Correcting the “no true Founder” fallacy

In logic, there is a fallacy called the “no true Scotsman.” The trick of it is, examples to the contrary are illegitimately dismissed. If I were to claim, “No Scotsman runs from a fight,” and you were to point out that “Douglas ran from a fight yesterday and he’s from Scotland,” I might try to dismiss your counterexample by saying, “Douglas must not be a true Scotsman.” If I had no evidence showing that Douglas was not a Scot, I would be committing a logical fallacy by unreasonably dismissing the counterexample.

I would contend that “no true Scotsman” fallacy appears over and over in the historiography of the American Founding. When advocates want to claim something about the Founding Fathers but have a weak case for it, they often try to dismiss counterexamples in this fashion. Perhaps the most destructive “no true Founder” fallacy was committed by Roger Taney in regard to the Founders’ views of slavery. In the Dred Scott decision Chief Justice Taney had no evidence from the writings of the Founders to show that African Americans were not counted among “all men” who were said to be “created equal” in the Declaration of Independence. However, Taney averred no true founder believed the slaves were created equal. He dismissed evidence to the contrary by pointing to the fact that Founders such as Jefferson owned slaves, and therefore would have been hypocritical if they believed the Declaration rights applied to slaves. Adding another fallacy, Taney slyly asserted that no true Founder would be a hypocrite: “the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted.” But that fallacious reasoning did not prove Taney’s own thesis in any way, as Lincoln and others pointed out at the time.

We see the same mistaken pattern of reasoning in our own day with regard to the American Founding, and it goes unrecognized because fallacies always have a semblance of plausibility. Opponents of the American Founding such as Patrick Deneen and Michael Hanby assert that all the Founders were “Lockean liberals,” and that no true Founder believed in natural law and metaphysical realism. No true Founder could have believed in those foundational aspects of sound philosophical anthropology, because that would make them bad readers of John Locke. Whenever a natural law-influenced Founder such as Patrick Henry is raised in objection to Deneen and Hanby, the counterexample is waved away by saying that he wasn’t a true Founder. Hanby writes that the “Declaration’s specification of those rights, its treatment of the end of government, and its justification for dissolving political bonds with England are all recognizably Lockean, irrespective of the Founders’ private predilections about the nature of liberty, virtue, and self government.” No true founder believed in such things, in other words.

There are two good ways of dealing with the “no true Founder” fallacy; a long way and a short way. The long way of dealing with the fallacy is to offer counterexample after counterexample, Scotsman after Scotsman, or Founder after Founder to disprove the false thesis through sheer numbers. Yes, perhaps you can dismiss Patrick Henry; but can you dismiss James Wilson, Gouverneur Morris, Thomas Jefferson, George Washington, John Adams, Alexander Hamilton…and so on? Robert R. Reilly, in his new book America on Trial: A Defense of the Founding, has taken the long road to disprove the fallacious arguments of Deneen and Hanby, thereby showing that the Founder Fathers of the United States were not secret Hobbesians and voluntarists. The radical autonomy of the individual advocated by 21st century libertarians such as Justice Anthony Kennedy in no way derives from their ideas.

In some ways that job of providing example after example of the natural law morality of the Founders has already been done in other books, such as Thomas G. West’s Political Theory of the American Founding. However, unlike West, Reilly pays attention to all the various threads of intellectual provenance which led the Founders to hold the ideas that they did. That deep background on the intellectual milieu of various Founders is important, although it takes time to go through; it is a bit of a “Treebeard-like” answer, to borrow a Lord of the Rings reference. However, intellectual provenance is important for persuasiveness on this topic. Steven D. Smith provided many of the same facts from Roman and early Christian history in his book The Rise and Decline of Religious Liberty to show that the Founders were in fact restoring two secular and spiritual spheres after the absolutism of several early modern British monarchs. In the same way, Robert Reilly shows that the Founders’ rejection of absolutist Divine right monarchy hearkens back to the medieval arguments of Augustine’s City of God. You might say Reilly does for natural law and metaphysical realism what Smith does for the church/state issue.

One of the best parts of Reilly’s book is where he shows Deneen’s arguments about Federalist 10 to be wrong. Madison’s idea of controlling the effects of faction through encouraging a multiplicity of interests was not in order to create diversity for diversity’s sake, as Deneen thinks, but to prevent the frustration of the common good. Reilly shows decisively that Madison was claiming the first object of the new government was to protect citizens’ diverse faculties, as in “faculties of the mind.” It is worth asking, though: what does a scholarly debate about Federalist 10 actually prove? Federalist 9 and 10 were high-level theoretical responses to the anti-Federalist objections of Brutus to the Constitution, that a large republic would not work as well as a small one. In some ways, the 1787 Constitution itself and the government it enshrined are the best answer to Deneen’s misinterpretations—which brings us to the shorter way of answering the “no true Founder” fallacy.

The shorter way is that the fallacy does not have to be answered, because the question does not matter. The real proof is in the institutions the Founders created, not in the Founders’ brains (lawyers take note—this is similar to turning away from legislative history to the original public meaning of the Constitution). From the institutional point of view, what’s more important about Federalist 10 is what Madison was saying about Congress: that the new legislature was geared toward recruiting representatives who would “refine and enlarge the public views.” As Federalist 70 puts it, the legislature is the branch “best adapted to deliberation and wisdom.” Madison aimed for representatives to deliberate about the common good, and to think at a remove, though not completely removed, from the people who elected them to office. This is the approach to the Federalists’ plan of government that Joseph Bessette argues for in his book The Mild Voice of Reason. This approach is very different from the sort of ideas-focused textual analysis of the Federalist Papers that Martin Diamond epitomized.

When these institutional points (as opposed to intellectual provenance points) are raised, Deneen usually brings up the anti-Federalists, claiming that they were correct to reject the Constitution. Following his teacher Wilson Carey McWilliams, he argues that the anti-Federalists were the champions of small-republican virtue, while the Federalists and the new Constitution abandoned virtue for commercialism. Reilly, taking the long approach in his book, does not deal with this anti-Federalist criticism, but given what Reilly says about the Federalists, it is obvious what he would say in response. The answer is that the anti-Federalists did not have a corner on virtue talk, any more than the Federalists had a corner on rights talk. The Federalists were defenders of virtue and believed that culture mattered just as much as the anti-Federalists did. Reilly’s quotes in his “Epilogue” from Samuel Adams, John Adams, and the Catholic Founder Charles Carroll make this point very well.

The shorter, institutional answer to the case against the Founders is an area where many questions still remain. Americans in 2020 are challenged to find ways to encourage deliberation about the common good in our existing institutions, and there are many interesting theories being discussed on how to do that. At the end of the day, many readers of Deneen’s Why Liberalism Failed don’t mind that Deneen has no suggestion for replacing American institutions, because they read him for his negative critique. They read the Josias website and other Integralist writings for their positive theory of institutions, imagining a new unification of Church and state. The intellectual energies spent on Integralism would be better focused on trying to fix our existing institutions, but those involved have to be persuaded first that they are worth saving. Robert Reilly has told the long story of why the American form of life is worthy, refuting the “no true Founder” fallacy, and we are in his debt for doing so. Based on Reilly’s testimony in America’s Trial, it seems clear that the Founding Fathers should be judged “not guilty” of causing America’s current crises of the soul.

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