ISI Tribute to Jaffa and Berns

Intercollegiate Studies Institute Tribute

By The Editors

Originally appeared online at Intercollegiate Review on January 14, 2015

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On January 10, the world lost two legendary scholars and teachers. Born just months apart nearly a century ago, both went on to be prominent students of Leo Strauss. But also, in many ways, they became philosophical rivals, representing different schools of Straussian thought.

For all their differences, however, Walter Berns (1919–2015) and Harry Jaffa (1918–2015) shared much in common—not least, a commitment to freedom and an extraordinary record of scholarship and teaching that has contributed mightily to conservative thought.

Requiescat in pace.

The following profiles of Berns and Jaffa were originally published in American Conservatism: An Encyclopedia (2006).

Walter Berns (1919–2015)

Walter Berns, a political scientist, specialized in modern political philosophy, the political theory of the American founding, and U.S. Supreme Court adjudication, especially of the First Amendment to the U.S. Constitution. A student of political philosopher Leo Strauss at the University of Chicago, where he received his doctorate in 1953, Berns taught at Yale, Cornell, the University of Toronto, and other institutions. He was published widely in both professional and popular journals and wrote several books. He was John M. Olin University Professor at Georgetown University until he served as an adjunct scholar at the American Enterprise Institute in Washington, D.C.

Berns is best known for his analysis of First Amendment adjudication—especially concerning the so-called “religion clauses”—and for his more general interpretation of the role of religion in the American founding. America is essentially informed by the philosophy of Hobbes and Locke and secular in nature, Berns argued. The individual “natural rights” upon which both the Declaration of Independence and Constitution are based explicitly contradict the Christian understanding of man and his duties to God and fellow man, and were known by the founders to do so. Thus, the American founding merely tolerates religion, and then only when it does not disturb civil peace. Moreover, the Constitution permits generally applicable laws that might incidentally inhibit religious practice, as long as they are not religiously specific; constitutional commitment to philosophical liberalism always has precedence.

Similarly, wrote Berns, the speech that the First Amendment protects is political speech. So-called “speech” represented by, say, flag-burning or pornographic art, while not necessarily forbidden, does not enjoy constitutional immunity. The purpose of the speech clauses is to protect political discourse for the sake of furthering and strengthening democracy. Speech or actions that actually threaten to undermine the very Constitution to which they appeal for protection may properly be suppressed or at least positively discouraged by the state.

This position reflects Berns’s view that we should take seriously the Constitution and the political philosophy that informs it. One of the chief principles of this philosophy is that private judgment ought to have no place in politics and government. Whether the pious opinion of minority religious adherents, or the radical egalitarian views of a Supreme Court justice, private judgment cannot have precedence over constitutionally established political procedure. Since all men are equal, all men’s opinions are equal. Only a union of opinions may be translated into law, and no individual opinion may prevail over the general one. Individual opinion, while protected, has no standing in constitutional government.

Thus, Berns believed in a conservative—“originalist,” in the words of Robert Bork—role of the Supreme Court. Justices are not granted the prerogative of interpreting the Constitution according to an unwritten “natural law” (which is law merely in the opinion of the particular justice), but only according to the intention of the framers, as actually written in the Constitution. Private judgment—even judgment that Berns himself might find compelling or true—has no proper role in constitutional adjudication.

Harry Jaffa (1918–2015)

Harry Jaffa was a student of the political philosopher Leo Strauss. The principal theme of Strauss’s work was “the crisis of the West,” a crisis precipitated by modernity’s rejection of natural right. Jaffa extended Strauss’s analysis to America, devoting the bulk of his productive scholarly career to uncovering and articulating the natural right principles of the American founding, particularly as those principles are expressed in the Declaration of Independence. For Jaffa, the “crisis of the West” and the “crisis of America” were identical. Even his first book, Thomism and Aristotelianism (1952), an analysis of Aquinas’s interpretation of natural right in Aristotle, seems to have been merely prelude to his study of the American founding.

Jaffa’s best known book is Crisis of the House Divided: An Interpretation of the Lincoln-Douglas Debates (1959). In this seminal study, Jaffa argued that Abraham Lincoln had in some sense refounded the American regime by rejecting the radically modern Lockean principles of the founders and grounding the new political regime in Aristotelian natural right. Jaffa argued that Lincoln had thus provided a crucial moral dimension that was missing from the Declaration. In Crisis, Jaffa’s reading of Locke follows Strauss’s view that Locke was a thoroughgoing modern who was barely distinguishable from Hobbes. Strauss, of course, discovered the radically modern Locke buried deep in his esoteric message. In the years after Crisis, Jaffa came to believe that the founders could not have read Locke the way Strauss did—indeed there is no evidence that anyone ever read Locke with the care and penetration that Strauss did. Thus, if we are to understand the founders as they understood themselves, it is necessary to read them in the light of the exoteric Locke, not the esoteric Locke revealed by Strauss. And it was through their understanding of the exoteric Locke that the founders understood the law of nature in an Aristotelian sense.

In a later book, A New Birth of Freedom: Abraham Lincoln and the Coming of the Civil War (2000), Jaffa saw a greater theoretical unity in the American founding than he did in Crisis. Those “classical” elements that Jaffa once attributed exclusively to Lincoln’s “refounding” were now seen as elements intrinsic to the founding itself, a founding that Lincoln “perpetuated” and extended but without changing its essential character. According to Jaffa, what guided the founders and introduced an Aristotelian element into the regime was prudence: the Declaration embodies an “Aristotelian emphasis on the dictates of prudence.” The Declaration, Jaffa argued, “is both teleological and prudential. It is teleological because it is oriented . . . toward the end of human happiness, which according to Aristotle is the ultimate end of human action, whether individual or political. It is prudential because it measures the goodness of human actions, whether individual or political, by their consequences. The consequences, in turn, are judged by whether they advance or retard happiness.”

Jaffa, more than any other student of Strauss, understood political philosophy’s primary concern with what Strauss called the “theological-political” problem. Jaffa argued that the egalitarian natural right of the founding is the only form of natural right that is compatible with Christianity. The principle that “all men are created equal” thus provided the founders with the only possible access to nature or natural right available in the modern world. “The doctrine of natural law and natural rights enshrined in the Declaration,” Jaffa wrote, “is a doctrine of natural and divine right.” The founders thus were able to resolve—at least on a political level—the theological-political problem that arises from the competing claims made by reason and revelation. The American founding did this by recognizing equally the claims of both. This resolution was made possible, in large part, because the “Lockeanized” ministers of the founding era understood the separation of church and state as no less a dictate of New Testament theology than reason and natural right.

Jaffa’s scholarship was controversial because of his conviction—following Aristotle—that truth is more important than friends. Jaffa was a severe critic of fellow conservatives—and fellow “Straussians”—and many of his tracts are highly polemical, even though always dialectical. He argued that contemporary conservatism had fallen into the same kind of nihilism that animated liberalism. Both liberalism and conservatism rejected natural right as the ground of politics and constitutional government. According to Jaffa, the crisis of America forced us to choose between nihilism and natural right. Jaffa was strident in his critique of nihilism and its supporters, both those who were aware of their nihilism and those who were not.