“Our Embattled Constitution” – Harry V. Jaffa
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“Our Embattled Constitution” – Harry V. Jaffa

October 19, 2019

Larry Arnn: It is a student who introduces
our speaker today. This man is my teacher. I wanted to introduce him because of that,
and because any introduction or dealing with him presents certain pitfalls that a grownup
can best handle, if anyone can handle them. Professor Jaffa is a famous conservative who
is often critical of other conservatives. I am perhaps the most experienced man on earth
in dealing with that problem, and I deal with it the best way possible, which is badly.
But on the other hand, it happens that in those respects I am on his side, and I’ll
explain that just for a minute. To you students I’m going to tell you what
kind of teacher he is. My fondness for him starts with that. I met him in August of 1974,
29 years ago. I arrived in his home to pick him up for the first class of my career in
graduate school. His arm was in a sling. He’d fallen off his bicycle. I learned that if
you wanted to get to know him, you could write a really good paper, but it had to be brief,
which is a very difficult thing to do, and then he would take notice of you. Or, you
could take up bicycle racing. That’s hard to do, too, but even if you do it in a mediocre
way, if you have you heart in it, he’ll like you for it, so I did that.
He wasn’t ready for class. He asked Peter Schramm, now my brother-in-law, what time
the class was to be, and what the class was to be about. I won’t say he’s the best organized
teacher I ever had. We started reading Aristotle’s Ethics. In the first sentence, there are four
words for human activity in Greek. I can tell you what they are now, and their definitions,
as well as I could back then, and it’s 29 years later. Praxis, prohairesis, dunamis
and techné. We spent about four weeks finding out what those words meant, and the fact that
they describe every kind of human activity that is voluntary.
Aristotle says in that first sentence that every voluntary human action aims for the
good, and so the good is the thing we need to know how to define. In the second half
of the class, we read maybe eight more pages in the book. The book has ten books and we
didn’t get all the way through book one, but we thought we knew at the end what was the
problem of defining what is the good for the human being and how that relates to human
action. I liked it because it was a feeder of high ambition and service, and because
it equipped one to talk about the most important things in a certain way. I wasn’t very good
at it, but I thought I was. For that, one accumulates a debt to a teacher.
Professor Jaffa’s an important man for other reasons than that, but it’s connected to this
idea of the good that he defends. He is probably most famous in public life for writing a certain
sentence in a speech that he wrote for Barry Goldwater. “Extremism in defense of liberty
is no vice, moderation in pursuit of justice is no virtue.” Now, there are not ten college
campuses in the world where that sentence would be applauded. It was a disaster, many
people think, for Goldwater that he said that sentence. But it’s an interesting thing that,
at the 1984 Republican Convention, Ronald Reagan, who was also a figure in the 1964
race, had that sentence repeated at the convention on the platform by Barry Goldwater. Perhaps
it was not so much a disaster as it was a long-term victory.
Professor Jaffa knows his Aristotle and his Thomas Aquinas and his Plato, and he knows
America. He sees in America an unbroken line that goes from George Washington to Abraham
Lincoln. He thinks America is the greatest country within the context of the discovery
of philosophy in Athens and the birth of universal monotheism in Jerusalem, and he is an enemy
of anyone who says otherwise. It does not make any difference which supreme court upon
which they sit or which movement of which they are a part, if they differ with him on
that, they differ with him on the most important thing. He does not deny that some of the people
of whom he is critical have done wonderful and even vital service for our country, but
his argument has always been that that thing is central. It is the chord one plucks to
touch America. It is the thing that ennobles it and makes it great.
I’ve asked myself, why have I been loyal to him? I grew up in the South. My dad’s a retired
school teacher. I grew up in and now I have a Christian family. This man is a Northerner
and a Jew. When I was young, what I thought I liked about him the best was that there
were these high things one could come to understand, and do something about them. But in my maturity,
I keep that thought, but I add to it another. My father taught me that the greatness of
this country is that it treats ordinary folk like him as well as kings, or maybe better
than kings, because it’s a questionable thing to be a king. My mother always said, “We taught
them right from wrong.” She actually never did, but she knew that those were solid things
and everyone knew what they were. When you get to college, those things become
very complicated. Professor Jaffa teaches that they are complicated, but it is the function
of the people who have the capacity to investigate those complications to defend those simple
things that are true that my mother and father thought were true. My teacher, Harry Jaffa.
Harry Jaffa: Thank you, Larry. This is an unusual occasion for several reasons. The
title of the talk that I have in front of me now is Our Embattled Constitution on Constitution
Day 2001. But this is 2003. What happened in between? Most of you here are probably
much too young to remember a time when the Catholic Legion of Decency ruled Boston, but
there was a time when it was every publisher’s ambition to have his book banned in Boston.
That was not an option for me, but I did the next best thing, or maybe something better,
I was banned at Hillsdale. However, it may be that the time is riper now than it was
then. I’ll read this speech because I wrote it two years ago, a little more than two years
ago, and I know that what I’ve written down is what I should say or what I thought I should
say, but I’ll interrupt my reading with some comments which I think may make the text more
alive than it otherwise would be. The unique power of Lincoln, of the Lincoln
theme, is suggested by the fact that it has occasioned more titles in the world’s libraries
than any other name. For some time, it has been one of the three most numerous, the other
two being Jesus Christ and William Shakespeare. Recently it has surpassed the others. This
is even more remarkable when one considers the comparative shortness of time since Lincoln’s
life as compared to Jesus Christ and William Shakespeare. It’s also remarkable that Allen
Guelzo, in his 1999 book, Abraham Lincoln: Redeemer President, declared that Crisis of
the House Divided, that was my book on the Lincoln-Douglas debates published in 1959,
was “incontestably the greatest Lincoln book of the century.” I hasten to point
out that this is not a consensus view, but, as Thomas Aquinas would say, what is evident
to the wise is not evident to all. Whatever the rank of Crisis, it is now supplemented
by its sequel, A New Birth of Freedom: Abraham Lincoln and the Coming of the Civil War. What
is unique about both books in the Lincoln literature, is that I have taken Lincoln’s
teaching about the Declaration of Independence as Lincoln himself regarded it, as a standard
not merely for Lincoln’s time, but for all time. I have done this, not merely as agreeing
with Lincoln, but as a matter of demonstrable philosophic truth.
When I began my work on the Lincoln-Douglas debates in 1946, there had never been any
attempt to describe or analyze the arguments put forth in those debates. To the historians,
they were merely links in the chain of causes that brought Lincoln to power. The scholarly
consensus then was that the Civil War came about because of unscrupulous politicians
on both sides of the slavery issue seeking political advantage who had inflamed public
opinion until compromise became impossible. Of all those who rode to power by exploiting
the slavery question, the most prominent was Lincoln. He was regarded simply as the most
successful of the unscrupulous. My book, I must say, is, in the sense in which
I’m explaining it now, the first book on Lincoln which was favorable to Lincoln. Despite Lincoln’s
great reputation and veneration and the Lincoln in the Greek temple in Washington, the literature
on Lincoln has not been favorable to Lincoln. Douglas, his opponent in the 1858 senatorial
contest, tried vainly, it was said by the historians, to dampen the passions over slavery
by his doctrine of popular sovereignty. By letting the people of each territory decide
for themselves whether or not to have slavery among their domestic institutions, the slavery
question would be confined to the territories and kept out of Congress.
In my book on the Lincoln-Douglas debates, I presented the case with Douglas himself
I think more powerfully than any of the people who were pro-Douglas, because it was a real
alternative. The slavery question would thus cease to agitate the nation as a whole. Douglas,
by ignoring or denying the immorality of slavery, was seen as the more moral of the two. He
was thus a model statesman, someone who could calm the turbulent waters. This was the view
of Lincoln dominant before the publication of Crisis of the House Divided.
In 1946, the prevalent academic view of moral questions was that they were insoluble by
reason. By considering slavery a question to be decided by self-interest rather than
morality, Douglas was thought to be actually on the side of morality. By so doing, he made
the uncompromisable compromisable. Lincoln, by insisting that the moral condemnation of
slavery had to be the basis of all public policy concerning it, was held to be a herald
of unreason, of passion and of war. I believe I was the first, and in a sense
remain the only one, to defend Lincoln on Lincoln’s own ground. I have done so by
taking the self-evident truths of the Declaration of Independence, as did Lincoln, as assertions
of right reason, and not of opinion merely. And I have maintained with Lincoln that right
reason, no less than Scripture, is the voice of God. According to Lincoln, those who would
deny freedom to others could not, under a just God, long remain in possession of their
own. When Lincoln said that, as he would not be a slave, so he would not be a master, he
was saying neither more nor less than Jesus when he said, “Whatsoever you would that
others do unto you, do you unto them.” Prophecy was with us then. It is with us yet, if we
would hear it. Academic opinion on the rationality of morality
has become much worse in the 40 years since Crisis. Campuses across the country are in
the grip of something called political correctness. A main feature of PC is something called cultural
relativism or diversity. Since we are not supposed to really know right from wrong,
we show our sophistication by patronizing indifferently the different concepts of right
and wrong as they manifest themselves in different cultures or different ways of life. Unfortunately,
some cultures celebrate, among other horrors too numerous to mention, human sacrifice,
suttee, cannibalism and slavery. So political correctness arbitrarily rules
out those cultures it does not like, and morality becomes a matter of what you like. Since reason
is held to be impotent, it is replaced by passionate commitment, as it was in the Third
Reich. Theoretical indifference thus mutates into blind partisanship. We see the effects
of this all around us. Perhaps it is most conspicuous in heterosexual and homosexual
promiscuity and, in general, in the disintegration of the monogamous family. We see it as well
in the rise of an environmental movement, which, like communism, claims the authority
of a spurious science as a means to despotic control of our lives.
But the bad news is not only from the campuses. My 1994 book, Original Intent and the Framers
of the Constitution, and my 1999 book, Storm Over the Constitution, record the complete
alienation of conservative jurisprudence from the principles of the founding and of Abraham
Lincoln. The classic text in this regard is the following. “If a democratic society adopts
a constitution,” this is now a quotation from a great authority who I will identify in a
moment, “If a democratic society adopts a constitution and incorporates in that constitution
safeguards for individual liberty, these safeguards do indeed take on a generalized moral rightness
or goodness. They assume a general social acceptance neither because of any intrinsic
worth nor because of any unique origins in someone’s idea of natural justice, but instead
simply because they have been incorporated in a constitution.”
The foregoing is from Chief Justice Rehnquist’s celebrated essay on “The Notion of a Living
Constitution.” The contemptuous reference to “someone’s idea of natural justice”
is all the consideration he gives to the Constitution of Madison, Jefferson, Marshall and Lincoln.
This reflects as well the dominant irrationality of the academic climate within which Lincoln
historians, and American historians generally, have pursued their vocation. Consider the
implications of what the Chief Justice has asserted. If safeguards for individual liberty
do not have “any intrinsic worth,” then neither does individual liberty, nor individual
life. This is pure nihilism. The illusion of morality, and it is here regarded only
as an illusion, has as its cause nothing but the will of the people who have adopted it.
Now, the Constitution of 1787, besides safeguards of individual liberty, had safeguards of slavery.
These were adopted by the same people at the same time, and hence on Mr. Justice Rehnquist’s
premises, these safeguards of slavery took on the same generalized moral rightness or
goodness as the safeguards of liberty. This is exactly the position of the seceding states
in 1860 and 1861. By slavery to be a moral wrong, the Republican Party, they contended,
had violated the consensus by which the Constitution had been ratified and the Union formed. This
was the position against which Lincoln had to contend. It’s interesting that the present
Chief Justice has stated exactly the position of the seceding South.
How can a people, any people, adopt a constitution? It must be by some electoral process. In that
electoral process, must there not be freedom of speech and of the press, and of the people
peaceably to assemble? Must these rights not be recognized beforehand for the election
to have any validity? Must it not be recognized, a priori, that the majority has no right to
decide how the citizens may worship their God? Must it not be understood, a priori,
that the majority may not enslave or expropriate the minority or drive them into exile?
The entire concept of legitimate majority rule is bounded on all sides by a priori reasons,
within which alone majority rule may be legitimized. The sum of all these a prioris is embodied
in what the Founders understood to be the social contract, by which majority rule is
authorized. Consent is given thereby, not to the powers of government, but to the just
powers of government. This also is Lincoln’s teaching. On the other hand, Rehnquist’s
idea of unbounded majority rule, of unbounded popular will, is perfectly consistent with
the plebiscite, which has been the instrument of legitimacy of tyrants from Napoleon to
Hitler and Stalin. Mr. Justice Scalia, following Mr. Justice
Rehnquist, also declares that, “The whole theory of democracy is that the majority rules.
That is the whole theory of it. You protect minorities only because the majority determines
that there are certain minority positions that deserve protection.” But what if the
majority does not elect to protect minority positions, or that some minorities are protected
but not others? In 1857, the Supreme Court, speaking through Chief Justice Taney, declared
that majority opinion at the time of the ratification of the Constitution held that black men and
women were “so far inferior that they had no rights which white men were bound to respect,”
and that they might be reduced to slavery for their own benefit. The proposition that
all men are created equal was not, he falsely asserted, understood to include black human
beings. Now, Taney was wrong about opinion at the
time of the founding. But it was certainly true, on the eve of the Civil War, that white
majorities in most, if not all, of the slave states believed in the inferiority of Negroes,
and did not believe that Negroes, whether free or slave, were entitled to constitutional
protection for their lives, liberties or property. And it is precisely this point of view, whether
he knows it or not, that Mr. Scalia endorses when he says that, in a democracy, minorities
depend upon the majority for their rights. Consider also how this view of minority rights
would today justify “ethnic cleansing,” by which whole peoples are obsessed in the
Balkans, in Africa, and in Asia. And let us not forget the role of know-nothingism in
our own history. The struggle over the Constitution today is
between those who believe in a “living constitution” and those who profess their allegiance to
a jurisprudence of original intent. If the former, that’s those who believe in a living
constitution, the former think that the original Constitution is a mere legacy of a reactionary
past, featuring slavery, the subjection of women, capital punishment, and economic and
social inequality, their constitution is one in which a wise Supreme Court can order wise
constitutional remedies for the endless list of alleged wrongs. Since there is no limit
to what may be alleged to be wrong, there is no limit to what may be a constitutional
remedy. This is unlimited government by a judicial oligarchy, a virtual negation of
everything the Founders believed. In substance, the jurists of this living constitution have
seceded from the Union of the Founders, as completely as did the slave states that formed
the Confederacy in 1861. We can save the Constitution only by restoring
to it a genuine jurisprudence of original intent. This can only be done, as Lincoln
did it, by distinguishing the principles of the Constitution of 1787 from the compromises
of the Constitution. Unlike William Rehnquist or John C. Calhoun, Abraham Lincoln believed
that safeguards of individual liberty were indeed possessed of intrinsic worth. They
were possessed of intrinsic worth because each individual human being was endowed by
his creator with unalienable rights. Without question, these principles condemned slavery.
But slavery was deeply intertwined with the roots of colonial society and could not quickly
or easily be extirpated. Slavery was perhaps the oldest institution of human society next
to the family. No attempt was ever made in the ancient world to abolish it, notwithstanding
the importance of individual liberty to the greatest of the Greeks and Romans. The compromises
with slavery in the Constitution of 1787 were means necessary for the ratification of the
Constitution, and the ratification of the Constitution, even with its compromises, was
morally justified, because every alternative to the Constitution would have been far more
favorable to slavery. We must remember that the Founding Fathers,
like ourselves and every generation of mankind, was born into a world they did not make. Yet
no generation did more to remake for the better the world
they inherited. However impatiently and unhistorically
we look upon our past, the fourscore and seven years that separate the Declaration of Independence
from the Gettysburg Address, seen in the light of all human history, is a remarkably short
time in which to have accomplished the great work of emancipation.
Today, nearly every good thing that we enjoy, and nearly every good thing that the world
enjoys because of us, we owe to the principles enshrined in our founding, the principles
preserved by Abraham Lincoln. It is shameful that at the very moment when these principles
are having their greatest success, we witness their abandonment. Nowhere is the genesis
of this intellectual and moral breakdown more visible than in the scholarly writing on Abraham
Lincoln. The logic of Lincoln’s commitment to the principles of the Declaration of Independence
has, however, never been refuted. It has rather been ignored, and that ignorance treated as
if it were a refutation. Our opponents are, however, tied by interests
that they cannot admit to arguments that they cannot defend, and the alienation of conservatives
is not less than that of liberals. The struggle for truth will be hard, and the fight will
not only be with the weapons of truth. The end of this deadly ignorance and alienation
is not at hand. This is not the beginning of the end. It is not even the end of the
beginning. But the battle has been joined.

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