Balkinization: Why Our Constitution Should Not Be Adopted??

Why Our Constitution Should Not Be Adopted??

Guest Blogger

Calvin Johnson

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

Michael Klarman’s The Framers’ Coup: The Making of the United States Constitution (Oxford 2016) is an opponent’s history of the adoption of the American Constitution. Some point of view is needed in any history because historical facts in even great numbers do not organize themselves nor generate an objective deep meaning. Histories written from across a partisan line select and organize the cacophony of facts in very different ways. For instance, when John and Jane go through a bitter divorce after 20 years of marriage, they write very different histories of each other. Jane treats Johns’ explanations of his decisions as just excuses covering his bad ulterior motives. Jane’s history of her inner life is very different from the character study that John would write. Jane thinks that John never understood her, which is an understatement. . If the Constitution wrote her own history, I think she would say, “Klarman never understood me.”

The Framers’ Coup is an immense collection of the arguments in the framing and ratification of the Constitution, intelligently summarized. Still Klarman’s oppositional roots betray his judgment. The Constitution was revolutionary document creating a strong national government to replace the loose confederation of sovereign states. The Constitution was needed first to pay the debts of the Revolutionary war, because in the next and inevitable war, the nation would need to borrow again. Klarman misses the desperate need for money and emphasizes instead less important issues used to undercut the case for the Constitution.

Oppositional histories are rare from lawyers because they do not fit into the lawyers’ professional outlook. A lawyer cannot successfully argue, “Your Honors, opposing counsel is right about the reading of Article II, but the Constitution is a counter-revolutionary document written by aristocratic pigs and should not have been adopted.” Still, an odd-bed-fellows mix of states’-rights advocates and progressive historians do so argue.

To judge from his introduction, Klarman joins the bed-fellows of Constitution skeptics, by reaction to the deification of the Constitution. Klarman is rightly skeptical about deification. The founders were not gods who walked for too short a time among us. All words, including the Constitution are weapons in some battle trying to accomplish some program. To understand the historical meaning of the Constitution, you need to understand the programs. The difficulty is that Klarman under-emphasizes the core program that required the Constitution and inflates the importance of not very important objections to its adoption.

The Articles of Confederation which preceded the Constitution had been only a “firm league of friendship” among sovereign states and the Articles’ congress was only an assembly of diplomats. The congress was then limited to a list of powers expressly delegated and had no tax power. The Constitution affected a revolution, replacing the confederation with a strong national government able to walk on its own legs. The new national government could raise taxes without recourse to the states and enact legislation for the common defense and general welfare that was paramount over state law including their constitutions.

The primary need for the constitutional revolution was to give the national government tax power to pay the debts of the Revolutionary War. The States under the Articles were required to pay requisitions to the Congress to manage the war debts, but they did not. The states had also vetoed the most reasonable national-level tax. In the coming, inevitable war, the national government would need to borrow again. The Framers were desperate. This thin coast-line nation was vulnerable to three predatory empires, England, Spain and France, and it had not a dollar to buy a sloop or a gun to defend itself, and no prospect of borrowing a dollar. The payments on the war debts, at least to the Dutch, had to be maintained. The Constitution is first a tax document, a pro-tax document that created a national government because the separate state sovereignties in a confederation were jeopardizing the common defense.

Ratification is primarily a contest between state power and the new national government. Patrick Henry in Virginia and George Clinton in New York hated the threat to their power by their nationalist political enemies, first among them, Madison and Hamilton. The Federalists believed that the people were for them, but that the holders of state office would oppose them.

The ratification of the Constitution was an important step toward modern democracy. The Framers asked for endorsement by the people, whereas the Articles had been ratified only by states. The voting rules for election of delegates to the ratification convention were the least restrictive up to that time, often allowing all free adult males to vote. The people responded by debating the Constitution, not just in the conventions, but in the papers, letters and taverns along America.

The best democrats in the nation, including Tom Paine, Ben Franklin and James Wilson, chose the Constitution’s side of the battle. The Anti-Federalist opponents include the worst anti-Democratic tongues, especially when they feared the people would endorse this Constitution. In Massachussets, Anti-Federalist Mercy Otis Warren denounced the “absurd enthusiasm” that “spread over the lower classes of people,” giving “blind and idolatrous homage to false leaders.” Anti-Federalist Elbridge Gerry said “the evils we experience flow from the excess of democracy” and he warned against “the danger of the levilling [sic] spirit.” In New York, Anti-Federalist Melanction Smith warned that the people are “frequently incompetent to deliberate discussion,” and subject to “errors and imprudences.” Anti-Federalist Governor George Clinton argued that the people were “guilty of the most imprudent and desperate measures” and were “too apt to vibrate from one extreme to another. The times were not as democratic as America would evolve to, but the Federalists overall were better democrats than their opponents.

Madison’s Federalist 10 is a proof, consistent with the proposed strong national government, that only the extended republic could protect individual rights from abuse. In Virginia, Patrick Henry had tried to establish the Episcopal Church, abusing the rights of Baptists and Presbyterians, but on the national level, no one denomination could be a majority. In the extended national republic, power would be counterbalanced by power, whereas the smaller states governments would inevitably abuse the fundamental rights for which the Revolutionary war had been fought.

The most important issue in the ratification debate was whether the federal government would have the power to lay dry-land “direct taxes.” No Anti-Federalist could allow the power, and no Federalist could let it go. Washington explained the core to Jefferson in far off Paris, saying he would not much object to any of the Anti-Federalist proposed amendments on rights, but he objected to their proposed prohibition of federal direct tax, “which is the one they most strenuously insist on.” He expected that the new government would do justice to the public creditors on the war debts, and “retrieve the National character.” But if internal taxes were prohibited and the new government could use only requisitions, Washington said, then we might as well recur to the old confederation.

Madison first viewed the various amendment proposals as primarily Anti-Federalist excuses to defeat the transfer of power from state to national government, which seems a fair assessment. The most important individual right, trial by jury in criminal cases, was already in the Philadelphia Constitution. The Bill of Rights looks mostly like criminal procedure details, at least once you realize that both sides soon thereafter were interpreting freedom of the press to allow them to put opposition editors in jail. Anti-Federalist Nathan Dane told New York Anti-Federalist Melancton Smith that none of Smith’s amendments were worth secession, shortly before Smith switched over to allow New York ratification, and Dane’s assessment seems fair.

Washington and Madison, however, supported those amendments that might better bolster the fundamental rights for which the Revolution had been fought, as long as they did not impede the creation of a strong new national government. The Virginia Anti-Federalists voted against the Bill of Rights, when first offered to them for ratification, because it did nothing to return power to the states, which was their goal.

Klarman from his oppositional viewpoint inflates the importance of issues to undercut the victory of the Constitution. He inflates, first, the importance of paper money. In his Economic Interpretation of the Constitution, Charles Beard thought the Constitution was written, more or less, to “crucify Mankind upon a Cross of Gold,” by imposing hard money on yeoman farmers and other private debtors that made it hard to repay their debts. Klarman agrees. Paper money is the critical issue in the contest between William Jennings Bryan and William McKinley in Beard’s own time, but it is not, however, a critical issue in 1787-88.

The Framers are debtors in distress, trying to restore the public credit for the next inevitable war. The most important creditors on the public debt are the Dutch. The most important creditors on the private debts are the British factors. There are domestic creditors who held public debt, but no one has ever heard of them. When Hamilton became Secretary of the Treasury, he and the Congress cut back their contractual rights, dismissing their protest. The cries of Federalists that failure to pay the public debts are shameful, a humiliation and dangerous are the voice of debtors trying to restore the ability to borrow, not the cries of the Dutch or British creditors trying to get paid. Beard claims to analyze economic interests, but he looks on the wrong side of the creditor-debtor line and at private debts when it is the public debts that are critical.

The ban on state paper money in Article II, section 10 was barely contested in the ratification. The failure of the Continental dollar, stealing from everyone who held it, was too recent and too ugly a memory. Patrick Henry was smeared by his Federalist enemies as being in favor of paper money, but in the ratification convention, he declared that paper money was the “bane of this country. I detest it.” New York Anti-Federalists opposed the Constitution, line by line, but the NY Convention read through the passages banning state paper money “with little or no debate.” Paper money did not come up in Massachusetts ratification convention, where Shays Rebellion had occurred. It was not included in any of the 100 or so proposed Anti-Federalist amendments. Opponents of the ban on state paper were sparse or at least quiet.

Paper money is important in Rhode Island, but there it was an abuse against the Union. Rhode Island mandated that out-of-state creditors who held public debt for money lent to Rhode Island for the war effort had to take Rhode Island paper dollars in full payment. Rhode Island paper had depreciated to ten cents on the dollar or less so that Rhode Island was in effect renouncing its debt, forcing honest creditors who lent in the “times that try men’s souls” to take the 90 percent or more loss on cheap Rhode Island paper or forfeit everything. Rhode Island also forced out-of-state creditors to take Rhode Island paper to pay private debt incurred by Rhode Island citizens for goods delivered, but there too, the abuse is by one state upon another. Rhode Island was betraying the “United We Stand” that had won the Revolution, also by vetoing the tax on imports which Congress could use to pay the war debts, and by opening Providence as a free port, when Massachusetts tried a state tax on imports. Rhode Island paper was just another proof that Rhode Island was that “detestable little corner of the Continent” that had done more damage to the Union that the whole state was worth.

Paper money also does not help explain the structural revolution. A ban on paper money could have perfectly well accomplished under a confederation mode. The Articles had already made relations with foreign states an exclusively national issue, and there was support reflected in the Constitution itself for uniform national standards for immigration, weights and measures and patents. A single national currency, which for instance the European Union has, was a feasible step even within a confederation. State paper money had nothing to do with abandoning the confederation mode.

Indeed, in the years following the Constitution, it is nationalist Alexander Hamilton who fought for paper money, in form of national bank notes, and anti-nationalist Thomas Jefferson who opposed paper money. George Mason of Virginia, among the most important Anti-Federalist, succeeded in getting legislation, quickly repealed, that would have killed “book debt.” Book debt was the way the small yeoman farmer got his credit from the shop keepers to pay for seeds, clothes and supplies. Mason’s legislation would have devastated them. Mason is the opponent of soft money who fits William Jenning Bryan’s “crucify-mankind” label, and he is on the Anti-Federalist side.

Klarman, also overstates the importance of American rights to navigation on the Mississippi. In negotiations with Spain over a draft treaty to gain access to Spanish markets for American wheat, tobacco and cod, John Jay asked for instructions that would allow him to accede to Spanish insistence that Spain would have monopoly on navigation of the Mississippi into Spanish New Orleans. The issue was not then important. American settlers west of the Appalachians in 1787-88 were subsistence farmers without a surplus to trade for the reasonable foreseeable future. Spain in the treaty negotiations displayed it wanted American goods, so a navigation-act monopoly for Spanish ships on the Mississippi, even if it held, would not have stopped trade. Jay, moreover, did not get his instructions. Patrick Henry tried to use the issue to whip up Southern resentments against the Union, but in the end, the grand ideal of the Revolution, United We Stand, prevailed by adoption of the Constitution.

Klarman also overstates the importance of Shays’ Rebellion. Shays is better fodder for Anti-Federalist opponents, especially as time went on. The Anti-Federalists argued that Shays was decisive evidence of the vigor of the states, and rebutted Federalist arguments that a strong national government was needed to meet rebellions. As the time receded, Shays looked less and less important. The Massachusetts militia had easily dispersed the Shaysites. The Shaysites had also delegitimated themselves by firing from behind taking civilian hostages. Even Anti-Federalist leaders disavowed Shaysites. The Constitutional movement, moreover, comes out of Virginia as Madison’s reaction to the anti-federalism of Patrick Henry and his party, and Massachusetts was always a late and remote side show.

The Anti-Federalists expected the new national government to increase tax, and Klarman describes the anti-tax streak sympathetically. It is difficult to take the anti-tax yelps seriously, however, given that Hamilton, as first Secretary of the Treasury, restored the federal credit with per capita annual taxes equal to a day and a half of a working man’s wages. Even those taxes were sin taxes imposed on things considered properly repressed, that is, imports and hard liquors.

Klarman calls the Constitution, the Framers’ Coup, and he bridles at Federalist insisting on a closed rule under which amendments would be considered only after the Framers’ document out of Philadelphia had been ratified. The instructions to the delegates meeting in the Philadelphia did say that they were to propose amendments to be offered to the states for unanimous ratification as the Articles required. The framers did not think they could get unanimity, given the anti-federal behavior of Rhode Island, Virginia and New York. They ignored their instructions, and created a new framework, a sovereign national government, to meet the desperate needs.

There was no coup though. The Constitution coming out of Philadelphia was a mere proposal, a dead letter unless ratification by the people gave it life. A mere paper proposal cannot be a usurpation of power. In the end, delegates representing 65 percent of the electorate and all the states ratified the Constitution. The Anti-Federalists badly lost the first election, taking only 19% of the House and only one state in the Senate. Once the strong national government was established, opposition to the Constitution ceased to be a viable political banner. The Constitution prevailed by endorsement of the people once they got used to it.

Madison is right, notwithstanding Klarman’s brush off, that amendments before ratification was not a viable procedure. In Philadelphia, the delegates met from May to September to hammer out a single document in spite of their disagreements. Once the delegates left Philadelphia, there was no mechanism to reconcile even petty differences in the text. Many states recommended amendments as they ratified, but none of the sets are the same. If state amendments were a condition of ratification, then each state would insist upon its own amendments, some of purely local interest. There would be no single document with nine state support. The Constitution would then be defeated by a procedural Gordian knot, which is a fine result for opponents of the Constitution, but not for those who saw its desperate need. The Federalists were justly proud of the national government that they were creating and, of course, they did not want to undo their progress and go back to the drawing board with a second convention.

Klarman wants a parliamentary form of government under which the President would have been chosen by the Congress. That was a viable alternative at the time, indeed the rule proposed by Madison’s Virginia Plan. If the supremacy of the British House of Commons had reached the full form it reached in the next 100 years, we might have copied it. The framers chose instead to have an independent election of the President, so that the President would not be beholden to the Congress. Independent election of the President arises from trying to contain power with counterbalancing power, just as Madison used offsetting power to rein in abuse of individual rights by the states in Federalist 10. A parliamentary form in which the Congress elected the President until it changed its mind might allow the passage of legislation with well-oiled efficiency. Desire for well-oiled efficiency in passage of laws, however, is not the usual program among fellow Constitutional skeptics. Constitutional skeptics are usually more comfortable with a national government in which counter-vailing power prevents the Congress from acting too quickly.

Klarman is right that the weighting of votes by the Senate rule of equal votes per state is unsupportable now and was then. A democracy requires equal weight of votes per adult. The rule of the Senate treats the votes of a Wyoming resident as worth 67 times more than the votes of a Californian. In the equality of each person before God, nobody is worth 67 times more than another. The rule gives too much power to residents of states that nobody wants to live in, inverse to the revealed desirability of the state. The error cannot be fixed by the normal process of Article V amendment, but nothing ever said, then or now, can justify that injustice.

The difficulty of the idea in the delegitimating of the Constitution is that the Senate rule is what the Anti-Federalists were fighting for applicable to the whole Congress. Patrick Henry said the Congress needed to represent states, and not people, just as they had under the Articles of Confederation. Madison and Wilson hated the apportioning votes by states. They were using the People to take power away from the states. Had they prevailed in full, we would not now be stuck with the rule.

Calvin H. Johnson is Andrews & Kurth Centennial Professor at the University of Texas School of Law. You can reach him by e-mail at CJohnson@law.utexas.edu

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