Founding Fallacy
In 1787, a tall, strongly-built man with powered white hair,
in period dress, descended from a hill in Philadelphia, and, in a voice that
sounded remarkably like Charlton Heston’s, handed down two tablets containing
the Constitution and the Bill of Rights. The multitudes cheered; many fell to
their knees in awe and gratitude.
Timeless words, hewed in stone, expressing all the accumulated wisdom
and truth, for all eternity.
You have to admit, it would make a great movie.
One of the peculiarities of the way we think about our
history is our conflation of the drafting and signing of the Declaration of
Independence, and adoption of the Constitution. It’s actually the Declaration that inspired a
film—a musical, no less. After much singing and dancing, it’s July 4th,
1776 (actually, July 2nd but dramatic liscence) and there they all are, in the Trumbull
painting, stout of character and resolute.
Tallest amongst them is Jefferson, author of the powerful words “We hold these truths to be
self-evident, that all men are created equal, that they are endowed by their
Creator with certain unalienable Rights, that among these are Life, Liberty and
the pursuit of Happiness.--That to secure these rights, Governments are
instituted among Men, deriving their just powers from the consent of the
governed.”
I
love that image. I know what preceded it
was a year of listless and pointless debate, as George Washington’s Army,
under-funded and under-supplied, did its best to stave off crushing defeat. I know there was very substantial opposition
to the idea of independence from many of the people in that room, and they
mirrored the doubts of the population at large. John Adams was obnoxious and
disliked, it cannot be denied. And I
know that the moment itself would not have been possible without a shameful
tabling of the issue of slavery.
But
still, it seems to belong to me—and even the reason my grandparents crossed the
ocean a century ago to come here—the singular moment in time when “We” stopped
being subjects of a distant King and became possessed of unalienable rights. It is the moment when we owned our own
destinies. Jefferson’s words are simplicity
itself, and immutable. From this date henceforth, we are free. They marked an
ending, and a beginning.
That
is not what occurred with the adoption of the Constitution. The Constitution is an acknowledgement of the
limits of freedom. What Washington, and
Madison, Hamilton, and Jay understood was that the right to say no to
everything, to go your own way on all points, to always be governed by your
personal self-interest, whether the “you” was a person, a town, or a state, was
incompatible with the growth of a nation. To the contrary, they believed that
the 13 original states inability to act in concert created an existential risk
to the very idea of freedom itself. The British surrender at Yorktown and Treaty
of Paris notwithstanding, the Brits really weren’t going away, and the rest of
Europe took little note of us. This had
to be fixed.
So,
if the Declaration was a glorious Big Bang, the Constitution began the
organization of the galaxies, solar systems, and planets.
That
one step—organization out of disorder, meant, by definition, that a lot of
power was passing from one set of hands to the other. Every signer of the Constitution had lived
under a monarchy, and the monarchy could act decisively without additional
consent. The act of political regicide
that was the Declaration released those restrictions and dissipated that
power. Now, the people who came to be
called Nationalists (and later, Federalists) were proposing to reconstitute
that power, only in a form that was more representative.
That
leads us back to the fallacy—that the Constitution is a perfect document, that it
fully and unanimously expressed the hopes, aspirations, and desires of those higher
order of beings, The Founders, and the text is to be read as one would read the
Ten Commandments—handed down from on high.
From
that fallacy comes a certain political fraud—the fraud that, if only we could enter
the spirit world for a moment, tap Madison on the shoulder and ask him about a contemporary
political issue, he would immediately be able to give us a response that
exactly aligned with our personal desires.
It
is a huge fraud on many levels. To start
with, there was no unanimous adoption, no glorious embrace of a core principle
like independence. The Constitution represents gigantic compromises between the
people and states that had power and were asked to cede some of it to a
national government, and those that had less power and wanted more. Few people gave up some of the new freedoms
they had just gained without dissent, and fewer without getting something. The ratification battles on a state by state
basis show it. The two most powerful
states, Virginia and New York, barely voted in the affirmative, and most
historians agreed that the resistance shown by representatives of those states
reflected the opinions of their population.
The
differences were stark. Independence was
aspirational in nature. The Constitution
was as practical as plumbing. Even if
you could consult Madison as a Spirit Guide, the Constitution didn’t fully
represent his ideas either. Review the Virginia
Plan (drafted by Madison and presumably expressing what he really wanted) and
compare it to the final text of the Constitution—the differences are considerable—the
shape of the legislature, the formula for representation, the method of selecting
a President and the authority of the Executive Branch. Madison himself opposed the Bill of Rights,
until he decided, as a political expedient, that he needed it to gain
ratification, and then he drafted it (leaving out some things he personally,
opposed.) If you asked Jefferson the
exact same question, he would have said he never expected the agreement to last
more than fifteen or twenty years. His
vision was of an agrarian republic, dominated by educated planters who played
the violin.
What
the Constitution really is—is a contract, a balance between competing
interests. Contracts are written by
lawyers, and with all due respect to my profession, if you ask a lawyer what he
meant by a certain phrase or clause, he will very likely remember it in the way
that is most advantageous to him and his client. In anything but the clearest text, the idea
that anyone, including an Originalist, can tell you what the Founders meant by
a certain phrase, is an inherently biased exercise. They will look only at the evidence that
supports their position.
The
next time you see some political candidate or talking head expound on what’s
Constitutional, or tell you they just had lunch with Alexander Hamilton….take
it with a grain of salt, and remember Ronald Reagan’s quip, “It has been said
that politics is the second oldest profession. I have learned that it bears a
striking resemblance to the first.”
That’s
no fallacy
.
June
4, 2015
Michael
Liss (Moderate Moderator)
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