In many debates about what the law ought to be, we will find people who throw in quotes from the "founding fathers" in favor of their view as if this actually offers some measure of support for their position. When they do so, they often commit one of three mistakes.
(1) They lie; or, at best, they "bear false witness" against the founding fathers by attributing to them something they did not say or, by taking the quote out of context, claim that the individual meant something he did not mean.
(2) They forget that the founding fathers were human and, as such, were as prone to mistakes as any human. Simply because the founding fathers said that things should be a particular way does not prove that they should be that particular way. After all, the majority of the founding fathers endorsed slavery, and many owned slaves. The social status of women and children were better than slaves but only men were “created equal”. They advocated taking land from the Native Americans at will and slaughtering those who resisted. If we are concerned that our actions are more right than wrong, then we have to look at the founding fathers and ask, “Was this one of the times that they were right, or one of the times that they were wrong?”
(3) Everybody suffers some lapse between their ideals and their actions. We need to recognize this fact, and accept the possibility that a person’s actions are sometimes poor evidence of their ideals. Similarly, when we look to the founding fathers for moral guidance, we have to ask whether their actions embodied their principles or violated those principles. If we assume that all of their actions embodied their principles, we set ourselves up to commit the same moral lapses that they did and to trick ourselves into believing that they were justified.
Lying and "Bearing False Witness"
Many of the quotes used in the campaign to destroy the wall of separation between church and state have proved out to be false (at worst) and unproven (at best).
David Barton provided many of these false or questionable quotes. This list includes the following:
We have staked the whole future of American civilization, nor upon the power of government, far from it. We have staked the future of all of our political institutions upon the capacity of each and all of us to govern ourselves ... according to the Ten Commandments of God. -- James Madison (false)
Whosoever shall introduce into the public affairs the principles of primitive Christianity will change the face of the world. -- Benjamin Franklin (questionable)
The only assurance of our nation's safety is to lay our foundation in morality and religion. -- Abe Lincoln (questionable)
Yet, these quotes, and others like them, continue to show up.
Whoever uses them demonstrates a lack of concern over whether the claims they make in support of their position are true or false. They prove that they have little or no interest in meeting their moral obligations to speak the truth. They are more than eager to use a fiction if it proves useful. If they do not know whether a statement is true or false, they judge it on its usefulness. If it is useful, it is true; if it is not useful, it is not true.
Somebody of strong moral character, who truly cares about right and wrong, could not accept such deception.
Moral Error
The founding fathers were not perfect. Clearly, they made mistakes, and they built their moral errors into this country’s foundation. Slavery and the subjugation of women provide two widely known examples.
One of the sources of friction between England and the colonies in America arose as a result of the Proclamation of 1763. In this proclamation, England prohibited the settlers from advancing west of the Appalachian Mountains. They said, "All of that land belongs to the Native Americans. All English subjects are to stay out." They then started building forts to help enforce this rule.
However, the American colonists looked at the land beyond the Appellation Mountains and could not contain their greed. They wanted to take this property for themselves, and chaffed against the constraints that England put on them.
Morality in this case sided with England, not with the American colonies.
If we use America’s behavior to interpret their principles, we would have to say that their morality included an obligation to take the land from the Native Americans.
If we judge the principles of the Founding Fathers by their actions, then we would have to include that a moral permission to take the land from the Native Americans and offer it to themselves was an important part of their morality.
This does not give us a moral permission to accept the slaughter of Native Americans ourselves – or of slavery – or of the subjugation of women.
Moral Lapses
Another important error to avoid is that of using the lapses that we find in the words and deeds of the founding fathers as an excuse to commit the same lapses ourselves.
“Originalist” judges disagree with this principle. They assert a philosophy that ultimately implies that we are free to repeat any moral lapses that we can discover in the words and deeds of the founding fathers.
For example, the founding fathers banned cruel and unusual punishment. If we learned that they favored slowly roasting certain prisoners over a bed of hot coals, these originalists tell us that we must interpret the rule as saying that this is not cruel and unusual punishment. Instead, we must be willing to accept the possibility that the founding fathers were too weak to follow their principles without error, and sometimes did things that violated their own moral code as embodied in the Constitution and the Bill of Rights.
My parents smoked cigarettes. While I was growing up, they constantly told me not to smoke cigarettes, even though they smoked themselves. They would have been sadly disappointed if I had decided that since they smoked, their warning that I should not smoke could not possibly be interpreted as a request that I not smoke. I must interpret their words “Do not smoke” in ways that allow to conclude that I may smoke (because my parents did), and may even have an obligation to smoke.
Conclusion
The beliefs of the founding fathers might have some relevance to what the words written into the Constitution actually mean. As such, they may be useful in telling us something about what the law is.
However, these quotes have this power legitimately only if we know that the quote is correct. False quotes are attempts at manipulation; tricking people with a falsehood into giving up something that they would not give up if they knew the truth.
These quotes are not at all useful in telling us what the law ought to be. Even if we were to discover accurately what the founding fathers believed, they could have been wrong. We know they were wrong in a number of cases – slavery, subjugation of women, taking land from Native Americans. Each new case invites us to ask, "Is this a case where the founding fathers were right, or one in which they were wrong?" Ultimately, this question has to be answered before we use this quote to advance any specific view of what the law ought to be.
Even if the quote represents a moral truth, we have to ask if any given action represents the agent’s moral views. We have to accept the possibility that the founding fathers, being human, may be rationalizing the defense that actually violates the principles they fought over.
If the person using the quote fails to do these things, we may doubt that he or she really cares about truth and justice. A good person would not hide the truth, or look for excuses that would allow him to shirk his moral duties.
People who use quotes from the founding fathers incorrectly are not good persons.
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