Founding Fathers, Founding Villains
The New Liberal Originalism
As soon as there was a Constitution, fights about its meaning began. In 1792 Fisher Ames, representing the first district of Massachusetts in the first U.S. House of Representatives, complained about a tendency of Congress:
We hear, incessantly, from the old foes of the Constitution, ‘this is unconstitutional, and that is;’ and indeed, what is not? . . . If the Constitution is what they affect to think it, their former opposition to such a nonentity was improper. I wish they would administer it a little more in conformity to their first creed.
Ames was ridiculing the minority in Congress for having abandoned a position he considered idiotic—they’d claimed during the ratification debates that the Constitution made Congress a tyranny—for an equally idiotic contrary: now they claimed the same document limited federal power so strictly that Congress couldn’t do anything. “Antis,” Ames called them, short for “antifederalists.” He saw them as a “party of ‘no,’” to use a current phrase, and their constant appeals to constitutional restraints as spurious. It was rank antifederalism by other means.
Some students of the period wouldn’t agree with Ames. The Constitution, amended after ratification, wasn’t, in fact, the same document that the antifederalists had feared was tyrannical. Yet while the amendments can seem paramount to us—they’re what many people today seem to mean when they refer to the Constitution—the minority in the first Congress rarely resorted to them. James Madison, chief author of the Bill of Rights, was at the time still committed to federal sovereignty, and where antifederalists had hoped for amendments preserving state rights, Madison was careful to focus the amendments, as much as he could, on individual rights instead.
So to oppose federal activism, the minority in the first Congress looked to the Constitution’s main body. Nowhere, they said, did it empower the Congress to pursue big projects that the majority, associated with President Washington’s administration, believed were critical to establishing American nationhood. In the debate over forming a central bank—a favorite project of the first treasury secretary, Alexander Hamilton—Madison himself began questioning the powerful, wide-ranging national authority that he, Hamilton, and others had recently tried to build into the federal government. Soon Madison was leading his former antifederalist opponents in condemning the bank as unconstitutional. Congress’s power to create one, he said, is not enumerated in the document.
Hamilton, speaking in Congress through Ames and other allies, responded with an argument enshrined today as an elemental principle in an elemental dispute. While there is no explicit provision in the Constitution empowering Congress to charter a bank, the powers explicitly granted—in this case to borrow, tax, and coin money—naturally imply other, un-enumerated powers “necessary and proper” to exercising the enumerated ones. Otherwise government would be not limited but paralyzed, Hamilton believed, and, absurdly so, by government itself.
Madison had believed the same thing only months earlier. In the amendments debate he’d said, “There must necessarily be admitted powers by implication, unless the constitution descended to recount every minutiae.” But now he feared where Hamilton was taking the doctrine. Madison, Jefferson, and others began full-scale resistance, based on what they claimed was a strict and literal reading of the Constitution.
To many conservatives, it’s axiomatic that there are no unenumerated powers, but many unenumerated restraints.
Hence a banal dichotomy that has long marked the relationship between our day-to-day politics and our founding history. Modern liberals, drawing on Hamilton’s more expansive reading, have traditionally appealed to a living Constitution. They see the necessary-and-proper clause, the reference to the nation’s general welfare, the power to regulate interstate commerce, and the post–Civil War amendments as supporting the big, federal social programs of the twentieth century and protecting rights that were at one time not enforceable by invoking the Constitution, such as the right to early-term abortion and the right to nondiscrimination on the basis of race in buying goods and services. Conservatives have traditionally appealed to the narrower reading that Madison put forth when opposing the bank. They prefer the founders’ Constitution to the later amendments, argue for strictly literal readings of all amendments, cite the Tenth Amendment reserving for the states or the people all powers not granted the federal government, and criticize any federal policy relying on a power or protection not explicitly set out in the document.
The dichotomy rang loudly in conservative Supreme Court judges’ review of the Affordable Care Act. Regarding the act’s provision compelling citizens to purchase health insurance or pay a penalty, Justice Anthony Kennedy asked where the limits to the commerce clause lay. If a law doesn’t possess, within its own mechanisms, a way of limiting its effect to the case it addresses, it might unleash an infinite lawmaking power, the definition of tyranny, destructive of liberties that the Constitution is meant to protect. Less abstractly, Justice Antonin Scalia asked hypothetically whether the federal government might now compel a citizen to buy broccoli.
Conservatives of various kinds have long believed that the Constitution was intended first and foremost to do two interrelated things: limit Congress’s power to regulate society; and promote individual liberty over social equality. Liberals have long had to argue against—have even, Fisher Ames–like, mocked as a disingenuous idiocy—the philosophy that some on both sides call “originalism.”
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Until now. Liberals have become originalists too. Recent books by progressive thinkers as varied as the legal scholar Lawrence Lessig, journalist Roger Hodge, and political commentator Rachel Maddow decry a national failure to live up to the founders’ purposes in creating the Constitution. Maddow means by her title, Drift, an unfortunate movement away from founding-era anti-militarism into the modern military-industrial complex. In Lessig’s Republic, Lost, the loss has come about thanks to a money influence in politics that Lessig says the founders condemned as corrupt. Hodge, in The Mendacity of Hope, frames a criticism of President Obama in terms of the founding political battle over finance between Hamilton and Madison.
All of the liberal originalists’ books run into political and historical trouble over some unedifying realities of our founding period. Similar difficulties plague a new right-wing constitutional history, Tea Party leader Michael P. Leahy’s Covenant of Liberty, which takes the betrayal of founding values as its theme, too. Leahy’s book represents classic originalism, the right-wing kind. It therefore serves as a mirror of the new liberal originalism: American-history fantasies of the left stand sharply in relation to those of the right.
One of Leahy’s strengths is that unlike so many others in the Tea Party movement—and unlike some of the liberal originalists—he doesn’t rope all the founders into one group and set them rolling in their graves over today’s America. Leahy admires particular founders and knows they had enemies in other founders. To him, a disastrous betrayal of the Constitution occurred in its first moments of operation. The betrayal was carried out by Hamilton.
As debated, ratified, and amended, the Constitution was, Leahy says, a “secular covenant.” That term draws on language long pre-dating the document itself. Leahy invokes especially the legacy of John Lilburne, a younger son of minor gentry, an activist against monarchy, and the author in 1647 of Regal Tyranny discovered, as well as of other works. The American political struggle, as Leahy lays it out, has origins in a struggle between English radicals who opposed arbitrary power—Levellers, for example, whom Leahy associates with his own Tea Party movement—and the monarchical forces that tried to crush them.
As a modern conservative, Leahy plays down the social and economic communitarianism in that English dissenting tradition, the thought and action of, say, the Diggers, spiritual communists closely related to the Levellers. And he describes the Levellers themselves in terms less radically egalitarian than some other writers have. Still, he refreshes an old discussion by trying to shift it away from more familiar seventeenth-century English liberty authors and activists—more upscale and better-connected than Lilburne, men such as James Harrington and Algernon Sidney—and focusing it instead on the rougher hewn and lower born. Leahy makes seventeenth-century English radical libertarianism the driving force behind our own constitutional republicanism, which he associates with a ruggedly free-market movement against arbitrary authority. That movement comes to fruition, for him, in the American Revolution and then, more powerfully, in the debating, ratifying, and amending of the Constitution. Leahy thus joins “constitutional conservatives” who see our founders as creating a government meant to stay small and non-intrusive, taking on no debt, spending little, and taxing minimally. In his reading, the Constitution is a world-changing, right-wing libertarian solution in favor of a rising, entrepreneurial, self-bettering middle class.
Leahy’s use of “secular covenant” to describe the Constitution can be elusive. On the one hand, he repeatedly states that government may act only on what he calls the Constitution’s “plain words”: to him, as to many other conservatives, it’s axiomatic that there are no un-enumerated powers. On the other hand, he insists that those plain words exist within “an agreement of conventions.” That term, at one time applied to the unwritten English constitution, refers to values prevailing at the time of authorship. “Terms . . . not specified in the written constitution,” Leahy says, were “accepted by all the Founding Fathers when it came to the important matter of fiscal responsibility.”
No un-enumerated powers, then, but many un-enumerated restraints, especially regarding borrowing, taxing, and spending. Leahy doesn’t define “fiscal responsibility”—he means, not surprisingly, low taxes, low spending, and low debt—and he doesn’t make an explicit argument that the Constitution can be understood only in terms of eighteenth-century ideas, especially those important to fiscal policy; he just says so. He thereby ducks the contradiction that faces all right-wing originalists. For the Constitution’s original words do not, in fact, limit Congress’s power to tax, spend, or borrow, fiscal activities that constitutional conservatives routinely criticize not only as bad policy but also, somehow, as unconstitutional.
The idea, on the left and right, of a Constitution lacking any essential Hamiltonian contribution is not history but wish.
With the covenant notion established mainly through reiteration, not argument, Leahy presents a betrayal of the covenant by Hamilton when forming the national bank. Madison and Jefferson, who opposed federal banking (and every other project of Hamilton’s), are the covenant’s heroic defenders. Careful always to frame his ideas in secular terms, Leahy is nevertheless making the founding drama a religious one, in the oldest sense: an explosive conflict following upon our coming into existence, a fall from grace, and an eternal contest between truth and falsehood ritually reenacted and now poised—via the Tea Party movement—for final resolution in favor of the covenant. The Madison-Jefferson critique of Hamilton becomes not a point of view with strengths and weaknesses but constitutionality itself. In this reading Hamilton’s fiscal ideas can’t have contributed to the impulse to frame or ratify the Constitution and certainly can’t have entered it. The Constitution stays sacrosanct. It’s all Madison, yet it’s always vulnerable.
For many years, Leahy says, the struggle was tense between the good and evil sides of American political life, with victories and setbacks for both. Then, catastrophe. Hamiltonian corruption exploded in “the administrations of Franklin Delano Roosevelt in the 1930s and 1940s and Barack Obama in the twenty-first century.”
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It’s true that, as treasury secretary, Hamilton did everything he could to strengthen federal authority and build the nation on the concentrated wealth of the lending class. When opposition to his plans grew intense, he was eager to ignore constitutional protections of individual rights in the interest of a small group of government-connected insiders, the public bondholders. The view of Hamilton as a betrayer of founding values therefore plays not only among conservatives of the Leahy type but also among certain liberals.
Roger Hodge is one of them. In The Mendacity of Hope, his view of practical aspects of Hamiltonian finance is more nuanced than Leahy’s, but he joins Leahy in denouncing Hamilton for spoiling the best hopes of the founding generation. “Undeniably,” Hodge asserts, “Hamilton had been trying to corrupt the government by cultivating a moneyed class dependent on it.”
Like Leahy, Hodge defines Hamiltonianism—the first treasury secretary’s cultivation of the money class—as a corruption of our constitutional republic. Hodge’s target, too, is Obama, whom he, like Leahy, presents as an avatar of Hamilton. And, like Leahy, Hodge gives us a hero to fight the villain: James Madison.
But Hodge’s and Leahy’s Madison is a flimsy construction, and their idea of a U.S. Constitution lacking any essential Hamiltonian contribution is not history but wish. Both authors refuse to look backward from the pivotal moment in the early 1790s when Madison startled Hamilton by suddenly opposing him. They ignore Madison’s dedicated efforts in the 1780s, as Hamilton’s partner, to pursue a federal authority that would not only vitiate the states’ power but also suppress popular, democratic approaches to public finance. When the War of Independence was winding down, the two young lawyers worked together in the Confederation Congress to impose a tax, to be collected by federal officers, earmarked not for support of troops but for making interest payments to the small, interstate class of rich investors who had bought Congress’s bonds. That tax was planned as a wedge for further taxes, collected throughout the country by a top-down, well-armed government in support of government lenders. Madison especially looked deep within the Articles of Confederation for an overarching power—an implied one—to levy the tax without amending the articles.
His effort failed. Yet in the desire to sustain a large public debt to bondholders, supported by federal taxes, American nationalism flourished. Far from opposing Hamilton’s vision of America as a great economic power knit together by collectors of regressive taxes, in the early 1780s Madison criticized Hamilton only for, as Madison put it, “let out the secret” by expressing that vision so honestly.
The partnership with Hamilton went on. Madison’s fans routinely cite those parts of the famous essay we call “Federalist Ten” where Madison explains how a republican government may balance the deleterious effects of factions without repressing them. Rarely do we see quoted parts of that essay expressing a fear and loathing of popular, democratic finance as deep as anything ever expressed by Hamilton; or parts that call failure to pay investors in the public debt a major flaw of the confederation, curable only by creating a national government with power to enforce its finance policies. Throughout the framing convention, the ratification debates, and the amendment process, Madison’s persistent desire was for the most vigorous kind of national authority, for reasons he shared with Hamilton.
In the Constitutional Convention, Madison’s and Hamilton’s hyper-nationalism did in some ways fail. Sovereignty was divided, against Madison’s wishes at the time, between the national government and the states. Yet all-important fiscal provisions gave immense power, explicitly, to the federal government and took power away, explicitly, from the states. Imagining a U.S. Constitution free of inspiration and provisions that we call Hamiltonian is imagining a constitution other than ours. And a Madison free of Hamilton is not the Madison we call the Constitution’s father.
That dissonance causes trouble for authors who want to read the 1790s Madison, who became Hamilton’s enemy, back into the Madison who authored the Constitution. Leahy, for one, goes to great lengths to exempt Madison from things he condemns in Hamilton. Hamilton relied, for example, on the doctrine of implied powers that Leahy views as a deadly falsehood, so Leahy ignores Madison’s role in developing that doctrine. Hamilton was skeptical, to Leahy heretically, about the Constitution’s perfection; Madison was equally skeptical, and for the same reason—in 1789, he thought the document gave too little power to the federal government—but Leahy doesn’t mention that. Damningly to Leahy, Hamilton believed no amendments were necessary, but Madison believed that too, and he used the amendment process, once he couldn’t get out of it, to further sap state power. Yet Leahy asserts that Madison wanted to help the states by writing the amendments.
The founders feared broad democracy, and they wrote the Constitution in large part to defeat it.
Hodge, for his part, treats Madison with not a drop of the skepticism he pours, with compelling results, over almost every other historical and current political figure he discusses. Even while explicitly rejecting abject founder worship, Hodge creates the impression that Madison operated on a plane so far beyond gross calculation that we may read his statements about government, and virtually his alone, as expressing founding truths uncompromised by politics.
The disconnection from historical reality becomes especially clear in Hodge’s discussion of fiscal matters. Hodge rightly says that conflicts “over credit and banking lie at the heart of our constitutional politics,” and he notes a republican principle that “control of credit amounts to control over the distribution of wealth.” Like Leahy, Hodge is grounding Madisonian republicanism in the Whig liberty tradition (though Hodge cites the usual, more aristocratic authors Harrington, Sidney, etc.). Where Leahy, consistent with Tea Party philosophy, overemphasizes middle-class, free-market entrepreneurial elements in Whig republicanism, Hodge reflects modern liberal philosophy by overemphasizing a preference in early Whig thought for fairly even property distribution. He doesn’t mean perfect equality: Hodge also doesn’t talk about early communitarians such as the Diggers. But he connects the even-distribution idea, with its connotations of democratic fairness, to Madison the constitution-maker.
To do that Hodge must endorse, with many other writers, the familiar notion that the confederation period was an economic disaster screaming for correction by a national constitution. The problem for Hodge’s liberal reading is that to all the constitution-makers the economic disaster in the confederation had mainly to do with working-class democracy’s effect on public and private finance. “Even distribution” is a relative term, and Hodge knows that the famous opponents of the central bank, for example, were not “dirt farmers,” as he says, but elitist decentralizers. He gets slippery trying to make them seem, in our terms, democratic anyway. “To republicans like Jefferson and Madison,” Hodge says, “Hamilton’s contempt for democratic principles was heretical to the spirit of the new union—even if Madison was far from being an advocate of simple or direct democracy.”
The nervous “even if . . .” mode, characteristic of efforts to make certain founders seem proto-democrats, glosses over some possibly distressing facts. Disagreements in the founding generation had less to do with direct or representative government—the famous founders overwhelmingly wanted the latter—than with who got to participate. Working-class agitators at the time—those dirt farmers, along with lower artisans, tenants, and landless laborers—were demanding an end to sufficient property-ownership as a qualification for voting and holding office. In Pennsylvania in 1776, the militia privates took over the state and abolished such qualifications. They bore out ancient republican horrors of a too-broad franchise by passing laws devaluing the public and private investments of the lending class in favor of ordinary people’s economic aspirations. That gave elite nationalists and state-sovereigntists alike a scare.
The kind of democracy the lower class wanted wasn’t just a few degrees more democratic than what Madison and the rest of the Whig elite preferred. That’s how we’d like to imagine it, but working-class politics in the founding era represented a radical break with all of Whig thinking about rights, which had always been linked to security in property. Madison, like others, believed only a new tyranny could result from laws devaluing debt and otherwise equalizing economic life—the kinds of laws demanded and even sometimes passed by popular-finance radicals after the Revolution. It’s not too much to say that democratic-finance agitation, both within and against the state legislatures, inspired Madison and the others to call a constitutional convention, and that the document they wrote, ratified, and amended was designed, explicitly so in the fiscal provisions, to stop that agitation and to repair its democratic effects on American government.
It’s not surprising that Hodge has little to say about any of that. Like many of us, he wants to endorse modern liberal ideas about broadly democratic participation in government by linking that kind of democracy to our Whig-inspired founders. The problem with that idea is that our Whig-inspired founders feared that kind of democracy as much as they feared monarchy, and, more significantly, they wrote the U.S. Constitution in large part to defeat it.
Liberal writers overlook the fact that, no less than today, militarism and high finance worked together in the founding era.
Hodge and Leahy must therefore read the entire Federal period as a Hamiltonian betrayal of principles supposedly inherent in the Constitution—just as Madison and Jefferson hoped we would read it. In a 1792 passage that Hodge quotes admiringly, Madison bemoans a permanent military, corruption, cronyism, inside deals, and other things that his readers would have recognized as Hamiltonian, and which Hodge cannily predicts we too will read with a shudder of recognition. Madison goes on to express a wish that the nation’s happiness instead “be perpetuated by a system of administration corresponding with the purity of the theory.” That’s a tautological, partisan definition of Madison’s own theory as pure. It affects how Hodge looks at Madison’s presidency. Hodge notes, with asperity, that somebody is always bringing up the fact that in 1816 President Madison ended up adopting Hamilton’s banking program. Nevertheless, Hodge argues back, Madison “never compromised his opposition to Hamilton’s paper men or adopted his rival’s view of executive power.”
Madison adopted, that is, only the program. For modern writers seeking founding heroes, his theory remains pure.
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Lawrence Lessig in Republic, Lost and Rachel Maddow in Drift make more usable liberal claims on the American founding. Lessig’s subject is the disastrous effect of money on our representative politics; Maddow’s is the disastrous price of placing responsibility for national security in institutions beyond popular control. Both make inspiring arguments. Beginning with President Johnson’s escalation of war in Vietnam, Maddow traces a process of disengaging American warfare from the experience of American citizens. By laying out how that process occurred—her evisceration of the Reagan administration makes particularly grim reading, yet it’s also somehow fun—she argues effectively not only that the military buildup in recent generations has been counterproductive to the national interest, but also, since it came about not by conspiracy but by political actions and inactions, that it can be repaired by democratic effort.
Lessig too presents a dire problem and offers exciting ways of solving it. He reviews to nearly overwhelming effect a series of specific challenges—unsuccessful schools, unstable economics, inefficient and un-free markets—and shows how they result directly from the dependence of Congress on money, not merely prejudicing legislators’ positions but driving the entire legislative agenda, with increasingly awful results. Departing from the left and liberal slogan “corporations aren’t people,” Lessig parses the famous Citizens United decision in a uniquely illuminating way. He rules out as ineffectual various superficially appealing ideas about campaign-finance reform. And making a genuinely bipartisan pitch—nonpartisan, really—he sets out in detail a series of practical strategies for correcting the money problem. It’s hard to read his book and not conclude that this is the greatest difficulty we face.
Both Lessig and Maddow ground not only their arguments but also their proposals for change in what they see as the founders’ vision for our country, embedded in the Constitution, with Madison once again the go-to founder. Maddow wants to revive ideas about war that go back to the English liberty movement that Leahy and Hodge also write about. Madison expresses those ideas in the long epigraph to Maddow’s book (Hodge quotes the same passage): “Of all the enemies to public liberty, war is, perhaps, the most to be dreaded.”
Lessig, too, quotes Madison. Our current system, Lessig shows, makes legislators dependent on campaign funding. He reminds us that the representative legislature the founders prized and hoped to create—inspired, again, by that radical Whig republicanism—requires Congress to answer to the electorate and to nothing else. He wants to revive the original plan, making Congress dependent not on money but on what Madison, in “Federalist 52,” called “the people alone.”
Maddow’s and Lessig’s founding histories, read in concert, encapsulate a denial of history at the heart of all liberal originalism. Both authors overlook what may be the most distressing feature of our founding history: an ineluctable connection in founding-era nationalism between an interstate money interest and a rising federal military establishment. The United States was formed in the effort to support the holders of federal war bonds; to find in the emergency of war, as the young Madison tried to do, implied federal powers to tax the country for the bondholders’ benefit; to meld the interstate officer class with the high-finance class by commuting officer salary into bonds; and to find ways of policing, with federal military might, the Shaysites and many other working-class insurgents and protesters who objected to regressive finance policies, widespread foreclosure, and debt peonage, and who demanded democratic access to the franchise. No less than today, militarism and high finance worked together. In the late eighteenth century they worked together to make our nation.
Certainly the founders wanted, as Lessig says, a representative legislature dependent only on what they called “the people.” But that legislature would be drawn from the best-propertied class: “the people” by and large meant a well-propertied electorate. The money influence—call it a property influence—was in that sense hardwired into the founders’ ideas of republicanism, which Lessig wrongly equates with what we call democracy today. While the eighteenth-century property dependency differed markedly from the modern dependency on campaign finance, it overwhelmingly influenced the framing of the Constitution and the early legislative agenda.
Nowhere does the Constitution require that we dress up new ideas to comport with what the founders supposedly would want.
The founders weren’t just crassly lining their pockets, as some historians have suggested. Some probably were, some certainly weren’t, and that issue only distracts us from the starker fact that in forming a nation, and then in passing Hamilton’s plan of national finance (Madison voted for it too), the founders’ allegiance to the property interest, a natural allegiance for them, was made painfully clear to ordinary people whose economic aspirations were crushed by federal policies. Former foot soldiers of the Revolution, sent home not just without bonds but mostly unpaid, had good reason to see the new system as a corrupt machine for enriching financiers, industrialists, and landlords—including the elite military class—at the direct expense of ordinary families’ mobility and independence.
Maddow is right to say that many of the founders, Madison perhaps most articulately, expressed fear of war’s effect on liberty and loathing at the idea of a permanent military establishment, what they called “a standing army.” But by glorifying a founding citizen soldiery and some founders’ philosophical revulsion at military adventurism, Maddow ignores the war that the new nation fought as soon as it was formed: the war against a Great Lakes Indian confederation to conquer what was then the Northwest. During that war, our first as a nation, the militia system was replaced as a national force by a professional, regular army, under the direct control of the federal government. The unabashed goal was vigorous national expansion. Maddow’s idea that the anti-militarist philosophy that Jefferson expressed to Congress in 1806 “held sway in this country for a century and a half” is appealing but wrong. During the Indian war, in response to events known as the Whiskey Rebellion, the government also sent 12,000 troops—more than the number of Americans who fought at the Battle of Yorktown—over the Alleghenies to suppress the entire populace of western Pennsylvania with door-kicking mass arrests, detentions without charge, and forced loyalty oaths. That effort was in support of a regressive tax, the first one ever laid on an American product, earmarked for paying the federal bondholders their interest—just what both Hamilton and Madison had worked for during the confederation period.
So it’s not surprising that our early national involvement with militarism, and with militarism’s tendency to connect political power to concentrated wealth, usually gets laid at the feet solely of Washington, Hamilton (“the betrayer”), Fisher Ames, and other administration supporters in Congress. It’s true that during the 1790s, in the first struggle to establish nationhood, the high Federalists were especially attracted to national military power. But in the case of the war whose bicentennial we aren’t exactly celebrating this year, the War of 1812, it was President Madison, with former President Jefferson’s firm support, who undertook what many historians see as a war of choice, fairly useless to real national interest. In our first declared war—the Northwest conquest, our first actual war, was like our recent ones in being undeclared—the founding stalwarts of republican leanness, protectors of liberty against war’s depredations, harshest critics of their predecessors’ warmongering, became eager for a fight.
And Madison’s war was expensive. It was the need to pay for it that inspired him to embrace in 1816 the federal banking plan that Hamilton (dead for eleven years by then) had introduced back in 1791 over Madison’s history-making objections. Executives’ desire for war and legislators’ dependence on money—interrelated phenomena essential to founding nationhood—dominated the early American government. Yet new originalists keep trying to locate modern liberal values in the values of the founders.
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Just because Lessig and Maddow leave out key elements of founding history that contradict their appeals to founding values, must we reject their analyses and proposals? Is Obama absolved from Hodge’s acerbic critique just because Hodge bases that critique on an unrealistic view of Madison? Can we successfully argue our politics only from impeccable readings of constitutional and founding history?
Of course we must sometimes argue on the basis of constitutional law. Lessig, a constitutional scholar, naturally wants to inform his argument with profound principle; doing so helps make his book a fresh and important one. The other liberal originalists probably have the same idea.
Policies need to be arguably not unconstitutional—and that will always generate contentious legal interpretation—but nowhere does the Constitution say they must be hyperconstitutional; nowhere does it tell us to consider Leahy’s “agreement of conventions” regarding particular values supposedly prevailing when it was written; nowhere does it suggest we must dress up new ideas to comport with what the founders supposedly would want us to do.
Such appeals are always, at least to some extent, wrong. Serious arguments about them can’t be won or lost. Framing ideas that way—relying not on what the Constitution permits us to do, if we want to, but on what its deepest history supposedly requires us to do, whether we want to or not—swings rightward at least as easily as left.
For liberalism the tactic may be doomed both politically and intellectually. The history required to support it involves gross distortions and bad faith, defeating the very purpose of liberal thought.
It would help, of course, if the right wing stopped draping its every objection to liberal policy in what often seems a deliberately uninformed regard for a fake constitutionality, stopped wielding like a blunt instrument that latter day–antifederalist reading of the Constitution, which Fisher Ames was deriding as early as the first Congress. But neither side today is really making a historical argument. Each is seeking bedrock in which to anchor an opinion about modern government, and there is no bedrock. As the strange, maybe even incommensurable career of James Madison suggests, the ground keeps shifting. That’s what they left us.