Posted: August 13, 2019
merican Dialogue: The Founders and Us is the most overtly political and personal of Joseph Ellis’s 13 books, all of which are concerned with the founding era. The book itself is a sort of dialogue between Ellis the historian and Ellis the pundit. “We inhabit a backlash moment,” he writes, given that the “most inexperienced, uninformed, and divisive presidential candidate in American history was elected.” Ellis the historian has won the Pulitzer Prize and a National Book Award, which makes it all the more disappointing that Ellis the pundit is so overwrought.
American Dialogue takes up four fundamental political concerns, each examined by interpreting a particular founder’s words and deeds: race (Thomas Jefferson), economic equality (John Adams), the Constitution (James Madison), and foreign policy (George Washington). Ellis judges Jefferson hypocritical, Adams regrettable, Madison ambiguous, and Washington laudable. In particular, Jefferson, by the end of his life, was “indistinguishable from most ardent proslavery advocates” in invoking states’ rights to challenge restrictions on slavery. Adams thought every nation needed a natural aristocracy but also fretted that the inescapable inequalities could cleave society. Ellis emphasizes that Madison was principally a politician, not a theoretician. He regarded the Bill of Rights, for example, “less as a philosophical statement than as a political tactic,” a concession to bolster support for the newborn Constitution.
Washington is Ellis’s foreign-policy exemplar for such aspirations as seeking to end “imperialism” against Indians during his presidency. But this magnanimous policy was undermined because an army-less federal government could control neither its borders nor disobedient states and citizens. Washington would also learn, painfully, that democratic swings of opinion frustrate pursuit of a steady foreign policy. Ellis finds in his Farewell Address a “high-toned condemnation” of the internecine bitterness that put the “still fragile American republic at risk.”
But then there’s the punditry. “[B]oth the middle class and the coral reefs are eroding,” Ellis writes in a typical sentence. The terms “law and order” and “voter fraud” are codewords for racism, an observation that was already hackneyed during Lyndon Johnson’s presidency. Ellis warns that we have entered a “second Gilded Age” in which the rising tide “now lifts only yachts.”
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Ellis the conspiracy theorist warns about Charles and David Koch’s “vast network” of “dark money” and John Birch Society connections. Such conservatives want an America “without government...regulation” and where “any federally sponsored policy of income redistribution [is] heresy.” No regulation? No income redistribution? Ellis simply asserts rather than demonstrates his targets’ extremism. Ellis even writes that the “New Right” (whatever that is, exactly) dreams of returning to a “paradise” of “Robber Barons feasting at Delmonico’s” and reveling in their “Social Darwinism.” That’s a lot of cliché to pack into a single sentence.
He is most confused when attacking originalism. “[J]ust as there are fundamentalists on the Christian side,” he writes, “there are originalists on the judicial side, both groups insisting that our lives in the present must be guided by principles embedded in language written long ago and in the intentions or meanings of the authors of those sacred, or semi-sacred, words.” But that’s not what originalism means. Every Justice since John Marshall has spoken reverently of the founders’ intent. All agree that we apply the Constitution’s text to new circumstances over time. The question is who does it, and to what degree. Originalism is merely the most recent response to the view that judges are the vanguard of social progress.
Ellis is right that the Supreme Court’s role in American life is outsized, and inconsistent with the role envisioned for it by any founder. But the cause has been decades of decisions on social questions—abortion, prayer in schools, welfare, affirmative action, the death penalty—that vaulted the Supreme Court into the center of our most unresolvable social tensions. He even recognizes the liberal “judicial revolution,” beginning in the 1950s, “based on the belief that federal judges,” interpreting a “Living Constitution,” were obliged to “adjust its meaning to evolving standards of justice.” Antonin Scalia’s version of originalism was a counterrevolution, which insisted that the Constitution was largely silent on most policy questions. This silence guaranteed that voters and legislators, not judges, would decide how to best order our society. It was Scalia’s nemesis, William Brennan, by contrast, who injected court power into ever new areas of life, declaring that our lives must be “guided” by its—the Court’s—words in the true Biblical sense.
The book is also full of errors on law. Ellis says that District of Columbia v. Heller (2008) created a “nearly unlimited individual right” to keep firearms, even though the Court specifically approved of myriad gun restrictions and the D.C. law at issue in Heller remains the only federal law struck down under the Second Amendment. Ellis says Citizens United v. FEC (2010) “removed all restrictions on corporate giving to political candidates,” even though that decision only concerned independent expenditures and did not touch bans on corporate contributions to candidates.
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Historians, including Ellis in American Dialogue, complain that lawyers are insufficiently respectful of the ambiguity and complexity of history. But lawyers have a right to observe that their day-to-day work also involves making careful distinctions. A critic of law-office history should be on guard against purveying history-department law.
What is so curious about American Dialogue—what makes it two books in one—is the contrast between Ellis’s purported mission to commend subtlety and indeterminacy in our approach to history, while giving us cardboard villains and conspiracies in the present. Though he tries to understand the framers as they understood themselves, he doesn’t extend that courtesy to Scalia, the Koch brothers, or many other contemporaries. If nothing else, Joseph Ellis proves that you can’t write history in the present tense.