Harry Jaffa on Kavanaugh and the Crisis of America Divided

By | 2018-10-10T21:07:54+00:00 October 9th, 2018|
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The centenary of Harry V. Jaffa’s birth was October 7. He passed away on January 10, 2015 after a career of scholarship and teaching that got people to see the philosophic foundations for understanding America. In seeking to understand one’s own country, one philosophized. In his major books, Crisis of the House Divided and A New Birth of Freedom, he continued the Western line of political philosophy from Socrates on, adding to zetetic questioning, the depth that Sacred Scripture gives to life.

Politics is not some low, degrading enterprise. For America, politics is a source for the highest human aspirations, as Jaffa pointed out, in Lincoln and the Founders such as Thomas Jefferson and George Washington.

But rather than reflecting on Jaffa as political philosopher or teacher, let me recollect what he said about Supreme Court justices.

While praising Kavanaugh’s attacks on the administrative state, Jaffa likely would see him as more like Robert Bork, Antonin Scalia, and William Rehnquist than Clarence Thomas. The former he denounced as legal positivists and historicists—bound by the positive law, however problematic, and bowing to “tradition,” however irrational it may be and however much it undermines natural law (such as the long-standing practice of slavery).

Jaffa devoted two books to criticism of these conservative icons, Original Intent and the Framers of the Constitution and Storm Over the Constitution. A letter in the Claremont Review of Books succinctly makes his case for Thomas and against Scalia. “Positivists like Justice Scalia who look only to the ‘text and tradition’ of the Constitution, but not to its moral principles, are ultimately no match for the liberal critics of original intent jurisprudence,” he wrote.

Patriotism is not enough, Jaffa was fond of saying, when defending his attacks on reliable conservatives. Jaffa not only argued that the Declaration of Independence necessarily must inform American political deliberations and rhetoric but legal reasoning as well. As long as Americans fail to do so, the core of the court’s opinion in Dred Scott v. Sandford (1857), with its repudiation of the Declaration, would remain untouched, despite constitutional amendments and civil rights laws. Any such good efforts would be grotesquely misinterpreted—through racial quotas, for example—without the Declaration.

In 1991, Jaffa expressed disappointment at what seemed like Clarence Thomas’s confirmation hearing repudiation of his pre-judicial embrace of natural law—that is, the principles of the Declaration of Independence—for understanding American politics. Under questioning from Senate Judiciary Committee Chairman Joseph Biden (D-Del.), Thomas maintained that his pre-judicial writings about the Declaration, natural law, and the higher law behind the Constitution (in which Thomas cited Jaffa’s arguments) would not be the basis for his deciding cases. Rather, he would resort to the traditional tools of legal analysis.

Biden was receptive to the right type of natural law (one that would permit abortion rights) and not the wrong type, which he suspected Jaffa of imbibing.

Jaffa, among others, regarded this disavowal—though obviously one prudent course of action to take—as a fatal compromise. If no one on the court could understand its worst decision in Dred Scott, how could the court reject bad reasoning and knowingly adopt sound reasoning? Thomas went along with his handlers’ “outhouse strategy,” focusing on Thomas’s rise from poverty and a broken home and avoiding the issue of whether natural law demanded an end to abortions and a long parade of horribles, violations of the “right to privacy” and all that is good, decent, and progressive.

Thomas’s about-face concerning his natural law musings (to which I contributed, as a special assistant during his time as chairman of the Equal Employment Opportunity Commission) was bypassed as an issue with the injection of Anita Hill’s sexual harassment allegations.

Jaffa, who had contented himself with attacking what he regarded as inept defenders of Thomas, now pleaded for Thomas (through me, as a long-time student) to fight for his life by shedding his nice Negro image. There was never any question for me he would do this, and the rest is high-tech history. What remains unappreciated is that Thomas’s denunciation of the Senate (which far exceeded in fury anything Kavanaugh said to his tormentors) was ultimately rooted in natural right, above all the natural right to self-defense in that part of the state of nature known as a confirmation hearing.

Jaffa doubtless would have applied to Kavanaugh the same critique he made of other conservative jurists—legal positivists with no appreciation of natural right. But there are some affinities, which the professor would have delighted in expanding on: They are both Yale graduates. Jaffa would have been taken with Kavanaugh’s love of sports and his study of history. (Did he study at Yale with Edmund Morgan? Donald Kagan? Steven Smith in political science?) Finally, Jaffa would have made much of Kavanaugh’s February 12, 1965 birthday. (Is there another justice who shared Lincoln’s birthday?) That coincidence would have afforded him frequent occasions for lessons in Lincoln.

I am confident that Jaffa would have denounced in greater than Trumpian terms, the charges of Christine Blasey Ford and others against now-Justice Kavanaugh. He would recognize this as a Stalinist tactic, developed by a party operating under essentially Leninist principles: Identify a public enemy and defame and destroy that evil one.

Jaffa showed his mettle when a psychology professor at Claremont McKenna College claimed her car had been vandalized by racist and anti-Semitic slogans. I heard him immediately denounce the charge as a hoax. The allegation was, of course, universally accepted and created an uproar in the Claremont Colleges, with a mass rally against racism and anti-Semitism. It soon turned out that the vandalism was indeed created by the professor herself. Following her exposure and condemnation as a fraud, the disturbed instructor was sentenced to a year in prison.

Ford, who also happens to be a psychology professor, and Kavanaugh’s other would-be assassins will, alas, apparently escape that fate and likely enjoy glory of a sort.

With his study of Lincoln, Shakespeare, and ancient and modern political philosophy, Jaffa teaches us how to understand human souls better than any “psychologist.” Today’s struggles are ignorant armies clashing by night without the guidance of ancient wisdom. The satisfaction of one’s knowing might lead to both satisfaction and discontent. Jaffa’s own struggle for self-knowledge and how it illuminates America can be seen in a new collection of Jaffa essays Edward Erler and I have edited, The Rediscovery of America: Harry V. Jaffa on the New Birth of Politics.

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Photo Credit: Iris Schneider/Los Angeles Times via Getty Images

About the Author:

Ken Masugi
Ken Masugi, Ph.D., is a senior fellow of the Claremont Institute. He has been a speechwriter for two cabinet members, as well as for Clarence Thomas when he was chairman of the Equal Employment Opportunity Commission. Masugi is co-author, editor, or co-editor of seven books on American politics. He has taught at the U.S. Air Force Academy, where he was Olin Distinguished Visiting Professor; James Madison College of Michigan State University; the Ashbrook Center of Ashland University; and Princeton University.