Jaffa - Storm Over the Constitution

Lino A. Graglia

Harry Jaffa has long engaged in a campaign of vilification against Robert Bork and Chief Justice William Rehnquist, a campaign I consider both sad and shabby. It is sad because he is attacking people who are on my and, he says, his side of the basic issue of constitutional lawthe issue of the proper role of the Supreme Court in our system of government. One must expect attacks on Bork and Rehnquist from Ronald Dworkin, Bruce Ackerman, and Larry Tribe, and one can derive satisfaction from refuting them. But Jaffa is a hard-core political conservative; he was an advisor to Senator Barry Goldwater at a time when the name Goldwater was a liberal epithet. Indeed, he claims to be responsible for the famous slogan about extremism in defense of liberty being no vice, a stroke of genius that surely cost Goldwater whatever slim chance he ever had of winning the election. More important for present purposes, he is also, he tells us, a judicial conservative, a staunch foe of the judicial activism of the last forty years that has served to make the Supreme Court the enacting arm of the ACLUs political agenda. There is no pleasure for me in disagreeing with a man who opposes government by judges.

But if Jaffa is opposed to judicial activism, why does he devote his time and energy to reviling its two most prominent and effective opponents in the past half-centuryjoined now by justices Scalia and Thomasexcepting possibly only Learned Hand? How is the public interest served by that? And reviled them he has. His campaign against them has been shabby because he has attacked them not as a friendly critic or a disinterested scholar, but personally, bitterly, and arrogantly. Jaffa tells us that Bork no doubt in his own mind... has taken on something of the status of a martyred saint of conservatism, a statement for which he has not the slightest basis.

Senator Hatchs support of Bork, Jaffa says, has the tone of triumphant martyrology. Surely hyperbole can go no further, he sneers, than for Senator Hatch to compare Borks prose to Churchills, something that Senator Hatch has not done. Judge Borks critics, Jaffa tells us, had reason to persuade the public that he really has no principles. Bork, Jaffa says, engages in the most shameless expurgating and bowdlerizing of the Constitutions text and his mental confusion... is boundless. Jaffa substitutes arrogance for argument, as when he says It is embarrassing to have to instruct Judge Bork in... the simplest elements of the political philosophy of the American Founding. Chief Justice Rehnquist is not the subject of these pieces, but Jaffa cannot resist a passing contemptuous reference to him as that fountain of authority.

What sins can Bork and Rehnquist have possibly committed in Jaffas eyes to deserve such contempt? Which of Borks many decisions as a court of appeals judge or of Rehnquists many more on the Supreme Court does Jaffa consider acts of judicial misbehavior or does he even disagree with? As far as I can tell, there are none. I could fault Bork and Rehnquistas well as Scalia, Thomas, and even Handas rather too activist for my taste, too ready to hold laws unconstitutional, but that is not Jaffas complaint. How, then, have Bork and Rehnquist offended him? It happens that Harry Jaffas principal contribution to constitutional scholarship and political theory is his peculiar notion, following Abraham Lincoln, that the Constitution incorporates the Declaration of Independence. He considers this the most crucial and incisive insight in the history of American constitutional theory and political science, and he is enraged that Bork and Rehnquist have failed to appreciate his insight.