What Would The Founders Do Today?


The Founders invite our questions now because they invited discussion when they lived. They were argumentative, expansive know-it-alls, hanging their ideas out to dry in public speeches and in journalism. Not everything they did was for public consumption or discussion. They schemed behind closed doors, as all politicians do, and they issued sweeping pronouncements from on high, as proud and intelligent people often do. “I have written very dogmatically,” said Fisher Ames at the end of one letter, describing the doings of the First Congress, “and why should I affect doubts, when I entertain none?” Yet since the Founders also knew that the judges of their plans and their doings were the public, they constantly sought to show, demonstrate, persuade, or inspire. The Declaration submits itself to “the opinions of mankind.” The Federalist papers declare that their arguments “will be open to all and may be judged of by all.”

All their lives the Founders had to say what they would do. So why should they get a rest when we need a little advice?

Would the Founders support the death penalty?

The Founders assumed that the national government would not have much to do with crime and punishment. At the Continental Congress, John Witherspoon, Madison’s teacher in college, remarked in passing that “nothing relating to individuals could ever come before” them; the states, he assumed, would handle all such matters. Even after the Constitution increased the national government’s power, Alexander Hamilton argued that the most power-hungry men would not be tempted to meddle in “the mere domestic police of a state.” In the eighteenth century, police meant both a community’s laws and the police force that upheld them.

Even so, the Bill of Rights discusses capital punishment. The Fifth Amendment assumes that certain criminals will be executed, though it limits the ways in which this may be done. No one may be “deprived of life” without due process of law. There will be no summary judgments—no death warrants by Executive Order or punitive special bills in Congress; everyone accused of a capital crime will get a trial. Finally, no one may be put “in jeopardy of life” for the same crime more than once. Prosecutors can’t keep trying a man until they hang him.

The Eighth Amendment forbids “cruel and unusual punishment,” meaning torture. Capital punishment was not unusual and not, by itself, considered unusually cruel.

As Commander in Chief during the Revolution, Washington did not hesitate to execute or to threaten it. Maj. John André, a charming young British spymaster, was caught behind American lines out of uniform and hanged as a spy himself (his agent, Benedict Arnold, got away). As the war wound down, some unpaid, undersupplied American soldiers in New Jersey mutinied. After the mutiny was quelled, two of the ringleaders were shot. Washington was “happy” not to have to execute more but warned that such “lenity” would not be shown “on any future occasion.”

Yet on other occasions Washington did mitigate the death penalty. After he put down the Whiskey Rebellion, a tax revolt in western Pennsylvania, two of the rebels were convicted of treason and condemned to death; since they were small fry—the real leaders had fled—Washington pardoned them both. Leadership is an art, and Washington knew there are no hard-and-fast rules. But he never excluded the ultimate penalty.

What would the Founders think of gun control?

The backstory of the Founders’ thoughts on the politics of gun ownership begins with the politics of England, a hundred years earlier.

During the reign of James II (1685–88), Protestant Englishmen feared that they would be disarmed by their Catholic king and bullied by his large professional army and its Catholic officer corps. That is indeed what James planned. His Protestant subjects forestalled him by chasing him from the throne in 1688, with Dutch help. One consequence of the Glorious Revolution was the English Bill of Rights, banning standing armies in England in peacetime and guaranteeing Protestants the right to bear arms “for their defense.”

William Blackstone, a mid-eighteenth-century legal commentator, explained the right of “having arms” as a firewall, “barriers to protect and maintain” other rights when ordinary protections had crumbled. “It is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.”

The gun provisions of the English Bill of Rights and Blackstone’s discussion of them became relevant when the Constitution was being ratified. Patrick Henry and Gov. George Clinton of New York feared a stronger federal government. Once the Constitution passed, they offered amendments condemning standing armies, upholding the right to keep and bear arms, and praising militias (ordinary citizens summoned to fight by their states). “A well regulated Militia composed of the body of the people trained to arms,” said the Henryites and Clintonians, “is the proper, natural and safe defence of a free State.” After passing through Congress and the massaging hands of James Madison, this became the Second Amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” The slap at standing armies had fallen away, but the militia and the armed citizenry remained, no longer a last resort for Protestants against scheming, aggressive Catholics, but for the states against the federal government (and, in theory, for the people against oppressive government). If guns were illegal, only armies would have guns.