Thirty years ago, the last of M. E. Bradford’s books was published—a collection of essays titled Original Intentions: On the Making and Ratification of the United States Constitution. Bradford had passed away several months earlier, but he left behind what should have been remembered as one of the finest conservative reflections on the creation and meaning of America’s Constitution. Originating as a series of lectures, the essays fit together perfectly, covering the Philadelphia convention, the intellectual and cultural background of ratification, the ratification process itself, specific state conventions, and the postwar amendments.

The interpretive key to understanding the creation of the Constitution, Bradford shows, is to see it as the product of an unfolding political drama—not a discrete choice among competing ideals, an incarnation of philosophic truth, or an act of will. The characters (framers, ratifiers, and dissenters), the plot (the convention and ratification conventions), and the dialogue (the written and spoken political rhetoric) all must be understood as part of this drama, not in isolation. In other words, the “founding” must be understood in terms of the developing political practice of its time, not in terms of a theory being put into operation.

What emerges from such an analysis is an understanding of the Constitution as an agreement among those of differing interests, ideals, and ways of life (Original Intentions—plural) regarding a way to live profitably together. It is—borrowing from Michael Oakeshott’s distinction—a nomocratic constitution. The term “nomocratic” denotes an understanding of law and politics that is characterized by procedural government applying broadly accepted rules designed to facilitate peaceful association among those with differing beliefs, aims, or ways of life. This is contrasted with the “telocratic” vision, which sees the task of governance as the modeling and organizing of society in pursuit of a common purpose—be it some form of ideal justice, the maximization of individual autonomy, the pursuit of wealth, or a substantive social, economic, or cultural condition. 

Original Intentions, like Bradford himself, did not wind up having much influence on the later trajectory of conservative arguments. Yet the book remains one of the most thorough articulations of this nomocratic understanding of the American Constitution. Its revival could help us rethink some of the debates conservatives are having today about the Constitution and America’s political order more broadly. Cutting across the often-meaningless categories of the “liberalism” debate, the nomocratic Constitution is neither the instantiation of abstract, ideological principles (“America as an idea”) nor the product of a culturally homogenous nation solidifying a hierarchy of loyalty. Rather, it was formed as an agreement among pre-existing political communities that valued their liberty, local self-government, and established ways of life. It was not a society-defining document, but instead established a government for discrete, identified purposes, leaving most moral and social questions of high importance to be decided somewhere other than the central government.

Original Intentions shows America’s written constitution emerging from an extended conversation of 1787–89 (and 1865–69). Those who initiated the conversation were often unable to direct it in the way they anticipated as they contended with and responded to those who saw things very differently. This responsive political negotiation eventually produced “such a government as the people will approve.” 

While extreme nationalists led the charge for a new Constitution, Bradford emphasizes the many roadblocks they came up against—in the convention, the public debate, and the state ratifying conventions. Many of the most ardent (soon-to-be) Federalists at the convention, Bradford suggests, were too “attached to [their] view of the common good with respect to a fundamental law” and too inclined to see “energetic government as a fountain of blessings.” They therefore took an “instrumental” view of the Constitution and the government it sought to create, seeing it as a means to achieve particular substantive economic or societal outcomes. But they often found themselves thwarted on what they considered to be some of the most important elements of their imagined new constitution. 

Bradford begins with James Madison’s role in the convention. Far from being the “Father of the Constitution,” Madison plays a comic role in Bradford’s telling. Coming to Philadelphia with grand, nationalizing plans, Madison appears somewhat ridiculous as, time after time, provisions he considered to be absolutely essential are voted down by a convention filled with moderate delegates more attuned to the people of their states who are still jealous of local self-government. Madison pushed hard for things such as a congressional veto of state laws, no state-by-state representation, and extremely broad latitude for congressional legislation only to be consistently defeated, “voting on the losing side on more than half of the recorded divisions in which he took part.” 

But like Aristophanes’ Dionysus in The Frogs, Madison ended with a reversal: “In comedy, reversal comes when those attitudes that have made for ridiculous contretemps are surrendered as a source of embarrassment and confusion.” Madison hit rock bottom on July 16, 1787, when his plan of representation was soundly rejected. He then began to reconcile himself to the emergent Constitution, eventually becoming an avid defender of “the Constitution he had attempted to prevent.” Madison’s celebrated Federalist essays, therefore, may not simply be the product of a political philosopher who, having carefully studied his Locke and Montesquieu, now puts those theories into practice; rather, they mark someone pulling out the latent wisdom embedded in the document by an ordered but adversarial political process. 

That same dynamic came to infuse much of the ratification debate. High Federalists realized their own preferences were unpalatable to most people, so they played defense against Anti-Federalists who saw unaccountable power lurking in the shadows of the Constitution. The core of the Federalist defense of the Constitution is captured in James Wilson’s comment that “everything which is not given, is reserved.” What you see is what you get. One cannot understand the ratifiers’ intentions without that sense of reactive reassurance that rights and local self-government were secure from centralization.

If one realizes, as Madison himself would later assert, that these ratifiers were the true constitutional lawgivers, then it is a great mistake to lionize a small group of capital-F Founders and impute to the Constitution their particular views, theories, or preferences—a common approach among conservatives at least since Martin Diamond. Rather, the ongoing events and rhetoric in which the ratification took place reveal the deliberate sense of the people who tested the document in public trial and accepted it only when reassured of its straightforward and largely procedural character.

Though this question of the limits of federal power tended to infuse the debates in most states, each ratifying convention had its own distinct flavor, and the reasons for ratification differed from state to state. Bradford focuses on three, Massachusetts, South Carolina, and North Carolina (which initially voted against ratification), and also stresses the importance of timing—noting, for instance, that had North Carolina rejected the Constitution earlier in the process, it could very well have tipped the scales against a sense of inevitability that drove some states, including Virginia and New York, to ratify it.

The choice each state made on the Constitution emerged from its own unique situation, purposes, and self-understanding. The “Protestant Zion,” as Bradford was inclined to refer to Massachusetts, accepted the Constitution as it came to believe that its sense of providential purpose could be folded into a firmer union. South Carolina accepted the Constitution only once its delegates were assured that it would not be the tool of New England to remake the other states. Other ratifying states had their own reasoning: for some it was “national spirit,” for others it was frontier dangers or fear of being overwhelmed by the economies of powerful neighbors. The Constitution, then, cannot be understood as corresponding to the overarching aims or purposes of any one of them, but simply on the terms of the text itself—the terms that they all found acceptable in their particular circumstances. 

By this reading, there are no secret meanings, majestic generalities, or hidden powers within the Constitution. It is a document that created a new government, with its powers laid out in its text as clearly as the limits of language allow. It did not aim to radically transform the American Union, to displace local governance, to establish a nation (in the later, nineteenth-century sense of the term), or to announce any providential purpose for the American people. It simply marked an agreement about how the united states could best live together. 

Bradford presents this general agreement as emerging from a shared appreciation for the British Constitution. This was a certain kind of unity amidst the variety of American life, but a unity of a distinctly civil form derived from loyalty to “a legal inheritance and to the institutions designed to give it force.” The British experience had given Americans a shared appreciation for the notion of a constitution as an overriding law to which appeal could be made against governors. Moreover, their appreciation for it was not borne of “ancestral piety” but from their own experience living under that constitution. The appreciation for Britain and her laws did not mean Americans sought to recreate England in all of its ways—but that they sought as much as possible to derive their legal order from their past experience.

In the final chapter of Original Intentions, echoing the work of Raoul Berger, Bradford applies the same approach to the ratification of the post–Civil War amendments and shows how they were shaped by an ongoing political drama that “changed only a little” the basic framework of the Constitution. The amendments, despite more ambitious hopes of some of their promoters, only garnered widespread assent when it was clear they pursued a basic and essentially procedural goal: “to protect blacks from discrimination with respect to specified fundamental rights, enumerated in the Civil Rights Act and epitomized in the privileges and immunities clause.” Here again, an ordered political process resulted in “such a government as the people will approve”—one that precluded open-ended authorization for newly discovered rights and powers. 

If the Constitution represented a compromise among those with different purposes and aims, it follows that there is no overarching telos of the document—no definitive vision of the good society that the new government was authorized to advance or that later generations are authorized to read into it. Rather, it formed a framework of government powers that were limited to those necessary to address the observed tensions and failures of the pre-existing civil order—to preserve and perfect the federal union that already existed. As Bradford describes it, 

To capture this understanding of the Constitution, Bradford regularly deployed the concept of nomocracy, borrowed from Oakeshott. Indeed, Bradford says his understanding of constitutionalism was “drawn from the full teaching” of Oakeshott. Oakeshott, a longtime professor at the London School of Economics, was a uniquely insightful conservative thinker, but he never made much of a mark on American politics, perhaps in part because his ideas were more descriptive than prescriptive. 

According to Oakeshott, most modern understandings of political life have a distinctly “telocratic” character, conceiving of the proper task of a government as “organizing its subjects in the pursuit of a single, premeditated end or purpose.” Under this model, governments and constitutions set out to create a particular kind of society. The end pursued may be religious “righteousness,” an “enlightened” social policy, economic productivity, or any number of abstract, ideal understandings of liberty or equality. Whatever the end, all entail the priority of social “solidarity” and the hierarchical ordering of society to best organize it and direct it in the proper manner.

By contrast, a nomocratic way of understanding politics sees government as “the custodian of a system of legal rights and duties in the enjoyment and observation of which the subjects of the government may pursue their own chosen ends and purposes while still remaining a single association.” Governance is more about the rules and norms surrounding how we act toward one another than it is about what we pursue. 

Because government is not treated as instrumental in the nomocratic model, these rules and norms emerge from within political practice, not from philosophic speculation. “The importance of social and cultural authority for law lies just below the surface in Oakeshott’s schema,” Bruce Frohnen and George Carey later observed. “Law must encompass customary understandings of the society in which it acts if its definitions are to be enforceable without requiring the reshaping of society.” The rules by which we live do inevitably incline us in certain directions, so once we abandon customary practices and consensus-based rulemaking, we naturally gravitate toward more telocratic directions, aiming to establish patterns of behavior that (we think) will create a desired social model. 

Bradford, using Oakeshott’s ideas, emphasized that the Constitution was almost entirely concerned with the establishment of procedural rules, and that those rules emerged from practice and negotiation among the various states rather than from authoritative commands based on a priori principles. Such a political order is contingent and emergent. And political activity of this sort might legitimately be seen as an outgrowth of society, rather than an outside force shaping and leading society to its proper end. Bradford described the nomocratic regime as one “in which society . . . encompassed the state.” The nomocratic order offered a form of self-government that idealistic democratic theory could not. When he emphasized that the Constitution was “such a government as the people will approve,” that quality was not a flaw that reasonable people must live with and not an unfortunate concession to political reality; it was rather one of the document’s great virtues, and what made it a true act of self-government. 

The nomocratic character of the American Constitution, though, was unique. First of all, the description of a written constitution as nomocratic requires an extra layer of analysis, as Oakeshott was notably suspicious of written constitutions (though he did at least once identify the American Constitution as the most “sceptical” of written constitutions—a term roughly corresponding to his sense of “nomocratic”). Written constitutions are generally seen as modern innovations that reflect the modern tendency toward rationalism—as comprehensive attempts to formulate our rules and practice in advance. But by showing how a document can be forged in the crucible of compromise and adjustment, Bradford also showed how it, too, can be understood as nomocratic. It was a document that was written, yes, but not planned. Rather, one might say it was “hammered out.”

Second, the American Constitution framed the rules for a “community of communities”—a Union of pre-existing states, each of which already had its own body politic and established rules and procedures for internal governance. The Constitution—as originally understood—left those largely as they stood for domestic purposes, which in turn allowed the American federal government to partake of the nomocratic character to a greater extent than unitary forms of government. 

Oakeshott was clear that no state could ever fully conform to the ideal type of either nomocratic or teleocratic orders. In practice, the acts of states are to a degree both procedural and purposive, though governance can incline in one direction or another. Respect for a private sphere of social life into which government power does not reach is a key to the nomocratic understanding. And so the regulation of the specific activities of daily life—though often necessary—is a task that easily slides into a more telocratic model, as rules about how we act gradually and sometimes insensibly slide into regulations about what we ought to do. 

By leaving such police powers to the states, the Constitution kept from the national government some of the greatest tools of telocratic governance. The Anti-Federalist “Brutus” expressed the fear that national police powers lurked behind the taxing and spending powers by describing all the corners and crevices of society into which he suspected federal authority might extend: 

It will wait upon the ladies at their toilett, and will not leave them in any of their domestic concerns; it will accompany them to the ball, the play, and the assembly . . . nor will it desert them even at church; it will enter the house of every gentleman, watch over his cellar, wait upon his cook in the kitchen, follow the servants into the parlour, preside over the table, and note down all he eats or drinks . . . it will take cognizance of the professional man in his office . . . it will watch the merchant in the counting-house . . . it will follow the mechanic to his shop . . . it will be a constant companion of the industrious farmer in all his labour . . . it will penetrate into the most obscure cottage; and finally, it will light upon the head of every person in the United States.

Brutus’s concerns reflect the centrality of federalism to the ratification debate. Bradford showed that the consensus that emerged from the ratification drama—and that made the Constitution law—was that such powers were not hiding underneath the Constitution’s text, and that the central government would not have such tools of social transformation. Daily life would continue to be regulated by states and localities, where a greater level of commonality meant that such regulations could be based on consensus and established practices. 

It is hard to miss this reality that federalism is an essential characteristic of the Constitution—but it is not simply a matter of distributing power. It also invariably determines what type of governance we should expect. As Brutus’s fears gradually became reality, and as more and more regulation of daily life has moved to the federal level, where there are fewer shared, customary norms to guide its policy, it is unsurprising that American politics has come to be conducted almost entirely in the telocratic mode. 

While elements of the nomocratic understanding have implicitly undergirded many conservative arguments about constitutionalism and originalism, conservatives never directly embraced it as their standard understanding of the Constitution, often preferring narratives about transcendent moral principles or an emerging national purpose. In a time of decay, corruption, and intellectual disorientation—but also new hope for constitutional revival at the highest level—a renewed appreciation of the nomocratic character of the Constitution can address some of our most pressing conceptual debates, especially cutting through some of the false distinctions of the “liberalism” debate. 

Today, conservatives seem inclined to argue about whether the Constitution, and the American founding more broadly, was about rights and liberty or about the preservation of a distinct (British) cultural inheritance. And that, in turn, is often a proxy fight in the broader war over “liberalism.” But both sides of that debate generally fall into the error that Bradford warns against—presenting the Constitution as instrumental to their preferred end, be it an abstract understanding of liberty or a uniform national culture or identity. 

One side tends to present the Constitution as the embodiment of the natural rights principles that are said to define the Declaration of Independence—a sanctifying myth that Bradford’s longtime intellectual opponent Harry Jaffa engrained into movement conservatism. And some “postliberal” thinkers like Patrick Deneen have also endorsed the view that the American founding was defined by broad, enlightenment ideals—though they lament the fact. This view has increasingly been challenged by national conservatives, who rightly contest the more “liberal” view, but who often run too far in the other direction, arguing that the American founding was primarily about the establishment of a nation-state to serve as a more powerful agent of a homogenous, Anglo-American nation.

Original Intentions shows that the founding was quite emphatically about both liberty and cultural preservation—but neither was a defined, unitary, and commanding value that can capture the entirety of the American political experience. The Constitution is at once “liberal” and “conservative”: it institutes a limited government, prizes established liberties, and respects the distinction between a political and a private/social sphere—but it does so by reinforcing established rights and expectations engrained in the experience of a people, not by attempting to enforce this or that theory of rights. Its “liberalism” is therefore not at war with the traditions and culture of its people. Bradford’s chapter on the founders’ Christianity makes this point well—that in barring Congress from passing any law “respecting the establishment of religion,” they hardly had in mind a rule that demanded the purging of religious language, symbolism, or practices from public life. 

The nomocratic Constitution also recognizes that a degree of unity amidst great variety is a difficult thing, one which requires a political bond that is limited and distinctly civil in nature. Rather than impose a specific and universal creed, “American way of life,” or thick sense of national attachment, the Constitution offered a civil unity defined more by what it did not resolve than by what it did. The Constitution offered “the advantages of living under a particular republican political system, a representative government, elected fairly according to certain established procedures, providing against the danger of tyranny.” 

Americans’ attitude toward government, inherited from their British experience, was the most important bond that unified otherwise very distinct peoples. It constituted 

a deeper level of practical consensus so widespread as to require almost no mention in any of the assemblies . . . a consensus that made our forebears, by negation, one people, united in their suspicion of government, of its self-importance, its affected benevolence, its disposition to tyranny established and imposed in the name of “good causes.”

America could be united as a people who demanded to be free—not free to become crusaders for an abstract and ever-expanding freedom “agenda,” or to be crusaders for cultural hegemony, but free to govern their own lives and communities and to pursue higher human goods away from the encroaching tentacles of the state. 

The Constitution and political order of a free people, then, is not society-defining. It does not determine most of our beliefs, customs, ways of life, or domestic problems—and that is doubly true for America’s federal arrangement, which “leaves much of the relationship between Americans to be worked out by ‘private treaty.’” Aside from the political liberty it secures, it allows “questions of value to be settled by something other than the federal power.” Most of our problems are not, or at least should not be, constitutional or even partisan ones. 

This free America, however, has largely given way to one defined by totalizing politics, which looks for a sanctifying power in the Constitution, government, or national community. It hardly requires explanation to see this on the political left. But conservatives, too, go down this road both with sacred crusades to remake the world in the image of the “American idea,” or with the embrace of a quasi-spiritual conception of the nation—to say nothing of recent “integralist” dreams that the paths of the Lord shall be made straight by co-opting the administrative state.

America’s love of liberty itself is sometimes blamed for recent cultural decline. But instead of conceding this point, we should look much harder at this tendency toward pervasive, telocratic governance, which has allowed the state and the political process more generally to intrude on all aspects of our lives and often redirect our moral, cultural, and spiritual aspirations. Nothing is more to blame for this drift than the incentive structure of mass, national politics, which requires grand, comprehensive, and aspirational narratives that can cut across the variety of American life in pursuit of building a national movement. And this mass politics, in turn, has been abetted by the centralization of power and erosion of constitutional limits, which seems to put all things within the reach of those who can cobble together a national political majority. 

Bradford’s depiction of the nomocratic constitution might therefore teach us that defending the rule of law, resisting and reversing centralization, and rejecting the uninhibited use of state power does not equate to capitulation on cultural questions. If we desire to live with others according to a shared way of life, we must be free to conserve or develop one. A way of life, after all, is not concocted in a think tank boardroom and then imposed by political movements. 

There are surely plenty of people who may not fully embrace the fullness of Bradford’s Jeffersonian constitutional vision—to say nothing of the Southern agrarianism featured more prominently in his other works. But the book’s foreword, written by the self-described Hamiltonian Federalist Forrest McDonald, shows that one need not line up entirely with Bradford to recognize the profound historical insight his collection contains or to appreciate the basic character of the Constitution he describes. A recognition of what the framers and ratifiers accomplished—even when their individual aspirations were so often thwarted—may offer hope for the struggle to recover a decent civil life today.

A complete revival of the Constitution ratified in 1789 and “changed only a little” in the next century may seem out of reach, but Bradford was right to take hope in the fact that, despite its corruption, our written Constitution is still sitting there, beneath it all. It can still be a source of renewal. And to rediscover its merits, a good place to start would be rediscovering Original Intentions.