Take the judicial doctrine of Originalism. At first, it seems quite reasonable and straightforward: It insists that the Constitution should be interpreted as the founding fathers intended. So, what's wrong with that?
Well, one big problem with this doctrine is that Originalists harbor some pretty faulty assumptions about our founders. Their fanciful founders were devout Christians who were skeptical of government. In this reactionary fantasy, the founders all hated taxes, handouts, and social engineering of any sort. Not quite.
The idea that the founders wanted to run the country on a biblical basis is particularly ridiculous. Patrick Henry was the only famous founder who thought religion had any place in government – the only one they can quote without lying outright. The rest were either deists who openly loathed organized religion or Christians who understood that mixing church and state was dangerous to both.
Otherwise, there were few areas of broad agreement. The founders fought over everything from slavery to the property qualification for voting to the proper role of government. Remember reading about the Federalists and the Anti-Federalists? This may surprise you, but they disagreed over the how much power the federal government should have. Yes, it’s shocking, I know.
And even after compromises were hammered out, there was still disagreement on how to interpret the results. Certainly everyone remembered what they were originally aiming for and sought to turn every ambiguity to their advantage. And often ambiguity is what makes compromise possible. Your “obvious” interpretation will likely differ from mine. But if we both think the language is to our advantage, we will both approve. We will either think we have outfoxed each other or that we have found common ground – only to decry betrayal later on. In politics, compromises are only temporary cease fires.
And these fights could get downright dirty. Thomas Jefferson and John Adams hired newspapers to slander each other. This is the origin of our two party system, folks. It shattered their friendship and they did not mend it until years after most of the other founders had died off. (They died within hours of one another on the fiftieth anniversary of the Declaration of Independence that they had worked together on.) The point is that disagreement was fierce, to say the least. As I wrote in my book, "To suggest that there was consensus where there was scalding conflict is either ignorant or dishonest."
One often overlooked topic of conflict was their concepts on economic equality. As I detail both in my book and this blog, founders like Thomas Jefferson, Benjamin Franklin, Thomas Paine, and many others were proto-socialists who thought a rough economic equality was fundamental to a functioning republic. James Madison thought it would mitigate the evils of political parties, while Noah Webster thought it was "the very soul of a republic." Obviously, not all the founders agreed. Alexander Hamilton and John Jay thought the rich should rule and had no problem saying so. This was why Jefferson called Hamilton a corrupt monarchist. The founders did not speak with one voice.
Finally, party strategy and ideology have often gotten flipped and remixed since then. The founders who favored states rights, like Thomas Jefferson, advocated for the poor – whereas the founders who wanted a strong central government, like Alexander Hamilton, favored the rich. At that time, the greatest threat to the wealthy came from the states. In some states, poor veterans demanded debt relief acts and their agitation sent terrified bankers to the feds for help. After all, that’s what the right thought the Constitution was for. As James Madison had argued in Federalist #10, “a rage for paper money, for the abolition of debts, for an equal division of property, or for any other improper or wicked project” would be less likely to prevail at the national level. (Yes, vets were demanding those other things too.) Conservatives originally loved the federal government.
Such flips should not be difficult to imagine. After all, the Republican and Democratic parties had switch geographical voting bases after the 1964 Civil Rights Act. That is when the GOP began its infamous Southern Strategy of using racist dog whistles. Likewise, the GOP was once so pro-tariff that it was their signature issue, but today they favor free trade.(2)
Incidentally, George Washington thought, “The Men who oppose a strong and energetic government are, in my opinion, narrow minded politicians, or are under the influence of local views.”(3) No, he did not seek an eighteenth century version of the New Deal. (Although Thomas Paine’s social security proposal suggests that he might have.) But nor did Washington think that the weak, decentralized, states rights-based Articles of Confederation system worked either. Sorry, modern day “Tea Party” movement.
Likewise, as I wrote in my book, Thomas Jefferson is often called the father of small government. But to him, “big government” meant large armies and broad police powers - things conservatives love. So it is strange to hear them invoke the man who thought banks were “more dangerous that standing armies.”(4)
Today, ideological battle lines are ying-yanged from what they were when the founders lived. This makes making honest analogs pretty tricky to pull off. You have to acknowledge these switches, which conservatives are loathe to do because, to them, tradition is about resisting change rather than adapting to it. Legitimacy hinges on purity of preservation. They see the founders as almost prophets whose precepts are therefore perfect and eternal. By contrast, liberals are more likely to recognize that the founders were fallible mortals with all the associated foibles.
I am not saying that you cannot invoke the founders to argue anything – obviously, I do routinely. But you have to provide context to be honest, and context gets complex. After all, this was supposed to be a short post. And I have not even gotten into the enormous problems with the arguments of Robert Bork and Antonin Scalia or how some founders had anticipated the great temptation of Originalism and warned against eating the fruit of the Tree of Stupid.
I will explore those omissions in part two. The point here is that conservatism's "simple truths" are neither. Originalism is the Creationism of jurisprudence. Both are wishful thinking-driven cherry-picking: Myths and fables seeking not only to be taken literally, but to also enjoy the force of law.
And that is not what the founders wanted.
End of Part I - Part II is here.
(1) Okay, this joke admittedly begs explanation. See, factories were places were Americans used to make things before Republicans and conservative/"centrist" Democrats facilitated their export overseas. Some factories still exist. Take your kids to see them before they are all gone.
(2) Such party-wide flips are familiar. They may even make parties disown or at least ignore their own founders. For example, Thomas Jefferson founded the Democratic Party. Ignoring the fact that Jefferson had owned slaves while writing against slavery, Lincoln said the Democrats had originally put “the man before the dollar” – i.e. put human rights before property rights. Since abolitionists frequently quoted Jefferson’s anti-slavery rhetoric, the Democrats had soured on their founder. In a famous letter Lincoln reflected on the irony - particularly since the Republicans were arguably descended from the old Federalist Party. He followed up with an anecdote about two drunks who got to wrestling in the street and wound up wearing each others great coats by the time they got pulled apart. Lincoln said that America's two major parties had done the same. In the early twentieth century, progressive Republican Teddy Roosevelt affirmed the primacy of the man before the dollar. His younger cousin, Franklin D. Roosevelt later ran as a Democrat and quoted Lincoln's anecdote about the two drunks, suggesting that the two parties had switched principles again. Today, the party of Lincoln has embraced Jefferson Davis. And so it goes.
(3) George Washington, The Papers of George Washington: Confederation Series, ed. W.W. Abbot (Charlottesville: University Press of Virginia, 1983), 5:257.
(4) Thomas Jefferson, Writings of Thomas Jefferson, ed. Andrew Adgate Lipscomb and Albert Ellery Bergh (Washington DC: Thomas Jefferson Memorial Association, 1905), 15:23. Actually it was John Taylor who first coined the phrase but Jefferson expressed his agreement in a letter to him on June 7th 1816. Jefferson’s reply reads, “And I sincerely believe, with you, that banking establishments are more dangerous than standing armies; and that the principle of spending money to be paid by posterity, under the name of funding, is but swindling futurity on a large scale.”