I've been trying to find the time to post some thoughts about Perry v. Schwarzenegger (the Prop. 8 case), but I'm not quite there yet. In the meantime, though, I had a thought today about the constitution and the Founding Fathers.
There is a fashion today current among certain people to revere the opinions of the Founding Fathers that bothers me. It bothers me for two reasons. One is that these people rarely seem to revere the opinions of the Founding Fathers, but rather the opinions of some combination of Madison, Jefferson, Adams, and Franklin. This confuses me. Do we consider Madison to be wiser than Morris? Baldwin? Pinckney? On what basis do we prefer the opinions of Jefferson to those of Hamilton? The whole thing smacks of shoddy thinking.
The second is that I do not see why we should revere the opinions of the Founding Fathers, jointly or severally, at all. Of course, one may choose one's personal heroes as one will, but that is a different matter. The fact that I revere the fictional opinion of Honor Harrington does not mean I am saddened when I perceive that my nation does not follow suit. Yet there are those of my countrymen who revere the opinion of (for instance) Madison, who seem saddened when they perceive that our nation does not follow suit. This seems incredible to me. How can this be?
I wonder if such people can see no reason to revere the Constitution without elevating the opinions of the authors of that document above those of the common man. Perhaps they ask themselves, "Why should we care a whit what this document says? Is it not two centuries old? Did we sign it? Did our ancestors sign it?"
In law, this is known as the Dead Hand Problem - on what basis can a constitution bind subsequent generations, who after all did not sign it and had no opportunity to debate it when it was being drafted? Perhaps these countrymen of mine can think of no answer to the Dead Hand Problem other than to suppose that the authors of the constitution must have been uncommonly wise, and their opinions uncommonly worthy of consideration.
That is not my opinion. I do not even know how to form an opinion on the wisdom of the Founders individually; I do not think we have sufficient evidence for far too many of them. That strikes me as a thoroughly inadequate answer to the Dead Hand Problem. I will tell you my answer, though - it is that neither I, nor any other American, has emigrated.
Plato articulates my answer in the Crito. In it, Socrates is in jail, awaiting the appointed hour of his execution. His wealthy students and foreign admirers have pooled their considerable resources and are prepared to break him out of jail, spirit him away to a foreign nation, and conduct a propaganda campaign in his native Athens to rehabilitate his image and convince those who doubt that his conviction was unjust to begin with. Everything is prepared. But what, Socrates asks, would the laws (nomoi, constitution) of Athens say to such a scheme?
He imagines their answer would go something like this:
“Observe then, Socrates,” perhaps the laws would say, “that if what we say is true, what you are now undertaking to do to us is not right. For we brought you into the world, nurtured you, and gave a share of all the good things we could to you and all the citizens. Yet we proclaim, by having offered the opportunity to any of the Athenians who wishes to avail himself of it, that anyone who is not pleased with us when he has become a man and has seen the administration of the city and us, the laws, may take his goods and go away wherever he likes. And none of us stands in the way or forbids any of you to take his goods and go away wherever he pleases, if we and the state do not please him, whether it be to an Athenian colony or to a foreign country where he will live as an alien. But we say that whoever of you stays here, seeing how we administer justice and how we govern the state in other respects, has thereby entered into an agreement with us to do what we command; and we say that he who does not obey does threefold wrong, because he disobeys us who are his parents, because he disobeys us who nurtured him, and because after agreeing to obey us he neither obeys us nor convinces us that we are wrong, though we give him the opportunity and do not roughly order him to do what we command, but when we allow him a choice of two things, either to convince us of error or to do our bidding, he does neither of these things.”
That's my answer to the Dead Hand Problem. Forget the Founding Fathers.
