Why Founding Father Doesn’t Know Best
American Perspectives Writing Competition Winner
July 4, 2000
By Linda R. Monk
When I was twelve years old, I was a hateful and cruel little girl. I ‘m still not sure why. In particular, I made life miserable for a new girl in my school — Sandra. I criticized the way she looked, the way she talked, the way she combed her hair. I was determined to prove her inferior to me in a multitude of ways. I needed her to be inferior to me. She was black, I was white.
Growing up in segregated Mississippi, I don’t remember the phrase “Bill of Rights” ever being used to support the right of my black classmates to an equal education. In fact, the word “equal” is nowhere in the Bill of Rights. I did hear a lot about “states’ rights,” which are secured by the Tenth Amendment. It’s the only amendment in the Bill of Rights unanimously recommended by all eight states whose proposed amendments were considered by the First Congress.1
Equality under the law, the right to be free from unreasonable discrimination, is protected by the Fourteenth Amendment, not the Bill of Rights. The Fourteenth Amendment, ratified in 1868, says: “No state shall … deny to any person … the equal protection of the laws. “It’s the Fourteenth Amendment, not the first ten, that has had the most direct effect on me — and, I would argue, all Americans. Without the Fourteenth Amendment, the Supreme Court would never have applied the Bill of Rights to the states, where protection was most needed. And without the Fourteenth Amendment, I might still be the racist I was in the seventh grade.
All Deliberate Speed
In the fall of 1970, my grade school was finally integrated. Before then, one lone black girl attended the entire school — a token compliance with the Supreme Court’s 1954 decision in Brown v. Board of Education of Topeka . In that case, the Court ruled that “separate, but equal” schools violated the Fourteenth Amendment and should be desegregated “with all deliberate speed.” Mississippi, like many states, was far more deliberate than speedy. After 15 years of stalling, the Supreme Court declared in a 1969 case from Mississippi that segregated schools must end “at once.”
That’s when my life changed. Until then, I’d had very little contact with “niggrahs,” as my parents said when they were trying to be polite. (That whites-only pronunciation was intentionally a bastardization of the preferred term, “Negro, “and the other n-word used to keep black people in their place.) We were too poor to have a maid, which is how most white children interacted with African Americans.
I grew up in a Walker Evans photograph — a procession of Southern white poverty stretching back generations. The only real estate my grandfather ever owned was the plot he was buried in. His daddy’s favorite saying was that it was better not to have anything in the first place, so the bank couldn’t take it away. As poor white trash, my family was near the bottom of the Southern social ladder, but I always knew we were at least one rung above blacks.
It would be fashionable today to say that my childhood racism was the result of capitalist hegemony destroying the natural alliances between working-class blacks and whites, and that is not altogether untrue. But it is not altogether true, either. There were other poor white kids, though rare, who did not believe as I did — for whatever reasons. They were capable of seeing their fellow students’ humanity beyond skin color. I was not. I had to learn better.
So did America. Thankfully, it seems self-evident to the majority of Americans today, as it was not to our founders, that the credo “all men are created equal” includes people of every color, women and men. Yet I cannot wag a finger at the founding hypocrites for their short-sightedness. I know from personal experience that the American proposition, as Lincoln called it, is not innately obvious, even 200 years later. We have to learn it.
That’s our great hope as a nation: we are a people capable of learning. Our government is capable of learning. Through Article V of the Constitution, we have the amendment process — which gave us the Bill of Rights, the Fourteenth Amendment, and the right to vote for African American men, for women, for young people. Our Constitution does not allow us to believe that human nature is fixed, that change is impossible. It affirms that we are educable, that hope endures. I am living proof that human beings can be taught better — and so is our country.
Founding Father Knows Best
Perhaps that’s why I always flinch at the term “Founding Fathers.” It implies that there was a select group of people (read: white males) who had a divinely-inspired vision of this country that should continue to control future generations. It denies us the capacity to learn better, and it short-circuits the struggle every citizen must make with the underlying interpretation of constitutional principles. According to this philosophy, we don’t have to worry about what free speech really means — the Founding Fathers did it for us.
Thomas Jefferson himself criticized this point of view, which some legal scholars have referred to as “Founding Father Knows Best”:2
Some men look at constitutions with sanctimonious reverence, and deem them like the arc [sic] 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 knew that age well; I belonged to it, and labored with it… But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.3
As Jefferson points out, ours is a prospective, not retrospective, nation. We tend to rely on the Founding Fathers out of laziness, not respect. We use them as shorthand when we’ve forgotten what the argument is really about. For example, both liberals and conservatives refer to the Founding Fathers, as a group, regarding separation of church and state. But Thomas Jefferson and James Madison, who were strict separationists, had drastically different views from George Washington and Patrick Henry, who favored tax-supported churches. Citing the Founding Fathers does not solve the problem.
For all the mischief it makes, the phrase “Founding Fathers” is a rather recent construct in American history. It was coined by one of America’s worst presidents, Warren Harding, when he was still a senator from Ohio. According to the Library of Congress, Harding first used the words in 1918, then again when he accepted the Republican nomination for president in 1920, and in his inauguration speech in 1921. On that last occasion, he remarked: “I must utter my belief in the divine inspiration of the Founding Fathers.” Commented a documentary writer on the discovery of Harding’s authorship: “Finding an imperishable phrase in a Harding speech was as unexpected as finding a pearl in a meatball.” Hardly an inspiring pedigree for one’s Founding Fathers.4
Moreover, the term “Founding Fathers” is historically a misnomer. They never really existed. There was no one group of framers responsible for all the founding documents of American freedom. Instead, there were different people with different ideas involved at different times. On the three principal charters of liberty — the Declaration of Independence, the Constitution, and the Bill of Rights — here’s how the major “Founding Fathers” stack up:
* George Washington — too busy commanding troops to help draft the Declaration, but the Constitution wouldn’t have been created without him as president of the Philadelphia convention in 1787; opposed a bill of rights at the convention, but supported it in his first inaugural address out of a “regard for the public harmony.”5
* John Adams — part of the Congressional committee that told Jefferson what to say in the Declaration of Independence, but lived in England as U.S. ambassador when the Constitution was drafted; as Vice President of the United States, and therefore president of the Senate, signed the Bill of Rights, although as a Federalist he didn’t think it was necessary.
* Thomas Jefferson — wrote the Declaration, but during the drafting of the Constitution and Bill of Rights served as ambassador to France, where he developed a taste for wine and shipped many cases back to Monticello; nonetheless, his letters helped persuade James Madison to support a bill of rights.
* James Madison — not involved in the Declaration, but principal architect of the Constitution and reluctantly became the chief sponsor of the Bill of Rights in Congress.
One can accurately refer to the founding generation, but that includes a wide range of people — among them women like Abigail Adams and Mercy Otis Warren — who were actively involved in the American dialogue of liberty.
A Nauseous Project
The Bill of Rights itself is the most glaring rebuttal to the notion of enlightened “Founding Fathers” inspired from on high to protect American freedom. The Bill of Rights began as a piece of legislation, not a divine mandate, and therefore went through the sausage mill of committee proceedings. Public confidence in the First Congress was no greater than in the 106th. Indeed, the first House of Representatives did not achieve a quorum until April 1, 1789 — even then celebrated as All Fools Day — and wags commented on the symbolism. Civility was actually worse than today; at one heated point during the debates over the Bill of Rights members of Congress challenged each other to duels. James Madison found the passage of the Bill of Rights through Congress “exceedingly wearisome” and wrote to a friend that it was “a nauseous project.”6 Not exactly Founding Father language.
Poor Madison got no respect — the Rodney Dangerfield of Founding Fathers. He had been passed over as U. S. senator in 1788 by the Virginia legislature, the body that selected senators before the Seventeenth Amendment. Patrick Henry argued that anyone who voted for Madison was voting against a bill of rights. After seeking treatment for hemorrhoids in Philadelphia, Madison endured a very uncomfortable ride home to Virginia, only to face a close race with James Monroe for a seat in the House of Representatives.7
When Madison sought to fulfill his campaign promise to the people of Virginia by introducing a bill of rights in May 1789, Congress was disinterested, preferring to focus on the more compelling issue of raising taxes. (The more things change, the more they remain the same.) That same month, Virginia and New York both petitioned Congress to call a second constitutional convention, and Madison knew all too well what that could mean. Such a convention might throw out the new Constitution, just as he and his cohorts had discarded the Articles of Confederation — the first constitution of the United States.
In June Madison introduced his proposed amendments, thus defusing the drive for a second convention. Madison’s draft did not propose a separate bill of rights as such, but interspersed the amendments throughout the Constitution, most in Article I as limitations on the powers of Congress. Perhaps it was pride of authorship on Madison’s part, not wanting to highlight the glaring omissions of the Constitution. Rep. Roger Sherman of Connecticut moved that the amendments be added to the end of the Constitution, where they remain as a testament to the power of the American people — who refused to ratify the Constitution without assurances that a bill of rights would be added.
And it was the American people who wrote the Bill of Rights — not Founding Fathers, not even James Madison. The Bill of Rights was the result of 150 years of American experience in protecting rights through written documents, beginning with the Massachusetts Body of Liberties in 1641. Indeed, Madison was the editor of the Bill of Rights, not its author. He cut and pasted among almost 100 suggested amendments offered by the states, and he selected those provisions on which there was the most consensus.
This enhances the power of the Bill of Rights, not diminishes it. No group of Founding Fathers can claim sole credit, for it is the hard-won wisdom of the American people. And that wisdom continues to be learned.
The Wisdom of Ordinary Americans
We’ve had some great teachers in the American pageant of liberty. Starting with the slaves of Massachusetts, who in 1777 declared to the state legislature that “they have a natural and unalienable right to . . . freedom”; that they “cannot but express their astonishment that it has never been considered that every principle from which America has acted in the course of their unhappy difficulties with Great Britain pleads stronger than a thousand arguments in favor of your petitioners.”8
Teachers like Elizabeth Gurley Flynn, with her fellow Wobblies, who organized unskilled laborers into the Industrial Workers of the World during the early 1900s — and refused to believe the Supreme Court when it said the Bill of Rights did not apply to the states. Anti-labor towns passed laws making it illegal to speak on street corners, and Wobblies filled the jails in defense of the First Amendment. “Not all the I.W.W. workers were speakers,” wrote Flynn. “Some suffered from stage fright. We gave them copies of the Bill of Rights and the Declaration of Independence. They would read along slowly, with one eye hopefully on the cop, fearful that they would finish before he would arrest.”9
Teachers like Fannie Lou Hamer, a sharecropper just like so many generations of my own family, who refused to believe the state of Mississippi when it said she couldn’t vote because she was black. In 1962, at the age of 44, she responded to a plea by civil rights workers for volunteers to go to the courthouse and register to vote. “I guess if I’d had any sense I’d a-been a little scared,” she wrote in her autobiography, To Praise Our Bridges , “but what was the point of being scared? The only thing they could do was kill me, and it seemed like they’d been trying to do that a little bit at a time ever since I could remember.” She went on to become a national leader of the civil rights movement. She challenged President Lyndon Johnson on national television when her Mississippi Freedom Democratic Party was not seated at the 1964 Democratic national convention instead of the official all-white state delegation.
I never heard about Fannie Lou Hamer when I was growing up in Mississippi. It was only after she died, when I went away to law school “up north,” that I learned her story. But she certainly wasn’t part of the Harvard curriculum, any more than she had been at Ole Miss. I learned about constitutional law, both at the graduate and undergraduate levels, as a series of Supreme Court decisions made by famous men (and later a woman). We budding lawyers were taught our craft in a vacuum, ahistorically, with no sense of the everyday people whose wisdom about the true meaning of the Constitution eventually prevailed.
What is most compelling about the American experiment is not the philosophies of great men, though we have had our share. Instead, the sacrifices of ordinary Americans have given life to constitutional principles long after Founding Fathers were dead and buried. It’s not that our great men weren’t great. One only has to look at our first four presidents to see that:
* George Washington, the man who would not be king.
* John Adams, the prickly patriot who labored against his own party to successfully keep the infant nation out of a war between England and France.
* Thomas Jefferson, the scientific genius who sacrificed his constitutional consistency to double the land mass of the country.
* James Madison, the master of both philosophy and practical politics who engineered the Constitution and the Bill of Rights — yet almost saw them come to naught during the War of 1812, when the British chased him from his White House dinner table in disgrace.
It’s not that our great men weren’t great — it’s that they didn’t do it all by themselves. By celebrating mythical “Founding Fathers,” we leave out the real men and women who believed in the principles of American liberty even before so-called Founding Fathers could articulate them. From the slaves of Massachusetts to Fannie Lou Hamer to my classmate Sandra, ordinary Americans have risked their lives for the sake of constitutional principles even when judges and elected officials told them they were wrong. They knew better. They knew what the Constitution really meant.
Three years ago, I tried to find Sandra. Although my racial attitudes gradually changed as a teenager, I had never apologized to her. She graduated early, a year ahead of my class, but through the close-knit networks that mark the rural South, I found her in two phone calls. I was filled with fear as the telephone rang, and she answered.
“You were forgiven a long time ago,” she said. “I don’t have time for hate.”
We talked about our lives since the seventh grade — school, family, children, jobs. She was warm and gracious to me, like the Southerner she was raised to be. Then we hung up, and I haven’t spoken to her since. But her memory never leaves me.
I often think about the person I would have become had it not been for Sandra, and Fannie Lou Hamer, and the Fourteenth Amendment. I think about what our nation would have become.
And I sometimes wonder if James Madison ever truly believed in the Bill of Rights. But it doesn’t really matter: the American people did.
Founding Father doesn’t always know best.
Citations:
1 Neil H. Cogan, ed., The Complete Bill of Rights, 674-5.
2 Mark Tushnet, “The U. S. Constitution and the Intent of the Framers,” Tikkun, Vol. 1, No. 2 (1986), 35.
3 Letter to Samuel Kercheval, July 12, 1816, Thomas Jefferson, Writings, 1401.
4 Neil A. Grauer, “Founding Fathers’ Unlikely Sire,” Washington Post, July 3, 1997, B5.
5 Richard B. Bernstein with Kym S. Rice, Are We to Be a Nation?, 263.
6 James H. Hutson, “What Are the Rights of the People?” Wilson Quarterly, Vol. XV, No. 1, Winter 1991, 69.
7 Kenneth R. Bowling, “A Tub to the Whale”: The Founding Fathers and Adoption of the Federal Bill of Rights, 5.
8 Herbert Aptheker, ed., A Documentary History of the Negro People in the United States, Vol. 1, 9-10.
9 Philip S. Foner, ed., Fellow Workers and Friends, 26.
10 Fannie Lou Hamer, Julius Lester, and Maria Varela, To Praise Our Bridges, in Mississippi Writers: Reflections of Childhood and Youth, ed. Dorothy Abbott , Vol. 2, 326-7.