We Need To Declare Independence from the Founding Fathers

Washington Post columnist Paul Waldman is one of the most sensible people writing about politics today. (Is it a coincidence that I almost always agree with him?) This Fourth of July, he advises us to respect the Founding Fathers but not worship them (and not pretend to worship them like some of our most prominent right-wingers do):

Two hundred and forty-six years ago, Americans did something extraordinary, declaring their independence from a colonial rule enforced from a great distance with the cruel and arbitrary hand of oppression. And now it’s time for us to declare our own independence, from Founding Father fetishism.

This is not a call to repudiate the men who signed the Declaration of Independence and crafted the Constitution. We don’t have to tear down every statue of them (though frankly the statues don’t do anyone much good), or cast them only as villains in our national story.

But we need to liberate ourselves from the toxic belief that those men were perfect in all things, vessels of sacred wisdom that must bind our society today no matter how much damage it might cause.

As we’ve seen recently, the American right has found in the framers an extraordinarily effective tool with which they can roll back social progress and undermine our democracy. It may have found its most ridiculous manifestation in the tea party movement that emerged when Barack Obama was president, when people started prancing around in tricorn hats and every Republican was supposed to have a favorite Founder. But today it has gone from an affectation to a weapon, and a brutally effective one.

We saw it in the recent Supreme Court decisions that supercharged the legal philosophy of “originalism” on abortion and guns. Reproductive rights, said Justice Samuel A. Alito Jr., are neither found in the explicit words of the Constitution nor “deeply rooted in the Nation’s history and traditions,” so they don’t exist as rights. As for states that want to regulate guns, said Justice Clarence Thomas, only regulations that have “a distinctly similar historical regulation” from the 18th century will be allowed. The America of 1789 becomes a prison the conservative justices can lock us all in whenever it suits them.

Originalism was a scam from the start, a foolproof methodology for conservatives to arrive at whatever judicial result matches their policy preferences: Cherry-pick a few quotes from the Federalist Papers, cite an obscure 1740 ordinance from the Virginia colony one of your clerks dug up, then claim that scripture leads us inexorably to only one outcome.

By happy coincidence, that outcome is always the one Republicans seek. Anyone who disagrees, or who shows how absurd the right’s historical analysis is even on its own terms, simply isn’t respecting the divine will of the framers.

I am no spirit medium, able to communicate with the framers through the mists of time, and neither is anyone on the Supreme Court. But I suspect they themselves would find the originalist project as practiced on the right to be utterly absurd. Imagine you could travel back and describe to them the idea that hundreds of years hence we’d all be bound to their utterances and the condition of their society. They’d probably say, “That sounds insane.”

But this is the conceit of today’s right: The Founders were essentially perfect, and only we conservatives are capable of interpreting their will.

One of the lies conservatives tell — and to which they cling all the more fiercely in the face of new understandings of history — is that the founding and the men who drove it were straightforward and easy to understand.

But like the country they shaped, they were complicated. They were brilliant and visionary, and weak and compromised. It does not diminish their accomplishments to see that they were human beings.

So what do you do about a figure such as Thomas Jefferson? He had one of the most extraordinary minds of his age, capable of crafting brilliant works of political philosophy we read to this day and designing structures that still stand. Yet he also owned other human beings.

The answer conservatives have is that we must shield our eyes from Jefferson’s shortcomings (along with those of the other enslavers among the Founders). If you’re Gov. Ron DeSantis of Florida, you bring public school teachers to a “civics education” seminar where they’re told to instruct children that Jefferson and George Washington were principled in their opposition to slavery; maybe the kids won’t bother asking why that opposition was never so firmly held that it extended to the men, women and children they held in bondage.

But trust me, kids can handle complexity. They want complexity. They walk every day through a rapidly changing world, and they deal with that change much better than adults do.

That’s the thing about America: It’s all about change, and always has been. At its best, it’s about imagination, and dynamism, and progress. That’s what it was in 1776, and that’s what it is now.

We are a country filled with achievements and shortcomings, virtues and vices. We have more Nobel Prize winners than any other nation, yet we’re the only highly developed country that doesn’t provide health coverage to all its citizens. We invent new sports and musical genres and see them spread throughout the world, yet alarmingly few of us speak more than one language. People everywhere thirst for American culture and dream of coming here, yet they look at our unreal levels of carnage and don’t understand how we can live in a society drowning in guns.

I’ve never been more fearful for the future of America than I am today; there are good reasons to believe that the democracy we began to fashion two and a half centuries ago may not survive the next decade. And the people most eager to strangle it are the same ones who most loudly proclaim their devotion to the Founders.

So we need to liberate ourselves from those men. We should study them, and understand them, and honor the great things they did. But they were not gods. They can’t take us to a future of freedom and justice. We have to do it for ourselves.

A Few Immediate Reactions to Our Renegade Right-Wing Supreme Court’s Latest Dictate

From Mark Joseph Stern of Slate:

The Supreme Court’s fourth and final opinion of the day is in Bruen. In a 6–3 opinion, [Clarence] Thomas writes that New York’s strict limits on the concealed carry of firearms in public violates the Second Amendment.

Thomas’ opinion for the court dramatically expands the scope of the Second Amendment, blasting past ostensible restrictions laid out in Heller to establish a new test that will render many, many more gun control laws unconstitutional.

Before today, about 83 million people—about one in every four Americans—lived in a state that strictly limited concealed carry to those who had a heightened need for self-defense. Now, zero people live in such a state.

Thomas’ opinion for the court suggests that judges may NOT consider empirical evidence about the dangers posed by firearms when evaluating gun control laws. They may only ask whether a modern regulation has some analogue that is rooted in American history.

It’s difficult to overstate how devastating Thomas’ opinion is for gun control laws. This goes so, so far beyond concealed carry. The Supreme Court has effectively rendered gun restrictions presumptively unconstitutional. This is a revolution in Second Amendment law.

From Paul Waldman of The Washington Post:

Just getting started reading the gun decision, but every sentence so far makes clear what a joke and a scam “originalism” is. It continues to amaze me that anyone takes it seriously.

It’s just one assertion after another about how what people thought in 1790 is sacrosanct, except when it isn’t, but also here’s a novel way to think about 1790, but also that doesn’t matter either. It’s Calvinball as legal reasoning. The bad faith is just incredible.

[Note: Calvinball is a game invented by Calvin and Hobbes. Calvinball has no rules; the players make up their own rules as they go along.]

From yours truly and Matt from the UK:

Isn’t the entire problem here that you’re paralysed by your constitution, because it makes the question into exegesis of this supposedly infallible document, rather than actually analysing the problem and considering what to do about it?

Excellent point. We are paralyzed by a document that’s 230 years old and difficult to amend. But we are also paralyzed by right-wing judges (i.e. politicians) who use this vague notion of “originalism” (what the founders intended) to justify their contemporary political beliefs.

Yes, but then ‘originalism’ is possible because of the written form. Without one, my country has no equivalent paralysis. Plenty of our own constitutional problems, of course, but they don’t really result in regular spree killings in schools.

Yes, having a written constitution is clearly a constraint, being old & difficult to amend adds to that basic constraint, and having a Supreme Court with too much power & too many political hacks issuing dictates makes it even worse. (My answer assumes there can be degrees of paralysis.)