Written documents should be interpreted with an eye toward discerning the intent of the author. When the Constitution of the United States is the text under consideration, the relevant intentions are those of the men who drafted and ratified the document. This proposition reflects a long-established canon of construction: common-law judges as far back as the 12th century invoked original intent. So did Sir Edward Coke, Matthew Bacon, natural lawyer Thomas Rutherforth, William Blackstone, Thomas Jefferson, and James Madison, who wrote that he “entirely concur [red] in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful, exercise of its powers.”
Today, the jurisprudence of original intent is severely out of favor among most academics and many judges such as Associate Justice Ruth Bader Ginsburg, who in 1985 wrote approvingly of “boldly dynamic interpretation . . . departing radically from the original understanding.” Judicial departures from the Kramers’ understanding occurred relatively infrequently during the Republic’s early years, with the spectacular exception of Chief Justice John Marshall’s national bank decision McCullock v. Maryland (1819). But the Court has been at sea for much of the 20th century, and the debate over interpretive method has been especially heated since 1985, the year then-Attorney General Edwin Meese urged the Supreme Court to adhere to the original meaning of constitutional provisions and Justice William Brennan responded by calling originalism “arrogance cloaked as humility.” That exchange, followed by Robert Bork’s failed nomination to the Supreme Court, brought noninterpretivists out of the woodwork, and scores of books and articles have subsequently been published on the subject. The standard argument of judicial activists begins with the presupposition that textual interpretation is impossible because each interpreter brings to the task a set of beliefs, determined by some relevant community of readers, that not only prevents him from discerning the meaning intended by the author but strips the text itself of meaning apart from that given to it by the reader.
M.E. Bradford dismissed such deconstructionist notions as “obfuscatory” and “glib ingenuity.” As if to prove his point single-handedly, Bradford generated, over the past decade or so, a mountain of scholarship revealing the views of the extraordinary men who framed and ratified this country’s fundamental law. The first fruits of that research resulted in A Worthy Company, a fascinating collection of biographical sketches of the men who gathered for Philadelphia’s Great Convention in 1787. In his last and posthumously published book, Original Intentions: On the Making and Ratification of the United States Constitution, Bradford applies his knowledge of the 18th-century milieu to the Philadelphia and state ratifying conventions, yielding eight purely original chapters. Read together, these essays constitute a compelling brief for the minimalist understanding of the Constitution that was ascendant during the salad days of this country’s federal jurisprudence.
Bradford draws upon Jonathan Elliot’s Debates of the Several States Ratifying Conventions, among other records, to reconstruct the dynamics of three such state conventions. In Massachusetts, Federalists who made no secret of their antidemocratic sentiment seized upon Shays’ Rebellion as an example of the dreadful licentiousness that was likely to result if power were not more centralized. The Federalist cause in Massachusetts was jeopardized by fierce New England exclusiveness and an aversion to being “unequally yoked together” with the Southern states, but it eventually prevailed with the addition of amendments reflecting Antifederalist concerns. A distinguishing feature of the Massachusetts ratifiers, Bradford notes, was their tendency to view government as a positive good, given by God for the well-being and improvement of His covenant people.
By contrast, ratification of the United States Constitution in North and South Carolina was achieved with little talk of the advantages of energetic government. In fact. Federalists at the Charleston and Hillsborough conventions saved the plan for union only by assuaging—not rejecting—Antifederalist concerns at every turn, Charles Pinckney, for example, neatly inverted the Antifederalist argument that the proposed constitution granted the government power to derogate unenumerated state rights by promising that “no powers could be executed, or assumed [by the federal government], but such as were expressly delegated.” And in North Carolina, Federalists insisted, against Antifederalist warnings of despotism, that no branch of the national government, especially the judiciary, could meddle with the internal affairs of state governments. Perhaps the only participant in the ratification debates of these Southern states who foresaw the extent to which general provisions of the Constitution could be abused through loose construction was the conservative Rawlins Lowndes, who declared that he “wished for no other epitaph, than to have inscribed on his tomb, ‘Here lies the man that opposed the Constitution, because it was ruinous to the liberty of America.'”
Bradford’s essay on “Religion and the Framers” stands in sharp contrast to the Supreme Court’s modern Establishment Clause decisions, and illustrates more clearly than any other chapter just how far adrift courts can go when they abandon the original understanding of constitutional provisions in favor of unenumerated “constitutional principles.” Almost to a man, the Framers were orthodox Christians, cognizant of God’s providence in their own lives and unhesitant in their willingness to invoke His name and pray for His blessings in their public endeavors. These men would not have dreamed of judging laws touching religion under an agnostic standard like that delineated by the Court in Lemon v. Kurtzman (1971), which demands that every government act have a strictly secular purpose and remain free from the taint of religion. It is ironic indeed that Thomas Jefferson, an indisputable outlier from his contemporaries with regard to religious matters, is the Framer whose ideas form the basis for modern church-state jurisprudence. Jefferson was out of the country, in France, at the time the Bill of Rights was passed by Congress and ratified by the states, and his famous “wall of separation” (a phrase he did not coin until 1802) flew in the face of almost every American colony’s political history before that time.
The most elegant chapters in Original Intentions, “Such a Government as the People Will Approve: The Great Convention as Comic Action” and “The Best Constitution in Existence; The Influence of the British Example on the Framers of our Fundamental Law,” remind us of Bradford at his familiar best, as the great rhetorician assiduously mining the historical record and then arranging its details into a powerful narrative. Bradford recalls that America’s novus ordo seclorum was essentially inherited, with modifications wrought through political compromise. Our Constitution was not drawn from the pure waters of general principle; it is not a document that aspires to theoretical perfection. Because the basic liberties and privileges possessed by Americans are specific and historically rooted, they are subject to discovery, application, and formal amendment, but not (legitimately) to re-creation according to evolving standards of “justice.” Nor are the words of the Constitution autonomous symbols that can mean different things to different ages. That is why, to return to the title and theme of Original Intentions, constitutional interpretation is concerned not just with the abstract meaning of text, but with the utterance of it by men situated in time, place, and circumstance. Of all people. Dr. Bradford appreciated that truth, and his final collection of essays is faithful to it.
[Original Intentions: On the Making and Ratification of the United States Constitution, by M.E.Bradford (Athens: University of Georgia Press) 165 pp., $24.95]
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