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A Book for the Bork Debate : THE GENIUS OF THE PEOPLE by Charles L. Mee Jr. (Harper & Row: $19.95; 352 pp.; illustrated)

September 20, 1987|John Denvir | Denvir teaches constitutional law at the University of San Francisco School of Law. and

President Reagan's nomination of Robert Bork to the Supreme Court inevitably sharpens our interest in the activities of the small group of men who met in Philadelphia 200 years ago to draft the Constitution. Since Judge Bork is an avowed exponent of following the Constitution's "original intent," it's only natural to wonder exactly what the authors of the text did intend.

Charles L. Mee Jr.'s engrossing popular history of the Constitutional Convention tells us much of the government the Founding Fathers thought they were creating in Philadelphia, but little that advocates for Bork will find reassuring. For instance, two evils that the convention hoped to prevent were a strong national executive, which they feared might easily become "an elective monarchy," and a standing army, which they saw as a cause of both war and despotism. Conservatives like Bork advocate a strong presidency and the need to defer to the military on questions of national security, but they will find little support in this specific application of their larger theory of "original intent."

Other aspects of the Framers' original intent would offend both liberals and conservatives of today. We must not forget that the necessary mortar for constructing our national union was Northern condonation of the institution of slavery. The original intent was not only to protect slavery, but to give Southern whites additional representation in Congress based on the number of slaves they held. So too, 20th-Century liberals and conservatives would condemn a constitution which contained no Bill of Rights, the type of constitution, that is, that the convention drafted.

Other "original intentions" foresee a polity so removed from 20th-Century reality as to cast a shadow over the whole Borkean interpretive strategy. For instance, the Framers were very clear that their system made no room for the existence of political parties; the record is also clear that they intended the Senate, whose membership was selected by state legislatures, to be a bulwark of states' rights sentiment against incursion by the national government.

Mee makes skillful use of detail to highlight the cavernous gulf that separates us from the late 18th Century. For instance, he notes that the Virginia delegation, upon arriving at their lodgings in Philadelphia, was asked to pay in Pennsylvania currency. He also recounts the tension in the hall during the discussion of the requirement that the President be native born; a large proportion of our Founding Fathers were immigrants.

The Framers foresaw few of the perils that the nation would have to face in the 19th Century, much less the 20th. The one problem they did foresee, slavery as a threat to the union, they decided not to face. The Framers certainly had no idea that their hastily put-together text would eventually be worshiped as a national icon, each choice of phrase and punctuation parsed to yield the concrete answer to a 20th-Century political problem. The text was largely borrowed from existing documents; the majestic "We, the People," which opens the Constitution, was most likely copied from an Iroquois document. The Framers were professional politicians and most of their discussions dwelt on that favorite subject of politicians--power. And they saw those issues of power in the context of 1787, not 1987. Fortunately, they eschewed tight legal phrasing in putting down the political compromises which make up the bulk of the Constitution. They contented themselves with broad phrases that they hoped each succeeding generation would adapt to the necessities of its own time.

Mee has written the type of book which gives popularization a good name. He tells his story clearly and simply without making it simplistic. The reader ends the book knowing much about the men who wrote the Constitution--and wanting to learn even more, perhaps the acid test of good popular history.

It would be myopic to ignore the perceptions of the Framers of the Constitution in interpreting the document today, just as it is silly to look to it as a scientific formula giving foolproof answers to contemporary political dilemmas like abortion and affirmative action. While the founding generation could not foresee the future, they did create a durable language in which we have debated political issues for 200 years: popular sovereignty, separation of powers, a government of enumerated powers, protection of individual rights. And since to a large extent we are the products of the language we speak as well as its authors, they have had therefore a voice in later events. It would be better if judges like Bork concentrated on the necessary evolution of the constitutional language the Framers did create, rather than rely on some selective invocation of a mythical "original intent."

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