The very designation "fundamental" is in effect a claim that here one has touched bottom, reached bedrock. Relative to this, other matters are at best anticipatory, preliminary, or derivative. Where the subject is American constitutionalism and the Founders' Constitution, it takes no argument to give pride of place to the Constitution of 1787. But only a self-defeating literalism would leave it at that. American constitutionalism is embodied not only in a form of government but, from the outset, in a variety of modes and models--models to be followed or improved. Likewise, American constitutionalism comprehends not only the distribution of powers and organization of offices, but the declaration of rights. The most famous and influential of those forms and declarations may properly be designated fundamental and stand at the head of this collection.
The frequent reappearance of portions of these documents in the following chapters under one or another theme or constitutional provision suggests that these documents are fundamental not merely in the sense of sustaining but also in the sense of being pervasive. Beyond that, their recurrence points to the necessity of being able to see each of these documents as a whole, as the sum or more than the sum of its discrete parts. Their reproduction here in their entirety is a reminder that each of these public documents was presented to a candid (and even skeptical) world as a coherent whole. Whether ultimately persuasive or not, each has an internal logic that deserves to be seen as such.
One of the documents in this chapter might seem to be in the wrong company and hence in need of special justification. The excerpt from Edmund Burke's speech on conciliation with the American colonies (no. 2) can hardly be said to be a document of American constitutionalism, let alone a fundamental one. But constitutionalism, as the following chapters will develop at length, involves not only general forms and abstract declarations, but a particular people, a specific place, concrete circumstances. Burke's depiction of those details in the American case has never been surpassed. Whatever its shortcomings or oversimplifications, it captures the mood and situation of a people intent on defining and refining its notions of self-government. If that was the Americans' revolutionary moment, it was (as the size and contents of this collection amply testify) neither brief nor simple. In that sense the fundamental documents of the Founders' Constitution are not epilogue but prologue.
© 1987 by The University of Chicago