Original Intentions - Preface

This book is by nature and purpose an invocation of the patrimony. The eight chapters were written as part of the bicentennial observation honoring the Constitution of the United States. In particular, they salute the Constitution as it was when first drafted and ratified by the people of the states. Though these studies sometimes complain of contemporary misunderstandings in constitutional history, their informing principle is, obviously, my still undiminished regard for those who gave us our original form of government: both for the process which brought it into being and for the details of its design and operation as they affect us from day to day. The individual chapters were written first to be heard and then to be read - as the public statements of both scholar and citizen. For it is the nature of the American regime that an act of devotion to our constitutional morality, expressing our corporate will to "preserve, protect and defend: our Constitution, is ordinarily performed in speech of the kind the ancients called epideictic: not so much for debating policy or condemning error as for the rehearsal of attitudes generally agreed upon, necessary to the preservation of the nation's character and definitive of its special standing among the peoples of the world. Though long since distorted by construction and hidden beneath the encrusted details of a thousand ad hoc solutions to practical problems - solutions drawn up without a care as to their constitutional legitimacy - the old Republic of the Fathers is still there, visible within the misshapen effulgence of the United States Constitution as we presently experience it, waiting to have the barnacles cleaned away that, as amended, it may once more shine forth among the nations. Assuming the wisdom of this well-established American practice and the truth of these opinions concerning public piety toward a fundamental law that we treat as sovereign, that we sue as a measure of all political legitimacy, these chapters have been left in the form in which they were prepared. For they are, first of all, addresses made in honor of a heritage, designed to argue a view of its content and to urge its preservation.

To be sure, many views of the enterprise under way were current among the Framers while they drafted and then, with great difficulty, agreed upon and helped to ratify the Constitution in their respective states. Furthermore, not all of these intentions could (or can) be reconciled with every alternative opinion as to what they were, collectively, attempting in the creation of a "supreme law of the land" - attempting even though they mostly agreed on the larger purposes of the Constitution and its "meaning" in the strict (operational or procedural) sense of the term. Max Farrand records from the notes of James McHenry of Maryland that on May 29, 1787, during the very first days of the Great Convention, Edmund Randolph, governor of Virginia, while introducing the so-called Virginia plan to his colleagues in Independence Hall, drew a contrast between the authors of the Articles of Confederation and the Framers of what he hoped would be the new United States Constitution. According to Randolph, the former company was made up of "wise and great men" whose study was "human rights" as that doctrine applied in their critique of the excesses of Great Britain. In other words, they sought to maximize rights of the sort violated by the Intolerable Acts by creating, in contrast to what came out of Whitehall, a minimal government, directly responsive at the local level to the population that it served. In the same spirit they had created the "democratic parts" of many state constitutions, especially concerning what the Fathers called "local police." As a result, "the powers of government exercised by the people swallowed up the other branches." Against such arrangements Randolph complained that "none...have provided sufficient checks against democracy." What the Framers were about to do would therefore not be about human rights or in behalf of democracy, except in a limited way(xvi).

Randolph's preview of the intentions of the Framers represented the thinking of much of that company - perhaps of a small majority. But there were clearly other views in the business, of its structural impetus if not of its particular provisions. In Massachusetts, during the ratification convention held in Boston in January 1788, Fisher Ames announced a vision of government consonant with his Puritan heritage - a view that gave to his reading of the social implications of the Constitution a twist replicated only in the thinking of those Framers who found government to be the source of their liberty, not its adversary. He saw freedom outside the social condition as a Hobbesian chaos of untrammeled appetite and unruly passions such as had recently exploded in the western part of his state and in Vermont, New Hampshire, and Rhode Island. In behalf of the Constitution Ames conjured up the specter of Captain Shays and his desperate crew: "Anarchy and uncertainty attend our future state...who is there that really loves liberty, that will not tremble for its safety, if the federal government should be dissolved. Can liberty be safe without government?...The Union [preserved through ratification of the Constitution] is the dike to fence out the flood...But when the inundation comes shall we stand on dry land?" The metaphor employed in this appeal explains what Connecticut Antifederalist Eliphalet Dyer meant when he reversed his position in his state's ratification convention and decided to support the Constitution as "a brave experiment to cope with the wickedness of mankind." Or what Ames himself intended when he observed, "Democracy is a volcano, which conceals the fiery materials of its own destruction." For Ames believed that men "cannot live without society," and that the people of Massachusetts should be (in John Winthrop's words) "knit together in this work as one body," made free and virtuous by their incorporation in the commonwealth and the Union. Energetic government as a fountain of blessings takes us back directly to the beginnings of the Protestant Zion in the Bay Colony. Other Framers, however, would have been uncomfortable with doctrines that were axiomatic for Fisher Ames.

For those who live inside the myth of an egalitarian America, it is perhaps surprising that so few of the Framers said anything about natural or equal rights during the course of the Great Convention, that Governor Randolph's opinion of their intentions as lawgivers was a sound one, vindicated after-the-fact of his prophecy by the records of those 1787 deliberations in Philadelphia. James Wilson of Pennsylvania was an (xvii) exception to Randolph's prediction. Other Framers mentioned group rights, class rights, inherited rights, or property rights - the rights that go with membership in a society or specific rights earned by revolution, such as those a speaker sometimes invokes in the midst of a remark, though not to suggest serious philosophical generalizations concerning human nature. Furthermore, when in state ratification conventions or pamphlet literature certain Antifederalists assumed a strong position with reference to human rights, they were answered as was Major Samuel Nasson of Massachusetts - with the kind of deflating alternative explanation that John Rutledge offered in Philadelphia in response to too much lofty sentiment on the subject of slavery. With impatience toward idealists Rutledge had maintained that "interest alone is the governing principle with nations" and that only "fools" would proceed on another basis. In the same spirit Nathaniel Gorham of Massachusetts counseled his fellow lawgivers that they should "consult [the] rooted prejudices" of their constituents, and John Francis Mercer of Maryland insisted that all government was "by force and influence." It is a kind of evidence that none of the Framers were outraged by these recommendations for and constructions of the business at hand - that no one rose to refute them, that no one said nay to them. For all present agreed that they had been taught by experience "the danger of the leveling spirit" - the spirit which paid no attention to interests, prejudice, and influence. They were therefore also inclined to treat with suspicion lofty declarations of principle when they were employed as a prologue of self-serving propositions.

Of course, there were other theories as to the overarching purpose of the "more perfect Union" being proposed. These were either heard on the floor of Independence Hall, presented in the ratifying conventions, or developed in the literature of the controversy that swirled around the Constitution once it had been delivered to the states. These theories went beyond simple questions of the conflict between rights and interests, either natural or not. The argument for the authority of experience, John Dickinson's "better guide than reason," was probably the most powerful of these doctrines. In all likelihood it was a predicate of Edmund Randolph's plan for a government based on something other than human rights. But the idea of a union for the sake of empire or the concept of government as an engine(xviii) to promote wealth (positions advance by Alexander Hamilton of New York and Oliver Ellsworth of Connecticut) could sometimes be connected with a view of the lessons of experience, a notion of group interests, an appeal to tested prejudice (like that praised by Edmund Burke), a plan for employing influence, or a set of assumptions about rights that are to be protected. Hence Original Intentions, the reference to many intentions, does not necessarily involve assumptions about irreconcilable differences. Instead, what it presumes is no more than a recognition of variety - though variety of a kind that made it necessary for the Framers to take great care in drawing up the compact which is our primary political bond. For if not all of these intentions can be served simultaneously, at least some of them can be reconciled to others some of the time, and with the nation retaining a coherence as both one and many. In attempting to perform such a task the Constitutional Convention followed one path and the ratifying conventions several others. This divergence has affected the historic development of the Constitution since 1789 - both the legitimate amendments and the tendentious judicial or administrative readings of the text which have changed it without recourse to the Congress or the states.

Thus I have acknowledged multiplicity by distinguishing between various original intentions. However, though the contents of this book are eight speeches given on disparate occasions, it is by no means merely an after-the-fact collection. The subjects that these studies explore and the sequence in which they are assembled were predetermined before I began work on the series and are assumed in what is said above about the word "intentions" as it functions in my title. The book had its name and purpose before it was written - even though, by happy accident, I was invited to deliver its several chapters as separate addresses during the celebratory years. Or rather, it assumed its final shape as I completed work on its central chapter, "Such a Government as the People Will Approve: The Great Convention as Comic Action," and asked where my analysis of the Constitutional Convention as dramatic structure might point with respect to the larger subject of the constitutional origins and development of the Republic. To the literary critic who is also a rhetorician, it is natural to focus on the dynamic of the various state ratification conventions. Moreover, because of my earlier work on the status of history as authority in(xix) the political deliberations of the Framers, I was predictably interested in assessing the role of eighteenth-century American attitudes toward the British constitution in shaping particular features of our Constitution.

Vociferous contemporary discussion of the standing of organized religion under the Constitution, combined with several years of work on brief political biographies of the Framers (both Framers in Philadelphia and Framers as leaders of ratification debates), inclined me to ask those synthetic questions that issued in "Religion and the Framers: The Biographical Evidence." Here, as in the essays on constitutional theory, political dynamics, and contrasting ratification conventions, certain general truths emerge - propositions concerning what can be believed about the lengths to which so many conventional but serious Christians would go in order to convert their country into a haven for unbelief, apostasy, or religious "neutrality"; generalizations about the unresolved variety of political motives that differentiate ratification in South Carolina or North Carolina from ratification in Massachusetts. And the same can be said about the Thirteenth, Fourteenth, and Fifteenth amendments, the so-called Reconstruction amendments, when their impact (with some associated legislation) on a Constitution originally procedural in nature - nomocratic and modest in its purposes - is defined. For it is what these amendments have come to mean that, under a heavy layer of melioristic idees recues, hides from us how little they in fact changed the nature of the minimal, limited federal instrument to which the Founders had agreed. Misconstruction of these amendments and laws has been the formula used to transform the Constitution of the United States into a purpose-oriented (that is, teleological) blank check for redesigning American society according to the advanced opinions of our savants. Correcting that misconstruction is therefore a necessary corollary to preserving or restoring the fundamental law. Hence my recourse to the theory of Michael Oakeshott in "Changed only a Little: The Reconstruction Amendments and the Nomocratic Constitution of 1787" and my earlier comments on the relative importance of political doctrine and timing in "The Process of Ratification: A Study in Political Dynamics," a natural prologue to the readings of the several ratifying conventions.

The chapters of Original Intentions follow an order that, by increments(xx), reinforces the argument of the book. In other words, their effect is accumulative. As I specify in the concluding essay on the amendments of 1865-70, the question addressed by the total set is not what lawyers and legislators, professors, and judges as interested parties in the political struggles of this our era make of the document for their own objectives but what the authority is of the old Constitution itself, whose meaning (said Justice Sutherland) "is changeless" even though its "application is extensible": a Constitution that reproaches whoever would distort it to serve ends that are beyond its scope and subversive of its integrity. To that purpose it is most useful to search back before 1787 and to consider where the Framers' basic notions concerning the value of constitutions might have originated, and to recover especially their view of the British constitution - the eighteenth century American reading of that political framework, one which brought England's North American colonies all the way into and through their Revolution. This task I attempt to perform in "The Best Constitution in Existence: The Influence of the British Example on the Framers of Our Fundamental Law." This essay looks back to the opening chapter on comic action and forward to my discussion of state ratifying conventions. According to the same interactive theory, it was necessary to speak of the Great Convention as a complete action before looking closely at one of its features - and to follow that segment of my analysis of the original Constitution with readings from two of the most distinctive state ratifying conventions in "A Dike to Fence Out the Flood: The Ratification of the Constitution in Massachusetts" and "Preserving the Birthright: The Intention of South Carolina in Adopting the United States Constitution." These papers, along with the later essay on ratification in North Carolina, "A Great Refusal: The North Carolina Ratification Convention of 1788," made way for emphasis on at least one of the now fashionable and well-established misreadings of those beginnings and of the "kind" of constitution Anglo-Americans only recently independent in 1787-88 could be expected to make. Only then could I begin to explain how the Constitution has come to so little resemble what the Framers expected it to be, even after two hundred years of national growth and development. I look back in the "Epilogue" at the almost inevitable consequences of ambition in a Supreme Court subject to no restraints apart from those(xxi) that are self-imposed, called upon to restrict itself to a modest role when (obviously) all the rewards of power and fame will be offered only to such jurists as refuse any such confinement through fidelity to texts and instead invent the law.

Though I generalize from the information and analysis gathered in these pages, I try to confine my readings to certain themes and subjects within the range of my particular competence as a rhetorician. These studies point to others, and especially to a detailed examination of the assorted kinds of political rhetoric employed by eighteenth-century Americans. I focus here on the language and argument of American constitution-making because that subject has been especially neglected - the analysis of debates and of kinds of political persuasion that contributed to the finished work. But concerning the subject, I may summarize only from an overview of the various phases of the question seen as an order or chronological survey. That task I do attempt to carry out, despite the special character of my evidence. My hope is that this selection of subjects and texts confirms my argument with a reasonable economy, and without disguising or overlooking the complexity of the questions that it is bound to raise. The Constitution of the United States is a rich heritage of agreements elevated to the level of definitive act but without inflation into ideology and armed doctrine. It organizes and protects a government able to contain our multiplicity without setting out to resolve it. It does not manipulate our conflict over valued toward some extrinsic, anterior goal. Rather, it tells us all that we are obliged to settle such questions in society, minus the coercions of law and politics. And that we should do so without those excesses of rancor that might pull down the entire edifice in impatience with its silence or reticence concerning many normative issues. The beginning of such restraint contains some understanding of the history of the United States Constitution, of how we have lost control of its interpretation, of how we may regain that control, and of why our fundamental law continues to be like Solon's, not the best we could invent but the best that the people would approve(xxii).

-M.E. Bradford, Original Intentions: On the Making and Ratification of the United States Constitution. University of Georgia Press: Athens and London, 1993.