The phrase “wisdom of the founding fathers” appears on the Internet about 620,000 times according to Google; about 25 million times according to Bing. That is a lot of patriarchal respect. It is a phrase typically invoked in discussions of the Constitution. Supreme Court nominees, for example, are pressed to give their obeisance to the Founding Fathers. (Elena Kagan waffled a bit when she referred to “the Founding Fathers, who left us with a brilliant but slightly flawed Constitution.”) Conservative web sites, of course, are full of the wisdom phrase (e.g., here) and sometimes suggest that there was a divine hand in the writing of the Constitution. (James Madison himself – although probably a Deist – wrote in Federalist No. 37: “It is impossible for the man of pious reflection not to perceive in [the Constitution] a finger of that Almighty hand . . . .” But, then again, the Federalist papers he helped pen were pamphlets in a p.r. campaign to ratify the Constitution.)
Such ancestor worship is odd in a society that has been noted since its birth for dismissing tradition, breaking with old ways, and instead forging original paths, valuing the new, the newer, and the newest. Yet, we were reminded this week, when a federal judge ruled that the constitution’s authors did not intend that there be a federal mandate for health insurance, of how much weight Americans put on what we think those men thought so long ago.
The 2009 book about the Constitutional Convention by Richard Beeman, Plain, Honest Men: The Making of the American Constitution, provides a brief, accessible, and realistic picture of the convention with its hard-nosed horse-trading, personalities both noble and irascible, and accidents. The resulting organizational manual has served the nation amazingly well, especially by being so plastic, but it is much a human product.
Sausages and Laws
Despite Beeman’s title, the drafters of the Constitution were hardly “plain”; they were members of the new nation’s elite. Most were wealthy and, notably, half of them owned slaves. Many key figures of the American Revolution were absent – no Adams, Jefferson, or Henry, for example – and the most important state figures, such as Clinton of New York, stayed home. Washington was there but said almost nothing and old man Franklin said a lot but was mostly ignored. Many who were officially in attendance were frequently AWOL, preferring to be at home or in New York than in hot, smelly Philadelphia. They did, however, rush back to sign the final document.
The interests and the views of the delegates varied on some key matters. Members divided between those who pushed for a strong central government and those who preferred more state power, between small and large states, between North and South. But they generally agreed on some big issues – for example, on avoiding a government that was too influenced by average, non-wealthy Americans; on having the new government facilitate commerce much more than the Articles of Confederation did; and on protecting slavery or at least not letting the slavery issue sink the new constitution. (So, for example, the delegates included a provision – Art. IV, Sec. 2 – requiring that all states, even free states, hand over any escaped servants or slaves to their owners.)
We have only a rough idea about the actual debates, since the deliberations were held in tight secrecy and the quite partial records of those debates were locked up for 20 years. Participants seemed to pretty up their recollections as the debate for ratification in the 13 states proceeded and then, later, as the convention became a celebrated historical memory. Still, it is clear that the Founding Fathers’ deliberations did not lack the posturing, nor the deal-making, nor the legislation-by-exhaustion common to most legislative bodies. (What they did lack was a plague of lobbyists pushing outside interests and an armada of scandal-seeking journalists and television producers.)
Beeman’s account describes how many of the Constitution’s provisions could have come out differently – if this person had not been away, if that person had been chosen for a committee, if someone else hadn’t been such an obnoxious SOB, if it hadn’t been so hot on a certain day, and so on (suggesting that the Almighty’s finger was pretty fickle). In the end, what they produced has – with tugging, trimming, amending, ignoring, reinterpretation, and so on – worked very well for over 200 years…. well, except for failing to head off a Civil War that cost over 600,000 lives.
Nonetheless, the Constitution the Founding Fathers wrote had and still has many oddities and problems. A few were caught quickly. For example, the first 10 amendments provided a Bill of Rights to reassure critics – although the ambiguity of some of amendments’ wording has created confusion (such as what the comma in the 2nd Amendment meant about militias and guns). Also, the initial system for electing a president failed and required a big rewrite in the 12th Amendment. The vagueness of the judicial branch’s power was settled by the Court claiming that authority in the early 1800s. Later, other corrections – by formal amendment or by judicial interpretation – allowed the Constitution to recognize blacks and women as equal citizens, to expand and protect individual civil liberties, and to empower the national government to manage a continent-wide economy.
We still have oddities, like the office of the Vice-President, and like the Senate structure which gives the roughly 550,000 residents of Wyoming a voice equal to that of the 25 million residents of Texas and the 37 million residents of California (and gives the 600,000 residents of Washington, D.C. no say at all).
If the Founding Fathers were so wise that everyone since had actually deferred to their values, opinions, and decisions of 1789, we would probably not have today, among other things: women able to vote, run for office, or hold property (sorry, Sarah Palin); taxing wage-earners to pay for Medicare and Social Security; public higher education (perhaps public education of any kind); national highways or national parks; management of economic cycles; agricultural subsidies; and so on and so forth. Actually, we probably wouldn’t have a nation.
Thomas Jefferson himself looked askance at Founding Fathers worship. He wrote in 1816,
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. I knew that age well; I belonged to it and labored with it. It deserved well of its country. It was very like the present but without the experience of the present; and forty years of experience in government is worth a century of book-reading; and this they would say themselves were they to rise from the dead.