« A Response to Mike Rappaport on the Ninth Amendment
Andrew Hyman
| Main | Jud Campbell: Compelled Subsidies and Original Meaning
Michael Ramsey »

04/19/2019

Mark Pulliam on Harry Jaffa
Michael Ramsey

At Misrule of Law, Mark Pulliam: “Bad Originalism”: Harry Jaffa’s Toxic Constitutional Legacy (commenting -- very harshly,m as the title indicates -- on the "Claremont school" of originalism associated with the late Harry Jaffa).  From the introduction:

My recent exchange (hereherehereherehere, and here) with a disciple of the late Harry V. Jaffa, the vituperative political philosopher long associated with Claremont McKenna College, prompted me to explore in greater detail Jaffa’s many feuds with leading conservative figures, such as Chief Justice William Rehnquist, Associate Justice Antonin Scalia, former Attorney General Ed Meese, Judge Robert Bork, law professor Lino Graglia, and noted constitutional litigator Chuck Cooper of the law firm Cooper & Kirk (who clerked for Rehnquist and served in the Department of Justice under President Reagan)—all of whom he harshly condemned. [1] These feuds were pursued for the most part in the pre-digital age, and cannot easily be accessed in detail via the Internet. Accordingly, I recently obtained a copy of a 1999 compilation of Jaffa’s essays on the Constitution, Storm Over the Constitution, that is a fascinating summary of his eccentric views. Storm Over the Constitution features a Preface by Larry P. Arnn, an Introduction by Edward J. Erler, and essays by Graglia and Cooper (reprinted from elsewhere).   

Here are some highlights...

And from later on: 

Jaffa’s disciples, such as Edward Erler, continue this misguided campaign. Erler concursthat any legal arrangement other than traditional marriage—between one man and one woman—is constitutionally forbidden. Thus, not only is Obergefell wrong, but in the view of Jaffa and Erler courts should strike down any democratically-enacted recognition of same-sex marriage as contrary to “natural law.” Erler is emphatic on this point:

There is no doubt that the family is integral to the foundation of free society. But does that include all types of family structure? Polygamy? Same sex? Polyamory? Or is it simply a matter of indifference to be left to the conscience of the community (whatever that is)? Natural law or natural right easily answers that question: marriage is between a man and a woman; the family begins with the distinction between the sexes. Community conscience cannot be the standard because the conscience of the community is ever evolving whereas the principles that brought us our Constitution are permanent….

In other words, voters and elected officials are bound by the Jaffa camp’s conception of “permanent” natural law, and can never change the Constitution to deviate from Jaffa’s moral agenda, even by amendment or the unanimous consent of the polity. As Erler says, “Natural law placed moral limits on the majority—the majority, for example, could not approve anything that violated the laws of nature.”