p. 288 A New Birth of Freedom, Jaffa

Taney argued that he was a constructionist who agreed with Madison's statement that judges should interpret the Constitution in "the sense in which it was accepted and ratified by the nation." And yet there was a willful blindness on Taney's part to not only Madison's writing but the writing of nearly all Madison's public contemporaries. What was that blindness?

*p. 86-90 A New Birth of Freedom, Jaffa

Chief Justice Rhenquist as nihilist. Jaffa says that Rehnquist uses the same argument to defend original intent as Calhoun did to defend slavery--what is the argument? How does Lincoln repudiate slavery and Rehnquist? p. 86 How did the Confederacy lose the war but win the battle of ideas?

Relevant Passages: Rehnquist's "original intent" has less in common with the intent of those who ratified the Constitution than with the intent of those who "dc-ratified" it in 1860-61. The Civil War was fought between two different conceptions of what constituted the "original intent" of the framers and ratifiers.

The heart of the Southern understanding of the Constitution consisted in the denial that any moral distinction could he drawn between the safeguards of individual liberty in the Constitution and the safeguards of slavery. By their account, all part', of the Constitution were of equal moral, no less than of equal legal, obligation.

Rehnquist's views are very different. For him, intrinsic worth as a concept has no foundation in reason. If safeguards of liberty have no such worth, then neither has liberty itself, or even life. In Rehnquist, we can observe that historical right has been transformed into unmitigated positivism or indeed into nihilism. He accounts for constitutional morality by saying that constitutional safeguards "take on a generalized moral rightness or goodness" when they "assume a general social acceptance."