Bench Memos

E. J. Dionne and our Founding Fathers’ True Spirit

In E. J. Dionne’s recent piece in the Washington Post, “The Founders’ true spirit,” he laments that “much of our health-care debate focused on a careful parsing of what the Constitution’s clauses on regulating commerce and levying taxes allowed us to do to solve a problem that would have been unknown to them.”  Dionne quotes James Madison in Federalist 14 regarding the proposition that every generation must not allow formalities to “overrule the suggestion of their own good sense.”

In other words, the way of the Constitution and the rule of law are too rigid, too discouraging to progressive reformers who can’t afford to implement today’s solutions tomorrow. So we should all stop letting the law distract us from urgent goals: “We would be truer to the Founders’ intentions and spirit if we followed Madison in having more confidence in our own good sense and our knowledge of our own situation.”

But Dionne is selectively quoting Madison. The next sentence in Federalist 14 explains that “posterity will be indebted for the possession, and the world for the example, of the numerous innovations displayed on the American theatre, in favor of private rights and public happiness.” The innovations he describes in that pamphlet include our novel system of dual sovereignty and limited government. In other words, in this quotation, Madison is actually praising limited government, the very limits that Dionne chafes against. Madison would not praise undermining the very means of maintaining limited government: our Constitution and the rule of law.

Beyond that, Dionne’s argument collapses on itself. If he is right about Madison and the Founders, wouldn’t that mean immediate repeal of Obamacare’s individual mandate, since it has been consistently opposed by a solid majority of Americans? Or is it that Dionne is referencing the “good sense” of some other set of Americans? Perhaps the good sense of the president and the chief justice? If that is the case, perhaps Dionne could provide us with some guidance on which Madison quotations they should rely on and which ones they are free to ignore.


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