I want to take a moment to stomp on something that is burning out of control.
During the recent Supreme Court hearings, and in self-serving press conferences afterward, we’ve been hearing a common statement from lawyers, activists and citizens throughout the country which is always raised in culture war battles–”the Founding Fathers couldn’t foresee this.”
I’ve been working on a project for about seven months now that is requiring some pretty close reading of lots of 16th, 17th and 18th century writing. Several years ago, my wife gave me a copy of the New York Times Bestseller List of July 1776, which pretty much tells us exactly what the Founding Fathers were reading, particularly Thomas Jefferson. For nearly 175 years, most of these books have been out of print, and even though I’ve had the chance to read parts in archives, there has never been broad access. In the past ten years, Liberty Fund is putting all of this stuff back into print–both as part of its 1000 volume library on natural law and its Thomas Hollis Library series (Thomas Hollis ran a book of the month club in the 18th century to which many of the Founding Fathers were eager subscribers) It is now becoming much more evident and much more certain what our Founding Fathers were reading. And what we’re discovering is that Founding Fathers were debating Obamacare, marriage equality, creches and menorahs on town commons. In fact, what shocks me is how completely they were thinking about these issues when they wrote not only the Declaration of Independence but also the Constitution. In fact, Liberty Fund is also publishing Spenser’s work, with his criticisms of Obamacare, stimulus spending and the XL pipeline, all written over 150 years ago, and all based on writings that pre dated that drafting of the Constitution. Drones? Gitmo? The Global War on Terror? Hell, Grotius was writing about those in the seventeenth century in Holland!
It has occurred to me, with this wealth of material now readily available, that rather than proclaim that modern jurists have to wing it because this is all new ground, because the Founding Fathers couldn’t anticipate technology, social issues and modern times, that the judges and lawyers who think about these things really need to take some time off, head to the beach, sit on the sand with a good stiff drink, some sun screen and a boddice ripping copy of Hugo Grotius’s Rights of War and Peace, Volume I, II and III. Our Founding Fathers were smarter and more perceptive than we know. All we really have to do is frack into their wisdom.