So many of the basic concepts associated with our history were presented to us at such a young age that it can be very difficult for us to see them afresh. For example: Who were the authors of Constitution and Declaration of Independence? Some fellows called The “Founding Fathers,” we reflexively utter. To the extent we give it any thought at all, most of us take this term to indicate those men who founded, built, or established, a new nation, conceived in liberty, and so on and so forth.
But I’m afraid we have fallen victim here to a bit of folk etymology. Sometimes the obvious definition is not the correct one. For instance, our word to “buttonhole” is a misrendering of “button-hold,” a little loop that holds down a button on a garment. And in the context of pinning someone down with your scintillating conversation, it makes much more sense this way, despite the etymological corruption. So too in the case of these men we call “Founders”: Washington, Jefferson, Hamilton, Franklin, Sam Adams, John Jay, Roger Sherman, Patrick Henry—the whole lot, were actually foundlings, abandoned by their mothers and left to die of exposure, only to be rescued and raised by wolves.
Happily, the proper recovery of this term can give us important new insights to help understand this most essential of foundational documents, from which so much of our national philosophy, psychology, and jurisprudence springs forth.
One of the main functions of a constitution is to locate sovereignty. We’ve deposed the Prince, the traditional residence of sovereign power, necessitating a new home for it. In searching for this home, the first question we may ask is whether our sovereignty is unitary or federal. Unitary sovereignty is centralized; federal sovereignty is distributed among states or provinces. (This can be a little confusing to those of us who paid attention in history class, because the original Federalists—people like Alexander Hamilton and James Madison--actually opposed the “federalist” model, which they felt was inadequate to the job of effective governance. The first American government, promulgated under the Articles of Confederation, was too decentralized, they argued, while the Anti-Federalists—in other words those who supported the federalist model—argued that placing too much power in a centralized unitary government would only lead to a resurgence in the kind of tyrannical oppression the Revolution had just thrown off. Monarchy again, in all but name.)
Where, then, is our sovereignty located? Is it in “The People,” in the several states, in the Federal government, in the foundling document itself?
The typical wolf litter is around 5 to 6 pups. A female wolf has around 8 to 12 breasts. It is rare thing in nature for a wolf litter to number higher than the total amount of its mother’s breasts. But it is also a rare thing in nature for a group of human infant boys to simultaneously be abandoned by their mothers and left to die of exposure, only to be rescued and suckled by wolves until they are strong enough to fend for themselves. We owe our origin as a nation to a very unique historical event, precipitated by Oracular pronouncements that these infant boys would cause great upheaval (as they did). We don’t know exactly how many She-Wolves there were on hand to suckle the Foundling Fathers; that has been lost to history. We do know that at a certain point, the feeding of the Foundling Fathers was supplemented by woodpeckers and other birds. Nothing in the historical record indicates that any of the Foundling Fathers were lost to malnutrition or starvation. But it seems fair enough to surmise that—at least at first—the Foundlings experienced a great deal of anxiety over the impression that there were just not enough nipples to go around—a pathology universally glossed over in the many myths and fairy tales of Foundling heroes.
We can see the remnants of this anxiety reflected in the debate, in the pages of the Federalist Papers, and later at the Constitutional Convention itself, over whether or not to enumerate a Bill of Rights. Hamilton felt that the presence of enumerated rights would imply that any unenumerated rights would be presumed not to apply, which would lead to Tyranny. Anti-Federalists, in turn, argued that enumerating no rights whatsoever would guarantee Tyranny from the start. In both cases it is important, for our present purpose, to mentally substitute for the word rights, the word nipples; and for the word tyranny, a Deprivation of Nipples.
This is our founding document. We should know the minds of the men who wrote it, what their concerns, preoccupations, and even obsessions were. What we discover is that they were so fixated on whether or not there were going to be enough nipples that they never really got around to solving the problem of where sovereignty resided in our system of governance.
Orthodox historians will tell you that the lack of a clear solution owes to a stalemate between the opposing philosophical views of the Federalists and Anti-Federalists, but this view overlooks what all the Foundling Fathers had in common—that they were foundlings! It is much more parsimonious to suggest that they were spending so much energy on nipple anxiety that there wasn’t enough left over to creatively solve the problem of where sovereign power lies. So they fudged it, as in Amendment 10:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
In other words, some sovereignty is delegated to the States, or possibly to the citizens of those states (to whatever extent these constitute a separate political entity), except that more powers may be granted back to the central government at any time by constitutional amendment, which may be proposed by either Congress or a majority of states. Are we clear?
At the heart of The Constitution and Bill of Rights is this paradox: If Sovereignty resides in the People (“popular sovereignty”), then what do we even need government for? Isn’t need of a structured legislative, executive and judicial branch all the evidence you would require for the absence of sovereign power? A mob is not sovereign, nor is any random collection of people in a subway car. On the other hand, if Sovereignty resides in the Government, then what do we need Democracy for? Why should the “will of the people” be any more germane to our welfare than it was to the divine emperors of China or the Holy Roman Empire?
A corollary paradox: if the People who reside in the Several States are the same People who reside in the United States—as they must be—and Sovereignty resides in the People, then how can the states and the Federal government be at cross purposes? After all, each is the political expression of the same sovereignty. Why even have a debate over Federalism at all, if we are taking any of this seriously? Furthermore, if there really is such a thing as “The People;” if we are, as the Preamble says, a unitary “We the People” and not a collection of many peoples or persons, then again I ask what the point of Democracy is. One People, One Vote?
In that one first phrase in the Preamble, “We the People,” are so many confusions sown. Being united is, you will notice, something that we can’t stop talking about. We’re obsessed with submerging our selfhood into a greater whole, like reverse mitosis. To be united, after all, is more than to merely be allied, or in league, or in solidarity; it is to be fused, like two neighboring vertebrae that have insufficient cartilage between them to continue to function independently. Good fences make good neighbors. “United We Stand, Divided We Fall” is the motto of the codependent family, terrified above all that one member will stand up for herself in a healthy way, disclose the family secrets on Wikileaks, expose the damage, call for accountability. “We must all hang together,” said Benjamin Franklin, “or we will assuredly hang separately.” Well, speak for yourself, Ben.
This is just the kind of confused pathology one would expect to emerge out of the trauma of being abandoned and left to die, then being suckled by an indeterminate number of she-wolves, and fed by woodpeckers who never seemed to come around often enough, but it never seems to be the right time to bring this up, even now, 233 years after the fact. There’s always some emergency, and if it’s not being abandoned and left to die it’s being taxed without representation by the Imperial British monarchy, or being attacked by Indians, or Spaniards, or the Kaiser, or the bomb-throwers in Haymarket Square, or, Somebody just blew up the USS Maine, or launched Sputnik, or embargoed our oil, or, Violent extremists have taken over the Civil Rights movement, they want to steal your car radio and screw your daughter, or, Somebody just tried to detonate his underwear. There is always some kind of urgent crisis.
And so we eternally fail to confront the fact that we are living in an incomplete, unidimensional political landscape. It all sounds good until you get outside the bubble and start to realize how much doesn’t add up, how much is missing. We got the One For All part, but we left out the All For One part. We got “From each according to his abilities” but we left out “To each according to his means.” And this makes it inordinately difficult to see actual hardship, privation, or injustice when it resides in an individual citizen or household. We can’t see the trees for the forest; the persons for The People.
Foundlings need to survive, and to keep from going crazy they often need to make up elaborate fantasies. But once these fantasies serve their purpose, they tend to just get in the way. At a certain point, these fantasies become useless fictions. Ghosts.
One of the ways you can tell that the Constitution is a ghost-filled place is that the Supreme Court is always trying to have séances with it. It’s common practice when the Court convenes for Justice Scalia to actually drag out a Ouija board and try to contact the Spirit of the Original Intent of the Words of the Constitution. Scalia, like all originalists, believes that the We The People Ghost of 1789 is real, and trods the earth in chains, like poor Jacob Marley. (Little known fact: Before every session of the Supreme Court, Scalia makes sure to have an undigested bit of beef, a blot of mustard, a crumb of cheese, and a fragment of underdone potato for dinner the night before.)
As easy as it is to expose this position to the mockery it deserves, let’s not forget that the opposite interpretation, the “Living Constitution” of the loose constructionists, is just as spooky and supernatural. In 1920, Oliver Wendell Holmes wrote that the words of the Constitution
have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism… The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment. (my emphasis)