When someone diverts a debate to “first principles,” it’s usually because they don’t want to debate the issue at hand. (More)

The Jefferson Rule, Part III: Beyond the “First Principles” Trap (Non-Cynical Saturday)

This week Morning Feature considers David Sehat’s new book The Jefferson Rule: How the Founding Fathers Became Infallible and Our Politics Inflexible. Thursday we began with how Thomas Jefferson created the myth of a singular “original intent.” Yesterday we saw how revering “the Founders” as infallible hamstrung political debates from tariffs to slavery. Today we conclude with modern “constitutional conservatism” and whether we can move beyond asking “What would the Founders do?”

David Sehat is an associate professor of history at Georgia State University. He earned his PhD at the University of North Carolina, Chapel Hill, and writes broadly on American intellectual, political, and cultural life. His first book, The Myth of American Religious Freedom, won the Frederick Jackson Turner Award from the Organization of American Historians.

“The tasks before us differ from the tasks set before our fathers”

The Civil War changed how Americans viewed our nation. A Google Ngram search shows that the phrases “United States is” (a single nation) and “United States are” (a group of distinct states) were used with almost equal frequency before the war. The singular usage was slightly more common by the time of the war, and by the dawn of the 20th Century the idea of the U.S. as a single nation was clearly dominant:

Dr. Sehat does not discuss that linguistic shift, but he makes a similar case about the change in political rhetoric:

[Theodore] Roosevelt self-consciously rejected what he took to be the Founders’ vision of government. As he explained in his inaugural address in 1905, “Our forefathers faced certain perils which we have outgrown. We now face other perils, the very existence of which it was impossible that they should foresee. Modern life is both complex and intense, and the tremendous changes wrought by the extraordinary industrial development of the last half century are felt in every fiber of our social and political being.” To the extent that the Founders still mattered, it was, Roosevelt explained, their example of “self-government.” But in all other ways, Roosevelt believed, “the problems are new,” and “the tasks before us differ from the tasks set before our fathers.”

That rhetorical shift, what Dr. Sehat calls a “spirit of skepticism toward the Founders,” both mirrored and helped to enable the Progressive Era:

When [Woodrow] Wilson won the election, his victory carried the progressive moment into governance. By 1912, progressives had come to the conclusion that if a gap existed between the Founders’ era and the twentieth century, then the government also needed to be changed even beyond what had occurred after the Civil War. Since the Founders were clearly elitists in a deferential age, their political system needed to be modified to allow greater democratic participation. And given the power of money and corporations in American society, the progressives believed that a more activist government would need to remake society into what Herbert Croly called an “industrial democracy.”

Those changes included the Sixteenth, Seventeenth, and Nineteenth Amendments which created the federal income tax, direct election of U.S. senators, and guaranteed women the right to vote.

“This affection will become almost worship”

Yet the Progressive Era ebbed and political debate increasingly returned to asking “What would the Founders do?” … and Dr. Sehat explains when and why:

The resulting meeting became a turning point in the New Deal program. In banding together, the emerging group represented a cross section of the nation’s commercial, legal, and philanthropic leadership. Because the du Ponts drew upon the business elite of the nation, their combined financial power was stupendous. But the group decided that in becoming a new organization they should not refer directly to property in their advocacy – even though that was their main concern – because a property-based argument would turn off the common man suffering under the Depression. They needed, wrote the future secretary of the American Liberty League, W.H. Stayton, “a moral or an emotional purpose” that could motivate the common man. Stayton thought he knew one that would work. Not many issues, he wrote,

could command more support or evoke more enthusiasm among our people than the simple issue of the “Constitution.” The public ignorance concerning it is dense and inexcusable, but nevertheless, there is a mighty – though vague – affection for it. The people, I believe, need merely to be led and instructed, and this affection will become almost worship and be converted into an irresistible movement.

And thus was born what we now call “constitutional conservatism,” a con game played by privileged elites who wanted – and still want – to wrap self-interest in the flag and sell it to the masses. Dr. Sehat returns to Stayton’s words:

Their posture needed to project an attitude of infinite reverence: “We do not seek to change [the Constitution], or to add to or to subtract from it; we seek to rescue it from those who misunderstand it, misuse and mistreat it.” “And we should remember,” he concluded, “that he who takes the ‘Constitution’ for his battle cry has, as his allies, the Fathers of old. It will be of inestimable aid to quote Washington, Franklin, Hamilton, Adams, Jefferson, Madison, Monroe, and other mighty men of the past.”

Because the American Liberty League was lavishly funded, they could buy space and time for their message in the popular media. They could also mass produce legal challenges to New Deal and thereby create the impression of widespread dissatisfaction. A still-conservative U.S. Supreme Court played along and struck down several key New Deal initiatives. And when President Roosevelt proposed to increase the number of Supreme Court justices – so he could appoint progressives – the American Liberty League could frame that as an unconstitutional act of tyranny … despite the fact that Congress, not the Constitution, set the size of the Court.

“I’m not a sixth grader, Senator”

Fast-forward eight decades and only the names have changed. Dr. Sehat cites the debate over gun safety regulation after the Newtown tragedy:

The resulting exchange during the committee hearings suggested just how difficult it would be for Congress to pass any kind of law – whether on gun control or anything else. [Senator Ted] Cruz put forward an absolutist vision of the Constitution that was far more wooden than even Jefferson and Madison in their most strictly constructionist mode. As Cruz patiently explained to the committee, the Constitution was a carefully wrought document, a purposeful expression of the Founders’ will that could be understood through the careful examination of constitutional language. Nowhere was this truer than in the Bill of Rights, a part of the Constitution to which, Cruz claimed, the Founders had devoted considerable care. But rather than analyzing constitutional language and respecting the Constitution as a whole, Cruz argued, Democrats were hypocritically picking the parts of the Bill of Rights they liked, while ignoring the parts they did not. As proof, he asked the sponsor of the gun bill, Senator Dianne Feinstein, a Democrat from California, whether she would think it proper to regulate the First and Fourth Amendments, which protected the right of free speech and free assembly and the freedom from unreasonable search and seizure, in the same way that she proposed to regulate firearms.

“I’m not a sixth grader, Senator,” Feinstein responded, with anger. “I’ve been on this committee for 20 years. I was a mayor for nine years. I walked in, I saw people shot. I’ve looked at bodies that have been shot with these weapons. I’ve seen the bullets that implode. In Sandy Hook, youngsters were dismembered.”

But then she stopped short. She was not really addressing Cruz’s question. Her response emphasized the practical realities of gun violence that the bill sought to address. She assumed that the Constitution was expansive enough that government could address social problems. Cruz, by contrast, had ruminated on abstract rights in a way that appealed to the conservative base and the NRA.

“Most citations of the Founders have nothing to do with the eighteenth century and everything to do with the present and the future”

Consider Sen. Cruz’s response to a question about mandatory childhood vaccinations:

“Thank you for the question, and thank you for your leadership and compassion,” said Cruz. “Let me start with some first principles and then get to the specific question you asked. First principle, number one: I am a passionate defender of religious liberty, and have spent the past two decades of my life fighting for religious liberty. I think we need to honor and protect the very first protection in the First Amendment to the Bill of Rights. Second, I am also a passionate defender of parental rights. I think that nobody loves their children more than parents do.”

He then explains that he vaccinated his children, but:

“I also think it is a question for the states,” Cruz continued. “We’ve got – I almost think we have a quorum of the legislature here. There are good men and women here who can debate and consider what exemptions to include in the state vaccination. And I trust the states to do that. I think the state legislature is the right forum to consider the pros and cons, to debate it back and forth. I don’t think you should have the federal government intruding. I am a huge believer in the Tenth Amendment. The federal government has no business getting into state vaccine policy. So I trust the men and women here to resolve those questions in a way that’s consistent with public health and also respects the rights of parents and the rights of legislators.”

This is a case study in “constitutional conservatism.” First shift the topic to “first principles” and then talk about anything except … studies that show childhood vaccinations are a collective action problem. Oh, and ignore the fact that diseases can’t see state borders, and that the science of immunology did not exist in the 18th century. The Founders could not even theoretically have debated personal vs. collective responsibility in disease prevention. Yet Sen. Cruz denounces federal vaccination laws … based on “first principles.”

As Dr. Sehat concludes:

Politicians create the Founders in their own image. They make them symbols of the kind of social and political life that various politicians desire. Though these positions are submerged beneath the veneer of traditional fidelity, the reverence does not change the fundamental fact: most citations of the Founders have nothing to do with the eighteenth century and everything to do with the present and the future. Given that reality, we might as well dispense with the talk of the Founders in order to make a straightforward case for whatever policy is under discussion. Doing so would not solve all of the problems. But it would be the first step to a better political debate.

Indeed it would, but to get there progressives must learn to recognize “first principles” and similar phrases as red flags. Those phrases signal that the speaker is about to set aside the issue at hand and turn instead to “ruminat[ing] on abstract rights.” Rather than ask “Is this problem a priority, given other problems we face?” or “Will this policy help solve this problem?” – both legitimate debates about issue on its merits …

… “constitutional conservatives” want change the topic to “What would the Founders do?” and then cherry-pick (or invent) quotes to prove the Founders – how conveniently! – would do exactly and only “constitutional conservatives” want. And almost invariably, “constitutional conservatives” use that rhetorical sleight-of-hand because the alternative is to argue “That’s not a priority,” or argue “That policy won’t help solve the problem” – and propose an alternative – and they know they would lose those arguments on the merits.

Instead of wading into Founders Fetish Swamp, progressives must learn to recognize the trap and respond “Why are you afraid to debate this issue on its merits?” … and demand an answer that does not run to hide behind “first principles.” We might even quote Jefferson himself:

On similar ground it may be proved that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation. They may manage it then, and what proceeds from it, as they please, during their usufruct. They are masters too of their own persons, and consequently may govern them as they please. But persons and property make the sum of the objects of government. The constitution and the laws of their predecessors extinguished then in their natural course with those who gave them being. This could preserve that being till it ceased to be itself, and no longer. Every constitution then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right.

The Founders are dead. We are not. We can celebrate what they helped create, but we must govern ourselves.

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Happy Saturday!