American Dialogue – The Founders and Us by Joseph Ellis is a challenging effort by the noted American historian to compare selected issues today such as race, inequality, judicial boundaries, and foreign affairs with insights from the founders.  His analysis of the founders’ thoughts and actions are illuminating, but his analysis of the current issues is missing comparable depth.

In discussing equality, he falls victim to many contemporary misconceptions of the topic.  Our inequality differs significantly from previous periods with different causes, and the data is noisy. Does the data reflect mobility and is it contingent on the time frame studied?  Are we measuring individuals or households? Do we include transfer payments and taxes?  Do we include the value of benefits?  How much is inequality due to social changes such as assortive mating?  As a result of greater equality of women in the work force, they tend to marry more equally successful men and this may account for over a third of the rise in inequality.  Is this a bad thing?

This noise can be largely filtered by focusing on the difference in consumption power, and when we do the multiple from the top to the bottom quintile drops significantly.  As insightful as Ellis is about the thinking of the founders, he readily accepts flawed and biased current perspectives on the subject of inequality.

He takes sharp exception to the originalism of conservative judges like Scalia.  Ellis duly notes that finding the original meaning of the founders’ words is an arduous and often futile task.  The founders adjusted their concerns to the time during their life and even during the convention they were not all in agreement.  Originalism requires the lawyers to become historians, which Ellis contends they accomplish poorly.

While originalism is subject to debate and clarification, the other extreme is activism based on popular notions with strained grounding in constitutional law.  Effectively it is often legislating from the bench as an unelected body and beyond the comprehension of the founders.  Between literal originalism and unbridled activism is a large gray area that includes issues with conflicting references in the Constitution.  ‘Cruel and unusual punishment’ means something quite different today than it did in 1789 when it was drafted into the Eighth Amendment.  There is room for updating the meanings of old terms and interpretations.

The debate on originalism and activism obscures the larger conflict between the relative weight of democratic majorities and individual rights.  The rise of Progressivism came at a time when excessive individualism was blamed for the social and economic problems of the Gilded Age and the Great Depression.  Courts began to defer to legislative majorities in preference to individual rights.

One of the radical features of the Constitution was its commitment to the written word holding all levels of authority accountable.  Words must have meaning even if it is often difficult to discern centuries later, but beneath the words and the laws were carefully considered principles. It is the degree of deference to the founding principles that colors our current political differences.

The early Progressives, guided by the historicism of European intellectuals, discounted the permanence of principles, considering them only contingent on their time period.  The founders had a view of human nature and natural rights that was the basis for their division of power.  Our contentious debates today are less dependent on parsing the words of the founders than it is on recognizing the permanence of the principles they followed.

The courts are increasingly receptive to question the acceptable role of the administrative state (Kisor vs Wilkie) where the powers of the legislative, executive and judicial are combined in a single branch never articulated in the Constitution and often beyond the control of the three branches. James Madison stated  in Federalist #47, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

While the Administrative State’s encroachment into liberty is a major point of George Will’s recently released Conservative Sensibilities, it completely escapes mention in Ellis’s more limited project. The phrase ‘administrative state’ appears forty-six times in Will’s book, not once in Ellis’ volume.

Ellis chose to focus on his conception of the critical problems of our time by engaging the thoughts of the founders, but he ignores other problems that divide us more than race and inequality such as our willingness to subject the Bill of Rights to identity politics and political correctness. He adeptly notes how fluid the conditions were that shaped our Constitution; how messy and confusing the founders’ task was.  While Ellis thoughtfully described the founders’ thoughts and the events that shaped their decisions, he understated the principles that guided them through that chaotic period, and how our abandonment of those principles is the greater source of our modern political differences.

Graphic credit: Donkey Hotey

Henry Oliner blogs at www.rebelyid.com