Wigs on Fire: What the Founders Would Have Thought of the 2016 Election

From the assaults on free speech to rabble-rousing populists, this year would have freaked them out.

Illustration by The Heads of State

Illustration by The Heads of State

Since the beginning of the republic, Philadelphia has been America’s preeminent convening space for constitutional debate — the city to which all conversations about liberty inevitably refer. In a 2013 speech entitled “Boston to Philadelphia,” Senator Mike Lee of Utah noted that when the postal system was first created, it established throughout the Northeast thousands of stone markers engraved on the back with the legend “M to P,” standing for “Miles to Philadelphia.” The number on each stone — many of them still exist today — represented the distance between that marker and the city that hosted the drafting of the Declaration of Independence and the Constitution. For Senator Lee, the mile markers represent the distance between the government we don’t want and the government we do, between the tyranny that the American revolutionaries protested in the Boston Tea Party and the liberty they enshrined in the Constitution.

The election of 2016 will determine for all of us how many miles the country has traveled from the founders’ vision in Philadelphia, and from our own competing visions of constitutional liberty and unconstitutional demagoguery and oppression.

So it’s fitting that Independence Hall and the Liberty Bell will serve as ubiquitous backdrops (or props, if you prefer) for the Democratic National Convention — and not just for quick, atmospheric b-roll heading into and out of TV commercial breaks. As Hillary Clinton prepares to accept the Democratic nomination for president at the Wells Fargo Center, Bernie Sanders supporters have already contacted the National Park Service to reserve space in front of the National Constitution Center, on Independence Mall, to stage a counter-demonstration.

Their choice of location, and the selection of Philadelphia as the DNC host city, underscores that this presidential contest is above all an election about the future of the Constitution — an election in which the constitutional stakes are every bit as consequential as those the founders wrestled with at Independence Hall in 1787.

IN THE MOST OBVIOUS SENSE, the election will determine the future of the Supreme Court. With Justice Antonin Scalia’s death, the court is now divided between four conservatives and four liberals, and the choice for Scalia’s successor will determine whether the court has a liberal or a conservative majority for years to come.

Less obvious is the degree to which the entire campaign has been a debate about the meaning of the Constitution, with leading voices in both parties arguing that the document is under threat from populist forces on the left and the right.

Libertarian commentators in particular have criticized both Trump and Sanders for embracing a form of populism, fueled by economic anger and social media, that threatens constitutional democracy. These commentators argue that the American founders designed their government to check direct democracy because of their fears of mob rule, and that Trump and Sanders are circumventing those checks with their populist appeals.

Berkeley law professor John Yoo — the Philadelphia native and former Bush administration attorney — argued in the Weekly Standard that “both Donald Trump and Bernie Sanders would have set the framers’ hair — or wigs — on fire.” Mona Charen wrote in the National Review that “Trump and Sanders are disruptive, and people who welcome chaos for its own sake are dangerous. The founders of this country were extremely wary of excessive power — whether in an executive or in a mob.” In another National Review piece, Michael Tanner wrote that Trump and Sanders “reject the founders’ vision of a government of limited, carefully enumerated powers. Instead, both candidates seek to mobilize political passions in search of enemies — the banks, ‘the establishment,’ foreigners, or the ‘billionaire class’ — in order to impose their vision of society on others.”

Since the beginning of American history, however, populist movements have shaped the Constitution and transformed its meaning. And so far, at least, the populist challenges have been absorbed into the major parties. In 1892, for example, the Populists, also known as the People’s Party, formally organized as the result of a merger between farmers and labor.

The Omaha Platform, adopted by the convention of the party on July 4, 1892, set out the basic tenets of the Populist movement. Foreshadowing what are now major themes from Bernie Sanders’s stump speech, the Populist Party platform themes included the need for regulations to bust up large corporations, the need to adopt antitrust laws to ensure equal access to the marketplace, enforcement of nondiscrimination in price-setting, improvement of wages for workers, and sharing of public resources and utilities.

Eventually the Populist Party fused into the Democratic Party. Many of the specific proposals urged by the Omaha Platform won enactment in the Progressive and New Deal eras, including the graduated income tax, authorized by the 16th Amendment, and the direct election of senators, authorized by the 17th Amendment. (That 103-year-old Populist victory still infuriates constitutional conservatives. The late Justice Scalia called the amendment an assault on federalism and states’ rights in a visit to Philadelphia last year.)

In other words, the debate between Trump and Clinton, like the debates between the victorious candidates and Ted Cruz and Sanders, is part of an ongoing constitutional struggle over the meaning of economic liberty and free speech that began in Philadelphia with the drafting of the Declaration of Independence in 1776, defined the Constitutional Convention of 1787, and has continued ever since.

THESE DEBATES AREN’T tidy or predictable. Trump and Sanders may share populist leanings, but they split on the constitutional question of federal power. Trump has more in common with Clinton on that score. Both Trump and Clinton can be characterized as Hamiltonian rather than Jeffersonian in their endorsement of broad federal authority to regulate the economy. There are nuances within the nuances, of course. Clinton embraces a relatively traditional vision of federal regulatory power that traces back to Theodore Roosevelt, while Trump, in his promises of unilateral executive action on immigration and citizenship, has endorsed a more sweeping vision of executive power that critics say is more in the tradition of European nationalists than American constitutionalists. But that sort of context can get lost in an election, and the takeaway for many voters has been that Clinton and Trump both endorsed the federal bailout of the big banks during the recession.

By contrast, both Sanders and GOP runner-up Ted Cruz have evoked the anti-monopoly tradition of Thomas Jefferson. They might be on opposite ends of the political spectrum on most matters, but both are deeply suspicious of government protections for banks deemed too big to fail.

Sanders and Cruz share similar constitutional views on other critical questions as well. In May 2015, in response to the Second Circuit Court of Appeals ruling that the National Security Agency’s bulk collection of phone records isn’t authorized by the Patriot Act, Sanders stated, “In my view, the NSA is out of control and operating in an unconstitutional manner.” Cruz, meanwhile, condemned government surveillance of U.S. citizens in a section of his website titled “The Constitution and the Bill of Rights.” The site declares: “Sen. Cruz was also proud to stand with Sen. Rand Paul, R-KY, in defense of citizens’ Fourth Amendment rights and in opposition to the federal government’s use of drones on its own citizens.”

Of all the top candidates, Clinton has the most restrictive view of the Second Amendment. She contends that the right to bear arms must be balanced against other constitutionally protected rights. In a widely circulated statement, Clinton said: “We’ve got to say to the gun lobby, you know what, there is a constitutional right for people to own guns, but there’s also a constitutional right to life, liberty, and the pursuit of happiness that enables us to have a safe country where we are able to protect our children and others from this senseless gun violence.”

Trump seized on that statement and others and has attacked Clinton for wanting, in his words, to “abolish” the Second Amendment. But on other constitutional fronts, he has defended a historically sweeping vision of executive power. In August 2015, as part of his immigration policy white paper, Trump wrote that he would “end birthright citizenship. This remains the biggest magnet for illegal immigration.” Responding to critics of his position on the First Amendment and freedom of religion, Trump has said there is “absolutely no choice” but to close down mosques where “some bad things are happening.” He has also said that he wouldn’t rule out having a database of Muslim-Americans, or forcing Muslims to carry a special ID in the United States.

On the question of free speech, Trump has endorsed a vision that evokes President John Adams’s attempts to prosecute his critics. Trump has said that he wants to “open up the libel laws” to make lawsuits easier in cases “when the New York Times writes a hit piece which is a total disgrace or when the Washington Post … writes a hit piece, we can sue them and win money instead of having no chance at winning because they’re totally protected.” Hulk Hogan’s libel suit against Gawker, funded by billionaire Peter Thiel, shows that the breadth of American protections for free speech remains contested. Trump and Thiel, like Adams, insist that even public figures should be able to sue the press for critical articles; the Supreme Court, by contrast, has embraced the position of Jefferson, Madison and Louis Brandeis, which holds that speech can only be suppressed when it is intended, and likely, to cause imminent violence or lawless action.

Any discussion of the election of 2016 and the future of the Constitution has to end as well as begin with the Supreme Court. Although candidates have been warning for decades that a single election could determine the future of the court, this year, the moment of truth has arrived. With the death of Justice Scalia and the possibility of appointing several additional justices, the next president will indeed determine the trajectory of the court and the Constitution for many years.

In January 2016, Clinton wrote an op-ed for the Boston Globe outlining the difference between her constitutional vision and that of the Republicans on a range of issues on the Supreme Court’s docket this year that she said “go straight to the heart of the progressive agenda” — including the rights of public-sector unions, the rights of women seeking abortions, voting rights, affirmative action, immigration and the environment. Clinton’s website includes a list of six rights that she argues would be imperiled if Donald Trump has the opportunity to appoint justices: abortion rights, voting rights, marriage equality, campaign finance regulation, the Affordable Care Act, and the DAPA program, which defers deportation of undocumented aliens being raised in the U.S. and their parents.

As for Donald Trump, in May he released a list of 11 candidates he would consider as potential replacements for Justice Scalia on the Supreme Court. As he said in the press release, the “list was compiled, first and foremost, based on constitutional principles, with input from highly respected conservatives and Republican Party leadership.”

According to Bloomberg News, the list suggested Trump is a “pretty typical Republican when it comes to the U.S. Supreme Court” and was “a step toward reassuring his party’s base.”

With a historic Supreme Court vacancy at stake, the meaning of the Constitution is on the brink of dramatic change, and as residents of the city that inspired the Declaration and the Constitution, Philadelphians of all perspectives need to be more invested than ever in the results of the 2016 election. A non-traditionalist candidate who feeds on populist fervor is battling against a politician whose views, while progressive, are more familiar to members of the political establishment on both sides of the aisle.

It’s appropriate that both parties will once again measure the miles to Philadelphia — calculating the distance between the Independence Hall of 1787 and the constitutional future they hope to achieve.

Published as “Wigs on Fire” in the July 2016 issue of Philadelphia magazine.