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REEDINGS . . .

Notes on Books by Gerard Reed

January 2006 Number One Hundred Sixty-nine

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ORIGINAL INTENTIONS. THE FOUNDING FATHERS

As a "new nation" America was uniquely shaped during the first half-century other existence. To Daniel Webster, the forging of the Constitution was absolutely central to that process. "Hold on to the Constitution of the United States of America and the Republic for which it stands—what has happened once in six thousand years may never happen again," said Webster. “Hold on to your Constitution, for if the American Constitution shall fail there will be anarchy throughout the world." The genius of this Constitution, M.E. Bradford argued, lies in the Founding Fathers' Original Intentions: On the Making and Ratification of the United States Constitution (Athens: The University of Georgia Press, c. 1993). Bradford, who died the year this book was published, was a professor of English at the University of Dallas, a very traditional Catholic university. Like Richard Weaver, with whom he has much in common, he belonged to the "Southern agrarian" school and considered himself primarily a "rhetorician." He devoted his scholarly life to understanding the American way. As is evident in his important earlier work,

A Worthy Company: Brief Lives of the Framers of the United States Constitution, Bradford especially sought to show the deeply Christian (rather than secular Enlightenment) commitments of the men who birthed this nation.

Original Intentions is a collection of lectures Bradford delivered at various law schools (e.g. The University of South Carolina) and universities (e.g. Dartmouth College) during 1976, the "bicentennial" year. They rest upon a thorough investigation of the primary sources—especially the records of influential persons largely unknown today but influential in that era. Several of the lectures deal with the debates that took place in states (Massachusetts; North Carolina; South Carolina) considering ratification following the convention. In a most helpful forward, the distinguished historian Forrest McDonald identifies two themes that weave their way throughout the lectures. First, Bradford argued that the Constitution established a clearly, indeed severely limited government. Second, he repeatedly employs the English philosopher Michael Oakeshott's distinction between "nomocratic" and "ideological" readings of the document. According to the nomocratic reading, McDonald says, the Constitution "is primarily a structural and procedural document, specifying who is to exercise what powers and how. It is a body of law, designed to

govern, not the people, but government itself; and it is written in language intelligible to all, that all might know whether it is being obeyed" (p. xii). For fully 150 years this nomocratic understanding generally prevailed. Since WWII, however, a teleocratic view has captivated the nation's laws schools and courts "and has all but destroyed the original Constitution" (p. xii).

In 1787, there were men like Alexander Hamilton and James Madison who wanted to establish a strong, centralized government. Madison, Bradford shows, was hardly the "father of the Constitution," for his "Virginia Plan" was quickly rejected as the majority of delegates insisted on preserving significant roles for the 13 states. In fact, they almost disbanded the convention until a series of compromises brought into being a much more modest compact than Madison envisioned. The committee that finally drafted the document was chaired not by Madison but by John Rutledge of South Carolina and closely followed the proposals of Connecticut's Roger Sherman, who believed the "objects of union . . . were few: (1) defense against foreign danger; (2) control of internal disputes and disorders; (3) treaties; (4) foreign commerce, and a revenue to be derived from it" (p. 11).

Philadelphia in 1787 was quite unlike Paris following the 1789 Revolution. The Americans drafted a document designed to establish "a more perfect union," but not an absolutely perfect nation. While abstractions like "Liberty, Equality, Fraternity" may arouse emotions, catchy slogans no more establish a sound republic than New Year's resolutions establish a good character. The American Constitution "is more concerned with what government will not do for each of us than with the positive description of acceptable conduct, which is left to local and idiosyncratic definition—to society, local customs, and tested ways. Most important, it is not about enforcing the abstract 'rights of man' or some theory of perfect justice and aboriginal equality, not even with the Bill of Rights added to it" (p. 13).

he French approach, on the other hand, stressing the "rights of man," Sir Herbert Butterfield wisely noted, illustrates the modem endeavor to "make gods now, not out of wood and stone, which though a waste of time is a fairly innocent proceeding, but out of their abstract nouns, which are the most treacherous and explosive things in the world" (The Englishman and His History {Archon Books, 1970}, p. 128). America's Constitution, conversely, contained few "abstract nouns," concentrating instead (following the British example) on the "old liberties" familiar to English-speaking peoples. The Common Law jurists, such as Coke and Blackstone, not the radical philosophes, such as Diderot and Rousseau, were their authorities. "John Adams, especially, admired the fundamental law of Great Britain, describing it as 'the most stupendous fabric of human invention' and a greater source of 'honor to human understanding' than any other artifact in the 'history of civilization'" (p. 28). And Virginia's Patrick Henry agreed, touting

the British system '"the fairest fabric that ever human nature reared'" (p. 31).

"It is," Bradford concludes, "impossible to understand what the Framers attempted with the Constitution of the United States without first recognizing why most of them dreaded pure democracy, judicial tyranny, or absolute legislative supremacy and sought instead to secure for themselves and their posterity the sort of specific, negative, and procedural guarantees that have grown up within the context of that (until recently) most stable and continuous version of the rule of law known to the civilized world: the premise that every free citizen should be protected by the law of the land" (p. 32).

Bradford's lecture on "Religion and the Framers: The Biographical Evidence," reveals how profoundly wrong-headed is the modem judiciary's "separation of church and state." Anyone deeply-rooted in the primary sources, he insists, cannot but recognize and revere the deeply Christian beliefs of some 95 percent of "the 150 to 200 principal Founders of the Republic" (p. 88). In their private papers, wills and ars moriendi, they routinely referred "to Jesus Christ as Redeemer and Son of God" (p. 89). Many of them, including Patrick Henry and George Washington, opposed Jefferson's moves to disestablish the church in Virginia. Central figures in the making of the new nation—including Elias Boudinot, Roger Sherman, Charles Cotesworth Pinckney, Luther Martin, and John Dickinson—were deeply devout and zealous Christians. To portray the Framers as deists, a la Jefferson and Franklin, is, Bradford declares, egregiously

wrong. It is, however, the typical textbook story foisted upon the public these days.

Turning to the post-Civil War Reconstruction Amendments, Bradford argues they did not

significantly change the "nomocratic" essence of the 1787 Constitution. But since 1945 these amendments (and especially the 14th), through the doctrine of "incorporation," have been increasingly used to make the Constitution "a teleocratic instrument: a law with endlessly unfolding implications in the area of personal rights" (p. 104). This has been done through "the shoddy scholarship of the Warren Court," amply evident in an opinion of Justice Potter Stewart, who selectively cited "bits of speeches that appear to support his views and especially radical language contained in clauses rejected by Congress as a whole" (p. 118). Consequently, "in the end we get Chief Justice Warren saying that 'the provisions of the Constitution are not time worn adages or hollow shibboleths . . . [but] vital living principles.' And we also get Warren's

apologists coming after him, arguing that the court had always from the Founders the 'implied power' to revise and rewrite the Constitution according to its recognition of a 'higher' or 'natural law.' Taken together, their words describe according to its essence just what a teleocratic constitution might be, or describe no constitution at all (p. 125).

Bradford's burden in these lectures is obviously to limit the powers of the federal government, making it truly a "federal" government of limited authority. And the evidence he cites certainly validates his conviction that the "original intentions" of the Founding Fathers were largely forgotten during the 20^th century.

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Bradford's recent concerns were previsioned, at the beginning of the Republic, by Anti-Federalists like Patrick Henry and John Taylor of Caroline (the intellectual leader of the strict constructionist Jeffersonian Republicans). Born in 1753, Taylor was admitted to Virginia's Caroline County bar in 1774, just as the American Revolution began. He joined a Virginia regiment and ultimately became a major in the Continental army. Thereafter he served in the Virginia General Assembly and was thrice appointed to serve out senatorial terms in the United States Senate. But his great vocation, he believed, was to farm well and write wisely. His plantation, "Hazelwood," became a model of "scientific" farming—reclaiming exhausted soil and illustrating the goodness of the agrarian life. In 1813 he published Arator: Being a Series of Agricultural Essays, Practical and Political. Writing an introduction to it, ME. Bradford said: "Taylor is like Cato ... in treating advice on farming as a species of moral instruction . . . [for] Arator is about the social order of an agricultural republic, and not just about farming" (in the Liberty Fund edition, 1977, p. 37). Like Jefferson, Taylor believed that agriculture should be the basis of any healthy society.

As a political thinker, Taylor is best known for helping craft the Virginia Resolutions in 1798 and for three lengthy works published during the last decade (1814-1824) of his life: (1) An Inquiry into the Principles and Policy of the Government of the United States, (2) Tyranny Unmasked, and (3) New Views of the Constitution of the United States. He wrote to decry the manifest concentration of power in the federal government that was utterly unwarranted by the Constitution. The financial policies of Secretary of the Treasury Alexander Hamilton (such as funding state debts, internal improvements, and the National Bank) in the 1790s contravened the Constitution. Subsequent protective tariffs were designed to help northern industries (and wealthy industrialists) rather than the people. And the nationalistic decisions of the Supreme Court under the guidance of John Marshall, were not envisioned by the architects of the United States. All such centralizing developments elicited Taylor's strong condemnations.

In Tyranny Unmasked (Indianapolis: Liberty Fund, 1992), Taylor primarily attacked the

protective tariff that so harmed the agrarian South. There is no difference, he insisted, between taking property through violence and taking it through taxes and fiscal policies designed to award a privileged minority. "A tax may be imposed for two objects; one to sustain a government, the other to enrich individuals" (p. 116). There is no difference between a tyranny with one man on top and a tyranny with a thousand men on top. Elected tyrants are still tyrants. Fifty years after the Revolution, Taylor warned, Americans "must once more decide whether we will be a free nation. Freedom is not constituted solely by having a government of our own. Under this idea most nations would be free. We fought a revolutionary war against exclusive privileges and oppressive monopolies" (p. 84). To grant similar privileges and monopolies under the auspices of the "national" government would betray the fundamental nature of the United States.

A free people, Taylor insisted, require a limited government. "All reflecting individuals, except those bribed by self-interest, believe that liberty can only be preserved by a frugal government, and by excluding frauds for transferring property from one man to another. In no definition of it has even its enemies asserted, that liberty consisted of monopolies, extensive privileges, legal transfers of private property, and heavy taxation. In defining a tyrant, it is not necessary to prove that he is a cannibal. How then is tyranny to be ascertained? In no other perfect way that I can discern, except as something which takes away our money, transfers our property and comforts to those who did not earn them, and eats the food belonging to others." (p. 226).

Ambition and avarice ever haunt the corridors of power. Thus freedom flourishes only when power is restrained by the checks and balances set forth in the Constitution, and most especially in the 10^th Amendment that specified: "The powers, not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the states respectively, or to the people."

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In 1823, a year after publishing Tyranny Unmasked, John Taylor of Caroline published New Views of the Constitution of the United States (Washington, D.C.: Regnery Publishing, Inc., c. 2000). Whereas the protective tariff served as the focus for the earlier work, the original intentions of the Framers of the Constitution served as the subject for the latter, and it is, James McClellan says in his Introduction, "the locus classicus of states' rights jurisprudence" (p. xiii). In 1818 Congress had permitted the publication of Robert Yates' notes of the Constitutional Convention. (Before this, by Congressional order, nothing was known of the behind-the-scenes debates of the delegates, and James Madison's journal was not published until the 1840s. Thus the strong states' rights concerns of the Convention's Framers was largely unknown for 25 years). Comparing their actual intent, as recorded in Yates' Journal, with the widely-known interpretations set forth by Madison and Hamilton in The Federalist Papers, Taylor discovered pervasive

"distortions of the original meaning and a nationalistic bias" (p. liii) of the latter.

"Had the journal of the convention which framed the constitution of the United States, though obscure and incomplete," Taylor said, "been published immediately after its ratification, it would have furnished lights towards a true construction, sufficiently clear to have prevented several trespasses upon its principles, and tendencies towards its subversion" (p. 13). The Framers clearly envisioned a limited federal government, not the national regime evident by 1820. Indeed, as the several states appointed delegates to the Convention they insisted on using the right word, unanimously rejecting "the recommendation of a national government, and by excluding he word national from all their credentials, demonstrated that they well understood the wide difference between a federal and a national union" (p. 18).

Taylor devoted many pages to carefully examining the materials in Yates' journal, dismayed that its contents had been buried for 30 years. "Thus the vindicators of a federal construction of the constitution are deprived of a great mass of light, and the consolidating school have gotten rid of a great mass of detection. Secrecy is intended for delusion, and delusion is fraud. If it was dictated by an apprehension, that a knowledge of the propositions and debates, would have alarmed the settled preference of the states and of the publick, for a federal form of government, it amounts to an acknowledgement that these propositions and debates were hostile to that form and to the publick opinion" (p. 47). Deprived of the truth, many naively believed the positions espoused in The Federalist Papers. So Taylor devoted much of the book to an examination and refutation of the interpretations set forth therein by Hamilton and Madison,

as well as clarifying his own understanding of the Constitution. Their differences are demonstrable: "These gentlemen believed that a supreme national government was best for the United States, and I believe that a genuine federal system is more likely to secure their liberty, prosperity, and happiness" (p. 75). The question is: which interpretation best represents the "original intentions" of the Framers?

Given the evidence from the original sources, Taylor defended the "federal" rather than the "national" system. "The delegations, reservations, and prohibitions of the constitution, combined with the rejection of powers proposed in the convention, constitute a mass of evidence, more coherent and irrefragable for ascertaining the principles of our political system, than can be exhibited by any other country; and if it cannot resist the arts of construction, constitutions are feeble obstacles to ambition, and ineffectual barriers against tyranny. .... This mass of evidence stands opposed to those constructions which are labouring to invest the federal government with powers to abridge the state right of taxation; ... to expend the money belonging to the United States without control; to enrich a local capitalist interest at the expense of the people; to create corporations for abridging state rights; to make roads and canals; and finally to empower the supreme court to exercise a complete negative power over state laws and judgments,

and an affirmative power as to federal laws" (p. 189).

Looking at Taylor's 1823 list in 2006, it is evident that his fears have materialized. Uncontrolled spending, even by Republicans elected to restrain it, continues unabated as we enter the 21st century. "Local capitalists" routinely gain advantages, through the hoards of lobbyists (many of them former senators and congressmen) who wine and dine "public servants" such as Congressman Randy "Duke" Cunningham. Federal bureaucracies, such as the Environmental Protection Agency or Department of Education, have slowly increased their coercive roles in realms formerly reserved to state and local governments. Internal improvements—"roads and canals" in Taylor's day—have been widely nationalized, as is most evident in "disaster relief in Louisiana and federal influence in minor matters like speed limits. And the Supreme Court, greatly feared by Taylor, has become a major player in making laws and shaping society. Court decisions, whether mandating abortion rights or racial preferences in university admissions, reveal the enormous political power now resident in the hands of nine unelected jurists.

Hamilton and Madison certainly exerted influence in the 1787 Constitutional Convention, but ultimately their position, calling for a strongly centralized government, was soundly rejected by that body. This was because the Framers prized an ordered liberty. "Society, well constructed, must be compounded of restraint and freedom, and this was carefully attended to in framing our union. The states are restrained from doing some things, and left free to do others; and the federal government was made free to do some things, but restrained from doing others. This arrangement cannot be violated, without making one department a slave or an usurper. A division of political rights between the people and a government, can only preserve individual liberty" (p. 301). In sum: "Freedom without restraint, or restraint without freedom, is either anarchy or despotism" (p. 301).

Taylor's position, of course, was embraced by John C. Calhoun and in time by the architects of The Confederate States of America. Thus his states' rights argument cannot escape the stigma of slavery and segregation in the South. But the essence of what Taylor (and Bradford) argue—that the best government is a limited government—still has currency. One need do no more than note the latest "pork barrel" legislation, or the Supreme Court's meddling in local decisions regarding placement of the Ten Commandments, or recent presidents' decisions to help hurricane victims or pay for drug prescriptions or dispatch troops around the world, to realize how centralized and powerful the government created by the Constitution has become. The current regime may be necessary—or it may be better. But it is clearly not what the 1789 convention envisioned.