Why We Care About the Founders

In response to Chris Eberle, we -- and not just we lawyers -- talk and argue about the founders for a couple of reasons.  (This post is mostly description, and only in part justification.)  First, in the legal realm, the originalist theory of interpretation holds that the Constitution, like other legal documents, should be interpreted now according to the meaning it had at the time of its adoption, either for those who enacted/ratified it or for the general public (as to whom the founders' statements are still evidence).  The argument is that the authoritative legal act took place at that time and so its meaning should be set as of then, combined with an argument (championed e.g. by Justice Scalia) that alternative inquiries  (like "what should be the role of religion in public life today?") are far more disputed and uncertain than asking "What led the founding generation to coalesce behind certain constitutional enactments?"  Originalism can be criticized of course, and it's by no means the exclusive view, but it's significant enough -- and there's enough agreement in legal culture that original meaning is a significant factor in interpretation -- to warrant having arguments over the Founders' views.

Second, not only judges and lawyers but a lot of Americans seem to care about the Founders' views.  Because our nation is built less than others on geographic and ethnic ties and more on a sense of a shared project, the people who started that project -- who are seen as its source, or closer to its source, of inspiration -- have an extra claim on attention.  In contrast to Prof. Eberle, I see this attitude as having "Protestant" overtones, in that Americans look back to the original documents and the generation that produced them -- much as evangelical Protestants look back to the scriptures and the first-century church -- more than they emphasize an evolving tradition.  (I just saw Steve Smith's comments making the same point.)  Of course you can question the analogy between the Christian relevatory generation and the American founding, but for "a nation with the soul of a church" the analogical move isn't that surprising.  Even if the analogy is bad, the sense that our national project starts from some founding principles, to which that generation was closest, is very understandable.

Tom