Myth: We should return to the original intentions of the Founding Fathers.
Fact: The Founders were conflicted and disagreed over the issues.
Appealing to the original intentions of the Founding Fathers is
mistaken for three reasons:
1. The Founders were a contentious, disagreeable lot.
2. They were often personally conflicted on the issues.
3. Times change.
The Constitutional Convention of 1787 featured lively, even heated
debates among the Founders. Small states were opposed to suggestions made
by large states; federalists were opposed to anti-federalists; commercial
interests were opposed to competing interests. Issues that bitterly divided
the Convention included the method of Congressional representation, slavery,
and the proper role and authority of the president. All these issues were
resolved by compromise and consensus -- the very democratic principles
that many conservatives and libertarians seek to nullify by appealing to
the intentions of the Founders.
After the Convention, intense debate occurred in the press about the
ratification of the proposed constitution. Two famous documents, the Federalist
Papers and the Anti-Federalist Papers, were written during this period
to make their respective cases. The federalists wanted a stronger central
government than the anti-federalists, and the fact that the federalists
won this battle is still a source of embarrassment to conservatives and
Seven states ratified the Constitution relatively quickly, but intense
opposition was encountered in the other six. New York, for example, was
opposed to a strong central government, because its greater population
and economic power would fare well in a more competitive, anarchic system
of sovereign states. After acrimonious debate and bitter struggle, the
federalists convinced Massachusetts and New Hampshire to become the 8th
and 9th states to ratify the constitution. Because only 9 states
were needed to approve the union, New York saw that the union was an inevitability
and surrendered its opposition, becoming the 11th state to vote
for ratification. The remaining two states took a full year longer to join.
Considering the acrimonious debate and fluid compromises in the ratification
process, it's easy to see the constitution could have easily turned out
otherwise. The anti-federalists were actually in the majority, but were
stymied by their own conflicts, overconfidence and lack of sure leadership.
The most criticized feature of the constitution was the lack of a bill
of rights guaranteeing individual freedoms - and the federalists gave the
anti-federalists this single compromise in order to win their support.
One of the most important features of our constitutional system --
one that we all take for granted today -- is judicial review, in which
our Supreme Court reviews the constitutionality of Congress's laws. Although
#78 of the Federalist Papers argues forcefully for judicial review, this
process wasn't even included in the constitution! The Founders debated
it in the Convention and voted it down. Which presents a problem to many
libertarians and conservatives today: how are laws to be screened for their
adherence to individual rights? Should Congress simply be trusted to pass
laws that do not violate constitutional rights, as the constitution implicitly
allows? Such an idea is anathema to them. Judicial review became part of
the system with the Supreme Court decision in Marbury vs. Madison
(1803). It was justified on the basis that the constitution leaves the
door open to judicial review, by allowing it to settle all disputes to
which the federal government is a party.
Conflicts occurred not only between the Founders, but within the
Founders as well. Thomas Jefferson, for example, was fully aware of the
contradiction between his statement that "all men are created equal"
and the fact that he owned slaves. He decried a government that told farmers
how to grow their crops, but promoted compulsory and public-financed education.
Unfortunately, Jefferson's conflicted views allow modern pundits to find
numerous Jefferson quotes to support virtually any political point they
wish, especially when taken out of context. For example, conservatives
love to quote the following:
"Sometimes it is said that man cannot be trusted with the government
of himself. Can he, then, be trusted with the
On the other hand, liberals love to quote the following:
government of others? Or have we found angels in the forms of kings
to govern him? Let history answer this question." -- Thomas Jefferson,
First Inaugural Address
"If there be any among us who would wish to dissolve this Union
or to change its republican form, let them stand undisturbed as monuments
of the safety with which error of opinion may be tolerated where reason
is left free to combat it." -- Thomas Jefferson, First Inaugural
Finally, times change, a fact admitted by the Founders themselves.
They never intended for their original intentions to stand forever, and
that is why they created an amendment process to the constitution. Indeed,
we have already amended the constitution 26 times -- and almost always
for the better, as the abolition of slavery proves. Jefferson himself was
clear on the point that constitutions should change with the times:
"Some men look at constitutions with sanctimonious reverence,
and deem them like the ark of the Covenant, too sacred to be touched. They
ascribe to the men of the preceding age a wisdom more than human, and suppose
what they did to be beyond amendment... laws and institutions must go hand
in hand with the progress of the human mind... as that becomes more developed,
more enlightened, as new discoveries are made, institutions must advance
also, to keep pace with the times.... We might as well require a man to
wear still the coat which fitted him when a boy as civilized society to
remain forever under the regimen of their barbarous ancestors."
-- Thomas Jefferson, on reform of the Virginia Constitution
And what has changed since the 18th century? Essentially,
"That our Creator made the earth for the use of the living
and not of the dead; that those who exist not can have no use nor right
in it, no authority or power over it; that one generation of men cannot
foreclose or burden its use to another, which comes to it in its own right
and by the same divine beneficence; that a preceding generation cannot
bind a succeeding one by its laws or contracts; these deriving their obligation
from the will of the existing majority, and that majority being removed
by death, another comes in its place with a will equally free to make its
own laws and contracts; these are axioms so self-evident that no explanation
can make them plainer." -- Thomas Jefferson to T. Earle, 1823.
1. Society (and with it, the economy).
2. Our understanding of society and the economy.
Our society and economy have changed as they have become larger, faster,
more complex and interdependent. And this has created a need for a larger
public sector. The famous British historian E.H. Carr once penned an analogy
that described this process perfectly. When modern roads were first built,
there were few cars to travel on them. Hence, there was almost no need
for traffic laws. If you happened to meet another motorist at an intersection,
you could afford to tip your hat and generously give him the right of way.
However, as the roads became more heavily traveled, this sort of anarchy
became less and less functional. As more cars appeared, so did the need
for more traffic lights, signs, police, safety railings, drivers' education,
drivers' licenses, safety and planning commissions, etc. Without them,
the streets would be chaotic, and traffic fatalities would soar.
In a similar manner, the Founders created our nation when there was
great simplicity and sparseness to our society and economy. They perceived
-- correctly -- that the federal government could rule with a remarkably
light hand. But as our society and economy have grown larger, more complex
and interdependent, the need for more rules and organization has risen
as well. Just one example is the stock market. The operations of Wall Street
were in their infancy during the Founder's day. It's activity wasn't even
significant enough to warrant government attention. However, as trading
grew on Wall Street, and it became an important and central aspect of the
nation's economy, corruption arose in the form of dishonest trading, insider
trading and stock manipulation by millionaires. By 1934, the stock exchanges
were so untrustworthy that Roosevelt created the Securities and Exchange
Commission. This regulatory watchdog significantly cleaned up Wall Street
by requiring the full and honest disclosure of all pertinent information
on the sales of stocks. Not surprisingly, the millionaire traders decried
this as a violation of the free market -- opposed to the principles of
non-interventionist government that the Founders had believed in.
But society is not the only thing that has changed. So has our understanding
of it. Before World War II, economic depressions were a common occurrence
in America; they visited every generation or two. During the Great Depression,
British economist John Maynard Keynes developed a theory about the nature
and cure of depressions. Using Keynesian policies, central banks in all
capital countries around the world appear to have completely eliminated
the depression from the human experience. The U.S. has gone a record six
decades without a depression -- thanks to the very Federal Reserve policies
that earlier Founders would have decried as "interventionist."
Today's Americans do not limit themselves to 18th century
medicine, 18th century science, 18th century technology
or 18th century English. Why they should then limit themselves
to 18th century political science and economics is therefore
a challenge to conservative and libertarian thought.
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