There is a somewhat interrelated grouping of defensive refrains shot off in succession by all defenders of interventionist statism when confronted with the thoughts and actions of the various Founding Fathers. This includes the very language of the Declaration of Independence, the U.S. Constitution, and even such robust empowering and supportive documents like The Federalist. This “defense” has recently been illustrated quite well—which is to say, horrifically—by a well-meaning letter writer in Las Vegas who took issue with George Mason University economist Walter E. Williams's January 13 op-ed that simply quoted James Madison’s “Bonus Bill” veto to illustrate the fourth President’s very cautious and circumspect constitutionalism. In the process, this letter writer hit nearly all the major themes of a very formulaic apologia for the welfare state and how it is not actually what it fairly obviously is—unconstitutional (or, most generously, “extra” constitutional). This essay will seek to explore each of the elements of this defense in the following order: 1) People who point out that the Founders were not statists are inaccurately reporting their views, 2) even if they were not inaccurately reporting their views, the Founders were not perfect—thus, a lack of perfection makes their constitutionalism imperfect, 3) even the Founders broke their own rules and commitment to their own limited constitutionalism, thus they are even less reliable than previously conceded, or, conversely, more reliable since their deviations are in favor of government power, and finally 4) as such, any other “interpretations” by any Johnny come lately are just as imperfect, or just as perfect. I do not think I have been unfair to this line of reasoning in the foregoing very brief summation. As it is prevalent enough among all sorts of people in our society today, I believe that it deserves some attention and at some modest length.
People who point out that the Founders were not statists are inaccurately reporting their views
Mr. Cohn asserts that Dr. Williams, “quotes James Madison's veto message of a bill constructing roads and improving canals. This is a cherry-picked quote.” Cherry picking—a fallacy of evidentiary selection—is a serious charge and one that can be easy to make with respect to Mr. Madison. For instance, certain so-called historians attempt to prove some manner of original intent for nullification and secession by cherry picking quotes of Jefferson and Madison in the 1798-1799 period, when both were in the political opposition and confronting the Alien and Sedition Acts of the Federalists. But, in order to make the charge of cherry picking actually stick, one needs to point out that Mr. Madison actually did not really opposed road and canal funding at the Federal level, or was a bizarre outlier among his contemporaries and thus quoting him gives his views some inflated importance they do not deserve. Instead, Mr. Cohn jumps completely out of context into the twentieth century to show that General Eisenhower, when President, seemed to think that road construction funded by the Federal government was swell. Ipso facto, Dr. Williams was cherry-picking. This is a very poor argument, but one I have heard and seen innumerable times.
The chief reason it fails logically is obvious. Dwight D. Eisenhower was born in 1890, fifty-four years after James Madison died. Not only were they in no sense contemporaries, but significant intellectual and historical events separated the United States of 1890 and 1836 by an immense chasm—let alone the United States of 1953-1961 when General Eisenhower served as President. Decontextualization is an essential ingredient in the relativistic and subjectivist attack on the authority of the Enlightenment in general and the American founders in particular. Dr. Williams may well have been guilty of cherry-picking quotes (in Madison’s case, he was not), but Mr. Cohn abandons any pretensions at being able to establish that fact by turning to General Eisenhower for proof. The two have nothing to do one another, except in the sense that both were American statesmen and Eisenhower presumably knew something of James Madison. But only a recourse to Madison’s statements and actions—and those of his contemporaries—can establish that Dr. Williams was engaged in a fallacy of evidentiary selection. He was not.
Madison’s veto of the “Bonus Bill” was premised on ideas and thoughts about the constitution that he had made public for many years, most recently in his last annual message to congress (3 December 1816): “And I particularly invite again their attention to the expediency of exercising their existing powers, and, where necessary, of resorting to the prescribed mode of enlarging them, in order to effectuate a comprehensive system of roads and canals, such as will have the effect of drawing more closely together every part of our country by promoting intercourse and improvements and by increasing the share of every part in the common stock of national prosperity.” Congress ignored the President, instead taking the far easier route in just passing the law anyway. So when the bill came to Madison’s desk, and after considering it awhile as he endorsed the objects contained in the measure, he had to veto it and say: “it does not appear that the power proposed to be exercised by the bill is among the enumerated powers, or that it falls by any just interpretation within the power to make laws necessary and proper for carrying into execution those or other powers vested by the Constitution in the Government of the United States.” So while Dr. Williams may have cherry-picked quotes from Franklin Pierce, Mr. Cohn makes a “federal case” out of Mr. Madison’s quotes and authority, and on that score he fails to establish his contention that Madison was misrepresented—and I do no think he could ever successfully make that case unless some previously unknown book surfaces where Madison states opinions at complete variance from everything else he ever wrote.
Even if they were not inaccurately reporting their views, the Founders were not perfect—thus, a lack of perfection makes their constitutionalism imperfect
This argument is sickeningly prevalent and accorded a respect by journalists, politicians, academics, and others that it, in no sense whatever, deserves. Mr. Cohn’s summation of it is all too familiar: “But they were far from [perfect]. Let's not forget that these people said that a black slave was just three-fifths of a person. They also had strong and varying opinions of their own actions. These were the people who trusted the selection of U.S. senators to state politicians rather than the people. They considered women property. So why is Mr. Jefferson's "general welfare" interpretation any more important than Franklin Roosevelt's or Ike's?” This argument starts with a straw-man premise; namely, that people like Dr. Williams are claiming perfection for the Founding Fathers. I know of no one currently writing nationally who argues seriously that the Founding Fathers were perfect. The point is that the Founders held to very different principles than those of the people currently prominent in politics—principles that a minority of Americans still seriously revere and a majority of Americans still pay homage to without necessarily knowing why or what precisely they’re honoring—and that remembering what they stood for and the government they founded on those ideas is important for all of us. And, just maybe, that remembrance might help us successfully navigate out of our current difficulties. No one seriously proposes that we go back to 1789, good and bad.
Not according to Mr. Cohn with his smug and uninformed assertions about the Founders and their world. His history is not even close to being accurate, let alone fair. Take his first claim about the representation accorded to African slaves by the Constitution for Congress and taxation. Yes, slaves were to be counted in apportionment at a three-fifths ration, but Mr. Cohn implies this was done for some sort of nefarious reason related to not viewing African slaves as people. In 1787 this was far from being the prevalent opinion in the South, let alone the rest of the country. The fact of the matter is that Madison argued for all slaves to be counted as full human beings in the Constitutional convention, as an explicit acknowledgement of their humanity. Some of his fellow Southerners wanted them counted as full humans simply to increase their number of representatives in Congress. This placed most Northern anti-slavery delegates in the position of arguing that the slaves should not be counted at all—unless Northern forms of property, like sheep and cattle, were also counted for representation. Their position was that since slaves would not be able to vote or have anything at all to do with the electoral process, "their" congressmen would hardly be representing them. Delegates of Northern regions with few or no slaves saw the Southern position as a cynical move to gain more power in Congress and a larger voice in the selection of the President. So what would Mr. Cohn have preferred? That the slaves to be counted as full humans, but bereft of all rights and merely adding an enhancement to Southern power in the House of Representatives and the Electoral College? Or for the slaves to not be counted at all, formally exiled outside of the body politic at the outset? One can only imagine the results of the former in terms of elections later in the nineteenth century when the pro-slavery argument was in full bloom or the impact of the latter in bolstering that argument with the seeming sanction of the Founders that Africans were not even human enough to be considered in apportionment.
As one can easily see, this question is not the easy, glib, cut and dry matter Mr. Cohn makes it out to be, or the easy club by which to bash the Founding Fathers over the head in order to forget all the things they got right. Slavery as an institution existed long before the Revolution, and when delegates of the states came together in 1787, certain Southern delegates from Georgia and South Carolina made it abundantly clear that failure to compromise and offer certain protections to that institution was a sine qua non to any Union and government they would support. Nearly all delegates saw the creation of a more perfect Union essential to maintaining individual liberty and republican government in North America, and they were willing to pay almost any price to get it. Making temporary concessions to an institution that many of them saw as perishing was preferable to an open break and the creation of a state system resembling that of Europe—with its wars, standing armies, endless debt, and trampled liberties. Mr. Cohn can ridicule them all he wishes, but he is merely engaging in the worst sort of revisionism that fails to take account of the situation and its abundant tragedy.
Even the Founders broke their own rules and commitment to their own limited constitutionalism, thus they are even less reliable than previously conceded, or, conversely, more reliable since their deviations are in favor of government power
“Mr. Jefferson himself had to broaden his constitutional interpretation when he executed the Louisiana Purchase because his critics said he had no power to do so.” This historical example is almost laughably absurd, and one of Jefferson’s most unfortunate self-inflicted wounds. Does one seriously think, on the face of it, that the Federalists actually criticized Jefferson because they believed he was overreaching constitutionally? Even without knowing the specific facts, the very assertion should strike any generally educated reader as odd. And well it might! Jefferson was the one worried he was overreaching in the treaty with Napoleon that ceded the Louisiana Territory to the United States, not the Federalists. Hamilton’s chief complaint about the Louisiana Purchase was that it happened in spite of Jefferson’s policies and actions as President, and thus Jefferson deserved little credit for its consummation. Hamilton was probably correct, but like everyone on the political downside, his criticisms bore the distinct taste of sour grapes.
Jefferson, it should also be noted, was not Madison. James Madison, then Secretary of States, Secretary of the Treasury Albert Gallatin, and the special envoy who signed the deal—James Monroe—all Jeffersonians, thought that as the purchase and cession of territory was contained in a Treaty and not at odds with any provisions of the Constitution, that it was perfectly constitutional so long as the Senate agreed. Jefferson, despite being worried over the matter himself, knew that whichever way he decided would be accepted by his large majorities in Congress. Mr. Cohn would have been far better off to have pointed to the Jeffersonian accommodation to Alexander Hamilton’s National Bank when they took over the government in 1801, but as he did not I will not be forced to make a far more complicated and less effective counter argument against that much stronger piece of evidence of lax constitutional interpretation.
But this argument is again suffused with the previous straw-man premise—that those who revere the Founders consider them perfect demi-gods. If that were actually the case, if Dr. Williams argued that Jefferson were perfect, then any evidence of inconsistency or error—which in Jefferson’s case is easy enough to come up with—would explode the premise and all the things flowing from it. But that, of course, is not Dr. Williams’s contention—or at least I do not believe it is given the article in question. People are flawed, or usually are, and the Founders were (sadly) not immune to this truism of human history. But an individual failure, even if we concede that Jefferson really reversed himself on the Louisiana Purchase, does not automatically invalidate a principle of limited government, or a method of interpreting the Constitution. If that were the case, any hypocrite could at any moment invalidate any principle they publicly proclaimed, and yet I am sure Mr. Cohn would not concede that conclusion for whatever principles he holds dear. In any event, his example is specious, and does not address a real argument, only a straw-man that no one has actually put forward.
As such, any other “interpretations” by any Johnny come lately are just as imperfect, or just as perfect
All of this leads to the subjectivist conclusion of "everyone has interpretations, what makes theirs better?" and the subsequent invitation to disregard the history of the republic and insert whatever you might like to see in its stead. While the Constitution was unquestionably written and adopted to provide the republic a much more robust and vigorous government, its ratification made clear that the American people wanted it to be expressly limited and restricted in certain very fundamental ways—and to only have certain (albeit fundamentally important and critical) duties that were written out lest anyone should ever be confused. This is easy enough to establish historically, and most historians—while being quite committed liberals—do not really question this fact. Those who do, like Howard Zinn, Charles Beard and their derivatives, are not taken very seriously by the profession—ironically because of ahistorical cherry-picking and decontextualization with blatant contemporary political motivation.
And yet here we are, seemingly confused. Why? Mostly because people want to pretend that latter "heroes" like Franklin Roosevelt, Dwight Eisenhower, Ronald Reagan, Bill Clinton, George W. Bush, and Barack Obama, are acting in accordance with the original purposes of our founding charter (including all the amendments). Mr. Cohn should try to remember that the only way Mr. Roosevelt's "interpretation" gained any legal sanction was through threatening the independence of the Supreme Court, and then outlasting it's aged membership through an unprecedented four-term power grab that ended up making the bench a junior partner of the executive branch and the New Deal. This is hardly a shining example of how the country just sort of magically moved to different but ultimately inconsistent "emphases" on select passages of the U.S. Constitution. General Eisenhower merely operated in the shadowy legacy of that period, not from some conscious effort to move the founders forward in time, or rebuke them for shortsightedness. An interstate highway system was a rather tame thing after the TVA and the NRA had blasted a large and comfy swathe through the Constitution's checks on government authority.
Mr. Cohn and all liberals needs to remember that Mr. Madison and Mr. Monroe did not veto bills for road and canal construction because they hated roads and canals, nor because either of them objected to the notion that the Federal Government could be a real force for progress in those realms. Quite the contrary, both of them expressed sympathy to what antebellum Americans called "internal improvements." But they vetoed those bills all the same. They were unconstitutional. The Federal Government was not empowered to construct roads or canals, thus any bills which tried to do that had to be vetoed, and both men did so with lengthy explanation and forewarning. Mr. Cohn may then complain that amending the constitution is difficult, takes time, and would probably end up getting blocked by as few as fourteen states—but that is the whole point of the amendment process. New powers should be difficult to add to the government's already ample repertoire. They should be added because of some serious defect in the original document—like slavery, or the right of women to vote (women were hardly considered "property" as Mr. Cohn absurdly states), or to undo the madness of alcohol prohibition—and not simply to placate the whims of those who think that if the government "gives" you something, it becomes "free."
Full text of Mr. Cohn’s Letter to the Editor of the Las Vegas Review-Journal, 21 January 2011, Opinion, 6B:
“Why respect Madison's view of Constitution?
To the editor:
Walter Williams' Jan. 13 column on the Constitution is full of cherry-picked quotes, false assumptions and beliefs our founders are infallible.
For instance, Mr. Williams quotes James Madison's veto message of a bill constructing roads and improving canals. This is a cherry-picked quote. I could have just as easily quoted Republican President Dwight Eisenhower signing a much bigger bill starting the interstate highway system.
Then Mr. Williams plays his "got you" game by asking whether Mr. Madison was ignorant of the Constitution or whether it had been amended since his comments. Although Mr. Madison was the principal author of the Constitution, this is still only Mr. Williams' interpretation of the document.
My question: Was Mr. Eisenhower ignorant of the Constitution? Or did Mr. Eisenhower just have a different interpretation — one long upheld by the Supreme Court?
Mr. Williams also uses the myth that Mr. Madison was one of the founders of the country, therefore, people such as him and Thomas Jefferson are infallible.
But they were far from that. Let's not forget that these people said that a black slave was just three-fifths of a person. They also had strong and varying opinions of their own actions. These were the people who trusted the selection of U.S. senators to state politicians rather than the people. They considered women property. So why is Mr. Jefferson's "general welfare" interpretation any more important than Franklin Roosevelt's or Ike's?
Mr. Jefferson himself had to broaden his constitutional interpretation when he executed the Louisiana Purchase because his critics said he had no power to do so.
Ray A. Cohn
Las Vegas”
