Re: Founding-Centered Constitutionalism

[Robert Sheridan]

Title: Message

Prof. Lipkin wrote:

 

"...First, I think the relevant body of people who in fact really were the "Founders" is the "founding population," those people who fought in the revolutionary war and voted to ratify the Constitution, not a particular group of men whose views about self-rule, arguably, have been historically 'preserved.'... "

 

***

 

The Cousins' Wars by Kevin Phillips, 1999, Random House, treats the British civil war in which Parliament triumphs over the divine right of kings, the American Revolution's overthrow of tyrannical rule, and our Civil War which overthrew slavery as an evil institution, as three innings in the same ball game, played by successive generation of the same population stock, essentially, all stemming from a group of people originating in East Kent, migrating here, and continuing in their belief/morality system.  All related, hence 'The Cousins' Wars.'

 

Not unrelated is the British racial view of themselves as expressed in the way they treated their colonies worldwide, differently according to color.  Expressed famously by Kipling in "White Man's Burden" (1899) in which he invites TR and America to pick up the colonial burden, as in 'c'mon in, the water's fine, get with it,' after we stripped Spain of her ripe-for-the-plucking colonies.

 

To understand the pervasive feelings about race endemic in this country it helps to see how racial superiority was so unremarkable and taken for granted by the British that it controlled its view of the proper relationship with its colonies, especially the predominantly nonwhite, and Kipling could write a paean to racism, as we would see it today, having come some little distance.  The idea that some of us are a lot better than others based on race, status, ethnicity, wealth, etc., goes a long way, in my view towards understanding the conservative Lochner era resistance to reform legislation designed to help the working person, man, woman, & child.  Social Darwinism was a justification for the racial attitudes that kept the favored few on top and the rest, the riff-raff if you will, down the way God intended.

 

Niall Ferguson's Empire surveys the British Empire while Warren Zimmerman's The First Great Triumph surveys our imperial experience from 1898.  What we do with our power following 9-11 and the invasion of Iraq, where we served notice on the terrorist world that we carry a big stick, is the big open question of the day, and the foregoing provide considerable grist for the mill on the question of what we should do with it, the normative question, to put it in academic conlaw terms.  To me that is the huge constitutional law question, in a larger sense, that is in the air now.

 

I think it very worthwhile to focus on the question whether the attitudes and views of the relatively small group of founding fathers deserve to be preserved in aspic forever, as we tend to do when kowtowing to 'originalist' views.  The founders were part of a continuum that continues to this day, truth to tell.  Some of their earlier views and attitudes, particularly those dominated by race needed to change and we've changed them, starting with the Civil War.

 

One of the difficulties, perhaps, we have in examining our own attitudes is that we don't always look far enough to see where we got them from in the first place.  The foregoing scholarly works provide us a clue.

 

Bob Sheridan

SFLS

 

 

-----Original Message-----
From: Discussion list for con law professors [mailto:[EMAIL PROTECTED] On Behalf Of Robert Justin Lipkin
Sent: Saturday, May 31, 2003 3:16 AM
To: [EMAIL PROTECTED]
Subject: Founding-Centered Constitutionalism

       I think that our "founding-centered constitutionalism" distorts our understanding of American self-rule. Two critical reasons exist, in my view, why we cannot answer the question of what is America's conception of self-rule by concentrating on the (famous) Founders.  First, I think the relevant body of people who in fact really were the "Founders" is the "founding population," those people who fought in the revolutionary war and voted to ratify the Constitution, not a particular group of men whose views about self-rule, arguably, have been historically 'preserved.' The views of the later group serve as an instrumental means for understanding the canonical views of the former. But our fixation with those particular individuals called "the Founders" distorts the recognition that the founding population is the normative authority for launching (and the basis upon which to interpret the meaning of) the American experiment, not Madison, Hamilton, and so forth. Much deeper historical analysis, therefore, is required to ascertain whether the founding population understood republican theories of self-rule. For example, it is often stated that the Founders (Madison and company) feared democracy. Even if that's true, the Constitution cannot be interpreted to reflect this fear if two conditions obtain. (1) the existence of plausible democratic interpretations of the Constitution, and (2) the likelihood that the founding population had no such fear of democracy. I am not a historian, and so cannot contribute to an examination of the founding population's view of American self-rule.  That said, without such an analysis of the founding population's view of self-rule we are left with only what may be called "the surface structure of America's conception of self-rule at the time of ratification," not "its deep structure."

       Much more important as a reason not to practice founding-centered constitutionalism is the obvious fact that whatever the views of the Founders or the founding population, American constitutionalism (and therefore the American conception of self-rule) has been explicitly transformed through Art. V amendments as well as informal transformations throughout the subsequent history of America constitutionalism and politics. Therefore, even if we should concentrate on the founding population as the true "Founders" and even if the true Founders views on self-rule can be known, the contemporary American conception of self-rule determined by formal and information constitutional transformations of American constitutional society is likely to be vastly different from the original conception. It is this present conception that, I believe, should be operative today. While this present conception still embraces representationalism, the rhetoric of contemporary self-rule, on both the left and the right, I would argue, embraces the idea of representative democracy, not republicanism, as that term was understand by Madison and company, or even for that matter, as the term is understood today.

       In any event, it is an answer to the question what is America's conception of self-rule now that, I think, we should attempt to explicate and evaluate. With that question in mind, Founding-centered constitutionalism, is a beginning, but only a beginning. It is a mistake to think that this question can be answered by concentrating too heavily on what the famous Founders thought. Perhaps courts and commentators in 1800 should have concentrated on the famous Founders (or the founding population), but understanding the meaning of American self-rule today is impeded not advanced by doing so.

Bobby Lipkin
Widener University School of Law
Delaware