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Mark Pulliam Responds to George Will
Michael Ramsey

At Law and Liberty, Mark Pulliam, George Will’s Libertarian Turn.  From the introduction:

As flattered as I was to attract George Will’s attention—in his 4th of July column, no less—being criticized by a Pulitzer Prize-winning essayist left me somewhat perplexed, for several reasons. Allow me to explain. First, although I have engaged Will directly in the past, he used his nationally-syndicated column to take issue with something I had written in response to someone else—specifically, Ed Erler (a disciple of Harry Jaffa) regarding Robert Bork’s view of the Constitution. My disagreement with Erler centered on whether (as Jaffa contended) the Declaration of Independence infuses the Constitution with transcendent principles of “natural rights” or “natural law” that judges must enforce to limit the actions of representative government. 

On this question, I agree with Bork that the Declaration has little or no relevance as a guide to constitutional interpretation. In our system of dual sovereignty, the U.S. Constitution is a social compact at the federal level, supplementing—but not replacing—the states and their state constitutions; the Declaration, in contrast, was simply a proclamation of independence from Great Britain—an ordinance of secession. “Originalists” construe the Constitution based on the original public meaning of the Constitution itself. How was the Constitution understood to those who drafted it and ratified it? Will’s argument that the “true meaning” of the Constitution must be found in the Declaration is both counter-intuitive and non-originalist. 

Second, Will’s joining forces with Erler/Jaffa concerning the Declaration as a fount of natural rights is highly ironic because the theory Jaffa midwifed leads in two diametrically opposite directions: Erler/Jaffa construe “the Laws of Nature and of Nature’s God” referenced in the Declaration as embodying fixed and immutable principles of 18th century morality—forbidding, for example, the legalization of abortion or the validation of same-sex marriage, even by legislation. Will, by contrast, adopts the libertarian theory of natural law (advanced by Timothy Sandefur in The Conscience of the Constitution, among others) that confers on all citizens the unenumerated right to be free from majoritarian interference—that is, laws enacted through democratic self-rule. (The Sandefur theory looks suspiciously like a Randian state of nature, not the popular sovereignty—“consent of the governed”—demanded by the Founders.) 

In other words, the same principles of “natural law” either compel or prohibit abortion rights and gay marriage (to cite just two examples). So much for the Declaration serving as a useful guide to constitutional interpretation! ...

And in conclusion:

As a conservative, I must say that I find Will circa 1982 far more persuasive than the 2019 iteration. The “balancing of competing values” is called politics, and is expressed by representative self-government—elections, legislation, and other manifestations of a democratic republic. 

At some point, Will lost faith in these institutions, and has chosen to take refuge instead in the theory of “judicial engagement,” essentially government by what Learned Hand called “a bevy of Platonic Guardians.” Even a public intellectual is entitled to change his mind, but in Will’s case he has made an abrupt U-turn rather than a slight course correction. Will now enthusiastically embraces positions he once publicly—and thoughtfully—abhorred. By quarreling with me, Will is really arguing with himself. He was, I submit, right the first time.