Forget about venerating the fake Constitution taught in elite law schools, and remember to venerate the Constitution of the founders’ philosophy.
Alan Taylor, a historian from the University of Virginia, has written an op-ed in the New York Times arguing that Americans wrongly disparage Donald Trump and Hillary Clinton in comparison to the Founders. Instead of recognizing their similarities to this year’s candidates, Taylor says that we treat the Founders as mythical giants. But, according to Taylor, they were as divided and divisive as these nominees. And the Founders tolerated a society with less sound norms than our own. Moreover, we should just accept that Founders did not resolve the “core principles of our government,” leaving it up to us to fight about them.
This op-ed is misleading and flawed in many respects. It exaggerates the differences in principle as opposed to politics among the Founders. It does not give credit to the Founders’ principles for being a primary cause of the improvement in social norms in America. And its claim that the Constitutional text does not settle core governing principles is a conventional and undefended cliche of the academic Left.
First, while the Democratic-Republicans and Federalists had strong political differences, their respective appointees to the Supreme Court were united on the constitutional principles of creating a strong but limited federal government whose focus was creating a commercial society. That justices of different parties agreed on so much after deliberation is strong evidence that there was substantial, even if not unanimous agreement, on core principles.
For instance, Chief Justice John Marshall and Justice Joseph Story hardly ever diverged on the resolution of constitutional cases, despite being appointed by John Adams and Thomas Jefferson respectively. Most important cases on the Court were decided unanimously, even when Justices appointed by Democratic Republicans were in a majority. And everyone agreed that the original meaning of the Constitution should be followed. That is huge difference from today, where Supreme Court justices differ on the basic methodology of constitutional interpretation, largely depending on what party appoints them.
And while it is true that the Founders’ society had some very bad norms, it was the Founders’ principles that helped end them. I have argued previously that the commercial society of limited government isolated slavery. It is also well known (the doux commerce thesis) that a commercial society brings with it self-restraint and a reduction in violence, militating against dueling—a practice at the time of the Founding emphasized by Taylor—that is characteristic of an aristocratic society. It is hard to think of any principles that Clinton and Trump are trying to introduce that will have as remotely a good effect as those in the Founders’ Constitution. Both want massively to interfere with commerce, Trump most notably with trade and Clinton with labor markets. And both are running campaigns to widen the fault lines of a multicultural society.
And Clinton wants to continue the progressive agenda of creating a different Constitution from the Founders without bothering to amend it. One thing one can say in favor of the old Progressives: They were much more honest than the new ones. They openly rejected the Founders’ principles rather than claiming that that their design was so unclear as to be compatible with the contemporary ideals of the left, whatever these happen to be.