The Origin of America’s War with Itself
Tags: Liberalism, Supreme Court, Conservatives, Politics, Constitution

The Origin of America’s War with Itself

Conservatives are fond of talking about the importance of the Constitution, the Framers, and their intents. Today, each of the conservative Supreme Court justices describes themself as some flavor of ‘textualist’ or ‘constructionist’ or ‘originalist’ with respect to how they understand and interpret the Constitution. These judicial philosophies ostensibly describe a philosophy of judicial restraint, wherein the text of the law is given priority over the urge to attempt to fix every problem that comes before the Court. However, the movement toward such ‘textualist’ philosophies accepts at face value some dubious assertions about the Framers and their intents. In particular, proponents of ‘textualism’ ignore the role of the ultimate anti-textualists, a religious group known as the Quakers, in the development of the United States Constitution.

Quakers are the proverbial ‘elephant in the room’ when it comes to the framers of the Constitution. The Quakers were a group of radical religious activists whose governing philosophy was actually enshrined in the Constitution. Probably one of the oddest things about America today is how Quaker innovations are venerated, even fetishized, as the Quakers themselves are on the verge of being forgotten. Freedom of religion? That was from the Quakers. Separation of Church and State? Quakers. Amendable Constitution? A Quaker invention. Any question of what the Framers intended ultimately leads to the Quakers, because it was Quaker ideas that inspired the drive for independence, and the writing of the United States’ Constitution.

Quakerism has always been controversial, even among Quakers themselves. I had the privilege of learning about Quakerism from my Grandmother, who was among the last generation born into a traditional Quaker community in Iowa City, Iowa. She was frustrated at how the Quaker practice of modesty and humility had gotten in the way of Quakers being remembered for their contributions to American society. As I child, I was devouring books about Washington, Jefferson, Hamilton and Burr. My grandmother’s accounts of Quaker history offered an antidote to hagiographies about generals and statesmen. America is not just a collection of laws and battles. At its best, America is a unique alliance between plain-spoken, honest people of faith and a class of warrior-politicians who defend their freedoms. Quakers generally avoided self-promotion, but they were trailblazers in asserting the universal rights and freedoms we now take for granted.

Quakerism started in England, more or less as a protest movement against state-sanctioned ‘magisterial’ religions. In the 1650’s, England had just suffered through over a decade of a bloody three-way civil war among armies representing three different flavors of magisterial Christianity: Catholics, Anglicans, and Puritans. Just as the Puritans were emerging victorious, under the leadership of the Puritan general ‘Lord Protector’ Oliver Cromwell, the Quakers called ‘bullshit’ and started walking out of church. There was nothing more holy about the Puritans than the Anglicans or the Catholics, and many of the faithful in England had come to recognize that the combination of religion and warfare was an abomination. Numerous early Quakers had actually been soldiers in Cromwell’s armies, and they weren’t buying that their new Puritan overlords were any different than a king or a pope.

The Quaker MO was to out-Puritan the Puritans. Quakerism was a pacifistic guerilla war, leaderless and disorganized. Dozens of lay preachers traveled across England encouraging the faithful to walk out of Church and sit together in communal prayer, in the manner of ‘primitive Christianity’. Eventually, the ‘Religious Society of Friends’ was formed to serve as a loose organizing structure for Quaker activists, primarily to monitor who was in what jail and how to get them out. As members of the Society of Friends, Quakers set themselves apart by dressing and speaking differently than mainstream society, wearing plain grey clothes and adopting their own old-timey bible-speak. Despite being mocked as illiterate simpletons, Quakers managed to attract some fairly wealthy and sophisticated members, including William Penn, who deployed is wealth to found the colony of Pennsylvania.

The constitution of the Quaker colony of Pennsylvania was the chance for Quakers to put their beliefs about governance into writing, but they confronted a paradox: the Quakers didn’t trust writing. In fact, some of the earliest Quaker documents were signed “The letter kills, but the Spirit gives light”, a bible verse from Corinthians. One of the ideas that animated the Quaker movement was the observation that as soon as a moral or spiritual law is committed to paper, people will start to look for ways to get around it. This was the central conflict of the Bible, when Jesus confronted corrupt rabbis, and it was the central conflict between Quaker activists and the various ‘magisterial’ religions, wherein the Quakers confronted corrupt professional clergy. Quakers were adamant the law had a letter and a spirit, and that only the spirit of the law mattered. Catholic, Anglican and Puritan leaders could justify virtually anything, citing texts, laws and verses to back them up, but many of their actions were still manifestly immoral. Quakers were, quite simply, anti-textualists.

Bearing this in mind, the Quakers proposed an innovative, groundbreaking constitution for their colony in Pennsylvania. Entitled the ‘Frame of Government of Pennsylvania’, William Penn’s 1682 constitution of the Pennsylvania Colony was predicated on a mistrust of the letter of the law and an understanding of the ongoing need to address human fallibility in government. The Frame of 1682 could be amended, it provided for balance of powers, it guaranteed religious freedom, and it provided a mechanism for impeachment of corrupt officials. The Pennsylvania Frame was the ‘killer app’ of the colonial charters. Rooted in Quaker principles and freed of bureaucratic and theological overreach, Pennsylvania was immediately the preferred destination in the American colonies. Pennsylvania rapidly became the most populous colony, with Philadelphia second in population only to London among cities in the English-speaking world.

To be sure, by the time ‘the Framers’ wrote the United States Constitution, in the Quaker-founded city of Philadelphia, Quakers were not in the room. Despite having set up and designed the Pennsylvania Colony, Quakers had stepped aside from political leadership by that point. Indeed, the whole drive for independence had a certain ‘hold my beer’ vibe. Quakers, with their idealism and their dedication to personal freedoms, had inspired the mercantilists and plantation owners of the remaining colonies to join forces and fight for freedom. Those mercantilists and plantation owners were the Framers, and just because they wanted the same freedoms and protections from government overreach as the Quakers didn’t mean they were converts.

The Framers of the Unites States Constitution were probably more concerned with keeping Quaker ideas out of the Constitution than celebrating them. By the time the Constitution was being drafted, Quakers were solidly anti-slavery, and nobody was letting them anywhere near the Constitution. That is why the Framers adopted the Federal organization of government, after trying and failing under the Articles of Confederation. The Framers wanted to contain Pennsylvania, not expand it. They just didn’t do a very good job of it.

The Bill of Rights wasn’t even in the Constitution when it was ratified, because many of the Framers were propounding a fiction that the new Federal government would somehow be incapable of violating anyone’s personal freedoms. Even as the states ratified the Constitution, the Framers lied to themselves and their constituents about what it would mean. The Bill of Rights was only added once a number of states made their ratification of the original Constitution dependent on addition of a Federal Bill of Rights. Thus, in spite of themselves, the Framers allowed the Quaker notion that personal rights and freedoms are absolute into the Constitution.

Ironically, probably the strongest argument in favor of ‘textualism’ is this having-your-cake-and-eating-it mindset of the Framers. In the sausage factory that is the lawmaking process, there are a great many half-truths. It’s easy to pass a great-sounding law. The problem comes when you have to live with it. Everybody knew, from day one, that the Bill of Rights was inconsistent with Slavery. For nearly a century the courts allowed the Bill of Rights to coexist with slavery on the basis that, wink, wink, we all know what the Framers really meant when they passed the Bill of Rights, right? A ‘textualist’ argument is that the many legal challenges to slavery would have been more successful had the Supreme Court had the courage to grapple with the law as written, not as imagined in the minds of the Framers. The futility of this line of reasoning is also immediately apparent: ‘textualists’ could likewise argue that they were honoring the intents of the Framers by preserving slavery and interpreting the Bill of Rights accordingly.

Quakers long recognized textualism, by any name, as a road to nowhere. Ultimately, it really doesn’t matter if the framers were trying to preserve the spirit of Quaker philosophy in the United States Constitution or not, because the Quakers’ observations about textualism are true, regardless. The text of laws lack morality, and justice requires morality. It doesn’t matter if the laws are in the Torah, the Bible, or the Constitution. Corrupt courts have long perpetuated immorality by arguing that their hands were tied by the text of the law. The structure and powers of the Supreme Court were devised specifically to prevent that. One of the ground-breaking innovations of the Pennsylvania Frame of 1682 was a provision that the courts could strike down laws that were contrary to the Frame. That is part of the separation and balance of powers found in the United States Constitution. If today’s ‘textualist’ court wants to permit or perpetuate injustice on the basis that their ‘hands are tied’ because of textualism, they are no more or less corrupt than if they were to perpetuate injustice for any other reason.

To be sure, Quakerism isn’t all sunshine and buttercups. There are significant problems with Quakerism as a governing philosophy, not the least of which is the impracticality of the Quakers’ pacifism. You wouldn’t want to live in a country governed by Quakers, and it wouldn’t last long. Moreover, there are legitimate arguments for judicial restraint and paying close attention to the text of the law. However, there is a dishonesty in refusing to acknowledge the Quaker roots of our republic. Many ideas that we take for granted today were first promulgated by this radical Christian sect.

The collection of merchants and gentleman plantation owners who ultimately assembled the United States Constitution were very aware of who the Quakers were, even if they had mixed feelings about Quaker ideals. We all know that less than one hundred years after its ratification, the South revolted against the terms of the Constitution in the Civil War, and one gets the feeling that much of America still can’t quite believe that they are bound by what is essentially a ‘Quaker contract’. If America seems to constantly be at war with itself, this isn’t something new. It goes all the way back to the Quakers in Pennsylvania, and it is well worth learning more about who the Quakers really were if you want to understand the Framers’ relationship with America. The question then is the same as now: how do you wrap up all that idealism and freedom in a republic that can survive and flourish in the real world?