What Would The Founders Do Today?


The 1794 frontier uprising known as the Whiskey Rebellion was, despite the comic ring of its name, the most serious domestic violence between the Revolution and the Civil War. The point at issue, however, was not drug use but taxes. Hamilton’s financial program required a tax on distilled spirits. Distillers in western Pennsylvania resented paying it, fought gun battles with the local excise collector, and raised a rebel flag. Washington sent an army five times larger than the one he had led across the Delaware before the Battle of Trenton to put the rebellion down, and it melted away.

Before things reached this point, Hamilton defended his excise to Congress. A whiskey tax, he argued, was fair: “There appears to be no article … which is an object of more equal consumption throughout the United States.” But then he had second thoughts; maybe Pennsylvania frontiersmen did drink more. If so, “it would certainly not be a reason … to repeal or lessen a tax, which, by rendering the article dearer, might tend to restrain too free an indulgence of such habits.” There, in the midst of a controversy that would lead to rebellion, the Founder with the most expansive view of the powers of the federal government staked out the maximum drug-war position of his generation: If a tax brings down whiskey consumption, so much the better.

The Founders would not have fought a war on drugs.

Did the Founders think America was a Christian nation?

In 1797 the Senate considered a treaty, negotiated the previous year, with the bashaw of Tripoli. The United States agreed to give him cash and presents and declared, in one clause, that America bore “no character of enmity against the laws, religion, or tranquility of Musselmen,” for it was “not, in any sense, founded on the Christian religion.” Tripoli and the countries of North Africa ran a naval protection racket, extorting ransoms for captives they seized or selling their good behavior, in treaties such as this one. North African slavery was horrible, and since the United States could not protect its shipping or its citizens, it found it prudent to pay in advance. Tripoli’s true religion was thievery, but the clause on Christianity and Islam was designed to remove any pretext for trouble. The Senate passed the treaty unanimously, and President Adams signed it three days later. When honor yields to necessity, there is no point quibbling over details. (Four years later the bashaw upped his price and declared war, forcing us to deal with him differently.)

In fact, there was no cause to quibble with the bashaw about creeds. The United States was not founded on the Christian religion. The First Amendment, forbidding a national religious establishment, had been ratified in 1791. The year before, President Washington wrote the congregation of Touro Synagogue in Newport, Rhode Island, that America did not practice “toleration”; it was not “by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights.” In 1793 he wrote the Swedenborgian New Church in Baltimore “that every person may here worship God according to the dictates of his own heart.” That amendment and these statements are a better guide to the Founders’ views than a treaty with pirates.

Would the Founders back state-sponsored gambling?

In February 1826, the last year of his life, Thomas Jefferson asked the Virginia legislature to authorize a lottery. In his petition, he analyzed the morality of games of chance.

His first point was startling. “If we consider games of chance immoral, then every pursuit of human industry is immoral; for there is not a single one that is not subject to chance.” Captains risk their ships, and merchants risk their cargoes; farmers bet on the weather, builders bet on the real estate market, hunters bet on the prevalence of game. “These, then, are games of chance. Yet so far from being immoral, they are indispensable to the existence of man.” In one swoop, he overturned all of Benjamin Franklin’s almanac maxims about hard work.

His second thought was more cautious. Trade, farming, and the rest produce real goods when the bet pays off. But games of chance that were pure diversions—Jefferson specified cards, dice, and billiards—“are entirely unproductive.” They were also “so seducing … to men of a certain constitution of mind, that they cannot resist the temptation” of betting on them. In such cases, “as in those of insanity, idiocy, infancy, etc., it is the duty of society to take” gambling addicts “under its protection; even against their own acts, and to restrain their right of choice of these pursuits, by suppressing them entirely.” Jefferson the libertarian saw chance everywhere; Jefferson the republican saw the damage that the pursuit of it sometimes did. The two Jeffersons dueled till the end.

Jefferson concluded that lotteries belonged to a third class of games of chance, those that were harmful if they became habitual but “useful on certain occasions.” The Virginia legislature therefore had the right to permit lotteries on a case-by-case basis and had done so, Jefferson pointed out, for 70 worthy causes from 1782 to 1820, from helping the College of William and Mary to improving the road to Sniggers Gap.