Bench Memos

Struggling (Again) Over the Framers

Ron Chernow, author of a successful biography of Alexander Hamilton, had an op-ed in this morning’s New York Times expressing concern that members of the Tea Party have called on the legacy of the Constitution’s framers in making their arguments about the out-of-control statism of modern liberal government.  Arguing that the Tea Party should not “presume to claim special ownership of the founding fathers or the Constitution,” Chernow presumes to set matters straight.  But like historian Joseph Ellis in a Washington Post op-ed attacking originalism back in May (which both Ed Whelan and I criticized at the time), Chernow offers evidence that explodes his own argument.

Chenow charges Tea Party figures with having a rosy view of the framers as all sweetly agreeing about the meaning of the Constitution they made.  There may be some small measure of truth to this charge.  But it doesn’t have much traction when we notice the context of contemporary politics, in which the forces of progressivism and liberalism have spent decades explicitly disdaining the framers of the Constitution and crafting policies that all them would surely have rejected.

Thus Chernow trots out the argument that was stale when Ellis used it four months ago against originalism–that the framers were a “disputatious” lot who quarreled constantly over the meaning of the Constitution they had joined together to make.  So indeed they were.  But just as this is no refutation of originalism, in which all the framers believed, it is no refutation of Tea Party tributes to the founding of the republic.  For we can confidently say–and this is surely all any Tea Party leader has ever claimed–that none of the framers was a statist; that none of them thought the powers of the federal government infinitely extensible over every species of human activity; that none of them thought the liberties of individual Americans were properly subject to the arbitrary power of a distant central authority.  Can we say all of these things about the Obama-Reid-Pelosi Democrats?

Chernow is clearly a little amused that one Tea Party document demands that “all legislation passed by Congress should specify the precise clause in the Constitution giving Congress the power to pass such a law.”  But a few paragraphs later, he adduces the example of Alexander Hamilton making his argument for the creation of a national bank by invoking the clauses of the Constitution that supported such legislation.  Will someone please issue Mr. Hamilton his Tea Party membership card now?  The fact that Madison and Jefferson saw things differently is nothing to the purpose of Chernow’s argument here.  They all agreed that the Constitution created a limited government, and disagreed about where the limits were.  How exactly does it undermine the reliance of the Tea Party on the legacy of the framers to observe that they had these disagreements?  Our case is rather different today, with a party in power that appears not to believe there are any limits to the power of government–and the federal government in particular–over individuals, families, businesses, and private associations. 

In our present circumstances, it is faintly ridiculous for Chernow to write the following paragraph:

Jefferson and his Republicans (not related to today’s Republicans) advocated states’ rights, a weak federal government and strict construction of the Constitution. The Tea Party can claim legitimate descent from Jefferson and Madison, even though they founded what became the Democratic Party. On the other hand, Washington and Hamilton — founders of no mean stature — embraced an expansive view of the Constitution. That would scarcely sit well with Tea Party advocates, many of whom adhere to the judicial doctrine of originalism — i.e., that any interpretation of the Constitution must abide by the intent of those founders who crafted it.

Not only does Chernow insinuate–what is quite false–that Washington and Hamilton did not adhere to originalism.  He manages also to suggest that today’s liberals can lay equal claim, with conservatives, to the legacy of the founding, because Washington and Hamilton took an “expansive view of the Constitution.”  As though the advocates of energetic government, ca. 1790, are to be equated with the architects of the modern welfare-regulatory-administrative state!  This is as if one were to say that, oh, John Locke and Norman Thomas, for instance, were basically on the same page because they believed in a thing called “equality.”


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