What would “The Founders” do?

If “The Founders” had a chance to vote tomorrow, they would reinstitute checks and balances.

by Jason Stahl

Conservatives often like to invoke the “Founding Fathers” when making political arguments. In other words, people like Jefferson, Madison, Hamilton, etc. are drawn upon to try and make a present day political point. As a historian, I am always suspicious when this is done -for multiple reasons.

Often the argument is based less on textual evidence of what different founders wrote or said and instead upon one’s own present-day political biases. Or, “The Founders” are invoked as a coherent group, as if there was general agreement on the direction the United States should take – which there was most certainly not.

Finally, such arguments tend to smash together the Declaration of Independence and the Constitution as if they said the same things. They did not – in fact, their visions of the coming American nation were quite different.

However, despite all of these pitfalls, I will now try the trick myself (and see if I can avoid these traps). The question I have is: If “The Founders” could vote in tomorrow’s midterm elections, how would they vote? Well, to avoid one pitfall, let us focus only on James Madison. And, for the sake of this argument, I want to only focus on Madison’s writings in the Federalist Papers 51.

Why do I make these choices? Well, Madison, along with Alexander Hamilton and John Jay, wrote the Federalist Papers as a guidebook of sorts to the Constitution. The papers were designed to advance positive arguments for the type of government set forth in the Constitution.

In Federalist 51, Madison set forth what is now one of the most familiar reasons for setting up the U.S. government with three independent branches. He argued that each branch “should have a will of its own,” and that this would “be the means of keeping each other in their proper places.”

This idea, which is now commonly known as “checks and balances,” was, according to Madison, “essential to the preservation of liberty.” Then, in one of his most quoted lines, Madison argued, “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”

It is easy to see how right Madison was. While he and his Federalist brethren were primarily worried about an out-of-control legislative branch, today it is the executive branch that needs checking. Over the past four years, the Republican Congress has completely abdicated their Constitutional responsibility to check the Executive branch.

As Paul Krugman recently noted, “when Bill Clinton was president, the House took 140 hours of sworn testimony into whether Mr. Clinton had used the White House Christmas list to identify possible Democratic donors. But in 2004 and 2005, a House committee took only 12 hours of testimony on the abuses at Abu Ghraib.” In other words, the House has abandoned even a pretense of offering oversight of the Executive Branch – a power they were willing to employ to extreme lengths when Clinton was in office. Moreover, the Republican Congress is all too willing to look the other way when President George W. Bush undercuts their authority.

In April, The Boston Globe reported that, through the use of signing statements, “President Bush has quietly claimed the authority to disobey more than 750 laws enacted since he took office, asserting that he has the power to set aside any statute passed by Congress when it conflicts with his interpretation of the Constitution.”

Among the laws Bush has said he can ignore: “military rules and regulations, affirmative-action provisions, requirements that Congress be told about immigration services problems, ‘whistle-blower’ protections for nuclear regulatory officials and safeguards against political interference in federally funded research.”

And what was the response by the Republican Congress to this blatant usurpation of their power? The silence was deafening.

So the question must be asked: Do we wish to preserve liberty, as Madison suggested, or is liberty to be abandoned along with concept of checks and balances?

Tomorrow, you have the opportunity to give Congress a “will of its own” once again by throwing out the Republican Congress. As Madison said, men are not angels – particularly those now occupying the White House. They need checks, they need internal controls and they need to be kept in their proper places. Vote to bring all of these back.

Jason Stahl welcomes comments at [email protected]