Thursday, August 21, 2008

What the Founding Fathers Believed?

Let's take this discussion about how any genuine (constitutional) American can be a rightwinger one bite at a time, for clarity and sanity's sake.

Responding to my post asking that question, Rightwing Reader (RWR) said this:

"Ok I'll bite. We obviously have very different views of what the founding fathers believed. For instance, they did not advocate for gay marriage, comprehensive welfare, social security, lack of personal responsibility, unions controlling schools, abortion, flag burning, open borders, experimentation with embryos, euthanasia, high taxes and a slew of other things. The reason I am conservative is that I believe in what they believed, staring with the right to LIFE, then liberty and the pursuit of happiness."
OK. Groundrules: We will remain civil and we will provide citations for assertions of fact. These are the rules, because without civility and without a solid and shared set of data, we'll soon end up in a hailstorm of useless accusations that harden the divide.

RWR, let me clear up a couple of things from the get-go. I didn't address "what the founding fathers believed" for good reasons (see following). I discussed the Constitution and Bill of Rights. So, no. We don't disagree about "what the founding fathers believed." We do disagree on appropriate policy for a variety of problems, and I disagree with your presentation of (I suppose you'd say) liberal positions. That said, it's not my intent or mission to change your mind about social policy.

Your comment about "what the founding fathers believed" is based on this assumption: that it can be proved that somewhere, at some time, all the founders expressed unanimous agreement on how to resolve all the issues addressed in the Declaration, Constitution, the Amendments, and the Bill of Rights, and on how the words in all these documents were to be interpreted forevermore. This is the conservative doctrine of "original intent." Debate about "original intent" has been with us from Day 1. It's not a new invention.

The facts are these: (1) The founders did not officially preserve the proceedings leading up to ratification. This is a matter of record. That's mighty odd if they actually universally "believed" their "intent" mattered even greatly, let alone more than anything.

(2) Madison, who is to conservatives what Jefferson is to progressives, and one of the greatest of the brilliant minds of the period, actually "subordinated original intent to other considerations, as when he said that the sense of the Constitution would be found 'in the proceedings of the Convention, the contemporary expositions, and, above all, in the ratifying conventions of the States.'" (Original Intent and the Framers of the Constitution. Leonard Levy. McMillan, 1988. Pp. 5-29.)

Note well: For the greatest conservative mind of that era (and possibly since), the drafters themselves were not important. What counted were the RATIFIERS: the conventions of the States themselves. The reason is clear: it is the will of The People, as expressed in the acts of ratification, that makes these documents sacred to Americans.

Madison is also on record repeatedly noting that the meaning of the Constitution would emerge in discussions of The People over time. (Ibid., 21) He wasn't thrilled about that, but he knew that such is the nature of human language, life, and experience. This means that to Madison, The People are the "founding fathers." If you think--or think Madison thought--that The People agree on anything always and forever--possess original intent, we'll, we'll have to disagree.

[Correction: I had inadvertently left in the word "didn't" in this sentence when I originally posted it. It has now been deleted.] As to change, these brilliant men clearly did realize that the future would bring changes in technology, circumstance, science, common attitudes, etc., that would affect how The People would interpret the founding documents. Because they realized that, it seems clear that they also realized that the founding documents would necessarily be interpreted differently over time, in light of new circumstances affecting The People. Surely that's not arguable.

So: We know for a fact that the only things the founders agreed on was to sign the documents they drafted and to present them for ratification. Even then, many had reservations, which we know based on their letters and other writings. This is a matter of record, but for proof, I cite The Federalist Papers and also The Anti-Federalist Papers. There was wide disagreement even about ratification!

What they wrote about what they believed and thought (two different things, mind you) was sometimes unclear and confusing, as was how they lived their lives. Moreover, many of them are inconsistent between their writings and how they lived. Which of those would you say should prevail in an attempt to prove "what the founders believed"? Contradition, confusion, lack of consistency: Not surprising. They were human beings. To seek crystalline clarity and unanimity among them is to be bitterly disappointed.

What is significant is that they set aside their disagreements and reservations in order to sign the consensus draft Declaration, Constitution, the Amendments of their day, and the Bill of Rights and forward them for ratification. Therefore, these ratified consensus documents are what matter. Their personal "beliefs," other writings, and the history leading up to the ratification are interesting but can never provide the ultimate absolute unanimity and clarity that you imply.

The entire subsequent course of US law and legal theory is proof of that. It contains countless references to their disputes.

Some even warned us directly that their personal beliefs are irrelevant.

So, RWR, if you can point to the unanimous "founders' beliefs" document, signed and dated, of course, showing universal agreement on how all the words in all the core documents are to be interpreted, please do. Otherwise, refrain from basing your argument on the myth of what the founders believed. Because it is clear that whatever you or I say on that subject is only our personal interpretation based on what they wrote and didn't write. And my friend, as an American, my interpretation is as valid as yours.

Speaking both practically and philosophically, it doesn't matter what they believed. All that matters is what We The People joined together to ratify for posterity: The Declaration, the Constitution, its Amendments, and the Bill of Rights.

"What the founders believed"? Since there's universal disagreement among the founders, the concept is misleading from the get-go. Ever since the core documents were signed, there's been disagreement among Americans about their interpretation. That, alone, proves that they are living documents whether we like it or not. We continue to argue them because we are free, and because we too disagree on best courses of action for all these weighty matters. As long as we're humans, it can't be otherwise.

I submit that you and I disagree on how to argue them as well as on what the outcomes ought to be.