STORM OVER THE CONSTITUTION by Harry V. Jaffa. Lanham, MD: Lexington Books, 1999.
67 pp. Cloth $65.00. ISBN 0-7391-0040-8. Paper $22.95.
Reviewed by Mark Silverstein, Department of Political Science, Boston University
Written by Harry V. Jaffa, one of Leo Strauss' most prominent disciples, STORM OVER THE CONSTITUTION is less a work of political theory, history or, for that matter, even scholarship then a particularly nasty round in an ongoing dispute among several well known conservative legal scholars over constitutional interpretation. Although the book does sporadically engage the reader's interest -- in perhaps much the same way as surreptitiously viewing a family feud might absorb one for awhile -- on the whole its self-righteous tone and combative approach seems destined to alienate all but the most faithful followers of Professor Jaffa.
STORM OVER THE CONSTITUTION consists of a number of previously published essays in which Professor Jaffa replies to several of his conservative critics. For many years Jaffa, drawing upon his extensive scholarship on the political thought of Abraham Lincoln, has maintained that a valid jurisprudence of original intent must recognize that the principles of the Declaration of Independence inform the principles of the Constitution. Because the Declaration represents for Jaffa the "perfection" of the natural law tradition it follows, at least in his view, that a correct understanding of original intent must embrace a natural law approach to constitutional interpretation. By way of example, had Earl Warren employed the Jaffa-endorsed version of originalism in BROWN v. BOARD OF EDUCATION, Warren could have construed the equal protection clause in terms of the colorblind equality proclaimed in the Declaration and thereby avoided, from Jaffa's perspective, dubious references to modern psychological studies in the quest for a constitutional condemnation of apartheid. Stated simply and directly, STORM OVER THE CONSTITUTION argues that a jurisprudence of original intent must accept and implement the natural-rights approach of the Framers as reflected in the Declaration of Independence.
Whatever the historical merits of this contention, it flies in the face of the more mainstream conservative legal thought of, among others, Chief Justice Rehnquist, Robert Bork, Charles Cooper and Lino Graglia (Jaffa's principal adversaries in this work). They champion a jurisprudence of original intent as the antidote to liberal judicial activism. Tied to the text of the document and elevating the procedural over the substantive, the originalism of Judge Bork, for example, concedes a great deal to majority rule. Natural law and right are anathema to this version of originalism and this fact, to put it mildly, makes Professor Jaffa's blood boil. In his view, the originalism of Bork, Rehnquist, et al. is bad originalism because it ultimately denies the "goodness" of the Constitution and it is scornfully (again stating it mildly) dismissed as a brand of legal positivism that ultimately rests upon moral relativism and philosophical nihilism. Indeed, in Jaffa's
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world view these men are guilty of far more because they, along with the activists of the left, have produced the crisis of contemporary jurisprudence that "is identical to what Leo Strauss called the crisis of the west. It presents an alienation from the philosophical tradition of the natural law, as well as from the ethical tradition of the Bible" (p. 53).
Jaffa makes his case in a series of essays responding to negative commentary on his work by these adversaries on the right. The essays tend to follow a similar form. A general statement denouncing the scholarship (and, all too often, the good will) of the critic is typically followed by a point-by-point refutation of the assertions made by the particular critic. SCOTT v. SANFORD typically plays a significant role in each of these essays. Robert Bork, for example, is hauled over the coals for the unremarkable position that Chief Justice Roger Taney erroneously injected substantive due process into Constitutional interpretation to deny federal power to prevent slavery in any state or territory. Jaffa, of course, must deny that Taney created the notion of substantive due process because, in his view, a flexible, substantive approach to the due process clause can be traced to the Framer's understanding of the principles of the Constitution. From this perspective Taney erred not in pouring a substantive content into the due process clause but in including the wrong ingredients. Had he appreciated the significance of the Declaration of Independence in defining due process, he would have been forced to conclude that slavery was a denial of the natural rights ultimately guaranteed by the Constitution.
Constitutional interpretation is weighty stuff and it is hardly news to readers that it has been the subject of healthy and intense intellectual argument. Originalism, with its focus on what the ratifiers of a particular constitutional provision meant, appears particularly suited to the give-and-take of robust academic debate. Although STORM OVER THE CONSTITUTION does contain interesting historical analysis, particularly of the constitutional thought of the Civil War era, the derisive tone and personal invective found in this volume are ill suited to the scholarly tradition. Professor Jaffa makes intellectual debate a personal matter and constitutional law and theory a matter of good versus evil. He draws a line in the sand and those that stand on the other side (even those who appear broadly to share similar political views with Jaffa) are not simply wrong in their facts or philosophy but morally flawed as well. In an essay included in the volume as an Afterward, Lino Graglia chides Jaffa for calling on his readers ".to participate, not in policy analysis or constitutional interpretation, but in a religious exercise." (p. 134). From this reviewer's perspective, Graglia has it right. While this slim volume may appeal to the true believers, it seems unlikely to produce any new converts.
Copyright 2000 by the author.