Part 1 of 3: Rediscovering the Unadulterated Constitution and its Natural Rights’ Pedigree

An extract of portions of the treatise, The Kiss of Judice: The Constitution Betrayed—A Coroner’s Inquest & Report. Extract covers the relationship of the Constitution and the Declaration of Independence, the meaning of the rights specified in the Declaration, and some related matters.]

[The work is a dialogue between the Coroner and his jury on the various parts of the Constitution covered. The jury members answer the Coroner’s questions, for the most part in their own words, drawn from a variety of their written works. Occasionally (as just below with Madison) the Coroner puts words in their mouths; those “inventions” are shown in brackets in the jurors’ answers.]

Table of Contents

Section 1. Rediscovering the Unadulterated Constitution and its Natural Rights’ Pedigree

§1:10. The relationship between the Declaration of Independence and the Constitution

§1:100. ‘Need for frequent recurrence to fundamental principles . . . as a necessary safeguard to liberty’―Mr. Madison

§1:101. The Declaration is an integral part of the Constitution

§1:102. ‘[The Declaration is the] holy bond of our Union’—Mr. Jefferson

§1:103. Even the Constitution itself is subject to higher law

§1:104. The Declaration overrides the rest of the Constitution in cases of inconsistency

§1:11. Fundamental political principles and basic individual rights protected by the Declaration (and the Constitution)

§1:110. Equality—‘All men are created equal’

§1:111. Natural rights may not be given up or taken away—‘[Men] are endowed by their Creator with certain unalienable rights’

§1:112. Basic rights endowed—‘among these are Life, Liberty and the Pursuit of Happiness’

§1:1120. Right to life

§1:1121. Right to liberty

§1:1122. Right of pursuit of happiness

§1:113. Purpose of government—‘to secure these rights, Governments are instituted among men’

§1:114. Government powers originate from consent—deriving their just powers from the consent of the governed

§1:115. Right of revolution

§1:116. Right of representation

Section 2: The Preamble: ‘Better recognition of popular rights than volumes of aphorisms’

§2:0. Why the Preamble? What it reveals about the Constitution

§2:00. Preamble: ‘a seamless weld’ between the Declaration and the Constitution—Dr. Eaton

§2:01. Preamble: ‘key to open the mind of the makers’―Mr. Justice Story

§2:02. The meaning of the Constitution is furnished by the evils to be cured or benefits to be obtained—Mr. Madison

§2:03. Preamble: not to be used to augment constitutional powers―Mr. Justice Story

Section 1. Rediscovering the Unadulterated Constitution and its Natural Rights’ Pedigree

* * *

§1:10. The relationship between the Declaration of Independence and the Constitution

§1:100. ‘Need for frequent recurrence to fundamental principles . . . as a necessary safeguard to liberty’―Mr. Madison

Coroner: Our next subject seems more controversial, however: “Is there any relation between the Declaration and the Constitution?” (We will get to that in a minute.) Today’s crowd of what are known as “legal positivists” would say the there is no relationship, because the Declaration is not positive law; and because the Constitution stands on its own. Let’s start with you, Mr. Madison, the Father of the Constitution. Are the positivists wrong?

Mr. Madison: [Completely dodo. The positivists disdain the higher law or natural law which is the foundation of both the Declaration and the Constitution. Justice Holmes, perhaps the father of legal positivism wrote, “The first requirement of a sound body of law,” wrote Holmes, “is that it should correspond with the actual feelings and demands of the community, whether right or wrong.”[i] As Professor Glennon wrote recently, “This insight will be anathema to continuing believers in natural law . . . .” He was right. It is anathema to all of us here, I think, though Professor Glennon calls believers in natural law, “the armchair philosophers who ‘know’ what principles must control states, whether states accept those principles or not.”[ii] I certainly take issue with the rejection of natural law he advocates in the article.]

Coroner: I should like to welcome Professor Albert Alschuler to our proceedings. Professor, in a magazine article, you spoke of Oliver Wendell Holmes. What was the question and answer?

Professor Alschuler: These:

Q. In his new book, Law Without Values: The Life, Work, and Legacy of Justice Holmes,[iii] Albert Alschuler, the Wilson-Dickinson Professor in the Law School, offers a fresh and controversial view of the legendary Supreme Court Justice Oliver Wendell Holmes Jr., who served on the high court from 1902 to 1932. Alschuler, one of the preeminent criminal law scholars in the United States, takes issue with the prevailing view of Holmes as a wise and benevolent giant of American jurisprudence. Alschuler grants Holmes’ extraordinary influence but argues that his legacy was mostly pernicious.

Q. What was the genesis of your negative view of Holmes?

A. When Provost Geoff Stone was Dean of the Law School he encouraged me to develop a course on 20th-century American legal theory. The more I looked into Holmes’ work and his influence on later American thinkers, the more I became convinced that his impact on law was unfortunate. There have been many recent studies of Holmes, nearly all of them adulatory. Law students are taught that Holmes led a revolt against formalism at the beginning of the 20th century. I agree that there was an intellectual revolution at that time, but it was not a revolt against formalism. It was a revolt against natural law―the long-held belief that some things could be truly right or wrong and that law was about more than satisfying the tastes and interests of particular individuals and particular groups. The older way of thinking about things has all but disappeared. Holmes and other American jurists of the late 19th and early 20th centuries, though often painted as adversaries, actually were all committed to this remarkable transformation of legal philosophy.[iv]

Coroner: Thank you, Professor. Mr. Madison, is the existence of natural or higher law why so many state constitutions, including Virginia’s,[v] speak of the need for “frequent recurrence to fundamental principles”?

Mr. Madison: [Yes. Frequent recurrence ] is . . . a necessary safeguard against the danger of degeneracy, to which Republics are liable as well as other Governments, though in a less degree than others.[vi]

Coroner: Disraeli said, “A precedent embalms a principle.”[vii] As we shall see ahead, the Declaration was the precursor or precedent for the Constitution; thus it is embalmed in the Constitution. And frequent recurrence requires that in interpreting the Constitution, we ought recur to the Declaration.  Mr. Jefferson, what say you on “frequent recurrence?

Mr. Jefferson: [Frequent recurrence to fundamental principles is necessary to remind us and our rulers that] our rulers can have no authority over [our] natural rights, only as we have submitted to them.[viii] [And t]he idea is quite unfounded that on entering into society we give up any natural right.[ix]

Coroner: Mr. Jefferson, you were an educator and founder of the University of Virginia. What written works did you recommend for law students at the University?

Mr. Jefferson: [Except for The Kiss of Judice,] I think there does not exist a good elementary work on the organization of society into civil government; I mean a work which presents in one full and comprehensive view the system of principles on which such an organization should be founded, according to the rights of nature. For want of a single work of that character, I should recommend [John] Locke on government,[x] [Algernon] Sidney,[xi] [Joseph] Priestley’s Essay on the First Principles of Government,[xii] Chipman’s Principles of Government,[xiii] and The Federalist; adding, perhaps, [Cesare] Beccaria on Crimes and Punishments[xiv], because of the demonstrative manner in which he has treated that branch of the subject. If your views of political inquiry go further to the subjects of money and commerce, [Adam] Smith’s Wealth of Nations[xv] is the best book to be read, unless [Jean Baptiste] Say’s Political Economy[xvi] can be had, which treats the same subjects on the same principles, but in a shorter compass and more lucid manner.[xvii]

Coroner: Is that a good list, Mr. Madison?

Mr. Madison: [Excellent.] It is certainly very material that the true doctrines of liberty, as exemplified in our political system, should be inculcated on those who are to sustain and may administer it. It is, at the same time, not easy to find standard books that will be both guides and guards for the purpose. Sidney and Locke are admirably calculated to impress on young minds the right of nations to establish their own Governments, and to inspire a love of free ones . . . .[xviii] [I would add to the list:] And on the distinctive principles of the Government of our own State, and of that of the United States, the best guides are to be found in—1. the Declaration of Independence, as the fundamental act of Union of these States. 2. The book known by the title of the Federalist, being an authority to which appeal is habitually made by all, and rarely declined or denied by any, as evidence of the general opinion of those who framed and those who accepted the Constitution of the United States on questions as to its genuine meaning. 3. The Resolutions of the General Assembly of Virginia in 1799, on the subject of the Alien and Sedition laws, which appeared to accord with the predominant sense of the people of the United States. 4. The Inaugural Speech and Farewell Address of President Washington, as conveying political lessons of peculiar value; and that in the branch of the school of law, which is to treat on the subject of Government, these shall be used as the text and documents of the school.[xix] [I would, of course, also add The Kiss of Judice, as probably the most complete work on the Constitution, ever completed by an author from Ely, Minnesota, at any time after the year 2010.]

§1:101. The Declaration is an integral part of the Constitution

Coroner: Thank you. Mr. Madison, what is the relationship of the Declaration to the Constitution?

Mr. Madison: [The Declaration forms the basis of our Constitution.] What is a portion of the Declaration of Independence but a series of simple and undeniable truths or truisms? what but the same composed a great part of the declarations of rights prefixed to the State constitutions? * * *

[To expand on what I started to say earlier:] It will be remembered that a frequent recurrence to fundamental principles is solemnly enjoined by most of the State constitutions, and particularly by our own, as a necessary safeguard against the danger of degeneracy, to which Republics are liable as well as other Governments, though in a less degree than others. And a fair comparison of the political doctrines, not unfrequent at the present day, with those which characterized the epoch of our Revolution, and which form the basis of our Republican constitutions, will best determine whether the declaratory recurrence here made to those principles ought to be viewed as unreasonable and improper, or as a vigilant discharge of an important duty. The authority of constitutions over governments, and of the sovereignty of the people over constitutions, are truths which are at all times necessary to be kept in mind; and at no time, perhaps, more necessary than at present.[xx]

§1:102. ‘[The Declaration is the] holy bond of our Union’—Mr. Jefferson

Coroner: Mr. Jefferson, there are “some who have attempted to criticize the text of the Declaration on the basis that its ideas were borrowed from other writers. But [you] never claimed otherwise; [you] readily acknowledged the influence on his own thinking of the many theorists he had studied up to that time.”[xxi]

Mr. Jefferson: [Yes.] With respect to our rights, and the acts of the British government contravening those rights, there was but one opinion on this side of the water. All American Whigs thought alike on these subjects. When forced, therefore, to resort to arms for redress, an appeal to the tribunal of the world was deemed proper for our justification. This was the object of the Declaration of Independence. Not to find out new principles or new arguments never before thought of, not merely to say things which had never been said before; but to place before mankind the common sense of the subject, in terms so plain and firm as to command their assent, and to justify ourselves in the independent stand we [were] compelled to take. Neither aiming at originality of principle or sentiment, nor yet copied from any particular and previous writing, 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 conversation, in letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, etc.[xxii]

Coroner: How would you describe the importance of the Declaration?

Mr. Jefferson: [As I put it another time: the Declaration of Independence, is the] “holy bond of our Union.”[xxiii]

Coroner: And as reported elsewhere: “Nearly half a century after 1776, [you] expressed to [your] old friend James Madison the hope that Americans would always remember the Declaration and cherish its ideals, ‘and it is a heavenly comfort to see that these principles are yet so strongly felt . . . . I pray God that these principles may be eternal.’”[xxiv]

Mr. Jefferson: [Yes. That must have been shortly before my death. Did you know that John Adams also died on July 4, 1826, the 50th Anniversary of the Declaration?]

Mr. Adams: [When I was dying, I was reported to have said, “Jefferson still lives.”]

Mr. Jefferson: [Well, you were wrong; I had by then crossed the bar. And how do you know what you were reported to have said, since you died almost immediately after reportedly uttering those noble words?]

Mr. Adams: [Well, how would you know when I said what I was reported to have said moments before I died, if you were already dead?]

Mr. Jefferson: [In Heaven, we get reports. How come I haven’t seen you around?]

Mr. Adams: [Well, I’m in the Congregationalist Complex, playing shuffleboard almost every day. What part of Heaven are you in?]

Mr. Hamilton: [Jefferson’s in atheist “heaven”, which is a far different and warmer place.]

Mr. Jefferson: [Idiot. I’m located in the Deist Dormitory next to the Unitarian Valhalla. Hamilton, I’m certain, went due South, and ended up in the Eighth Circle, 10th pouch, set aside for false moneyers. There he is not too far away from his dueling opponent, Burr, who resides [P:6]↑ fixed in ice in the Ninth Circle, 2nd ring, the permanent home of traitors, the home of Ugolino who passes away eternity gnawing on the head of Ruggieri.[xxv]

Hamilton ended up there, mainly because his] financial system . . . had two objects. First, as a puzzle to exclude popular understanding and   inquiry. Second, as a machine for the corruption of the [congress] . . . .[xxvi] In the bill for funding and paying these, Hamilton made no [distinction] between the original holders and the fraudulent purchasers of this paper.[xxvii]

Mr. Hamilton: Mr. Jefferson, with very little reserve, manifests his dislike of [my] funding system generally; calling in question the expediency of funding a debt at all. Some expressions which he has dropped in my own presence (sometimes without sufficient attention to delicacy) will not permit me to doubt, on this point, representations which I have had from various respectable quarters. I do not mean that he advocates directly the undoing of what has been done; but he censures the whole, on principles, which, if they should become general, could not but end in the subversion of the system.[xxviii]

Coroner: Mr. Jefferson, does the Declaration embody the ideas of liberty and property here expressed by you, Mr. Madison, and Mr. Locke?

Mr. Jefferson: [Yes. As I just said,] All [of the Declarations] authority rests, then, on the harmonizing sentiments of the day, whether expressed in conversation, in letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, etc.[xxix]

Coroner: Mr. Hamilton, what’s your view of whether the Constitution embodies the Declaration?

Mr. Hamilton: [It does. As I said in response to The Federal Farmer’s objection to the Constitution,] the fundamental source of all your errors, sophisms, and false reasonings, is a total ignorance of the natural rights of mankind. Were you once to become acquainted with these, you could never entertain a thought, that all men are not, by nature, entitled to a parity of privileges. You would be convinced, that natural liberty is a gift of the beneficent Creator, to the whole human race; and that civil liberty is founded in that; and cannot be wrested from any people, without the most manifest violation of justice. Civil liberty is only natural liberty, modified and secured by the sanctions of civil society. It is not a thing, in its own nature, precarious and dependent on human will and caprice; but it is conformable to the constitution of man, as well as necessary to the well-being of society.[xxx] Here, sir, the people govern; here they act by their immediate representatives.[xxxi] [Let me further add:] The sacred rights of mankind are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam, in the whole volume of human nature, by the hand of divinity itself, and can never be erased or obscured by mortal power.[xxxii]

“We, the people of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” Here is a better recognition of popular rights than volumes of those aphorisms which make the principal figure in several of our State bills of rights and which would sound much better in a treatise of ethics than in a Constitution of government.[xxxiii]

§1:103. Even the Constitution itself is subject to higher law

§1:104. The Declaration overrides the rest of the Constitution in cases of inconsistency

 Coroner: Mr. Madison, does the Declaration ever override the Constitution?

Mr. Madison: [Yes. You ask fundamentally the same question as was asked about the Federal Constitutional Convention exceeding its authority granted by the Confederation. The question was:] On what principle the Confederation, which stands in the solemn form of a compact among the States, can be superseded without the unanimous consent of the parties to it? The * * * question is answered at once by recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature’s God, which declares that the safety and happiness of society are the objects at which all political institutions aim and to which all such institutions must be sacrificed.[xxxiv]

Coroner: At this juncture, I should like to welcome to our studio (I mean hearing), Professor Harry V. Jaffa. Harry is the Henry Salvatori Research Professor of Political Philosophy Emeritus at Claremont McKenna College and Claremont Graduate School. He is widely known for his writings on Aristotle, Shakespeare, the American Founding Fathers, Abraham Lincoln, Mark Twain, and Winston Churchill. He was the author of Barry Goldwater’s acceptance speech at the 1964 Republican National Convention.

As Lewis Lehrman once said in introducing Professor Jaffa:

“If it should be said that Abraham Lincoln was one of the framers of the post-Civil War Constitution, then it may also be said that Professor Harry V. Jaffa is Lincoln’s John Marshall. For in Jaffa’s evangelization of Lincoln one discovers not the temperament of a lawyer but of a lawgiver, not the profession of a judge, but of a prophet of first principles of jurisprudence. One need not agree with Jaffa, the philosopher and apologist of Lincoln, to declare him indispensable to the American republic. Indeed, if Harry Jaffa did not exist, I would want to invent him, if only to recover for conservatives the first principles of the American Founding—the true meaning of the Declaration of Independence. This I would do because the future of the world depends in no small measure upon the future of America—and, therefore, upon American constitutional principles.“[xxxv]

In that introduction, Mr. Lehrman added:

“The principles laid down at the birth of the republic on July 4, 1776, are manifestly what the Framers meant to implement, since Madison himself, the Father of the Constitution, held that the Declaration was “the fundamental act of union” of the States. That is to say, it was the first lawful instrument by which to illuminate the constitutional principles of the American union. The implications of the fundamental law of the union are too often ignored by constitutional scholars who, nevertheless, cannot deny that the Declaration is placed at the head of the statutes-at-large of the United States Code, and is described therein as one of the “organic” laws of the United States.[xxxvi] Therefore, I would argue that, just as the 14th Amendment may have incorporated certain of the first ten amendments into the state constitutions, so too has the original intent of the Founders and the United States Code incorporated the Declaration of Independence into the Constitution of the United States.”[xxxvii]

Coroner: I might say that Mr. Lehrman’s remarks about incorporation of the Bill of Rights into the 14th Amendment are not presented as the last word on that subject. Ahead, we will address the issue. Professor Jaffa, we’re awfully glad to have you here.

Professor Jaffa: [Thanks, my pleasure, though what I have to say is probably redundant given that you have here—live—all my authorities: Messrs. Madison, Jefferson, and Hamilton. So having me is, as Shakespeare said “to gild refined gold, to paint the lily, to throw a perfume on the violet.”[xxxviii]]

Coroner: Professor, is the Declaration incorporated in the Constitution?

Professor Jaffa: [Yes.] Madison is explicit in the 43rd Federalist that the Convention was justified by [the Declarations] right of revolution in transcending its instructions from the congress of the Confederation. It was to be the purpose of the new government better “to secure [the Declaration’s listed] rights.” And these rights were the unalienable rights with which all men had been equally “endowed by their Creator”under “the laws of nature and of nature’s God.”[xxxix]

Coroner: So you really go much further than “merely” saying the Declaration is part of the Constitution―you say that the Declaration even overrides the Constitution in cases of inconsistency!

Professor Jaffa: [Not my conclusion alone, but, as you just heard, that of Mr. Madison, Mr. Jefferson, as well as the Federalist.]

Coroner: Let’s hear the basis and reasoning for your assertion.

Professor Jaffa: [Their own writings and common sense. T]hese two ex-presidents and Founding Fathers concluded—and recommended to the Board of Visitors [of the University of Virginia] of which both were members and Jefferson was president—that, of the “best guides” to the principles of the constitutions, of Virginia, and of the United States, the first was the Declaration of Independence as the fundamental act of Union of these States. Let it be noted that Jefferson and Madison here refer to the Declaration, not only as the instrument by which the thirteen colonies separated themselves from Great Britain, but as the instrument by which they combined with each other to become one Union—thirteen states indeed, but thirteen states united. As the “fundamental act of Union” the Declaration was and remains the fundamental legal instrument attesting to the existence of the United States. From it all subsequent acts of the people of the United States, including the Constitution, are dated and authorized. It defines at once the legal and the moral personality of that “one People” (who are also said to be a “good people”) who separated themselves from Great Britain and became free and independent.[xl]

Coroner: Does the Declaration establish the organic law of the Constitution?

Professor Jaffa: [Precisely. the Declaration] thereby also defines the source and nature of that authority which is invoked when “We, the people of the United States” ordained and established the Constitution. For the same principle of authority—that of the people—that made the independence of the states lawful, made lawful all the acts and things done subsequently in their name. This tells us why the Constitution ought to be obeyed, why we have a duty to obey it, why and in what sense it may be truly said that the voice of the people is the voice of God. For these reasons the Declaration remains the most fundamental dimension of the law of the Constitution. It is the Declaration that tells us why and in what sense the government of the people is a government of right and not merely of force. It is by virtue of the principles of the Declaration that the Constitution must be said to reject the thesis that justice is nothing but the interest of the stronger. It is by virtue of the principles of the Declaration that, in the words of Leo Strauss, “The United States of America may be said to be the only country in the world which was founded in explicit opposition to Machiavellian principles.”[xli]

Coroner: I find it more that a bit peculiar that no modern authority has embraced the Federalist-Madison-Jefferson point that the Constitution is intended to fulfill the Declaration.

Professor Jaffa: [You’re not The Lone Ranger, Bucko.] One would have thought that the fact that the author of the Declaration and the Father of the Constitution—who were also the third and fourth presidents of the United States—had agreed upon the Declaration of Independence, both as the fundamental act of Union, and as guide to the principles of the Constitution, would have made this opinion canonical. Yet in all the discussion of “original intent” it has apparently not occurred to any of the luminaries of present day conservative (or of course liberal) jurisprudence even to consider it. Even in the attorney general’s Constitution Day speech of 1985, in which he declared the principles of the Declaration to be those of the Constitution, this assertion of Madison and Jefferson, which could have greatly strengthened his argument, is ignored. In truth, however, the denial of what Jefferson and Madison affirmed has been at the very core of constitutional theorizing in contemporary American conservatism. The source of this denial is not difficult to discover. It is to be found in the slavery controversy that began not long after Jefferson and Madison had passed from the scene. It is to be found in the fact that, far more prominent in shaping American conservatism—and indeed American legal thought generally—than Jefferson or Madison, has been John C. Calhoun.[xlii]

Coroner: What was wrong with Calhoun’s position?

Professor Jaffa: At the center of Calhoun’s constitutionalism was his doctrine of state sovereignty and state’s rights. The essence of the doctrine of state sovereignty was not more an affirmation of the legal rights and powers of the states, vis-a-vis the federal government, than a denial of “the fundamental principles of the Revolution” as Madison called them in the 39th Federalist—the doctrine of the natural rights of individuals, as the source of the authority of the state, and of civil society as such. Calhoun’s conception of sovereignty as set forth in his Disquisition on Government[xliii] of a right that belonged to the collective entity called the state (technically, government representing society). State sovereignty was sui generis,[xliv] not derived from any antecedent principle or right. Sovereignty, however, as understood in the Declaration of Independence —and in all the great documents of the Revolution—was originally, and by nature, the equal and unalienable possession of individual human beings. The original equality of all human beings was an equality of sovereignty—no man had more right to rule another than the other had to rule him. The exercise of the natural right to rule one’s self is transferred voluntarily to civil society, by virtue of that social contract by which civil society is originally constituted. In the words of the Massachusetts Bill of Rights, “The body politic is formed by a voluntary association of individuals; it is a social compact by which the whole people covenants with each citizen and each citizen with the whole people that all shall be governed by certain laws for the common good.”[xlv]

As noted above, James Madison repeated over and over again, that “compact is the basis of all free government,”[xlvi] implying that the ground of all legitimate authority is a social contract based upon natural equality. The ground of all positive legal rights in civil society—above all the right to property—is the antecedent natural right, grounded in natural equality, which every human person possesses in himself. And this right is a fortiori[xlvii] the right of each human person to possess the fruit of his labor. The aforesaid natural right or rights—to life, liberty, and property—are the ground of all authority, all sovereignty, in civil society.[xlviii]

Coroner: Please sum up, Professor.

Professor Jaffa: Without exception the Fathers held—as the Declaration of Independence asserts—that the only legitimate purpose of government was to secure rights whose origin is antecedent to all charters or human or positive laws. These rights are grounded in “the laws of nature and of nature’s God”, and as such belong equally to all members of the human race. These rights may have been recognized in good traditions. But it is not in tradition as such that the ground of such rights is to be found.[xlix]

Coroner: Thank you for being here. Now I . . .

[High-pitched, Side-stage voice] [Objection. Rights are not so abstract—they arise from prescription and tradition.]

Lower, Side-stage voice: [Quite rightly, John.]

Coroner: Those voices, I think, came from two of our surprise guests, the two Johns, yelling from a dressing room. We’ll hear from them later. For now I should like to ask our next guest, Dr. William Eaton, the author of Who Killed the Constitution: The Judges v. the Law, for his thoughts on the relationship between the Declaration and the Constitution? The link seems to be most evident in the Preamble of the Constitution or the 9th Amendment.

Dr. Eaton: [Yes.] The framers of the American Constitution . . . did not repudiate the great cry of equality, or the other idealistic sentiments expressed in the Declaration of Independence. Rather, in the Preamble to the Constitution, they expressed a purpose “to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessing of Liberty to ourselves and our Posterity . . . .” Phrases such as “Justice,” “domestic Tranquility,” “general Welfare,” or “the Blessing of Liberty” can be read to express an idealism nearly as universal, and thus as imprecise, as any in the Declaration of Independence. Surely the two documents share more in spirit than many have supposed, and are not truly incompatible. They also share in practicality.[l]

Coroner: How so?

Dr. Eaton: The Declaration had emphasized ideals, but had also meticulously listed specific grievances in justifying the rupture with the mother country. The Constitution took note of ideals in its Preamble, but emphasized specifics, and the workability of institutions, in the provisions it made for government. The Preamble of the Constitution seems, in this view, to serve as a bridge between revolution and government, forging a seamless weld between the two great documents of the American Revolution.[li]

Coroner: The framers followed Mr. Locke.

Dr. Eaton: [Right.] In rejecting the prescription of Hobbes and Rousseau that all power be lodged in a sovereign lawmaking body, the framers found themselves in agreement with the thinking of the other English philosopher who had given consideration to the qualities of the social contract, John Locke. Like Rousseau and Hobbes, Locke also presupposes a state of nature, from which he proceeds to construct his social contract. Locke’s nature is characterized by “peace, good will, mutual assistance, and preservation,” in which all valuable human attributes are already possessed by the “free, sovereign” individual. This hardly describes the bloody meat eaters which our ancestors in all probability actually were.[lii]

Mr. Locke: [I object. Mischaracterization of my views; I don’t believe I ever claimed that a state of nature was all goodness and light, sea shells and balloons, as the late Marquette basketball coach Al McGuire would say.]

Dr. Eaton: Nevertheless, there is an element in Locke’s view essential to the kind of government which the founders wished to create. Locke, holding that the individual derives his rights from nature, necessarily regards government as not being the source of those rights, but as fiduciary in character. The task of government is to make secure rights which already exist, not to be the bountiful dispenser of the goods of life. Government is therefore to be limited.[liii]

Coroner: Mr. Justice Blackstone, what’s the source of individual rights?

Mr. Justice Blackstone: For the principal aim of society is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature, but which could not be preserved in peace without that mutual assistance and intercourse, which is gained by the institution of friendly and social communities. Hence it follows, that the first and primary end of human laws is to maintain and regulate these absolute rights of individuals. Such rights as are social and relative result from, and are posterior to, the formation of states and societies; so that to maintain and regulate these, is clearly a subsequent consideration. And therefore the principal view of human laws is, or ought always to be, to explain, protect, and enforce such rights as are absolute, which in themselves are few and simple; and, then, such rights as are relative, which arising from a variety of connexions, will be far more numerous and more complicated.[liv]

Mr. Jefferson: [Though I am troubled by the idea of “regulating absolute rights”, had Mr. Justice Blackstone’s views, as expressed here, prevailed in his government, we might yet be attached to England.]

Coroner: You have at times been critical of Mr. Justice Blackstone?

Mr. Jefferson: [Who, me? Not often. I did say once:] The exclusion from the courts of the malign influence of all authorities after the Georgium Sidus [King George III’s star later named Uranus] became ascendant would uncanonize Blackstone, whose book, although the most elegant and best digested of our law catalogue, has been perverted, more than all others, to the degeneracy of legal science.[lv] [That was not a criticism of Justice Blackstone, as much as it was of those who misused his useful guide.]

Coroner: However, according to author Greg Bailey, you had sort of a love-hate relationship with the Justice. Here’s what Bailey says:

“Jefferson said that Blackstone and David Hume’s History of England “have done more towards the suppression of the liberties of man, than all the millions of men in arms of Bonaparte,” because both books glorified the systems Jefferson had devoted his life to fighting. Yet on two occasions Jefferson listed the Commentaries as required reading for law students.

Jefferson’s animosity toward Blackstone grew in part out of his disdain for the superficial treatment of the law. Jefferson learned law by reading Coke upon Littleton, a tedious book that lead Jefferson to write to a friend, “I do wish the Devil has old Cooke, (sic) for I am sure I never was so tired of an old dull scoundrel in my life.”

Coke, a heroic figure who as a judge defied the king in a face to face confrontation and supported Parliament over royalty, improved with age in Jefferson’s eyes. Coke was “uncouth but cunning learning” but more comprehensive than Blackstone. “A student finds there” Jefferson wrote of Blackstone, “a smattering of everything, and his indolence easily persuades him that if he understands that book, he is master of the whole body of law. The distinction between these, and those who have drawn their stores from the rich and deep mines of Coke on Littleton, (sic) seems well understood even by the unlettered common people, who apply the appellation of Blackstone lawyer to these ephemeral insects of the law.”[lvi]

Mr. Jefferson: [I’m truly sorry for that remark, but again you will see that I wasn’t criticizing the Justice himself, but the students.]

Mr. Justice Blackstone: [“Ephemeral insects of the law”, eh? Worse than Bonaparte? I say, what’s the meaning of this outrage? Harrumph! Arg! Brack. Fap. Kaff. Awp. Egad. Drat.]

Mr. Hamilton: [See what I mean. Jefferson can’t be trusted. He’s a four-flushing, Pecksniffian, Jacobin pontificator. He only made life miserable. And his running mate was Aaron Burr, whom you may know, did me in for good, probably at Jefferson’s direction, and almost certainly to his fondest hopes.]

Coroner: “He that wrestles with us strengthens our nerves and sharpens our skill. Our antagonist is our helper”, said Edmund Burke.[lvii]

Side-stage voice: [What was that?]

Mr. Hamilton: [If the Jacobin is my “helper”, then please present me a thwarter.]

Coroner: I wanted to finish with Mr. Bailey’s remarks. He says:

“Jefferson’s core disagreement with Blackstone, however, was Jefferson’s opposition to adopting English common law in America. He was not alone in this view. Many advocated adopting a civil code along ancient Roman and contemporary European lines, and saw it as a final break away from England. In the early 1800s New Jersey, Pennsylvania and Kentucky passed ‘noncitation’ statutes barring the adoption of English common law.

However, both common law and Blackstone were too pervasive to be suppressed, and the centuries of precedents embodied in the Commentaries still influence American law today. A typical example is the Illinois statute adopting common law “prior to the fourth year of James the First,” or 1607, with certain exceptions from the reigns of Elizabeth I and Henry VIII. Common law precedents can at times create problems in modern law that states have to correct by statute. The leading example is the widespread abolition by statute of the Rule in Shelley’s Case, an obscenely obscure point of law on the transfer of property originating in the 1300’s. “It is revolting,” wrote Oliver Wendell Holmes in 1897 of ancient precedents in general “to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.” Revolting or not this feature remains a central part of the law and Blackstone is still the guide.

Jefferson gave up the practice of law to the Blackstone lawyers and despaired of the profession in words as true today as they were in 1810. Writing to a friend who asked his advice on his son’s career, Jefferson said “Law is quite overdone. It is fallen to the ground, and a man must have great powers to raise himself in it to either honor or profit. The mob of the profession get as little money and less respect, than they would by digging the earth.” * * *

American lawyers in the early republic relied on Blackstone as the primary and often only source of the common law. American commentaries on the Commentaries appeared, such as 1814’s Law Miscellanies by Hugh Brackenridge, called the Pennsylvania Blackstone. The Americanized versions never supplanted the original. One Commentaries trained lawyer James Kent, later a Chancellor in New York, between 1826-1830 wrote his Commentaries on American Law critical of Blackstone and substituting much Roman law and civil code in place of the traditional common law. Edward [Joseph] Story, who also learned law through reading Blackstone, became the youngest Supreme Court Justice and author of many influential law books. Blackstone was the unseen teacher for uncounted numbers of American lawyers, first among them Abraham Lincoln.”[lviii]

Coroner: Mr. Jefferson, you go hard on the old boy by connecting him sort of as the common denominator of all manner of legal evil. After all, according to Bailey,[lix] the language of the Declaration probably came from Mr. Justice Blackstone:

“The philosophy of the Declaration of Independence asserting the “self-evident” “unalienable Rights” of people granted by “the Laws of Nature and of Nature’s God” could have come, and probably did, from Blackstone’s description of the rights of Englishmen under the British Constitution. The indictment against the Crown, the bulk of the Declaration, recites many of the absolute rights of individuals covered by Blackstone including the prohibition of taxation without consent.”[lx]

Mr. Jefferson: [As I said earlier, N]either aiming at originality of principle or sentiment, nor yet copied from any particular and previous writing, [the Declaration of Independence] 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 conversation, in letters, printed essays, or in the elementary books of public right . . . .[lxi]

[1] The Common Law (1881): “The first requirement of a sound body of law is that it should correspond with the actual feelings and demands of the community, whether right or wrong” (1938 ed., p. 41), cited at

[2] Glennon, Michael J., Professor of International Law, “A Fractured Planet Needs Pragmatism”, April 23, 2003, Reprinted from International Herald Tribune @

[3] University of Chicago Press, December 2000.

[4] The University of Chicago Chronicle, March 15, 2001, Vol.. 20 No. 12 @

[5] Section 15 @

[6] Writings of Madison, Vol. 4, 1829-1836, p. 403 @ AFL.

[7] Speech, House of Commons, 22 Feb. 1848 @

[8] “Notes on Virginia ”, Bergh 2:221 (1782), Real Jefferson, p. 602 @ AFL.

[9] Bergh 15:24 (1816), Real Jefferson, p. 560 @ AFL.

[10] Of Civil Government @

[11] Discourses Concerning Government (1698) @

[12] See

[13] Chipman, Nathaniel, Principles of Government: A Treatise on Free Institutions Including the Constitution of the United States,

[14] Of Crimes and Punishments (1764) @

[15] An Inquiry into the Nature and Causes of the Wealth of Nations @

[16] Say, Jean-Baptiste, A Treatise On Political Economy (1803) Philadelphia, Lippincott, Grambo & Co. (1855), trans. C. R. Prinsep, ed. Clement C. Biddle, Sixth edition @

[17] Ford 9:71 (1807), Real Jefferson, p. 463 @ AFL.

[18] To Thomas Jefferson, Feby 8, 1825, Writings of Madison, p. 481 @ AFL.

[19] Id. at 482.

[20] Writings of Madison, Vol. 4, 1829-1836, p. 403 @ AFL.

[21] Real Jefferson, pp. 70-71 @ AFL.

[22] Bergh 16:118 (1825), Real Jefferson, p. 401 @ AFL.

[23] To Dr. James Mease (Sept. 26, 1825), Bergh 16:123, Real Jefferson, p. 72 @ AFL.

[24] To James Madison (30 Aug. 1823), Bergh 15:464, Real Jefferson, p. 72 @ AFL.

[25] HIS jaws uplifting from their fell repast,
That sinner wip’d them on the hairs o’ th’ head,
Which he behind had mangled, then began:
“Thy will obeying, I call up afresh
Sorrow past cure, which but to think of wrings
My heart, or ere I tell on’t. But if words,
That I may utter, shall prove seed to bear
Fruit of eternal infamy to him,
The traitor whom I gnaw at, thou at once
Shalt see me speak and weep. Who thou mayst be
I know not, nor how here below art come:
But Florentine thou seemest of a truth,
When I do hear thee. Know I was on earth
Count Ugolino, and th’ Archbishop he Ruggieri.

The Vision of Hell, Part 10, Canto 33. By Dante Alighieri, Illustrated by Dore, Translated By The Rev. H. F. Cary, M.A. @

[26] The Anas, Bergh 1:271 (1818), Real Jefferson, p. 469 @ AFL.

[27] Id.

[28] Hamilton, Alexander, “Hamilton’s Estimate Of Jefferson ”, America, Vol. 4, p. 273 @ AFL.

[29] To Henry Lee (8 May 1825), Bergh 16:118 (1825), Real Jefferson, p. 71 @ AFL.

[30] “The Farmer Refuted,” The Revolutionary Writings of Alexander Hamilton (1775) (Indianapolis: Liberty Fund, 2008) @

[31] Remarks at the New York convention on the adoption of the federal constitution, Poughkeepsie, New York, June 27, 1788, Elliot, Jonathan, The Debates in the Several State Conventions on the Adoption of the Federal Constitution, Vol. 2, p. 348 (1836, reprinted 1937) @ AFL and @

[32] The Papers of Alexander Hamilton, Vol. 1, p. 12, quoted by Harry V. Jaffa, Original Intent and the Framers of the Constitution, p.35 @ AFL and at

[33] Federalist № 84 @

[34] Federalist 43 @

[35] “On Jaffa, Lincoln, Marshall, and Original Intent”, Forward to Original Intent and the Framers of the Constitution, p. 3 @ AFL.

[36] See

[37] Id. at 4-5.

[38] From

[39] Original Intent and the Framers of the Constitution, p. 16 @ AFL.

[40] Id. at 22-23, citing Writings of ]ames Madison, Hunt, ed., Vol. IX. p. 221, Jefferson’s resolutions, incorporating Madison’s suggestions, are in The Complete Jefferson, Padover, ed., p. 1112.

[41] Id. at 23, citing Leo Strauss, Thoughts on Machiavelli (1958), Midway Reprint, University of Chicago Press (1984), p. 13.

[42] Id. at 23-24 (fn. omitted).

† “Of its own kind or class”. BLD at 1286.

†† “With stronger reason”. BLD at 56.

[43] Original Intent and the Framers of the Constitution, p. 24-25 @ AFL, citing Union and Liberty: The Political Philosophy of John C. Calhoun, Liberty Classics edition, Ross M. Lence, ed., Indianapolis, Liberty Fund (1992) @

[44] “Of its own kind or class”. BLD at 1286.

[45] Harry V. Jaffa, Original Intent and the Framers of the Constitution, p.24 @ AFL.

[46] Harry V. Jaffa, Original Intent and the Framers of the Constitution, p.24 @ AFL.

[47] “With stronger reason”. BLD at 56.

[48] Original Intent and the Framers of The Constitution, p. 24-25 @ AFL.

[49] Id. at 35.

[50] Who Killed The Constitution: the Judges v. the Law, p. 204 @ AFL.

[51] Id.

[52] Id. at 205.

[53] Id.

[54] Bl. Commentaries @

[55] Bergh 13:166 (1812), Real Jefferson, p. 358 @ AFL.

[56] From

[57] Bartlett Familiar Quotations, 10th ed. (1919) from Reflections on the Revolution in France Vol. iii. p. 453 @

[58], “Blackstone In America: Lectures by An English Lawyer Become The Blueprint for a New Nation’s Laws and Leaders”.

[59] Id.

[60] From

[61] To Henry Lee (8 May 1825), Bergh 16:118-19, Real Jefferson, p. 71 @ AFL.

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Published in: on August 20, 2013 at 4:09 pm  Leave a Comment  

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