A review of Original Intentions: On the Making and Ratification of the United States Constitution by M.E. Bradford (Georgia, 1993).
Since the bicentennial of the U.S. Constitution, numberless books re-examining the document and the convention that made it have issued forth from commercial publishing houses and university presses. While some of them are excellent and make important contributions in the field of constitutional history (Forrest McDonald’s Novus Ordo Seclorum, Framing and Ratification of the Constitution ), the question of what the framers intended remains very much at issue. The late M. E. (Mel) Bradford, in what is one of the better studies to come out in recent years, addresses this central issue ably, forthrightly and provocatively. Hence the title of Original Intentions (a phrase that strikes fear in the minds of modern advocates of governmental intervention and intrusion).
For his part, the conservative Bradford bemoans the defeat of one of the Constitution’s most important original purposes, that is, the creation of a limited government with few and very defined powers at the national level. The chief culprits in the process of negation, according to Bradford, are judicial misconstruction (he calls it “interpretative jurisprudence”) and the unintended consequences “of a thousand ad hoc solutions to practical problems.” These, in turn, he suggests are based on “an egalitarian myth” that, in time, made the Declaration of Independence the preamble to the Constitution. The effect here, for all practical purposes, was to nullify the latter in “pursuits) of happiness” that (as interpreted by later legislators and judges) literally had no bounds.
As the framers were well aware, based on well-known lessons of the past, power was intoxicating and corrupting and always sought to expand at the expense of liberty. Alas, they were right. What they feared has come to pass; the government itself has now become sovereign over the people who created it. Instead of a real federal republic, we have a “consolidated” government operating directly and ever increasingly upon individuals. To the framers, this was the very definition of a tyranny like the despotic governments of Asia. If this is shocking, just read the sources or examine recent history! When the courts make law, when the will of the people is ignored and when checks and balances no longer work, there is no liberty. As John Dickinson stated long ago, “A Free People” are “those, who five under a government so constitutionally checked and controlled, that proper provision is made against its otherwise being exercised.”
On this point, it should be noted that Bradford is more optimistic than the reviewer. In his view, restraint will come with a better “understanding of the history of the United States Constitution” and “how we have lost control of its interpretation.” At least that is his hope.
By original intentions, Bradford means also that the framers did not (as popularly believed) erect a wall of separation between the state and religion. This notion rather is a modern one that owes its origins to the “watershed decision” of Everson v. Board of Education in 1947. This case, another example of judicial decor, assumed curiously enough that the framers were not Christians! As Bradford makes clear, this historical misconception derives from a selective list of men deemed by biased interpreters to be “representative” non-believers (readers will have to buy the book to find out who they are). An examination of the historical record, needless to say, proves very much the contrary. Bradford’s research here is original and his conclusions on this most controversial point constitute the book’s most important contribution. It should be required reading and is by itself worth the price of the book. (The University of Georgia Press should mail copies immediately to the Supreme Court justices and to ensure that they get there, given the sorry state of the postal service, they should be mailed by Memphis-based Federal Express.)
A third intention that is equally overlooked is the fact that the federal convention of May to September, 1787, represented the beginning and not the end of the process of constitution-making. There were in fact 14 constitutional conventions, and it is to these (as even James Madison admitted) that one must turn in order to comprehend what really-happened from 1787-1788. Bradford’s discussion of the reasons for each state’s ratification makes for interesting reading (Chapters 4,5, and 6) as does his conclusion (Chapter 3) that the order in which it happened was, in the final analysis, the most important consideration. As it turns out, this emphasis upon practical politics is related to Bradford’s rejection of the role of ideology in the formation of the republic itself whether in 1776 or 1787.
Although not original with Bradford, he nevertheless adds to the mounting evidence that James Madison’s role in the federal convention has been exaggerated. Not only was he not “the father of the Constitution,” but his extreme nationalist views almost caused the meeting at Philadelphia to adjourn. After all these years, it is good to have a corrective to Irving Brant’s eulogistic biography. How Madison became the leading figure in 1787 is itself a revealing subject and one that the reviewer is pursuing. Suffice it to say here that the delayed publication of his famous Notes of Debates, done perhaps to hide his extreme nationalism, only served to invite confusion about what happened a half century earlier. That he lived to be the last of the framers had another negative impact as well when he denied the constitutional doctrine of state interposition. Ever since that time, John C. Calhoun and the South have been misunderstood along with the original intentions of the framers. A point not made by Bradford but one worth pursuing is that Calhoun’s constitutional theorizing is, in retrospect, as equally valuable if not more so than the sacrosanct Federalist Papers!
Another revealing insight provided by Bradford concerns the opponents of the Constitution (misnamed “anti-federalists”). Far from being negative obstructionists, they were the true republicans and federalists who, in smelling a nationalist rat (to paraphrase Patrick Henry), made sure that nothing was hidden and that the proposed government would indeed be limited and federal rather than unlimited and national. They also gave us the Bill of Rights which Hamilton, Madison and other nationalistic-minded framers opposed. This interpretation, along with the one above regarding Calhoun and the South, is readily apparent when the sources are consulted. Unfortunately, and this is part of the problem regarding original intentions, a complete documentary record has only become available in the latter part of this century with the publication of The Documentary History of the Ratification of the Constitution and The Complete Antifederalist.
Where the reviewer and the author part company involves the role of ideology or philosophy in the creation of the American republic. Bradford’s thesis is unequivocal: “The making of the Constitution was a limited, political, non-philosophical act, reflecting a consensus about the nation’s future hopes and present character….” At the same time, reference is made to “Whig doctrine coming from leading figures in each of the original thirteen states.”
To speak of the English inheritance, of course, is to recognize the role of radical Whig-republican ideology not only upon the events of 1776-1787 but long afterwards as well. Radical Whig-gism, as delineated by Bernard Bailyn in The Ideological Origins of the American Revolution (1967) and Gordon S. Wood in The Creation of the American Republic, 1776-1787 (1969), was used to justify secession from the British Empire and it also underlay the quest for a new constitutional order that would preserve liberty (not egalitarianism). The result was a new balanced government that combined English and American elements. Instead of King, Lords and Commons there would be in the United States (the state united, that is) a President, Senate and House of Representatives. The new element added by American Whigs was their invention of federalism and the concept of checks and balances. These, however, were by-products of philosophy, namely, Montesquieu’s theory that republics were only suited for small territories and the classical idea of mixed government. Not only would America be an extended republic, based on states which were in truth small republics, but power was to be so divided and parceled out that it could not be usurped whether from above (by one person) or from below (by many people). In this equation, too, the rights of states (a subject barely mentioned by Bradford) would be most important in preserving the federal character of the new government.
Radical Whig-republican ideology is important in another sense as well. Besides clarifying the non-democratic and egalitarian thought of the world of 1776-1787 (just read The Federalist), it also reminds us that the first American mind harbored deep suspicions about commerce, banking, debt, standing armies, taxation and the corrupting influence of patronage (PACs are only a modern version of an old practice used to suborn legislatures, and that they are objected to by citizens today only underscores the continuing influence of radical Whig-republican ideology in America. In similar fashion, fears of corporate power reflect the same bias, which is why we got the Federal Trade Commission and other regulatory agencies.) By-denying the influence of ideology, Bradford further overlooks the great changes in American thought that occurred in the nineteenth century which gave us an egalitarian ethos not to mention a myth of democracy (i.e., the belief that America has always been democratic and nationalistic from the beginning). It was Abraham Lincoln, by the way, who made the Declaration of Independence the preamble to the Constitution. Again, things have not been the same since.
Having defined original intentions and described the ratification process, the author then leaps forward in time to the Reconstruction Era and the controversial amendments and acts of 1865-1877. In keeping with his view of a later twentieth century perversion of the Constitution, Bradford takes exception to those interpreters who see a revolution in jurisprudence during this period. In his words, “Despite the alteration that they made in the balance of American federalism, the Reconstruction amendments and early civil rights laws did not change the Constitution of the United States into a telocratic instrument: a law with endlessly unfolding implications in the area of person rights.” Quoting from various sources, Bradford labors to prove his point. To be fair to the author and to the reader, scholars cannot seem to make up their minds with respect to the nature of the Thirteenth, Fourteenth, and Fifteenth amendments and other Congressional Civil Rights acts.
As an alternative approach, the following scenario is offered. A revolution in jurisprudence was certainly intended on the part of more radical Republicans. Included here was the notion of national versus state citizenship. When howls of protest emerged, among unreconstructed Republican Rebels and their Democratic counterparts in the North, denials of such came fast and furious. (Race was certainly a factor here but it does not explain all as some would want.) In other words, 1865 did not lead to 1965 because of a states’ rights revival based on the “original intentions” of 1776 and 1787. As for the Fourteenth Amendment (adopted while the South was out of the union), its revolutionary character took another direction (which Bradford does not address either). By declaring corporations to be persons entitled to all privileges and immunities as citizens, it served not the interest of freed-men but of businessmen. In this context, the intended Civil Rights revolution was further delayed until more propitious time.
In the meantime, the nationalist purposes of the Civil War were taken over by the Progressives who used devious logic to sell the even more revolutionary Sixteenth and Seventeenth Amendments, which directly undermined the federal structure created in 1787-1788 (the income tax, a direct levy on persons prohibited by the framers, it was now argued would be progressive and not rise above a very minimum rate while the direct election of Senators would bypass recalcitrant and lo-calist state legislatures). Throw in the Great Depression of 1929-1941 and World War II and you
have the explanation for the delay. The authority was there all along.
In support of Bradford’s thesis of a twentieth-century perversion of the Constitution, one could cite the “behind-the-scenes” shenanigans of the Warren Court to achieve a 9-0 decision in the case of Brown v. Board of Education. Apparently, unanimity was more important than the Constitution. Again, things have not been the same ever since. One only wishes here that Bradford would have written more, given the controversial nature of the subject and the author’s erudition. As it is, the book is at best incomplete. Like Sisyphus, the ball has been put in motion. Whether it is pushed forward (uphill, at that, against naysayers) or rolls backwards depends upon the American people and the scholarly community.
Would a return to the original intentions of the framers of the Constitution be impracticable? Not really. But I can hear the howls of protest by those who would say otherwise. “It can’t be done.” “It would result in chaos.” “The people would be hurt.” “We need a strong military establishment.” “What about Social Security, Education, Welfare?” The question is do we want freedom or not? Listen to the words of Patrick Henry in opposition to the proposed Constitution of 1787: “Some way or other,” it argued, “we must be a great mighty empire; we must have our army, and a navy, and a number of things.” In earlier years, “when the American spirit was in its youth, the language of America was different: liberty, Sir, was then the primary object.” In the final analysis, America would remain “a great, mighty and splendid nation, not because [its] government is strong and energetic…but…because liberty is its direct end and foundation.”
This review was originally published in the 3rd Quarter 1994 issue of Southern Partisan magazine.