Constitution & Originalism: Patrick Deneen’s Flawed Analysis of American History

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    University of Notre Dame professor of political philosophy Patrick Deneen, one of the critics of originalism emerging on the right, seems to think he has hit upon a killer “gotcha” argument: that nobody cared about what the Founding Fathers thought about the Constitution or the American order until the mid-20th century. Deneen tweeted:

    “Founderism” arose at a particular time for specific political ends – in response to international threats in WWII, then the conservative coalition during the Cold War and in debates against Progressives. It served especially the needs of a conservative political coalition that prized libertarian funding and the votes and organizing ability of religious social conservatives. Just as the political tides are shifting, so too are the debates over strategies. There is nothing eternal and unchanging in appeals to “Founderism” or “Originalism.”

    Rather than cite history in order to bolster this argument, Deneen decamps to the Google Books Ngram Viewer, which searches Google Books’s large database of books by publication date to track the usage of words and phrases over time. If you have ever consulted Google Books looking for old books, you may have some questions about, say, the precision of this database’s identification of publication dates, but leave that aside. Deneen uses graphs to show that the term “Founding Fathers” does not appear in books in any significant force until the 1930s, and “Originalism” is not seen in the wild until the 1980s.

    We should draw two lessons from this. One, it is hazardous to use automated language databases to trace the history of ideas if you are unfamiliar with the history of how those ideas were expressed. Two, Deneen is unfamiliar with that history.

    It is true that originalism, as a legal movement, obtained its name only in the 1980s, although this tells us a great deal less than Deneen apparently thinks about the pedigree of its approach. More on that in a moment. But “Founding Fathers”? As is well known to historians, the term was coined by Warren G. Harding and popularized in his keynote address at the 1916 Republican convention. The Harvard University Declaration of Independence Resources cite elaborates:

    Here is the term in context, as reported by The Boston Herald on June 8, 1916: “No political party ever has builded or even can build permanently except in conscientious devotion to abiding principles. Time never alters a fundamental truth. Conditions do change, popular interest is self-assertive, and ‘paramounting’ has its perils, as the Democratic party will bear witness, but the essentials of constructive government and attending progress are abiding and unchanging. For example, we ought to be as genuinely American today as when the founding fathers flung their immortal defiance in the face of old-world oppressions and dedicated a new republic to liberty and justice. We ought to be as prepared for defence as Washington urged amid the anxieties of our national beginning, and Grant confirmed amid the calm reflections of union restored.”

    This wasn’t the only time Harding used the term. In remarks delivered to the Sons and Daughters of the American Revolution in 1918, Harding said, “It is good to meet and drink at the fountains of wisdom inherited from the founding fathers of the Republic.” He also frequently used the term during his campaign for the presidency in 1920; for example, “Let’s hold fast to that which has come to us from the founding fathers, from the union, from those who awakened us to a little finer conscience, then get off this detour on the right track again and go ahead.” And, once Harding became President, he used the term in his inaugural address, delivered on March 4, 1921: “Standing in this presence, mindful of the solemnity of this occasion, feeling the emotions which no one may know until he senses the great weight of responsibility for himself, I must utter my belief in the divine inspiration of the founding fathers.” In each of Harding’s uses, “founding fathers” is a term imbued with morals, responsibility, and devotion. It is also catchy, and according to William Safire, Harding was fond of alliterative phrases (or, as Safire phrased it, “‘Founding Fathers’ functioned as the fulfillment of his forensic fancy.”)….According to the Oxford English Dictionary, the first citation for the term “founding fathers” is the title of Kenneth Umbreit’s 1941 book, Founding Fathers: Men Who Shaped Our Tradition.

    If we run searches on closely parallel terms, we see Harding’s influence. Here is “founders of America,” which likewise peaks in the 1920-40 period:

    “Founders of this country” shows a similar midcentury pattern:

    Originalism, of course, arose in the 1980s as a critique of the departure of courts from the 1930s through the 1970s from the Constitution’s commonly understood text. So, it is not surprising that particular terms of the originalist critique show a similar pattern. Here we have “original intent of the Constitution” spiking in that era — yet, it not only had been building for decades before that; it had also been used a fair amount in the period from the 1840s through the 1860s when Americans were hotly contesting what the Framers of the Constitution meant the document to tell us about slavery:

    If we widen the lens a bit on that, however, we see how often books used the term “original Constitution,” and it is far less modern-weighted:

    What about “authors of the Constitution”? Definitely a big spike around the Civil War era.

    Or how about “framers of the Constitution”? Even more heavily weighted to the age of Lincoln:

    What terms did people use before Harding to describe the Founding Fathers? Recall how Abraham Lincoln opened the Gettysburg Address, the entirety of which is a meditation on the legacy of the Founding: “Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.” How often did books use “our fathers”? Quite a lot, in Lincoln’s day, as it turns out:

    Or how about “Revolutionary fathers,” the term used by Andrew Jackson in his proclamation on the nullification crisis:

    That does not look much like a modern invention to me. As that Harvard source observes:

    While the term “Founding Fathers” seems to be a 20th-century creation, the concept of revering individuals who contributed to the founding of the nation began in the early 19th century, when several of them were still living. In an oration delivered in 1825, Daniel Webster acknowledged the loss of the founding generation: “Those who established our liberty and our government are daily dropping from among us. The great trust now descends to new hands. Let us apply ourselves to that which is presented to us, as our appropriate object. We can win no laurels in a war for independence. Earlier and worthier hands have gathered them all. Nor are there places for us by the side of Solon, and Alfred, and other founders of states. Our fathers have filled them. But there remains to us a great duty of defense and preservation; and there is opened to us, also, a noble pursuit, to which the spirit of the times strongly invites us.”

    Consider Jackson’s own argument:

    Our Constitution does not contain the absurdity of giving power to make laws, and another power to resist them. The sages, whose memory will always be reverenced, have given us a practical, and, as they hoped, a permanent constitutional compact. The Father of his Country did not affix his revered name to so palpable an absurdity. Nor did the States, when they severally ratified it, do so under the impression that a veto on the laws of the United States was reserved to them, or that they could exercise it by application. Search the debates in all their conventions-examine the speeches of the most zealous opposers of federal authority-look at the amendments that were proposed. They are all silent–not a syllable uttered, not a vote given, not a motion made, to correct the explicit supremacy given to the laws of the Union over those of the States, or to show that implication, as is now contended, could defeat it. No, we have not erred! The Constitution is still the object of our reverence, the bond of our Union, our defense in danger, the source of our prosperity in peace. It shall descend, as we have received it, uncorrupted by sophistical construction to our posterity…

    Maybe no American politician has grounded his arguments, both constitutional and political, in the Founding more than Lincoln. Lincoln was, in modern terms, an originalist, because that was the commonly shared assumption of his day. Chief Justice Roger Taney’s opinion in Dred Scott cited Founding-era history to argue that the Founders did not intend that black men could ever be considered citizens within the meaning of the Constitution — an originalist argument, but a shoddy one. Lincoln’s 1857 critique of Dred Scott was not that Taney should not have looked to the Constitution’s original meaning, but that Taney had his history wrong: Black men had fought in the Revolution and voted to ratify the Constitution:

    I have said, in substance, that the Dred Scott decision was, in part, based on assumed historical facts which were not really true; and I ought not to leave the subject without giving some reasons for saying this; I therefore give an instance or two, which I think fully sustain me. Chief Justice Taney, in delivering the opinion of the majority of the Court, insists at great length that negroes were no part of the people who made, or for whom was made, the Declaration of Independence, or the Constitution of the United States. On the contrary, Judge Curtis, in his dissenting opinion, shows that in five of the then thirteen states, to wit, New Hampshire, Massachusetts, New York, New Jersey and North Carolina, free negroes were voters, and, in proportion to their numbers, had the same part in making the Constitution that the white people had.

    In 1854, Lincoln argued against the Kansas-Nebraska Act from the Founders’ approach to the expansion of slavery:

    The earliest Congress, under the constitution…hedged and hemmed [slavery] in to the narrowest limits of necessity. In 1794, they prohibited an out-going slave-trade—that is, the taking of slaves FROM the United States to sell. In 1798, they prohibited the bringing of slaves from Africa, INTO the Mississippi Territory—this territory then comprising what are now the States of Mississippi and Alabama. This was TEN YEARS before they had the authority to do the same thing as to the States existing at the adoption of the constitution. In 1800 they prohibited AMERICAN CITIZENS from trading in slaves between foreign countries—as, for instance, from Africa to Brazil. In 1803 they passed a law in aid of one or two State laws, in restraint of the internal slave trade. In 1807, in apparent hot haste, they passed the law, nearly a year in advance to take effect the first day of 1808—the very first day the constitution would permit—prohibiting the African slave trade by heavy pecuniary and corporal penalties. In 1820, finding these provisions ineffectual, they declared the trade piracy, and annexed to it, the extreme penalty of death. While all this was passing in the general government, five or six of the original slave States had adopted systems of gradual emancipation; and by which the institution was rapidly becoming extinct within these limits. Thus we see, the plain unmistakable spirit of that age, towards slavery, was hostility to the PRINCIPLE, and toleration, ONLY BY NECESSITY. But NOW it is to be transformed into a “sacred right.”

    In his career-making 1860 Cooper Union speech, Lincoln wrapped himself in the Founders and argued against the Jacksonian Stephen Douglas’s contrary invocation of the Founders:

    In his speech last autumn, at Columbus, Ohio, as reported in “The New-York Times,” Senator Douglas said: “Our fathers, when they framed the Government under which we live, understood this question just as well, and even better, than we do now.” I fully indorse this, and I adopt it as a text for this discourse. I so adopt it because it furnishes a precise and an agreed starting point for a discussion between Republicans and that wing of the Democracy headed by Senator Douglas. It simply leaves the inquiry: “What was the understanding those fathers had of the question mentioned?” What is the frame of government under which we live? The answer must be: “The Constitution of the United States.” That Constitution consists of the original, framed in 1787, (and under which the present government first went into operation,) and twelve subsequently framed amendments, the first ten of which were framed in 1789. Who were our fathers that framed the Constitution? I suppose the “thirty-nine” who signed the original instrument may be fairly called our fathers who framed that part of the present Government. It is almost exactly true to say they framed it, and it is altogether true to say they fairly represented the opinion and sentiment of the whole nation at that time.

    Lincoln went on to discuss — at a lawyerly length prohibitive to quote fully here — a historical analysis of what the Framers intended. A sample:

    In 1787, still before the Constitution, but while the Convention was in session framing it, and while the Northwestern Territory still was the only territory owned by the United States, the same question of prohibiting slavery in the territory again came before the Congress of the Confederation; and two more of the “thirty-nine” who afterward signed the Constitution, were in that Congress, and voted on the question…. they both voted for the prohibition – thus showing that, in their understanding, no line dividing local from federal authority, nor anything else, properly forbids the Federal Government to control as to slavery in Federal territory. This time the prohibition became a law, being part of what is now well known as the Ordinance of ’87. The question of federal control of slavery in the territories, seems not to have been directly before the Convention which framed the original Constitution; and hence it is not recorded that the “thirty-nine,” or any of them, while engaged on that instrument, expressed any opinion on that precise question.

    In 1789, by the first Congress which sat under the Constitution, an act was passed to enforce the Ordinance of ’87, including the prohibition of slavery in the Northwestern Territory. The bill for this act was reported by one of the “thirty-nine,” Thomas Fitzsimmons, then a member of the House of Representatives from Pennsylvania. It went through all its stages without a word of opposition, and finally passed both branches without yeas and nays, which is equivalent to a unanimous passage. In this Congress there were sixteen of the thirty-nine fathers who framed the original Constitution…This shows that, in their understanding, no line dividing local from federal authority, nor anything in the Constitution, properly forbade Congress to prohibit slavery in the federal territory; else both their fidelity to correct principle, and their oath to support the Constitution, would have constrained them to oppose the prohibition.

    Lincoln would not have engaged the Constitutional understanding of the Founding generation in such depth, on so many occasions (these and others; go look up any of the Lincoln-Douglas debates) had he thought it merely an academic matter. I believe the historical record will show that Lincoln had graver objects in mind than securing “libertarian funding.”

    As to the Founders themselves, did they want themselves and their posterity to be governed by their work at Philadelphia in 1787? The best clue that they did is that they wrote the rules down — itself a revolutionary approach compared with the unwritten and evolving British constitution. An additional clue is that they wrote down what they meant, and recorded and preserved their disputes. The Federalist Papers, originally written as op-eds to argue for adoption of the Constitution, were republished repeatedly in bound volumes. James Madison, the last of the major Founders to die in 1836, left for posthumous publication his notes on the Constitutional Convention, in order to leave a historical record for future generations of the debates that led to the Constitution’s final form.

    A page of history, Oliver Wendell Holmes once observed, is worth a volume of theory. Sadly, it was Holmes’ generation that initiated the mid-20th-century forgetting of our constitutional inheritance, which originalism arose as a school of thought to rediscover. But I would recommend to Deneen that he consider Holmes’s advice rather than his example before attempting to apply to the majestic history of American constitutionalism the tools of Google.

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