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What Would The Founders Think

Would the Founders support the death penalty? The Founders assumed that the national government would not have much to do with crime and punishment. At the Continental Congress, John Witherspoon, Madison’s teacher in college, remarked in passing that “nothing relating to individuals could ever come before” them; the states, he assumed, would handle all such matters. Even after the Constitution increased the national government’s power, Alexander Hamilton argued that the most power-hungry men would not be tempted to meddle in “the mere domestic police of a state.” In the eighteenth century, police meant both a community’s laws and the police force that upheld them.

Even so, the Bill of Rights discusses capital punishment. The Fifth Amendment assumes that certain criminals will be executed, though it limits the ways in which this may be done. No one may be “deprived of life” without due process of law. There will be no summary judgments—no death warrants by Executive Order or punitive special bills in Congress; everyone accused of a capital crime will get a trial. Finally, no one may be put “in jeopardy of life” for the same crime more than once. Prosecutors can’t keep trying a man until they hang him. The Eighth Amendment forbids “cruel and unusual punishment,” meaning torture. Capital punishment was not unusual and not, by itself, considered unusually cruel.

As Commander in Chief during the Revolution, Washington did not hesitate to execute or to threaten it. Maj. John André, a charming young British spymaster, was caught behind American lines out of uniform and hanged as a spy himself (his agent, Benedict Arnold, got away). As the war wound down, some unpaid, undersupplied American soldiers in New Jersey mutinied. After the mutiny was quelled, two of the ringleaders were shot. Washington was “happy” not to have to execute more but warned that such “lenity” would not be shown “on any future occasion.”

Yet on other occasions Washington did mitigate the death penalty. After he put down the Whiskey Rebellion, a tax revolt in western Pennsylvania, two of the rebels were convicted of treason and condemned to death; since they were small fry—the real leaders had fled—Washington pardoned them both. Leadership is an art, and Washington knew there are no hard-and-fast rules. But he never excluded the ultimate penalty.

What would the Founders think of gun control? The backstory of the Founders’ thoughts on the politics of gun ownership begins with the politics of England, a hundred years earlier. During the reign of James II (1685–88), Protestant Englishmen feared that they would be disarmed by their Catholic king and bullied by his large professional army and its Catholic officer corps. That is indeed what James planned. His Protestant subjects forestalled him by chasing him from the throne in 1688, with Dutch help. One consequence of the Glorious Revolution was the English Bill of Rights, banning standing armies in England in peacetime and guaranteeing Protestants the right to bear arms “for their defense.”

William Blackstone, a mid-eighteenth-century legal commentator, explained the right of “having arms” as a firewall, “barriers to protect and maintain” other rights when ordinary protections had crumbled. “It is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.”

The gun provisions of the English Bill of Rights and Blackstone’s discussion of them became relevant when the Constitution was being ratified. Patrick Henry and Gov. George Clinton of New York feared a stronger federal government. Once the Constitution passed, they offered amendments condemning standing armies, upholding the right to keep and bear arms, and praising militias (ordinary citizens summoned to fight by their states). “A well regulated Militia composed of the body of the people trained to arms,” said the Henryites and Clintonians, “is the proper, natural and safe defence of a free State.” After passing through Congress and the massaging hands of James Madison, this became the Second Amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” The slap at standing armies had fallen away, but the militia and the armed citizenry remained, no longer a last resort for Protestants against scheming, aggressive Catholics, but for the states against the federal government (and, in theory, for the people against oppressive government). If guns were illegal, only armies would have guns.

This is where the Second Amendment came from. But several complications must be added. Blackstone is a tricky oracle, for the only absolute in his world is legislative supremacy; what he gives to freedom with the right hand he is always willing to take back with the left, so long as the legislature (or Parliament) agrees. The right of “having arms,” he acknowledges, is subject to “due restrictions … such as are allowed by law.”

How can Blackstone’s “natural right of resistance” find a place in the Constitution in any case? It is the starting point of the Declaration of Independence, which opens with a recipe for just revolution. But how can the laws say when they should be overthrown? If things have reached that point, it’s time to clear the decks and not worry about the Bill of Rights.

Was the Second Amendment, then, a bulwark of liberty or a pious irrelevance? The framers of the Constitution doubted that any Bill of Rights was necessary, which was why they left it out. Under the Constitution power would derive from the people; how could the people oppress themselves? But Madison became midwife to the Bill of Rights, under pressure from his enemy Patrick Henry and prodding from his friend Jefferson. Jefferson, the amateur architect, saw a bill of rights as a useful structural prop. “A brace the more will often keep up [a] building which would have fallen” without it, Jefferson wrote Madison. Some Founders believed passionately in the Second Amendment and the other nine. The rest put up with them.

Guns were a fact of the Founders’ everyday lives. The cerebral Jefferson, in one of those sweetly pompous letters of advice that he loved sending his younger relatives, recommended taking walks with a gun. “While this gives moderate exercise to the body, it gives boldness, enterprise and independence to the mind. Games played with a ball … are too violent for the body, and stamp no character on the mind.” So much for baseball, already being played in early forms. “Let your gun, therefore, be the constant companion of your walks.”

One special type of gun was known to many of the Founders even though its use was illegal: the dueling pistol. Although Hamilton owned a fowling piece, he did not own dueling pistols, so when Vice President Aaron Burr challenged him to a duel for a political insult in the spring of 1804 he had to borrow a set from his brother-in-law. The pistols were made by the London gunsmith Robert Wogdon, the finest practitioner of his art. They were .544 caliber, meaning their bullets had a diameter of just over half an inch. The barrels were unrifled, but their careful balancing made the pistols accurate at the short distances of dueling. Burr’s bullet pierced Hamilton’s abdomen, and he died of spinal shock after 36 hours of agony. Burr was indicted for murder, but the prosecution lapsed, for no jury would convict a gentleman who had defended his honor. The Founders lived among guns; they would never make them illegal; they would subject them to necessary laws, following Blackstone. And as in the duel that put Hamilton in his grave, they broke their own laws when honor demanded it.

How would the Founders fight the war on drugs? Washington indeed grew hemp but he grew it for fabric. The master of Mount Vernon was a meticulous farmer, and if he had found an additional intoxicating or medicinal use in any of his crops, he would have recorded it.

Opium was used as a medicine and was known to be addictive, and cranky Founders sometimes accused each other of being in its thrall. John Adams, the crankiest Founder, thought Alexander Hamilton relied on opium to get him through long speeches, while Gouverneur Morris, the sunniest Founder, who nevertheless deeply disliked James Madison, wondered if Madison was an opium addict. Both stories were preposterous.

The drug of choice in late-eighteenth-century America was alcohol. Franklin compiled a list of 128 phrases meaning “He’s drunk” (from “He’s pissed in the brook” to “He’s eaten a toad and a half for breakfast” to “He’s mellow”). In a more exalted mood, he cited wine as a mark of divine benevolence. In the miracle at Cana, Jesus converted water into wine (John 2:1–11). “But this conversion,” wrote Franklin, “is, through the goodness of God, made every day before our eyes. Behold the rain which descends from heaven upon our vineyards; there it enters the roots of the vines, to be changed into wine; a constant proof that God loves us, and loves to see us happy. The miracle [at Cana] was only performed to hasten the operation.” When George Washington ran for the Virginia House of Burgesses, he treated voters to drinks. (This was illegal but universally practiced.) The Washington campaign served 28 gallons of rum, 50 gallons of rum punch, 38 gallons of wine, 46 gallons of beer, and 2 gallons of cider, no doubt hard, for a total of 164 gallons of alcohol. There were 396 voters. Washington won.

The 1794 frontier uprising known as the Whiskey Rebellion was, despite the comic ring of its name, the most serious domestic violence between the Revolution and the Civil War. The point at issue, however, was not drug use but taxes. Hamilton’s financial program required a tax on distilled spirits. Distillers in western Pennsylvania resented paying it, fought gun battles with the local excise collector, and raised a rebel flag. Washington sent an army five times larger than the one he had led across the Delaware before the Battle of Trenton to put the rebellion down, and it melted away.

Before things reached this point, Hamilton defended his excise to Congress. A whiskey tax, he argued, was fair: “There appears to be no article … which is an object of more equal consumption throughout the United States.” But then he had second thoughts; maybe Pennsylvania frontiersmen did drink more. If so, “it would certainly not be a reason … to repeal or lessen a tax, which, by rendering the article dearer, might tend to restrain too free an indulgence of such habits.” There, in the midst of a controversy that would lead to rebellion, the Founder with the most expansive view of the powers of the federal government staked out the maximum drug-war position of his generation: If a tax brings down whiskey consumption, so much the better. The Founders would not have fought a war on drugs.

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