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et revelabitur quasi aqua iudicium et iustitia quasi torrens fortis


The Deepening Crisis

By Harry V. Jaffa

Remarks delivered at The Claremont Institute's
3rd Annual Lincoln Day Colloquium
February 9, 1999
Mayflower Hotel
Washington, D.C.


Last year, at the Second Lincoln Day Colloquium of the Claremont Institute, I gave my "False Prophets of Conservatism" lecture. In it I had the pleasure of quoting Pope John Paul, celebrating the self-evident moral truths of the American Founding, and calling for a renewal of those truths in the souls of the American people. Like Abraham Lincoln at Gettysburg, the Pope called for "a new birth of freedom."

The Pope knew, as any wise man must know, that the pathology of our public life is to be found above all in the alienation of the American mindconservative no less than liberalfrom the principles of the Founding. In his inaugural address as President, George Washington said that

the foundations of our national policy will be laid in the pure and immutable principles of private morality, and the preeminence of free government be exemplified by all the attributes which can win the affections of its citizens and command the respect of the worldsince there is no truth more thoroughly established than that there exists in the economy and course of nature an indissoluble union between virtue and happiness

Not his most rabid defenders would suggest that William Jefferson Clinton had pursued happiness in its union with virtue, or that he had sought the foundation of national policy in the immutable principles of private morality. I believe it to be true nonetheless, that the root of all the social pathologies that afflict us is the progressive dissolution of the marriage based family. There is no time now for statistics, and you will all have been exposed to them many times. Here however are two anecdotes, from opposite ends of the socio-economic spectrum. A sexually active thirteen year old girl, from a gang and drug infested central city, is told that she should be married, before engaging in such activity. "Whats married?" she asked. A high school senior in a wealthy Atlanta suburb complains of being an outsider, since she is the only one in her class whose parents are not divorced!

I do not think that there is any perfection of public policy by government at any level, that can repair the damage done by the examples of personal immorality of those in high office. What parent in a traditional family would today fire his childs ambition by saying that he or she might grow up to be president? Of all the vileness in the testimony surrounding the impeachment of President Clinton, most revealing, in my opinion, was the fact that, after being serviced by her several times, he didnt know Monica Lewinskys name. His sexual activity was as impersonal at that of a tomcat. Also, he told her that he had had at least a hundred affairs before he was forty. Clinton is a flower child of the 1960s, in revolt against "bourgeois" morality. While fornication and adultery have not been hitherto unknown in high places, never before in our history has it been carried to such lengths of public shamelessness. We have reached a state in which hypocrisythe tribute that vice pays to virtuemay be the most we can hope for.

The revolt against morality in the 60s was itself the consequence of deep and powerful trends in modern thought. For Karl Marx, morality was nothing but an arbitrary deprivation of pleasure, imposed upon the poor by the rich. His communist utopia would be a return to the Garden of Eden, but this time with no forbidden fruit! In the last century, these trendsof which Marxism is only onehave had their home in the universities, but their effect has spread remorselessly to all our elites, in law, business, the media, and politics. From them it has spread downward and outward throughout society. Moral relativism has in fact dominated scholarship in higher education for many generations. Carl Beckers The Declaration of Independence, published in 1922, was and remains, the best single book on that document which, more than any other, expresses the moral foundation of free government. In it Becker said that "to ask whether the natural rights philosophy of the Declaration of Independence is true or false, is essentially a meaningless question." It was clear that for Becker, as for his friend and colleague George Sabine, all questions of moral choice were "values," and as such were essentially non-rational. Hence to ask whether slavery was just or unjustor whether the Civil War, or any other war, was just or unjustwas essentially a meaningless question. Becker himself was an admirer of Lincoln, and shared Lincolns condemnation of slavery. But he thought of himself as sharing Lincolns non-rational value judgment. He knew of course that Lincoln himself believed that the Declaration had incorporated "an abstract truth, applicable to all men and all times." He knew that Lincoln believed that slavery was condemned by this truth, and that men and nations were bound by obligations arising from it. But Becker did not believe that there was such a truth. Lincoln, he thought, belonged to an earlier and less sophisticated age, and had unwittingly expressed his value judgments in the idiom of his time.

Becker was a gentleman as well as a scholar, and the professoriate he represented was notable for decency and propriety. But its members were exemplars of a truth in which they did not believe. They had abandoned the philosophical and theological ground of their decency without being aware of the fact. It was however only a matter of time until a groundless decency would be abandoned. Bill Clinton is a symbol of that abandonment. It is also notable that the technique used by Clintons lawyers in his defense is nothing other than the fashionable "deconstructionism" that dominates our "politically correct" campuses today. According to this deconstructionism there are no objective facts or truths, only interpretations, all of which are equally subjective and equally valid.

Never in the gloomiest ages of ignorance and superstition has there been a more radical depreciation of the role of reason in human affairs, affecting liberals and conservatives alike, nor one more insidious, because it is masquerading under the false label of science. But if value judgments are non-rational, then all distinctions between right and wrong, between good and bad, are non-rational. Reason is held to be impotent to decide between self-indulgence and self-restraint, or between the pleasant and the good. As a parable of our times no less than of his, Plato describes the trial of a doctor, on charges brought by a candy maker, before a jury of children. Imagine Bill Clinton, as one of that jury, enraged against the doctor who would take away his all-day sucker!

In nothing is the alienation from the principles of the Foundingof conservatives no less than of liberalsshown more clearly than in the debate between the advocates of a "living Constitution" and the advocates of a jurisprudence of "original intent." The classic statement of the latter is by Chief Justice William Rehnquist. Justice Rehnquist is an irreproachable example of George Washingtons "immutable principles of private morality." However, in his celebrated 1976 essay on "The Notion of a Living Constitution" he reproaches thoselike Justices Marshall and Brennanwho ignore

the nature of political value judgments in a democratic society. If such a society adopts a constitution and incorporates in that constitution safeguards of individual liberty, these safeguards do indeed take on a certain generalized moral rightness or goodness. They assume a general social acceptance neither because of any intrinsic worth nor because of any unique origins in someones idea of natural justice but instead simply because they have been incorporated in a constitution by a people.

Consider that, if safeguards of individual liberty do not have "any intrinsic worth," neither does individual liberty, nor, indeed, individual life. Rehnquist also dismisses out of hand any reliance upon any "idea of natural justice." Here are nihilism and moral relativism undiluted. It is impossible to imagine anything in the political literature of the world more alien to those who appealed to "the laws of nature and of natures God" to justify American independence. It is impossible to imagine anything more alien to those who instituted a government to secure the rights with which they had been endowed by their Creator, and who thereafter aimed to form a more perfect Union.

Rehnquist says that constitutional provisions that have no intrinsic worth "take on a certain generalized moral rightness or goodness" when they have been "incorporated in a constitution by a people." Rehnquist implies that incorporation by a people endows something that has no moral rightness with moral rightness. Would this apply to human sacrifice, suttee, female circumcision, cannibalism, or the Nuremberg laws? All of these, at some time, and in some place, and in some way, have been incorporated in their constitutions by a people. Does not immorality in a people result in immorality in what they incorporate in their laws? Let us bear in mind that the Constitution of 1787 whose original intent we are considering, contained powerful safeguards of slavery, along with its safeguards of individual liberty. Both kinds of safeguards were incorporated into the same constitution by the same people. Did the safeguards of slavery take on the same moral rightness and goodness as the safeguards of liberty? In 1860 and 1861 eleven Southern states seceded from the Union because the Northern free states, in electing Abraham Lincoln, had shown their moral disapproval of the institution of chattel slavery. The protection given slavery in the Constitution, they said, constituted a moral seal of approval, a vital element of the citizenship common to all the states. The Norths disapproval of slavery represented, they said, an abandonment of the moral bond of the Constitution as originally ratified. This is the argument that John C. Calhoun had prepared for the South, justifying secession. It is an argument with which Rehnquists argument is in full agreement.

In 1987 the nation celebrated the 200th anniversary of the Constitution. The late Justice Marshall, however, refused to praise a Constitution that was, he thought, infected with racism and slavery. He too accepted Calhouns argument, if from opposite motives. Like Rehnquist, he refused to consider Lincolns argument that the slavery provisions in the Constitution of 1786 represented a compromise that was necessary if the Constitution was to be ratified. Without such ratification, slavery would have been stronger, not weaker. But the principles of the Constitution were to be distinguished from the compromises of the Constitution. And the principles of the Constitution were the principles of the Declaration of Independence. Both Marshall and Rehnquist failed to distinguish the principles of the Constitution from its compromises. Without this distinction, however, there is no defense of the Constitution against the charge of being racist and pro-slavery. Without a defense against this charge, there is no case to be made for a jurisprudence of original intent. And there is no case to be made against the theory of a "living Constitution," in which the justices consider it their mission to repair the damages of the Constitutions racist origins. Rehnquist has therefore in arguing against the "living Constitution" unwittingly made the strongest argument in its favor. We must then recognize that the oath required by Article VI of the Constitution, of everyone who holds office under it, at every level of government, state and federal, is an oath in support of the principles of the Declaration of Independence, as the principles of the Constitution. We must, as Lincoln would say, disenthrall ourselves of the slavery of nihilism and moral relativism. We have only to do so, to reclaim the heritage of greatness which awaits the new birth of freedom.

Harry V. Jaffa is a Distinguished Fellow of The Claremont Institute and Professor Emeritus at Claremont McKenna College.

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