Each Fourth of July, progressives treat us to a number of bad takes about the celebration of our country’s founding. Many of them are in line with the 1619 Project — the critical race theory-esque critique that slavery made an indelible mark on America’s constitutional system. With that in mind I wrote a piece about how the American Revolution led to several abolitionist victories in its immediate aftermath and a post where I argued that the best way to argue for a cause is to appeal to America’s Founding, as so many great warriors for freedom did.
However, this year’s attacks on the Fourth had a dimension that perhaps I should have foreseen. With the best Supreme Court term of my young life coming to a close, leftists were upset that they were not getting their way judicially, which made it hard for them to have a fun Independence Day.
We saw this play out the best in an update for the City of Orlando’s fireworks display, for which the city later apologized:
A lot of people probably don’t want to celebrate our nation right now, and we can’t blame them. When there is so much division, hate and unrest, why on earth would you want to have a party celebrating any of it?
But in all seriousness, you know in your heart, Fourth of July fireworks are amazing, especially when you are standing in 90° heat, 100% humidity, next to 100,000 of your closest friends. In that moment, something takes over and we all become united in an inexplicable bond. Yes, America is in strife right now, but you know what…we already bought the fireworks.
When immigrants fleeing tyranny saw the Statue of Liberty in New York Harbor, Jews being held in concentration camps saw G.I.s come to liberate them, or Eastern Europeans living under communism saw Ronald Reagan say, “Tear down this wall,” something tells me that they did not think, “Wow, that country must have some awesome fireworks.” Never mind the principles of freedom and equality that inspired those people toward such great deeds. It must have been the pretty lights.
Other critiques in this vein were a little more sophisticated, such as one in a Washington Post column arguing that we should “declare our independence from the Founding Fathers.” The Supreme Court’s collection of solid decisions weighed heavily on the piece. Because the cases were decided very much on originalist grounds that drew on American history — Alito’s finding no precedent for a constitutional right to abortion in Dobbs or Thomas’s arguing that gun regulations need strong precedent in Bruen — the progressive cause could use the Founding as a hobgoblin even more.
“The America of 1789 becomes a prison the conservative justices can lock us all in whenever it suits them,” writes the piece’s author, Paul Waldman. I am always puzzled by this criticism of the opinions of conservative justices. It essentially amounts to: the Supreme Court, which has a duty to interpret the Constitution, should not interpret the Constitution.
Waldman goes on to write:
I am no spirit medium, able to communicate with the framers through the mists of time, and neither is anyone on the Supreme Court. But I suspect they themselves would find the originalist project as practiced on the right to be utterly absurd. Imagine you could travel back and describe to them the idea that hundreds of years hence we’d all be bound to their utterances and the condition of their society. They’d probably say, “That sounds insane.”
This is the most incredible part of the piece because Waldman admits he cannot know for sure what the Founding Fathers would have wanted, but then goes to make a pronouncement on what they would have wanted while offering no evidence for that claim. Instead, he says that conservatives believe that “the Founders were essentially perfect, and only we conservatives are capable of interpreting their will.”
I understand the hyperbole, but Waldman would be hard-pressed to find any conservative who believes that the Founders were perfect. In fact, most on the right will praise them for their cognizance of their imperfection, best demonstrated by their inclusion of the amendment process in the Constitution. If there is something the Founders got wrong, e.g. their failure to outlaw slavery from the outset, we can amend the document through the legislature, as we have done 27 times. That is the essence of conservative judicial philosophy. Courts must apply the Constitution whether they like the outcome or not; if the document needs change, the legislature can pass a law or an amendment to that end. The separation of powers is one way our system is so ingenious. For that reason and for many others, America and its creators are worth celebrating.