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Heirs to the Founding

By: Max Eden
October 29, 2015

or decades, Republicans have insisted that they are the true heirs of the giants who made America an independent nation, and then a successful republic. The Tea Party’s constitutionalism echoes that of Barry Goldwater, who wrote in 1960 that his aim was “not to inaugurate new programs, but to cancel old ones that do violence to the Constitution.” Earlier, the 1936 GOP platform alleged that the New Deal had “dishonored American traditions.” The “powers of Congress have been usurped by the President,” it charged. “The integrity and authority of the Supreme Court have been flouted. The rights and liberties of American citizens have been violated.”

Democrats, however, insist that theirs is the cause of applying the Founding principles to modern realities, and that it’s the Republicans who have betrayed the spirit of ’76, and ’87. President Obama regularly invokes the Constitution’s preamble, presenting his programs as efforts “to achieve a more perfect union.” Franklin Roosevelt insisted that activist government was not only consistent with but required by the Founding, rightly understood. “In 1776 we sought freedom from the tyranny of a political autocracy—from the eighteenth century royalists who held special privileges from the crown,” he told the 1936 Democratic convention. The New Deal, he said, was a fight against “economic royalists,” captains of finance and industry whose power had grown so great that “life was no longer free; liberty no longer real; men could no longer follow the pursuit of happiness.” Even before the New Deal, the determined Progressive polemicist Herbert Croly argued that governing an industrialized America required employing Hamiltonian means for the purpose of achieving Jeffersonian ends.

So, whose Founding is it? Neither’s, according to The Jefferson Rule: How the Founding Fathers Became Infallible and our Politics Inflexible, by historian David Sehat. That is, neither Democrats nor Republicans, neither liberals nor conservatives, can claim the Founders would have been on their side. The Founders’ views were too diverse, their disagreements too fundamental, to support any such claim. More importantly, according to Sehat, modern antagonists not only have no basis to claim fealty to “the” Founders, but harm our politics by trying to establish one. Doing so turns questions of governance, which ought to be decided on the basis of costs and benefits, problems and solutions, into unnecessary, confounding debates about 18th-century political principles.  

For The Jefferson Rule to present a strong case, it would have to debunk the idea of a founding philosophical consensus while demonstrating the practical harm done by appealing to the Founders. Instead, Sehat attacks a straw man, then twists and flattens American political history to fit his thesis.

The straw man is the construct that the Founders saw eye-to-eye on every issue. The Jefferson Rule’s lively account of the personal antipathies and political arguments between Alexander Hamilton and Thomas Jefferson, however, does not refute the belief that Jeffersonians and Hamiltonians shared a coherent understanding of the nature of man and the purpose of government. Sehat ignores, for example, that Hamilton and James Madison, Jefferson’s most important ally, collaborated so closely on the Federalist Papers that historians still have difficulty determining who wrote what.

Yet Sehat mentions the Federalist Papers only in passing, and omits the Declaration of Independence entirely. Far from being bitterly divided, the signers of the Declaration were united in asserting the self-evident truth—far from universally acknowledged, then or now—“that all men are created equal, that they are endowed by their creator with certain unalienable rights.” Jefferson later wrote that this axiom was not merely the opinion of the Declaration’s 56 signers, but “was intended to be an expression of the American mind.” Sehat’s unpersuasive rejoinder to this claim is that Jefferson’s attempt to establish a political orthodoxy “consisted more of sloganeering and rhetorical posture than political platform.”

Was Sehat or Jefferson correct? This question was at the crux of the debates between Abraham Lincoln and Stephen Douglas. The proximate issue was whether Congress had the authority to ban slavery in the territories, but the true question was whether or not slavery was morally wrong.

For Douglas, the fundamental American political principle was popular sovereignty, and any attempt to curtail slavery in the territories would violate that principle. For Lincoln, the natural rights of the Declaration of Independence were the inalienable possession of all men, not just some, and therefore not just whites. The Founders had compromised on slavery by allowing it, but had curtailed the expansion of slavery in the territories with the intent of putting the institution in the course of ultimate extinction.

Lincoln feared that the Supreme Court’s Dred Scott decision had, instead, placed slavery in the course of ineradicable permanence. Leading Democratic politicians, he contented, were attempting to undermine the Founding consensus and make slavery a constitutional right. Douglas charged Lincoln with trying to divide American politics by sectional interest, thereby risking a civil war, on the basis of an absurd conspiracy theory.  

To Sehat, however, the Lincoln-Douglas argument was one big misunderstanding. Both men “kept speaking past one another all the while believing that the other was nefarious and represented an existential threat to the United States.” Sehat doesn’t ask or answer the question of whether either Lincoln or Douglas might have been right. He does mention Lincoln’s Cooper Institute speech, wherein Lincoln mustered prodigious evidence that the Founders believed Congress could ban slavery in the territories. To Sehat, this argument made war inevitable: “The dispute over the Founders had again come to constitutional crisis.” But he never considers that by demonstrating the Founders’ consensus against the expansion of slavery, Lincoln struck a blow not only against Douglas’s thesis that they had no moral objection to slavery, but also against Sehat’s thesis that they had no consensus, period.

The latter half of Sehat’s book boils down to a syllogism: Conservative Republicans are bad; conservative Republicans often invoke the Founders; therefore, invoking the Founders is bad. The last chapter of The Jefferson Rule is essentially a rehash of liberal punditry denouncing the Tea Party. Sehat connects a Sarah Palin web graphic of crosshairs over vulnerable Congressional districts, for example, to the shooting of Representative Gabrielle Giffords. Never mind that the shooter was a paranoid schizophrenic with no discernible political ideology. This is hackery, not history.

Sehat declares that we should dispense with discussion of the Founders and their principles and focus instead on policy trade-offs. He invokes Walter Lippmann’s call for our politicians to “‘substitute purpose for tradition’ so that they could deal with American life deliberately, ‘to devise its social organization, alter its tools, formulate its method, educate and control it.’” But the Founders would have recoiled from the notion that our politicians ought to educate and control us. And Lincoln both anticipated and refuted the Pragmatists’ idea that government can just solve problems. Without political principles that engage questions of human nature and political justice, the identification of certain states of affairs as problems, and of certain government actions as solutions, is entirely arbitrary. Nothing in human history encourages the hope that politicians who take it upon themselves to educate and control social organizations will wield such arbitrary powers for the benefit of the governed rather than the governors. Lincoln accused Douglas of “insisting that there is no right principle of action but self-interest,” an accusation that applies to those who defend Douglas’s position, or who dismiss the importance of his disagreement with Lincoln.