The Late, Great Mel Bradford on the Constitution

Over at The Imaginative Conservative blog is a sweeping essay by Marshall DeRosa on the constitutional thought of M.E. Bradford. DeRosa employs several key matters of debate to show that Bradford believed the Constitution to be based on nomocratic rather than teleocratic grounds.

The nomocratic view "is that the Constitution was designed to bring government under the rule of law, as opposed to achieving any specific purposes.... [T]he 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. The alternative, teleocratic view, is one that has come into fashion the last few decades and has all but destroyed the original Constitution. This is the notion that the design of the Constitution was to achieve a certain kind of society, one based upon abstract principles of natural rights or justice or equality or democracy or all of the above. It holds that the specific provisions of the document are of secondary importance or none at all; what counts are the ‘principles’ it supposedly embodies, usually principles based upon the Declaration of Independence or Lincoln's Gettysburg Address, neither of which has any standing in law"

Here is an excerpt on the matter of religion:

Few areas are as susceptible to and instructive about national teleocratic politics than the national judicial policy towards religion. Religion, as a system of beliefs and behavior, could be either instrumental or problematical in achieving national teleocratic policy goals. If placed within the domain of national public policy prerogatives religion could promote national standards, or, if part of the States' police power prerogatives to promote the morals of the respective state populations, religion could clash with national policy objectives. Suppose that the dominant religious beliefs of a State resulted in public policy that recognized only monogamous heterosexual marriages, whereas the U.S. Supreme Court supported teleocratic interpretations of privacy, due process and equal protection of the law that sanction all consensual conjugal unions, whether they be of the same gender, same family; whatever. In the final analysis, the only way around the State's policy preference for a Christian model of marriage would be to displace the role of religion at the state level with national standards. This is exactly what a teleocratic U.S. Constitution facilitates, substituting state public policies premised upon the religious beliefs of state citizens with national standards based upon the values of dominant elites.

Bradford presents solid evidence to support his position that a teleocratic Constitution that trumps the role of religion in formulating state public policy is, in most instances, the illegitimate product of judicial concoctions and inventions. From the vantage point of original intent, the biographical evidence reveals that approximately ninety-five percent of the Framers were "members in good standing of the various Christian communions found in early America" (Intentions, 88-89). About five percent were deists and secularists.[13] Which influence dominated the, drafting and ratification processes, the Christian, deists or secularists? According to Bradford, "The assumption that this majority was likely to agree to totally secular institutional arrangements in the very structure of American politics contradicts almost everything we know about human nature, as well as the most self-evident components of Christian teaching concerning the relation of the magistrate to the ultimate source of his authority in God" (Intentions, 89). Nevertheless, secularization of public policy is precisely what the Supreme Court requires through its "concocted" Lemon Test, which requires that every state statute must, first, "have a secular purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion...; finally, the statute must not foster an excessive government entanglement with religion...."[14]

It is impossible to appreciate the Supreme Court's deviation from the original constitutional arrangement regarding religion without factoring in American federalism. Post-WWII Supreme Court decisions to the contrary notwithstanding, the Framers, did not agree to secularize national and state institutions. As a matter of historical fact, Christianity pervaded the politics of the period, especially at the state level. The Framers were not irrational men; they would neither attempt the ratification of a national constitution that negated state policies towards religion, policies that varied from state to state and regionally, nor attempt to nationalize religious policies that would result in conflict between the national and state 'governments.[15]' The historical evidence "is more than enough to demonstrate that, a neutrality tending to become a hostility toward religion-an instrument for secularizing the public life-was not the purpose of any participant in the process of lawgiving" (Intentions, 93). The Supreme Court's First Amendment "wall of separation" is ahistorical and ideologically inspired (Intentions, 97-100).[16] For the objective analyst the intent of the Framers' policy towards church and state is, Bradford maintained, readily discernible; those who claim otherwise are "both intellectually dishonest and absurd (Intentions, 98).

Indeed, the original intent behind the First Amendment is readily discernible. Article Six ("no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States") and the First Amendment ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”) are restrictions on the national government, not the States. "The truth about the limits marked off by the Establishment Clause and the exclusion of religious tests for officeholders in Article 6 is that they raise no wall of separation, only a check upon sectarian passions" (Barbarians, 77). As Bradford points out, the national community did not confuse "freedom of religion with freedom from religion" (Intentions,100). The Framers, "would not wish to live in a society that in no way identifies itself as a Christian community, which in its impious political character would invite the wrath of God. Neither did they wish to put their descendants in a situation where they cannot profess their Christianity in and through their work" (Intentions, 101). Thus, military chaplains; U.S authorized missions to "civilize the Indians," "In God We Trust" inscribed on currency, tax exempt status for churches, Sunday closing laws, Government sponsored days of prayer and thanksgiving, prayers in public schools, and state subsidies for religion are all consistent with constitutionally sanctioned quasi-establishment, through which the States were free to utilize public policy to nurture religious values, and religious values to formulate public policy, while the national government acquiesced and to some extent supported those policies.

Analysis of First Amendment jurisprudence regarding church and state not only reveals that post-WWII constitutional law has deviated from original intent, but also the method and extent to which the nomocratic elements of the Constitution that were designed to secure popular control have been displaced to make room for teleocratic politics. Having liberated themselves from the restraints of original intent, the Court then proceeded ultra vires to impose their teleocratic/ideological preferences on the States. In other words, the nomocratic Constitution established rules of engagement for political combat between factions, religious factions included; by ignoring original intent the Supreme Court declared victory for: proponents of secularization by judicial decree.[17] Of course the activist Court will utilize the Constitution in order to claim legitimacy, with some justices (due to legal training and intellectual incompetency) unaware that the precedent they rely on is incompatible with the original Constitution. Nevertheless, the end result is the same. The role of the States in public policy-making has been significantly diminished. Because it clears the constitutional decks for the Supreme Court to substitute its teleocratic natural rights vision of justice for the more traditional biblical view, we can expect ongoing policy innovations promoting the former at the expense of the latter. But, of course, this is only one part of the larger edifice of nation-building that moves us closer and closer to a unitary system of government. Other important parts of the structure include nationalistic interpretations of Congressional commerce powers and more variations of Fourteenth Amendment selective incorporation theories.

Most of this nation-building at the expense of the States would have been neither politically nor constitutionally feasible had it not been for the actions and rhetoric of Abraham Lincoln, the primary effect of which has been to merge the Constitution with a teleocratic interpretation of the Declaration of Independence. Lincoln is at center stage of these developments.

Read it all here.