What Would the Founders Think?

In the latest issue of National Affairs, Michael Gerson and Pete Wehner have offered a long and fascinating essay on the relationship between America’s founding ideals and the influence of the contemporary federal government. In particular, the duo have proposed some criticisms of “libertarians” and “tea party leaders,” who, they contend, are clinging to the hope that, once ascendant, they will return the United States “to the governing philosophy of the American founders as it is embodied in the Constitution.” Repristination of the American legal order, the pair accepts, is a “worthwhile” endeavor per se, but it “does not point quite where these leaders and activists often suggest.”

This evaluation is one that we are more accustomed to hearing from the left, charging as it does that the ostensible champions of limited government are in fact opponents of government of any size and scope, and that they are hijacking what was a practical, protean, and vogueish compromise in the name of their own restrictive vision. Gerson and Wehner argue that:

The federalist founders were indeed wary of the concentration of power in the federal government. At the same time, however, they did not — unlike some anti-federalist opponents of the Constitution — view government as an evil, or even as a necessary evil. Indeed, the most influential of the founders scorned such a view, referring to the “imbecility” of a weak central government (in the form of the Articles of Confederation) compared to a relatively strong central government (which is what the Constitution created) . . . A “good government,” [Madison] added in Federalist No. 62, “implies two things: first, fidelity to the object of government, which is the happiness of the people; secondly, a knowledge of the means by which that object can be best attained.” Madison’s system was intended to employ such means to achieve that end. The Constitution did not simply create limits on government, as some of today’s conservative rhetoric seems to imply; it created a strong if bounded central government. It is important to speak up when those boundaries are breached, but it is important, too, to remember the aims of that government.

Before we can argue about the “aims of that government” and how it relates to our contemporary debates, it should be established for the sake of happy clarity that the “libertarians” and “tea party” types at whom the criticisms are being leveled tend to have no trouble at all with either a “relatively strong central government” or a state that is “strong if bounded” — providing, that is, that appended to both is a vital qualifier: “. . . in the few areas in which the federal government was allowed to act.” Without acknowledging that most conservatives are happy for the state to work with vigor inside the bounds of its charter, one could be left with a false impression here: that today’s Right consists of what could be termed “neo-anti-federalists” — reactionaries and wreckers who believe that even the original constitutional settlement went too far. It does not. Conservatives merely want the state to perform the role that was created for it. The material debate here is what that role is.

The Washington Examiner’s Phillip Klein argued earlier in the month that the pair’s underlying argument is “very difficult to distinguish philosophically from liberalism.” I certainly understand where he is coming from. At times, the piece reads like an open-ended denunciation of the Constitution’s inapplicability to the modern world. Nevertheless, I think the bigger problem here is that, having chastised the Tea Party for misappropriating the nation’s founding documents, the authors go on to do the same thing themselves — not so much rejecting the claim that the Constitution intrinsically supports only one political ideology as requisitioning it for their own ends; indulging an expansionist reading of History when it allows them to reject the latent libertarianism of the present moment, while conceding the document’s inherent limitations in an attempt to avoid anyone noticing.

In trying to determine what the Founders “wanted,” I’d venture that the first question must, inevitably, be this: If the architects of the American settlement were copacetic with a moderately activist government, then why did they explicitly refuse to devise a government that was possessed of moderately activist powers? The pair write that:

Madison acknowledged the positive need for a national government. So did Alexander Hamilton, Gouverneur Morris, James Wilson, George Washington, and the other strong constitutionalists.

Indeed they did. As the authors establish, Hamilton wanted a federal government that dealt with a “vast variety of particulars, which are susceptible neither of specification nor of definition,” and he was joined in this by Morris, Wilson, and — sometimes — Washington and Madison. But that’s by no means the whole story. For a start, “acknowledging the need for a national government” is not remotely the same thing as endorsing the necessity of a particular form of national government, nor is it to accept the legitimacy of that government when it transcends its delineated bounds. (Indeed, the authors’ admission at the end of the section on Lincoln’s positive views of government that he did “not necessarily [mean] the federal government” renders much of what is previous moot.) Second, and much more important I think, is that the Hamiltonian interpretation was vigorously opposed by around half of the country, setting off a brutal generational fight between those who wanted what Wehner and Gerson want today and those who explicitly did not want that.

The Constitution, remember, was a collaborative effort, and while it was written in secret by a cabal of providential philosopher kings, it was ratified very much in public. If one is to divine the intentions of its authors, it simply has to be acknowledged that a significant number of those who attended the convention argued violently that the government was prohibited to do anything that wasn’t explicitly laid out in the blueprints. Though they lost on the significant question of whether to replace the Articles of Confederation at all, the anti-federalists left a consequential impression on the document they opposed: Its contents were as much the product of the dissenters as of the enthusiasts, and its structure was informed greatly by the skeptics, who ensured that their grievances were comprehended.

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.

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.