Original(ism) Sin

When I taught 8th Grade Social Studies, I did not offer much in the way of extra credit. On my Constitution final exam, however, I always offered up the following multiple choice question for extra credit. In my four years of teaching over 500 students, I can recall just one 8th grader getting it correct (way to go Ryan K.).

Which of these issues does the U.S. Constitution not address:

a. Punishing of pirates
b. $10 limit on slave taxes
c. Prohibition on calling members of congress dukes, barons, and knights
d. Public education

If you guessed “d” you are correct, and even if you found it an obvious answer, you can likely appreciate how this is a pretty difficult question for a 13-year old. After all, how could our founding fathers go to such lengths to mention issues that now seem so minor or ridiculous (e.g., What do we do with pirates?), but make no mention of education—an issue most Americans consider to be “very important.” And I didn’t have to pick education. I could just as easily have used health care, abortion, terrorism, telecommunications, energy, or the environment. Most of these issues now have their own executive department, or at least a major agency, and yet the Constitution can’t spare nary a word on them.

We of course understand it is not fair to fault our founding fathers for not adequately addressing these issues. These men wrote the Constitution 226 years ago and things have changed a wee bit since then.

I raise these facts to point out a rather obvious point—albeit rarely spoken of. Namely, the Constitution is a very flawed document. And how could it not be? It’s a 226-year old instruction manual written by a homogenous, yet bitterly divided group of people who could never have imagined the world in which we live.

Despite the obvious and unavoidable problems with our Constitution, we as a society are plagued by originalists. While there are varying strains of originalism, the general theme behind originalist thinking is that when the United States is in doubt as to what policies we should enact or what direction our nation should pursue, we should begin by asking ourselves, “What would the founding fathers have wanted us to do?” We regularly hear this from people who are not even familiar with the term originalism, but very much embrace its underlying premise. I most often hear it vocalized following the discussion of some government program, agency, or activity with some statement to the effect of: “This is just not what the founding fathers had in mind.” As I will attempt to show, this inquiry of founders’ intent is useless. In fact, it is worse than useless. It is counterproductive.

There are essentially five major problems with originalism, or what I see as founding-father worship.

First, the entire notion of originalism works under the demonstrably false assumption that the founding fathers were some type of monolithic entity who were of one mind as to how the federal government should operate and the powers it should have. That is not at all the case. Any part-time student of history knows the founding fathers lived in a politically tumultuous time. They had sharp disagreements as to: foreign policy (isolationism versus close economic and political alliances); whether to align more closely with Great Britain or France; whether to create a federal bank; whether to expand slavery; whether to build a country based on agriculture or manufacturing; whether to even write a Constitution or stick with the Articles of Confederation; and on and on. These disagreements were strong; so strong that the Constitution came very close to never getting out of the Constitutional Convention.

Further demonstrating the degree of political strife and ill-will between the founders is the toxic political rhetoric exchanged between them. In the presidential election of 1800 between Thomas Jefferson and John Adams, the candidates accused the other of, among many other ugly things, being a hermaphrodite and advocating for incest. In 1804, the vice-president of the United States (Aaron Burr) famously shot and killed Alexander Hamilton for offensive statements Hamilton allegedly made about Burr during Burr’s ultimately unsuccessful bid to become New York’s governor. One could very reasonably conclude from this history that our attempts to discern the founders’ collective intent would be made no easier if they were still alive.

The second problem with originalism is that it is a compass without a needle (or perhaps a compass with infinite needles). What I mean is that originalism suffers from the same problem as those who advocate for a society based on Biblical principles. That is, there is not a single position on any policy that cannot find some support among a founding father or two (just like any advocate of any position can find something in the Bible on which to draw support). This begs the question, “If any person can find support for any position on any issue from some combination of founding fathers, what good is it to ask what the founding fathers would have wanted?” The uselessness of this endeavor is realized when you fruitlessly try to recall a single person ever lamenting that their political position is weakened by the lack of support from the founding fathers. Everyone believes the founders are on their side and everyone has something to back up that assertion.

Originalism’s next problem is there is no accurate way to poll the founding fathers. Attempts to derive the founders’ intent is often based on conjecture from writings that may or may not have reflected the authors’ actual beliefs. For example, originalists love to cite the Federalist Papers as documentation of the Founder’s intent, but they were written by just 3 of the 55 men who attended the Constitutional Convention (of note, 70 men were invited but some refused to attend and some of those who attended refused to sign the final document—the opinions of these founders do not seem to count). It should be pointed out that the three founders who wrote the Federalist Papers (Hamilton, Madison, and Jay) did not write them as philosophical works, but as part of a public relations campaign to whip up support among the states to ratify the Constitution. There is also the problem of determining at what point in time a founder’s intent mattered. For example, it is well documented that our quintessential founding father, Thomas Jefferson, in his long life, often found himself on different sides of the same issue.

Fourth, who do we get to count as founding fathers when determining their collective intent? Originalists indicate we must look to what the authors of the Constitution wanted. If we took this narrow approach, however, we would exclude from the founding fathers such notable people as: Thomas Jefferson, John Adams, Patrick Henry, Thomas Paine, and John Hancock. There is also the problem that very few people know anything about more than two or three of the founding fathers, let alone what they intended for this country. Who, for example, can tell me the worldview and philosophical underpinnings of great Constitutional signers such as Rufus King, Jared Ingersoll, or Nicholas Gilman?

Finally, the fifth and most significant problem with originalism is that even if we could determine what the founding fathers wanted, do we really care? Their worldview is incredibly outdated socially, economically, technologically, and in every other way. When they formed this country, its population was the equivalent of today’s Phoenix metropolitan area. The big invention of the time was the shoelace. Bloodletting was still the rage. And perhaps most limiting, our founding fathers were all white, land-owning men. Sometimes I am curious what the founding mothers would have wanted. Or what about the founding slaves. Or the uninvited Native Americans. So again I ask, even if we could discern the founders’ intent, do we really want our policies paternalistically handed down to us by this homogenous group of fossils?

This purpose of this writing is not to encourage abandonment of the Constitution or downplay the significant contributions our founders made for us and the world. I simply point out that we do ourselves a great disservice by trying to solve today’s complex political issues by first trying to discern what the founders would have wanted. We do much better to look to those broad principles laid out in the Preamble, and try our best to enact policies that fulfill those principles while improving the lives of our living citizens.

– Dylan


One Response to “Original(ism) Sin”

  1. Excellently stated without further comment required.

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