The Founders' Constitution, edited by Philip B. Kurland and Ralph Lerner. Chicago: the University of Chicago Press. Five volumes, 3,191 pp. $250; $300 after June 30. IT began tentatively. In September 1786 delegates from five states met ``to take into consideration the trade of the United States [and] to consider how far a uniform system in their commercial regulations may be necessary to their common interest and their permanent harmony.'' The following May, 39 delegates from 12 states (Rhode Island was not represented) assembled in Philadelphia and, on Sept. 17, submitted to Congress a proposed Constitution to be ratified by the people in state conventions.
But the United States already had a charter, the Articles of Confederation. The Philadelphia convention had clearly exceeded its authority in producing a new Constitution. Not the least of the issues that roiled the political waters from New Hampshire to Georgia in the ensuing months was the legality of the framers' action.
To be sure, not everyone was fastidious about legal niceties. George Washington, an avowed champion of stronger federal government, wrote to Henry Knox before the convention: ``The legality of this Convention I do not mean to discuss.... That powers are wanting, none can deny.... That which takes the shortest course to obtain them, will, in my opinion, under present circumstances, be found best. Otherwise, like a house on fire, whilst the most regular mode of extinguishing it is contended for, the building is reduced to ashes.''
The legitimacy question was not trivial, though, for illegality in the birth of a government gives standing to sedition. Some apologists for the new Constitution tried to fudge the issue with fine legal points. In the end, though, the strongest argument for the document's validity was also the most audacious: that authority flows from the people, whose prerogative it is to alter their forms of government.
The episode is not simply of historical interest. The circumstances of the Constitution's ratification, even more than the theory of popular sovereignty, later put the lie to emasculating claims that the charter was but a compact among the states, that is emboldened Lincoln to prosecute the Civil War and empowered two Presidents to use federal troops to admit black students to Southern schools.
The ratification drama - and much else - can be reenacted through this monumental work by Professors Kurland and Lerner, the former a constitutional scholar, the latter a political scientist, at the University of Chicago. Between its covers are collected hundreds of primary documents relating to the creation of the US Constitution. They include excerpts from the records of the Philadelphia convention; many of the Federalist essays; excerpts from the debates in the ratifying conventions; letters of the founders; and constitutional precedents in English law and state constitutions. The sources end in the 1830s, when the founding generation passed from the scene.
In the first volume, the materials are grouped according to major themes such as republican government and separation of powers. In the succeeding volumes they are organized according to the sections and clauses of the Constitution and the Bill of Rights.
Even a collection of this magnitude cannot be comprehensive, and specialists will probably question the omission of certain documents. But few others will quibble with the editors' judgment. The sources are sufficiently encompassing to be of value to all but the most particular scholars without putting off laymen.
Most of the chapters can be perused in an hour or two. In that brief space, a reader can be informed about the origins of a clause of the Constitution, be exhilarated by the companionship of great 18th- and 19th-century minds, and be ennobled by contact with near-literary use of the English language.
There are some disappointments. For one thing, each of the major-theme chapters in Volume 1 opens with a useful introduction by the editors that helps interweave the documents that follow. The format is abandoned in the succeeding volumes. As a result, in trying to fathom and connect the materials gathered under each heading, the reader is left without guidance except that inherent in the editors' selections.
Also, one regrets the absence of any annotation. In the chapter on habeas corpus (Art. 1, Sec. 9, Clause 2), for instance, one would like to know something about the abortive rebellion led by Aaron Burr in 1807 that prompted Congress to debate a resolution to suspend the Great Writ. But comprehensive annotation would have turned a labor of years into a labor of decades.
The sources contain delightful surprises. We know that Benjamin Franklin was a man of many parts, but it still brings an admiring smile to read in the Philadelphia records that, in a discussion on ``liberal compensation'' for senators and representatives (Art. 1, Sec. 6, Clause 1), ``Doctr. Franklin ... remarked the tendency of abuses in every case to grow of themselves when once begun, and related very pleasantly the progression in ecclesiastical benefices, from the first departure from the gratuitous provision for the Apostles, to the establishment of the papal system. The word `liberal' was struck out.''
It is unimaginable that there could be assembled in the United States today a comparable college of political philosophers so skilled in politics, or of practicing politicians so schooled in political philosophy. An example: Madison initially resisted including a Bill of Rights in the charter. He believed that individual rights were safeguarded in the structure of a government of limited, enumerated powers, and he feared the unintended consequences that could flow from enshrining broad statements about the dignity of man.
But popular pressure for a Bill of Rights was irresistible. So Madison, to ensure that the business would be, in his words, ``pursued with a proper moderation and in a proper mode,'' took charge of the ``nauseous project.'' Under his guidance, Congress crafted the narrow but vital amendments that have come down to us and avoided giving the effect of law to pronouncements of the libert'e, 'egalit'e, fraternit'e variety.
In the twilight of his long life, even Madison - the central figure in the events of 1787 - expressed the view that the establishment of the Constitution was a sort of miracle. But it wasn't a miracle, as this anthology so amply demonstrates. The Constitution of the United States was the product of the painstaking, halting, and often argumentative application of intelligence, experience, and vision to a problem of governance by men who were unafraid to plan for the future because they knew so much of the past.
They have bequeathed us their spirit and the fruits of their prodigious labors. Professors Kurland and Lerner, for their part, have given us this extraordinary collection. We will not receive a better gift in this bicentennial year.
James H. Andrews is on the editing staff of the Monitor's National News Department.