Myth: We should return to the original intentions of the Founding Fathers.

Fact: The Founders were conflicted and disagreed over the issues.



Summary

Appealing to the original intentions of the Founding Fathers is mistaken for three reasons:

1. The Founders were a contentious, disagreeable lot.
2. They were often personally conflicted on the issues.
3. Times change.



Argument

The Constitutional Convention of 1787 featured lively, even heated debates among the Founders. Small states were opposed to suggestions made by large states; federalists were opposed to anti-federalists; commercial interests were opposed to competing interests. Issues that bitterly divided the Convention included the method of Congressional representation, slavery, and the proper role and authority of the president. All these issues were resolved by compromise and consensus -- the very democratic principles that many conservatives and libertarians seek to nullify by appealing to the intentions of the Founders.

After the Convention, intense debate occurred in the press about the ratification of the proposed constitution. Two famous documents, the Federalist Papers and the Anti-Federalist Papers, were written during this period to make their respective cases. The federalists wanted a stronger central government than the anti-federalists, and the fact that the federalists won this battle is still a source of embarrassment to conservatives and libertarians today.

Seven states ratified the Constitution relatively quickly, but intense opposition was encountered in the other six. New York, for example, was opposed to a strong central government, because its greater population and economic power would fare well in a more competitive, anarchic system of sovereign states. After acrimonious debate and bitter struggle, the federalists convinced Massachusetts and New Hampshire to become the 8th and 9th states to ratify the constitution. Because only 9 states were needed to approve the union, New York saw that the union was an inevitability and surrendered its opposition, becoming the 11th state to vote for ratification. The remaining two states took a full year longer to join.

Considering the acrimonious debate and fluid compromises in the ratification process, it's easy to see the constitution could have easily turned out otherwise. The anti-federalists were actually in the majority, but were stymied by their own conflicts, overconfidence and lack of sure leadership. The most criticized feature of the constitution was the lack of a bill of rights guaranteeing individual freedoms - and the federalists gave the anti-federalists this single compromise in order to win their support.

One of the most important features of our constitutional system -- one that we all take for granted today -- is judicial review, in which our Supreme Court reviews the constitutionality of Congress's laws. Although #78 of the Federalist Papers argues forcefully for judicial review, this process wasn't even included in the constitution! The Founders debated it in the Convention and voted it down. Which presents a problem to many libertarians and conservatives today: how are laws to be screened for their adherence to individual rights? Should Congress simply be trusted to pass laws that do not violate constitutional rights, as the constitution implicitly allows? Such an idea is anathema to them. Judicial review became part of the system with the Supreme Court decision in Marbury vs. Madison (1803). It was justified on the basis that the constitution leaves the door open to judicial review, by allowing it to settle all disputes to which the federal government is a party.

Inner conflicts

Conflicts occurred not only between the Founders, but within the Founders as well. Thomas Jefferson, for example, was fully aware of the contradiction between his statement that "all men are created equal" and the fact that he owned slaves. He decried a government that told farmers how to grow their crops, but promoted compulsory and public-financed education. Unfortunately, Jefferson's conflicted views allow modern pundits to find numerous Jefferson quotes to support virtually any political point they wish, especially when taken out of context. For example, conservatives love to quote the following:

"Sometimes it is said that man cannot be trusted with the government of himself. Can he, then, be trusted with the
government of others? Or have we found angels in the forms of kings to govern him? Let history answer this question." -- Thomas Jefferson, First Inaugural Address

On the other hand, liberals love to quote the following:

"If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it." -- Thomas Jefferson, First Inaugural Address

Times Change

Finally, times change, a fact admitted by the Founders themselves. They never intended for their original intentions to stand forever, and that is why they created an amendment process to the constitution. Indeed, we have already amended the constitution 26 times -- and almost always for the better, as the abolition of slavery proves. Jefferson himself was clear on the point that constitutions should change with the times:

"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... laws and institutions must go hand in hand with the progress of the human mind... as that becomes more developed, more enlightened, as new discoveries are made, institutions must advance also, to keep pace with the times.... We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain forever under the regimen of their barbarous ancestors." -- Thomas Jefferson, on reform of the Virginia Constitution

"That our Creator made the earth for the use of the living and not of the dead; that those who exist not can have no use nor right in it, no authority or power over it; that one generation of men cannot foreclose or burden its use to another, which comes to it in its own right and by the same divine beneficence; that a preceding generation cannot bind a succeeding one by its laws or contracts; these deriving their obligation from the will of the existing majority, and that majority being removed by death, another comes in its place with a will equally free to make its own laws and contracts; these are axioms so self-evident that no explanation can make them plainer." -- Thomas Jefferson to T. Earle, 1823.

And what has changed since the 18^th century? Essentially, two things:

1. Society (and with it, the economy).
2. Our understanding of society and the economy.

Our society and economy have changed as they have become larger, faster, more complex and interdependent. And this has created a need for a larger public sector. The famous British historian E.H. Carr once penned an analogy that described this process perfectly. When modern roads were first built, there were few cars to travel on them. Hence, there was almost no need for traffic laws. If you happened to meet another motorist at an intersection, you could afford to tip your hat and generously give him the right of way. However, as the roads became more heavily traveled, this sort of anarchy became less and less functional. As more cars appeared, so did the need for more traffic lights, signs, police, safety railings, drivers' education, drivers' licenses, safety and planning commissions, etc. Without them, the streets would be chaotic, and traffic fatalities would soar.

In a similar manner, the Founders created our nation when there was great simplicity and sparseness to our society and economy. They perceived -- correctly -- that the federal government could rule with a remarkably light hand. But as our society and economy have grown larger, more complex and interdependent, the need for more rules and organization has risen as well. Just one example is the stock market. The operations of Wall Street were in their infancy during the Founder's day. It's activity wasn't even significant enough to warrant government attention. However, as trading grew on Wall Street, and it became an important and central aspect of the nation's economy, corruption arose in the form of dishonest trading, insider trading and stock manipulation by millionaires. By 1934, the stock exchanges were so untrustworthy that Roosevelt created the Securities and Exchange Commission. This regulatory watchdog significantly cleaned up Wall Street by requiring the full and honest disclosure of all pertinent information on the sales of stocks. Not surprisingly, the millionaire traders decried this as a violation of the free market -- opposed to the principles of non-interventionist government that the Founders had believed in.

But society is not the only thing that has changed. So has our understanding of it. Before World War II, economic depressions were a common occurrence in America; they visited every generation or two. During the Great Depression, British economist John Maynard Keynes developed a theory about the nature and cure of depressions. Using Keynesian policies, central banks in all capital countries around the world appear to have completely eliminated the depression from the human experience. The U.S. has gone a record six decades without a depression -- thanks to the very Federal Reserve policies that earlier Founders would have decried as "interventionist."

Today's Americans do not limit themselves to 18th century medicine, 18th century science, 18th century technology or 18th century English. Why they should then limit themselves to 18th century political science and economics is therefore a challenge to conservative and libertarian thought.

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