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What Would the Founders Think?
Today’s expansive notion of government is alien to the ideas behind the Constitution.

Washington as Statesman at the Constitutional Convention (Junius Brutus Stearns)

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As legislation also bears the mark of those who either voted “No” or extracted concessions in exchange for their acquiescence, the Constitution bears the indelible mark of its critics. And, as the Beatles wouldn’t be the Beatles without Lennon’s acerbic cynicism offsetting McCartney’s silly-love-song lyricism, nor would the Founders be the Founders without Patrick Henry, Sam Adams, George Mason, and all of the proto–tea partiers whom Wehner and Gerson accuse of harboring “fierce anti-government fervor.”

Why is this important? Well, because in constructing their case, Wehner and Gerson do not refer to the text but to the extraneous views of the “most influential of the founders” — the membership of which exclusive group appears primarily to rely upon the degree to which candidates fit the case. Having established which contributors are to be taken seriously and, by extension, which are not, the authors then attempt to graft the views of their chosen few onto a document that bore many other names besides. This is a problem, underplaying the essential importance of the Constitution’s being a hard-won compromise and mistaking intentions for outcomes. The founders, they write:

would have little toleration for politicians who are committed to abstract theories even when they are at odds with the given world and the welfare of the polity — who fail to differentiate between conserving the system by adapting it to changing circumstances and undermining the system by breaking with its fundamental aims and outlook.

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Of course the Constitution was intended to aid the general welfare; nobody in their right mind maintains that its drafters had the injury of the polity as their aim. And yet it is not a work of philosophy, but a matter of ultimate law — the provisions of which were fought over line by line, jealously guarded, and established as the condition of ratification. It is binding. It sits above all else. It is cited and it is wielded — used by the tired and the poor to strike down and to uphold the regimes that are inferior to it. It is the framework to which all politicians promise fealty.

Which is to say that it means something, and it matters what it means. Even if we were to take at face value Wegner and Gerson’s definition of “important founders,” prudence dictates that we should pay more attention to the document itself than to what those founders said or did not say while they were debating it. Indeed, it is perplexing that Wehner and Gerson would write that

many of the functions of the modern-day federal government, including Social Security and other social-service programs, were not envisioned by the framers, nor did the enumerated powers of the Congress specifically comprehend such programs. But neither do these federal roles violate a principle of our system or run counter to the prescient mindset of the founders.

I hope I am not being unfair when I say that I detect a whiff of living constitutionalism in this passage — a tendency to subordinate “enumerated powers” to the subjectively imagined “principle of our system” or “prescient mindset of the founders.” The ultimate value of the rule of law is not that it entrenches the positions of men who are long dead but that it establishes the regulations by which governments may operate, outlines the political scheme for all to see, and short-circuits the temporary government’s capacity for caprice. If the authors believe that “the enumerated powers of the Congress” did not “specifically comprehend such programs” as Social Security — which, remember, is not justified by an amendment but by judicial reinterpretation — then they should be up in arms about it. I fail to see how one can acknowledge in one breath that a governing document that is the collective work of a generation of thinkers is being violated, and in the next say that that is what they would have wanted.

In truth, what dramatically changed the Constitution — and led in consequence to today’s vast, unwieldy state — was not the natural evolution of the founders’ work and intentions, nor the practical politics and expansion of legal promises outlined and recommended by Abraham Lincoln, but that it was changed — warped and reprogrammed in the twentieth century via a series of formal and informal strictures, most of which were compassed by figures who expressed open hostility to the document’s architects and to the range of philosophies they represented.

Unlike the states, which possess plenary powers, the federal government is able to do only what the Constitution permits it to do — and, until around 1913, the Constitution prohibited the federal government from doing almost everything. The Progressive Era ended this. It took the Sixteenth Amendment to grant Washington, D.C., the funds and the power to shape individual behavior through the tax code (hello, Obamacare!); it took the Seventeenth Amendment to strip the state legislatures of their direct say in the makeup of the Senate, thus breaking the link between the states and the federal government and creating two branches that were effectively disconnected; and it took the Supreme Court’s disastrous 1942 Wickard v. Filburn decision to allow the federal government to regulate almost anything on the preposterous grounds that, in some small way, everything affects interstate commerce.

Our current Constitution is, I am afraid, almost unrecognizable from the one on which the Founders settled in 1791. As a matter of political reality, Gerson and Wehner are of course free to argue that conservatives should adopt a “governing vision” that requires a strong and active central state. They are free to cite as inspirations for this arrangement the Founders whose visions lined up more closely with their own. They are free, too, to argue that the Constitution-as-written is incompatible with this task, that the Progressive amendments that so fundamentally changed its role are a positive thing, and even to suggest that it needs amending further to accommodate their conception of the “general welfare.” But to try to accord to their particular project the imprimatur of the revolutionary generation’s inspired, onerous, and deliberate accommodation? That, I’m afraid, is a step too far.

— Charles C. W. Cooke is a staff writer at National Review.



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