Patriotism Is Not Enough: Harry Jaffa, Walter Berns, and the Arguments That Redefined American Conservatism by Steven F. Hayward

Author:Steven F. Hayward [Hayward, Steven F.]
Language: eng
Format: epub
Tags: Philosophy, United States, Political Ideologies, Civics & Citizenship, Political Science, History, Conservatism & Liberalism, Political, General
ISBN: 9781594038846
Google: 9SohDgAAQBAJ
Publisher: Encounter Books
Published: 2017-02-21T12:00:48+00:00

 CHAPTER 7

How to Think about the Constitution

Two Views

[H]ow one understands the Constitution will depend utterly upon principles, not stated in the Constitution, that one brings to bear upon its interpretation. And it will be those principles, not the Constitution itself, that determine the nature of the Union.

HARRY JAFFA, 2000

The rule has not yet been formulated that will decide for the judge when he must trust and when he must distrust the majority. For, as a matter of fact, some judges are to be trusted and others not.

WALTER BERNS, 1957

 One day in the early 1970s, before they started feuding by letter and in print, Jaffa and Berns were walking down the street together in Claremont when Berns was visiting on a lecture tour, and Berns remarked that the opening of the Declaration of Independence was one of the best things ever written but the ending was one of the worst. “And the fight was on,” one witness recalled.

The substantive difference between Jaffa and Berns might be reduced to which single term in the Declaration each man emphasized as the most important. For Jaffa, the key word is equal (“all men are created equal”); for Berns, it is secure (“to secure these rights, governments are instituted among Men”). It is tempting to paraphrase Lincoln’s famous letter to Alexander Stephens about slavery, that “this is the only substantial difference between us.”1

Berns’s argument is simple and straightforward: natural rights aren’t worth a darn thing without a government to secure them. A strong but decent government transforms natural rights into civil rights by a supreme act of positive law—in our case, the Constitution. This is the voice of Hobbes speaking, as modified and domesticated by Locke. The basic social compact involves individuals surrendering the enforcement of their natural rights (starting especially with the first one—the right of self-preservation) so that paradoxically they will be more secure. George Washington states the theory succinctly in his letter of transmittal for the draft Constitution on the last day of the Philadelphia convention in 1787:

Individuals entering into society, must give up a share of liberty to preserve the rest. The magnitude of the sacrifice must depend as well on situation and circumstances, as on the object to be obtained. It is at all times difficult to draw with precision the line between those rights which must be surrendered, and those which may be reserved.2

This difference of emphasis might seem slight, but, for Berns and many others, it affects our understanding of the original intent of the Constitution, and therefore our jurisprudence. Berns and many other eminent thinkers—Robert Bork was the most prominent—believe it to be a mistake to try to apply natural rights and natural law ideas in jurisprudence, while Jaffa and several of his allies think it is essential. While Jaffa, following Lincoln, sees the Declaration as the solid center of gravity in American political thought, Berns and others think the Constitution, while informed by the Declaration, is a sturdier center of gravity for American political thought. As Thomas G.

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