Professor Michael Uhlmann has given us a devastating indictment of mainstream Supreme Court jurisprudence over the last century, with particular reference to the last half century. He brings under fire the claim of the Court (and its partisans) to supremacy in constitutional interpretation (“The Supreme Court vs. the Constitution of the United States,” Summer 2006). Still more, he brings under fire the Court’s decisions on a wide range of topics, especially in the field of free speech and religion. As a result of those decisions, “pornography runs free while religion is increasingly treated as a toxic presence in the public square.”

“Specifically,” he writes, “the Court has converted the 14th Amendment into a free-roaming license to second-guess state regulations it doesn’t like. It has endowed the Due Process and Equal Protection Clauses of that amendment with new substantive content and applied virtually all of the Bill of Rights against the states….” Uhlmann’s indictment of liberal activist jurisprudence is a lengthy one, but familiar to anyone who in recent years has attended any conclave of conservative jurists, especially those associated with the Federalist Society. Among the aforesaid jurists is law professor Lino Graglia, of the University of Texas, who has often asserted—with much truth—that there have been no victories for conservative principles in the Supreme Court in the last half century or more, and that any so-called victories have been at best only delaying actions in the onward march of liberal judicial activism. Why then, we must ask, with such cogent indictments of Supreme Court jurisprudence as those of Professors Uhlmann and Graglia—not to mention William Rehnquist, Antonin Scalia, and Robert Bork, inter alia—is “our side” always the losing side? According to Uhlmann, Johnathan O’Neill, “in his splendid Originalism in American Law and Politics…[finds that] modern judicial review is ‘rooted in the revolt against formalism,’ a revolt inspired…by philosophical pragmatism, legal positivism, Darwinian theory, and Progressive Reformism.” According to Uhlmann, this revolt captured the mind of the most influential jurist of the 20th century, Oliver Wendell Holmes, Jr.

To this thoroughgoing Darwinian, law…was best understood as an instrument of almost infinite plasticity; it must be capable of adjusting itself to the ‘felt necessities of the times….’ In due course, Holmes’s formula, adjusted and refined from time to time by his successors, established the foundation for modern judicial review: deference to legislatures on most matters of economic and social welfare, but judicial supremacy on almost everything else, especially when it came to defining the rules of the game. Although the term had not yet come into common usage during Holmes’s time, the idea of the ‘living Constitution’ may be his most enduring monument.

There is paradox and irony in this characterization of Holmes’s legacy. Strangely, Uhlmann does not tell us how the idea of a “living Constitution” came into common usage. The inspiration certainly came from Holmes’s thoroughgoing Darwinianism. In the last half century it became the trademark of the movement led by Justice William Brennan, widely embraced by his many and illustrious followers. But it has also gained notoriety from the title of perhaps the most influential essay in conservative jurisprudence in living memory, the late William Rehnquist’s 1976 lecture at the University of Texas Law School, “On the Notion of a Living Constitution.” Rehnquist, who proclaimed himself an unqualified admirer and disciple of Holmes, made his own greatest mark upon constitutional jurisprudence in attacking what Uhlmann calls Holmes’s “most enduring monument.” Uhlmann’s review is remarkable in ignoring the fact that both the advocates and the opponents of the “Notion of a Living Constitution” are followers of Holmes. He therefore also ignores the possibility that the intensity of the present crisis of the Constitution arises from the fact that both sides—apparently without knowing it—have the same ultimate principles. Here we have another example of sectarians—in this case blind sectarians—of the same faith, waging war upon each other. This silent paradox may tell us more about the contemporary crisis of the Constitution than anything openly stated.

Rehnquist’s discourse on the idea of the living Constitution is explicit in its unquestioning acceptance of the fact/value distinction, which is the reigning epistemology in behavioral social science. I say reigning epistemology, notwithstanding the fact that Leo Strauss’s critique in Natural Right and History destroyed any credibility it might have had in any intelligent mind. This is the dogma that holds that all moral judgments are “value judgments,” and that there is no rational way of deciding among contending and conflicting “values.” From Rehnquist’s perspective the case for democracy seems to rest on the idea that majority rule is a rational way of resolving the differences of conflicting values. In fact, of course, majority rule is itself a value judgment that has no more claim to rationality than any other value judgment. The true rationality of majority rule—freed from the incubus of the fact/value distinction—depends upon the doctrine of individual rights which are prior to, and apart from, the rule of the majority. This doctrine, embodied in the Declaration of Independence, is the originating source of American constitutionalism. According to this original originalism, embraced by those who framed and ratified the Constitution, the purpose of legitimate government is to decide how best—not whether—to secure mankind’s natural rights, e.g., of life, liberty, property, and the pursuit of happiness. Moreover, the framers and ratifiers of our Constitution had no more urgent concern than to prevent the tyranny of the majority. Calling a doctrine that ignores this concern “originalism” contradicts the very meaning of the original Constitution.

In his essay Rehnquist rebukes those who ignore

the nature of political value judgments in a democratic society. If such a 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 by a people.

Uhlmann had called it Holmes’s “principal mission…to sever legal thought from moral encrustations…[and from] conceptions of objective moral principles, natural law, and natural rights….” We see that Rehnquist is here faithful in the last degree to this mission. Safeguards for individual liberty are said not to have “any intrinsic worth,” and not to have any origins in “someone’s idea of natural justice.” The latter eliminates entirely the doctrine of individual rights, embodied in the “laws of nature and of nature’s God” cited in the Declaration of Independence, and featured in what Jefferson called “the American mind.” But how in the world can this elimination of the mind of the founders be called a jurisprudence of original intent?

Rehnquist says that safeguards for individual liberty “take on” moral rightness and goodness, only because they have been adopted by a people. The precepts of morality have then no objective existence, and no standing in constitutional jurisprudence; they result only from so-called value judgments, which themselves are said to have no standing in reason. Hence there is no morality inherent in the safeguards of liberty themselves. But the Constitution of 1787 also had within itself massive safeguards for slavery. On Rehnquist’s premises both the safeguards of liberty and of slavery must have taken on the identical moral rightness and goodness, as they were incorporated into the same Constitution by the same people at the same time. It happens that the foregoing was the core of the Southern defense in 1860-61 of a constitutional right of secession. The secessionists asserted, correctly, that the clauses of the Constitution, as originally ratified, made no discrimination between the safeguards of liberty and of slavery. The election, they said, of a president who insisted that slavery was morally wrong, and whose policy was to end the extension of slavery, confining slavery to the existing slave states, represented an abrogation of the contract implicit in the ratification process. Rehnquist’s originalism is in complete harmony with Southern secessionism.

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We can now understand why conservative Holmesians have been in steady retreat before the liberal Holmesians. The moral relativism of the liberals has been in the interest of an ostensibly higher morality than that enshrined in the original Constitution. The original Constitution, seen by the liberals as favorable to the alleged barbarism of capital punishment, as well as of slavery, can hardly claim to have a moral foundation. The liberals’ living Constitution takes its bearing from its distance from both slavery and capital punishment. Their true Constitution is the one born of the Civil War amendments. The unamended original Constitution must now be reinterpreted in agreement with the aforesaid amendments, and especially the equal protection and due process clauses of the 14th amendment. These clauses are understood now to embody the morality of modern and postmodern liberalism. They constitute a license to roam wholesale across the field of public policy, and are represented as the true alternative to a jurisprudence of original intent rooted in a reactionary past.

Rehnquist’s break with the thought of the founders was complete, but it has also passed into the common coin of judicial conservatism, as is illustrated by the following remark from Justice Scalia’s famous Rome interview in 1996:

[Y]ou either agree with democratic theory or you do not. But you cannot have democratic theory and then say, but what about the minority? The minority loses, except to the extent that the majority, in its document of government, has agreed to accord the minority rights.

And again:

Once you adopt democratic theory…you accept the proposition [that]…If the people…want abortion the state should permit abortion. If the people do not want it, the state should be able to prohibit it.

If in the last of these quotations you substituted “popular sovereignty” for “democratic theory” and “slavery” for “abortion,” you might be citing Stephen A. Douglas in his debates with Abraham Lincoln. Lincoln replied that if slavery was wrong, there can be no right in the people to choose what was wrong. Lincoln, like Jefferson, did not believe that the people (or a majority of the people) made the moral law, but that the moral law made the people.

Rehnquist and Scalia, and their school, see majority rule, emancipated from any anterior moral restraint, as the authority for constitutionalism. This is the essence of the state rights argument that dominated the antebellum debate, and which flourished again in the post-Reconstruction era, and justified Jim Crow as it had earlier justified slavery. It does not take a rocket scientist to see why this school is losing, and why it deserves to lose in the ongoing debate.

We must ask therefore what it is that can defeat the apparently irresistible advance of the liberals’ living Constitution? Certainly not the originalism of Rehnquist and Scalia. Yet the answer is not difficult to find. The Republican party platform of 1860, upon which Abraham Lincoln was elected president, and which expressed his own deepest convictions, declared, “[t]hat the maintenance of the principles promulgated in the Declaration of Independence and embodied in the Federal Constitution…is essential to the preservation of our republican institutions….” In many speeches, Lincoln explained that the pro-slavery clauses in the 1787 Constitution represented “necessities” imposed upon the framers, if the Constitution was to be ratified. They represented a necessary evil, but also a lesser evil. If the Constitution had not been ratified—and the margin of victory was narrow indeed—the position of slavery would have been far stronger. Only the “more perfect Union” of 1787 created the kind of government that could meet the crisis over slavery, as Lincoln’s government did in 1861-1865. Of all this, O’Neill’s book, so lauded by Uhlmann, says nothing.

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Nothing is more shocking than the steadfast refusal of the originalists we have cited to admit that the Declaration of Independence has any role whatever to play in constitutional jurisprudence. In The Tempting of America (1990), Robert Bork asserts that “substantive due process” is the device by which judges write their personal preferences into law. This device, he says, entered constitutional jurisprudence in Chief Justice Taney’s opinion in Dred Scott. In that opinion, said Bork, Taney invented a right to own slaves that was “nowhere in the Constitution.” This would be a most astonishing statement had it been made by a high school student, who would be flunked in a civics class for making it. Yet it comes from someone widely regarded as a hero of conservative constitutionalism.

Let us then review briefly the leading provisions of the Constitution of 1787 favorable to slavery. Article I, section 2, declares what shall be the federal numbers for representation in the House and in the Electoral College. These shall consist of “the whole number of free persons…and…three fifths of all other persons.” That the “other persons” were not free, that is, that they were slaves, can hardly be doubted. The slaves however added to the political power of their owners, against the interests of the slaves themselves. In 1860 there were 4 million slaves, who added 2.8 million to the slave states representation in the House and in the Electoral College.

Article I, section 9 says that “The migration or importation of such persons as any of the states now existing shall think proper to admit shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight…” This forbade the prohibition for 20 years of the infamous African slave trade, whose horrors rivaled Hitler’s death camps, or Stalin’s gulag. Notwithstanding the fact that Congress banned the foreign slave trade in 1808, and made it punishable by death in 1820, it never actually ended before the Civil War. The only warrant for the execution of a slave trader was signed by Abraham Lincoln.

The third great pillar of slavery in the antebellum Constitution was the fugitive slave clause in Article IV. “No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.” The “shall be delivered up” is imperative, and makes it an unequivocal duty.

How can Bork say that Taney had invented a right that was “nowhere in the Constitution”? If Bork had actually read Taney’s opinion, he would have seen that Taney invoked the second and third of the foregoing clauses. What was it that induced Bork to commit what in sports would be called a flagrant foul? O’Neill has an entire chapter on Bork, but neither he nor Uhlmann makes any mention of it. It seems to me that there are only two possible explanations for this bizarre behavior. Either Bork had never read the Constitution or Taney’s opinion, or he thought that by concealing the truth about the place of slavery in the original Constitution, he could avoid any necessity to justify it. Both of these explanations are indefensible.

An originalism that is capable of meeting and defeating the army of the living Constitution must take its bearings from the distinction between the compromises of the Constitution and the principles of the Constitution. And the principles must be sought in the Declaration of Independence. What is common to Rehnquist, Scalia, and their hosts of followers, is a resolute determination to exclude the Declaration from any role whatever in constitutional interpretation. There is moreover no mention, either in O’Neill’s book or Uhlmann’s review, that the Declaration of Independence is the first of the four Organic Laws of the United States, as they are set forth in the United States Code, the official register of the laws of the United States, adopted by the Congress of the United States. Although the Declaration is to be read primarily as a document of the natural law, it is also the first (or original) of the positive laws of the United States.

To his credit, Uhlmann ends his treatment of O’Neill with these remarkable observations:

At the end of the day, words in a legal text, without more, cannot carry the philosophical weight that originalists place upon them. It is one thing to point out, as originalists do most effectively, that such-and-such a phrase had, and was meant to have, a particular, relatively fixed meaning at the time of its adoption. Persuading others that the identified meaning has, or should have, binding effect in our own day is another argument altogether. Ultimately, that argument must rest on the reaffirmation of the enduring, self-evident truths that must undergird the case for limited government, that is, on premises that are not explicitly identified in the constitutional text itself. A true originalism, in short, must look beyond the Constitution to justify the ground of its intellectual authority.

Uhlmann is saying no more than I, in common with Abraham Lincoln and the Republican Party of 1860, have all along maintained. This however is what O’Neill’s book, which he so lavishly praises, conspicuously does not say. Only at the very end, and with infinite caution, does Uhlmann point us back to the principles of the Declaration, and thus to conservatism’s mission to restore those principles to their original and paramount role in our path to glory.

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Michael M. Uhlmann responds:

In replying to Professor Jaffa, I find myself in the company of William F. Buckley, Jr., who once wrote, “If you think Harry Jaffa is hard to argue with, try agreeing with him.” Here, I am faulted not for what I wrote, which Professor Jaffa generally agrees with, but for failing to write the kind of review Professor Jaffa thinks should have been written. His beef is not with me but with Robert Bork, Antonin Scalia, and the late William Rehnquist. Jaffa is right that all three, to the extent they reject the teaching of the Declaration, undercut the metaphysical ground of their professed originalism. Each has nevertheless made significant contributions to public life, and for that we should be grateful.

The world would undoubtedly be a better place if federal judges were sympathetic to Abraham Lincoln’s arguments about natural right and the American Founding, but it is not at all clear how that understanding would alter their daily life on the bench or 99.9% of their opinions. Conceding the intellectual deficiencies noted by Prof. Jaffa, I would ask him if there is any opinion handed down by Rehnquist, Scalia, or Bork that he would have rendered differently based on his understanding of the Declaration? And how comfortable would he be vesting modern judges with the authority to interpret the meaning, say, of “the pursuit of happiness”?