Saturday, May 5, 2012

Mel Bradford on the Founders, religious establishment, and the First Amendment

The late Mel Bradford (d. 1994) was one of the leading paleo-conservative scholars of the South, teaching at the University of Dallas until his unexpected death due to complications from surgery.  Bradford's scholarly work was primarily in the field of Southern literature (his writings on Faulkner received particular attention), although he branched out from literary studies to tackle historical writing as well, particularly historical writing relating to the American Founding and the Civil War. In 1981 Bradford was in the running to be Ronald Reagan's appointee to lead the National Endowment for the Humanities, but due to controversy regarding his views toward Abraham Lincoln, Bradford was passed over and the NEH post went to William Bennett. Bradford was a friend to several notable paleo-conservative writers, most notably Russell Kirk (who also died in 1994) and the historian and Calhoun scholar Clyde Wilson. Towards what would be the end of his life, Bradford also was closely associated with historian Forrest McDonald. And it was MacDonald who had the strongest influence on what would be Bradford's last book, Original Intentions:  On the Making and Ratification of the United States Constitution, sadly now out of print but available in libraries and in the used book marketplace.

Original Intentions is an amazing book, made all the more amazing in that it was written not by a professional historian but by a professional literary scholar. Yet it is precisely Bradford's mastery of the craft of literary analysis that lends insight to his work. It is beyond the scope of this blog-post to offer a complete review of the book, but it is worth noting that Bradford's literary background gave him a deep appreciation that the Founders had not one single set of motivations or intentions but multiple ones when they came together to draft a new charter for the young American Republic. Far from seeking an original intent (in the singular), Bradford sought to introduce his readers to the complexity of the views of the Founders, looking not only at their intellectual influences but on their political, economic and social contexts when examining the forces and ideas that shaped the Founders' work.  This is not simplified history or partisan history, but a serious, conservative approach to examining the perspectives, views and concerns of the men who drafted and ratified the main text of our nation's current Constitution.  And it bears in critical ways the marks of Forrest McDonald's influence on Bradford's later examination of American history.

Nowhere is this more evident than in Bradford's examination of the religious views of the Founders who participated in the Philadelphia Convention, found in chapter 7 of Original Intentions.

Bradford begins his discussion by noting that much of modern Establishment Clause jurisprudence regarding the First Amendment distorts the original purposes behind our Constitution's protections for religious freedom. The justices of the Supreme Court, Bradford writes, "lost their way" and have been unable to find anew a path to understanding and applying the First Amendment in light of its proper historical and cultural context at the time of its ratification.

Bradford does a very thorough job of identifying the intellectual temptations that can thwart a truly originalist view of the First Amendment's provisions regarding religion. From the great-man theory of the Constitution, to a selective and ideological reading of the text, to an anachronistic reading of the text in light of modern intellectual concerns, Bradford sees a host of difficulties the navigation of which necessitate a properly contextualized view of the background of the First Amendment.

To provide such a contextualized view, Bradford provides what he calls "a collective portrait" that draws upon evidence usually overlooked when discussing religion and the Constitution. Bradford gives great weight to the confessional affiliation of most of the Framers of the First Amendment, the ardent Christian faith of many of the Founding generation -- including those who insisted on a Bill of Rights to supplement the original text of the Constitution. The faith of men often overlooked, like John Jay and James Mason, are important to Bradford as an example of the overall nature of religious views by those men of prominence who are often ignored or relegated to the fringes of historical examination. The conviction in divine Providence was strong not only among those who, thanks to a later following, figure large in our contemporary imaginations regarding the Founding Era.

Of particular interest in Bradford's study is his detailed overview of the significance of swearing oaths.  The swearing of an oath, and the constitutional requirement that office-holders swear them, was seen as an acknowledgement of the government's subordination to divine authority. Both Oliver Wolcott of Connecticut and James Iredell of North Carolina (a future Supreme Court justice) argued for this understanding of swearing an oath, with Wolcott going so far as to argue that requiring a religious test for holding office was redundant because the requirement for office-holders to swear an oath was itself a sufficient test in that regard. To require an additional test of faith was, as Bradford puts it, "a pious redundancy."

Bradford brings his skills as a literary critic to bear in his discussion of the use of the term "establishment" in the First Amendment. Far from being a term of indefinite or general meaning, Bradford demonstrates that the word was a term of art with a very specific context and usage in 18th century English law, a law with which the Framers of the First Amendment were quite familiar. This usage was concerned not so much with religious activity influencing the government but with the government's overt sanctioning of specific religious institutions. Combined with this technical reading of the First Amendment's Establishment Clause, Bradford notes, is the jurisdictional language at the beginning of the Amendment, prohibiting the federal government from addressing religion in the states through congressional action. What the Framers meant the Establishment Clause to do was, quite simply, prevent the creation of a national church with the power to enforce doctrine and demand direct support through taxation. As Bradford writes,
In 1789 a religious establishment was, in Anglo-American parlance, sensu stricto, an institution able (with the assistance of government) to promulgate a creed or dogma, to require official assent to that doctrine, to collect rates or some other tax in support of that religion, and to require, at least from time to time, attendance at worship.  According to the limits of the definition, all religious activity not comprehended under this list of characteristics but encouraged or supported by the state or conducted under its auspices signified nothing concerning an establishment.  Neither would the fact that a particular activity not sectarian in purpose happened to benefit one denomination more than another.  
Far from seeking to curtail religion, the push towards limitation of religious establishment at the national level sought to promote both tolerance and piety, seeking to avoid "the repetition of sectarian animosity among Christians living on these shores," an animosity that "would ultimately undermine the status of religion among us." Bradford details quite effectively that the purpose behind the First Amendment was not to hobble or limit religion -- or even less to abolish it -- but rather was to protect and nurture it, even when it existed in quasi-established form in the states.

Thus, while insisting on precluding a national establishment of religion, the Framers of the First Amendment rejected Madison's call for a limitation on state establishments. Let the states, informed by the specific cultures and the specific needs of their own circumstances determine the role that religion would play in their own polities. And even Madison agreed that the prohibition of a national establishment "should not prevent the federal government from giving nondiscriminatory assistance to religion, as long as the assistance is incidental to the performance of a power delegated to the government."

Far from seeking to overturn an existing consensus within American society, the First Amendment was designed, as far as its provisions concerning religion are concerned, to constitutionalize an already existing relationship between religion and the government. The point of the First Amendment was not and is not to secularize America or to abolish Christianity from the public square. Rather, those men who framed the First Amendment sought to protect a tolerant but identifiably Christian culture from government overreach at the federal level.

In light of this understanding, at the end of his discussion Bradford takes aim on the judicial doctrine of incorporation, whereby provisions of the Bill of Rights are imposed upon the states through the 14th Amendment. Bradford sees the doctrine of incorporation as problematic, a position that has at least some merit in light of the overall context of the First Amendment and its express jurisdictional limitation on the authority of Congress. While it is highly unlikely, to say the least, that the Supreme Court will revisit whether the First Amendment can legitimately be incorporated against the states, there is no question that the First Amendment as originally understood applied only to the federal government and not to the states in their separate & individual capacities.

8 comments:

Tom Van Dyke said...

A heady post, Mark. Unfortunately you neglected to mention David Barton, so nobody actually read through all those words and ideas and stuff. Get with the program.

That the First Amendment was specifically if not explicitly designed to leave religion to the individual states ["Congress shall make no law"] is an interesting argument against incorporation, though. ;-P

jimmiraybob said...

The Anti-Barton Party central command has not yet issued a clarification on whether to consider or respond to this post.

Until such time I am not at liberty to mention that it is also interesting to consider that the states amended the US Constitution to include the 14th amendment as per the arrangement to amend contained in the constitution proper. Or that following the signing of the Constitution and for decades before its 14 amendment, the trend among the states was toward non-establishment.

There are other thoughts that I am not at liberty to have or to share until I hear from the regional Party Commissar as to whether I actually have them or can share them.

I'll just say that Mr. Bradford's non existent historical training, his tireless work to advance the paleo-conservative cause, and his writing for such historical outlets as Southern Partisan magazine are also interesting. Not to say that he was wrong. But, it's possible.

Oh no. I may have said too much. If anybody from the Party starts asking around, I've headed to the corner store for a sandwich and a six pack. If that doesn't work, I'm hiking the Appalachian Trail.

bpabbott said...

JRB, if your current career doesn't work out, please look into stand up comedy ;-)

Mark in Spokane said...

There is no question that Bradford is controversial, however, it should also be said that serious historical scholars of the Constitution -- like Forest McDonald, for example -- have defended his work. And no less a scholar than Harry Jaffa defended Bradford from attack and supported Bradford's appointment to the NEH. I am far from a defender of the the Southern cause as viewed by most paleo-conservatives, but I think that Bradford's work on the Constitution in many ways transcends his own partisan limitations.

Joseph Talmadge said...

A question, if I may. Regarding the quote,

"should not prevent the federal government from giving nondiscriminatory assistance to religion, as long as the assistance is incidental to the performance of a power delegated to the government",

is this actually a quote from Madison or is this a quote from Bradford, giving his interpretation of Madison's views? If this is from Madison, can you please give the source.

Mark in Spokane said...

Thanks for the question. I don't have a copy of Bradford's book in front of me, but the quoted material is quoted in his book -- it isn't his language, although from the wording it sounds unlikely that it is a direct quote from Madison. It doesn't sound that 18th-century-ish to me. There was a footnote after the quote -- I do remember that. If you got a copy of the book you should be able to track down the source of the quote rather quickly. I should have done that myself, but as I don't have the book anymore (I got it via inter-library loan), I can't look at the source of the quote for you. My apologies.

Joseph Talmadge said...

Thanks Mark -- it didn't sound like Madison, hence my question.

It also appears to contradict his statement in the summary regarding the First Amendment debate that one of the purposes of that amendment was to make sure that the "necessary and proper" clause could not be applied to religion. I don't see how one can reconcile this with what Bradford claims, in what I assume now is his quote.

Joseph Talmadge said...

Sorry -- I read through your post too quickly -- you said it wasn't Bradford. It would be interesting to know where it came from, but I admit I'm too busy to track it down. Thanks again.