Shain on Jaffa

Originally published in 2007, it was just recently re-published here.

According to Jaffa, then, the poorly defined natural-law doctrines embodied in the Declaration are fully incorporated in the positive law of the United States Constitution. It is, therefore, to the Declaration, and its condensed natural-law holdings, that Supreme Court Justices should turn for guidance in properly interpreting the constitutionality of positive law.29

Missing from this part of Jaffa’s account, though, are two things: facts and common sense. Simply put, Jaffa’s claimed connection between these documents is offered wholly without evidence. As Lino Graglia reminds us “the Constitution makes no mention of the Declaration of Independence, and Jaffa has not produced a single statement by anyone at the constitutional convention or during the rati-fication debates indicating that it was intended to incorporate the Declaration.”30 Of great interest here is the ex-change between Justice Scalia and Jaffa. Jaffa writes that “in response to a question of the relationship of the Constitution to the Declaration of Independence— and to ‘the laws of nature and of nature’s God’—Scalia responded as follows: ‘Well unfortunately, or to my mind fortunately, the Supreme Court of the United States, no federal court to my knowledge, in 220 years has ever decided a case on the basis of the Declaration of Independence. It is not part of our law.’ … [As Jaffa then explained] Scalia is simply mistaken when he says that the Declaration of Independence is ‘not part of our law.’”31 ...