Constitution Worship

CONSTITUTION WORSHIP David H. Flaherty Philip B. Kurland and Ralph Lerner, eds, TheFounders'ConstiMion. Chicago: University of Chicago Press,1987.5 vols., xiii + 3520 pp. In a variety of ways Americans continue to mystify Canadians. Two of these American ways will initially concern us here. The first, which also affects other foreigners, is the American tendency, indeed imperative, to discuss issues of public policy in terms of the United States Constitution, as if it were a document the rest of the Western world simply must comprehend and preferably know in detail. Thus, criticisms of weak federal data protection legislation in the United States, in comparison to the situation in other advanced industrial societies, elicit the defensive response that Americans at least enjoy the blessings of the Fourth Amendment (protecting citizens against unreasonable searches and seizures). The problem with this rhetorical retort is that the Fourth Amendment as such has no particular meaning for non-Americans. Foreigners use their own constitutional traditions to explain why certain things are done in certain ways, but they do not generally have the arrogance to expect others to understand their O\\rn peculiarities. Such is not the case with the United States. Visitors to the National Archives of the United States in Washington cannot help but be astonished at a second aspect of American constitutionalism. The Declaration of Independence, the Constitution of 1787, and the Bill of Rights are displayed in what tour guides describe as a "shrine," in a domed room that strikes a visitor as nothing so much as a secular church. Tourists are led in a narrow file towards the "altar"where the documents can actually be viewed like the relics of any saint in a center of pilgrimage. The trappings seem especially bizarre in a society so much devoted, in constitutional principle, to the separation of church and state. The redolence of American Constitutional celebration requires an admission at the outset that the original U.S. Constitution, is in fact, a magnificent product of political debate and compromise. It is a work of such extraordinary originality and insight, the product of such celebrated circumstances, that it is hardly surprising that otherwise rational people think of the Constitution as being almost divinelypreordained (knowing little about 82 David H. Flaherty the low state of religious belief, in any serious sense, among the Founding Fathers). Given that the American Revolution was essentially a war of resistance against the mother country that simply got out of hand (not least because of British incompetence), it is no easy matter to achieve a rational explanation of the creation of the American Republic between the outbreak of war in 1775 and the fateful long summer of 1787in Philadelphia. The celebratory approach to the American Constitution that we have just lived through during the Bicentennial requires another preliminary comment. The 1787 document was the first modern constitution; it has been imitated and copied throughout the world, and its flexible language has allowed the text to survive, with only a modest number of amendments, for more than two hundred years. It has been, and continues to be, the model constitution from which other liberal democratic societies might learn, and which might help them decide whether and how to follow its lead. This tone of celebration is an appropriate one to bring to an assessment of The Founders' Constitution. The very title of these five volumes itself encapsulates the mythical and religious air that now surrounds the names of George Washington, Benjamin Franklin, Thomas Jefferson, John Adams and James Madison (even if two of them were abroad in 1787). In a fashion that is at once a celebration of the original Constitution and a political act, this set of volumes purports to set forth everything of importance that contemporaries said, from the seventeenth century to the end of the seminal Chief Justiceship of John Marshall in 1835, about the making and implementation of the constitution of 1787. The Founders' Constitution is indeed a tour deforce. The distinguished editors are specialists in constitutional law and political theory at the University of Chicago. Inspired by a belief in the continued relevance of the philosophical principles and popular arguments that the Founding Fathers drew...