Thursday, June 4, 2015

Founding Fallacy

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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