American Dialogue: The Founders and Us

by Joseph J. Ellis

Some men look at constitutions with sanctimonious reverence, and deem them, like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I know that age well; I belonged to it, and labored with it. It deserved well of its country….But I know also that laws and institutions must go hand in hand with the progress of the human mind….We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain under the regimen of their barbarous ancestors.

In a long memorandum entitled “Attack on the American Free Enterprise System” (1971), Powell laid out his blueprint for “guerrilla war” to capture the citadels of liberal influence in academia, the media, and the courts. It began with a steady flow of money from the wealthiest members of the corporate elite, which would then be funneled through philanthropic foundations—thus “dark money”—to newly created think tanks explicitly committed to conservative or libertarian principles. Over the next decade, the Heritage Foundation, the American Enterprise Institute, and the Cato Institute became the institutional embodiments of Powell’s strategy. In 1982 a $5 million start-up grant from the Olin Foundation created the Federalist Society at Yale as a network for conservative law students, lawyers, and judges. The legal principle binding its members together was originalism.

Whatever useful purposes such illusions might have once served, over the past half century the scholarship on the founders and the blatantly political character of the Supreme Court makes them untenable. To repeat, the American founding, most especially the drafting and ratification of the Constitution, was always a messy moment populated by mere mortals, whose chief task was to fashion a series of artful political compromises. And the Supreme Court had never floated above the American political landscape like a disembodied cloud of heavenly wisdom. It always was a political institution comprised of human beings with no special connection to the divine. Both illusions were now exposed as childish fables.

There is also an unspoken understanding among judges on both sides of the political divide that the court should only rarely impose its verdicts in opposition to widespread public opinion, though both Brown and Citizens United are exceptions to this rule. For example, liberals were predisposed to wait for a sufficient number of lower court decisions on gay rights before ruling on that controversial question. And conservatives recognize that it would be politically dangerous to deploy their originalist arguments against Brown or a case questioning the constitutionality of Social Security.

Heller was not some surprising airburst in the night but the culmination of a decades-long campaign orchestrated and funded by the National Rifle Association (NRA) to make gun ownership a right of citizenship. In that sense, Heller was to the conservative cause what Brown was to the liberal cause. Just as the NAACP waged a long legal and political battle against racial segregation that culminated in the Supreme Court decision that ended segregation by race in public schools, the NRA waged a similar and more heavily funded campaign to remove all legal restrictions on the right to purchase, own, and carry guns.

Throughout the 1960s, polls showed that between 50 and 60 percent of Americans favored an outright ban on handguns. Moreover, judicial opinion on the Second Amendment was considered “settled law,” meaning that all the legal precedents, most recently synthesized in U.S. v. Miller (1939), found that the right to bear arms in the Second Amendment was conditional upon service in the militia and therefore did not constitute a nearly unlimited individual right. When Chief Justice Warren Burger, a conservative appointed by Richard Nixon, was asked if the Second Amendment guaranteed open-ended access to guns, he expressed amazement: “This has been the subject of one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public by special interest groups that I have ever seen in my lifetime.”

One wing of the conservative campaign to capture public opinion focused its efforts on the law schools. In the 1990s the NRA paid three lawyers nearly $1 million to write thirty articles for law reviews, all designed to generate an alternative body of legal scholarship. Unlike historical journals, where submissions must undergo peer review, law school publications are run by students, so there is no editorial screening provided by academic professionals in the field. The result was a new wave of legal and historical scholarship of dubious accuracy, multiple misquotations, and sometimes comical conclusions that its advocates began to call the “Standard Model.” The term described a set of shared historical distortions that soon began to invoke, then to celebrate, an unambiguous right to own guns.

II. It also became received wisdom that the Second Amendment was in part motivated by bitter memories of British patrols going house to house during the American Revolution, disarming potential rebels. But there is no record of any such confiscations of muskets ever occurring before or during the war. Patrick Henry became a new hero, and the NRA paid $1 million to endow a chair in his name at George Mason Law School with a plaque quoting Henry’s famous words: “the great object is that every man is armed.” Unfortunately, Henry never said that. The misquotation comes from a speech in which Henry was complaining about the excessive cost of arming a large militia. Nor did Henry ever say, as some publicity for the endowed chair claimed, that “they want to take away your guns.” At the Virginia ratifying convention he did say, reportedly to gales of laughter, “They’ll take your niggers from you.”

That said, it was in fact possible to render an originalist interpretation of the Second Amendment in Heller. There is no need to conjure up such an opinion because Justice John Paul Stevens wrote it in his impassioned dissent. “The Second Amendment was adopted to protect the right of the people of each of the several states to maintain a well-regulated militia,” he declared. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several states. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.

Scalia began his opinion in Heller by distinguishing between what he called the “prefatory clause” and the “operative clause” of the Second Amendment. He then declared that “the former does not limit the latter grammatically but rather announces a purpose.” It soon became clear that this distinction was a verbal version of judo with more than acrobatic implications, for it redefined the syntax of the Second Amendment. The words “A well regulated Militia, being necessary to the security of a free state” were transformed into a merely rhetorical overture. In Scalia’s parsing of the text, the militia requirement imposed no limitations on “the right of the people to keep and bear arms.” The fact that announcing a purpose explicitly imposed limiting conditions was lost in translation. The Scalia version of the Second Amendment, much like the plaque at NRA headquarters, lopped off the militia requirement as an irrelevant prologue, leaving only the individual right to bear arms as the full and true meaning of the amendment. The game is essentially over at the very start in Heller, for with this singular act of editorial magic, the stated rationale for bearing arms disappears.

database survey of the published correspondence for the eight most prominent founders revealed that they used the words “bear arms” 150 times, on all occasions referring to service in the military. To be fair, not that it would have made any difference, the survey was not available at the time Scalia wrote Heller.

Scalia’s opinion in Heller openly and unapologetically violated those core convictions of the historian’s craft. He began with the presumption that the right to bear arms was a nearly unlimited individual right, assembled evidence to support that conclusion, and suppressed or dismissed evidence that did not. Nor did he attempt to conceal what he was doing. Indeed, he subsequently called attention to the intellectual agility and debater-like skills required to make his case. The problem that Scalia faced in Heller was that the preponderance of historical evidence went against his case, which was all the more reason why he was so pleased with his acrobatic performance.

great sin of the originalists is not to harbor a political agenda but to claim they do not, and to base that claim on a level of historical understanding they demonstrably do not possess.

At a time when America’s infrastructure is aging badly, when whole regions of rural America are unprepared to compete in a globalized economy, when both the middle class and the coral reefs are eroding, a national response to those challenges will prove extremely difficult to orchestrate because a tiny group of judges will say the federal government cannot perform that role. They will express regret at the unfortunate implications of their decisions but claim that their hands are tied. The fate of 320 million Americans will be decided by five judges who, citing nineteenth-century dictionaries to translate words from an eighteenth-century document, misguidedly claim they are only channeling the wisdom of the founders.

How can a republic, which is based on consensus, also be an empire, which is based on coercion? Or in our current context: How can a democracy function as an imperial power?3

assuming as we do that it refers to foreign nations like France or China, we misconstrue one of Washington’s main points; namely that managing westward expansion was the central pillar of American foreign policy for as long as it took to occupy the continent. What we think of as American domestic policy was then regarded as foreign policy, under the supervision of the secretary of state until well into the nineteenth century.

My first wish is to see this plague to Mankind [war] banished from the Earth….Rather than quarrel abt territory, let the poor, the needy, & oppressed of Earth, and those who want Land, resort to the fertile plains of our Western Country, to the second Land of Promise, & there dwell in peace, fulfilling the first great Commandment.8 In this version of American expansion, the west became an American asylum rather than an empire, indeed a refuge for those foreigners seeking to escape from the oppressive monarchies across the Atlantic.

Washington had invested all his enormous prestige in a just resolution of the Native American dilemma, making it the highest priority during his first term as president, but he had failed completely, and he knew it. For a man accustomed to winning all the big battles, often against the odds, this defeat haunted him to his dying days. And he was convinced that the Indian side of this American tragedy would never make it into the history books: “They, poor wretches, have no Press thro’ which their grievances are related; and it is well known that when one side only of a story is heard, and often repeated, the human mind becomes impressed with it, insensibly.” It took almost two centuries for history to reverse that verdict.29

Since foreign policy required the new American nation to speak with one voice, and since Washington believed that he had been duly elected to provide that voice, he found himself living a central paradox of the early republic: what was essential for a viable and coherent foreign policy was ideologically at odds with what the infant republic claimed to stand for.32

As grounds for impeachment, Bache published a series of forged documents leaked by British officials during the war in order to undermine Washington’s authority. The documents rather preposterously claimed that Washington had been a covert British spy who fully intended to betray the cause but was beaten to the punch by Benedict Arnold. It is difficult to know whether Bache or anybody else believed such lunacies, but they accurately reflected the fanatical partisanship currently at play. What has come to be called “fake news” had just entered the political and diplomatic equation.

Monroe took Jefferson’s message to heart and began instructing members of the French court to pay no attention to passage of the Jay Treaty, for it was the deranged act of a semi-senile man who would soon be gone from office. When word of this treasonable piece of treachery reached Washington, he immediately demanded Monroe’s resignation.

This government, the offspring of our own choice uninfluenced and unawed, adopted upon full investigation & mature deliberation, completely free in its principles, in the distribution of its powers, uniting security with energy, and containing within itself a provision for its own amendment, has a just claim to your confidence and your support….The very idea of the power and right of the People to establish Government presupposes the duty of every Individual to obey the established Government.

Put simply, Washington’s words require the recognition that the United States had adopted a national government before it was a unified nation. The opening words of the Constitution—“We the people of the United States”—were more a wish than a reality in late-eighteenth-century America. As one historian so nicely put it, the Constitution was “a roof without walls,” meaning a political structure designed to facilitate a national ethos that did not exist. Washington’s plea for all citizens to regard themselves as Americans united under a single government can be comprehended only within that prenational context.

Congress made a reading of the Farewell Address mandatory on Washington’s birthday every year, and its most salient words became creedal convictions in the American catechism, to be memorized by all citizens, thereby enjoying the unique status of a classic so seminal that it defied disagreement or even discussion.

Therefore, it was perfectly in character for Washington to leave instructions in his will not to bury his body until three days after he died, believing as he did that Jesus could not possibly have risen from the dead and so was probably buried alive. There were no ministers or priests in the room during his final hours, only well-intentioned doctors whose barbaric bleedings and purgings made his passing an agony. Artists quickly produced paintings and prints depicting his ascension to heaven alongside admiring angels. For Washington, however, there was no such thing as heaven, either on this earth or elsewhere. A realist to the end, he believed he was going, as he put it, “to the dreary mansion of my ancestors,” which meant into the ground.

More specifically, the end of the Cold War left the United States as the undisputed superpower. This claim was not a rhetorical exaggeration. In 1991 the United States generated 26 percent of global GDP with less than 3 percent of the population. The dollar was the global currency; English was the global language. Militarily, America spent more on defense than the next twenty nations combined, projecting its power abroad with over 600,000 combat troops and support garrisons in more than forty countries. No imperial power in recorded history, neither the Roman empire nor the British empire at its zenith, enjoyed such supremacy.

Second, in the debate leading up to the war, Bush claimed the sole authority to commit American troops as commander in chief, a continuation of expanded executive power during the Cold War, in open defiance of language in the Constitution vesting that responsibility and role in Congress.

September 11, 2001. The attack by Islamic terrorists on 9/11 represented the end of America’s “splendid isolation,” the first assault on the mainland of the United States since the British invasion during the War of 1812.

what might be called the diplomacy of catharsis, the administration of President George W. Bush channeled this anxiety into support for an invasion of Iraq by postulating a link between 9/11 and the regime of Saddam Hussein. As America’s top counterterrorist expert Richard Clarke described the decision, it was as if, in response to the Japanese attack at Pearl Harbor, the United States had invaded Mexico.

The prevailing belief that Islamic terrorism represented an existential threat to national security comparable to a nuclear exchange during the Cold War was rationally ridiculous but, in the immediate aftermath of 9/11, emotionally compelling. Defense spending grew exponentially as a vast new Homeland Security and intelligence bureaucracy materialized almost overnight. All plans for reductions in the defense budget after the Cold War evaporated. The national debt soared past $12 trillion and kept climbing after the Great Recession of 2008.

The American political recipe for success has proven unpalatable for people and places with different histories, religions, and political traditions.

there was no peace in part because the United States made going to war easy. It was supposed to be hard, what Washington had called “the dernier resort,” requiring a declaration of war by the full Congress. The last time the United States went to war as the Constitution stipulated was December 8, 1941. The common practice was for the Senate to delegate the authority to the president, who then made the decision as commander in chief.

Nor was any public sacrifice required. Since President Richard Nixon ended the draft in 1973, the burden of military service has fallen on a small minority of working-class men and women. Nothing like the mass protests against the Vietnam War occurred in the post–Cold War era, for the simple reason that two generations of middle-class, college-age citizens have never had to factor military service into their personal agendas. A serious but unspoken moral dilemma lurks beneath this convenient arrangement, when the chief beneficiaries of America’s status as the dominant world power are immunized from obligations that come with those benefits.

An analogous disconnect has also been institutionalized by concealing the costs of war. The budget for the military campaigns in Iraq and Afghanistan, for example, was kept on a separate ledger, as if on a credit card. Instead of a tax increase to cover a portion of the costs, President Bush pushed through a major reduction in taxes, thereby passing the bill (or buck) to posterity. Such financial and accounting chicanery reinforced the larger pattern of deception in the post–Cold War era, making war almost painless: it is not declared, few have to fight, and no one has to pay. Only a sm...

It does seem clear that the Middle East has become a disproving ground for assumptions about the inevitable triumph of the liberal order. And that painful realization raises larger questions about the wisdom of military interventions that require the transformation of entire societies, usually a long-term, expensive, and thankless task for which the short attention span of the American public is unprepared.

Lurking in the decline-and-fall syndrome is the implication that all empires, like all mortals, must come and go, and that the chief reason for their demise is that the world is an inherently unmanageable place that eventually devours the strength of any and all superpowers that history selects for what is, in effect, an impossible mission. Based on the first quarter century of its reign as the sole superpower, the United States, which tends to regard itself as the “exceptional nation,” is not proving an exception to one of history’s most enduring narratives.

First, the United States has committed the predictable mistakes of a novice superpower most rooted in overconfidence bordering on arrogance; second, wars have become routinized because foreign policy has become militarized at the same time as the middle class has been immunized from military service; and third, the creedal conviction that American values are transplantable to all regions of the world is highly suspect and likely to draw the United States into nation-building projects beyond its will or capacity to complete. If we ever have a sustained conversation about America’s role in the world, in effect the conversation we did not have at the end of the Cold War, these three lessons learned over the last quarter century should be placed on the table at the start.

His presidential campaign featured the promise to “Make America Great Again” with “Again” deliberately vague. For his white supremacist supporters, it meant before the civil rights movement. For voters in Appalachia and the Rust Belt, it meant before globalization took away their jobs.

And by renouncing American commitment to the Paris Accords that set limits on carbon emissions, endorsing the British exit from the European Union, questioning the viability of NATO, and threatening to withdraw from the North American Free Trade Agreement, Trump effectively announced that the United States was relinquishing its role as the designated superpower.

It is also clear that Trump embodies, in almost archetypical form, the demagogic downside of democracy. In the ancient world, for example, Thucydides warned about the vulnerability of the Athenian citizenry to the jingoistic rhetoric of Cleon. Cicero delivered a similar warning about the conspiratorial tactics of Catiline, which threatened the survival of the Roman Republic. Washington echoed the same message in his Farewell Address, lamenting the manipulation of popular opinion by the Republican opposition to the Jay Treaty and the intrusion of inflammatory domestic disputes into foreign policy.

Throughout history, then, the fate of nations with political frameworks based on public opinion has always been haunted by the specter of charismatic charlatans with a knack for exploiting popular fears. In that sense, the Trump presidency, while wholly unexpected, was eminently predictable, almost overdue.

Much like meteors streaking across the horizon, demagogues tend to enjoy only limited life-spans, so the Trump presidency is likely to resemble the proverbial blip on the historical radar screen.

Trump has exposed the deep pools of isolationist sentiment that always lurked beneath the surface in the rural regions of the American heartland, now raised to relief by residents who see themselves as victims rather than beneficiaries of the globalized marketplace America is defending. Moreover, the very fact that a person with Trump’s obvious mental, emotional, and moral limitations could be chosen to lead the free world casts a dark shadow of doubt over the credibility and reliability of the United States as the first democratic superpower.

When Donald Trump, speaking as a presidential candidate, proposed that the United States should have “taken the oil” before exiting Iraq in 2009, the very suggestion produced incredulous criticism from all sides, and he quickly dropped the idea. As a former colony in an anti-imperial age, the United States cannot do colonization.

When the ledger is closed on the military budget for Iraq and Afghanistan, the cost will approach $4 trillion. Such a sum, if spent on domestic priorities, could have shored up Medicare for a generation and paid for the restoration of America’s aging infrastructure. These are difficult trade-offs to justify in a democracy. Moreover, as already noted, a sizable minority of America’s working class are victims of the very global order the United States is spending so much to sustain, the very constituency that made Trump’s presidency possible.

What, then, did these fully flawed patriarchs achieve? With the advantages of hindsight, we can say they made three major contributions to modern political thought of enduring significance. They also failed to resolve two deep-rooted problems that, in the end, must be listed as tragedies.

On the triumph side of the ledger, they created the first nation-size republic.

Second, they created the first wholly secular state.

Third, they rejected the conventional wisdom, agreed upon since Aristotle, that political sovereignty was by definition singular and indivisible and must reside in one agreed-upon location.

The two conspicuous failures of the revolutionary generation involved Native Americans and African Americans, more specifically the inability to avoid Indian removal, a covert form of genocide, and the failure to put slavery on the road to extinction before it necessitated the bloodiest war in American history to end it. The