George Will's Libertarian Turn

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. 

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