, November 05, 2010
(view all comments by cmottwoolley)
Jill Lapore's slim volume The Whites of Their Eyes: The Tea Party’s Revolution and the Battle over American History is a masterpiece. As she demonstrates, to suggest as the Tea Party does that the Constitution and the Declaration of Independence lie within the penumbra of Scripture and have one meaning only, forever, misapprehends what the Founders were about.
As Lepore notes, Sarah Palin speaking to Bill O’Reilly has said: “They’re [the Founders] quite clear that we would create law based on the God of the Bible and the Ten Commandments.” Though sometimes forgotten, the duty of all American citizens to "deliver up" fugitive slaves remains in the body of our Constitution to this day. This is not overlooked as Lepore recreates what it was like to be an eighteenth century American;not surprisingly, Lepore is glad she does not live in that century. Were its precepts today legitimate, this review would be an impossibility: women do not write books, for, according to one well known writer of that foregone era: " . . . a woman's preaching is like a dog's walking on his hind legs. It is not done well; but you are surprised to find it done at all." Put another way, we live in the twenty first century and it defies the natural order of things to expect dogs to behave like women, though we can be given to understand that one Tea party member is convinced some animals have human brains.
Lepore writes: “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 . . . . That they wanted to preserve religious liberty by separating church and state does not mean that they were irreligious. They wanted to protect religion from the state, as much as the other way around . . . . if the founders had followed their forefathers they would have written a Constitution establishing Christianity as the national religion.”
This underscores Lapore's theme: our founders did not follow their forefathers; rather our founders brought forth a new nation, not, as the Tea Party intimates, a nation reborn. But this limited purpose is not enough for the Tea Party. That this is so is evident from discussions Lapore recounts with Tea Party leaders, a party which appears determined to go beyond the limited purpose of our founders. To illustrate the point, Lepore quotes Glen Beck “When you read these guys [the founders] . . . it’s like reading the Scriptures. It’s like reading the Bible.” Of such a trend in 1838, Lincoln said, “I hope I am over wary; but if I am not, there is, even now, something of ill-omen amongst us.” Lepore is more emphatic. As to the dogmatism of absolutist Constitutional interpretation based on the God of the Bible Lepore says: “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.” She might have said as well that it is the stuff of John Brown.
In this regard, I was excited to see at the very outset of Ms. Lepore’s book words spoken by Abraham Lincoln in his 1838 address to the Young Men's Lyceum of Springfield, Illinois: it may be the most provacative narrative of the American Revolution and the Constitution in our history. From that address, quoted by briefly by Lapore, it is evident our Constitution should not be understood to mean more than it does; same applies to the American Revolution itself. Lincoln's 1838 words, words of an American not alive in 1776 or 1787 – stand as a testament to the danger of reading into our founders purpose more than is warranted by historical fact; to do so imperils their accomplishments. Their purpose was to simultaneously break with history yet preserve it. While this may be ambiguous, so too are the founders. Jill Lepore captures this beautifully by citing two lines from a poem new to me: “O, let America be America again – the land that never has been yet.” In a word, the Tea Party would have us all believe we are what we are not in hopes we become what they, not the founders, envisage.
What Lapore demonstrates magnificently is the evolution of our Constitution and our never ending coming to terms with the Constitution's imperfections: the Constitution is not Scripture and cannot be understood to speak of things as such; at best it is an experiment in need of constant nurturing and revision. Unlike Scripture, we have it within our power at any time to amend the Constitution regardless of what God may or may not think about this. This was well stated by Lincoln himself in his Cooper Union Address:
Now, and here, let me guard a little against being misunderstood. I do not mean to say we are bound to follow implicitly in whatever our fathers did. To do so, would be to discard all the lights of current experience - to reject all progress - all improvement. What I do say is, that if we would supplant the opinions and policy of our fathers in any case, we should do so upon evidence so conclusive, and argument so clear, that even their great authority, fairly considered and weighed, cannot stand; and most surely not in a case whereof we ourselves declare they understood the question better than we.
Today we have no duty to "deliver up" slaves even though our Constitution says we do.
There is another recently published book Madison and Jefferson by Andrew Burnstein and Nancy Isenburg which underscores the teaching of Lapore. They write:
"The truth is his [Madison's] interpretation of the Constitution changed over the course of his lifetime, and original intent [the Tea Party doctrine] assumes that Madison’s views were permanently fixed in time. His earliest sense of what the Constitution should mean was expressed in his support for the Virginia Plan and the absolute negative, both of which were rejected. So which Madison do we claim was right? Madison at the beginning of the convention? Or Madison at the end? Or when he was writing his Federalist essays? In 1793, when Hamilton and he were engaged in combat in the newspapers as ‘Pacificus’ and ‘Helvidius,’ Madison deployed one of Hamilton’s Federalist essays against him. In the last stages of the Jay Treaty debate, Madison tried to say that original intent began with the ratifying conventions, and that meaning was not inherent in the Constitution itself but came instead through the exegis of the states, beyond Philadelphia. Madison resorted to this tactic only because the so-called original meaning contained in the Constitution that he had signed did not support his position on the Jay Treaty eight years later. Thus the only way to appreciate Madison’s constitutional thinking is to measure comprehensible changes in his view in response to specific political problems.”
Our founders’ changing understanding of the Constitution is manifest as well in regard to the power of Congress to create a national bank. In 1791, Madison and Jefferson contended Congress had no such power and that any suggestion by Hamilton to the contrary was tantamount to an overthrow of the Constitution itself. By 1812, when Madison was President in dire need of federal funds to wage war, he squarely reversed himself and maintained a national bank was indispensable.
As Lepore notes, the Tea Party makes much of the Tenth Amendment and insists that its command is clear and unambiguous. She explains, to a limited extent, the constitutional history of how the Tenth Amendment came to be. From this, it is evident the efficacy the Tenth Amendment, by design, is not what the Tea party would have us believe. This view is in keeping with most scholars, including Edward A. Purcell, Jr. who has written in Originalism, Federalism and The American Constitutional Enterprise:
“The Tenth Amendment, added shortly after the ratification in 1791, confirmed the Constitution’s inherent ambiguity on the federalism issue. The State ratifying conventions proposed a number of amendments to strengthen the states and restrict congressional powers, especially over such subjects as taxes, commerce, and the military. Although Madison supported their recommendations in order ‘to complete the Federalists’ ratification victory,’ Herbert J. Storing explained, he accepted ‘none of the amendments regarded by the opponents to the Constitution as fundamental.’ Thus, the Tenth Amendment, which affirmed the principle that the central government held only delegated powers, was artfully framed. Its original draft provided that ‘powers not expressly delegated to the United States’ remained with the states or the people. Madison, however, insisted that ‘it was impossible to confine a government to the exercise of express powers’ and that ‘there must necessarily be admitted powers by implication.’ Congress responded by eliminating the word ‘expressly,’ seeming thereby to sanction the principle of implied powers. In that final form, Madison announced, the amendment was ‘superfluous’ and ‘unnecessary.’”
One of the more disturbing features of the Tea Party’s insistence that we “discard all the lights of current experience,” and “reject all progress - all improvement” so as to give effect only to what the founders intended in the eighteenth century is manifest in compromise explained by Burnstein and Isenburg. This compromise is doubly ominous when one considers that Sarah Palin has no favorite founder but “likes” all of them. While drafting the Declaration of Independence, Jefferson had at hand George Mason’s famous Virginia Declaration of Rights. As they explain, both Madison and Jefferson looked up to Mason as a mentor and inspiration. Here is his Declaration of Rights: “That all men are born equally free and independent, and have certain inherent natural Rights, of which they can not by any Compact, deprive or divest their Posterity; among which are the Enjoyment of Life and Liberty, with the Means of acquiring and possessing property, and pursuing and obtaining Happiness and Safety.”
To the modern mind there can be no quibble whatsoever with how Mason framed Virginia’s Declaration of Rights. However, to the eighteenth century mind, as explained by Burnstein and Isenburg, Mason’s Declaration was highly objectionable:
“A protracted debate broke out. The Tidewater planter Robert Carter Nicholas protested its all-inclusive language that ‘all men are born equally free and independent’ could reasonably be interpreted as justification for the emancipation of Virginia’s slaves. Pendleton came up with compromise language, adding after ‘certain inherent natural Rights’ the phrase ‘of which, when they enter into a state of society, they cannot, by any Compact deprive or divest their Posterity’ (italics added). Those few words quieted Nicholas and any others who needed to convince themselves that slaves, as property, had not entered into any compact or joined civil society.” Unquestionably, George Mason is one of our founders yet this willingness to entertain and accept the language just italicized must be and is anathema in the twenty first century. Why then insist the founders got it right? Decidedly, they did not; but they make no claim that they did; theirs was a more perfect, not a perfect, instrument. To the Tea Party, however, God's word and the Constitution are, per force, perfect.
Although Burnstein and Isenburg do not touch upon the fact, it bears noting that it is precisely this distinction (the italicized words above) which Justice Taney utilized in Dred Scott to explain why the Declaration of Independence was simply inapplicable to the Negro in America. He, like the Tea Party, insisted that one must interpret and enforce the words of our founders as written and make no allowance for what Lincoln called “the lights of current experience.”