Did Our Founders Fail Us?

Hell, no.  If anything, we have failed them.

They were, first, citizens, and fully engaged.  Are we?

What I wrote over the past three weeks was forced through the prism of hindsight, the glare of which is harsh and unforgiving.  They, of course, were creatures of their own time and circumstances—which makes what they managed to accomplish all that much more remarkable.

Without question, they were White, privileged, and propertied, very much products of the imperial culture they abandoned.  They were also educated, well-read, and deep thinkers, befitting the Age of Enlightenment in which they were formed.  The principal architects of our Revolution and Constitution—Paine; Jefferson; Franklin; Adams; Madison; and Randolph were at the head of the class—were naturalists, realists, and leaned toward agnosticism.  All three of the authors of the Federalist Papers—Madison, Alexander Hamilton, and John Jay, writing collectively and anonymously as “Publius”—believed in a strong, if well-checked, national government, disagreeing only over the details.

They also had a healthy appreciation for our human imperfections.  As I wrote, what they forged after nearly five months of self-imposed house arrest in Philadelphia was the product of dirty and difficult compromises.  The fresh nobility of their beliefs had been tempered by a six-year experiment in confederation that was a dismal failure.  Yes, friends, they were “politicians”—those accursed beings of whom we speak so disdainfully today, who lower themselves to step forward and largely volunteer to engage in the dirty business of delegated self-government.  (I’ve told the story of how one of my idols, the late Barbara Jordan, carefully distinguished between “professional politicians” and “politicians.”  Those we hire belong to the former category, she explained; “We the People,” to the latter.  One of the most serviceable definitions of politics, therefore, comes from the French Impressionist Paul Gaugin:)

Politics is the art of slicing the cake so everyone thinks he received the largest piece.

We cheapen that art to our short-term detriment and our long-term peril

For my money, their genius lay in what they failed to get done the first time around: the first 12 Amendments to the original Constitution, which became 10, as championed by Madison and the rest of the Virginia delegation in the first Congress.  This “Bill of Rights” was the greatest national articulation of individual rights, inalienable against any other instrument of humankind, since the Magna Carta.  It proclaims to guarantee and reserve to each of us to be free

  • First, from laws interfering with our ability to speak; publish; worship; peaceably assemble; and petition our government for a redress of grievances.
  • Second, to keep and bear arms as part of, a well-regulated militia.
  • Third, from having troops quartered in our homes unlawfully.
  • Fourth, from unreasonable searches and seizures without demonstrated probable cause.
  • Fifth, from being charged with a crime without benefit of a grand jury; from being tried for the same crime twice; from involuntary self-incrimination; from having your property taken without just compensation; or otherwise being deprived of your life, liberty, or property without due process of law.
  • Sixth, to be guaranteed legal due process, including a speedy and public local trial by a jury of your peers; to be confronted with the charges and witnesses against you; and to be assisted by counsel.
  • Seventh, to be entitled to a jury trial in civil suits brought under common law.
  • Eighth, from excessive bail, excessive fines, and cruel and unusual punishments.
  • Ninth, to have other, unspecified rights “retained by the people” protected from denial or disparagement when enumerated constitutional rights are interpreted.
  • Tenth, to reserve to the states or ourselves powers not delegated to the United States nor prohibited to the States by the Constitution itself.


As an aside, back when I was earning degrees in Political Science and American History it seemed like every week a Poli-Sci doctoral candidate was publishing a thesis finding that, upon being presented a copy, average Americans interpreted our Bill of Rights as some sort of seditious propaganda.  Given that you can find videos on YouTube where a periwigged imposter—with Brooklyn accent—portrays Tom Paine as pro-religion and anti-immigrant, I’m not confident we’ve made much progress.

They’ve all played a constructive role in our durability—if interpreted reasonably—but I propose it is two of the five guarantees of the First Amendment that have kept us from devolving into another third-rate banana republic: speech and religion.  Having fled from a monotheistic monarchy that was sparing no effort to find and punish them and their fellow basement pamphleteers (Google “Committees of Correspondence”), these were high on our founders’ list of priorities.  Being enlightened, they already knew and appreciated two lessons of history

  1. The greatest detours in the multi-millenial march toward civilization revolved around official disagreements over theology, usually backed up with weapons; and
  2. Stifling public expression was the stock-in-trade of tyrants.

Pre- and post-colonial legislative experience deepened the first lesson.  In 1775, nine colonies had established religions—six Anglican and three Congregational—and others had in place restrictions on other faith practitioners, principally Baptists, Catholics, and Jews.  A battle over establishing state support for a religion or religions raged in Virginia, the birthplace of the Declaration of Rights, for six years.  Taking advantage of his adversary Tom Jefferson’s posting to France, Patrick Henry (already our First Gerrymanderer) introduced a “multiple establishment” bill that provided for an annual tax to support the Christian religion or “some Christian church, denomination or worship.” It was supported by many of the most powerful men in the Commonwealth’s Legislature and backed by Episcopalians, Presbyterians, and Methodists.  Jefferson’s ally Madison, joined by Baptists and evangelicals, fought back.  Madison penned a “Memorial and Remonstrance Against Religious Assessments” and took his show on the road, along with an evangelical preacher or two.  Over 11,000 Virginians signed petitions opposing Henry’s “compromise,” so Jefferson’s non-establishment Bill No. 82 passed in January 1786, 60-27

Fascinating Postscript:  As I noted in the first installment, the delegates left Philadelphia without adopting a Bill of Rights.  Edmund Randolph and most of the rest of Virginia’s delegates were unhappy; apparently, Madison wasn’t—at first.  When the Virginia convention met to consideration ratification, he argued that a federal statement of rights wasn’t necessary—since Virginia already had one.  Pro-Bill of Rights delegates traded support for ratification for Madison’s pledge to champion the issue in Congress.  He did, and the rest is history. See, that’s how it’s supposed to work: debate; discourse; decision.

Our infant Republic had one other key factor going for it: geography.  Two vast oceans and accommodating neighbors to the north and south—at least, after the Alamo thing, the Mexican War, and taking over the California lease—gave us a wide margin of error with which to conduct our little experiment.  Save for the odd Japanese sub or barrage balloon and the ethereal missile math of the Cold War, the events of September 11, 2001 were the first demonstration to most of us that our enemies were within reach.  We’re citizens of Earth now and much more easily perceived as the school-yard bully, so we have to do that calculus.

I’m persuaded that, once they’d absorbed how incomprehensibly the world has changed in 225 years, what would anger our forebears most is how slow and painful progress was, and how little we’ve done since to improve upon what they built.  They risked their lives, their freedom, and their fortunes.  Too many of us today can’t be bothered to risk $.46 on an absentee ballot.

So, let’s honor their memory and their legacy by getting to work, all of us, to fulfill their promises.  Three good places to start:

  • Stains of Discrimination.  We can lay no claim to being the civil and human rights example for the planet, let alone maintain our insistence on being “exceptional,” until we acknowledge and atone for our past sins.  I think a constitutional convention is the context required to erase the race; gender; class; origin; and faith-based distinctions I’ve outlined, with which we’ve struggled with for so long.  We have to heal before we can all truly prosper.  Maybe President Mandella and Archbishop Tutu can help us reconcile matters before they join the heavenly host.
  • Buy the Vote!  We have stood by and allowed to be created an electoral and governance environment where truth is the first casualty, and the officeholder and her policies are indentured to billionaire contributors and interests—because we demand honesty but refuse to pay to get it.  In every election since 1980, the Republican candidate has promised the mathematically impossible: (1) Cut taxes; (2) Increase defense spending; (3) Reduce the size of the federal government; and (4) Balance the budget.  And they got away with it; the latest has already been declared a “debate winner.”  In that time, only the first Democrat has balanced the budget.  Both spending and the size of the federal government increased under all three Republicans, and two out of three of them raised taxes.  The last one didn’t, and we know how that’s turning out.
  • Corporate Speech.  Finding out that all means of public expression are owned by 29 corporations would be hard for them to swallow.  Learning further that they’re pretty much legally untouchable and unaccountable for what they do with their free public licenses would be bad enough.  Discovering that the rights they designed to protect the truthful from the mighty have been conferred on legal fictions, behind which the wealthy and well-positioned can hide their efforts to take and hold power?  Well, I can’t say how they’d react—but if it can be arranged I’d like to be there

Over the next month or so, with malice toward none and charity toward all, I’ll have some suggestions to make on how we might go about redressing some of these grievances.  It’s not a walk in the park, but not impossible, either—if we’re up to it.

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