Title: Original intent and the framers of the Constitution
Subtitle: a disputed question
First published: 1993
Description: Original Intent and the Framers of the Constitution: A Disputed Question is a unique contribution to the debate, begun by Attorney General Edwin Meese in the second Reagan administration, over the "original intentions of the Framers." Professor Jaffa agrees entirely with Meese's opinion that there is a need to confine judges to interpreting, not making law. Jaffa also agrees that original intent, rightly understood, is the only sound basis of constitutional jurisprudence.

But he contends that Meese, Chief Justice William Rehnquist, and Judge Robert Bork - original intent's leading conservative proponents - have misunderstood its meaning.

The Framers, and Abraham Lincoln, their greatest proponent, believed that the Constitution was anchored in the principles of natural law invoked by the Declaration of Independence. Rehnquist and Bork are moral relativists and legal positivists, says Professor Jaffa, who repudiate the very existence of natural law and deny that the Declaration of Independence has any role whatsoever in constitutional interpretation.

Nearly all the great constitutional controversies of our time have swirled around the meaning of the "due process" and "equal protection" clauses of the 14th Amendment. Professor Jaffa contends that it is impossible to interpret the intent of the 14th Amendment without understanding the conflict between the principles and the compromises of the antebellum Constitution. This conflict came to a head in 1857 in the case of Dred Scott.

Professor Jaffa shows that Rehnquist, Bork, and Meese have completely misunderstood that case, attributing to "substantive due process" or "judicial usurpation" what was in fact a failure on the part of the Court to understand that in a federal territory the black man's human nature gave him constitutional standing, slavery in the states to the contrary notwithstanding.

Jaffa also shows that in their determined effort to avoid recourse to the Declaration in their interpretation of Dred Scott, Rehnquist, Bork, and Meese are heirs, not of the Founding Fathers but of the father of the Confederacy, John C. Calhoun. Present-day conservative jurisprudence, in its positivist rejection of the Declaration, the Framers, and Lincoln is descended from Calhoun, not the Framers.

Jaffa shows in Original Intent that this jurisprudence is no more principled than its liberal opposition; it merely seeks different results.
Subjects: Constitutional history, Constitutional law, Interpretation and construction
Places: United States