Freedom to Live
On October 14, 2005, Dr. Harry Jaffa lectured at The Trinity Law and Trinity Graduate Schools in Santa Ana, CA on “The Moral Foundations of the Law”.
Dr. Jaffa is one of the original founders of the Claremont Institute and author of numerous books including “A House Divided” and “A New Birth of Freedom”.
I arrived early at this seminar just as Harry Jaffa arrived in an entourage of two Claremont McKenna College students who had acted as his chauffeurs. Jaffa appears frail, and somewhere in his 80s, but he remains intellectually engaging and immensely knowledgeable on matters of history and political science. His most recent book, “A New Birth of Freedom” traces the principles of natural law in the context of Lincoln’s arguments for constitutional equality of the black race.
These arguments have a quaint feel about them in a society in which even Justice Scalia, a conservative, dismisses the Declaration of Independence as irrelevant to constitutional interpretation. This point is not lost on Jaffa, who notes that the Declaration is one of the nation’s 4 recognized sources of “organic law”. Organic law is derived from four central legal documents in U.S. History: The Northwest Ordinance, the Articles of Confederation, the Declaration of Independence, and the U.S. Constitution. These documents cumulatively state our abiding principles as a civilized society, and set the framework by which we are to govern ourselves.
Jaffa relaxed a few moments before his lecture, noting that the trip from Claremont was long, slow, and uncertain. His student’s car, with a history of overheating, made the trip only by running the heater to release excess heat. Jaffa is apparently unable to drive, or unwilling at his age, and so unsteady on his feet that he required the assistance of his students to climb the four steps to the entrance to Trinity. Yet, he was energized during the lecture itself, repeatedly declining to rest or take a break, until much younger law students initiated a break for themselves. Meanwhile, Jaffa spoke and answered questions for nearly 3 hours of uninterrupted time on his feet, and remained animated with the subject of natural law and the current (and prospective) U.S. Supreme Court.
Jaffa, and probably every conservative academic in the U.S., takes a fatalistic position: Roe v. Wade is likely to stay the law, and die a slow death by increasing limits on its availability as the law shifts to accord the States greater power to decide the protections to be accorded to unborn human life. Jaffa believes the correct Constitutional outcome is the right interpretation of federalism, that is, that the decision of the right to life, or the right to terminate pre-born life, rests with the States.
I questioned Professor Jaffa on this point. If the 14th Amendment requires the States to apply principles of due process of law as a condition of depriving “citizens” of life, then is not the U.S. Supreme Court authorized to conclude that preborn human life is a “person” under the law. Are not the States then mandated to provide equal protection of the laws to “unborn” persons as well as “born?
Jaffa answered the question obliquely: Lincoln, he noted, made two arguments: African Americans were indeed persons within the meaning of the words: “We hold these truths to be self-evident . . . that all men are created equal”. The other argument, strangely inconsistent with the first argument, was that African Americans were not thereby to be considered politically equal for all purposes. By that he meant that in the interest of preserving the Union, he was prepared to allow the Southern States maintain the institution of slavery. He was however unprepared to allow it to spread to the territories and new states. As a condition of Statehood, the Congress would preclude any law allowing Slavery in the new State. In this way, Jaffa told me, as best I can infer, that the realities are such that overturning Roe v. Wade will not occur outright, but with time its intellectual and legal underpinnings can be removed, until it collapses as precedent.
I later asked Jaffa another question, since I continued to be troubled at the idea that an ethical question of first magnitude could be resolved based by political compromises. I asked him to imagine the state of affairs resulting from his suggestion that the U.S. Supreme Court defer the question of what is “personhood” under the law to the individual states. The result will be that different states will hold different positions, and “personhood” and the “right to due process” will depend on the accident of geography for the hapless infant. The morally unsustainable result will be that a “person” carried in the womb in one state will become disposable biological “property” of the mother as she crosses into another state to obtain an abortion. Only if the U.S. Supreme Court finds that the unborn child is a person under the law can the nation achieve moral and legal integrity. The States then would be required to protect the lives of unborn children with the same equal protection of the laws afforded all citizens.
Jaffa acknowledged the patchwork result, and it ethical implications, but again, I sensed he talked obtusely to the “realities” of the last 30 years of precedent and the unlikely action of the Court to reverse its earlier statements that Roe was woven into the fabric the culture too tightly to be unwound. Again, Jaffa was ready to take whatever ground a compromise might offer: perhaps a waiting period, or a mandatory disclosure of alternatives to abortion, or other restriction as might be enacted by an individual state. California, on the other hand, would be free to continue as it does: offering unlimited access to abortion through the 9th month.
In the end, Professor Jaffa’s lecture left me with this question: if we state that human life is entitled to dignity, then what is the measure of “dignity” to be accorded to unborn human life? There is no logical or scientific justification for a double standard of dignity for pre-born and post-born human life. Helplessness has never been an impediment to dignity. To the contrary, helplessness is the test of dignity, for dignity is intrinsic, not earned or conditional. Human dignity is first expressed by the protection of the laws against abuses of power by the enfranchised against the weak and voiceless. This is the great calling of the law, and the highest trust given to the Court. It is the spirit and heart of our nation that “equal opportunity” to life and prosperity is accorded to all without regard to status, wealth, or lineage. Each “person” is to be accorded the opportunity to realize and use his natural talent, skill, and drive to achieve his measure of happiness. This opportunity is constitutionally the right of the unborn, and to the extent Roe v Wade states otherwise, it fails as moral law.
