Patriot Fight Club: A Conversation with Steven Hayward

with Steven Hayward

How did key participants in Straussian fight club, especially Harry Jaffa and Walter Berns, challenge the progressive settlement of political science, the history of the American Founding, and constitutionalism? Our guide for understanding this debate will be Steven Hayward who joins this edition of Liberty Law Talk to discuss his latest book, Patriotism Is Not Enough: Harry Jaffa, Walter Berns, and the Arguments that Redefined American Conservatism.

Reader Discussion

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on February 03, 2017 at 13:56:39 pm

Mr. Heyward:

It strikes me that the difference(s) between Jaffa and Berns may be more apparent than real. This is not to argue that both of these great thinkers shared a common understanding of the importance, or better yet, role, of the Declaration of Independence in either the shaping or interpreting of our positive law; it is only to suggest that both would recognize that the DOI does indeed inform our political enterprise and our polity, albeit at different access points and at different times.
Let me try to expound upon this by first quoting from a piece by Richard Reinsch and Greg Weiner this past week at Liberty Law:
“In an address delivered on April 27, 2016, Gorsuch spoke of “the great project of Justice Scalia’s career,” namely to expound “the differences between judges and legislators.” It was ever Scalia’s intention to remind us, said Gorsuch, that
“legislators may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future. But that judges should do none of these things in a democratic society. That judges should instead strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be.””

It seems to me that Jaffa would have no problem with this assertion by Judge Gorsuch (by way of Scalia) that Judges ought to refrain from introducing “philosophical” conceptions / constructions into Constitutional adjudications. Jaffa, in both “House Divided” and “New Birth of Freedom” expounds (expands, perhaps?) upon the notion of the consent of the governed while also demonstrating, what to my mind is, an inextricable link between the philosophical / natural rights concepts of the DOI and “consent of the governed. His discussion on the *unanimity* inherent in majoritarian decisions would lead one to infer that to Jaffa’s mind a majority, freely expressed and decided, is a wholesome expression of a polity respecting natural rights and all those principles expressed in the DOI.

Yes, Jaffa also provides a rather fulsome encomium to the DOI. It is one I would not differ with in any meaningful way. Yet, we may, at times, read too much into these paeans of the DOI by Jaffa. Some of our current public intellectuals, Barnett, Epstein and even George Will, derive from this an admonition from Jaffa and other thinkers that we must therefore infuse our jurisprudence with the “spirit” of the DOI. I believe such an approach to be both wrongheaded and willfully dismissive of the intent of our Founders and the very structure they provided for our Republic. This structure was intended to provide numerous obstacles to both “factions” and majorities undermining the political expression of the principles set forth in the DOI. I will skip the detail but suffice it to say that Federalism, checks and balances and a limited delegation of authority to the government were the principal “obstacles” to abuse of liberty. Scalia was correct when he asserted that there were no philosophical concepts in the Constitution. There were, however, philosophical *constructs* embedded within by the craftsmen tasked with creating the document.

This difference between *concepts* and *constructs* may provide some insight into how we ought to, and how perhaps Jaffa and Berns, may be said to be closer than is apparent.
Given a political association that provides universal suffrage (at least today) to the citizenry and a political culture defined / prescribed by the *truths* of the DOI, is it not to be anticipated that the *truths* of the DOI would be expressed both by the electorate, having been educated in the proper civic virtues (see most of the founders on need for “virtue” in the citizenry), and their Representatives at the seat of power.

It is here, I believe, that both the Founders and Jaffa and Berns would admit of the need for the DOI to *inform* political decision making. Clearly, we would all recognize that werew the DOI NOT to inform our political association that we would be something other than what the founders attempted to establish. Neither Jaffa nor Berns would not find this objectionable, I think. The failure of the political association to incorporate the DOI would reduce us to an association of pure majoritarian conceit – positivism run wild.
As Gorsuch(and Reinsch / Weiner in other pieces) argues, it is the role of the Legislative to incorporate, to the best of their understanding and ability, the moral concepts / precepts / practices that are derivative from the *truths* of the DOI. When the Legislative acts in this *moral* fashion, it is not, contrary to some thinkers, acting beyond its properly delegated bounds nor may it be said to be governing without consent of the governed. The Legislative Representative may always be removed given some measure of virtue / awareness in the citizenry.

Yet, the Legislative may err, may exceed its authority (clearly post Wickard v. Filburn, it has) and as a consequence thereof infringe upon the liberty of the citizenry.
What is to be done? And where does the DOI fit in.
Judicial Review is “to be done.” Yet, the DOI is *not* to be used to overturn any expression of positive law duly enacted by the Legislative. Simply put, it is the express duty of the Legislative to make all moral decisions and determinations, outside of those reserved for certain religious institutions) NOT the Judiciary. Moreover, and as it is the implied responsibility of the Legislative to make the moral determination of the polity AND that the methods, reasonings and expected outcomes of all of the Legislative members may not be ascertained with any certainty any attempt by the Judiciary to “divine” the intent of the Legislative, specifically: how were the Legislators *informed* by the DOI, will be unsuccessful.

If the Legislative may not be said to possess an ability to adequately and uniformly make expression of the DOI’s import on their deliberations or legislation, how can it be said that that body / Department once removed from the actual deliberations would be better able to employ the DOI to make sense of the same legislation. It cannot!
Additionally, any attempt by the Judiciary to employ the DOI, or God forbid, foreign political / philosophical constructs, leads to a freewheeling jurisprudence determined by a rather small majority of five Justices. I do not believe that Jaffa would find a majority of 5 of 9 sufficient for his concept of “implied unanimity.” Nor would Berns for that matter.
It is here where we find the Barnetts, Epsteins and the “engagers” embarking on a somewhat familiar journey. It is a journey whose pathways have been paved by the Progressives and the utopians of the past century – the “Road to Universal Rights and Happiness.” Of course, both use the DOI as the engine for their rather expansionist vision of the now highly *elastic* constitution. Rights – of course, there are Rights and they are endless under the new conception. Their exposition on the “implied” or substabntive rights of the 14th Amendment are ultimately predicated upon a DOI that also has been determined to be highly elastic. – and the Judicial Department has been an all too willing co-conspirator.

Better that Judges apply their powers of reasoning to the text of the document. Brilliant as they may appear to be, it is not at all probable that they may infer all of the various “intentions’ of either the Legislators (some 455), those Legislators understandings of the DOI, or even of the Founders conceptions of the DOI.

Jaffa was right when he asserted that Judges always bring a bias / ideology to their deliberations. That is a statement of fact. Their task, however, is to read the law, interpret the law and to do so without political / ideological / philosophical preconceptions.

I think both Jaffa and Berns would agree that the Judiciary need not be *informed* by the DOI – only the Legislative.

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