Russell Kirk’s “Unfounded” America or Harry Jaffa’s “Founded” America?

This response originally appeared in the Spring 1995 issue of the Intercollegiate Review.

Decorum requires that one refrain from contradicting a eulogy for a much beloved and admired teacher. Dr. Russell Kirk will surely be missed by his many students and friends. For a student who was first adroitly and gently pushed to the right by The Conservative Mind, the praise he received in The Intercollegiate Review can only be deemed good and proper. Yet Mark C. Henrie also used that opportunity to attack another much-admired teacher (see Mark C. Henrie, “Russell Kirk’s Unfounded America,” The Intercollegiate Review, Fall 1994, pp. 51–57). His presentation of Harry V. Jaffa’s views on natural law and the American Founding leads this student to paraphrase: Would Jaffa recognize himself in Henrie’s recounting of his position?[1]

Henrie endeavors to renew the debate over the principles that divide us.[2] He reminds us that Jaffa has attacked his fellow conservatives. From the perspective of most conservatives, Jaffa unnecessarily criticizes those who aid him in defending all we cherish in common. His attacks upon his fellow conservatives would be indefensible if there were not a profound reason for preferring natural right and rights to culture and traditions. As Jaffa avers: “The crisis of American constitutionalism—the crisis of the West—lies precisely in the denial that there are any such principles or truths. It is no less a crisis in the heart of American conservatism than of American liberalism.”[3] His insistence upon “the laws of nature and nature’s God” results from reflections on how best to combat the causes of our present crisis.

Speaking for Kirk, Henrie calls into question Jaffa’s conservative bona fides. Conservative theorists are more interested in culture than formal institutions or abstract principles. Henrie writes: “The many traditions that constitute a people are where we discover the meaning of our common life, for culture is deeper than politics.”

Culture, then, is a complex web of interconnected “folk-ways”[4] and “common meanings”[5] or symbols, which serve as a people’s center of reference. Language is another component of a shared culture. It provides a people with its “most vivid common images and metaphors.”[6] A common language is therefore an unconsciously accreted “intersubjective way of experiencing action [and thought] in society.”[7] We could easily infer the following from Henrie’s adumbration: Theories and concepts permeate the various structures of culture which in turn unconsciously structure the identities and thoughts of the individuals who comprise them.[8] From this vantage point, thought reveals itself to be an epiphenomenon of culture.

Politics grows out of culture.[9] To put that thought in words more familiar to us, the accretions of “accident and force” are deeper than “reflection and choice.”[10] Kirk discerned America’s foundation not in political thought but in British culture which was placed within a larger “literary” context of Jerusalem, Athens, and Rome.[11] This larger literary context shaped and, to a lesser extent, continues to shape our minds. Kirk “read the Constitution of 1787 as a reworking of traditional English and colonial American practice rather than as anything new or particularly speculative.”[12] Kirk’s impressions led him to conclude that the Declaration of Independence did not express the dominant strain of political thought imbedded in our culture during the Revolutionary period. The Declaration and its author, from Kirk’s culturalist perspective, “carried the American cause into the misty debatable lands of an abstract liberty, equality, fraternity.”[13]

Cultural analyses purport to explain the genesis of our American political principles and institutions out of British habits, practices, and folkways. Henrie muses that “it is fanciful to imagine immediately deducing bicameralism, for example, from any postulate of natural rights.”[14] Our “attachment to the rule of law” comes to sight as an inherited and “peculiarly Anglo-Saxon practice.” In this same manner, we may trace the development of our doctrine of “rights” out of a particular political and linguistic tradition through the Magna Carta until they come to preside on these shores in a form modified by accident and force. Our doctrine of natural rights was presented to our forbears by Locke and Jefferson. It developed out of the institutions and folkways of the Anglo-Saxon tribes which had previously conquered the British Isles. Edward Gibbon asserted that “in the rude institutions of these barbarians we may still distinguish the original principles of our present laws and manners.”[15] If there is not an infinite regress, we must postulate some “originary event” in which the germ of our ideas and institutions first arose. In keeping with the principles guiding cultural analyses, originary events result from accident and force. Conservatives ought to consider, in light of these comments, Francois Lyotards’ appropriation of Edmund Burke’s confrontation with the sublime.[16] Moreover, Burke’s opposition to modern “rationalism” slips almost imperceptibly into a form of irrationalism which prudently cloaks the arbitrary character of all important and necessary things in the mists of time.[17]

The foregoing analysis presents conservatives with a number of difficulties and invites a number of questions. Kirk’s emphasis on “unwritten principles” and their pedigrees offers us little help in resolving the conservative dilemma, as Russell Hittinger observed in the same tribute issue: “Unfortunately, the flesh and blood of culture has a life of its own, and there is no guarantee that the conservative’s understanding of right reason will be en-rooted in the body of unwritten propositions.”[18]

Furthermore, what do we do when the unwritten constitution of our people has been corrupted? How do we recognize a corruption? What recourse do we have when change occurs for the worse? In the unreason which characterizes post-modern politics, who needs traditions when liberation beckons? Despite the best efforts of Dr. Kirk, we still confront “a future which increasingly [has] no answer to that subversive question of ideological progressives: ‘why not?’”[19] Besides, other long rooted cultures have been effaced or radically transformed. In light of the foregoing analysis, we find Henrie’s comment insidious: “[C]onservatives find it reasonable to assume that the long historical existence of a practice or a community is itself evidence of its conformity to a Providential (rational) plan.”[20] Many practices, communities, and cultures have been and continue to be long-lived. Does a Catholic, for example, stand by his faith only because it is the long-lived religion of his forefathers? But most importantly, like innocents being led to the lions, are we to do nothing and excuse everything in the name of an evolving historical process? Or are we to act purposively and well in defense of those things we cherish? Thoughtful, purposive action requires some notion as to what constitutes the true and unchanging human good.

We cannot rest satisfied with the argument that only those changes in accord with the prevailing spirit of a particular culture or tradition are correct, i.e., traditions as “self-interpreting.” From this view, all innovations against that spirit are perversions. Conservative theorists, who hold to that view, are merely asserting the collective prejudices of their own communities and traditions against the subjective certainties of other groups and individuals. Conservative theorists need to examine previous changes to their own culture. What we have in mind can best be illustrated by thinking through how a typical Jewish or Roman “conservative” might have viewed Christianity shortly after its emergence. What we think of as somehow “one” culture with many distinct traditions was, at one time, many competing cultures. Is our patrimony merely what survived the collision? Or do we have some standard by which we can separate the wheat from the chaff? Truly pious men may be excused from the conclusions drawn by cultural anthropologists, because they believe the transhistorical and transcultural truth has been revealed by God in time. An argument based on revelation is not identical to the cultural and historicist thesis. The pious man believes that the truth, once revealed, becomes accessible to man as man through faith or obedience to the law, whatever his cultural context.

We do, however, have some sympathy for Kirk’s attempt to find “a better guide than reason.” Modern political philosophy, through the efforts of Machiavelli, Spinoza, and Locke made belief appear unbelievable. The justly derided philosophes and their teachers made it seem that “man made himself,” or that man and not the divine is the measure of all things. But “the human, detached from the divine, did not long remain human: it quickly degenerated into the bestial.”[21] Reason, to those of us conditioned by modern thought, appears to be merely a scout and spy for the passions. Modern philosophy is both reductionist and constructivist. But what it would build on “our” clear and distinct urges could please no serious man of taste.

Nevertheless, we are compelled to ask again whether the desire to find “a better guide than reason” in culture enfeebles our resistance to historicism and cultural relativism. The cultural analyses employed by conservative theorists offer little resistance to the post-modernist left. It too forswears fishing about in the murky waters of universals and absolutes. Henrie’s account of culture seems

. . . to fit an age which is aware of the fact that there is not the culture of the human mind, but a variety of cultures. Obviously, culture if susceptible of being used in the plural is not quite the same thing as culture which is a singular tantum, which can only be used in the singular. Culture is now no longer, as people say, an absolute, but has become relative.[22]

Just as cultural relativism rejects the idea of the culture of the human mind, it rejects the ideas of the good society or best regime and the city of God. All such ideas arise in particular cultures; all cultures unfold in history. Radical historicism deduces from this assertion that any attempt to rank cultures by one particular culture is based upon values which are necessarily self-referential and subjective. There are no external and natural standards, which address man as man, to appraise the true worth of a culture. If we concede that we merely defend our culture because it is our own, we validate the postmoderns’ assertion that force is the only arbiter of disputes. Considering our situation, is culture really a better guide than reason? Is it possible that reason, desiccated and maligned by the moderns, can still prove serviceable to us? To answer these questions, we turn to Dr. Jaffa.

Henrie asserts that Jaffa fails “to acknowledge the genesis of his thought in the Enlightenment.”[23] Jaffa, moreover, has “defected” from the Thomistic natural law tradition of unchanging laws or principles and changeable conclusions to the secular variant “which began with Hobbes.”[24] His assertions rely on Jaffa’s insistence upon the centrality of the Declaration’s “abstract truth, applicable to all men everywhere and at all times.”[25] Jaffa, however, looks upon himself as trying to unite Aristotle and St. Thomas[26] to defend the tradition we too wish to safeguard.

Hobbesean political science claims to take men as they are, which is not how we actually find them in families, churches, and cities. Men abstracted out of their social and political contexts are primarily concerned with their own self-preservation. The natural right to self-preservation thereby becomes absolute; all other rights radiate from it. Modern natural law doctrines derive man’s duties from his natural right, i.e., desire, for self-preservation. And since modern natural law is based on a very powerful and dependable passion, “the conclusions possess the same certainty as the principles.”[27]

Building on this natural desire which all men possess, a Hobbesean political scientist can construct a “perfect commonwealth” in almost any circumstances without regard to the character of “the people” to be formed. Jaffa, on the other hand, argues that there is a continuity in the “idea of prudential morality” stretching from Aristotle, St. Thomas, and Burke to the Declaration oflndependence.[28] What Jaffa means is that, following them, we too must distinguish between theory and practice, or theoretical wisdom and prudence. Prudential morality, unlike Hobbesean theory, mediates between what is simply best and “what is the more desirable among those alternatives that are possible.”[29] The best is what we ought to choose if there are no external impediments, human or non-human, to virtue and virtuous activity.[30] Jaffa cannot simply be a Hobbesean scientist.

Henrie may still complain that Jaffa’s prudence serves the ends indicated by the authors of modern natural right doctrines. We suggest he read what Jaffa has written on the subject.[31] Jaffa has pointed out that “there is little beyond an appeal to enlightened self-interest in the doctrine of universal equality when conceived in its pristine, Lockean form.”[32] Although Jaffa no longer claims the Founding was based on this “pristine, Lockean form,” he nevertheless recognizes its inherent shortcomings. Jaffa understands a profound difference to exist between right understood as “an indefensible desire or passion” and “an objective state or condition in which justice is done.” He prefers the latter for right as indefeasible passion does not forbid what is objectively wrong. Moreover, and to repeat, the authors of the “pristine, Lockean form” of equality and natural rights conceive of man as a bundle of urges. These urges are limited to those which man shares with other animals.

Henrie avers that Jaffa “follows the moderns by holding the right absolutely prior to the good.”[33] There is little of the Jaffa we recognize in his claim. His emphasis on right is for the good. Following Leo Strauss, Jaffa believes that “the fundamental human experiences” have become almost inaccessible because modern science, modern philosophy, and modern technology have done much “to obscure and distort those experiences.”[34] He endeavors to recover “the primacy of the Good” by turning to natural law, natural right, and natural rights, i.e., by turning away from historicism and cultural relativism to nature. Jaffa sees himself as” a teacher of natural right.”[35]

Jaffa’s understanding of natural right culminates in living in accordance with the perfection of man’s nature, “in living thoughtfully and in thoughtful action.” Natural right, and its attendant dialectical method, requires that all notions of justice be viewed as pointing beyond themselves toward a notion of justice which is no longer merely opinion. “The idea of natural right” comes into view as “intrinsically edifying” because it leads to thoughtful living and action. Philosophy so understood is indistinguishable from “the idea of political philosophy.”[36]

What remains to be clarified is Jaffa’s insistence upon the centrality of natural rights. He endeavors to portray the Civil War as “the characteristic phenomenon of American politics.”[37] As he explains, “The beauty of Lincoln’s argument was that he made the case for popular government depend upon the acceptance of a standard of right and wrong, independent of mere opinion.” Nature teaches us to recognize both the requirement of consent and the claim of wisdom to rule. The Declaration’s self-evident truth that all men are created equal prudently reconciles these claims by underscoring man’s middling nature between beast and God. Whatever the claims of modern philosophy, and despite Henrie’s contention,[38] Jaffa certainly argues that reason can discern man’s true nature. All normal men, moreover, divine how man differs from other beings; or, more precisely, all normal modern men understood this before modern philosophy corrupted their common sense. By exercising our reason, we too can come to see again that man is both passionate and reasonable. We thereby come to see that we are in need of law:

The vote of the wise is then always for the rule, not of the wise, but of the law. It is in the making of laws that the highest wisdom of the race is manifested. The meaning of the law is to be found, above all, in the understanding of the difference between man and God.[39]

The wise vote for rule of law because they recognize the force of consent and difficulties attendant upon the selection, especially the self-selection, of the wise. They understand the fallibility of a man’s reason, especially in cases to which he is a party. This self-evident truth is the fountainhead of our constitutional order. It illustrates well what Jaffa intends. His defense of it on objective and natural grounds lends support to our constitutional order against its enemies. It is conducive to decent politics. In the cause of human freedom, he challenges regnant “elite” intellectual opinion on the status of the laws of nature and nature’s God. His students come, thereby, to recognize the urgent need for natural right. If Jaffa relentlessly questions the doctrinaire views of conservatives and liberals alike, he does so in the service of “the Good.”

Even decorum ought to give way to the Good.

Notes

[1] Compare Mark C. Henrie, “Russell Kirk’s Unfounded America,” The Intercollegiate Review (Fall 1994), p. 54.

[2] Henrie, p. 57, n.21.

[3] Original Intent and the Framers of the Constitution: A Disputed Question (Washington, DC: Regnery, 1994), p. 42.

[4] Compare Roger Scruton, “Combatting Multiculturalism,” The Intercollegiate Review (Fall 1994), pp. 89–90.

[5] Charles Taylor, “The Politics of Recognition,” in Multiculturalism and the “Politics of Recognition” (Princeton: Princeton University Press, 1992), p. 72.

[6] Henrie, p. 52f.

[7] Charles Taylor, “Interpretation and the Sciences of Man,” in Understanding and Social Inquiry, ed. Fred R. Dallmayr and Thomas A. McCarthy (Notre Dame, Ind.: University of Notre Dame Press, 1977), p. 122.

[8] Michael Foucault, The Order of Things: An Archeology of the Human Sciences (New York: Vintage Books, 1973), p.xi.

[9] Henrie, p. 52.

[10] See Publius, “Federalist No. 1,” in The Federalist Papers, ed. Clinton Rossiter (New York:

Mentor, 1961), p. 33. Cf. Charles R. Kesler, “Education, Cultural Relativism, and the American Founding,” The Intercollegiate Review (Spring 1989), p. 38.

[11] Russell Kirk, “What Did Americans Inherit from the Ancients?,” The Intercollegiate Review (Spring 1989), p. 46ff.

[12] Henrie, p. 52.

[13] Russell Kirk, “Edmund Burke and the Constitution,” The Intercollegiate Review (Winter 1985–86), p. 6.

[14] Henrie, p. 52. Ignoring the modifier “immediately,” Henrie is a bit too dismissive of the dear implications of Jaffa’s argument (Original Intent, p. 44). There are a good many commentaries on the intent of the Framers, especially on Publius’ intention, which convincingly argue that a relationship subsists between the Constitution’s institutional design and our Framer’s desire to protect natural rights. One need, however, only take the argument of Federalist 43 seriously, especially in light of what Publius also argues in no. 63.

[15] The Decline and Fall of the Roman Empire (New York: Modern Library, n.d.), vol. 1, p.186.

[16] The Inhuman: Reflections on Time, trans. Geoffry Bennington and Rachel Bowlby (Stanford, CA: Stanford University Press, 1991), pp. 84–88. Cf. Edmund Burke, On the Sublime and the Beautiful, in The Works of Edmund Burke (Boston: Little, Brown, and Co., 1869). vol. 2, pp. 130–145.

[17] Cf. Leo Strauss, Natural Right and History (Chicago: University of Chicago Press, 1965), p. 313.

[18] Russell Hittinger, “The Unwritten Constitution,” The Intercollegiate Review (Fall 1994), p. 62.

[19] Henrie, pp. 52 with 55–56.

[20] Henrie, p. 54.

[21] American Conservatism and the American Founding (Durham, N.C.: Carolina Academic Press, 1984), p. 137.

[22] Leo Strauss, Liberalism Ancient and Modern (Ithaca, NY: Cornell University Press, 1989), p. 4.

[23] Henrie, p. 54.

[24] Henrie, p. 55.

[25] Original Intent, p. 31.

[26] American Conservatism and the American Founding, pp. 68–69.

[27] Leo Strauss, Studies in Platonic Political Philosophy (Chicago: University of Chicago Press, 1986), p. 143.

[28] Original Intent, p. 29.

[29] Ibid., p. 35.

[30] Harry V. Jaffa, “Aristotle,” in The History of Political Philosophy, ed. Leo Strauss and Joseph Cropsey (New York: Rand-McNally, 1972), 2nd ed., p. 89.

[31] He could begin with “Natural Rights,” in The International Encyclopedia of Social Sciences, ed. David Sills (New York: Macmillan, 1968), pp. 85–89.

[32] Crisis of the House Divided: An Interpretation of the Issues in the Lincoln-Douglas Debates (Chicago: University of Chicago Press, 1982), p. 324.

[33] Henrie, p. 54.

[34] American Conservatism and the American Founding, p. 145.

[35] Ibid., p. 139.

[36] Ibid., p. 146.

[37] Ibid., p. 136.

[38] Henrie, p. 54. Locke, one of the intellectual leaders of the Enlightenment, clearly called into question man’s ability to discern the essences of all beings. He paved the way for nihilism.

[39] Original Intent, p. 80.