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.
“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.
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.
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.