July 4th Note to Tea Partiers: Your Politics Would Baffle the Founding Fathers

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Mike Challenger, of Bothell, Wash., applauds a speaker as he stands dressed in Revolutionary-period wear at a tax day tea party rally of about a hundred protesters Friday, April 15, 2011, in Bellevue, Wash. (AP Photo/Elaine Thompson)
Mike Challenger, of Bothell, Wash., applauds a speaker as he stands dressed in Revolutionary-period wear at a tax day tea party rally of about a hundred protesters, April 15, 2011, in Bellevue, WA. (AP Photo/Elaine Thompson)

Editor’s note: These days, if you see a protester donning a tricorn hat and waving a Gadsden Flag, it’s a safe bet that he or she is a Republican activist who’s furious about “death panels” or the prospect of the government meddling in the Medicare program. But the tea party movement isn’t the first to claim itself to be the true defenders of the Constitution, or to enlist its Framers in a political cause. Throughout American history, activists across the ideological spectrum have insisted that the Framers would roll over in their graves upon encountering the perfidy of their political opponents.

The reality is that the Framers disagreed about almost everything, and produced a Constitution that was filled with expedient compromises. As Jill Lepore, a professor of American history at Harvard University, pointed out in her book, The Whites of Their Eyes: The Tea Party’s Revolution and the Battle Over American History, “Beginning even before it was over, the Revolution has been put to wildly varying political purposes.” Between 1761, when the first signs of discontent with England became apparent in the Colonies, and 1791, when the Bill of Rights was ratified, Lepore wrote that Americans debated an “ocean of ideas” from which “you can fish anything out.”

One of the few areas where the Framers approached a consensus was a belief that their Constitution shouldn’t be fetishized. According to Lepore, it was none other than Thomas Jefferson who wrote, “Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human.” And in Federalist 14, James Madison wondered if it was “not the glory of the people of America, that… 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 or their own experience?”

Below is an excerpt from Jill Lepore’s book. In it, she explains the origins of, and historical problems with, the notion of “Constitutional originalism.”

*****

Originalism as a school of constitutional interpretation has waxed and waned and has always competed with other schools of interpretation. Madison’s invaluable notes on the Constitutional Convention weren’t published until 1840, and nineteenth-century constitutional theory differed, dramatically, from the debates that have taken place in the twentieth century. In the 1950s and 1960s, the Supreme Court rejected originalist arguments put forward by southern segregationists, stating, in Brown v. Board of Education in 1954, that “we cannot turn back the clock” but “must consider public education in the light of its full development and its present place in American life throughout the Nation.” Constitutional scholars generally date the rise of originalism to the 1970s and consider it a response to controversial decisions of both the Warren and Burger Courts, especially Roe v. Wade, in 1973. Originalism received a great deal of attention in 1987, with the Supreme Court nomination of Robert Bork. Bork’s nomination also happened to coincide with the bicentennial of the Constitutional Convention. “Nineteen eighty-seven marks the 200th anniversary of the United States Constitution,” Thurgood Marshall said in a speech that year. Marshall (who went to Frederick Douglass High School) had argued Brown v. Board of Education in 1954 and, in 1967, after being nominated by Lyndon Johnson, became the first African American on the Supreme Court. In 1987, contemplating the bicentennial of the Constitution, Marshall took a skeptical view.

The focus of this celebration invites a complacent belief that the vision of those who debated and compromised in Philadelphia yielded the “more perfect Union” it is said we now enjoy. I cannot accept this invitation, for I do not believe that the meaning of the Constitution was forever “fixed” at the Philadelphia Convention. Nor do I find the wisdom, foresight and sense of justice exhibited by the Framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war and major social transformations to attain the system of constitutional government and its respect for the freedoms and individual rights, we hold as fundamental today.

Marshall was worried about what anniversaries do. “The odds are that for many Americans the bicentennial celebration will be little more than a blind pilgrimage to the shrine of the original document now stored in a vault in the National Archives,” rather than the occasion for “a sensitive understanding of the Constitution’s inherent defects, and its promising evolution through 200 years of history.” Expressing doubts about unthinking reverence, Marshall called for something different:

In this bicentennial year, we may not all participate in the festivities with flagwaving fervor. Some may more quietly commemorate the suffering, struggle, and sacrifice that has triumphed over much of what was wrong with the original document, and observe the anniversary with hopes not realized and promises not fulfilled. I plan to celebrate the bicentennial of the Constitution as a living document.

Even as Marshall was making that speech, the banner of originalism was being taken up by evangelicals, who, since joining the Reagan Revolution in 1980, had been playing an increasingly prominent role in American politics. “Any diligent student of American history finds that our great nation was founded by godly men upon godly principles to be a Christian nation,” Jerry Falwell insisted. In 1987, Tim LaHaye, an evangelical minister who went on to write a series of bestselling apocalyptic novels, published a book called The Faith of Our Founding Fathers, in which he attempted to chronicle the “Rape of History” by “history revisionists” who had systemically erased from American textbooks the “evangelical Protestants who founded this nation.” Documenting this claim was no mean feat. Jefferson posed a particular problem, not least because he crafted a custom copy of the Bible by cutting out all the miracles and pasting together what was left. LaHaye, to support his argument, took out his own pair of scissors, deciding, for instance, that Jefferson didn’t count as a Founding Father because he “had nothing to do with the founding of our nation,” and basing his claims about Benjamin Franklin not on evidence (because, as he admitted, “There is no evidence that Franklin ever became a Christian”), but on sheer bald, raising-the-founders-from- the-dead assertion. LaHaye wrote, “Many modern secularizers try to claim Franklin as one of their own. I am confident, however, that Franklin would not identify with them were he alive today.” (Alas, Franklin, who once said he wished he could preserve himself in a vat of Madeira wine, to see what the world would look like in a century or two, is not, in fact, alive today. And, while I confess that I’m quite excessively fond of him, the man is not coming back.)

Lincoln was a lawyer, Douglas a judge; they had studied the law; they disagreed about how to interpret the founding documents, but they also shared a set of ideas about standards of evidence and the art of rhetoric, which is why they were able to hold, over seven days, such a substantial and relentless debate. Falwell and LaHaye were evangelical ministers; what they shared was the art of extracting passages from scripture and using them to preach a gospel about good and bad, heaven and hell, damnation and salvation.

Precisely what the founders believed about God, Jesus, sin, the Bible, churches and hell is probably impossible to discover. They changed their minds and gave different accounts to different people.

“My faith is the faith of my fathers,” Mitt Romney declared in an address on faith, in 2007, just before the presidential primary season, during which Romney sought the Republican nomination. Romney’s Founding Fathers weren’t the usual ones, though. Historians of religious liberty have typically referred to four foundational texts: Madison’s 1785 “Memorial Remonstrance against Religious Assessments” (“The Religion of every man must be left to the conviction and conscience of every man”), a statute written by Jefferson (“our civil rights have no dependence on our religious opinions any more than our opinions in physics or geometry”), Article VI of the Constitution (“no religious test shall ever be required as a qualification to any office or public trust under the United States”), and the First Amendment (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”). Romney, though, skipped over Jefferson and Madison in favor of Brigham Young, John and Samuel Adams and the seventeenth-century Puritan dissenter, Roger Williams, in order to accuse modern-day secularists of being “at odds with the nation’s founders,” and of having taken the doctrine of separation of church and state “well beyond its original meaning” by seeking “to remove from the public domain any acknowledgement of God.”

Precisely what the founders believed about God, Jesus, sin, the Bible, churches and hell is probably impossible to discover. They changed their minds and gave different accounts to different people: Franklin said one thing to his sister, Jane, and another thing to David Hume; Washington prayed with his troops, but, while he lay slowly dying, he declined to call for a preacher. This can make them look like hypocrites, but that’s unfair, as are a great many attacks on these men. They approached religion more or less the same way they approached everything else that interested them: Franklin invented his own, Washington proved diplomatic, Adams grumbled about it (he hated Christianity, he once said, but he couldn’t think of anything better, and he also regarded it as necessary), Jefferson could not stop tinkering with it, and Madison defended, as a natural right, the free exercise of it. That they wanted to preserve religious liberty by separating church and state does not mean they were irreligious. They wanted to protect religion from the state, as much as the other way around.

Set loose in the culture, and tangled together with fanaticism, originalism looks like history, but it’s not; it’s historical fundamentalism, which is to history what astrology is to astronomy, what alchemy is to chemistry, what creationism is to evolution.

Nevertheless, if the founders had followed their forefathers, they would have written a Constitution establishing Christianity as the national religion. Nearly every British North American colony was settled with an established religion; Connecticut’s 1639 charter explained that the whole purpose of government was “to mayntayne and presearve the liberty and purity of the gospel of our Lord Jesus.” In the century and a half between the Connecticut charter and the 1787 meeting of the Constitutional Convention lies an entire revolution, not just a political revolution but also a religious revolution. Following the faith of their fathers is exactly what the framers did not do. At a time when all but two states required religious tests for office, the Constitution prohibited them. At a time when all but three states still had an official religion, the Bill of Rights forbade the federal government from establishing one. Originalism in the courts is controversial, to say the least. Jurisprudence stands on precedent, on the stability of the laws, but originalism is hardly the only way to abide by the Constitution. Setting aside the question of whether it makes good law, it is, generally, lousy history. And it has long since reached well beyond the courts. Set loose in the culture, and tangled together with fanaticism, originalism looks like history, but it’s not; it’s historical fundamentalism, which is to history what astrology is to astronomy, what alchemy is to chemistry, what creationism is to evolution.

“What would the founders do?” is, from the point of view of historical analysis, an ill-considered and unanswerable question, and pointless, too.

In eighteenth-century America, I wouldn’t have been able to vote. I wouldn’t have been able to own property, either. I’d very likely have been unable to write, and, if I survived childhood, chances are that I’d have died in childbirth. And, no matter how long or short my life, I’d almost certainly have died without having once ventured a political opinion preserved in any historical record, except that none of these factors has any meaning or bearing whatsoever on whether an imaginary eighteenth-century me would have supported the Obama administration’s stimulus package or laws allowing the carrying of concealed weapons or the war in Iraq, because I did not live in eighteenth-century America, and no amount of thinking that I could, not even wearing petticoats, a linsey-woolsey calico smock and a homespun mobcap, can make it so. Citizens and their elected officials have all sorts of reasons to support or oppose all sorts of legislation and government action, including constitutionality, precedence and the weight of history. But it’s possible to cherish the stability of the law and the durability of the Constitution, as amended over two and a half centuries of change and one civil war, and tested in the courts, without dragging the Founding Fathers from their graves. To point this out neither dishonors the past nor relieves anyone of the obligation to study it. To the contrary.

“What would the founders do?” is, from the point of view of historical analysis, an ill-considered and unanswerable question, and pointless, too. Jurists and legislators need to investigate what the framers meant, and some Christians make moral decisions by wondering what Jesus would do, but no NASA scientist decides what to do about the Hubble by asking what Isaac Newton would make of it. People who ask what the founders would do quite commonly declare that they know, they know, they just know what the founders would do and, mostly, it comes to this: if only they could see us now, they would be rolling over in their graves. They might even rise from the dead and walk among us. We have failed to obey their sacred texts, holy writ. They suffered for us, and we have forsaken them. Come the Day of Judgment, they will damn us.

That’s not history. It’s not civil religion, the faith in democracy that binds Americans together. It’s not originalism or even constitutionalism. That’s fundamentalism.

© 2010 by Jill Lepore. Published by Princeton University Press. Reprinted by permission.

Jill Lepore is a professor of American history at Harvard University and chair of Harvard’s History and Literature Program. She is also a staff writer at The New Yorker
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  • Anonymous

    Great article. Unfortunately those who need to understand this history are precisely the ones who will never read it and insist on the correctness of their incorrect understanding.

  • Anonymous

    Exceptionally fantastic read! Thank you!

  • Anonymous

    David Barton and his ilk should read this. It is written by a REAL historian.

  • Anonymous

    In the century and a half between the Connecticut charter and the 1787 meeting of the Constitutional Convention lies an entire revolution, not just a political revolution but also a religious revolution.

    I think most of those who falsely proclaim the so-called Christian foundation of the US fail to realize the great span of time between the initial colonization and the revolution. The founders of this nation were clearly not steeped in religious fervor, but were rather disciples of the decidedly secular world view represented by the Enlightenment.

  • Anna Washington

    Wonderful. Thank you.

  • Anna Washington

    Well, we must continue to try. As she uses a great example with Hubble and Newton, we cannot go on losing our minds to others lacking critical thinking of any sort.

  • David Rice

    There may have been two or three framers of the Constitution that would agree with Teapublicans and their…. odd version of what is and is not constitutional (and sane). An excellent example of previous Teapublican behavior is the Mormon Revolt of year 1857, where child-molester slave-owning Brigham Young demanded that the federal government “obey the Constitution” by recalling the Army that was on its way to put down the Mormon rebellion. It was Young, according to Young, who was defending the Constitution by his burning Army wagons and Army forts, robbing federal officers of public funds, and murdering people on their way to California and Oregon.

  • Strawman

    As a citizen entrapped in reality who likewise sees this experiment in democracy as tottering toward failure, I fail to see how injecting imaginary elements (gods and fairies) into the debate contributes in any substantial way.

  • Anonymous

    “Your Politics Would Baffle the Founding Fathers”

    As numerous op-ed and news articles have noted throughout modern US history, the Founders would be baffled just looking around Washington, D.C.

  • Stuart

    Also, see “Liars for Jesus,” http://www.liarsforjesus.com

  • Anonymous

    You assume David Barton can read.

  • Ezra Bennett

    Critical Thinking is liberal indoctrination to the party of ME. It’s all a part of some perceived leftist agenda that can’t exactly be explained with any certainty or using any sort of logic

  • RRuss

    The document does talk about the creator, but the founders well knew that we each hold some different view of what is mean by that, and the necessity of keeping one religious view from dominating the lives of other equal citizens made it essential and agreed by most that religion should be separate from government. This dynamic remains as potent today as it was then. Consider if we would prefer Sharia law to be instituted in any part of the country. This is not a far fetched possibility. There are more than a few places in this country where the Muslim population is a majority or at least close to one. I think even then most radical Evangelicals would prefer to have religion separate from government, and this is exactly the point used by Jefferson to convince various religious factions to support the concept of separation of church and state. The founder may have been god fearing, but they did not want to be subject to the rule of someone else’s understanding of their god.

  • Gato Pardo

    If the Founding Fathers started this idea of the Republic from the French Revolution and not their own roots… Why shouldn’t we do the same? Conservatives on those days were called loyalists…..I say out with the old…..

  • Gato Pardo

    A very interesting and enlightening historical account…Thanks

  • Gato Pardo

    Your judgmental lecture is as thick as mud ….This country started as an attempt to emulate the French Revolution and historically that’s the reason why the french helped our revolution…..eventually that same alliance had as a result the war of 1812, When the English had a naval blockade which impeded American vessels to reach Napoleonic France with American products.
    By the way, the pending invasion of American forces over Canadian territory was the last drop for the British .
    You can rehash history as you like.

  • Anonymous

    “You can rehash history as you like.”
    But YOU cannot change the dates to your liking:
    Sept 17, 1787, Ratification of the US Constitution
    July 14, 1789, Storming of the Bastille in Paris
    Were the founding fathers also time travellers?

  • Deborah M Conner

    I like the way they (teaparty Cruz supporters) have rewritten the Bible. “Clear the fields first, then build your house” — which speaks to things like strong foundations, not building on sand — has literally become “See to your business first, then build your home.” “Dominion over the earth” forgets all responsibility.

    The spin is to blame others for their moral weakness. Theodicy be damned!
    In the Capitol, you can see the cornerstone laid by Freemasons. Geo Washington, grande master, who summoned Masonic brother Lafayette, without whom the war would have been lost. They understood the importance of foundation, of a means to approach justice and the ever changing future. That foundation was a process called government.

    When Gen MacArthur oversaw the surrender of the Japanese, he understood the stickiness of honor-shame cultures, having spent his childhood in the Philippines. What now? with such discord, no way to save face: no way to face their future. He shared the new foundation with them. The place to build a home.

    Let’s fix what we have, remembering all those who have died to envision the possibility of its (ever renewing) dawn.

    How did the tea party come to power? Yes, it was money and intrigue and corporate conspiracy, all short sighted to past and enduring future. But the way it happened is that people neglected to vote. Look back, and the vaunted landslide amounted to a vote of ~14% of registered voters, most of whom were moved by hate and white supremacy.

    We can fix this. The Constitution, government, gives us a way. A way to disagree yet come together in purpose.

    ALEC, the things you speak of, looks to taking over government at all all levels. Local is the easy.

    Mostly, the Founding Fathers were tired of Civil War.

  • Anonymous

    Balderdash! (storms off angrily)

  • Anonymous

    To wonder about what the founders would do is to let our country be ruled by men long dead.

  • Anonymous

    Yes they did practice that communal philosophy, but you’re only telling half the story. They ended up in near starvation as a result. When they abandoned the communal way of living the colony began flourishing.

  • Anonymous

    “no NASA scientist decides what to do about the Hubble by asking what Isaac Newton would make of it.”

    This comment shows the author does not understand science. In fact, NASA scientists do exactly what Newton would do because the operation of the telescope is governed by Newton’s laws. Those are physical laws Newton happened to discover them but science is not like history or politics. The laws are the facts of the situation. Asking Newton is not necessary but in a sense he is dictating the answers. In contrast a legal document (like the Constitution) is created by humans so does not have that level of authority, obviously.

  • Anonymous

    “It’s not civil religion, the faith in democracy that binds Americans together. It’s not originalism or even constitutionalism. That’s fundamentalism.”

    No it’s not. Its called the rule of law. The structure of our government provides for a means to modify the constitution through amendments, which was done through the 14th amendment for example to address previous mistreatment of African Americans through slavery. The problem is the left wants an endless expansion of the Federal government without bothering with the constitution. That is what “originalists” see as the problem. They are not promoting living with exactly the same rules for all of time that the United States exists. To have fundamentalism you would have to believe that the constitution could never be amended. Frankly I have never heard any such argument.

  • Andrew C Livingston

    “The problem is the left wants an endless expansion of the Federal government without bothering with the constitution.”

    And you lose your own argument going directly past Go and collecting you $200 before even rolling the damn die. The Left does not want an “endless expansion of the Federal government”, and demonstrably so. The problem is that the Right indeed does want this expansion, and again, demonstrably so.

  • Andrew C Livingston

    No. That’s simply not true.

  • Andrew C Livingston

    As always, you lose on the creator. For a nation founded on God, the Founding Fathers certainly did their damndest to ensure God was not part of the nation.

    The rest of the comment is just waffle and a poor attempt at philosophy without any knowledge of it.

  • Andrew C Livingston

    To be fair, to argue with folks who clearly have no real knowledge of our history, it certainly helps to have it yourself.

  • Andrew C Livingston

    It does not talk about “the creator”. It talks about “their creator”. This is a monumental difference and a deliberate choice of words. “The creator” implies one creator, “their creator” simply implies that every human being has the same rights.

    The US was not, is not, and never will be a “Christian nation” in any way, shape, or form. We need to stop debating this with these folks, they’re simply wrong.

  • Andrew C Livingston

    Then further that agenda every day, with every breath in your lungs.

  • Anonymous

    LOL. Conservatives pull “facts” out of their butts. And they’re too lazy to google their “facts” first. It’s so easy. Don’t know why they don’t do it. Or I do. They have their own “facts”.

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  • lesterthegiantape

    Her meaning is simple: astronomers don’t consult Newton’s imaginary opinions before doing their work, although their work is founded in his achievements. In the same way, modern Americans ought not to consult the imaginary opinions of the Framers, although our government is founded in their achievements.

    I respectfully suggest you re-read the essay with this in mind.

  • lesterthegiantape

    It must be — George Washington thought about it. I saw it in a dream.

  • lesterthegiantape

    Points for hyperbole, though!

  • Ian Osmond

    You may be flipping cause and effect here. They lived under a strict communist regime for the first few years while they were starving; when they weren’t desperately struggling for bare survival, they opened it up to more economic freedom.

    My suspicion is that the freedom is a result of the sufficiency, rather than the other way around. Or, to think about it differently, they used strict communist rationing out of desperation and as an emergency measure, with the intent to go to a more free situation as soon as they were able.

  • Ian Osmond

    To be fair, ALL of our politics, of any political stripe, would be baffling to the Founding Fathers. That’s simply a matter of time and history.

    Actually, let’s look at Anglo-American political systems going back 220 years at a jump. The Founding Fathers’ generation, who were doing stuff in 1794, would be baffled by our system, and not even really understand the QUESTIONS we were dealing with, let alone the answers. They might be able to adapt given enough time, but they’re be baffled.

    Go back another 220 years, and Elizabeth’s courtiers from 1574 would be baffled by the strong Parliament system that the George III was working with. They’d be baffled by that, and might be able to adapt in time, but it’d not be easy.

    When Shakespeare wrote his Wars of the Roses plays, he didn’t go back quite that far to start. The England, and Europe, of 1354 was just a bit too alien for his audience. That’s when everything was reshuffling and reorganizing after the continent was wracked by the Black Plague, killing a third of the people. None of the people working in that time would have been able to function in Elizabeth’s court.

    220 years before that, and it’s the end of the reign of the son of William the Conqueror. 220 years before THAT, and you’re near the beginning of the age of all those kings whose names start with “Æ”.

    There aren’t a lot of times and places I can think of where the politics of a place WOULDN’T baffle the politicians of 220 years previously. Maybe some of the Chinese dynasties had enough stability such that a person could still function in a court 220 years later, but certainly not all of them

    220 years before that, and it’s the end of the reign of the son of William the Conqueror. 220 years before THAT, and you’re near the beginning of the age of all those kings whose names start with “Æ”.

    There aren’t a lot of times and places I can think of where the politics of a place WOULDN’T baffle the politicians of 220 years previously. Maybe some of the Chinese dynasties had enough stability such that a person could still function in a court 220 years later, but certainly not all of them.

  • Anonymous

    Cliven Bundy and Steve Klein would agree with Young, and all three are wrong.

  • Anonymous

    Thanks for clearing that up.

  • JonThomas

    Did you read the article closely?

    It’s not the change in times, and the evolution of politics that’s questioned, it’s when a group hearkens back and claims to be acting as originalists! In fact, the Tea Party is guilty of exactly what you describe… ignoring the natural (whether it be good or bad) evolution of events and time and claiming they are speaking as the Founders would.

  • gocart mozart

    Why do you hate America?

  • Anonymous

    | Asking Newton is not necessary but in a sense he is dictating the answers

    In a sense, yes, but other physicists have substantially built on (and in some cases contradicted) Newtownian mechanics. The metaphor here is that in only consulting Newton they’d be disregarding all of the advancements that came after.

  • Anonymous

    I can’t speak for the tea party, but I am not interested in consulting “imaginary opinions” of dead people for the constitution. The constitution is a set of written laws. They are what they are. If you don’t like them you can petition to change them through the amendment process.

  • Anonymous

    You need to read up on this. The facts are they started with communist style living, and it ended up not working. Then they switched to a capitalist framework and thrived.

  • Ian Osmond

    Oh, yes, I understand that. I guess I’m just agreeing with the “what would the founders do is an unanswerable and pointless question” point. I’m just generalizing that to say that its pointlessness isn’t unique to the Tea Party and the American Founding Fathers.

  • JonThomas

    Oh… Ok, fair enough. It just had sounded like you skipped over the parts where they dress up like the founders, use the name “Tea Party”, and (as the author deftly pointed out) falsely claim ideological kinship.

    It’s one thing to look back trying to understand context and and circumstance, it’s quite another to lay claim to, and pass off ideological heredity.

  • lesterthegiantape

    I think you just want to be right.

  • Nicko Thime

    The Tea Party idea that we should be stuck in the 18th century, or that the founders meant us to be so, is so breathtakingly stupid as to defy definition.

  • Nicko Thime

    Why would that matter?
    Ideologues lie to everyone, especially to themselves. Dogma requires it.

  • Nicko Thime

    That’s a large pile of stinking manure.They survived BECAUSE of communal living.

  • Anonymous

    I think you have to go back and look at a historical timeline. The US constitution was completed before the French revolution started, and arguably the latter was inspired by the former, not the other way around.