Balkinization: The Ratification of Donald Trump: How Trump and the Federalists Triumphed

The Ratification of Donald Trump: How Trump and the Federalists Triumphed

Guest Blogger

Maseeh Moradi

For the Symposium on Michael Klarman, The Framers' Coup: The Making of the United States Constitution.

On January 20, 2017, Donald Trump began his grim inaugural address by castigating the political establishment for enriching itself at the public’s expense. Standing at the West Front of the Capitol building on that rainy, gloomy day, Trump repeatedly invoked populist themes, defiantly pledging to “transfer power from Washington” back to the people and declaring them “the rulers of this nation again.” But, accepting the premise, when had the people stopped ruling? One possibility, as controversial as it may sound, is when the Constitution was ratified in 1787-88.

The Constitution was far more nationalist and democracy-constraining than its predecessor, the Articles of Confederation, granting Congress virtually unqualified power to levy direct taxes and raise armies during peacetime and substantially insulating national government officials from direct popular influence. The Antifederalists (those who opposed the Constitution’s ratification) decried these very features, using populist arguments echoed today by Trump and his allies. John Williams, a New York Antifederalist, worried in 1788 that the Constitution would enable “men who may be interested in betraying the rights of the people and elevating themselves upon the ruins of liberty.”

Yet, in an incredible stroke of irony, Trump’s obstacles to victory in fact resembled the ones confronted by the Federalist elites during the ratification contest. Both faced the challenge of attempting to drastically alter the nation while having perhaps less than half of the nation’s support. The Constitution, as mentioned above, took power away from the people and reimagined a country with a powerful, vigorous central government better shielded from popular sentiment. The public would have quite possibly rejected ratification had it been conducted as a national referendum. Similarly, Trump called for an end to many decades of bipartisan foreign policy orthodoxy, a dramatic pivot away from globalization and foreign trade, and revolutions in immigration policy, tax policy, and far more. Trump had the highest unfavorable rating, 63%, ever recorded for a presidential candidate and received fewer votes than his opponent, Hillary Clinton.

Did Trump and the Federalists overcome these obstacles in similar ways? Were the forces in 2016 that made an unpopular man the nation’s chief executive the same ones that in 1787-88 made an extremely contentious document the nation’s highest law? I do not mean to equate the outcome or desirability of these two events, and differences undoubtedly exist—significantly, as we have already seen, 18^th century elites championed the Constitution, whereas 21^st century elites detest Trump. But the similarities are striking enough to warrant notice. In this short essay I will identify five crucial advantages that Trump and the Federalists shared: (1) a national sense of crisis, (2) a binary set of options, (3) a favorable geographic distribution among supporters and opponents, (4) aid from the press, and (5) the ease with which their supporters, relative to their opponents, could participate in the contest.

(1) A National Sense Of Crisis

Trump and the Federalists were both boosted by a sense that the status quo was failing. Trump’s dystopian campaign was predicated on the idea that America’s greatness had expired and that only he could restore it. He often stated that the country had become an international laughingstock and was plagued by rampant levels of illegal immigration, crime, terrorism, and unemployment. “The American dream,” Trump proclaimed in his first campaign speech, “is dead.”

Trump’s harsh description resonated with many voters in part because of genuine struggles in communities across America. Real wages had flatlined for decades; the economy had recovered unevenly from the 2008 crisis, with income inequality at its highest level since the Great Depression; the labor market, owing to automation and trade, was unforgiving to low-skilled workers who might have found gainful employment just a generation earlier; nearly two decades of the global war on terror had made Americans weary of both terrorism and the nation’s broad military footprint; an opioid crisis was devastating many rural communities and had taken many young lives; Congress was increasingly seen as the loyal servant of wealthy interests; society had become deeply polarized and government had become bitterly gridlocked. Three months before the election, nearly 70% of Americans believed that the country was on the wrong track. Many of Trump’s voters, including millions of longtime Democrats, had significant reservations about the Republican nominee but felt that a national overhaul was imperative. Mike Kirk, a Trump supporter and pawnshop owner in West Virginia, told the Associated Press before the election, “[Trump] offers us hope, and hope’s the one thing we have left.”

Similarly, the drive to ratify the Constitution was advanced by the nation’s struggles under the Articles of Confederation. A dire economic situation led to defaults on foreign and domestic debts and an inability to respond adequately to trade and foreign policy challenges. Debtor and taxpayer revolts, most famously Shay’s Rebellion, were common; army officers had threatened mutiny in order to extract promised pensions and back pay from Congress; sectional strife was intense over commercial policy and navigation rights on the Mississippi River; states discriminated against one another’s trade; and national morale had sunk. George Washington aptly summed up this national angst, writing, “without some alteration in our political creed, the superstructure we have been seven years raising at the expense of much blood and treasure must fall. We are fast verging to anarchy and confusion!” Most Americans, including many Antifederalists, also recognized that the status quo was unsustainable. Nathanial Barrell, an Antifederalist who eventually voted for ratification at the Massachusetts ratifying convention, did so despite reservations because the Articles of Confederation were “essentially deficient.”

(2) A Binary Set of Options

The Constitution and Donald Trump each benefited not just from being an alternative to an undesirable status quo, but also from being the only plausible alternative. It is likely that most Americans would have preferred a less democracy-constraining and less nationalizing option to the Constitution, and that a less boorish and egomaniacal outsider would have garnered more popular support than Trump. But those options were not available.

Democratic primary candidate Bernie Sanders, like Trump, was a populist outsider. He was not an establishment Democrat—in fact, not a Democrat at all. Many of his campaign themes were similar to Trump’s, including denouncing the status quo generally and specifically targeting as culprits Wall Street avarice and free trade. But Sanders adopted a more temperate, empathetic approach. While he expressed concerns with the impact of immigration on American labor, he also called for fewer deportations and urged that the country “must not turn our backs” on Syrian and Afghani refugees. Sanders proposed compassionate criminal justice reform whereas Trump called for stop-and-frisk and “law and order.” He also spoke out against Trump’s insults toward POWs, women, and racial and ethnic minorities, condemning Islamophobia where Trump called for a ban on Muslim entry. Polls suggest that Sanders would have fared better in a matchup against Trump than Clinton did. But that matchup was never presented to the American people.

During the ratifying contest, the Federalists desperately sought to avoid both ratification contingent upon antecedent amendments and a second convention, creating a stark, binary choice between the obviously defective Articles of Confederation and a Constitution that contained nationalizing and democracy-constraining features that many Americans found troubling. John Dawson, a swing delegate at the Virginia ratifying convention, claimed that had the Constitution “been presented to our view ten years ago, . . . it would have been considered as containing principles incompatible with republican liberty and doomed to infamy.” A majority of Americans probably would have favored an intermediate option between the two extremes with which they were presented, but the Federalists desperately (and successfully) sought to present the nation with only a binary choice, and most Americans preferred the Constitution to the status quo. Charles Turner, an Antifederalist who eventually voted for ratification in Massachusetts, expressed that, despite the Constitution’s “several imperfections,” the alternative would mean that “we shall be an undone people.”

(3) A Favorable Geographic Distribution Among Supporters And Opponents

The geographic distribution of both Trump’s supporters and the Federalists played an essential role in their respective victories. Trump created a sea of light red across the map; Clinton created very dark blue drops, mostly on the coasts, which led to many wasted votes, including over 4 million in California alone. Trump won 2,134 more counties and 10 more states than Clinton, despite winning nearly 2.9 million fewer votes overall. In an era of relatively primitive transportation and communication, the Federalists actually benefited from the concentration of their supporters in urban areas. Conversely, the Antifederalists were hampered by the distribution of their supporters across the western frontier and in other backwoods regions throughout the states. Patrick Henry, the leading Antifederalist in Virginia, spoke of the “the inconveniences arising from our dispersed situation,” which prevented both intrastate and interstate coordination. According to a Pennsylvania Antifederalist, many on that side of the debate in the central part of the state were “at a great loss . . . for intelligence,” whereas “our adversary carries on a constant intercourse with their confederates everywhere.” This organizational advantage allowed the Federalists to move quickly, with early ratification victories establishing momentum in the broader contest.

(4) Aid From The Press

Trump and the Federalists both received, intentionally or incidentally, great help from the press. Newspaper coverage was heavily biased in the Federalists’ favor during the ratifying period, with only 12 of over 90 newspapers in the nation offering any substantial criticism of the Constitution, and many papers exclusively publishing material promoting the document. The newspapers in Connecticut, an Antifederalist there reported, were “evidently shut against all those that would dare and presume to write . . . against the new Constitution.” Federalist publishers in Pennsylvania even deliberately created the false impression (a bit of 18^th century “fake news”) that the state’s ratifying debates contained little opposition to the Constitution.

The press, or media, also promoted Trump, though indirectly. The source most Americans use for news—television—helped to obfuscate the real stakes and create a false equivalence with Clinton. Guided by the ratings bonanza promised by a reality-star-turned-presidential-candidate, the networks gave Trump more free media ($2 billion) in the primary than all other major candidates combined. Early on in the election season, CBS chairman Les Moonves all-too-candidly admitted, "Donald's place in this election is a good thing . . . it may not be good for America, but it's damn good for CBS." He later added, “Man, who would have expected the ride we're all having right now? The money's rolling in and this is fun . . . [i]t's a terrible thing to say. But, bring it on, Donald. Keep going.” Further, network newscasts spent more time during the election cycle covering Clinton's private email server than all policy issues combined. This coverage, in part, led to Clinton being viewed as far less trustworthy than Trump, even though a significantly smaller percentage of her campaign statements were factually inaccurate.

Moreover, the networks often treated Trump like a traditional candidate, normalizing his odd and often repulsive behavior and encouraging hesitant voters to embrace him. Trump was invited to host Saturday Night Live after he had called Mexicans “rapists,” and Jimmy Fallon tousled Trump’s hair on national television after he had mocked the disabled, called for an entry ban on Muslims, and smeared a Gold Star family, to name a few of his traditionally disqualifying actions.

(5) The Ease With Which Their Supporters, Relative To Their Opponents, Could Participate In The Contest

Finally, both Trump and the Federalists were able to compensate for what they lacked in numbers by utilizing a larger share of their supporters. 14 states had restrictive voting laws in effect for the first time in 2016, and these laws disproportionately affected Clinton supporters. According to the 2014 Cooperative Congressional Election Study, voter ID laws significantly depress racial and ethnic minority turnout, and Latinos are affected most, with an average 7.1% decline in general election turnout when states adopt strict ID policies. Interestingly, such laws modestly increase White turnout. Roughly 9 out of every 10 Trump supporters were White, and racial and ethnic minorities overwhelmingly voted for Clinton. In Wisconsin, one of the states with a new voting law in effect, 60,000 fewer people voted in Milwaukee, where the majority of Black Wisconsinites live, than had in 2012. Trump won the state by a narrow margin of 27,000 votes.

Similarly, the Antifederalists, who were typically poorer than Federalists, were often faced with prohibitive travel costs, as ratifying contests in some states were held in eastern cities, far away from their homes. This may have prevented the attendance of dozens of their delegates at the closely divided Massachusetts ratifying convention, where the Federalists’ eventual victory tally was just 187 to 168. Further, the difference in financial status between the two sides meant that the Antifederalists were more likely to leave ratifying contests before a vote was taken—with the most closely contested conventions the likeliest to drag on the longest—because of the accumulating costs of being away from home. The Antifederalists were thus at less than full strength, which may have cost them several victories in the end.

Conclusion

Much of Trump’s populist rhetoric during the 2016 presidential campaign was nearly indiscernible from Antifederalist declamations during the 1787-88 state ratifying conventions. It is thus ironic that Trump won for the same reasons that the Antifederalists lost—a sense of national crisis, a binary set of options, the geographic distribution among supporters and opponents, slanted press coverage, and a disparity in the ease of participation between the two sides. Trump was able to use these advantages, just as the Federalists did, to transform American life—over the protests of perhaps a majority of the American people.

Maseeh Moradi is Class of 2018 at Harvard Law School. You can reach him by e-mail at mmoradi at jd18.law.harvard.edu

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