While quibbling over Harriet Miers's ill-fated nomination to the Supreme Court, conservatives overlooked the more serious flaw in President Bush's claim that he would appoint justices to the Court in the mold of Antonin Scalia and Clarence Thomas. Although Scalia and Thomas may both be regarded as conservative "originalist" judges, their views of the Constitution are fundamentally different. Positivists like Justice Scalia who look only to the "text and tradition" of the Constitution, but not to its moral principles, are ultimately no match for the liberal critics of original intent jurisprudence.

Even Ralph Rossum, an admirer of Justice Scalia, concedes in the pages of the Claremont Review of Books that Scalia's "understanding of democracy" is essentially "'vulgar majoritarianism.'" ("Correspondence," Fall 2005). Scalia does not recognize that a majority, in the absence of minority rights, is not a democratic majority. Rossum goes on, however, to minimize the "practical consequences of Scalia's positivist assumptions." "If Scalia were a framer," he writes, "they would be significant—and harmful. But Scalia is simply a justice on the Supreme Court." Yet justices of the Supreme Court are in a peculiar sense trustees of the work of the framers. The framers' Constitution cannot survive if those entrusted with its preservation are alienated from its principles.

Rossum depreciates the importance of Scalia's philosophical differences with Justice Thomas by pointing out that "through the end of the Court's 2004-2005 term" the two agreed in 87.3% of all the cases they heard together. This statistic can be misleading. Scalia and Thomas, together with the late Chief Justice Rehnquist, formed a block that was often at war with the liberal majority. It was often in their interest to suppress their philosophical differences for the sake of tactical advantages. But tactical harmony must not be mistaken for common conviction.

The struggle for control of the Supreme Court is a profound political struggle, going to the heart of the meaning of our existence as a free people. For more than a half century, liberal judicial activism has been riding roughshod over the Constitution bequeathed to us by the founders. The origins of the "living Constitution" may be traced back to the Progressive Movement that flourished at the turn of the 20th century. For the Progressives it was settled "fact" (which was wholly untrue) that "history," especially in the form of Darwinian evolution, had replaced "nature" as the moral foundation of constitutionalism. Because men evolved, they could be made good—or at least good progressives—obviating any need for constitutional precautions on behalf of individual rights. In short, the original majoritarian process within the Constitution, subject as it was to checks and balances, became an obstacle to the unfettered rule of the progressive majority. From Oliver Wendell Holmes, Jr., to William Brennan, progressive liberals began to look to the judiciary as a means of circumventing the Constitution. The Court came to be looked upon as the spokesman of the authentic majority, in the same way that the Communist Party's Central Committee claimed to be the authentic spokesman for the proletariat.

In 1987 Justice Thurgood Marshall refused to celebrate the bicentennial of the Constitution because, he said, it was a racist document that enshrined slavery. Quoting Chief Justice Taney in Dred Scott v. Sanford (1857), he said that the original Constitution regarded black people "as so far inferior that they had no rights that white people were bound to respect." It is this view of the Constitution that has justified liberals, in their own minds, in rewriting the Constitution to conform to their own opinions of what it ought to be. Justice Scalia's recourse to "text and tradition" wilts in the face of this challenge.

The original Constitution, and hence original intent jurisprudence, can only be defended if one distinguishes the principles of the Constitution from the compromises of the Constitution. The framers made concessions to slavery because they believed that the Constitution would not be ratified without them. Had the Constitution not been ratified, slavery would have been in a far stronger position. Instead, the new Constitution created a government strong enough to deal with slavery when the crisis finally came. Moreover, the future of the Union as a guardian of the cause of human freedom throughout the world depended upon this distinction between the Constitution's principles and its compromises. But the Constitution itself does not make this distinction. Although it guarantees to every state of the Union a republican form of government, it does not say what the principles of this form are. These principles are spelled out in the Declaration of Independence, which the United States Code lists as the first of the Organic Laws of the United States. Yet Justice Scalia (and many other so-called originalists) finds no role whatever for the Declaration in constitutional jurisprudence, dismissing it as "fluff."

Professor Rossum believes that the character of the American people themselves is of far more consequence than the reasons any justice gives for his rulings on their laws. He quotes James Wilson, as a spokesman for the founders and framers, that "for a people wanting to themselves, there is no remedy." Yet the debate over whether the Constitution is to be interpreted in the light of an evolving and ever-changing morality, or in the light of the eternal truths of a Creator, who endowed us with unalienable rights, is a struggle for the soul of the American people. How that struggle is resolved will determine the place of the judiciary, and much else besides, within our system of government. In that struggle, the best that one can say of Justice Scalia is that he is sadly wanting.

* * *

A More Dependable Approach 

by Ralph A. Rossum

What separates Professor Jaffa and me is what separated Justices Samuel Chase and James Iredell in the 1798 case ofCalder v. Bull. Justice Chase insisted that "an act of the Legislature contrary to the great first principles of the social compact cannot be considered a rightful exercise of legislative authority." Justice Iredell responded: "The Court cannot pronounce [such an act] to be void, merely because it is, in their judgment, contrary to the principles of natural justice. The ideas of natural justice are regulated by no fixed standard; the ablest and the purest of men have differed upon the subject."

I'll take my chances with Iredell, especially in an age when those who teach in our premier law schools and publish in the leading law reviews (and who therefore fundamentally shape the minds of future Supreme Court justices) are not necessarily the "ablest and the purest of men" when it comes to questions of natural justice. 

For every Supreme Court justice who agrees with Harry Jaffa's understanding of the principles of natural rights and their relation to the American Constitution (and I can only think of one: Clarence Thomas), there are several more (William Brennan, Thurgood Marshall, Stephen Breyer, and Ruth Bader Ginsburg all come to mind) who have drawn their understanding of these same principles from the writings of Ronald Dworkin, Bruce Ackerman, Owen Fiss, Michael Perry, and others. By basing their opinions on these flawed writings, these justices have subverted the very Constitution Jaffa fervently wishes to secure. 

In our law schools today, there is at work a version of Gresham's Law: bad natural rights teachings have all but forced out good natural rights teachings. Given such corruption, I am inclined to rely on Justice Scalia's lower but more dependable (and more easily emulated) "text and tradition" approach to constitutional interpretation, especially since Scalia and Thomas have reached the same conclusion concerning that most important implication of the Declaration of Independence—the principle of racial equality.

In Rutan v. Republican Party of Illinois (1990), Justice Scalia made it clear that there was no need for him to accept the traditional understanding that the 14th Amendment's Equal Protection Clause tolerates racial segregation as it prevailed prior to Brown v. Board of Education. "I argue for the role of tradition in giving content only to ambiguous constitutional text; no tradition can supersede the Constitution." He continued, "[i]n my view the Fourteenth Amendment's requirement of 'equal protection of the laws,' combined with the Thirteenth Amendment's abolition of the institution of black slavery, leaves no room for doubt that laws treating people differently because of their race are invalid." Acknowledging that the 14th Amendment is not necessarily "crystal clear on this point," he nonetheless insisted that "a tradition of unchallengedvalidity did not exist with respect to the [segregationist practices challenged] in Brown." And he emphasized that the tradition that accepted "in the 19th century the principle of 'separate-but-equal' had been vigorously opposed on constitutional grounds, litigated up to this Court, and upheld only over the dissent of one of our historically most respected Justices. See Plessy v. Ferguson (1896) (Harlan, J., dissenting)."

Scalia associated himself with Justice Harlan's argument in Plessy that the Constitution is "color-blind"—a contention Scalia had embraced expressly the year before in City of Richmond v. Croson. In Rutan, he also invoked the 13th Amendment, which helped to make "crystal clear" for him the meaning of the Equal Protection Clause. And by invoking both Harlan and the 13th Amendment, he thereby associated himself with Harlan's argument in Plessy that the amendment bans all "badges of slavery." As a logical positivist, Scalia cannot invoke the principles of the Declaration of Independence and conclude, as did Justice Thomas in Adarand Constructors v. Pena (1995), that, since "all men are created equal," racial discrimination of any kind is unconstitutional because contrary to the principles on which the Constitution is based. As a textualist, however, Scalia is able to reach the same conclusion by reading the 13th and 14th Amendments together and declaring invalid on that basis "laws treating people differently because of their race."

* * *

A Rebuttal 

by Harry V. Jaffa

Ralph Rossum writes,

What separates Professor Jaffa and me is what separated Justices Samuel Chase and James Iredell in the 1798 case of Calder v. Bull. Justice Chase insisted that 'an act of the Legislature contrary to the great first principles of the social compact cannot be considered a rightful exercise of legislative authority.' Justice Iredell responded: 'The Court cannot pronounce [such an act] to be void, merely because it is, in their judgment, contrary to the principles of natural justice. The ideas of natural justice are regulated by no fixed standard; the ablest and purest of men have differed upon the subject.'

Here is what Chase considered acts "contrary to the great first principles of the social compact": 

A law that punished a citizen for an innocent action or, in other words, for an act, which, when done, was in violation of no existing law; a law that destroyed, or impaired the lawful private contracts of citizens; a law that makes a man a judge in his own cause; or a law that takes property from A and gives it to B: It is against all reason and justice for a people to entrust a legislature with such powers; and, therefore, it cannot be presumed that they have done it.

I don't believe that Justice Iredell anymore than Justice Chase believed that the foregoing powers of government would not be by their nature tyrannical. It is therefore difficult to imagine anyone, not a tyrant, wishing to legitimate any of them. There is therefore in fact no difference between Chase and Iredell concerning the acts that Chase considered contrary to the principles of natural justice. 

Calder v. Bull involved an act by the Connecticut legislature reversing the decision of a Connecticut probate court. The question arose whether the legislature had violated the prohibition of ex post facto laws in the U.S. Constitution. The Court decided that it had not done so, because the prohibition applied only to criminal cases, not to civil cases, and this was a civil case. The decision of the Court was unanimous. Justice Chase, who had signed the Declaration of Independence, proceeded however to deliver a lecture on the principles of the Declaration, by saying in effect that powers that clearly were tyrannical could never be legitimate powers of government. Iredell responded by agreeing with this, but adding the following clarification. 

According to Iredell, it had been the policy of the American states, since the Revolution,

to define with precision the objects of the legislative power, and to restrain its exercise within marked and settled boundaries. If any act of Congress, or of the Legislature of a state, violates those constitutional provisions, it is unquestionably void…. If on the other hand the Legislature of the Union, or the Legislature of any member of the Union, shall pass a law, within the general scope of their constitutional power, the Court cannot pronounce it to be void merely because it is, in their judgment, contrary to the principles of natural justice.

We see that Iredell, no less than Chase, required that the legislature operate "within the general scope of their constitutional power." But Iredell denies that the Court has any reason to apply an additional test of whether a just and reasonable power of government has been used in what the Court considers the most just and reasonable way. Judgments of this kind are best made within the political process.

Chase and Iredell agreed that the power to pass ex post facto laws in criminal cases could never be the means to good ends, and therefore ought never to exist in any government. Iredell's last word on this, is that "Providence never can intend to promote the prosperity of any country by bad means." If this does not make him a natural law jurist, what could?

Professor Rossum further defends Justice Scalia's flawed constitutionalism on the ground that the state of constitutional scholarship is so bad that any attempt to improve it would probably make it worse. He speaks, apparently approvingly, of "Harry Jaffa's understanding of the principles of natural rights and their relation to the American Constitution." But he dismisses the aforesaid understanding, presumably because it is no more than a flyspeck on today's juridical landscape. But whatever authority such scholarship may claim is not personal, but represents the constitutionalism of Abraham Lincoln, who ought to have standing against the gabbling geese of law school professors. But Scalia, I have reason to believe, has no more regard for Lincoln's constitutionalism than for that of any of the gabbling geese. Meanwhile, the divorce between constitutional law and the Constitution grows apace.

Professor Rossum praises Justice Scalia for reaching the same conclusion as Justice Thomas in Rutan v. Republican Party of Illinois. He remarks however that "as a logical positivist Scalia cannot invoke the principles of the Declaration of Independence…as did Justice Thomas." Why not? The Declaration is not a private preserve. It is open to Scalia no less than to Thomas (as it was to Chase and Iredell) or to anyone else. It also happens to be the first of the four Organic Laws of the United States, according to the United States Code, adopted by the Congress. As such it is, as Lincoln maintained, the first of the laws of the United States and by the strictest construction of positive law, the controlling legal authority as to the meaning of the principles of the Constitution. 

That Justice Scalia sometimes reaches right conclusions from wrong premises is not, as Professor Rossum seems to suggest, a justification of wrong premises. We need to reclaim our great heritage, not lament the fate that brought us to our present crisis.