Jaffa agrees with Bork, he says, that, “the notion that the Justices of the Supreme Court may in any way alter or amend the law of the Constitution by importing into it ideas or principles drawn from outside the Constitution itself is utterly abhorrent to sound jurisprudence. Like Judge Bork, I am devoted to the principle that the Justices of the Supreme Court are bound unqualifiedly by the positive law of the Constitution, and that the positive law of the Constitution is to be understood in terms of the original intent of those who framed it and those who ratified it.” What Bork fails to understand, according to Jaffa, is that “natural-law principles are present within the Constitution, as elements of the positive law of the Constitution.” Thus, Jaffa insists that he is, like Bork, a positivist — a proponent of the view that the only function of judges is to enforce enacted law — despite being a believer in natural law. In fact, he is chasing an oxymoron, “positive natural law.”

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Jaffa offers only two items of evidence in support of his implausible theory. First, his theory or something like it was asserted in the Republican Party platform of 1860, on which Abraham Lincoln ran for President. That platform, however, was another document created in an attempt to justify a non-legal or extra-legal violent action, the North’s waging war on the South to prevent its withdrawal from the Union.

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I must admit to feeling, however, that my demonstrating that Jaffa’s statements are false is somehow beside the point. I can be sure at least that it will have absolutely no effect on Jaffa; he has been doing his thing for much too long to be stopped now by logic or fact. If his treatment of Bork and Rehnquist (and others) is any indication, he will consider it a sufficient and appropriate response to issue a slanderous ad hominem attack. Thomas Pangle has noted that Jaffa “seems incapable of arguing issues in moral and political theory without labeling his opponents and their views immoral.”

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My difficulty with Jaffa is not that he is interested in discussing such things as “the goodness of the created universe” but that he wants to make it sound as if he is discussing law. He is not a professional theologian or moral philosopher, but a political scientist who claims to instruct on constitutional law. While metaphysics and theology are beyond my ken, constitutional law is my field of professional interest. I find it necessary to point out, therefore, that it is not constitutional law — or any form of human law, law created and enforced by government officials — that he is discussing. ~Lino Graglia, National Review

My thanks to one of my readers, Ian, for tracking this article down. After reading it, I am even more of the opinion that Jaffaism is to real constitutional law what Intelligent Design-as-science is to real science. If I had any doubt about my characterisation of what Harry Jaffa thought about the Constitution, it has been erased. In addition to being wrong about how the Constitution should be understood and interpreted (his own “incorporation” doctrine is even more laughable than the better-known, incorrect doctrine of the same name), this theory would empower the Supreme Court as high priests who interpret the meaning of natural law as revealed through the quasi-scripture of the Constitution. Not only does this have nothing to do with the ideas of the Founding Fathers concerning the role of the Court and the intent behind the Constitution, it is a positively dangerous intellectual justification for modern judicial tyranny or indeed an abuse of power by any branch of government that takes upon itself the mantle of Defender of the Faith of the Declaration. That Lincoln was the one who made this nonsense prominent and put it into a kind of action fits perfectly with Jaffa’s general logic of apologising for that tyrant. It explains why he would twist the Constitution to fit his scheme, because that is just what his hero did as it suited him. That is a kind of Jacobinism, and it is a kind that all real conservatives will always and everywhere oppose as the ideology of usurpation that it is.