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Thursday, June 09, 2011

Originalism, Foundation Mythology, and Paul Revere's Midnight Ride

I probably disagree with Sarah Palin on most political issues, and in the unlikely event I ever sat down to chat with that most conversational of former governors, she and I would probably find little ideological common ground. Beyond that, I am not quite sure I can trust anyone who appears as gifted as she surely is as a salesperson. My psychological intuitions are not keen enough to discern whether she fully believes in what she’s selling, or whether she simply believes that what she’s selling is highly saleable. I doubt very much that anyone else (not even Ronald Reagan) could have successfully packaged the American “foundation” as a family holiday bus tour, and offered it up for public consumption with apparent conviction and genuine aplomb.

The Paul Revere matter presents a more particular and more delicate case in point. Images of his midnight ride endure faintly for me as blended childhood memories of my parents reciting Longfellow and of me taking in Bicentennial Minutes broadcast on CBS just before bed time when I was nine. Objectively speaking, those sources can’t justify any firm faith on my part that Revere did not ride out ringing dem bells like a Christmas elf, aiming to warn the British not to seize American arms [I’ll leave commentary about conflicted and contested national identities during the British North American Civil War of 1775-1783 for a later post]. But when it comes to the question of whose arms the British were to refrain from seizing, my visceral response to Palin’s account becomes somewhat more cynical, and my suspicion that she departs from Longfellow’s narrative for calculated and designing reasons that much stronger. The arms, one learns when listening to her clarifying remarks offered the day after the visit to Boston, belonged to “private militia”. When reporting that the arms Revere rode forth to guard from the confiscating hands of the King’s men were held by private militia, Palin employs (quite deliberately in this instance I believe) coded speech signaling to fellow travelers her endorsement of a right to revolution even for light and transient causes. Her belief that the militia of the Second Amendment, or the Army of the Constitution, was no creature of provincial law but a spontaneous manifestation of pooled privatistic resistance to authority serves as a perfect synecdoche for her vision of a restored America in which there is very little in the way of governance and a great deal in the way of flag waving nationalism.

Now, it may well be that her vision is noble and principled, and that it holds out hope for redemption of the greatest possible number of residents of these shores. My question is why must it appeal to imagined history for authority? In 2011, why do people who know very little history debate the merits and demerits of gun control and the advantages and disadvantages of the regulatory state by reference to historical events they understand only on a mythical level, or that they willfully misconstrue? I do not agree with originalism of the original public meaning variety for many reasons (principally its demonstrated failure to lead to “neutral” judging), but I acknowledge the philosophy is at least coherent. If one believes that governance by judiciary is illegitimate, and that doubtful constitutional text admits of a single interpretation allegedly dominant at the time the text was ratified, then judicial recourse to original public understanding presents a possible answer to a pressing problem. Nor do I believe in the continuing viability of the constitutional compact-based justification for judicial review first offered up by Chief Justice Marshall in Marbury v. Madison, chiefly because I agree with Jefferson that past generations should not govern the living. But if in some abstract sense judges are not usurping the people’s will be merely checking the people’s legislative agents who would otherwise abuse the will of the people on fundamental questions reduced to written form in the constitutional compact, then judicial veto of legislation is less anti-democratic then it may appear.

What I cannot understand at all is how Sarah Palin’s implicit claim that cultural preferences that allegedly prevailed in 1775 or 1787-89 continue sacred and inviolable today acquires legitimacy. Quite apart from the former Governor’s lack of expertise on late eighteenth century North American cultural history, why does the assumption that Paul Revere’s rode for anti-statism in 1775 require right thinking Americans to be anti-statist today? Palin’s claim goes several levels beyond the distinct desires of Justice Scalia or Chief Justice Marshall to discipline judges or legislators by the express terms of a constitutional compact. Palin’s presumption enshrines principles alleged to dwell outside the constitutional text and makes of them un-amendable law. On an intuitive level, tens of millions agree with Palin that the United States was libertarian in its foundations and that loyalty to the American character requires continued faith in libertarianism in the here and now. Their beliefs, I suspect, are under-theorized, in the sense that their adherents can offer only circular explanations for their faith. Right-thinking Americans are duty bound to be libertarian today, the believers proclaim, because right-thinking Americans were libertarian in the beginning. I’d be intrigued to hear more compelling accounts for the continued relevance of Paul Revere. I submit one could argue as cogently for or against constitutional restraints on gun control if Paul Revere were left out of the picture entirely. Then again, when Longfellow commemorated the famous ride of ’75 the year was 1861, and instrumentally at least, the poet’s patriotic appeal served a very powerful and entirely legitimate purpose indeed. Unless of course one endorses a right to secede for purposes of perpetuating oppression, but that is another question for another post.

Posted by Bill Merkel on June 9, 2011 at 05:09 PM in Constitutional thoughts, Culture, Current Affairs, Law and Politics | Permalink

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