An Overview Of The Founders' Constitution
In the early 1980s, University of Chicago scholars Philip Kurland and Ralph Lerner undertook the herculean scholastic endeavor of researching and compiling a vast amount of sources spanning some three centuries into an extensive five-volume anthology of reason and political argument entitled The Founders' Constitution. Praised by the Columbia Law Journal shortly after its publication in 1986 as the 'Oxford English Dictionary of American constitutional history,' The Founders' Constitution contains writings from the Founders and their contemporaries, reflections of philosophers, popular pamphlets, records of public debates, ratifying conventions, Federalist papers, Supreme Court cases, as well as the private correspondence of leading political actors of the day. The five volumes of The Founders' Constitution are simultaneously cohesive and independent; a structural approach intended to maximize the benefit of the anthology by making it 'useful to different kinds of readers, and hence useful in a variety of ways' (Kurland, Lerner 1986).
Volume One, Major Themes, is a thorough investigation of major themes that comprise the foundation of American constitutionalism; Volumes Two through Four collectively present a straightforward, balanced approach in their Clause by Clause textual examination of the Constitution; while Volume Five applies the same direct focus to Amendments I-XII.
Kurland and Lerner address the purpose of Major Themes in the introduction section, 'A Reader's Advisory,' referring to the thematic chapters as discussions of the 'more general questions of political science and political practice that informed the making of that frame of government' (Kurland, Lerner 1986). The eighteen identified major themes include topics familiar to the political scholar or informed American citizen, such as: 'Right to Revolution,' 'Separation of Powers,' 'Representation,' 'Rights,' 'Equality,' and 'Property'. While these themes might appear on the surface to be common, even ubiquitous, the topics themselves and the documents selected to accompany them are presented in such as manner as to emphasize the common threads connecting each theme to both the Founders and the broader concept of American constitutionalism. The examination of these common threads within the context of the identified major themes stands in contrast to the direct textual analysis in the subsequent four volumes, yet it is imperative in the pursuit of a deeper understanding of the Constitution and the broader foundation of the American experiment.
The intangible foundations underwriting the American experiment were laid centuries before the first whisperings of conflict in the Revolutionary War began. In respect to the political arena, this foundation was laid by what arguably still remains the most important document in English history - the Magna Carta. Signed in 1215 between the English King John and twenty-five barons as a peace agreement, or compact, the Magna Carta produced an unforeseen and unprecedented legacy of legally enumerated limitations on government. This legacy led to the establishment of the English constitutional government with the conclusion of the Glorious Revolution, a conclusion not only of remarkably bloodless conflict, but also the conclusion of the Catholic dynasty that had presided over the political, religious, and social sectors of England for many centuries.
The resulting government was held in check by a group of documents, including the 1689 Bill of Rights, parliamentary statutes, and excerpts of the Magna Carta, collectively known as the uncodified British Constitution. Themes found in the United States Constitution, for example, the separation of Church and State, or the separation of powers of government, are descendants of this English legacy and can be traced backwards from the American Revolution one hundred years to the British Constitution and then backwards again another four hundred years prior to the signing of the Magna Carta.
Throughout the entirety of The Founders' Constitution, Kurland and Lerner frequently acknowledge the influence of the English legal and political tradition on both the Founders themselves and American constitutionalism, however, particularly so in Chapter 14 of Major Themes, 'Rights,' where the effects of this influence are outlined in relation to the development of the American language of rights. A language with roots deep in English history, originating with the first enumerated limitations on government in the Magna Carta, developed over the following centuries, brought to the New World by early English colonists, made into the common tongue with the popularization and spread of John Locke's teachings, and finally, refined and made eloquent through the revolutionary works of Founding Father, Thomas Jefferson.
'From the beginning, it seems, the language of America has been the language of rights' opens the chapter, a language that 'presupposes a particular kind of speaker and audience' (Kurland, Lerner 1986). Regardless of the derived source, whether the rights of a 'natural born subject of England,' or 'the natural, inherent, divinely hereditary and indefeasible rights' of British subjects, or 'those rights which god and the laws have given equally and independently to all,' such a statement carries with it an imposed moral claim - not a request. The language used by Founders in reference to individual rights within the Declaration and Resolves of the 1774 Continental Congress and again two years later in the Declaration of Independence is accompanied by a pressing sense of urgency.
A sense attributed by Kurland and Lerner to the dignity of the claim of those 'irreducible and inalienable rights' and one mirrored 'in the gravity and dreadfulness of the threat - a recourse to first principles, and beyond that an appeal to heaven, in short, revolution' (Kurland, Lerner 1986). This claim from the Founders against their own country was a profound statement that imposed a moral obligation on the English government to respect the rights of their colonists. The consequence of the English government ignoring their moral obligation was revolution and American independence.
After the Revolutionary War, debates and discussion between the Federalists and Anti-Federalists over the inclusion of a Bill of Rights in the Constitution during state ratifying conventions took on a different appearance than the political proceedings that led up to the drafting of the Declaration of Independence. For the Founders, declaring independence had been, in a sense, easier than drafting and ratifying the Constitution, because the violations of the English government were inarguable. After gaining their independence, they were subsequently faced with creating what they feared - a system of government. The first solution, the Articles of Confederation, a loose league of friendship, had been proven ineffective and was crippling the new country due to the lack of unity within the states and the lack of power granted to the federal government. While some may have opposed the Constitution entirely and therefore used the debates over the Bill of Rights as a political tactic in their hopes to require a second convention to be called, Kurland and Lerner identify the ultimate source of these debates as what they refer to as a 'deeper meaning to their discontent' (Kurland, Lerner 1986). The questioning of the necessity of including a Bill of Rights in the Constitution raises discontent, for it 'stirs fundamental questions of American constitutionalism' as 'much of that debate expresses the people's continuing and conflicting need for, and fear of, a government that could truly govern'.
The Continental Congress had clearly outlined previously in the Declaration of Rights that the enjoyment of rights was 'inseparable from self-governance,' meaning the actual representation of those who were being governed. The caveat was added that these rights could be 'qualified in any manner of ways' or even perhaps 'abridged,' but that the only 'legitimate manner of so doing would be to secure the consent of the holders of those rights' for it was 'preposterous' to even consider the idea that the American people could be ''virtually' represented by individuals neither chosen by nor accountable to themselves' (Kurland, Lerner 1986). The desire of the Founders to avoid another situation of arbitrary governance or potential coercion like the violations of the English government was clear, 'to live by the will of one man, or set of men, is the production of misery to all men,' wrote Congress in their 'primer of rights produced for the enlightenment of the Quebecois' (Kurland, Lerner 1986).
While the measures taken by the Americans against the English could be justified, the same measures would not be reasonable when taken against their own people. In the midst of 'revolutionary exertions against external threats, Americans were wary of internal threats to their rights'. Within the debate over the inclusion of the Bill of Rights were the debates over its specifics, and, additionally, what powers should be granted to the federal government in order to protect those rights. The example used by Kurland and Lerner refers to the 'power to arrange for the apprehension of army deserters' behind which laid urgent 'questions of federalism, constitutionalism, and the security of the people's rights' '(Kurland, Lerner 1986). In spite of these debates, however, 'always implicit and usually explicit was the understanding that allegiance and protection are reciprocal. Thus it made sense to precede a frame of government with a declaration of rights'. In spite of the concerns and objections of the Federalists, the Bill of Rights was ratified, satisfying the general desire for a specific section of enumerated rights and the 'business of governing could proceed'.
From the Declaration of Independence to the Bill of Rights, the influence of the English legal tradition is evident, both directly and indirectly, in the works of the Founders and the contemporaries. Ironically, without the political legacy of the country that they claimed independence from, the American Experiment would not have had the same remarkable success. Referenced with no small amount of disdain in 1765 by James Otis, 'were these colonies left to themselves tomorrow, America would be a mere shambles of blood and confusion. . . . there would soon be civil war from one end of the continent to the other” the same colonists united two decades later and became known as the Founding Fathers of a government that has had a longer continuous existence than that of any Western country - except England.
References:
- Kurland, P. B. , & Lerner, R. (1986). The Founders Constitution. Chicago: The Univ. of Chicago Press.
- Morgan, Edmund. (2002). The Birth of the Republic, 1763-89, Fourth Edition. Chicago: The Univ. of Chicago Press.
