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On Original Intent
September 22, 1986

Lewis E. Lehrman

If it should be said that Abraham Lincoln was the framer of the post-Civil War Constitution, then it may also be said that Professor Harry Jaffa is Lincoln's John Marshall. For in Jaffa's evangelization of Lincoln, one discovers not the temperament of a lawyer but of a lawgiver, not the profession of a judge, but a prophet of first principles of jurisprudence. One need not agree with Jaffa, the philosopher and apologist of Lincoln, to declare him indispensable to the American Republic. Indeed, if Harry Jaffa did not exist, I would want to invent him, if only to reappropriate for Conservatives the first principles of the American Founding — the true meaning of the Declaration of Independence. This I would do because the future of the world depends upon the future of America — and, therefore, upon American constitutional principles.

In the ongoing debate over the authentic Constitution, consider only several unresolved but fundamental issues: Are the legal positivists and legal realists, heirs of Justice Oliver Wendell Holmes and Justice Charles Evans Hughes, right when they declare the constitutional law to be what the highest legislators or Supreme Court Justices say it to be — thus unappealable — even if such 'law' plainly violates the fundamental law by which the nation was founded? Moreover, is the original intent, the meaning of the framers, undiscoverable in the four corners of the Constitution itself, or in its history? And, further, are these considerations irrelevant, as the 'non-interpretivists" imply, when finding and applying the fundamental law of the land?

On the other hand, and above all, are Jefferson, Madison, Washington, Adams, and Lincoln right when, according to 'the laws of nature and of nature's God,' they 'hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator' with the unalienable right to life..., to liberty, and to the pursuit of happiness? And do the framers thus hold correctly that any law or judicial ruling which violates these unalienable rights is, by its nature, unenforceable, indeed unconstitutional since, according to the very words of the Declaration of Independence it is primarily "to secure these rights" (my emphasis) that 'governments are instituted among men'; that governments hold only "just powers derived from the consent of the governed'; and "that, whenever any form of government becomes destructive of these ends [namely, the unalienable right to life, liberty and the pursuit of happiness] it is the right of the people to alter or abolish it, and to institute new government..." But even the people are constrained to consent only to a government of just powers and laws.

These are the principles that the founders of America laid down at the birth of the republic on July 4, 1776; and this is manifestly what the framers of the Constitution meant to do since Madison, himself, the Father of the Constitution, held the Declaration to be 'the fundamental act of union', that is to say, the first lawful instrument by which to illuminate the constitutional principles of the American Union. The implications of the fundamental law of union are too often ignored by Constitutional scholars who, nevertheless, cannot deny that the Declaration is still placed at the head of the statutes-at-large of the U.S. Code of Laws and described therein as 'organic' law. Therefore, I would argue that, just as the XIV Amendment has incorporated, in virtue of stare decisis, certain of the Bill-of-Rights into the State Constitutions, so too has the original intent of the founders and the U.S. Code incorporated the Declaration of Independence into the Constitution of the United States.

The durable issue of our age, with great consequences for future generations, is the current debate over how to interpret the American Constitution. The issue is now joined also within the conservative movement. Shall the meaning of the Constitution itself — the original intent of framers of the Constitution — as revealed in the document and in its history prevail in all applications by the Supreme Court? Or, is this intent, the meaning of the framers, too imprecise and thus unknowable, leading inevitably to the conclusion of the legal positivists that the law can only be what the judges and legislators say it is; or more plausible yet, what the 'sovereign' people vote it to be — no matter if judges, legislators and even the people decide and vote, say, for slavery or legislated murder? From such an outcome, is there no appeal under the Constitution? In this struggle between the natural law (the Declaration of Independence) and legal positivisim (judge-made law), Americans will soon have to choose — in presidential and congressional elections. And there is no more important choice before us as a people.

Professor Jaffa makes his case in this essay well enough without help from me. He is one of the most persuasive advocates of what the legal historian, Professor Edward S. Corwin, called the 'higher law' doctrine of the constitution — namely that the first principles of the American regime, according to which the positive law of the Constitution must be interpreted in ambiguous cases, are codified in the natural law doctrine of the Declaration of Independence, the magna carta of the Founding. Jaffa's view is, however, a minority view — confronting as it does a prevailing and contrary consensus in the Supreme Court, and among legislators and law schools. The consensus view may best be summed in the words of my friend, Professor Benno Schmnidt, former Dean of Columbia Law School, who in discussing this issue with me said, "American constitutional law is positive law, and the Declaration of Independence has no standing in constitutional interpretation whatsoever."

These are two main schools of contending constitutional theories. But, ironically, both legal philosophies are ways by which to decide constitutional intent by reference to authorities outside the four corners of the Constitution itself. In the one case, as with Jaffa or Attorney General Ed Meese, the extrinsic authority of original intent one finds in the Declaration; in the other case, as with Professor Schmidt or Justice Harry Blackman (see his opinion in Roe v. Wade) the extrinsic authority one can find in the supervening extra-constitutional opinion of the Supreme Court Justice.

But while Jaffa does not explicitly consider it, and the Supreme Court today all but ignores it, there is another authoritative way to discover original intent, as Professor Christopher Wolfe shows in his book, The Rise of Modern Judicial Review (1985). That way was the work of Chief Justice John Marshall, whose authority has been claimed not only by traditionalists who hold that the Supreme Court Justice must always find the meaning of the law in the original intent of the framers, but also by judicial supremacists who hold that the Judge must and should legislate himself. But let us hear Chief Justice Marshall himself on the issue: — "judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the law' made by the legislator. And further "we [judges] must never forget that it is a Constitution we are expounding', not the legislative opinions of judges. And in Marbury v. Madison, he declares "it is emphatically the province and duty of the judicial department to say what the law is". But (from McCullough v. Maryland) he emphasizes that 'where the law is not prohibitive", for judges "to undertake here to inquire into the degree of [the law's] necessity would be to pass the line which circumscribes the judicial department and to tread on legislative ground." Moreover, Marshall's legal reasoning and opinions show that the original intent of the framers and of the Constitution can generally be discovered intrinsically, that is, by analysis of the full text of the document itself — by carefully applying rational rules of legal construction which depend primarily upon the plain meaning of the words themselves, the full context of the words, the subject matter with which the words of the law deal, and the obvious spirit or cause which gave rise to the law. That the law itself must do justice in all cases, whatever the rules of construction, is Marshall's first principle of jurisprudence which he makes clear in Marbury v. Madison by asking the simple question: 'Can it be imagined that the law furnishes to the injured person no remedy?'; to which Marshall rejoins: "It is not believed that any person whatever would attempt to maintain such a proposition?" Moreover, these principles of natural justice, argued Marshall in Ogden v. Saunders, were the very principles of "the framers of our constitution" who "were intimately acquainted with the law of nature" because "the language they have used" in documents, such as the Declaration and the Constitution, "confirms this opinion."

Thus Marshall found it simple if painstaking to decide whether a law or act or judicial decision is unconstitutional; and he enshrined his reasoning in the same Marbury decision, one of the most important judicial opinions of Supreme Court history. In this opinion, often cited by both judicial supremacists and legal positivists who reject natural law, Marshall considers "the question, whether an act, repugnant to the Constitution, can become the law of the land. It seems only necessary to recognize certain principles, supposed to have been long and well-established, to decide it." And by what principle shall it be decided? To which Marshall had an unequivocal answer: "That the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness, is the basis (my emphasis) on which the whole American fabric is erected...the principles, therefore, so established are deemed fundamental." By why or how is Marshall so absolutely sure of "the basis" and "the principles' deemed fundamental to the Constitution — to the "whole American fabric." Because, in fact, Marshall draws the very words of this part of his opinion almost exactly from the Declaration of Independence itself — from the second paragraph, which reads..."it is the right of the people...to institute a new government laying its foundation on such principles...as to them shall seem most likely to effect their safety and happiness..."

Thus, the basis of the American Republic is found by Marshall in the Declaration of Independence. But, echoing Marshall, one must then ask: can it be supposed that the Declaration, the fundamental act of union, which provides the basis, the original right of the people to establish fundamental principles of government — can it truly be supposed that this great charter of American liberties is to be ignored by Supreme Court Justices, congressional legislators, Presidents, and law school professors — to be set aside in favor of judicial supremacy and narrow positive law doctrine? Shall it truly be supposed that both legal positivists and judicial supremacists, even advocates of original intent and strict construction, all of whom cite Marshall, may properly abandon the Declaration of Independence as the source of those fundamental rights and principles by which the inevitable ambiguities of Constitutional interpretation should be decided — when Chief Justice Marshall himself finds that 'these principles...are deemed fundamental,' because they stem from the Declaration.

"Surely "it is not believed any person whatever would attempt to maintain such a proposition."

Thus does Harry Jaffa hold for the Declaration.

And, for his love of truth, for his luminous intellect, for the light of the world he shines on the philosophy of law, we read and honor Harry Jaffa.

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