As flattered as I was to attract George Will's attention—in his July Fourth column, no less—being criticized by a Pulitzer Prize-winning essayist left me somewhat perplexed, for several reasons. Allow me to explain. First, although I have engaged Will directly in the past, he used his nationally syndicated column to take issue with something I had written in response to someone else—specifically, Ed Erler (a disciple of Harry Jaffa) regarding Robert Bork's view of the Constitution. My disagreement with Erler centered on whether (as Jaffa contended) the Declaration of Independence infuses the Constitution with transcendent principles of “natural rights” or “natural law” that judges must enforce to limit the actions of representative government.
On this question, I agree with Bork that the Declaration has little or no relevance as a guide to constitutional interpretation. In our system of dual sovereignty, the U.S. Constitution is a social compact at the federal level, supplementing—but not replacing—the states and their state constitutions; the Declaration, in contrast, was simply a proclamation of independence from Great Britain—an ordinance of secession. “Originalists” construe the Constitution based on the original public meaning of the Constitution itself. How was the Constitution understood to those who drafted it and ratified it? Will's argument that the “true meaning” of the Constitution must be found in the Declaration is both counter-intuitive and non-originalist.
Second, Will's joining forces with Erler/Jaffa concerning the Declaration as a fount of natural rights is highly ironic because the theory Jaffa midwifed leads in two diametrically opposite directions: Erler/Jaffa construe “the Laws of Nature and of Nature's God” referenced in the Declaration as embodying fixed and immutable principles of 18th century morality—forbidding, for example, the legalization of abortion or the validation of same-sex marriage, even by legislation. Will, by contrast, adopts the libertarian theory of natural law (advanced by Timothy Sandefur in The Conscience of the Constitution, among others) that confers on all citizens the unenumerated right to be free from majoritarian interference—that is, laws enacted through democratic self-rule. (The Sandefur theory looks suspiciously like a Randian state of nature, not the popular sovereignty—“consent of the governed”—demanded by the Founders.)
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