Why “The Framers Never Intended” Is Garbage
Imperfect Union August 2021
Constitutional Convention
In the last few months, an increasing number of politicians have made arguments that start with “The Founders never intended…”. While Americans have been appealing to the founding generation to bolster their positions since the founding generation, there seems to be an uptick of this rhetoric in political dialogue. I’ve spent over a decade deeply immersed in the founding generation and let me tell you, almost any argument that starts with those dreaded words is usually made in bad faith.
There are two instances in which it’s acceptable and appropriate to consider the founders’ intentions. First, you can ask what the founders intended if you are exploring how those expectations immediately met with resistance and evolved once they took office. Second, you can ask what the founders intended to understand what people were thinking at that time. Any attempt to apply 18th century ideology or values to the 21st century is inherently problematic. Here’s why.
1. The Founders almost never agreed. On anything. While they certainly agreed that things like liberty and republican virtue were important, they rarely could come to a consensus about how to define those principles. They certainly didn’t agree about what the federal government should look like, and they didn’t even agree how to remember the Constitutional Convention just a few short years after the ink dried.
A few examples for clarification. If the framers (the men that wrote the Constitution) had agreed on everything, they would have all signed the document. They didn’t. George Mason refused to sign the Constitution and published a pamphlet after the Convention arguing that the states should refuse to ratify the proposed document. George Washington took Mason’s objections so personally that their disagreement drove a significant wedge between the longtime friends. In November 1787, as Mason continued his rabble-rousing against the Constitution, Washington complained about him in a letter to David Stuart:
“If the Convention was such a tumultuous, & disorderly body as a certain Gentleman has represented it to be, it may be ascribed, in a great degree to some dissatisfied characters [i.e. Mason] who would not submit to the decisions of a majority thereof.”
Additionally, the very existence of the Federalist Papers demonstrates that the founding generation had serious disagreements about the Constitution and the proposed government. Alexander Hamilton, John Jay, and James Madison wrote the Federalist essays to convince people to support the Constitution in the ratification conventions. If the outcome of the vote wasn’t a concern, there would have been no need for the excellent propaganda that are the Federalist Papers.
2. If the Founders did agree on one thing, it was that they were flawed humans, and their creations were imperfect. They desperately hoped future generations would come up with creative solutions to problems they couldn’t solve and problems they couldn’t yet foresee. Thomas Jefferson went so far as to suggest that each generation (about every 19 years) should come up with their own constitution to meet the current moment:
“No society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation.”
The framers included an amendment process for this very purpose and used it immediately. Friendly reminder that the Bill of Rights was not included in the original constitution. The Bill of Rights only came into existence because the Antifederalists protested vociferously during the ratification process and extracted promises from Federalists that they would include amendments once they were in office. James Madison made good on that promise and drafted several proposed amendments in the summer of 1789—two full years after the Constitutional Convention.
What does that mean? First, they knew the Constitution didn’t solve the problems they were currently facing, like slavery or the partisan or geographic divide. Second, they knew society would continue to evolve beyond their wildest imagination. They could not create a system that addressed all of the potential eventualities that might come down the road, which is why so much of the language of the Constitution is a bit vague. If anything, they would be horrified to know that we’ve deified their creation and treated the Constitution as sacrosanct.
The best way we can honor and live up to the legacy of the foundering generation is not to treat them as all-knowing, but to constantly strive to improve the system they created.
3. Finally, we can’t return to the 18th century. I’m often asked what the founders would think of the current moment if they could time travel. I usually start by making a joke about what they’d say, like “why is there a metal tube in the sky?” Which is snarky, but actually more substantive than it seems.
We live in a wildly different world. I’ve said this online before, but I wouldn’t have been allowed to wear pants in the 1790s. Nor would I have been able to vote, open a credit card, own property in my name, get a Ph.D., and on and on and on. 700,000 people lived bound in slavery, animals were considered beasts with no legal protections, and Native Americans were nobles savages to be “civilized.”
The founding generation was primarily concerned with Spanish, British, and French encroachment on western and southern territories, fear of violent enslaved uprisings, and naval impressment on the high seas. Cyber security, competition with China, and global warming didn’t even begin to enter the equation. These are just a few examples that demonstrate that many of the issues in the 21st century cannot be mapped neatly onto 18th century expectations.
That’s ok and as it should be. As humans and society continues to evolve, so too do our challenges. Although the framers were brilliant men, expecting them to have all the answers for our problems is wildly unfair. It’s up to us to figure it out.