Harry V. Jaffa

"Now there’s document on a subject of states' rights and states' sovereignty which is very seldom cited but which is absolutely fundamental to understanding the status of sovereignty under the Constitution: the letter that George Washington wrote transmitting the new Constitution to the Congress on September 17, 1787. And among the ironies of this letter is the fact that John C. Calhoun in his Discourse on the Constitution and Government of the United States, the sequel to his Disquisition on Government, cites the words that Washington used to support his position that this was a federal government, and that “federal” meant one in which the constituent parts retains complete sovereignty. And he refers to the fact that Washington refers to “the federal government of these States.”"

"Now, the truth of the matter is that the idea of the meaning of the word 'federal' underwent a change from the Articles of Confederation to the Constitution. Under the Constitution, the states gave up their sovereignty in the Calhounian sense. And if you have any doubt about that, let me just read a sentence from George Washington. 'It is obviously impracticable in the federal government of these states to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all'. So all the rights of independent sovereignty, or some of those rights, have been surrendered."

"With this, we are introduced to a unique American contribution to political science: dual federalism and dual sovereignty. The states are sovereign within the spheres of the powers that are reserved to them by the Constitution. They are not sovereign in those things that are delegated to the United States as a whole."

"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."

"DiLorenzo thinks that it is a reflection on Lincoln's anti-slavery character that he supported the Fugitive Slave Act. But the Fugitive Slave Clause is in the Constitution, and Lincoln thought that any refusal to implement the right clearly defined in the Constitution would justify secession. You can't pick and choose which parts of the Constitution you like. Once you do that, then the Constitution is simply, as Jefferson said once, "a blank sheet of paper." Jefferson said that when he was contemplating purchasing Louisiana. And having said that by purchasing it he would make the Constitution a blank sheet of paper, he went ahead and purchased Louisiana."

"Yeah, I’d like to comment. In the first place, the idea that the federal government in 1860 should have offered to buy the slaves is a political absurdity. Any claim by Lincoln or his party of any jurisdiction over slavery in the states would have been regarded, and justly regarded, as completely unconstitutional, and advocating the overthrow of the Constitution."

"Now, during the Civil War, Lincoln did endorse a program of compensated emancipation. In his 1862 message to Congress, he proposed a series of Constitutional amendments that would have authorized the Federal government to reimburse states that adopted programs of compensated emancipation. He was very anxious. This was before the Emancipation Proclamation, the final one, was issued on January 1, 1863."

"But he did want to see to it that loyal slave owners were not expropriated by his emancipation policy. But he couldn't get the Congress to adopt it. He couldn't get any Representatives, and people from Kentucky, or Missouri, or the border states to vote for it, and so he failed. This is the message to Congress which ended with those wonderful words, “Gentlemen of the Congress, we cannot escape history. The fiery trial through which we pass will light us down in honor or dishonor to the latest generation. We shall nobly save or meanly lose the last, best hope of Earth.” Well, it failed."

"And comparing what happened in England—after all, in England the Parliament in Westminster was making laws for the West Indies. The West Indians didn't have any representation in the Parliament. The laws were made for them, and they had to go along with it. There was no such power within the Federal government to interfere with slavery, except by limiting the expansion of slavery. And it was Lincoln’s belief—and I think the best economic analysis that we have of the American economy in the antebellum United States indicates—that if the expansion of slavery had been ended, and if it was no longer possible for surplus slaves to be sold from the old states to new territories, that the pressure within the states to adopt programs of emancipation would become great enough to do that."

"In other words, Lincoln's belief was that slavery could be ended peacefully through the action of the states themselves. It couldn't be done through direct intervention by the Federal government, but it could be done within the states themselves. And after all of the states north of the Mason-Dixon line had adopted plans for emancipation—slavery was lawful in every one of the 13 colonies, and the 13 states which declared their independence."

"DiLorenzo is absolutely wrong in saying that the 13 states were recognized as independent separate sovereignties. They were not. In 1826, Madison and Jefferson together, in making rules for the University of Virginia, resolved that the first of the documents that should be studied by the law faculty of the University of Virginia, was the Declaration of Independence as the Act of Union of the States. The Declaration was a declaration of separation from Great Britain and union with each other. And the state legislatures, or state revolutionary colonial legislatures on the road to independence—almost all of them passed resolutions calling for independence and for union."

"But all those same resolutions said that, in the Declaration of the Union, the internal police of each colony should be recognized as binding. In other words, the origins of American dual federalism are to be found in the resolutions of the revolutionary assemblies authorizing the Continental Congress to declare independence. They declared independence and union together, and there was never any time in which any state acted on the international sphere, having diplomatic relations—and the Constitution itself forbids each state to have any diplomatic action. They could not act independently of the other states in the international arena."

"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."

"If the people in this room were not citizens of the United States, if they were not citizens of any state, or of any sovereign government, and if we decided that we needed to, for our own protection, first beginning with safety—September 11th told us why we need each other for the sake of safety—form a government, we have to recognize, each one of us, that this government shall protect the right to life, and to liberty, and property of each one of us. No one of us can say that he deserves protection for the government to be formed, but not somebody else, or that somebody is entitled to more protection than anybody else. Anybody who demands more protection from the government than his fellow citizens won’t be accepted as a fellow citizen."

"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."

"You can not have free government if you can not bind the people who participate in the government to accept the results of the election. It is the exercise of our inalienable right to life that enables us, and justifies us, in forming legitimate governments. When those governments are formed, we cannot reject them because we don’t like the results."

"The 43rd Federalist deals definitively with this question. There was no question but that the Constitutional Convention, simply as a convention, had no authority of any kind. It did not form a government. But it said that the ratification of nine states shall then bring this new government into existence. The Congress of the Confederation transmitted the results to the country, the ratifications took place, and the government came into existence."

"Well, in the first place, I deny that Lincoln acted unconstitutionally at any time during the Civil War. It was a civil war. There were traitors in the midst of all of the free states. The possibility of recruiting soldiers and keeping them from deserting. There was lots of desertion on both sides of the Civil War, and it just happens that there were more Confederate soldiers executed for desertion than there were Union soldiers. But there were plenty of executions on both sides."

"It was a terrible war. The idea that the cost of the war is due to Lincoln is simply absurd. It was a terrible war because the country was deeply divided, and the question of the future of the nation, whether or not it would be based upon principles recognized as principles of individual liberty, or whether the idea of one race dominating another race would be accepted as a means for governance. Let me just read one short statement here that might interest you. "Since the Civil War, in which the Southern States were conquered, against all historical logic and sound sense, the American people have been in a condition of political and popular decay. ... The beginnings of a great new social order based on the principle of slavery and inequality were destroyed by that war, and with them also the embryo of a future truly great America." That has been the position of defenders of the Confederacy from Alexander Stephens through Thomas DiLorenzo. Do you know the man who said that was Adolf Hitler?"

"Well, Lincoln, in his July 4th Special Message to the Congress, 1861, said that the people of the South were a law-abiding people, and they would not have undertaken to do what they were now doing if it hadn't been for the invention of an ingenious sophism, according to which a state could secede from the Union without the permission of the Union or of any other state."

"The ratification of the Constitution was an action undertaken by all of the states which joined the union and adopted the Constitution, and that was a contract between them and among them—that they would abide by the results of the elections conducted under the rules of the Constitution, and that they could not act independently of the other states with which they had jointly and severally agreed and contracted to be governed by."

"No, on the contrary, the Constitution exists to protect that right. The important point is that the Constitution exists to protect individual liberty and individual property. In fact, the most important of all of the rights, really the foundation of all rights, are the rights to private property. But the right to private property is a right for each individual human being to own himself."

"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."

"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."

"And the war was a terrible war, but it was a war for human freedom, and if the South had succeeded and if slavery had been extended, the United States, or part of it, might very well have been on the side of Hitler in the Second World War. We would not have been the bastion of freedom we have been in the twentieth century."

"The motto of the United States is "e pluribus unum", or "from many, one." Originally, this referred to the one union formed from the many states. It became the motto of the country because we had to fight a great civil war to prevent the manyness of the states from destroying the oneness of the union. What led manyness nearly to destroy oneness was the presence of slavery in many of the states. The diversity that tolerated the difference between slavery and freedom had become intolerable. A crisis had been reached in which, according to the greatest American, the house divided had to cease being divided. It had to become either all free or all slave."

"Diversity in the service of freedom might be a very good thing. Diversity in the service of slavery might be a very bad thing."

"To allow slavery to be introduced into free territories, where it had not hitherto existed, was, Abraham Lincoln held, a very bad thing. His opponent, Stephen A. Douglas, held that it was a sacred right, belonging to the people of each territory, to decide for themselves whether or not to have slavery among their domestic institutions. According to Douglas, Lincoln wanted to destroy the diversity upon which the union had subsisted, by insisting that all the states ought to be free. But for Douglas himself, the principle of 'popular sovereignty' did not admit of exceptions. There was to be no diversity, no deviation from the right of the people to decide. For Lincoln the wrongness of slavery meant that no one, and no people, had the right to decide in its favor. For Lincoln, the principle of human equality, "that all men are created equal", did not admit exceptions."

"Ask yourself, if you or a loved one is to undergo brain or heart surgery, does it matter whether the surgeons who will operate had been selected for medical school for any other reason than their aptitude for medicine and surgery? Even if there were no quotas, should race have been "taken into consideration" in their selection? Consider the hairline life and death decisions that surgeons make all the time. Does not every consideration, however slight, apart from aptitude, dilute the qualifications of surgeons for surgery? The next time you are crossing a great bridge, do you not rely upon the qualifications of the engineers and builders to ensure your safety? What does the skin color of the classmates of doctors or engineers have to do with their medicine or their engineering? Is it not their professional qualification that matters, and not either the sameness or the differences from which they came? Is not the same true if we are seeking mathematicians, physicists, economists, or generals? In each case, what is apt for the end in view may be regarded as good, what is inapt may be regarded as bad."

""Diversity" as an abstraction has no meaning. Today, however, it means racial preference and nothing else. A commitment to diversity, apart from the ends it may serve, is absurd."

"Every human good we enjoy today is, directly or indirectly, a legacy from what the Founders wrought, and Lincoln preserved. That legacy was formed by what the American Founders called an experiment in free government, at the heart of which is a simple, yet radical idea; that under the laws of nature and of nature's God, all men are created equal. From this idea, and this idea alone, flow all the precepts of free government. If all men are created equal, it is unjust for one man to rule another without his consent. If men possess rights by nature, the purpose of government is to protect our natural liberty. As we know the purpose of government we know also of its limitations, and so we limit the power of government by writing a constitution, and requiring the government as well as citizens to live under the rule of law- laws which must be consented to by the citizens in order to be legitimate."

"Relativism, positivism, and nihilism — modern doctrines which mock wisdom and scorn virtue — have at the dawn of the twenty-first century come to dominate."

"In 1896, in Plessy v. Ferguson, the Court decided that 'separate but equal' did not violate the equal protection clause, and the South and not only the South relied upon this decision in building their systems of racially segregated public schools. The Court's 1896 decision can be explained in part by reason of the fact that the country—and the Western World generally—was then nearly submerged by the 'evolutionary' enlightenment. This movement, which dominated the intellectual elites in the universities, the law schools, and the media, denied the story of Creation in the Bible, and rejected the hitherto received idea that "God hath made of one blood all nations of men for to dwell on all the face of the earth." It entertained instead the idea that the races of mankind did not all emerge at the same time from the subhumanity which preceded their humanity. Evolutionary doctrine encouraged the idea that there was a fundamental inequality among the aforesaid races, and this idea virtually relegated to the "dustbin of history" the contrary idea, enshrined in the Declaration of Independence and the Gettysburg Address, "that 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."

"The original intent of the 14th Amendment, and of the Congress and the American people who ratified it, can best be understood in the light of the change it effected in antecedent constitutional law. Taney's opinion in Dred Scott was still in effect as the Civil War came to an end. By it Negroes, whether free or slave, could not be citizens of the United States. Although the 13th Amendment abolished slavery, it did not settle the question of Negro citizenship. This was however decided by the opening sentence of the 14th Amendment. "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." The intent of this sentence could however be frustrated if it were possible to make distinctions within citizenship, by which some citizens would have more rights, and others less. It was to prevent this that the Amendment went on to declare that "No State shall... deny to any person within its jurisdiction the equal protection of the laws.""

"The 14th Amendment was intended to drive a stake through the heart of Dred Scott. The heart of that opinion consisted in the assertion that Negroes were so far inferior that they had no rights which white men were bound to respect. This meant that as far as the Constitution was concerned, the distance between whites and blacks was no less than the distance between whites and any other inferior species. A white man had the same right to rule a Negro as he had to rule dog or a horse. Hence according to Taney blacks were not and could not have been included in the proposition "that all men are created equal." Whether or not they were intended to be so included was among the questions most fiercely debated by Lincoln and Douglas."

"No result of the Civil War was more fundamental than the authoritative assertion of the inclusion of human beings of any color and any ethnicity in the proposition of human equality. A consensus in favor of the colorblind Constitution is provided by the logic of reality and the logic of history."

"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."

"The equality of mankind is best understood in light of a two-fold inequality. The first is the inequality of mankind and of the subhuman classes of living beings that comprise the order of nature. Dogs and horses, for example, are naturally subservient to human beings. But no human being is naturally subservient to another human being. No human being has a right to rule another without the other's consent. The second is the inequality of man and God. As God's creatures, we owe unconditional obedience to His will. By that very fact however we do not owe such obedience to anyone else. Legitimate political authority—the right of one human being to require obedience of another human being—arises only from consent. The fundamental act of consent is, as the 1780 Massachusetts Bill of Rights states, "a social compact by which the whole people covenants with each citizen and each citizen with the whole people that all shall be governed by certain laws for the common good." The "certain laws for the common good" have no other purpose but to preserve and protect the rights that each citizen possesses prior to government, rights with which he or she has been "endowed by their Creator." The rights that governments exist to secure are not the gift of government. They originate in God."

"The great difficulty in forming legitimate governments is in persuading those forming the governments that those who are to be their fellow citizens are equal to them in the rights, which their common government is to protect. Catholics and Protestants in sixteenth-century Europe looked upon each other as less than human, and slaughtered each other without pity and without compunction. It was impossible for there to be a common citizenship of those who did not look upon each other as possessing the same right of conscience. How one ought to worship God cannot be settled by majority rule. A majority of one faith cannot ask a minority of another faith to submit their differences to a vote. George Washington, in 1793, said that our governments were not formed in the gloomy ages of ignorance and superstition, but at a time when the rights of man were better understood than in any previous age. Washington was right, in that such rights were, in the latter part of the eighteenth century, in America, better understood. But they were not perfectly understood, as the continued existence of chattel slavery attests. A difference concerning the equal rights of persons of color made the continued existence of a common government of all Americans impossible. A great civil war had to be fought, ending the existence of slavery, reuniting the nation and rededicating it to the proposition that all men are created equal."

"The United States is engaged today in a great mission to spread democracy to the Middle East, beginning with Afghanistan, and continuing with Iraq. The inhabitants of Iraq are divided into many groups and factions that hate and distrust each other. The attitude of Sunni and Shia Muslims toward each other resembles that of Catholic and Protestant Christians in the sixteenth century, which persist today in northern Ireland, each regarding the other as heretics. Under the tyranny of Saddam Hussein, the minority of Sunnis persecuted the majority Shias. It is understandable that the minority Sunnis are today resisting majority rule, while the majority Shia favor it. The Sunnis clearly believe that majority rule by Shia will be used as a means of retribution and revenge. The Sunnis look upon majority rule by the Shia the way the South looked upon the election of Lincoln in 1860. It is inconceivable to the Sunnis that the rule of the Shia majority will be anything other than tyranny. Indeed, it is inconceivable to them that any political power, whether of a minority or a majority, would be non-tyrannical. The idea of non-tyrannical government is alien to their history and their experience. They regard our assertions of Jeffersonian or Lincolnian principles as mere hypocrisy, as they see no other form of rule other than that of force. Our government assumes that the people of the Middle East, like people elsewhere, seek freedom for others no less than for themselves. But that is an assumption that has not yet been confirmed by experience."

"Our difficulty in pursuing a rational foreign policy in the Middle East—or anywhere else—is compounded by the fact that we ourselves, as a nation, seem to be as confused as the Iraqis concerning the possibility of non-tyrannical majority rule. We continue to enjoy the practical benefits of political institutions founded upon the convictions of our Founding Fathers and Lincoln, but there is little belief in God-given natural rights, which are antecedent to government, and which define and limit the purpose of government. Virtually no one prominent today, in the academy, in law, or on government, subscribes to such beliefs. Indeed, the climate of opinion of our intellectual elites is one of violent hostility to any notion of a rational foundation for political morality. We, in short, engaged in telling others to accept the forms of our own political institutions, without any reference to the principles or convictions that give rise to those institutions."

"According to many of our political and intellectual elites, both liberal and conservative, the minority in a democracy enjoys only such rights as the majority chooses to bestow upon them. The Bill of Rights in the American Constitution—and similar bills in state Constitutions—are regarded as gifts from the majority to the minority. But the American Constitution, and the state constitutions subordinate to it have, at one time or another, sanctioned both slavery and Jim Crow, by which the bills of rights applied to white Americans were denied to black Americans. But according to the elites, it is not undemocratic for the minority to lose. From this perspective, both slavery and Jim Crow were exercises of democratic majority rule. This is precisely the view of democracy by the Sunnis in Iraq, and is the reason they are fighting the United States."

"Unless we as a political community can by reasoned discourse re-establish in our own minds the authority of the constitutionalism of the Founding Fathers and of Lincoln, of government devoted to securing the God-given equal rights of every individual human being, we will remain ill equipped to bring the fruits of freedom to others."

"The principles upon which this nation was founded are those upon which its survival, no less than its prosperity, depend. These are the principles upon which we believe our freedom and prosperity as individuals, and that of our children depend. These principles are simple and familiar enough for anyone to understand who wishes to understand. Selfish motives, miseducation, or ideological blindness may lead some to deny or disparage them. But nothing can obscure their shining truth... Lincoln at Gettysburg said that the nation, at its birth, had been dedicated to the proposition that all men are created equal. Earlier, Lincoln had said that the proposition of equality was the 'central idea' of the founding, from which all its minor thoughts emanated."

"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."

"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."

"But one may ask, how is it that slavery, or any other form of invidious discrimination, has played so great a role in American history? How could a nation, dedicated at its birth to the proposition that all men are created equal, have tolerated slavery and its effects so long? If we look to the long history of mankind, however, we will ask a different question. Slavery was lawful in every one of the original thirteen states. There was accordingly nothing remarkable in the fact that slavery was not abolished immediately on independence. What is remarkable is that a slave-owning nation would declare that all men are created equal, and thereby make the abolition of slavery a moral and political necessity. To accomplish that task would not be easy. We need to see the dimensions of that task to appreciate its difficulty."

"Let us contemplate two epochal events in the long human story. One is the annunciation of the unity of God at Mt. Sinai. That same God was said to have made man, alone among living beings, in His image. Implicit in the unity of God was the corresponding unity of the human race. But it was only after more than three thousand years, that the Declaration of this unity was made in Philadelphia. One need not believe in direct divine intervention to think that it has been the peculiar mission of the American people to testify to the unity on earth of God, and of man. Such testimony could take no more evident form than in the denunciation of chattel slavery in the founding itself. That denunciation is prominent beyond doubt or denial, in the documents of the founding. Men of reason can agree with men of faith, that neither God nor man could have devised a more dramatic event than our founding to demonstrate to the world the meaning inherent in this unity."

"Lincoln was again and again to refer to the proposition, 'all men are created equal', as an 'abstract truth', a truth which was the life principle of American law. The implications of this truth were only partially realized, even for white men, and largely denied as far as black men were concerned. Yet it supplied the direction, the meaning, of all good laws in this country, although the attempt at that time to achieve all that might and ought ultimately to be demanded in its name would have been disastrous. A law is foolish which does not aim at abstract or intrinsic justice; and so is it foolish to attempt to achieve abstract justice as the sole good by succumbing to the fallacy to which the mind is prone, which regards direct consequences as if they were the only consequences. Those who believe anything sanctioned by law is right commit one great error; those who believe the law should sanction only what is right commit another. Either error might result in foolish laws; and, although a foolish law may be preferable to a wise dictator, a wise law is preferable to both."