Merriam has argued that various forms of originalism have been devised in order to recover a sense of republican government. This originalism was meant to avoid a straying of the Constitution after our political culture had begun to change. But this may be a case of closing the barn after the horse has already bolted.

In any case, like Pulliam, I have no idea of what the Claremonters’ claim to an identifiably conservative higher morality is based on. But something may be necessary to fill this void on the right, since the left has a foundational norm: social-cultural destruction. And the only hope I see for buying time against its march through the courts is the frail reed of originalism.

https://www.chroniclesmagazine.org/2020/June/44/6/magazine/article/10886192/

By Paul Gottfried

A debate unfolded in March last year in American Greatness between Chronicles contributor Mark Pulliam and the Claremont Institute’s Edward Erler, a devotee of Harry Jaffa. According to Erler, Robert Bork and others who adhered to strict constitutional originalism were essentially moral nihilists because they would not apply natural law standards to our governing document.

From Erler’s Jaffaite perspective, the Constitution’s authors supposedly viewed the Declaration of Independence as America’s true founding text. The Founders supposedly felt the Constitution had to be interpreted through the passage in the Declaration about all men being created equal. That “natural right” principle enabled the Founders, and later Abraham Lincoln and Civil War-era Radical Republican Thaddeus Stevens, to grasp properly the Constitution’s true meaning. In contrast, Erler alleged, Bork and Pulliam’s morally adrift originalist views would uphold abortion laws and other outrages, provided they were enacted under constitutional rules.

Erler’s brief reveals questionable assumptions. For example, even assuming the authors of the Constitution thought the Declaration was important, we have no reason to think the Founders were infatuated with the phrase “all men are created equal.” There were certainly other thoughts found in the Declaration; perhaps the most relevant fact about it for the Constitution’s writers was that it recognized the independence of the American colonies. Praise for that document when I was growing up in the 1950s centered on the achievement of American independence, and far less on the equality that Erler wants us to celebrate.

Although Lincoln stressed a founding based on the notion that “all men are created equal,” he did so during the Civil War to justify a bloody invasion of the seceded Southern states, as driven by a crusade against slavery. Why should we make Lincoln’s wartime strategy the cornerstone of the American national experience going back to the gaining of national independence in 1776? And why would I think, like Erler, that Radical Republican efforts to create a permanent black electorate in the South, partly by stripping former Confederate soldiers of their citizenship, was driven by Harry Jaffa’s favorite passage in the Declaration? Why wouldn’t I rather think that Stevens and other ruthless business tycoons were just taking advantage of their onetime fellow-Americans who lost disastrously in a bid for independence? Read the rest of this entry »