Editor’s Note: This review of Harry V. Jaffa’s Storm Over the Constitution was originally published in the November 22, 1999, issue of National Review.
Harry Jaffa’s latest book is the work of a man clearly in love with the American idea. In the preface to this slim but fascinating volume, Larry P. Arnn summarizes Jaffa’s central insight this way: “We believe that American conservatism has something special to conserve. That something is formed around the Declaration of Independence.”
The book more than justifies the claim that the Declaration is central to an understanding of American values in general, and of American conservatism in particular. It consists of Jaffa’s controversial essays — aimed chiefly at Judge Robert Bork — on how, specifically, the values of the Declaration are to be respected in the process of jurisprudence. Are the values expressed in the Declaration to be incorporated into the Constitution and treated as law? Or are they simply too vague, reflecting personal opinions that may be true but are unenforceable in the courts?
This issue has generated a great deal of debate, and more than a little anger. If you asked the debaters, they would probably say that the value of Jaffa’s book — indeed of his entire body of work — rests entirely on which side is right. This reviewer sides with Jaffa, chiefly on the grounds that 1) the Founding Fathers lived in a culture in which the principles of the Declaration were intellectually central, and 2) it is therefore reasonable to take these principles into account when trying to establish the Founders’ original intent. But leaving that question aside, it remains true that Storm Over the Constitution lays out an intellectual banquet. It is an important achievement, even aside from the legal point at issue.
One learns here, for example, in a very succinct way, about the specific genius of the Constitution, its combination of democracy and restraint, of majority rule and minority rights. Jaffa quotes James Madison as saying that an elected Congress should be allowed to do only those things “that could be rightfully done by the unanimous concurrence of the members.” This distinction goes to the heart of America’s moral order. If a course of action is morally wrong, the fact that 50 percent plus one of voters, or even 100 percent of voters, favor it does not make the action right; it merely makes the action possible.
Madison was saying that right can never reside purely in might. The constitutional safeguards the Founders wrote into their document were intended to limit the power, in the nascent democracy, of might to oppress right. But this mechanism could not be self-enforcing; as its success depended largely on a moral understanding of right, a high level of virtue among the citizenry was essential to its functioning. Jaffa believes that this virtue can best be assured by a cultivation — in the process of jurisprudence — of respect for life, liberty, and the pursuit of happiness. While Jaffa’s critics disagree with him on the question of whether these principles of natural morality should be treated as enforceable law, they would agree with him that these principles are nonetheless an essential underpinning of civic order.
Jaffa also quotes Thomas Jefferson as calling the Declaration of Independence “an expression of the American mind.” Exactly correct. No matter whether the Declaration is a binding expression of our country’s law, it is without doubt the highest expression of its mind. Americans have fought willingly for the freedom of individuals, and for their human rights, not because an act of Congress or a Supreme Court decision commanded them to do so, but because our national character is receptive to certain truths about the human person, truths enunciated by reason as well as revelation.
One of the best passages of the book is the author’s discussion of this philosophical basis of human rights. In a section he refers to as “Aristotle for lawyers,” but that could just as well be called “Aristotle for laymen,” Jaffa lays out the specific distinctiveness of humanity — what gives us rights that other animals lack. Human beings, he says, are different because their capacities are not limited to the physical; they can transcend the physical through the process of reason. When Aristotle defines man as a rational animal, he is addressing not merely what makes human beings different from lower animals, but what unites human beings in the realm of a sacred common value.
Jaffa makes a strong case, but it would be even stronger if not for the book’s conspicuous fault — the author’s tendency to engage in too many personal animadversions against his critics. Many readers will find these comments entertaining, but others will find them distracting. To Jaffa’s credit, however, in the final 40 pages of the book he reprints — in their entirety — two important attacks on his position.
Storm Over the Constitution is, again, very much of a piece with Jaffa’s career as an exponent of the philosophy of human rights. His most famous book, Crisis of the House Divided (1959), analyzes the principles at issue in the Lincoln–Douglas debates. Lincoln believed that slavery was very much a wrong, and it is a sign of Lincoln’s greatness that this issue is no longer debated. We, as Americans, know that slavery is wrong. But while we know that this is true, Jaffa attempts to understand precisely why it is true.
Jaffa, renowned political philosopher that he is, is perhaps best known to political junkies as the author of the most famous line in Barry Goldwater’s 1964 acceptance speech: “Extremism in the defense of liberty is no vice. . . . Moderation in the pursuit of justice is no virtue.” While philosophers have raised important objections to this phrasing, as a political call to arms it is almost unparalleled. It strikes a chord deep in the American heart. The existence of America says to the whole world that every human person has rights, and that when these rights are respected — when liberty and justice prosper — the human person flourishes. An important truth, and the lodestar of Harry Jaffa’s life.
Mike Potemra was the literary editor of National Review.