Harry Jaffa vs. Willmoore Kendall Redivivus

Intellectual leadership of what people are pleased to call the “conservative movement” is in disarray, with numerous champions vying for the crown or recommending that past champions—most often Edmund Burke or Alexis de Tocqueville—be resurrected. Almost all of those contesting for leadership agree that a return to founding principles is necessary, but disagree on the meaning of the founding. Some are insistent that the founding relied on “modern liberal principles” and therefore contained the seeds of its own destruction. Any new founding must avoid those earlier mistakes, and a variety of ways have been suggested, few of them plausible, most of them idiosyncratic reconstructions of the founders’ handiwork. Others, however, just as fervently argue that a genuine understanding of the founding should emphasize the classical elements contained in the founding documents. A return to the founding, in this view, would be a return to its natural right and natural law origins.

At this late date, a return to natural right may seem implausible—even utopian—given the fact that the United States and the West have lapsed into near, if not actual, anarchy. A quick glance at European and American foreign policy should provide adequate proof of this simple observation. The cause of this anarchy is clear to anyone with any modicum of understanding. Both the United States and the West have lost their sense of purpose. The West no longer knows why it is different from the rest of the world—and is afraid (or ashamed) to admit that it is different. 

The New Despotism

The United States lost its sense of purpose many years ago. Americans used to think that our unity of purpose was our strength; we are now told on a daily basis by politicians and ruling-class elites that “diversity is our strength.” But anyone capable of reason knows that diversity cannot be a purpose—it cannot be an end. It certainly cannot unify society; it can only dissolve society. If the American people no longer know why it is a people—if it has lost its purpose—it is no longer a people. “We the people. . .” no longer exists, or it exists only in scattered remnants or “identity” factions. 

If America cannot recover the understanding of the founding in the way the founders understood the founding, then the crisis we face will forecast the destruction of the regime. But what right-thinking person can deny that America is truly the “last best hope” for the preservation of free government against the Biden Administration’s full-scale attempt to establish despotism in the name of preserving “democracy?” 

Every would-be despot knows that the quickest way to despotism is to promote anarchy: The reason is simple—anarchy is insupportable. Anarchy is the state of nature; civil society and the rule of law is designed to end the state of nature and the anarchy that makes human life “solitary, poor, nasty, brutish, and short.” Almost any rule is preferable to the state of nature and anarchy. People will choose any rule—even despotism—to prevent anarchy. 

Yet, we see the Biden Administration deliberately promoting crime and race war. It undermines the nation’s sovereignty with its policy of open borders, which promotes illegal immigration—itself a crime leading to further crime. The Biden Administration is also clearly working to destroy the middle class, a long-standing goal of Democratic administrations. Its politicization of the Justice Department and the intelligence agencies is evident, as is its use of government agencies to interfere illegally in American elections. 

Skewing the economy by inflationary pressures to benefit ruling class elites and corporations at the expense of the lower and middle classes, and ensuring that the same ruling elites benefit from corrupt dealing with China are but a few of the myriad ways the administration actively promotes anarchy. 

The rhetorical trick of all despots in the modern world is to call the new despotism “democracy,” or as some famous tyrants of the recent past called it, “democratic centralism.” Reports to the contrary notwithstanding, Biden is not feeble. His instincts for tyranny are alive and well. As Abraham Lincoln said of democracy: “Allow all the governed an equal voice in the government, and that, and that only is self-government.” We are in a far distant land from the one occupied by the Great Emancipator. 

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The Epitome of Conservatism

The crisis we face is a crisis of conservative leadership. There will be no renewal of America from liberalism. The crisis is within conservatism. The argument within conservatism is about the role of the Declaration of Independence. The crisis of conservatism today is that conservatives agree with liberals in rejecting the Declaration as the authoritative statement of the principles of the American regime. There must be a forthright recognition among conservatives that the principles of the Declaration are the epitome of conservatism

Nearly 30 years ago, Professor Harry Jaffa predicted with almost prophetic vision the political crisis confronting America today. In an article that was unpublished until recently [“The Decline and Fall of the American Idea: Reflections on the Failure of American Conservatism,” (originally written in 1996, published in E. Erler & K. Masugi, eds., The Rediscovery of America: Essays by Harry V. Jaffa on the New Birth of Politics (2019)]. Jaffa reviewed all of the major factions within conservatism, from the paleocon conservatism of Russell Kirk, to the judicial conservatism of Justice Antonin Scalia, Chief Justice William Rehnquist, and Judge Robert Bork, and the neoconservatives Irving Kristol and Martin Diamond. The most intelligent of the conservative intellectuals who was subjected to Jaffa’s withering criticism was Harvey Mansfield, who is not part of a political faction, but the leader of an intellectual faction known by the somewhat dubious neologism “East-Coast Straussians.”

East Coast Equality

Mansfield argues that any regime based on the principle that “all men are created equal” will inevitably degenerate into permissive egalitarianism, no matter how much its founders believed the principle of equality was grounded in the “Laws of Nature and of Nature’s God.” According to Mansfield, resorting to natural law or natural right is irrelevant for understanding the American founding, or any political founding. He supposedly takes Aristotle as his authority, who, he contends, argues that all claims of justice are political claims. The fact that the founders appealed to natural law or natural right was either a way to disguise their partisanship or it was a self-deception. 

Mansfield’s invocation of Aristotle has obvious reference to a short dialogue in chapter 10 of book three in the Politics. The many poor make a democratic claim, arguing that free birth or equality is the superior claim to rule. The few wealthy make an oligarchic claim, justifying their argument by noting the inequality of wealth. Aristotle remarks that both claims hit on a part of justice but not the whole of justice. Both claims are only partial and therefore partisan. The polis needs free and equal citizens no less than it needs wealth. 

Both claims to rule are valid, therefore, but both are also incomplete. Aristotle suggests that a mixed regime, one he calls a “polity” could combine the two claims to rule. In the polity, the interests of the two antagonistic classes would balance one another. What Aristotle makes clear, however, is that the oligarchs and (small “d”)  democrats will not share a common good. Mansfield agrees wholeheartedly with Aristotle: The equal and the unequal can never coexist in a regime animated by the principle that “all men are created equal.” Although there will be pious talk of a common good, each side will remain fiercely partisan. 

In today’s democracy, the democrats (Aristotle’s partisans of free birth and equality) are able to display their partisanship openly while the oligarchs (partisans of inequality) must disguise their partisanship as enthusiasm for the welfare of the democrats, or the “least advantaged.” This concealed partisanship, Mansfield calculates, cannot last forever, especially when, as he predicts, the headlong slide into “permissive egalitarianism” makes it impossible for the oligarchs to continue dissembling their contempt for democracy and egalitarian natural right. 

Thus, according to Mansfield, the founders’ idea that the principle of equality, properly understood as the equal protection of equal rights, could provide the common ground for the few and many was merely an illusion. The unequal, he believes, can never seek common ground with the equal because they seek incommensurable goods that have no common denominator. There can be no common good: the world of politics is always (and only) partisan. 

But the founders clearly believed otherwise. 

The private right to property—an idea unknown to Aristotle—provided the common ground or the common good for the few and the many to unite around. Both have a common interest in supporting the right to property. The few do not want to be dispossessed by the many, and the many want to keep what they possess in security, knowing that if they prosper in the future, their property will be secure. Here is the important passage from the Federalist: “the first object of government” is “the protection of [the] different and unequal faculties of acquiring property, [from which] the possession of different degrees and kinds of property immediately results.” The natural right principle of distributive justice inherent in the Declaration’s principle of equality clearly reconciles both the claims of equality and the claims of inequality—equality of opportunity and the justice of the inequality of results. It is clearly false to claim that the principle of equality in the Declaration inevitably leads to “permissive egalitarianism.” No founder believed that a proper understanding of the Declaration could yield this result. 

Jaffa’s understanding of the Declaration as the moving principle of the American regime, and the extent to which the regime had moved away from those principles, largely (but not exclusively) occasioned by the rise of progressivism, allowed him to see clearly what was necessary for a revival of regime principles. What was needed was what the founders called a “recurrence to first principles,” by which they unequivocally meant the principles of the Declaration. 

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Kendall’s ‘Political Heresy’

A recent call for a new champion to assume the mantle of conservative intellectual leadership has been pushed to the fore by Richard M. Reinsch II’s “Willmoore Kendall’s American Affirmation,”  a review of Kendall’s newly republished Conservative Affirmation (2022), first published in 1973. Kendall, of course, denied that the Declaration defined the nation’s principles. Those principles, instead, were derived from the original Constitution, i.e., before the Bill of Rights was added. 

At one point, Kendall was prepared to argue that any attempt to argue the Declaration was America’s founding document was “an act of political heresy, compounded by and act of impiety toward the nation’s true founding fathers, who were the men who wrote, and submitted for ratification by the American people, the Philadelphia Constitution.” Thus, for Kendall it was a crime against the American political tradition (and its authoritative symbols) to suggest any connection between the Declaration and the Constitution. But what if it could be demonstrated that the founders themselves believed that such a connection existed? Would such a demonstration prove that the founders themselves committed “political heresy” and “impiety?” Let us see. 

James Madison, justly considered the father of the Constitution, noted in Federalist 39 that the “first question” that must be asked about the proposed constitution is “whether the government be strictly republican.” If the people find that it is not, Madison warns, they should reject it, because no other form of government is “reconcilable . . . with the principles of the Revolution.” No one reading this passage would have failed to recognize that the “principles of the Revolution” were contained in the Declaration. If no other evidence were available, this alone would be proof that for the founders there was an indefeasible connection between the Declaration and the Constitution. The Declaration, in this account, specified the ends to be secured—the “safety and happiness” of the people—and the Constitution devised the means to secure those ends. 

In Federalist 40, the central reference of the three explicit references to Declaration, Madison refers to “the transcendent and precious right of the people to ‘abolish or alter their governments as to them shall seem most likely to effect their safety and happiness.’” In a footnote Madison simply states “Declaration of Independence.” Careful readers will notice that Madison has transposed “alter” and “abolish,” undoubtedly to emphasize that the purpose of the Constitutional Convention was to “abolish” rather than “alter” the Articles of Convention. 

At another crucial point, two questions “of a very delicate nature” presented themselves: Can a union which presents itself as a compact of the states be “superseded without the unanimous consent of the parties to it?” And, what would happen to those states that did not ratify the proposed constitution? We recall that it required ratification by the people in nine states for the new constitution to be approved. According to Madison, in this central paper of the Federalist, the first delicate question can be answered by reference to the principles of the Declaration, by “recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature’s God, which declares that the safety and happiness of society are the objects at which all institutions must be sacrificed.” Looking past the veil behind which Madison concealed this “delicate” question, Madison clearly meant that the states that did not ratify would be forced to join from “necessity!” As for the second delicate question, Madison says it might be determined peacefully by the nature of the compact itself and, if not, by the same recurrence to the “absolute necessity of the case” as the first question! 

Alexander Hamilton in Federalist 78 also made a bold reference to the Declaration when he asserted “that fundamental principle of the people to alter or abolish the established Constitution whenever they find it inconsistent with their happiness.” Hamilton recognized, as did Madison, that the “right to alter or abolish government—the right to revolution—was the right that guaranteed every other right. It was, in short, the ultimate expression of the people’s sovereignty. It is almost unnecessary to point out that the right of revolution finds no place in Kendall’s constitutionalism. If, according to Reinsch, Kendall looked “above all” to the Federalist Papers for his guidance, then he missed the central importance of the Declaration for the authors of the Federalist. The Constitution cannot be understood without the Declaration; any careful and honest reader must concede this.

America Begins

Kendall argued that the ends or purposes of the Constitution were not contained in the Declaration but in the Preamble to the Constitution. There is a difficulty here that Kendall was unable to meet. The Preamble states the ends for which the government is established, listing, by my count, six: a more perfect union; Justice; domestic Tranquility; common defense; general Welfare; and securing the Blessing of Liberty to ourselves and our Posterity. But it begins “We the people of the United States . . . and ends “do ordain and establish this Constitution for the United States of America. Thus, the people create the Constitution, the Constitution does not create the people. That is to say Constitution did not create the United States of America; it already existed when the Constitution was created. It was created by a people who already existed as a corporate political body, already living in the United States of America when they created the Constitution. When, then, did the American people become a people, if not by the Constitution? 

Article VII of the Constitution notes that it was “Done in Convention” “in the Year of our Lord” 1787 and “of the Independence of the United States of America the Twelfth.” Thus, the United States of America became independent in 1776 and the American people became a people by agreement with the principles of the Declaration of Independence. The consent of the people, by the terms of the Declaration, is required to establish the “just powers” of government, a power they can “alter or abolish” whenever government becomes destructive of the people’s “safety and happiness,” which is to say, whenever the government acts unjustly. 

A seemingly unrelated provision also indicates the presence of the Declaration of Independence in the Constitution. Article II specifies that the president must be a “natural born citizen,” or a citizen at the time of the adoption of the Constitution, at least 35 years of age, and a resident of the United States for 14 years. If the United States became a “separate and equal” nation by the terms of the Declaration, then we must date American citizenship from 1776. The Declaration, by absolving itself from all allegiance to the British Crown, transformed British subjects into American citizens, replacing the feudal relics of the common law of “perpetual allegiance” with the “consent of the governed” as the basis for citizenship. 

Thus, there were no American citizens before 1776. The framers of the Constitution were well aware that there were no 35-year-old citizens born in America after the date of the Declaration. The framers therefore specified that any 35-year-old citizen at the time of the adoption of the Constitution who had been a resident of the United States for 14 years was eligible. The 14-year requirement clearly points to the Declaration. The first natural born president (born in the United States after the Declaration) was, by calculation, Martin Van Buren (born in 1782); he served as the eighth president of the United States, from 1837-1841.

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Eliminating Locke

Richard Reinsch is Director of the B. Kenneth Simon Center for American Studies at the Heritage Foundation. As such he is undoubtedly aware of the devastating critique of Kendall’s works by Harry V. Jaffa. Reinsch will surely agree that Jaffa and Kendall were both radical thinkers in the original sense of the term of pressing questions to their origin or “root.” Jaffa pointed out that in his last years, Kendall focused on eliminating John Locke from the American political tradition. It was undeniable, Jaffa rightly argued, that the Declaration evidenced signs of Locke’s influence both in language and in overall theoretical import, especially the central role of the self-evident truth that “all men are created equal” and the role of social compact as the ground of legitimate government. In particular, Kendall was intent on denying that equality and social compact were part of the American tradition inherited from Locke. Unlike the Constitution, he contended, the Declaration was never ratified by the people, and was therefore only a “compact” among the signers. Jaffa countered that a committee was appointed to draft the Declaration by the Continental Congress and was in turn approved by that same representative legislative body. It therefore was a national compact extending far beyond the signers. 

Instead, Kendall found what he considered to be a more salutary version of compact in the Mayflower Compact (1620). As Jaffa comments, for Kendall “the important thing was that was there was not a word in the Mayflower Compact about Equality, and there was something—not much, but something—about ‘advancing the Christian faith.’” It would be difficult for Kendall to escape the criticism that he extended to the Declaration. The Mayflower Compact was not a compact produced by a representative body deliberating about a nation’s fate. It was a compact only among the signers and extended its authority, at most, over one colony. 

What was its attraction for Kendall? It was pre-Locke—although that didn’t preclude it having “Lockean” elements—it didn’t mention equality, and it did, albeit in passing, make a bow to Christianity, whereas the Declaration’s “Laws of Nature and of Nature’s God” seemed to make a secular reference to Divine Providence. Kendall mistakenly interpreted the language of the Mayflower Compact to have created a Christian people for America and this became a part of the American political tradition. The version of Divine Providence that appears in the Declaration was an appeal to all sects within Christianity as well as all religions. 

Jaffa details how dangerous it is to follow Kendall in driving Locke out of the American founding. Understanding “the doctrine of Equality,” Jaffa wrote, 

in its Lockean sense, is essential to the defense of the institution of private property in the modern world. For the doctrine of Equality holds that what men are by nature, that is, prior to civil society, determines what purposes civil society may rightfully serve. It is this that determines what rights are inalienable, and what rights may—or must—reasonably be surrendered to society. It was axiomatic for the Founders, that the rights of conscience were never surrendered to civil society, and that therefore civil society might never rightfully enact laws in matters that were wholly and exclusively matters of conscience.

The founders knew, Jaffa contended, that the very ground of limited government was a separation of church and state. Both Jefferson and Madison agreed that religious liberty and political liberty had the same root, that “Almighty God hath created the mind free, and manifested his supreme will that free it shall remain by making it altogether insusceptible of restraint.” In this, the founders anticipated the later observations of Tocqueville. 

Getting rid of religious establishment in all its forms, as well as eliminating those other vestiges of feudalism, primogeniture and entail, proves, Jaffa claimed, how little regard the founders had for “the colonial past that Kendall tried to make the ground of the American political tradition.” We might add here that perhaps the most important vestige of feudalism that was rejected by the principles of the Declaration, as previously discussed, was the “perpetual subjectship” to divine right kingship demanded by the English common law. 

The Right of Humanity vs. Divine Right of Kings

It was the American Revolution that transformed subjects into citizens. Abraham Lincoln always said that slavery is based on the same argument as the divine right of kings. “It is the eternal struggle between these two principles—right and wrong—throughout the world. They are the two principles that have stood face to face from the beginning of time; and will ever continue to struggle. The one is the common right of humanity and the other the divine right of kings. It is the same principle in whatever shape it develops itself. It is the same spirit that says, ‘You work and toil and earn bread, and I’ll eat it.’”

The right to property was understood by Locke as “self-ownership,” and this meant the right to the product of one’s labor. This is the ground of equality, and a ground that necessarily raises the question of the justice of slavery. This is something that Kendall assiduously avoided and his attempt to read the Declaration out of American political tradition is an obvious ploy to distract from the issue. Kendall blames Lincoln for “derailing” the American political tradition by importing equality into it as a foreign element. The Constitution, Kendall argued, not the Declaration, was the principal document of the tradition. Once Lincoln located America’s birthright “four-score and seven years” from 1863, equality fraudulently entered the American political tradition and began its inevitable head-long slide to “permissive egalitarianism” and, to quote Reinsch, “the end of sound moral and political premises found in our American inheritance of the great Western tradition.” It is only “the constitutional morality of Publius,” he confidently assures us, that can relieve us of the “ontological relativism that constantly leaves us unsure of who we are and of what we should do.” 

This is not only a palpable misreading of Publius, but evidences a willful blindness to the role of the Declaration in the American political tradition, of whom Lincoln is an integral part, not an innovator or someone who betrayed that tradition except in the perfervid imaginations of Kendall and Reinsch.

It is, of course, a favorite conservative meme that both Kendall and Reinsch indulge that Lincoln was not only responsible for the “permissive egalitarianism” that infects American society today, but also the growth of big government. Lincoln in his First Inaugural said he had no power or inclination to interfere with slavery in the states where it already existed. He always believed, however, that the nation’s commitment to equality meant the eventual abolition of slavery, but that in 1860, given the state of public opinion in both the North and South, any such suggestion would be politically imprudent. But by the late summer of 1862, Lincoln decided that the war effort required limited emancipation, even though the border-state issue was still in play. He was careful, however, to limit the Emancipation Proclamation to those areas only that were in active rebellion, and made efforts to preserve the property rights of loyal slave owners. 

As Jaffa cogently notes, 

any expansion of federal authority attributable to Lincoln stemmed from his interpretation of his constitutional duty ‘that the Laws be faithfully executed’ and from his authority, ‘in Cases of Rebellion or Invasion,’ as commander-in-chief. These were crisis powers, they were not expansions of the commerce clause, of the general welfare clause, or of any of those enumerated powers by which Congress has in the twentieth century added to the powers of the presidency. Lincoln did very little, if anything, to expand the powers of the federal government per se. What he did under the war powers did not set precedents for an expanded peacetime role of the presidency in particular, or for the federal government in general.

I say that it is difficult to dispute this constitutional analysis. Lincoln acted always with a view to strict construction. It was the progressives who wanted to rid the American constitutional tradition of any traces of natural law and natural right and who, like Kendall, wanted to expose the heresy of “four-score and seven.” 

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A Regime Founded in Natural Right

Jaffa excoriates Kendall, as only Jaffa could, on the issue of “permissive egalitarianism.” “Lincoln never sought, or believed in, an equality of condition. What he did believe in was an equality of rights.” Over and over again, he denied that he thought men were equal in wisdom, virtue, or ability, or that they should all have the same rewards. Lincoln said in 1858: 

Certainly the negro is not our equal in color—perhaps not in many other respects; still, in the right to put into his mouth the bread that his hands earned, he is the equal of every other man . . .

Jaffa continues this theme by quoting from the July 4, 1861 address to the Special Session of Congress, defining the cause of Union, to preserve 

that form, and substance of government, whose leading object is, to elevate the condition of men—to lift artificial weights from all shoulders—to clear the paths of laudable pursuit for all—to afford all, and unfettered start, and a fair chance in the race of life.

The justice of equal opportunity combined with the justice of inequality of results was the genuine meaning of equality for the founders (see the discussion of Professor Mansfield above) no less than it was for Abraham Lincoln. The right to property understood in a Lockean sense (the right to eat the bread that was earned by one’s own labor) was crucial to the understanding of all rights; and the rights of conscience were the ground of all liberty and limited government. The American Revolution, as articulated by Jaffa in opposition to Kendall, was a world historical event. Natural right for the first time in history became the ground and foundation of an actual regime. 

As Lincoln remarked on the eve of the Civil War, words that must have driven Kendall to distraction, “All honor to Jefferson—to the man who, in the concrete pressure of a struggle for national independence by a single people, had the coolness, forecast, and capacity to introduce into a merely revolutionary document, an abstract truth, applicable to all men and all time . . .” 

The complaint of conservatism has always been that universal ideas or abstractions can provide no concrete guide to political life, and this quote from Lincoln provides the quintessential example of such utopian speculations. Better to follow the real-world experiences provided by tradition. This is good Burkean advice. Lincoln’s statement does celebrate the “abstract” principles of the Declaration which are “applicable to all men and all time,” but he says that it was a “struggle for national independence by a single people.” 

Thus while the Declaration appeals to universal principles—natural right—it uses that appeal to establish a “separate and equal” nation. In doing so, the founders relied on Aristotle, who must surely be recognized as the originator of the Western tradition of political science. 

Aristotle in the first book of the Politics says that the principles of human nature are universal, but for human nature to flourish, for human potential to become actual, it must do so in particular human communities—in the polis. Man is by nature a political (or polis-dwelling) animal, Aristotle says. The Declaration is also Aristotelian in its recognition of universal human nature (“all men are created equal”) but also recognizes that the implementation of that equality in securing the “safety and happiness” of the people requires the creation of a “separate and equal” nation. Only in a separate, sovereign nation can the privileges and immunities of citizenship be guaranteed and the habits, manners, and virtues suitable for republican citizenship be inculcated. 

No doubt Kendallites will complain that social compact is hardly Aristotelian because social compact is a human construct, whereas Aristotle maintained that man is by nature a political animal. For Aristotle, of course, the polis does not grow spontaneously—it is not the result of natural growth; rather, it had to be “constituted” by human art, and the one who first “constituted” the polis, Aristotle says, is the cause of the “greatest of goods.” The polis exists by nature because, while it is last in the order of time, it is first in the order of final causality. 

All associations—male and female, the family, the tribe, the village—are incomplete, and their incompleteness points to the polis as a final cause. And the final cause is nature. Aristotle’s polis thus seems to be no less the result of artifice than social compact. But we learn from Aristotle that art is always an imitation of nature. Even though the polis needs art for its being, it exists by nature. The American regime, grounded in social compact, freely composed of freely consenting citizens, rests on the Western tradition of political thought. It is an expression of natural right which is the oldest of all traditions. Ask Harry Jaffa.

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