The Founders' Constitution.

The Founders' Constitution

BY REASON of size and scope, if for no other, The Founders' Constitution (3,260 pages in five volumes) represents a formidable achievement. Because of the design of the edition and the thoroughness with which it has been organized by theme and pattern of editorial commentary, there is much to praise in this massive assertion of the bicentennial spirit. Despite its extraordinary range, the difficulty with the set is that it works outward from a premise that denies the logic of its own existence. Professors Kurland and Lerner are distinguished scholars. Their lives testify to the importance of the subjects they have treated. Yet they predicate their enterprise on a declaration that "if the Constitution is to be a viable instrument of governance [in our time], then it must (as it has to a great degree) cut itself free from its eighteenth-century moorings. The thought of the Founders, even to the extent it is discoverable, may be curious, even at times amusing or maddening, but it cannot be binding." Add to this astonishing chop-logic the doctrine that we need not worry about the Framers' intentions since the Philadelphia Convention had to "trick and barter, compromise and fudge" in order to produce any kind of political instrument, and we are left with very little reason for the erudition of Kurland and Lerner.

Or perhaps the issue is simpler than I have made it, in that the two Chicago professors can agree upon no principle of authority in constitutional interpretation outside of their own ingenuity. They disparage the idea of consensual or corporate intention. Furthermore, they declare unabashedly that the presumption of past as prescript is unaceptable, saying "even were a coherent political argument to be discovered [in the teaching of our political forefathers], what great weight would it have?" Coming as it does from a group of early Americans "some of whose members could still recall agitation over the Stuart Pretender," how can our original Constitution have bearing on "the fears and hopes of a generation preoccupied with ICBMs and entitlement programs?"

Thus Kurland and Lerner, like Kammen, labor to ratify the non-interpretivist arrangement of things that has been under pressure since 1980, to shore up the views of the current legal establishment. To pay too little attention to the Great Convention, the "complex politics of ratification," and those components of the English Whig inheritance coming down from Bracton, Fortescue, and the Inns of Court is to forfeit the heritage that made Americans, even during colonial times, a nation devoted to limited government.

All of this Kurland and Lerner perform with conscious intent. Clearly, they have forgotten Madison's maxim that "if the sense in which the Constitution was accepted and ratified by the Nation . . . be not the guide in expounding it, there can be no security for . . . a faithful exercise of its powers." How we read the old record, how we understand the danger of power joined to zeal, even as it was in the seventeenth century, or the claim, made by Cromwell or more recent villains, that sovereign law can be replaced by reason of transcendent causes does make a difference.

Kammen, Kurland, and Lerner are not, of course, the worst of their school. Even so, it is a pernicious practice to maintain that their countrymen have no right to recover an inheritance in the original Constitution because distortions of that compact have been going on for years, have acquired authority by repetition, and therefore cannot be reversed. To leave the law on these grounds in the hands of its natural enemies is like allowing a thief with his stolen property in hand to plead right of possession against the owner. If we are to have a rule of law, then we must have a Constitution as written, ratified, and amended, neither more nor less.