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Excursus: The Founding Fathers and the Question of Legitimacy

Government requires make-believe. Make believe that the king is divine or that he can do no wrong, make believe that the voice of the people is the voice of God. Make believe that the people have a voice or that the representatives of the people are the people. Make believe that the governors are the servants of the people. Make believe that all men are equal, or make believe that they are not.

Edmund S. Morgan, American Heroes

I began this chapter by pointing out how the myth of the Founding Fathers partly relies on their authorship of foundational documents and how these documents, in turn, have enhanced, time and again, the fame of the Founding Fathers, particularly when it comes to discussions of original intent. Thus, the Founding Fathers and the founding documents continually reinforce each other’s mythical status. Today, a visit at the National Archives on the National Mall in Washington, D.C. easily demonstrates the civil religious dimension of those founding documents. Upon arrival, visitors to the National Archives Building are led through airport-like security to stand in line and slowly work their way forward to the repository in the dimly-lit Rotunda for the Charters of Freedom in which the Declaration of Independence and the Constitution are displayed. Military guards ask the tourists to line up in single-line files and to stand shoulder to shoulder with their feet touching the stairs at the bottom of the last steps one has to climb in order to enter the sacrosanct center. Visitors are also reminded that the chewing of gum is not allowed and that “proper reverence” for the place and the occasion is required. The fact that one can hardly read the documents due to the physical distance visitors have to maintain, the high security vaults, the dim, shadowy lighting, and the constant admonishment from the attending guards to continue moving along, make it clear that it is not the content of the documents one is supposed to take in, but their auratic quality - to imagine being present at the historical moment of founding among those who wrote and signed the Declaration and the Constitution. Pauline Maier has criticized this “imprisonment” of the founding documents “in massive, bronze-framed, bulletproof glass containers filled with inert helium gas” because in her view this ironically contradicts the sense of a “living” constitution that is actually quite “dead” (American Scripture ix, xiv). One may argue that this sacralization of beginnings camouflages the absence of authority and legitimacy at the very core of the founding enterprise.

Illustration 2: Signatures on the Declaration of Independence

Declaration of Independence (1776).

One of the defining acts of the Founding Fathers certainly is the signing of the Declaration of Independence. It constitutes a moment that has been thoroughly mythologized in spite of (or maybe because of) its in many ways precarious status that is incommensurate with its foundational quality but also presents a particular problem in terms of legitimacy, both overlooked by Trumbull and by the presentation at the National Archives. How did the signers become the Founding Fathers of a new nation? What kind of authority did they have as signers? The various commemorations or presentifications of the signing have been critiqued by revisionists to uncover their ideological investments as well as overall biases in American historiography. The most radical critique has been brought forward by Jacques Derrida, who in his essay “Declarations of Independence” (1986) revisits the scene of the signing and asks: [W]ho signs, and with what so-called proper name, the declarative act which founds an institution? Such an act does not come back to a constative or descriptive discourse. It performs, it accomplishes, it does what it says it does: that at least would be its intentional structure. (8)

Derrida goes on to ponder the question of authority and of representation in relation to signatures. In the historical drama of the founding, Jefferson is the “draftsman” “drawing up” the declaration (ibid). The representatives of the people of the future state are “the ultimate signers” (9). Of course, contrary to his claims Jefferson was not the sole author of the Declaration of Independence, as he took much from George Mason’s Virginia Declaration of Rights and also borrowed freely from other sources (cf. Taylor, Writing 197); yet, Derrida follows Jefferson’s own version of text production:

But this people does not exist. They do not exist as an entity, it does not exist, before this declaration, not as such. If it gives birth to itself, as free and independent subject, as possible signer, this can hold only in the act of the signature. The signature invents the signer. (“Declarations” 10)

Michael Schudson - in referring to the Constitutional Convention - calls it somewhat less formally “a complex chicken-and-egg problem” (Good Citizen 51): The whole event of the Declaration of Independence (along with, following Schudson, the subsequent Constitutional Conventions) thus is in the future perfect. Derrida deconstructs the notion of a foundational moment; he not only addresses the contingency of the historical moment of a/the founding, but in revisiting that moment dis-covers the absence that is gaping at its core and that remains implicit. The declaration is “performative” (not “constative”) in nature: it is not the people who create the Declaration, but the Declaration that creates the people (cf. de Ville, “Sovereignty” 89). “Language [and the Signing] in this model is [thus] understood as simply ‘supplementing’ presence;” there is no “break in presence” but a “continuous, homogenous modification of presence in representation” (ibid. 93). Thus, declarations inevitably have a repetitive or citational structure (cf. ibid. 103). Signatures do not carry with them the legitimacy they claim; it is this slippage, this fundamental uncertainty that is covered up by and transposed into a heroic discourse of paternity, legitimacy, and founding; and it is the very “firstness” of the Founding Fathers (Bernstein, Founding Fathers 40) that in precluding any doubt at the same time provokes it.

In the historical context, this doubt was significant. To gain acceptance for the founding documents among the states and their delegates, i.e. the people, Edmund Morgan suggests, it was necessary “to persuade Americans to accept representation on a scale hitherto unknown” (American Heroes 240) - namely on a national rather than on a local or regional level. To achieve this goal, the Founding Fathers created a “new fiction” (ibid. 239) - i.e., an “American people capable of empowering an American national government” (ibid). It seemed uncertain for quite some time whether Americans would accept this new fiction arguing for a national union of the individual colonies as a matter of survival. How can a small group of individuals speak for “the people”? How could the delegates claim to be “at the point of origin?” (Schudson, Good Citizen 52). Numerous pamphlets as well as the Federalist Papers were written to produce the much needed consent among the ‘American’ people and to encourage them to consider themselves as such: American.

The founders themselves, I should add, were well aware at least of the legal problem of their actions and procedures, even though many historians of the founding and worshippers of the Founding Fathers were not. Derrida’s text provides a perspective from which to explore the ‘foundational momentum’ of US democracy/democratic culture in terms of authority, legitimacy, and genealogy, and the problem of an absence retroactively occluded and tacitly installed as a presence. It is this sense of crisis and this struggle for legitimacy that provide a point of entry for reviewing the narratives and counter-narratives of the foundational moment of the Declaration.

To see the Founding Fathers as having little legitimacy to begin with and as being propelled by their own political, social, and economic interests rather than by abstract ideals is now part of a tradition of revisionism that includes Charles Beard’s Economic Interpretation of the Constitution (1913) and John Franklin Jameson’s The American Revolution (1926), in which the author considers “the American Revolution as a social movement” (8); much of Progressivist historiography until 1945 and the new social history of the 1970s and 1980s has focused on that claim with varying results (cf. Herbert Aptheker’s study of slave revolts). Class, race, and gender, as we will see, have been the variables in revisionist, critical readings of the political founding by scholars such as Gary Nash (The Forgotten Fifth), Linda Kerber (Women of the Republic), and Woody Holton (Forced Founders), who reconsider “the radicalism of the American revolution” (cf. Wood’s book of the same title) and inquire about alternative narratives of American beginnings. Even as it has been affirmed and reinvigorated time and again, the myth of the framers has come under scrutiny (particularly in the 20th century) for its omissions, falsifications, and onesidedness, and for celebrating slavery along with the national beginning. Thus, we find very different interpretations of the historical events commemorated by Trumbull and others in counter-narratives that include individuals and groups left out of conventional representations of the founding (Black Founding Fathers, Founding Mothers, as well as forgotten founders of all kinds). We will consider some of these revisionist perspectives in the following sections.

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