What Would the Founders Say? A Fourth of July Reflection

The Fourth of July is upon us—our most patriotic holiday.  If we are serious and thoughtful about our patriotism, we will use the occasion for more than eating hamburgers, drinking beer, and setting off fireworks.  There is nothing wrong with doing any of those things, of course.  They are proper in the context of the celebration of our nation’s founding.  But if the founding is worth celebrating, then we need to go further and ask ourselves whether we are keeping faith with the founding.  Are we preserving and improving what the founders gave us, or are we letting it slip away?

In other words, we should ask ourselves: what would the founders say?  What would they say about us?  If we were to measure ourselves against the founders—those giants that Abraham Lincoln called “the iron men of the Revolution”—how would we measure up?  My contention is that the founders would say that we are being negligent in defending our liberty, that we have been lacking spiritedness in protecting our rights.  Not to put too fine a point on it, I think the founders would say that we are wimps.

If I am correct about this, then it follows that the founders would say that we are also lacking as parents and grandparents.  After all, they made clear in the Preamble to the Constitution that their aim was to “secure the Blessings of Liberty to” themselves and to their “posterity,” to those who would come after.  If we are careless in preserving our rights, then we are leaving our children and grandchildren a country less free (maybe significantly less free) than the one we inherited.  That’s a heavy judgment to bear.

Declaration_independence

But am I correct about this?  Do we really deserve to be chastised in this manner?  If I may borrow the words of the Declaration of Independence, “let fact be submitted to a candid world.”

The American founders began a serious, determined political movement because of abuses like the Stamp Act and the tea tax.  But what is the Stamp Act to the HHS mandates, which require employers to provide benefits to their employees contrary to the employer’s conscience—something unheard of in America up to the present?  What is the tea tax to Roe v. Wade, which is an attack on the right to life, or to U.S. v. Windsor, in which the Supreme Court just last week gave itself the authority to begin tampering with the foundations of our society?

The founding generation resisted those taxes because they regarded them as abuses of government power, even though the taxes themselves were used for no improper purposes.  They were intended to raise revenue to pay for defending the colonies.  But we are confronted with acts that are not only abuses of government power, but that are done in the service of ends that are improper and even unjust.

Someone might say that my comparisons are wholly mistaken, because the founders were resisting things done by a government over which they had no lawful control, while that is not the case with us.  After all, the core complaint of the founders was not that taxes were imposed, but that they were imposed without our consent, and such a step was contrary to the settled course of British law and constitutionalism.

If we think through this objection, however, we will see that my comparison is apt, because the things being done in our day are being done without proper consent and contrary to the traditional course of American law and constitutionalism.

Let’s start with the HHS mandates.  Defenders of them would say that they were issued pursuant to the Affordable Care Act, which was passed and signed into law by the people’s representatives.  Fair enough.  But we might respond that it was so passed and signed at a time when it was clear that public opinion was against the act and had been for a long time.  We might therefore ask whether the passage of the Act was in spirit an abuse of representative self-government.  We might ask whether it is really proper for the people’s representatives to force on them something they clearly don’t want, especially when it is something that touches so closely a matter that is of deep importance to everyone—health care.

Gilbert_Stuart_Williamstown_Portrait_of_George_Washington

But never mind all that.  The fact is, the HHS mandates were not part of the law as written, but were announced as regulations made under its authority after it had been enacted.  I don’t think that I am going out on a limb in saying that if the mandates had been in the language of the Act itself, it would never have been able to pass.  If the Congress had been forced to debate a law that in its very words forced Catholic institutions to provide “health” coverage including contraception, abortion, and sterilization, the outcry would have been tremendous and support for the law would have eroded.  Had the suggestion been made while the law was being debated, the only way to pass it would have been to withdraw the idea.  Again, defenders of the mandates might say that they received the people’s endorsement, because President Obama, who is responsible for them, won re-election.  Nevertheless, springing something on the people in this sneaking manner, presenting them with a fait accompli, then using all the powers of incumbency to win re-election is not exactly my idea of the purest version of representative self-government.

But if the HHS mandates are arguable as abuses of self-government, the cases of Roe and the right to life and Windsor and the definition of marriage are clear.  Here we have an imperial Supreme Court imposing policies on the nation that could never have been enacted through the political process.  In Roe the unelected justices of the Supreme Court swept away the abortion laws of the fifty states.  The same thing happened last week in Windsor.  The Defense of Marriage Act was passed with overwhelming support from the people’s representatives in Congress as recently as 1996, but it was vetoed by five members of the Supreme Court.  The abortion laws of the states and the Defense of Marriage Act were products of self-government on the representative model.  The Court’s rulings in each case told the people they had no right to rule themselves in these matters.  The people did not consent to these things.  They were not even asked.  Again, somebody might say that the American public has given consent by acquiescing in the decisions after the fact.  But again, that is not the kind of self-government we were given by the founders.

Defenders of those decisions will say that it is the Court’s job to enforce the Constitution, regardless of what majorities of the moment may happen to want.  In other words, they will say that America does not stand for and has never stood for untrammeled democracy, that we have a Constitution precisely in order to limit what majorities may do.  This is true.  But the point of the Constitution was to limit the power of majorities in light of widely understood and accepted restrictions on the government’s power.  The point was to say to the people: you have a right to govern yourselves, but there are some powers that are improper or too dangerous, and those will be off limits.  Roe v. Wade and U.S. v. Windsor have nothing to do with this traditional understanding.  They do not enforce the agreed upon terms of the Constitution, they invent a fictional constitution so that judges can negate the people’s efforts at self-government when the judges disagree with the people.  Roe announces a right to abortion, but the Constitution is silent on the question of abortion and so places no limits on the people’s right to rule themselves on this matter.  Windsor says the federal government has no authority to define marriage, but the Constitution places no restrictions on the federal government’s authority to do so for its own purposes.  In other words, to return to my earlier point, Roe and Windsor are just as much departures from the American Constitution as it had been traditionally understood as the Stamp Act and tea tax were departures from the British Constitution as the colonists had understood it.

449px-Writing_the_Declaration_of_Independence_1776_cph_3g09904

This brings us back to the problem with which I began.  The founders started a program of determined political action in response to the abuses with which they were faced.  That is, they created a political movement designed to correct those abuses.  We today have not responded as seriously to the abuses we have faced.  We have complained about them.  We have maybe voted for the political party that has complained along with us.  But we who object to these abuses have not mounted the kind of determined effort at correction that the founders mounted.

I am by no means saying that we need to have a revolution, by the way.  That would really not be following the founders’ example.  Their efforts to correct their government were compatible with respect for that government and for the rule of law.  The founders did not start a revolution because they were unhappy about the Stamp Act and the like.  The revolution started when their own government began to make war on them because it was tired of their efforts at protest.  The founders responded to the abuses of their time by making full use of their powers of self-government: they created a political movement dedicated entirely to correcting those abuses and restoring lawful government.  We have not done the same.

Let’s celebrate the Fourth, by all means.  But as we do so, we need to ask whether we are celebrating the birth of a country that soon may no longer exist as it was conceived by those who created it and by those who passed it down to us—and what we should be doing to avert that danger.   Politics as usual does not seem to be cutting it.

16,083 views

Categories:Politics

One thought on “What Would the Founders Say? A Fourth of July Reflection

  1. Julie T. says:

    Thank you for an excellent article, Carson. Two thoughts here: historian Thomas E. Woods (author of “How the Catholic Church Built Western Civilization”) notes the American colonists did not have a revolution because the aim of a revolution is to abolish one social order and its institutions in order to replace it with another. Understood this way, nations like France, Russia and China (and many others) had revolutions, but the Americans did not. They had a war of independence. Doctor Woods argues the distinction between a revolution and a war for independence is important and the terms shouldn’t be used interchangeably. Viewed this way, the real revolution has been underway for many decades. My second thought is one I’ve pondered many times: If the American colonists—the ordinary citizen soldiers, as well as the leadership—could have foreseen what the United States has become, would they have gone forward with the “American Experiment” or would they have discarded it altogether?

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>

STAY CONNECTED


DON'T MISS A THING

Receive our updates via email.