The Naivete of (Most of) Our Founding Fathers

The United States Constitution, in essence, was deslgned to restrain the exercise of power.

Yet prominent Founders such as Alexander Hamilton and James Madison made naïve assumptions about the willingness of their fellow-Americans to feel so bound.

They argued that because the Constitution enumerated certain powers possessed by the Federal government (set forth primarily in Section 8 of Article I) those powers not recited were not available to the Federal government.

[But only ten years later, in 1798, Congress passed the Alien and Sedition Acts authorizing the President to expel any foreigners deemed dangerous.]

In Federalist Paper No. 84, Alexander Hamilton wrote:

          “Why declare that things shall not be done which there is no power to do?  Why, for instance should it be said that the liberty of the press should not be restrained when as power is given by which restrictions may be imposed?”

Hamilton, in effect, was assuming that since the text did not authorize the suppression of liberty, such would not lawfully occur.  And implicit in that assumption was the expectation that America’s future lawmakers would abide by his interpretation.  That was a doomed – naïve - hope.

James Madison joined in that expectation.

          “I go on this great Republican principle that the people will have virtue and intelligence to select men of virtue and wisdom [to make our laws].”

The Congressional approval of the Alien and Sedition Acts vindicated the need for a bill of rights which had been championed by anti-Federalists such as Virginia’s George Mason.  Implicit rights may be deduced but are also subject to varied seemingly legitimate interpretations.  Explicit statements of rights, too, can be challenged and modified, but the foundation is certainly more substantial and resistant to assaults against what were considered to be inalienable rights.

As events have demonstrated in the following two centuries, not only were efforts frequently made to undermine the rights of Americans by ignoring Constitutional restraints but many court-sanctioned interpretations of seemingly clear and unambiguous language made a mockery of the concept of limited government the U.S. Constitution was intended to embody.

For instance, Section Eight of Article One authorizes Congress to regulate trade and business activities that are interstate as well as “commerce with foreign nations… and with the Indian tribes.”

But contrary to the expectations of Hamilton, et.al., the restriction of Federal power to interstate commerce was made a nullity by a 1930’s Supreme Court decision allowing Congress to control intrastate activities as well.  (The rationale?  Even if commerce is confined within a state, there is always the possibility that such might have an impact elsewhere).  And what in life isn’t possible?  Does that mean that the Constitution only limits the “impossible”?  That renders the Constitution nonsense.

A simple fact of human nature is that those who possess power not only are inclined to exercise it but are often driven to expand its reach.

This is a truth which, in some respects, the Founders readily understood.  Madison’s balance of powers proposals were incorporated into the Constitution as a check on such propensities.

Of course, our Founders were great men.  They did extraordinary things and they were human.  Wishful thinking is a human trait for us all.