This has advantages and disadvantages. The biggest advantages are our openness and the fact that we tend to argue on the basis of high principles. The biggest disadvantage is that differences over policy are often disguised as differences over whether a preferred choice is constitutional or not. When we should be addressing pragmatic questions — Will this approach work? Will it solve the problem it’s designed to solve? Is this a problem government should do something about? — we instead fall back on rather abstract discussions of whether a given idea violates the Constitution.
It’s not a recent habit. When Treasury Secretary Alexander Hamilton proposed that the federal government establish a Bank of the United States in 1790, his idea was strongly opposed by James Madison, his partner in writing both the Constitution and the Federalist Papers that defended it.
Madison wasn’t just against the bank. Setting a pattern for the future, he insisted that its creation would be unconstitutional. Those who claim we can be so certain of the “original” intentions of the Founders should take note: If two of the authors of the Constitution came to such a stark point of disagreement so quickly, what exactly does “originalism” mean?
Moreover, it is dangerous to turn the Founders into quasi-religious prophets who produced a text more like the Bible or the Talmud. It’s neither. It is a governing document that was the product of compromises and arguments. “Historians today can recognize the extraordinary character of the Founding Fathers,” wrote Gordon Wood, one of the premier contemporary scholars of the founding era, while acknowledging that they had “no special divine insight into politics” and that they were “as enmeshed in historical circumstances as we are.”
We do a disservice to ourselves and the Founders alike if we take them out of history and demand that they settle arguments that we ought to settle on our own.
The Founders, after all, were not timid men bound by the past. They did something bold and adventurous. In creating a novel form of government, they were thinking and acting anew.
Recently, University of Texas law professor Sanford Levinson pointed me to Madison’s lovely words in Federalist No. 14. “Is it not the glory of the people of America,” Madison asked, “that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience?”
The Founders would no doubt be gratified that we still care so passionately about their work. But they might be quite surprised to learn how 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. 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.
The genius of the Founders is that they created a government designed to act, and so I’d propose a new patriotic ritual involving an annual reading of the preamble to our Constitution:
“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
Yes, the first word of the Constitution is “we,” and its purposes include establishing justice and promoting the general welfare. Before we expend enormous energy deciding how many angels can dance on the head of the commerce clause, we would usefully keep in mind the broader objectives of our great experiment.