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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