Six Myths About the Founders and the Constitution You Can Correct Today

I will bet you a steak dinner that you can walk into any gathering of ten Americans and find at least three who believe the phrase "separation of church and state" is in the Constitution. I would also bet that at least two think America is a democracy, and one will say the Founders all agreed. Not one of those three claims survives a reading of the actual documents. And the odd part is that people on both sides of our politics repeat them, usually with total confidence.

Here is why this matters. Americans are about to celebrate a 250th birthday, and a country that argues about its founding with half-remembered slogans will argue badly. The remedy is cheap. The Constitution is short and the Declaration is shorter. You can check every claim in this post yourself in an evening.

So here are six myths. For each I will state the claim, give the documents, and give a verdict. I will try to be fair to the people who believe them, because most of them are not fools. They are people who learned a half-truth in a classroom and never had a reason to look again.

Myth 1: America is a democracy

The claim: The United States is a pure democracy, where the majority rules and that is the end of the matter.

The documents: The word "democracy" does not appear in the Constitution. What does appear is Article IV, Section 4: "The United States shall guarantee to every State in this Union a Republican Form of Government." A republic is a government in which the people rule through elected representatives, under a written constitution that limits what even a majority can do.

The Founders drew the distinction on purpose. James Madison wrote in Federalist 10 that a pure democracy, a society of citizens who assemble and administer the government in person, can admit no cure for the mischiefs of faction, while a republic, in which the government is delegated to a small number of elected citizens, offers a better one. The structure of the Constitution bears that out. We elect a House for two-year terms and a Senate for six. We elect a President through the Electoral College. We guard certain rights from the vote altogether: the First Amendment says Congress shall make no law abridging freedom of speech, and no election changes that.

Now the fair concession. The country has become more democratic over time, and rightly so. The 17th Amendment (1913) moved the choice of senators from state legislatures to voters. The 15th, 19th, 24th and 26th Amendments widened who may vote. A conservative should celebrate that growth in the franchise, not apologize for it. The debate over the 17th is a live one, and The Conservative Case Against the 17th Amendment, Weighed Honestly weighs it fairly.

Verdict: False. America is a constitutional republic with democratic elections. The majority rules within limits, and the limits are the point.

Myth 2: The Founders all agreed

The claim: The Founding Fathers were a united band of wise men who shared one vision, and we can ask "what would they say" as if they spoke with one voice.

The documents: The Constitutional Convention met in Philadelphia from May to September of 1787, and it was a fight. Large states and small states clashed over representation until the Connecticut Compromise, also called the Great Compromise, gave us a House based on population and a Senate with two members per state. The delegates argued over how to count enslaved people, which produced the Three-Fifths Compromise. Some delegates left before the end. Of those who stayed to the final day, three, Edmund Randolph, George Mason and Elbridge Gerry, refused to sign. Thirty-nine delegates did sign, on September 17, 1787.

The disagreements continued after the document was signed. Federalists such as Madison, Alexander Hamilton and John Jay defended it. Anti-Federalists feared that it created a government too strong and too distant. Their objections produced the Bill of Rights. Then, in the 1790s, Hamilton and Thomas Jefferson fought over a national bank, over the power of the federal government and over foreign policy, and those fights helped create the first political parties. Madison himself shifted ground between the Convention and the 1790s.

What does that mean for a conservative? It means that "what would the Founders think" is a weak argument by itself, because they disagreed with each other. The strong argument is: what does the text say, and how did those who ratified it understand it? This is what originalists try to do, and the case is explained in Originalism Explained for People Who Skipped Law School.

Verdict: False. They agreed on enough to build a Constitution, and on little else. The argument about its meaning started in 1787 and has never stopped.

Myth 3: "Separation of church and state" is in the Constitution

The claim: The Constitution requires a wall of separation between church and state, and that phrase is part of our law.

The documents: Read the First Amendment. The religion clauses say: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." There are two clauses, the Establishment Clause and the Free Exercise Clause. The phrase "separation of church and state" does not appear. Neither does "wall."

It comes from a letter. On January 1, 1802, President Thomas Jefferson wrote to the Danbury Baptist Association of Connecticut, a minority denomination worried about its status in a state with an established church. Jefferson told them that the First Amendment built "a wall of separation between Church and State." The Supreme Court quoted that letter in Reynolds v. United States (1879) and made it central in Everson v. Board of Education (1947). So the metaphor has been used in American law for well over a century.

There are two things to say, and an honest person says both. First, the phrase is a gloss on the text, not the text, and a gloss written by one Founder, who was not even in the country for the Convention because he was serving as minister to France. Jefferson's intent in the letter was to reassure a religious minority that the national government would not interfere with its worship. That is quite different from the way the phrase is sometimes used today, to push religious voices out of public life. Second, the principle behind the phrase is real. Article VI says that no religious test shall ever be required as a qualification for any office or public trust under the United States. Washington's 1790 letter to the Hebrew Congregation of Newport said the government of the United States "gives to bigotry no sanction." That is a free country for people of every faith.

On this subject the sensible conservative position is not to deny the principle. It is to insist that the First Amendment protects the free exercise of religion as firmly as it forbids an established church, and that a person does not forfeit it by entering a public square. For more, see Seven Things Americans Get Wrong About the First Amendment.

Verdict: The phrase is not in the Constitution. The principle that Congress may not establish a religion, nor stop you from practicing yours, is. Use both facts.

Myth 4: The Constitution has never been changed

The claim: The Constitution is a fixed, sacred text that has not changed since 1787, or alternatively, that it cannot be changed.

The documents: The first sentence of Article V says Congress "shall propose Amendments to this Constitution, whenever two thirds of both Houses shall deem it necessary," or call a convention on application of two-thirds of the states, and that amendments become part of the Constitution when ratified by three-fourths of the states. In arithmetic, with 50 states, that means 34 states to call a convention (two-thirds of 50 is 33.3, so 34) and 38 states to ratify (three-fourths of 50 is 37.5, so 38).

The process has worked twenty-seven times. The first ten amendments, the Bill of Rights, were ratified on December 15, 1791. The 13th (1865), 14th (1868) and 15th (1870) followed the Civil War. The 16th (1913) allowed the federal income tax. The 18th (1919) imposed Prohibition, and the 21st (1933) repealed it, the only time one amendment has cancelled another. The 22nd (1951) limited Presidents to two elected terms. The 27th, which says that a change in congressional pay cannot take effect until after the next House election, was proposed in 1789 and ratified in 1992, more than 200 years later. That story is told in Article V Explained, and the Amendment That Took More Than 200 Years.

Twenty-seven amendments is not a record of constant change; across more than two centuries it averages out to a little more than one a decade. It is the record of a document that can be changed when a large majority of the country agrees, and that resists change when they do not. That is by design. A conservative should see the virtue: the rules cannot be changed by the mood of a single election.

Verdict: False both ways. It has been amended twenty-seven times, and it is hard to amend on purpose.

Myth 5: The Federalist Papers are law

The claim: The Federalist Papers are part of the Constitution, or are binding on judges.

The documents: The Federalist Papers are 85 essays published in New York newspapers in 1787 and 1788 under the pen name Publius. Alexander Hamilton wrote most of them, James Madison a large share, and John Jay five. Their purpose was to persuade New York to ratify the proposed Constitution. They are not a statute, not an amendment, and not a ratified text. Nobody voted on them.

That does not make them worthless. Courts cite them because the authors were deeply involved in the Convention and the ratification, and because the essays explain what the Constitution's structure was meant to do. Federalist 51 explains separation of powers and checks and balances. Federalist 78 explains the role of the judiciary. Federalist 10 explains the problem of faction. The Supreme Court has quoted them for generations. But they are evidence of the meaning of the text, not the text.

There is a trap in both directions. Some people treat a Federalist quote as a trump card, when the author in question later changed his mind. Others dismiss them as the propaganda of the winners. A better habit: read the essay, then read the clause it discusses, and see if the two fit together. A good starting point is Madison's Plan for a Government That Fights Itself on Purpose, which shows the logic of the whole design in a few paragraphs.

Verdict: False. They are persuasive commentary from some of the people who wrote and defended the Constitution, and worth reading for that reason alone.

Myth 6: "All men are created equal" is in the Constitution

The claim: The Constitution declares that all men are created equal and have a right to life, liberty and the pursuit of happiness.

The documents: That language belongs to the Declaration of Independence, adopted on July 4, 1776. "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." The Constitution, drafted eleven years later, is a different kind of document. The Declaration states why a government exists. The Constitution sets up the machinery and its limits. If you want a rule of thumb: the Declaration is the promise, and the Constitution is the instrument.

The difference matters in a way every American should face squarely. The original Constitution contains provisions that accommodated slavery, though it avoids the word. The Three-Fifths Clause counted enslaved people toward representation. The Fugitive Slave Clause required their return. Another clause barred Congress from banning the importation of slaves before 1808. The distance between the Declaration's promise and the Constitution's compromises was the central moral problem of the country, and it took a war and three amendments to close it.

The conservative reading of that history is not that the Founders were without fault. It is that the promise in the Declaration became the standard by which the Constitution's flaws were judged and then fixed. Abraham Lincoln said as much, and Frederick Douglass, who started out skeptical of the document, came to call it a glorious liberty document, as covered in Douglass Called the Constitution a Glorious Liberty Document and Meant It. The same story shows up in the idea that rights come first and government second, in Where Rights Come From, and Why the Declaration Says So First.

There is a related error worth catching: the Bill of Rights was not in the original Constitution. Anti-Federalists demanded it as the price of ratification, Madison introduced amendments in the House in June 1789, Congress sent twelve proposals to the states in September 1789, and ten were ratified by December 15, 1791.

Verdict: False. The phrase belongs to the Declaration, the Bill of Rights came later, and the gap between promise and practice is the real story.

What to do with all of this

The mistake behind all six myths is the same: treating a founding as a slogan instead of a set of documents. The corrections are easy once you look. The Constitution says republic, not democracy. It records a bargain among people who disagreed. It says "no establishment" and "free exercise," not "wall." It can be amended and has been. The Federalist Papers argue and do not legislate. And the great promise of equality lives in the Declaration, which the Constitution, through a painful history, was amended to honor.

A short reading list: the Declaration, the Constitution and the Bill of Rights, in that order, then Federalist 10, 51 and 78. Read them at the National Archives website or Congress.gov. If you want a guided tour of the document itself, A Walkthrough of the Constitution You Can Finish in One Evening takes it article by article. For the broader history of ideas behind them, see The Founding Ideas in Order, From Magna Carta to the Bill of Rights.

The bottom line

• Say "constitutional republic," and know why: Article IV, Section 4 guarantees a republican form of government, and the Constitution never uses the word democracy.
• Quote the First Amendment as it is written. The phrase "separation of church and state" came from Jefferson's 1802 Danbury letter, and the real text protects both against establishment and for free exercise.
• Do not argue "what the Founders would say" as if they spoke in one voice. Argue from the text and from how the ratifiers understood it.
• Remember the amendment process: 34 states to call a convention, 38 to ratify, and twenty-seven successes so far. If you want a change, that is the road.
• Read the primary documents yourself. They are short, they are free, and they will make you the most informed person at the next dinner table.