Edited and written by David Gordon, senior fellow of the Mises Institute and author of four books and thousands of essays.

When All Else Fails. . .

Winter 1995

"JAFFA ON GRAGLIA"
Harry Jaffa
National Review, Volume 47, No. 15 (August 14, 1995) pp. 27 32

Lino Graglia, a distinguished constitutional lawyer at the University of Texas, has had it up to here with Harry Jaffa. A professed opponent of judicial activism, Jaffa in fact gives judges carte blanche to read their personal views of morality into law. He does so by claiming that the Constitution incorporates the Declaration of Independence. And in the Declaration's equality clause is contained, somehow, Jaffa's conception of natural law.

Graglia notes that "Jaffa has not produced a single statement by anyone at the Constitutional Convention or during the ratification debates indicating an intention or understanding that the Declaration was incorporated and thereby made judge-enforceable law" (p. 28). And even if the Declaration had been incorporated, no generally accepted codification of natural law exists. Only arbitrariness and hearty laughs can result from a Jaffaite natural law approach.

Jaffa, of course, cannot cope with Graglia's surgical strike. His reply is not worth reading, except for one item. The Constitution ends "Done in convention . . . in the year of our Lord . . . and of the independence of the United States of America . . ." Jaffa states: the "dual dating links the origin of Christianity with the origin of the United States. What the Gospels were to Christianity, the Declaration of Independence was to the novus ordo seclorum" (p. 31). As Oscar Wilde said about the death of Little Nell, "one must have a heart of stone to read this without laughing."


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