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.