The Founding Fathers Got It Wrong? I Think Not.

The moment the news broke of the Orlando shootings, I knew that calls for new gun control measures would follow. They always do and they did; but this time, they seemed even more impassioned than usual. The impression was solidified for me when Speaker Ryan called for a moment of silence on the floor of the House of Representatives for the victims and was met instead with yells from Democrats demanding legislative action.

Then I saw this Rolling Stone essay calling for outright elimination of the Second Amendment. Written by David S. Cohen, a constitutional law professor at Drexel University, the essay says flatly,

...sometimes we just have to acknowledge that the Founders and the Constitution are wrong. This is one of those times. We need to say loud and clear: The Second Amendment must be repealed.

Normally I try not to get enmeshed in that particular debate. The arguments for and against had been going around forever and emotions run high enough on all sides that minds never get changed. But something Cohen said got under my skin enough that I feel compelled to offer a rebuttal.

 

Cohen largely bases his argument for repealing the Second Amendment (let's call it the "SA" so I don't have to keep typing "Second Amendment") on a single assertion — "As much as we have a culture of reverence for the founding generation, it's important to understand that they got it wrong — and got it wrong often." Attacking the Founding Fathers as "deeply flawed people" is a tactic in vogue among many liberal academics these days. The Founders were certainly not perfect people by any stretch; but this particular argument always seems to be made for the express purpose of devaluing the Constitution, thereby making claims that we should rewrite it seem more valid.

To which I say to Cohen and those adopting this tactic: no, the Founding Fathers didn't get it wrong.

To say they "got it wrong" is to commit the cardinal sin of historical analysis — judging historical decisions by modern moral standards. The Founders lived in a different time, facing different cultural, political, and moral constraints than we do. They made the best decisions they could for their time. To declare those decisions wrong based on the cultural, political, and moral norms of our time and with the benefit of hindsight the Founders didn't have is intellectual fraud.

But that's exactly what Cohen does. He applies his own moral framework, shaped by 21st century culture and education, and his own hindsight to the decisions of 18th century Americans and says "they screwed up." His case in point? Slavery.

Much more profoundly, the Framers and the Constitution were wildly wrong on race. They enshrined slavery into the Constitution in multiple ways, including taking the extreme step of prohibiting the Constitution from being amended to stop the slave trade in the country's first 20 years. They also blatantly wrote racism into the Constitution by counting slaves as only 3/5 of a person for purposes of Congressional representation. It took a bloody civil war to fix these constitutional flaws (and then another 150 years, and counting, to try to fix the societal consequences of them).

That's another favored tactic of Constitutional critics — invoking its provisions regarding slavery as evidence that the Founders' moral judgment isn't to be trusted. "Boy, if they were such a bunch of racists, why should respect any of their values and ideals?"

Unfortunately for Cohen, that's really crummy history.

First, a significant number of the Founding Fathers wanted to see slavery abolished, George Washington not the least among them, which is quite remarkable when you consider that not one single Founding Father was born and raised in society where slavery was abnormal. Every person's moral code is shaped on a deep, fundamental level by the culture around them, and by the time Washington, Jefferson, Madison, et al came of age, the institution of slavery in the colonies was almost 200 years old, its origin about as far removed from them as the Founders are from us; and given that there are biblical passages that could be interpreted as supporting the institution, the question of its morality was very divisive. But even among those who proclaimed it a moral evil, the idea that blacks were inferior wasn't even remotely controversial. There were very few counterexamples. Free, educated blacks who were productive members of society were virtually non-existent; and some of the Founders who were slaveholders had considered freeing their slaves but were very worried that they wouldn't fare very well in a society that viewed them as inferior. Slave traders kidnapping and re-enslaving them was a real possibility.

Moreover, because slavery was so deeply entrenched in the colonial culture, the Founders recognized something else that Cohen doesn't acknowledge — that, in 1787, a provision banning slavery would've been a poison pill to the Constitutional Convention. Adding the words "slavery is hereby abolished" to the draft would have instantly destroyed the project; and without a stronger constitution to replace the Articles of Confederation, the union of the colonies would have dissolved in short order and America would have become a patchwork quilt of weak states dominated by foreign powers and possibly warring with each other well before 1861. Everyone knew that — and yet, many of the Founders at the Constitutional Convention tried to abolish slavery anyway. They thought emancipation was a moral imperative worth gambling the future of the country, and they almost blew up the Convention over it at several points. So all of the constitutional provisions regarding slavery that Cohen invokes as "wildy wrong" actually were hard-fought compromises finally made because the delegates thought the alternative — the total dissolution of cooperation among the original 13 colonies — would be far, far worse. 

Does Cohen think they were wrong on that point? If so, what alternative does he think was available to them? Because they thought the alternative was anarchy. George Washington himself said, in a letter to Thomas Jefferson at the start of the Convention in May 1787—

That something is necessary, all will agree; for the situation of the General Government [created by the Articles of Confederation] (if it can be called a government) is shaken to its foundation—and liable to be overset by every blast. In a word, it is at an end, and unless a remedy is soon applied, anarchy & confusion will inevitably ensue.

So any critic who wants to denounce the Founders for "enshrining slavery" in the Constitution needs to explain either 1) why continent-wide "anarchy and confusion" would have been preferable to a failed attempt to abolish slavery in 1787; or 2) just exactly how anyone could have rammed stronger restrictions on slavery or its outright abolition through the Convention without destroying the whole enterprise. It took everything the most brilliant men of the 19th Century had of labor, persuasion, and painstaking compromise to first draft and later get ratified what has proven to be the greatest national constitution ever written; and I personally find it pretty darned arrogant for people like Cohen to say the Founders could have and should have done better.

The Constitutional compromises regarding slavery were the best outcomes possible at the time. The Founders knew the Constitution wasn't perfect. They also knew changes would be needed to address evolving conditions over time. That's why they gave us an amendment process for altering it, which they themselves used almost immediately after the new government was formed. And they knew perfectly well that the slavery issue was far from settled, but they tried to give the United States a fighting chance to resolve it without violence in the form of a strong federal government. So Cohen and like-minded critics should consider this — the federal government that the Founders established by the Constitution they wrote was the same one that fought and won that later war that finally abolished slavery. That abolition ultimately did require a civil war was the failure of later generations to advance the progress the Founders had already made; but it was the Founders' Constitution that empowered Lincoln's government to both survive and win the Civil War when it came. 

The fact is that the Constitution of the United States was and is an incredibly progressive document; and it's one of the great ironies of our time that many progressives like Cohen want to denigrate the Founders, who were some of the most progressive men of their age, and the Constitution, which codified some of the most liberal ideals ever conceived. In their zeal to transform American culture and promote progressive goals, those critics are tearing at the foundation that has, in the past, enabled them to advance progressive goals so very far.

And I don't know what kind of constitutional scholar Cohen is; but, based on his essay, I can say that he's not a very good constitutional historian.

[Update 24 June 2017: Cohen's essay isn't coming up for me now. The webpage and comments on his essay are still there but Cohen's essay has vanished.]