Founding Fathers influencing today's politics

Great Debates
1

Hello Everyone,

This is of course politely fantasy and I wasn’t sure which category to put this in, so GD it is. Let say that we have somehow perfected time travel and for kicks went back to the founding of our Nation and brought the Founding Fathers to present day. Would their opinions on current day issues matter? Take for example the 2nd Amendment. If we could ask them, what exactly did you mean by well regulated militia? Do you consider modern weapons to be covered under your intent? Etc…

Would their clarification today end the debate? If they said, we never meant weapons that could fire more than a single shot to be covered by the 2nd OR just that opposite, we think that civilians should have aces to all weapons including fully automatic firearms. Would that be the end of the arguments concerning the 2nd or would their opinions, although all we do is based on the Constitution, be irrelevant to us?

This of course would not only be applied to the 2nd, but to everything laid out in the Constitution.

And I picked the 2nd for an example as we always hear each side trying to interpret what was meant and we can’t agree on what they intended. Would both sides consider it settled if we could hear an expanded explanation right from the horses mouths?

2

If the founding fathers had any special genius, it was the awareness that they were men of their time. They realized that the country would change and that the laws they were writing in 1789 might not be the right laws in 1889 or 1989 or 2089. They recognized that changes would be needed and they made sure to make it possible for people in their future to change the laws as needed.

3

Only the originalist faction might be satisfied. The late Justice Scalia was an originalist. He delivered the majority opinion in District of Columbia v. Heller (2008). If James Madison had risen from the grave and told Justice Scalia that the Second Amendment did not guarantee an individual right, we would have a different jurisprudence for that Amendment.

District of Columbia v. Heller, 554 U.S. 570 (2008)

~Max

4

The real question raised by your post is not what did / would the framers think, it is are you really that unaware of what they did say or are you just proposing dismissing what hey said and start afresh, writing a new, more palatable “history” for them?

5

We **know **what they meant by “well regulated,” both from contemporary non-constitutional definitions and their more private “deuterocanonical” writings. As you don’t say whether you want this thread to be specifically addressing that issue, I won’t turn that into a debate.

6

The two sides are too well entrenched now to have their opinions changed by any particular bunch of people. The pro-gun side may say it’s because of the Founding Fathers’ intent in the second amendment, but if the Founding Fathers actually got in a time machine, showed up and looked around and collectively exclaimed “Oh God, NO - ban everything more powerful than a musket!” I don’t actually think the NRA would nod politely, say “well, if you say so” and shut up shop. They’d just drop that specific justification, but keep arguing for the same actual policies. Founding Fathers’ intent is a useful justification precisely because in the normal way of things nobody can prove you wrong.

7

I don’t know what any of them would actually say, after they got over the shock. But I am quite certain that they wouldn’t all say the same thing.

8

Maybe I am giving Justice Scalia more credit than he deserved, but I think he would have admitted that he was wrong.

~Max

9

Originalism is a pretty easy legal principle to satisfy. It basically amounts to “What do I think the person who wrote this document was thinking?” And of course, it’s easy to assume that person was thinking the same thing then that you’re thinking now.

10

:slight_smile: True, 'dat

11

If it came down to what the Founding Fathers actually say, vs. what Scalia and his ilk like to imagine them saying, the imaginary Founders would beat the real ones every time.

12

It would be a drastic mistake to presume that all of the Founding Fathers would agree on what the words of the constitution meant - it was borne out of compromise, not necessarily consensus. And when confronted with circumstances not originally considered, they debated vigorously over what they had designed (take Thomas Jefferson, for example - he was the quintessential small government politician who opposed central power, until he became President and had the chance to more than double the country by purchasing “Louisiana”; suddenly, his studied principles were cast aside to justify his authority to make such a large decision).

Cite: The Louisiana Purchase: Jefferson’s constitutional gamble | Constitution Center

13

Scalia is often lumped with originalists, but I am pretty sure that he was a textualist. From that perspective, it does not matter what the author desired, it is a matter of what he actually said. Bringing in all the Founding Fathers to re-convene the Constitutional convention would have no bearing on current interpretation because if the authors goofed and said the wrong thing, that is how the law should be decided.

Of course, we still get no satisfaction in appealing to texts, as the recent decision demonstrates with Scalia and company’s decision to simply ignore (or handwave away), the opening clause of the 2d Amendment.

14

This.

And this. Many time, this. Except I would say that a series of compromises can be accepted by a general consensus, even if not everyone agrees on it all.
I once interviewed one of the politicians who had a major hand in drafting the Patriation package of constitutional amendments that brought Canada’s constitution home from Britain in 1982. And that was what he emphasized: that everyone in the room had to give way on some points, that no-one got everything they wanted, and that everyone in the room disliked something in the final version. Not that everyone disliked the same things, of course, but rather that no-one was completely satisfied. But overall, there was consensus to accept it (except, of course, for the fact that the Quebec delegation rejected the package entirely.)

So I asked him the natural follow-up question: since there were things in the final package he disagreed with, if he could go back and change something, what would he change? His response? “Not a thing.” It was the overall package that attracted consensus (and even that was a flawed consensus, as Quebec dissented). But his basic point was that in constitution building, there will never be unanimity. At best, there will be consensus, and consensus is what is necessary to get it passed. He accepted that everyone gave up something to get the final deal that attracted the most support, and if he had the power to change it, it would have unraveled.

And even then, even with a consensus, there will be disagreements. Farrand records that after the deal was done in Philadelphia, and the delegates were leaving, a discussion came up about education. One of the drafters said that he hoped the new federal government would establish a national university. Another delegate interrupted and said that the Constitution wouldn’t give the federal government the power to create universities. And then they both pointed to different parts of the text that they had just drafted and agreed on, to support their position.

Thinks about it: if you’ve ever been in a group of about 30 or 40 people, and polled them on an issue, have you ever got unanimity? And not on general terms, but if the question is one of detail, and carries issues of social policy? Why would it be any different for the guys at Philadelphia?

That to my mind is the deep flaw in originalism. It assumes unanimity, when really there was only consensus.

15

I once read an interview that gave an interesting take on textualism. It was back when the dangers of second-hand smoke were coming into view, and some workers were arguing that occupational health and safety laws entitled them to smoke-free workplaces. The journalist interviewed an expert in Occupational health and safety, and the expert said something along the lines of:

“I’ve helped draft those laws and regulations that require safe workplaces. And everyone around the table was smoking - the rooms would be filled with smoke. If you had asked us if our smoking would be contrary to the laws we had just drafted, we would have laughed you out of the room and lit up another one.”

“But now the situation has changed. The science is making it clear that second-hand smoke is contrary to the laws I helped draft. Even though none of us doing the drafting knew it at the time.”

16

I disagree. Scalia called himself an originalist and his actions matched his words.

17

(before reading anyone else’s responses)

Yes, because some people would care , and take their opinions into account. And, after all, they were pretty smart guys.

No, of course not. Even among people who cared what they think, it would just be one more thing to take into account, not a definitive end to the debate (unless their opinions reinforced what you already believe and want).

18

Why does Madison get to be the deciding voice? There are two problems with that.

First, he was only one of about 60 Representatives. He only had one vote. Why should he have the deciding say?

Second, what he proposed as the text in relation to guns was rejected by Congress. His proposal in relation to guns was significantly different from what Congress ultimately approved.

Madison’s version in the first draft presented to the was:

A variant of that was accepted by the Representatives, and then it was changed by the Senate, and then the final version was settled by the House-Senate conference. The Second Amendment, as framed, isn’t the work of Madison, or any other single individual. It was the joint product of over 80 individuals in the House and the Senate. How can originalism say that those 80+ politicians would have all agreed on the meaning of what they had just drafted?

And of course it doesn’t end there. The Fourth Article of Amendment went off to the states. It got ratified, unlike the First and Second Articles, by the necessary 11 state legislatures, totalling additional hundreds of politicians. They didn’t draft it, but their approval was necessary, as the fate of the First and Second Articles show. They too were part of the original voters on the proposal.

How is it possible to say that there is a common, original intent? That if you asked all of those hundreds of politicians the meaning and application, they all would have agreed, unanimously? (And, as an aside, this language of “Founding Fathers” masks what they were : politicians. Two centuries ago, but politicians.)

Originalism only works if you assume that old dead politicians were omniscient, able to foresee all social problems, and unanimous in their interpretation of the law they had drafted. But they wren’t. They were politicians, not Demi-gods.

19

The framers would all hold the idea that the right to arms is conditioned and qualified or restrained by the words of the 2nd Amendment with contempt – after they stopped laughing when they realized people were seriously saying that the declaratory clause modifies the right.

None of them believed they were granting or giving “the people” the right to arms. They all believed in the principle of conferred powers and retained rights . . . That anything and everything not spelled out in the body of the Constitution, (granting government a power over that interest), was retained by the people as a right.

The fight over adding a bill of rights was on that point, not any disagreement about what rights were. The Federalists thought it dangerous and absurd to call out that things shall not be done when no power was ever granted that allowed government to act. Yeah, they lost that fight and we have a Bill of Rights but Federalist arguments against adding a bill of rights were codified and became the 9th and 10th Amendments, and speak directly on this point.

The framers would be shocked that people were dissecting and parsing the 2nd Amendment and trying to discern what rights the framers “intended” to give the people They would think it preposterous that people are reading the 2ndA to try to discover what arms the people were “allowed” to possess and use. They would be horrified that such ridiculous things were being said. . .

“We the People” don’t possess the right to arms because the 2nd Amendment is there . . . “We the People” possess the right because “We the People” never granted government any power to have any interest in the personal arms of the private citizen.

IOW, the right isn’t ours because of what the 2nd Amendment says, the right is ours because of what the body of the Constitution DOESN’T say.

That’s what the framers would be telling us if they could.

.

20

If people have some natural right to own firearms, why don’t people in other countries have this right?

You have the right to own a firearm for one reason only - you live in a country where the government gives you that right.