Monday, April 10, 2017

Interpreting the Framers' Coup


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

Books on the American Founding appear in each generation, retelling the story for new audiences. Each generation offers its own perspective, shaped by the world in which it currently finds itself.

Michael Klarman's book, The Framers' Coup, tells the story of the Founding for the early 21st century. It is a Neo-Beardian take, emphasizing political conflict and economic self-interest. The Founders are not demigods but economically motivated actors; their handiwork is not designed for ages to come but reflects their short-term interests. Divine Providence does not shine down upon a great and wise generation; rather the Constitution emerges through a combination of luck and contingency.

Unlike many accounts of the founding, Klarman includes not only the history of the Philadelphia convention but also the struggle over ratification and the adoption of the Bill of Rights. His comprehensiveness, his attention to detail, and his decision to tell the story as much as possible through the actual words of the participants makes this work special. It lays a powerful claim to be the definitive account of the founding for this generation.

Readers of Klarman's great work on the Supreme Court and race, From Jim Crow to Civil Rights, will be familiar with his basic approach to history and his basic sensibility. In that book he showed how the Supreme Court's work—for good and for ill—was tied to the political struggles of its day. He emphasized how decidedly unheroic the Court proved to be, quite unable to rise very far above the political battles waged outside its halls.  The Supreme Court, he explains, was neither hero nor villain; it was roughly as good and roughly as bad as the American political system that surrounded it.

Similarly, in The Framers' Coup, Klarman wants to bring the Founders down to earth, placing them squarely in ordinary politics as ordinary politicians. He sets out to disabuse us of the notion that the Founders were men of high principle who put aside their petty squabbles for the common good. Klarman argues that, no matter how talented and industrious they might have been, they were ordinary politicians engaged in the most ordinary stratagems of politics.

The book's tone is unreservedly unsentimental, often emphasizing the grittier aspects of politics and always pointing to the economic interests that motivated key actors and entities in the drafting and ratification of the Constitution and the Bill of Rights.

This is not a story of the clash of grand ideas, or struggles over deeply felt principle. Nor is it, strictly speaking, an intellectual history of the period. Instead, Klarman offers us a history of the Founding as a series of political maneuvers, schemes, and subterfuges. It is Realpolitik rather than a Novus Ordo Seclorum.

Klarman's Founding is the story of political struggle, often ruthless and bare-knuckled, in which contending factions wrestle to preserve and extend what they saw as their economic and political interests. They fought to preserve and extend those interests even if that vision was short-sighted and would be proved irrelevant within a few decades or so.

This is an important theme in the book. Klarman shows that the interests that motivated the different parties at the Founding were often contingent and short-term, but led to long-term choices that we are living with today.  The individuals in his story are not disinterested statesmen but skillful politicians. If the Framers are great men, it is because they are great at advantage-taking, scheming and persuading. If they pursue the good, it is the good of the economic classes and states from which they hail. Even when, like James Madison, actors appear to rise above their economic and sectional interests, Klarman hastens to explain how their positions usually reflected a longer-term rather than a shorter-term focus on their political and material interests and the interests of the groups with which they were allied.

A Story of the Founding  for a Disillusioned Age

Whether or not Klarman intended it, this is truly a vision of the Founding for early 21st century America. Consciously or unconsciously, it reflects an era in which politics has become polarized and dispiriting, in which few politicians are idealists, but many are self-interested con artists, in which the common good has evaporated under the heat of partisan squabbling, and in which the contending sides doubt the intelligence and the good faith of their political opponents.

Klarman's portrait of self-interested political scheming in the late 18th century is also a portrait of the dismal politics of the early 21st century. And themes of our current discontent reappear in his description of the concerns of the Framers and their opponents. Klarman repeatedly quotes advocates of a new constitution as concerned about the indolence, sloth, cupidity and stupidity of those who sought debt relief laws and protectionist measures in the states.  His Founders seek a less populist and more powerful national government, and they are often indifferent and even hostile to the plight of ordinary Americans in the various states, regarding them, in 21st century parlance, as "takers" rather than "makers."  In the eyes of many of the Founders, the common people lack industry; they fail to save; they lack self-control; they waste their money on the consumption goods of the late 18th century, and through their sheer numbers they have hijacked local and state governments to relieve themselves of the obligation to make an honest living.

Indeed, Klarman's Founders combine the worst features of Democratic and Republican elites today.  They combine the smugness and sense of cultural superiority of contemporary coastal liberals with the heartlessness of Republican conservatives who want to tear up the social safety net and who think that what the poor need most is a swift kick in the behind that will wean them from government dependency.

There are also analogies to the Euro crisis. In the chapters on the economic disputes that led to the Philadelphia Convention, Klarman's Founders seem like out-of-touch European technocrats demanding ever more austerity measures to bring Europe out of the Great Recession, while western farmers resemble the denizens of Greece and Spain, crushed under the weight of tight money and blamed for their economic misfortune.

Shay's Rebellion plays a special role in Klarman's account. It scared the living daylights out of social and economic elites, who realized they had to impose a new, more powerful national government to ward off the threat of economic and political collapse. The threat was both external, from European powers like Spain and Great Britain; and internal, from economic wastrels and populists like those in Rhode Island. (In the eyes of many of the Constitution's advocates, the state of Rhode Island is a sort of combination of early 21st century Greece and a nefarious cabal of welfare queens, chiselers, and people faking their disabilities.) Had the rebellion not occurred when it did, Klarman suggests, a new constitution might not have been formed, or if it did, it might have been for a much less powerful federal government which was also far more democratic in its design.

The title of the book, “The Framers' Coup,” is deliberately provocative. But the word "coup" has two different meanings. On the one hand, it refers to an illegal seizure of power. On the other, it refers to a clever and successful action that takes advantage of circumstances. The book alternates between these two different meanings.

On the one hand, Klarman shows how the Federalists managed to impose a constitution that was far less democratic and far more property-protecting than the great mass of the public would have chosen for themselves if the alternative had been presented.  The new government was thus a coup in the sense that the Federalists managed to seize power from the public, from the states, and from the Confederation Congress through a series of maneuvers whose fairness, if not legitimacy, was highly contestable.

On the other hand, Klarman shows how the Framers cleverly leveraged the fears and anxieties of the moment—as well as their advantages in wealth, education, social connection, political experience, and power—to create a stable and lasting system of government. Klarman's Framers may be self-interested rascals, but they are successful and clever rascals, who correctly understand the possibilities of the time and act on them accordingly. When they are not good, at least they are lucky. Their literary progenitor is not Cincinnatus, the self-sacrificing Roman general who works only for the common good, but Odysseus, the tricky (and occasionally unscrupulous) aristocrat who is the master of all stratagems and devices. Klarman's Framers use the idea of popular sovereignty to protect their property and consolidate their power; they skirt around the will of the people in the name of the people.

Interpreting the Framers’ Coup

It is one thing to note how a story of the Founding reflects the time in which it is written. It is quite another to ask what lessons it might hold for our views about the Constitution today. Does The Framers' Coup have anything to teach us about how we should think about our Constitution today? Does it tell us anything about how we should interpret our Constitution, or reform it?

Klarman's sensibilities are clear throughout, but they are ably summarized in the book's concluding chapter. If the Constitution has become more democratic over time, it is not due to the Federalists’ wisdom but to the open-textured nature of the document they wrote, and to the fact that they could not foresee what later generations would do with it.

Klarman believes that we invest our Constitution with too much reverence; too often we treat the Framers as enlightened geniuses, and too often we neglect the Constitution's many deficiencies.

Accordingly, Klarman has little patience for originalist arguments, and he has long been skeptical of pious demands for fidelity to the Framers.  As Samuel Johnson famously said of patriotism, Klarman regards constitutional reverence as the last refuge of a scoundrel. It is what people argue when they are about to pick your pocket. "[T]hose who wish to sanctify the Constitution," he explains in the book's very last sentence, "are often using it to defend some particular interest that, in their own day, cannot in fact be adequately justified on its own merits." (p. 631).

These are not, however, the only conclusions one might draw from Klarman’s story of the Founding. The excellence of his scholarship lies precisely in its richness and complexity, and often a complex story offers multiple lessons.

The great achievements of American Constitutionalism have often arisen out of political squabbling, contingency and compromise. No one who knows the history thinks that the Reconstruction Amendments, or the great Civil Rights Acts of the 1960s, arose out of the purest of motives and playing by the political equivalent of the Marquess of Queensbury rules. Politics is messy, people are self-interested—and often corrupt—and progress is a series of compromises of the best in favor of the merely good.  And yet, as Galileo once said of the earth, it still moves.  Improvement is still possible, the march toward freedom and equality still is able to proceed.

We should not confuse how laws come to be with what laws do once they are in operation. Nor should we confuse the private motives of politicians with the public-oriented purposes of the laws that they create and the public-oriented justifications that politicians use to persuade others.

Purpose and motive may emerge from the same people, but they need not be the same.  Klarman is especially interested in revealing motives, which are often less than altruistic. But this demonstration does not gainsay the interpretive importance of the purposes and principles we find in the text of the Constitution or in the history of its ratification. That is because laws are public acts rather than private possessions. Once laws are passed, they pass into the hands of the public. They may have been created to benefit a parochial set of interests, but the law of ideological drift is always in operation.  (Klarman makes this point himself, when he notes that the  Constitution that the Federalists had designed to protect their interests soon fell into the hands of the Jeffersonians, who interpreted it according to their own vision of the public good.)

Why is the distinction between self-interested motivation and public-oriented purpose important to interpretation? When we try to persuade others about the best course of action, it is not enough to assert that it will benefit us. Instead, we have to offer public-spirited justifications, showing why what we favor benefits the common good, not simply ourselves. And this the Federalists did, repeatedly, in the debates leading up to the ratification of the Constitution and the Bill of Rights.

These public-oriented arguments and public statements of purpose are the compliment that self-interest plays to republican virtue. And they are grist for the mill of later interpreters who want to argue about the best way to continue the constitutional project.  It is these interpreters who will decide what the Constitution means in practice.

Indeed, one of the most remarkable features of laws—especially laws of long-standing—is that the authors quickly lose control of their progeny, and that in the hands of later generations laws can transcend the limited perspectives of those who wrote them. Once the Framers had finagled and schemed their way into imposing a new Constitution on the United States, an amazing thing happened. The Constitution no longer belonged to them. It belonged instead to the American people, in each generation.

Klarman’s hermeneutics of suspicion is especially valuable in understanding the provenance of the Constitution, but its consequences for constitutional interpretation are more complicated.  One might imagine, for example, that the secret and selfish motivations of the Framers are a knock-down argument against all forms of originalist reasoning. But that assertion, taken seriously, proves too much. It would suggest that the doctrine of separation of powers deserves precisely the same level of respect as the desire to promote the Northeastern shipping trade, or that the principle of republican government should be consigned to the trash heap of history along with the desire to advance the interests of state bankers.

But few people reason this way in applying and interpreting laws, and for good reason. In interpretation, we naturally distinguish between the public-oriented purposes and justifications of those who make laws and their parochial motivations. That is especially so when we recognize that the point of historical inquiry is not simply discovering binding commands from the past, but useful resources for the present.

That is not to say that selfish or bad motives can’t be useful to interpretation. They are especially valuable as negative precedents—showing us how our present circumstances were made out of the injustices and moral compromises of the past. This history might help us avoid unwittingly making the Constitution serve unjust ends in our own day.  It should matter to us today how certain aspects of constitutional design once served parochial or even odious purposes, because in interpreting the document we should attempt to ensure that the Constitution does not serve similarly parochial or odious purposes today.

But if we can do this, it is precisely because laws can escape the motives of their creators and the interests of the people who created them. Features of constitutional design that arose from political compromise—or even political skullduggery—may have independent value in the hands of later generations.

The Bill of Rights is a perfect example. Klarman points out that the first ten amendments primarily focused on rights—"parchment barriers"— not because the Federalists thought such guarantees were particularly important, but in order to distract political attention from the more important structural amendments that the Antifederalists really desired. These latter amendments would have made the federal government weaker and the states stronger.

The Federalists, however, did not want to undo their handiwork.  So they cleverly turned the promise of new amendments into something that did not upset their basic scheme of governance. Instead of limits on the taxing power (for example) they amended the Constitution to secure basic rights.

Yet within seven years, the inclusion of those rights would help to spark one of the first great debates over civil liberties—the fight over the Sedition Act of 1798.  In that debate, the Jeffersonians, who included many former Antifederalists (as well as James Madison) did not treat the Bill of Rights merely as a distraction or a makeweight. They found a great deal to say about the meaning and purpose of these so-called parchment barriers. Why is this? Because these rights were now in the Constitution, and people could make use of them in constitutional politics.

By 1798, it mattered not a whit that the Federalists had acquiesced to the First Amendment in order to distract attention from the Antifederalists' larger aims. The First Amendment shaped the politics of the here and now—that is, of 1798—and it began a long tradition of fighting over civil liberties in politics that culminated in our current system of free expression.

In the same way, many features of the Constitution that reflected the short-term interests of the Framers were nevertheless defended in terms of public-spirited principles; these features and those principles became important and useful to later generations who knew nothing of the private motivations of the authors.

The test of the Constitution's usefulness is not whether the Framers' motives were venal or noble, short-term or long-term, self-interested or dis-interested, but how useful their work proved to the generations that followed them, and what later generations could add to their work and pass on to those that followed. What mattered, in short, is whether the Framers' compromises produced a stable system of government that could make politics possible, which is, after all, the central purpose of constitutions. The chief failures of the 1787 Constitution, from this perspective, are not the venality of the Framers, or their disdain for paper money and debt relief laws, but their compromises with slavery, which led to constitutional failure and Civil War; and required a constitutional reconstruction.

Constitutional Reform Today

Moreover, by cutting the Framers down to size, so to speak, Klarman's story reminds us that the repair and reform of the Constitution is not something that is left only to a single, blessed generation. It can be taken up by each generation, and indeed, it must be taken up by each generation if our politics is not to fall into disrepair.  If we think that only the Framers, because they were wise and pure, were entitled to engage in constitutional reform, we will squander our constitutional patrimony. The Framers did their best in their own time, and so can we. We should not be deterred by their example, but encouraged by it.  We have it within us to make our own successes in building out our Constitution in our own time.

Klarman's story reminds us that the Constitution did not spring into being from the head of Zeus, but rather from the crucible of ordinary politics by people who wanted a functioning system of government to deal with particular economic and foreign policy crises. They faced their own problems, not our problems, and sometimes they gave into their own temptations. Their vision was hardly perfect; indeed, they were blind to many things. But what makes a constitution successful is determined by what happens later on, and not simply what happens at the beginning.  Purity of origin is not necessary to guarantee future success. Showing, as Klarman does, that the origins of our Constitution were often short-sighted and self-interested should not indict the whole of the Framers' handiwork. Rather, it should remind us that a successful constitution is the work of many generations.

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