Harry V. Jaffa on Justice

"Three years later in the contest for Kansas, the administration headed by James Buchanan tried to railroad through a constitution called the Lecompton Constitution, which would have made Kansas a slave state, but on the basis of a phony vote. Douglas stuck to his popular-sovereignty doctrine, which meant that the people of the territory, in a fair vote, would decide for or against slavery. That was the way in which he replaced the Missouri Compromise restriction. It opened slavery, but it said that the decision in each territory would be made by the people in that territory on the basis of their preferences."

"laves are never referred to in the Constitution as anything but 'persons', a characterization that is perfectly neutral as to race or sex. That some of these persons were slaves was something arising from state law, not from the Constitution itself."

"In 1860 Senator Wilson, like Lincoln, could not ask for recognition of more than the black man's natural rights. But he showed in dramatic fashion that his argument, like Lincoln's, applied ultimately to all rights, civil and political no less than natural."

"And Lincoln said that by your own argument, if the local regulations are not forthcoming, you must support the federal enforcement; if you don’t, you’re taking the same position as the abolitionists, who denied any obligation to enforce the Fugitive Slave Law."

"Douglas accepted Dred Scott, and in Dred Scott, the Chief Justice had said that the right to own slaves is expressly affirmed in the Constitution. And Lincoln said in the debates that it was implied but not expressly affirmed. The argument against any restriction on slavery was that any right expressly affirmed in the Constitution takes precedent over any law or regulation in any jurisdiction whatever."

"The recently passed law to "end welfare as we know it" came about because a lethargic public has been aroused at last, not by the failure of the welfare system but by its success. The public indignation, however, would have been of no effect had we not elected a Republican Congress. No Democratic Congress would ever have passed such a law. Just as welfare reform may help end the poverty industry, the California Civil Rights Initiative on the November ballot may lead to the demise of another 1960s product, the racism and sexism industry. The 1964 Civil Rights Act outlawed discrimination based upon race, sex, color, religion or ethnic origin. The act was based on the premise that the only race to which a person must belong is the human race. With respect to God-given natural rights, "all men are created equal."

"Harlan's dissenting opinion in Plessy, that the Constitution was colorblind, and that it did not countenance different and unequal classes of citizens, was based upon a belief in the truth of the principle of equality in which the founders and Lincoln had so profoundly believed. But this belief had been buried by progressivism, and has not been resurrected, except by the intellectual heirs of Leo Strauss. On intellectual grounds, it has never been refuted, and ought never to have been abandoned. There is not now, and never has been any such difference between one human being and another human being, or whatever race or color, such that one is by nature the ruler of the other, as any human being is by nature the ruler of any dog or any horse. For this reason, legitimate political authority can arise only by the consent of the governed, and consent can never be given for any reason other than the equal protection of the rights of the governed. Hence equal protection is the foundation of all constitutionalism, even apart from its specific inclusion in the Constitution itself. For more reasons than one, Justice Harlan's dissenting opinion ought to have been the opinion of the Court in 1896; even more ought it to have been the opinion of the Court in 1954. As Professor Edward J. Erler has demonstrated in the pages of the Claremont Review of Books, the principle of equal protection has never become the opinion of the Supreme Court of the United States, nor has it been favored in the writings of conservative jurists."

"lavery existed among the Americans largely because of the action of the crown. For the king to have been complicit in the importation of slaves into America and then to have attempted to use them in a war against their masters merited condemnation in its own right. In no way did such condemnation imply a justification of slavery itself."

"And so, the idea of slave property contradicts the idea of private property, and the Southerners taking their stand on their property rights and their slaves were, in fact, taking their stand on a principle which was incompatible with the idea of constitutional government."

"Colonists did not, at this point, claim any privileges under the law of Great Britain. They were breaking from the law of Great Britain. They were appealing instead to the laws of nature and of nature’s God. And it was under those laws that they had the right to resist oppression."

"Much has been written about Jefferson himself being laggard, later in life, in his efforts against slavery. But in Jefferson the draftsman and spokesman for the American people in the American Revolution, the man of whom Lincoln would say that he 'was, is, and perhaps will continue to be, the most distinguished politician of our history', there was never the least equivocation as to slavery's injustice and immorality."

"By the principles of the Declaration of Independence, majority rule in a free society is not an end in itself, nor is it a source of the purposes served by free government. Majority rule exists to secure the rights with which all human persons are "endowed by their Creator." The recognition of the origin of these rights, in God and nature, comes before any action of any majority. Only as we all recognize that "the just powers of government" exist to secure the equal rights possessed by every human being, whether in the majority or minority, can tyranny be prevented."

"Madison, by the way, had opposed both the bank and tariffs when Hamilton was Secretary of Treasury. He signed into law the Second Bank of the United States, and endorsed the tariff, said that it has been ratified by the people in subsequent elections, so he reversed his position on that."

"We have these inalienable rights, and in the exercise of these same inalienable rights, we agree with each other to form civil governments. And Madison has an essay on sovereignty, which is a sort of simplified repetition of John Locke’s argument in the second chapter of the Second Treatise."

"Hubert Humphrey, one of the chief authors and sponsors of the Civil Rights Act of 1964, had declared that under Title VII no discrimination on the basis of race or color was to be lawful. He explicitly said that this meant no discrimination of white against black, and no discrimination of black against white."

"Now the Constitution doesn’t say how this right is to be enforced, but it says it shall be done. And from 1793 to 1850 it depended upon the states honoring the Act. Well, that was not working, and so this federal law was substituted which provided enforcement procedures under the auspices of the federal government."

"And if you look at the things that are denied to the states in the Constitution, for example, they are denied the right to coin money. Now, throughout history, the right to coin money has been a symbol of sovereignty. If states do not have the right to coin money, they are not sovereign in the sense that would justify secession as a state right."

"Douglas's doctrine of 'popular sovereignty' meant no more than that: in a democracy justice is the interest of the majority, which is 'the stronger'. Lincoln, however, insisted that the case for popular government depended upon a standard of right and wrong independent of mere opinion and one which was not justified merely by the counting of heads."

"The vice-president and the president of the Confederate States of America grounded their justification of American slavery on the grounds of a fraudulent science and a crazy fundamentalism. No sane person today can regard them as other than pathetic reminders of a society, like Nazi Germany, mentally unbalanced by its commitment to human inequality."

"That the equality of human souls in the sight of God ought to be translated into a political structure of equal political rights has come to be regarded as the most authentic interpretation of the Gospel itself. Slavery, and the imposition of all arbitrary forms of inequality of man by man, has come to be seen as demeaning to the souls of God's creation."

"It was recognized as a necessary evil at the time, and the justification for the ratification of the Constitution with slavery is that any alternative arrangement would have been more favorable to slavery than the Constitution itself. The Constitution created a government strong enough to deal with the question of slavery when it became what it did become in 1860."

"According to Abraham Lincoln, public opinion always has a central idea from which all its minor thoughts radiate. The central idea of the American Founding—and indeed of constitutional government and the rule of law—was the equality of mankind. This thought is central to all of Lincoln's speeches and writings, from 1854 until his election as president in 1860. It is immortalized in the Gettysburg Address."

"In the tradition of American constitutionalism, all men are equally endowed by their Creator with certain rights. The equality of man is understood in the light of man's inequality with God: because men are not and never can become God or gods — because unqualified wisdom is never available to human beings — only government by the consent of the governed, and under the rule of law, is intrinsically in accordance with the eternal order."

"John C. Calhoun was the philosopher-king of the old south, the spiritual mentor of Stephens, Davis, and most of the political leaders of the Confederacy. Bradford and McClellan, following Willmoore Kendall, are obsessed with the utterly false notion that Lincoln was somehow responsible for the permissive egalitarianism of the contemporary welfare state. But equality as such was no less important to Calhoun than to Lincoln. It was just a different kind of equality."

"But once we have reached this agreement and we then elect a government and that government functions—and the election for that government is one in which there’s freedom of speech, freedom of the press, freedom of association, so that it is a legitimate government—then that government commands our obedience. We have no right to reject our duty to obey because we don’t like the result of the election—provided the election is conducted fairly and Constitutional rights are observed."

"Well, it’s not clear how persuasive this argument was in Illinois, but it was persuasive in Mississippi and Alabama and Florida and South Carolina, which said, 'Well, Lincoln’s right. This man Douglas is denying us our Constitutional rights'. And as a result of that, it was Lincoln’s cleverness in the debates which split the Democratic convention in 1860, and this is what in fact elected Abraham Lincoln. But it was the rebellion against Douglas, not against Lincoln, which precipitated the whole secessionist movement."

"In 1860, the South did not appeal to the right of revolution. They appealed to a right of secession, which they claim to be a Constitutional right under the Constitution itself. In 1776, the colonists did not claim that in breaking with Great Britain they were exercising a right granted by the British Constitution. They had conducted their struggle until that moment by appealing it through the British constitution. But when they decided on independence, they appealed instead to the laws of nature and of nature’s God."

"That all men are created equal does not mean that human beings are the same, or equal, in size, strength, beauty, virtue, or intelligence. There are obviously great differences in individual aptitudes and talents in sports, music, mathematics, speaking, and writing. They are also unequal in the virtues, among them courage, temperance, and justice. But as Jefferson once said, the fact that Sir Isaac Newton may be the most intelligent of living human beings does not give him any right whatever to my person or my property."

"This nation was founded," President Bush wrote, "upon the belief that every human being is endowed by our Creator with certain 'unalienable rights.'" The President, in using the exact language of the Declaration of Independence, including the archaic "unalienable," has expressed the conviction that "the laws of nature and of nature's God" furnish the moral foundation of constitutional government. "President Jefferson's timeless principle," he wrote, "obligates us to pursue a civil society that will democratically embrace its essential moral duties..."

"What exactly did these words, of both the Declaration of Independence and the Gettysburg Address, mean? They meant that there was no difference, between one human being, and another human being, that made one the master and the other the servant. As Jefferson once put it, some men are not born with saddles on their backs, nor are others born booted and spurred to ride them. That a man or woman rides a horse corresponds with the difference in their natures. No injustice is done to the horse! That an ox should pull a plow, while a man walks behind, is according to nature. In these cases, servitude follows from the laws of nature. But these same laws of nature tell us that when a human being is subjected to other human beings as if he were a horse or an ox, the laws of nature are violated. All human beings are accordingly equal in their right not to be enslaved, and in their right to be in secure possession of their lives, liberties, and property. To this end they have a right to be governed only by laws to which they have consented."