Protestant inheritances? It is not difficult to discern the foreign policy implications of Jaffa’s millennialist vision of America.

Seminal conservatives like Burke and de Maistre staunchly opposed imperialism, in part, because they believed that human beings are defined by their cultural particularity, i.e., they held that it is human social, religious, political, and cultural institutions and practices that do much to define who and what we are as living rather than abstract human beings. Accordingly, the political and social developments of centuries cannot be imposed on a people without the appropriate foundation having been first laid. Indeed, if Jaffa’s attribution of enlightenment rationalism to eighteenth-century Americans has played some role in the creation of the Bush administration’s Wilsonian foreign policy, then writing and disseminating bad history may, indeed, greatly matter. In sum, there is no place in Jaffa’s story of America for legitimate traditionalism, hostility to a priori reason, or for opposition to cultural imperialism. American history, however, provides abundant evidence of all three. In short, Jaffa’s consti-tutional history of America’s late-eigh-teenth century is not credible nor, in keeping with many of his own pronouncements, is it conservative.

What remains perplexing, however, is why so many on the Right take this man and his colleagues seriously given their lack of adequate scholarly credentials in the field under examination, and their hostility toward conservative norms and toward distinguished conservatives, past and present. The answer to this question cannot be found by better understanding Jaffa, his colleagues, or their millennial project of transformation. The answer to this question must be found in certain key features of the contemporary conservative movement. While Jaffa and his fol-lowers are free to disseminate their millennial pronouncements, I would once again52 urge American conservatives to pursue political and social and, where appropriate, scholarly goals that allow us to make better known the authentically conservative nature of this country and its long and rich history replete with deep veins of conservative practices and institutions. 

Barry Alan Shain is Associate Professor of Political Science at Colgate University. This article was originally published in the Fall 2007 edition of Modern Age: A Quarterly Review, and it is now republished here with gracious permission from the Intercollegiate Studies Institute

 

Endnotes:

1. See Harry V. Jaffa, “Equality as a Conservative Principle,”  Loyola of Los Angeles Law Review 8 (June 1975), 474, who makes much of this tension. He writes that “American Conservatism is then rooted in a Founding which is, in turn, rooted in revolution. Moreover, the American Revolution represents the most radical break with tradition …that the world had seen…. the American constitutions—state and federal…were not merely radically republican, but were radically republican in a democratic sense….[and the American revolution] embodied the greatest attempt at innovation that human history had recorded.” 2. See Harry V. Jaffa, Original Intent and the Framers of the Constitution: A Disputed Question (Washington, DC, 1994), 37, who responds to Kirk’s claim “‘the Declaration really is not conspicuously American in its ideas or its phrases…Jefferson’s Declaration is a successful instrument of diplomacy; it is not a work of political philosophy or an instrument of government,’” by ridiculing it in that “for the conservative illuminati…it would seem that the only things ‘conspicuously American’ are ‘our rights as Englishmen’! One may wonder whether any greater foolishness has ever been condensed into fewer words anywhere in the world’s records of writing on politics.” 3. See Harry V. Jaffa, Storm Over the Constitution (Lanham, MD, 1999), xv, who writes that “we at the Claremont Institute are and have been ‘conservatives.’ As the old and best tradition of our nation has gone out of fashion, so too has conservatism.” 4. Among those introducing his books can be found such conservative stalwarts as William F. Buckley, Jr., and Lewis Lehrman. 5. See Harry V. Jaffa, How to Think About The American Revolution: A Bicentennial Cerebration [sic] (Durham, NC, 1978), 59, who writes “that the American people had a divine mission to perform, not for themselves alone, but for all mankind…. [but] this mission is given, not primarily by the God of the Old or New Testaments, but the God of nature, who speaks through man’s unassisted reason.” 6. See Robert P. Kraynak, “Moral Order in the Western Tradition: Harry Jaffa’s Grand Synthesis of Athens, Jerusalem, & Peoria,” unpublished manuscript, 22-23. 7. Jaffa, Original Intent, 42. 8. Kraynak, “Moral Order in the Western Tradition,” 2. 9. See Charles R. Kesler, “All American?,” National Review (7 December 1998), 52-55. 10. See Charles R. Kesler, “Introduction,” to American Conservatism and the American Founding (Durham, NC, 1984), 2-3, who describes what Jaffa teaches as the “transhistorical ability of reason to take its bearings from nature, that makes it possible for political philosophy to be a guide to political practice here and now. Otherwise, reason would be the slave of history….  From the beginning to end, the debate over Strauss’s legacy—which is also Socrates’ legacy—is therefore a meditation on the proper relation between statesmanship and political philosophy, which centers on the Declaration of Independence as the pre-eminent modern statement of that rela-tion.” 11. Jaffa, Original Intent, 40, and Storm Over the Constitution, 51. 12. Edward J. Erler, “Introduction: Harry Jaffa and Original Intent Jurispru-dence,” in Storm Over the Constitution, xxi-xxii. 13. While it is relatively clear why Jaffa believes it is important for Americans to understand “properly” their national project, it is far less clear why he is similarly committed to refounding Anglo-American conservatism. Why not simply, as he largely does with liberals, ignore the followers of Burke and Kirk too? Of course, regarding both, Jaffa never offers any guidance as to how the refounding of either will produce the hoped-for results among a population little concerned with either the “true” nature of the founding or conservatism.  14. See Kraynak, “Moral Order in the Western Tradition,” 13. 15. See Kraynak, ibid., 29-33. 16. Curiously, as with natural law in general, Jaffa nowhere explains what any of these terms and concepts mean, then or now, or what they politically entail. 17. Harry V. Jaffa, “Equality, Justice, and the American Revolution: In Reply to Bradford’s ‘The Heresy of Equality,’” reprinted in Modern Age: The First Twenty-Five Years, ed. George Panichas (Indianapolis, 1988), 312. 18. See Barry Alan Shain, “Rights Natural and Civil in the Dec-laration of Independence,” in The Nature of Rights at the American Founding and Beyond, ed. Barry Alan Shain (Charlottesville and London, 2007), 116-62. 19. M. E. Bradford, “The Heresy of Equality: Bradford Replies to Jaffa,” Modern Age 20 (Winter 1976), 62-77, reprinted in Modern Age: The First Twenty-Five Years, ed. George Panichas (Indianapolis, 1988), 287-304. See page 289 for Bradford’s powerful critique of Jaffa’s historiography in which he argues that “the trouble [with Jaffa’s reading of the Declaration] here comes from an imperfect grasp of the Burkean calculus. And from the habit of reading legal, poetic, and rhetorical documents as if they were bits of revealed truth or statements of systematic thought.” Still, although Jaffa’s reading lacks Bradford’s historical acumen and sophistication, his early efforts to make sense of the actual language of the Declaration’s preamble show care and ingenuity and are anything but radical. 20. Harry V. Jaffa, Crisis of the House Divided: An Interpretation of the Issues in the Lincoln-Douglas Debates (Chicago, 1959), 324-26. 21. See Jaffa, ibid., 314-15, where he writes that “the Revolution was a great stroke to better secure the unalienable rights of some men, but still more, it was a promise that all men everywhere might some day not merely possess but enjoy their natural rights,” and in “Equality, Justice, and the American Revo-lution,” 307, he continued to argue that “the right to resist despotism, that is, the right not to be slaves, is possessed equally by every human being on the face of the earth. That some might not have the capacity to make good this right, lacking either the power or inclination, is nothing to the purpose.” 22. See Jaffa, Crisis of the House Divided, 318, who writes that Lincoln “transforms and transcends the original meaning of that propo-sition [that all men are created equal], although he does not destroy it. His, we might say, is a creative interpretation, a subtle preparation for the ‘new birth of freedom,’” and pages 327-28, where he writes that “to what extent Lincoln was conscious that his interpretation was ‘creative’ we cannot absolutely say…. [but] from Lincoln’s 1838 criticism of the Revolution we suspect that he was not innocent of the nature of his subsequent ‘reconstruction’ of the meaning of the Fathers.” 23. Jaffa, ibid., 320; and continuing, 321-22, he writes that “Lincoln does not, of course, aban-don the lower-level Lockean-Jefferson demands, yet there is visible a tension between them and the higher ones upon which he insists…. Lincoln clearly has exaggerated Jefferson’s non-revolutionary purpose.” Jaffa’s need to anchor these broad movements of ideas in the thinking of one or another author, i.e., some body of thought is “Lockean” or “Calhounian,” seems to result from his training in Straussian political philosophy. 24. See Garry Wills, Lincoln at Gettysburg: The Words that Remade America (New York, 1992), 38-39, where he describes how in this matter, Lincoln picked in broad daylight the nation’s collective pocket. 25. Kraynak, “Moral Order in the Western Tradition,” 33-34, citing Harry V. Jaffa, “The American Founding as the Best Regime [2002],” 8-9. If so, the distance between American political principles and actual practices is mind-numbingly large. 26. Jaffa, “How to Think About the American Revolution,” 74, and Original Intent, 31. 27. Jaffa, Original Intent, 18. See page 55 and page 239 where he claims that “the political philosophy of natural rights and natural law…was the common ground for both the Framers and Ratifiers [of the Constitution].” Earlier, Jaffa, in “Equality as a Conservative Principle,” 504, had written that “the principles of the Declaration are not, however, merely presupposed in the Constitution. They are present in the very first words of the Constitution as those words were understood by those who drafted and adopted it”; and in “How to Think About the American Revolution,” in How to Think About the American Revolution, 136, Jaffa writes that “among the laws of the constitution, none is more fundamental than the providing for the separation of powers. The principle of separation of powers is clearly embodied in the Declaration.” 28. Jaffa, American Conservatism and the American Founding, 133, and Original Intent and the Framers of the Constitution, 60. 29. See Bruce Ledewitz, “Judicial Conscience and Natural Rights: A Reply to Professor Jaffa,” in Original Intent, 122-23, where he instructs Professor Jaffa regarding the liberating consequences that follow from Jaffa’s jurisprudence. Ledewitz, a progressive professor of law, after showing why Jaffa’s explanation of the Constitution must necessarily make capital punishment unconstitutional, rejoices that “Professor Jaffa has put us in touch in a vital way with a tradition of law much healthier than the one we know today…. once we take the rights of persons seriously and the strengthening of free government as law’s obligation, we cannot avoid asking about the rest of the rights of man: about economic rights—to shelter, food, clothing, and education; about social rights—to wear religious clothing and to love a person of the same sex; and about corporate rights.” 30. Lino A. Graglia, “Jaffa’s Quarrel with Bork: Religious Belief Masquerading as Constitutional Argument,” in The Storm Over the Constitution, 130; See Jaffa’s response, in ibid., to Charles J. Cooper, “Harry Jaffa’s Bad Originalism,” in ibid., 95. Jaffa lamely responds to Cooper’s charge that he, Jaffa, has “no citations from the Founders—as I do from the Republican party of 1856—characterizing the Declaration of Independence as an authoritative source of the principles of the Constitution…. The most general reason for this is that those principles were so generally accepted, and so seldom called into question, that no authority for them was necessary.” 31. Jaffa, ibid., 123, 125. 32. Graglia, “Jaffa’s Quarrel with Bork,” in ibid., 129. 33. See Tom Landess, “Harry Jaffa and the Historical Imagination: Reconfiguring Souls,” Chronicles (January 2007), 23. 34. Jaffa, Original Intent, 395. 35. See Barry Alan Shain, Myth of American Individualism: The Protestant Origins of American Political Thought (Princeton, 1996 [1994]). As I argue in the preface, American history might be far better described as a series of failures that, after the fact, have been re-packaged as intentional successes. 36. See M. E. Bradford, Founding Fathers: Brief Lives of the Framers of the United States Constitutions (Lawrence, KS, 1994). 37. John Adams, “Life of John Adams,” in  Works of John Adams, ed. Charles Francis Adams, Vol. I (Boston, 1850-59), 160. 38. John Adams, Letters of Delegates to Congress, ed. Paul H. Smith, Vol. I (Washington, DC, 1976), 46-9. 39. See Bradford, “The Heresy of Equality,” 293. 40. As Forrest McDonald has noted, Madison lost most of the important debates in the Convention. See Novus Ordo Seclorum: The Intellectual Origins of the Constitution (Lawrence, KS, 1985). 41. See Bradford, “Heresy of Equality,” where he insightfully writes that “to anyone familiar with English letters and the English mind in the seventeenth and eigh-teenth centuries, the Declaration of Independence is clearly a document produced out of the mores majorum—legal, rhetorical, poetic—and not a piece of reasoning or systematic truth. No sentence of its whole means anything out of context. It unfolds seriatim and makes sense only when read through. Furthermore, what it does mean is intelligible only in a matrix of circumstances—political, literary, linguistic, and mundane.” 42. See Jaffa, Crisis of the House Divided, 316-18, and 327-28. Jaffa writes that “if we ask, first of all, if Lincoln’s vindication of the consistency of the Fathers was altogether accurate from an historical standpoint, the answer, we believe, cannot be an unequivocal affirmative… [and, more-over,] despite the consistency of Lincoln’s alternative rendering of the signers’ and Founders’ meaning, it cannot be endorsed on historical grounds without some qualification.” 43. John Dickinson, “Speech, August 13” in The Records of the Federal Convention of 1787, ed. Max Farrand., Vol. II (New Haven, 1937), 278. 44. See Jaffa, Original Intent, 25. Without referring to this passage with which he seems unfamiliar, Jaffa denigrates Bradford for his emphasizing it as he suggests that doing so makes Bradford’s thought, as is true of most conservatives, hard to distinguish from Marxism. Jaffa continues by noting that conservatives “declare that ‘there is a better guide than reason.’ This better guide, however, turns out to be not revelation, but the collective prejudices of their communities on subjects as race, religion, and ethnicity, prejudices which they are at once unwilling to abandon and unable to defend.” 45. See Michael Oakeshott, “Rationalism in Politics,” in Rationalism in Politics and other Essays (London, 1962), 21. Oakeshott writes, in part, that “a plan to resist all planning may be better than its opposite, but it belongs to the same style of politics.” 46. Kesler, “Introduction,” to American Conservatism and the American Found-ing, 16. He writes that “the danger in traditional-ism’s reverence for the past is that it is unreasonable, unprincipled—and fundamentally no differ-ent from liberalism’s unprincipled commitment to the future….it provides no guidance in choosing what elements of the past should be conserved as a matter of expedience, and what elements must be conserved as a matter of justice. Nor, needless to say, can it provide us with what the past does not furnish—living statesmanship and virtue.” 47. See Kraynak, “Moral Order in the Western Tradition,” 32-33. 48. Jaffa, American Conservatism and the American Founding, 219-20. 49. See James McClellan, “Walking the Levee with Mel Bradford,” in  A Defender of Southern Conservatism: M. E. Bradford and His Achievements, ed. Clyde N. Wilson (Columbia and London, 1999), 35-57. 50. The one thing that Jaffa has been able to do is show that neo-conservatives and paleo-conservatives share more than either side may have realized and are, accordingly, both repugnant to him. See Original Intent, 394-5, where, in a dismissive letter to Attorney General Meese, Jaffa writes that “Russell Kirk, the guru of the paleocons, com-pletely rejects this opinion [that the principles of the Declaration are those of the Constitution, and]…Irving Kristol, the wizard of the neocons, recently declared that he was not aware that…[Jefferson had ever written anything worth reading.]” 51. See Russell Kirk, The Conservative Mind: From Burke to Eliot (Washington, DC, 1985 [1953]), 3-11; idem., The Politics of Prudence (Bryn Mawr, PA, 1994), 15-29; and idem., ed., The Portable Conservative Reader (New York, 1982), xi-xix.  52. See Barry Alan Shain, “Fighting Words: The Americanization of Conservatism,” Modern Age 42 (Winter 2000), 118-27.

13 Responses to “Harry Jaffa and the Demise of the Old Republic”

  1. gabe

    Peter & Barry:
    An informative essay that is alternately persuasive and unpersuasive. There is much to commend this essay. It is certainly true that owing to certain “missing features: a common ancestry, a singular ethnicity, a long and continuous history, etc.”, that the creation of an American narrative is of singular importance. The lack of these features is of more than passing curiosity. Initially, it can be argued, that it lead to the development of a uniquely American version of Liberty and was a strength of the fledgling Republic permitting it to make all sorts of grand proclamations. With the passage of time, however, it may be also argued that certain elements of our cultured and educated elite desired something a little less “parochial” and sought refuge in emerging European political philosophy and constitutional order. With the acceptance of the historicism of Hegel, etc., the Bismarckian state and the Darwinian social science relativism of Max Weber, we may be said to have come half-circle back to where we originally embarked on our Republic building enterprise.
    It is often proposed that a certain “evangelism” informed the American Revolution and its aftermath, Professor Shain’s assertions to the contrary notwithstanding. And yet, it seems to me that there was always an accompanying undercurrent of inferiority in the psyche of the American elite (and perhaps, to a lesser extent, the common people) when they reflected upon the long histories and traditions of the European powers. Granted, this is debatable, yet you must wonder at the impact upon our leading government and diplomatic figures when confronted with urbane sophisticated (pompous?) European diplomats and capitols and compared them to the quaint squalor of Washington City. Further, America lacked a literary history comparable to Europe and, as Professor Shain indicates, there were no great political treatises that were uniquely American. Adding to this was the very lack of long standing traditions and a limited historical footprint that, in fact, did cause American policy makers / leaders, during times of crisis,(War, depression {19th century type} and the ravages of industrialization) to question the strength and wisdom of the American system.
    Life for the 19th century American was not a Tocquevillean idyll. As he indicated, life was “lonely” and isolated; and not just for the prairie farmer or small town merchant. The isolated individualism of which he spoke can also be said to have affected the inhabitants of metropolitan areas. Where were the great museums, art works, etc. We were thought unsophisticated rubes by our European counterparts – productive, yes, but rubes, nonetheless. For a young nation that saw itself as a “beacon to the world”, whether through Manifest Destiny or the Founders conception of an exemplar, a “shining city on the hill,” this had a non-salutary effect on our thinking and self conception. In many respects, this phenomenon continues to this day as witnessed by the Left’s recourse to European Social medicine welfare, etc practices to justify their own grandiose plans for American government.
    So, Professor Shain is certainly correct in pointing to this lack of “history” as a critical consideration in understanding our history. He is, however, incorrect in asserting that it was Lincoln and Jaffa’s Lincoln that has lead us to the “non-conservative” state in which we currently find ourselves.
    The growth of ‘statist” policies did not occur until well after the ending of the Civil War. Following the Civil War government’s retrenchment, a peculiar new current appeared in American political thought and was the result of exposure to the European world of “long traditions and political histories.” These histories ran counter to the American experiment.
    It is precisely this countercurrent, this retrograde movement accepted by an American elite in the Universities, popular press, and later government (T. Roosevelt, Wilson, Hoover and FDR) abetted by the muckracking press in the 19th century and eventually the Black Robe “policy makers of the 20th / 21st century Supreme Court that is more accurately the cause of our current institutional and ideological difficulties.
    This should not be laid at the feet of Strauss or Jaffa. Again, Professor Shain is correct when he argues that both men sought to create an American philosophy, an ethos that could be seen to run from the Declaration through the Constitution, and in a sense to codify an American “secular religion.”
    Professor Shain, however, may not go far enough as both Strauss and Jaffa repeatedly make plain their desire to “rescue philosophy” from the nihilism of modern historicism into which it has devolved and to demonstrate that life and especially political life should be the pursuit of a higher purpose. Thus it may be inappropriate to critique a work of political philosophy (Crisis, New Birth) as works of history.
    A HIGHER PURPOSE
    It is the character or nature of this higher purpose that appears to be at issue in many of the writings about American ethos that is at issue here as well as a sense of the uniqueness (self-proclaimed or otherwise) that informs or mis-informs these debates.
    Let me begin by quoting from an essay by George W. Carey, Common Ground; The founding Era. I may take a slightly different reading of it than intended by the whole essay; yet, I do this purposively to highlight how if one does not account for the more limited scope of the “higher purpose” than a) one can fall into the Progressive Leftist trap and b) one can mistakenly ascribe to Strauss, Jaffa and others a preference for a far more expansive role of government than may otherwise be warranted.
    “A uniqueness attaches to the American political tradition that serves to provide a focus to its study. The source of this uniqueness derives from the query put by Alexander Hamilton at the beginning of the first essay in The Federalist, “whether societies of men are really capable or not, of establishing good government from reflection and choice, or whether they are forever destined to depend, for their political constitutions, on accident or force.” This, he believed, was the overriding question facing the American people at the time of the ratification struggle—and not only the American people but all mankind as well….That the Constitution should serve this function is quite understandable. It was not ordained or sanctioned by the gods, nor was it “given” to the people by a mythical lawgiver. Rather, it is a written document, the result of a deliberative process, that can be considered the embodiment of the “constitutive will” of a people; that is, the Constitution spells out in some detail the processes and institutions by which the people, acting in their constituent capacity, have consented to be governed. It is “fundamental law” in the sense that it is unalterable by the government it creates. James Madison, writing in Federalist 53, conveys this understanding of the Constitution’s status when he distinguishes “between a constitution established by the people, and unalterable by government” and systems such as the English one, in which legislatures have “a full power to change the form of government.” (Emphasis added)
    While Carey shows that the constitution was a deliberative process, the outcome of serious debate and Thomas Jefferson later wrote that the Declaration “was intended to be an expression of the American mind,” and “its authority rests . . . on the harmonizing sentiments of the day, whether expressed in conversation, in letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, &c.”, the salient fact about its acceptance is that it did ultimately include natural rights terminology and theory. As such it may be said to have a higher purpose than a simple list of a long train of abuses justifying a break from the mother country.
    “During the founding era the American people were obliged by circumstances to think about fundamental political values and to make authoritative and strategic decisions that would bind subsequent generations. As a consequence, to use a metaphor, the founding period can be looked upon as both the center of and the energizing force behind the ever-expanding universe of American political theory.” (Carey –Founding Era)
    Carey is correct in assigning such importance to the debates and decisions made during this period. Professor Shain asserts that because not all attendees at the early conventions favored separation this justifies a claim that Americans did not actually support such separation and that they did not support the equality or natural rights principle. However, the fact that they debated various options and / or theories of government does not, and ought not, to deny the fact that THEY ULTIMATELY CHOSE REVOLUTION, AND A REVOLUTION PREDICATED UPON A NATURAL RIGHTS THEORY JUSTIFICATION. While Shain is certainly correct that there were, and continue to be, various strains of political thought in the American tradition, the one chosen by the Drafter(s) of the Declaration did in fact, proclaim natural rights and an equality principle.

    What follows from this proposition? Consent of the governed, limited government, protection of certain enumerated and unenumerated rights – yes! This was the basis and the extent of the Old Republics’ concept of natural rights. Even then, however, there were other strains that were either more expansive or more restrictive of said rights. Some have argued that the mere positing of the equality principle leads to the propagation of all sorts of positive rights such as we encounter in the present day.
    However, this is not the case. Remember that Madison, Jefferson and others advocated prudence and defined happiness in more Aristotlean terms rather than in the current ‘welfare state” terms of today.
    This was the higher purpose for which government was engendered – to secure those natural rights and happiness – but happiness defined as a prudential life not a licentious one. It also presupposed a limited government with strict controls on the areas over which it may exercise jurisdiction with a recurring consent of the governed via periodic elections.
    THE CORRUPTION OF THE HIGHER PURPOSE
    Now let us look at both Lincoln and Jaffa and their view on “happiness” and natural rights. With both we see an appreciation of the classical concept of “happiness”, i. e., a prudential ordered life with reason having precedence over passion. Government not only is to be limited but, of necessity, must be limited in “happiness” is to result. As Lincoln and others have said it does not lead a man to virtue if he is compelled to goodness or virtue. Throughout Jaffa’s writings the same theme can be found. For one who sought to “repair philosophy, and an Aristotlean philosophy at that, it could not be otherwise.
    Neither Lincoln, nor Jaffa / Strauss can be rightly accused of expansionist predilections. In fact, it may more accurately be said that both sought to rekindle the flame of the Old Republic rather than extinguish it. Both accepted and propagated the equality principle that was expressed in the Declaration and codified (to a lesser degree) in the constitution. To those who assert that this principle was not central to the American ethos, we must ask whether the founders were wrong, were they lying about their object and purposes, was there, perhaps, a little embellishment for posterity and their historical reputation? This may be a difficult question to answer. Let us turn to John C. Calhoun for help. Calhoun did not dispute the centrality of the equality principle to the American ethos. Rather, he denied that it was valid and employed the emerging “scientism” of the day to assert that there was no validity to the equality principle and the putative American commitment to equality.
    Obviously, there are differences amongst political actors with regard to the extent of this commitment and this has been expressed in a multitude of ways in a multitude of times. However, it was not until the coming of the Progressives that the notion of equality began to take on something approaching what we today think of as equality – equality of condition as opposed to equality of opportunity and a concomitant expansion of the state and state power to ensure that such conditions obtain for the citizenry. It is only with the Progressives that the teleology that Lincoln and Jaffa perceived in the Declaration and the Constitution was corrupted into something that would be unrecognizable by either man. With respect to state and Federal power, let us, at least recognize in the case of Lincoln that he was confronted with the single greatest crisis confronting this nation. It is arguable that had secession not occurred, he would have made no, or at most, minimal effort to expand Federal Power and certainly not to anything approaching what Wilson, T. Roosevelt, Hoover and FDR believed was appropriate. He would not have advocated anything like FDR’s “freedoms,” nor would Jaffa’s Lincoln.
    Both Lincoln and Jaffa argue against slavery as morally wrong and a defect in the American guarantee of equality. Should this properly be viewed as an assault on the Old Republic,? Or simply a restorative measure? Can one rightly argue that the passage of the 13th, 14th and 15th Amendments was destructive of the Old Republic? Indeed, not! The Old Republic’s constitution provided for this very amendment process.
    The corruption of the Old Republic came sometime after the passage of these amendments. It came in the form of Hegelian historicism, a denial of absolute values and a relativism that was advanced by Europeans and readily adopted by the academic elite who, in turn, passed it on to the public and government. A cursory reading of Wilson’s writings reveals that he, and his ilk, rejected the basic concepts of the American tradition. Wilson and his administration, aided by the academy and the press, then set about changing the basic relation of the state to the people. The details are known to all with a passing familiarity with the period as well as the successive further expansions of state power by Hoover, FDR, LBJ, etc. It is the Progressives, (and not Jaffa or Lincoln) “like Croly and Parrington (who) hold that the commitments of the Declaration apply to virtually every aspect of society and individuals’ ways of life.” (Carey, Founding Era)
    Thus, the limited teleology of Jefferson’s, Lincoln’s and Jaffa’s Declaration has been corrupted by the influence of, and assault by, the Progressive strain within the American political tradition.
    To assert that the equality principle advanced by Jefferson, Lincoln and in Jaffa’s (yes, quasi-religious) Declaration is the sufficient cause for our expansionist state and unique modern view of “rights” is an overstatement. What is perhaps, more appropriate would be to say that the “equality principle” is susceptible to “willful misapplication, abuse and demagoguery.”
    I would look in other corners that in Springfield or Claremont for the culprit(s).

    Take care
    gabe

    Reply
    • gabe

      Oops. I did not mean to imply in my last sentence that the demagoguery was being practice by Prof Shain, etc. Rather, it was directed at the Progressives of the world.

      Reply
  2. John Lofton

    Modern “conservatism” has been a failure because it has been, operationally, de facto, Godless. In the political/civil government realm it has ignored Christ and what Scripture says about the role and purpose of civil government. Thus, it failed. Such secular conservatism will not defeat secular liberalism because to God they are two atheistic peas-in-a-pod and thus predestined to failure. As Stonewall Jackson’s Chief of Staff R.L. Dabney said of such a humanistic belief more than 100 years ago:



    ”[Secular conservatism] is a party which never conserves anything. Its history has been that it demurs to each aggression of the progressive party, and aims to save its credit by a respectable amount of growling, but always acquiesces at last in the innovation. What was the resisted novelty of yesterday is today one of the accepted principles of conservatism; it is now conservative only in affecting to resist the next innovation, which will tomorrow be forced upon its timidity and will be succeeded by some third revolution; to be denounced and then adopted in its turn.

    

“American conservatism is merely the shadow that follows Radicalism as it moves forward towards perdition. It remains behind it, but never retards it, and always advances near its leader. This pretended salt hath utterly lost its savor: wherewith shall it be salted? Its impotency is not hard, indeed, to explain. It is worthless because it is the conservatism of expediency only, and not of sturdy principle. It intends to risk nothing serious for the sake of the truth.”

    In any event, “politics,” for the most part today, is whoring after false gods. It will not save us. Our country is turning into Hell because the church in America has forgotten God (Psalm 9:17) and refuses to kiss His Son (Psalm 2.) See, please, 2 Chronicles 7:14ff for the way to get our land healed.

    John Lofton, Recovering Republican
    Dir., The God And Government Project
    Active Facebook Wall
    https://www.facebook.com/pages/The-God-And-Government-Project/494314250654693?fref=ts
    JLof@aol.com

    Reply
    • gabe

      John:
      Great quote and it nicely describes the GOP establishment.

      The problem is what is the alternative. The lefties of the Dem party are even worse. I have held my nose when voting but I would have had to hold my wallet if i voted for the Dems. Regrettably, there does not appear to be an electable alternative at this point.

      take care and hang in there
      gabe

      Reply
      • John Lofton

        “Regrettably, there does not appear to be an electable alternative at this point.”

        So? “Politics,” for the most part today, is whoring after false gods. It will not save us. Our country is turning into Hell because the church in America has forgotten God (Psalm 9:17) and refuses to kiss His Son (Psalm 2.) See, please, 2 Chronicles 7:14ff for the way to get our land healed.

        John Lofton, Recovering Republican
        Dir., The God And Government Project
        Active Facebook Wall
        https://www.facebook.com/pages/The-God-And-Government-Project/494314250654693?fref=ts
        JLof@aol.com

  3. bobcheeks

    Prof. Shain, thank you for this analysis.

    It seems that Jaffa and his followers are desiring an explanation, a means, to understand their own manufactured (second) reality. Perhaps Jaffa’s historical analysis, grounded in fabrication and perhaps, alienation, are only the first level in “..the escape from history into spiritual perfection, into the plemora beyond history.”

    You must give them credit, they may be the most successful of the American gnostics.

    Reply
  4. gabe

    Bobcheeks:

    They are too religious to be gnostics – but I kind of like them anyway – provided one knows how to temper / moderate them.

    Maybe i will see you at first things.

    take care
    gabe

    Reply
  5. bobcheeks

    You take care, Gabe. The Jaffites mean no good and they have done great mischief. BTW, gnostics are very religious, in a demonic sort-a way.

    Reply
    • gabe

      Bobcheeks:

      Well Halloween is coming up, you know. What is wrong with that!
      Anyway, I suspect that it may be the followers of Strauss and Jaffa that may have done the greater mischief – at least the ones who have misapplied them.

      seeya
      gabe

      Reply
  6. bobcheeks

    Hello, Tom!
    Yep, I’m still out there doing what I can to restrain “gnostic egalitarianism,” and other bad stuff, and still a devoted republican!

    Reply
  7. bobcheeks

    ps,

    I was hoping our dear old pal, Dirk Sabin, might add his erudite comments!

    Reply

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