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Salvo 03.10.2021 20 minutes

“Too Much of a Unity”

For the People

Lessons for Our Current Crisis from the Other Harry Jaffa

Editors’ Note
We present the following original essay from Claremont Institute Senior Fellow Glenn Ellmers, author of the forthcoming The Soul of Politics: Harry V. Jaffa and the Fight for America. The book is a pathbreaking study of his teacher, Claremont McKenna Professor Harry V. Jaffa, Claremont’s intellectual godfather. The following essay, which applies Jaffa’s thought to our present crisis, will appear in two parts; the first is below, and the second will appear in the coming days.

The city comes in to being for the sake of life, but it continues for the sake of the good life.

—Aristotle, Politics

[The Declaration of Independence] was the word, “fitly spoken” which has proved an “apple of gold” to us. The Union, and the Constitution, are the picture of silver, subsequently framed around it. The picture was made, not to conceal, or destroy the apple; but to adorn, and preserve it. The picture was made for the apple — not the apple for the picture.

—Abraham Lincoln, “Fragment on the Constitution and Union”

The crisis of our time requires clear thinking about political means and ends, and the ways they are connected. The two epigraphs above address this central question of practical wisdom—the first from the general perspective of theory, the second as relates to the particular nation of the United States. Both quotations may be familiar to educated conservatives, and particularly to those students of political philosophy broadly associated with the Claremont school of thought. Yet there is a danger that such familiarity may breed, if not contempt, then the forgetfulness that settles on “sonorous phrases” which lapse into clichés. I would like to reconsider these arguments made by Aristotle and Lincoln—along with some related observations by James Madison and Thomas Jefferson—not as hackneyed commonplaces but as genuine insights that remain relevant and even urgent. Circumstances in the coming years may require new or unusual means to secure the ends of liberty and justice. Our thinking must be appropriately radical.

To assist this inquiry, I turn to the late professor of political philosophy Harry Jaffa, who saw with unsurpassed insight the connections between Aristotle, Lincoln, and the founders. Jaffa was perhaps the foremost discoverer and defender of Abraham Lincoln’s philosophic statesmanship. At the heart of that statesmanship was the preservation of the Union. Because the constitutionalism which established and secured the Union represented, in principle, the best regime achievable in the modern age, Jaffa saw the founding of the United States as a world-historical event, with theological dimensions. In Lincoln’s mind, Jaffa wrote,

the idea of a popular government that unites liberty and order, the idea of the Union, and the idea of rule by free elections are one and the same. Their inner unity may be said to resemble the Trinity, the three persons of God in Christian doctrine.

To see America in such grandiose terms is not an act of glorification, still less simplification. On the contrary, the metaphysical dimension of the United States helps to reveal the great complexities and challenges of the American experiment in liberty. Thus, “it is important,” Jaffa adds, “as in the case of Christianity, to understand the reasons for the distinctions within that threefold unity.” (emphasis added)

For much of American history (and in much of Jaffa’s own scholarship), the emphasis has been on the harmony or interdependence of these ideas: ordered liberty, Union, and free elections. Jaffa is perhaps most famous for his broad and unyielding defense of Lincoln as the true heir of Jefferson—which includes the contention that there is no constitutional right of secession, that the Declaration confirmed the American people as one sovereign nation, and that the Constitution instituted the perpetual Union of this people. While all this can be (and is) true, the picture is not quite as complete as it may first appear. “Nothing in the Declaration of Independence,” Jaffa once wrote, “notwithstanding its nobility, justified the assumption that the laws of nature and of nature’s God may not result in genuine dilemmas.” Only if “men had become perfectly enlightened,” he added, could we suppose that the United States—or any political regime—had resolved all dilemmas.

I would like to explore, then, why it may be more important now to understand the distinctions mentioned above. Under what conditions, and with what effect, might we see these elements of liberty, Union, and free elections coming apart? The mystery of Christianity’s triune God may be ineffable and beyond human understanding; but in any human community, there must be a rational balance between the whole and the parts, between centripetal and centrifugal forces. What happens when this balance is overturned?

Begin with the Declaration of Independence, which Jefferson and James Madison described as “the fundamental act of Union” of the United States. As the principal author of that document, Jefferson explained that it

was intended to be an expression of the American mind, and to give to that expression the proper tone and spirit called for by the occasion. All its authority rests then on the harmonizing sentiments of the day, whether expressed, in conversations in letters, printed essays or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, etc.

The first of these “elementary books of public right”—Aristotle’s Politics—was not only a principal source for Jefferson’s philosophy of government, but according to him, expressed the harmonizing sentiments of the American mind. What does that book have to tell us about the questions that concern us?

Two observations by Aristotle particularly command our attention: one is about the purpose or end of political life, and the other on the nature and limits of political unity.

In an entry he wrote for the International Encyclopedia of Social Science, Jaffa explains that for Aristotle, the political community “is the comprehensive form of human association, and its purposes ascend from the necessary conditions of human existence,” to the higher end of “formation of good character in the citizens….” This means that a healthy political order, or regime (in classical terminology), is not merely a collection of atomized individuals pursuing their animal needs, but a true partnership in pursuit of the good life. The good life, the end of all human activity—as Aristotle explains in his Nicomachean Ethics—is happiness. To secure the conditions for happiness, and pursue this partnership for the common good, civic friendship is essential. Jaffa explains that friendship, for Aristotle, “seems to hold political communities together more than does justice, and legislators seem to care for it more than for justice.”

In the United States, this pursuit of the good life is modified somewhat from what Aristotle proposes. The founders’ guarantees for religious liberty meant that—unlike the theocratic cities of the ancient world—our government would not attempt to perfect men’s souls directly. This did not, however, imply that the American regime would be indifferent to the moral virtue of the citizens. Indeed, all the founders agreed that self-government is only possible when men and women first exercise the good habits necessary to govern themselves. This is necessary before they can participate in political rule. Despite some important differences between ancient and modern politics, we see in the Declaration’s reference to happiness (as well as the ringing conclusion about “sacred honor”) Jefferson’s harmony with Aristotle about the primacy of the noble and good in human life.

These arguments suggest that our regime is just and worth defending to the degree that it promotes the conditions for human happiness. Aristotle’s Politics argues that when civic institutions and relationships break down, becoming an impediment to the pursuit of virtue and happiness, the regime ceases to perform its proper function and loses the support of its best citizens. 

If the first lesson from the Politics concerns the goal of political life, the second points to the form or structure of the political community. There is an important sense—from Aristotle’s point of view—in which the United States today needs less, not more, “unity.” We ought to have both unanimity, or at least broad agreement, on the principles of the regime—namely, that government is limited to protecting our equal, natural rights—as well as what The Federalist Papers calls “a multiplicity of interests.” A modern society with a modern economy needs and benefits from geographic, occupational, religious, and commercial diversity; no single interest group should have too much power. This balance between homogeneity and heterogeneity, however, has become inverted today. Everyone is now encouraged to believe in his or her own truth, while at the same time a centralized and suffocating factional interest seems to control all major institutions, in and out of government. Rejecting rational or revealed truth (grounded in either nature or the Bible) does not of course preclude an official ideology—which may reject the idea of truth yet command an allegiance enforced with the strictest severity. A similar inversion may occur when a color-blind society of multiple interests is replaced by a monolithic oligarchy obsessed with racial and ethnic differences.

A political community, Aristotle argues, aims at the highest good—happiness—and is thus the most comprehensive human association. Yet it must not destroy the subordinate, natural communities that are vital to that happiness. Above all, the political regime depends on (and certainly does not replace) the family. A political community, therefore, is properly understood as a compound, or complex unity. One of the great theoretical errors Aristotle argues against is to treat political life as all-encompassing—to make the regime “too much of a unity.” Rational reflection can discern that man has a fixed nature and proper end, but also that there are a multiplicity of other good things, which may vary for different human types, and may also differ according to circumstance. Therefore, not only families, but also a variety of private associations, neighborhoods, and many other smaller communities are essential. The whole must not overwhelm, and thus destroy, the parts. The common good requires both. Put into somewhat abstract philosophical terms, Jaffa explains that “Aristotle will not sacrifice heterogeneity to homogeneity, nor homogeneity to heterogeneity.”

Both of these points—about the ends of the regime and its proper form—are captured by a remark Aristotle makes in Book III of the Politics:

It is clear then that those constitutions that aim at the common advantage are rightly framed according to the just simply; while those that aim at the advantage of the rulers are deviations and departures from right constitutions. They are despotic, while a polis is a community of free men. (Translation by Jaffa.)

This philosophical background is necessary to help us understand what Jaffa called the dilemmas of American politics.

What, then, of the second epigraph quoted above?

Lincoln says that the Declaration does not exist for the sake of the Constitution. Rather, the purpose of the Constitution is to advance the Declaration’s principles of liberty and equality. (This too is an Aristotelian idea: the institutions or “offices” of every regime serve its arche—its central idea.) Many present-day conservatives suppose that this is a mere redundancy: of course the Constitution serves the goal of protecting individual natural rights. As Jaffa shows, however, we are mistaken to make such an assumption. American history has been defined since the beginning by near-constant struggles over the correct meaning or interpretation of the Constitution, as well as intense partisan debates about loyalty to (or betrayal of) the Spirit of ‘76.

Beyond the institutions and offices of the Constitution, and underlying principles of the Declaration, there is yet a deeper layer to the American political tradition—which is hinted at by Aristotle’s discussion of the nature of the political community. Before there can be institutions, or even purposes, for a government, there must be “a people” who form themselves into a political community. The American founders addressed this question through the theory of the social compact.

These abstract matters may seem far removed from the urgency of our current political situation. But a prudent solution to our present crisis will not be found without a clear understanding of both ends and means. What Jaffa has to teach us about all this is surprisingly timely and relevant to our present concerns. And these lessons, I think, will prove instructive even for those who feel a great urgency to take immediate action. “If,” as Lincoln said, “we could first know where we are, and whither we are tending, we could better judge what to do, and how to do it.”

To what degree, if at all, does the American regime still aim at being a partnership for achieving happiness, or the good life, and what might be done to refocus our political community to that end?

*          *          *

Today, the federal government—with the blessing of the Supreme Court—routinely flouts nearly every aspect of the founders’ Constitution. Judged only from this perspective, America is in bad shape indeed. We are unlikely to see a complete return to the original institutions and practices the framers established in 1787. A century or more of progressive education and political reforms have disfigured their ingenious handiwork almost beyond recognition. It may still be possible, however, to restore or sustain to some degree the Constitution’s underlying principles. Assuming such a recovery is still possible, success will depend mostly on state and local governments.

How would it work?

Recent news reports indicate that the attorney generals of several states are discussing potential lawsuits to challenge federal overreach by the new administration inaugurated in January 2021. Certainly, the Supreme Court has a role to play in such disputes. But one baleful consequence of progressive propaganda is that many Americans now simply assume that the courts are the ultimate arbiters of all such questions. Madison and the other founders, however, made a crucial distinction between legal controversies—over which judges and courts have final authority—and political disputes, which by their nature can and should be worked out by the elected officers of the state and national governments.

The very idea of such a distinction seems alien to our 21st-century sensibilities. The Constitution is law, and law is the purview of lawyers. Moreover, if the government is pursuing policies objectionable to the people, the solution is simply to replace such unfaithful stewards of the Constitutions, at the next election, with better representatives of the popular will. That at least is the common understanding today. But this is not quite how the founders viewed the matter.

We suppose today that the letter of the Constitution was always meant to be authoritative for all questions, and to serve as the highest authority to which any political question could be appealed. Conservatives who defend this premise, and liberals who acknowledge but reject it, are both mistaken. As strange as it may seem, the recognition of an authority higher than the positive law of the Constitution offers what is probably the only hope of recovering the limited self-government America used to embody. It is in this light that we must understand the role of the courts, elections, federalism, and even constitutionalism itself.

One of the paradoxes of the Constitution is that it invites—and in a sense, requires—disputes over its meaning. One strong proof of this, though not the only one, is that the original Constitution was a “bundle of compromises”—a famous description once known (long ago) to every schoolboy. This fact, among others, means that there can be loyal constitutional resistance to the authority of the Constitution. This is easy to misunderstand, so let us be clear about what this means. It does not quite mean that dissent is the highest form of patriotism—although that sentiment, difficult as it may be for some conservatives to accept, is not wholly wrong. Jaffa reminds us that the typical way for the constitutionality of a law to be challenged in court is for someone to violate it. The way he expresses this point seems surprisingly radical:

Anyone who is convinced that a given measure is not in pursuance of the Constitution is authorized by that fact to think that the measure is not a law and that he is not bound to obey it. Whether it is prudent for him to act on this opinion depends upon circumstances. If he is alone in this opinion, or nearly alone, he can do little until he persuades others to join him. But it is important to understand that civil disobedience or disobedience to a law that one does not believe has been passed in pursuance of the Constitution, cannot of itself be regarded as disloyalty to the Constitution. This is all the more true because the Constitution itself does not say how one can discover when a law is in pursuance of it. Much of American history is the tale of attempts, by one means or another, to resolve controversies as to what is in pursuance of the Constitution.

This does not mean that the Constitution is without objective meaning or authority, of course. Nor does it mean that every citizen is his own Justice of the Supreme Court. Civil disobedience, properly understood, includes accepting the punishment the law stipulates. And even if one is successful in getting a constitutional case to court, one might still lose. Therefore, it is not primarily individuals but the different levels and branches of the government—where powers are divided—which play the primary role in settling constitutional questions. Here, the states have an important role to play. Examining the profound debates the founders had about the relationship between the states and the federal government is surprisingly instructive for our own circumstances. Of particular relevance is the controversy over the 1798 Alien and Sedition Acts, and the responses by Jefferson and Madison. I encourage the reader to study these matters independently, since I can only touch on a few points.

First, we must confront a grave difficulty. Every discussion of state sovereignty since the 1830s has been irredeemably tainted by the issues of slavery and civil rights. While it is important to be mindful of the controversial history of this question, we also need to bear in mind that there are many sound and important arguments regarding federalism that have nothing to do with race. Moreover, it is precisely the sensitivity of this topic that highlights the crucial distinction between states asserting their authority to support equal natural rights versus denying them.

Jaffa explains in a compact paragraph, how we should approach this topic:

If we understand the Kentucky and Virginia Resolutions as Jefferson and Madison understood them at the time, the defense of state rights and the defense of civil liberty formed part of a single argument. Looked at in the light of nearly two centuries, however, they stand at the headwaters of two divergent trends in American political and constitutional history. The defense of state rights against “numerical majoritarianism” and the “tyranny of the majority” became in time a defense of slavery and, after that, of Jim Crow…. For Jefferson and Madison, however, the rights of the states, as of all legitimate civil societies, were grounded in the natural rights of individuals, as proclaimed in the Declaration of Independence and the bills of rights of the states. The rights of the states and the condemnation of slavery were part of the same doctrine.

“To understand the election of 1800,” (in which Jefferson’s Republican party ousted Adams’ Federalist party) Jaffa points out that “we must not read back into it the opposition between state rights and civil liberties” that led to the Civil War.

That’s a lot to unpack. Let me clarify a few items.

First, the framers’ whole concept of an extended, representative, commercial republic was an innovation—part of their improved political science. They believed that dividing and mixing governmental authority was a shrewd way to keep tyranny in check. But it did so by opening the door to endless wrangling and disputations. Federalism in the American context meant more than what had previously been understood by “federation,” and was thus a knotty issue from the beginning. Jaffa notes that the arrangement created by the Constitution,

by being “partly federal and partly national,” as Madison says in the Federalist No. 39, corresponded to no prior theoretical understanding of what either the federal or the national was. It is not surprising that in controversies concerning the nature of the regime, the partisans should choose between its federalism and its nationalism, and interpret the one in light of the other…. To call the Constitution of the United States partly national, and partly federal was very much like saying that in the new Union, the states were neither maids nor matrons, but that their status was nevertheless legitimate. Clearly there was a new and imperfectly understood “family” relationship in this Union. The rights of the respective parties were far from settled by the founding fathers….

Even before the controversies of the Adams administration, Madison anticipated that an overbearing national government might need to be kept in check by popular resistance, either directly by the people en masse, or through the states. In Federalist 46 he writes that “ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only.” Rather, overreach by Washington, DC would ignite “signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole.”

Madison was clearly wrong about the states standing up for their own jurisdictional authority, not to mention the reserved rights of their people. The gradual weakening of the states’ leverage over the federal government (though the direct election of senators in the 17th Amendment, for example) has generally taken place not over their objections, but with the active cooperation of state governments.

More surprising (to us) is how Madison sees the tension in what we might call revolutionary terms. As Jaffa explains, Madison’s argument is

remarkable for seeing the hypothetical conflict between the federal government and the states under the Constitution as not different in kind from the recent “contest with Great Britain.” Although Madison denies any probability of such a conflict, he anticipates the Jefferson of the Kentucky Resolutions in seeing potential usurpations by constitutionally elected officials to be as dangerous to liberty as the usurpations of the British Crown and Parliament…. And he assumes the same unanimity of the people in resisting the “ambitious encroachments” of their own representatives that Jefferson attributed to “all American whigs” during the Revolution. In the extraordinary means of resistance described in Federalist 46, the role of free elections in deciding political-constitutional differences, to which Lincoln would appeal in 1861, is not visible.

As mentioned above, we tend to see judicial review as the sole means of keeping the government faithful to the Constitution, and elections as the singular guarantee of the people’s liberty. The framers were less naïve, or perhaps more cynical. They anticipated, and engaged in, much more raucous and turbulent political fights than what we became accustomed to in the 20th century. (Those who think the political divisions of the last few election cycles are uniquely acrimonious have little sense of American history.) From the founders’ perspective, most Americans today have become pathetically meek and passive. And state and local governments—the representatives closest to the people who were intended to be the strongest guardians of individual rights—don’t yet seem willing to offer more than token opposition to unconstitutional encroachments by the federal authorities.

Could this change?

For governments at the state (and to some degree, local) level to find the courage to act, their officials must be shown a compelling case for both the legitimacy and urgency of counterbalancing action. Then there is the small matter of what they would do. This last point may seem like the most important. I’m not sure it is. In any event, the precise contours of what specific activities they might undertake are 1) outside my expertise, 2) would vary from state to state, and 3) depend on the prudent appraisal of circumstances best left to the state officials themselves. Madison himself, in the Virginia Resolution, and the later Report of 1800, was more nuanced and less radical than Jefferson (not surprisingly), and also somewhat vague about what “interposition” against federal overreach would entail. In the end, both the Kentucky and Virginia resolutions went no further than calling for public debate on the issue, and encouraging the Adams administration to remain within the constitutional limits of its powers. We should bear in mind, however, that the federal intrusions that so agitated Madison and Jefferson were extraordinarily mild—almost nothing, really—compared to our current situation.

Because the muscular federalism imagined by the founders has become so badly atrophied, it is crucial to understand first and foremost what can justify decisive action by the states. Again, Jaffa, the great Lincoln defender, supplies surprisingly strong support for this position—a fact that becomes less surprising once we appreciate that states can protect, not merely reject, the principles of the Declaration. “An elected government,” Jaffa writes, “has no more moral or legal right to arrogate authority or employ powers not delegated to it by the people through the constitution than a nonelected government.” In fact, he adds, when “a freely elected government usurps authority, it too may by this fact invite resistance.” What exactly does that mean?

Recall the speculation at the beginning of this essay about whether ordered liberty, free elections, and Union are losing their interdependence. Jaffa elaborates on this point eloquently in his book, A New Birth of Freedom (2000). His observations deserve to be quoted at length:

That the powers usurped by an elected legislature should be resisted in and by the electoral process—that is to say, by “throwing the rascals out” in the next election—may be the mode that now appears most desirable and most compatible with republican principles. But that depends upon the circumstance that neither side in a contest believes, or has reason to believe, that its political opponents intend to use the power of government, gained by election, to deprive it of its equal natural rights. Indeed, no one can accept as a fellow citizen anyone who does not see the process of voting as a means to implement the equal rights of everyone. Before the votes are counted, it must be understood that the winner represents those who voted against him no less than those who voted for him. Above all, the president of the United States, the commander in chief of the armed forces, who has the ultimate responsibility for the security of the entire nation, is the representative of every citizen. If such an understanding does not prevail, as it obviously did not in 1860, then the political process envisaged by the Declaration of Independence and the Constitution cannot function…

The Kentucky and Virginia Resolutions, by their contribution to the electoral victory of the Republicans in 1800, contributed to the unprecedented world-historical event we noted at the outset: the peaceful and nonpunitive replacement in the offices of government of one party by its bitterest political rivals, on the basis of a free decision by a whole people at the ballot box. Likewise, as we have noted, both judicial review and civil disobedience have been, at one time or another, elements in the electoral process, since they have been means of focusing the attention of voters upon the issues to be decided. But once one concedes that even a lawfully elected government may govern unconstitutionally, one must concede that free elections, in and of themselves, do not confer final legitimacy.

The alarm raised by Jefferson and Madison in 1798, calling on the states to assert their constitutional stature and authority, was prompted by the recognition that elections alone cannot provide a sufficient guarantee for the protection of rights and the pursuit of good government. The states, no less than the federal government, exist as political entities solely by the authority of the people. Each part of the framers’ political system is duty-bound to exercise its constitutional responsibilities, especially when a different element seems to be malfunctioning. Obviously, in all matters of national importance, the national government must be supreme. Yet, as Jaffa pointed out, both the federal and state government have an “identical foundation in the sovereignty of the people,” and in that respect are only distinguished “by their different jurisdictions.” There is nothing inappropriate in the states affirming their powers, especially in matters where it is their particular jurisdiction (over nearly all matters of “health, safety, and welfare”) that may be at issue. What is inappropriate, indeed inexcusable, is the failure to act if indeed elections at the federal level are proving inadequate to secure the common good. “The purpose of majority rule is to protect the equal rights of all,” Jaffa explained. “Whenever that proposition is not credible, free or constitutional government—government based on compact—breaks down.”

Well, those are some powerful statements. What is not yet entirely clear is whether or how they in fact apply to our situation today. To understand that, we need to get behind the idea of free elections and see what makes them possible in the first place.

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