Friday, April 14, 2017

Reflections on "Reflection and Choice" by "We the People"

Sandy Levinson

Begin with the blurbs.  A veritable all-start team of specialists in American constitutional history and constitutional interpretation—Woody Holton, John Kaminski, Jack Rakove, Louis Michael Seidman, David Strauss, and Gordon Wood (in alphabetical order)—all sing the praises of Michael Klarman’s remarkable book.  Seidman refers to it as “a definitive account of the entire Framing period.”  Wood describes it as “[t]he fullest explanation of the origins of the Constitution that we are ever likely to get in a single volume.  A second Pulitzer Prize winner, Rakove, correctly states that “[a]nyone who wants to understand the origins and character of the American constitutional project will need to wrestle with Klarman’s incisive and balanced judgments.” Strauss simply says that anyone who fails to read the book will be making a “big mistake,” while Kaminski concludes by writing that “[e[very serious scholar of the period must read this masterful work.”  It is simply thte case that no discussion of the Constitution hereafter can be taken seriously if it does not contend with Klarman’s arguments.  This is most obviously true with regard to professional academics.  But, if truth be known, it applies as well to bloggers (and discussants) who freely assert one or another version of what happened in 1787-88, often as part of an argument that we in 2017 must, even if not historians, feel constrained, or even bound, by that history.  I could cease my review now, especially given the other fine commentary in this symposium simply by saying “Buy this book and read it carefully.” 

            I will, however, take advantage of this opportunity to offer some of my own reflections, though I am delighted to incorporate by reference much that is said in the other contributions to this symposium.  That is, Klarman is indeed reopening, with enormous erudition and sophistication—among other things, he makes use of far more primary sources than were available to scholars 100 years ago—arguments often identified with the Progressive Era and, more particularly, with Charles Beard.  To be sure, Klarman has little patience with Beard’s arguments that those who framed the Constitution were obsessed with the particular investments they happened to own and made their decisions in terms of what might be termed crass profit maximization.  But he fully adopts the view that one cannot possibly understand what happened in Philadelphia and then afterward in the various ratification conventions without paying close attention to material interests.  In a magnificent concluding chapter, which might well be read as an introduction prior to delving into the specifics that characterize the book in general, Klarman clearly states that “the Constitution was a product of clashing interests rather than dispassionate political philosophizing” (p. 600).  As much to the point, Klarman is basically accepting the view of Carl Becker that American politics between 1776 and 1789 were characterized by clashes over two basic questions.  The first, enunciated in the Declaration of Independence and then settled by Yorktown and the Treaty of Paris, was “home rule.”  Would the colonies continue to be part of the British Empire and, therefore, ultimately ruled by the King in Parliament, subject to whatever degree of autonomy they chose, as a matter of grace (that could always be withdrawn) to offer the colonies?  The answer was no.    The colonies successfully seceded from the Empire, with attendant violence, and the question was indeed settled.  The new “United States” (or is it “united States,” since one can find both spellings in, say, different versions of the Declaration of Independence?), would be ruled by Americans and not by Brits from abroad. 

But, as Becker insisted, “home rule” did not in the least resolve the question “who shall rule at home,” and this was a central issue facing the Americans in general and, more particularly, the Philadelphians and then those who defended their handiwork afterward in the ratifying conventions.  Not surprisingly, the elites largely represented in Philadelphia wanted rule by their own kind, and they were remarkably successful in attaining a Constitution that ever since then has often been a stumbling block to notions of “democratic self-government” that developed in the 19th, 20th, and now 21st centuries.  One need not necessarily root for the opponents of the Constitution (at least in 1787-88) in order to lament that it was not a far better document than in fact it was (and, even more to the point, is the case in the 21st century).

In any event, this is not a book about the clashes between “civic republican” and “liberal” dispositions or about the extent to which the Framers’ generation was more under the sway of David Hume, John Locke, Montesquieu, or, for that matter, Thomas Hobbes and Niccolo Machiavelli, the latter two serving largely, perhaps like Voldemort, as those whose names cannot be mentioned whatever the influence that might actually be discerned in many of the arguments being made.   Instead, Klarman is far more inclined to emphasize those framers most interested in foreign exports, usually resident in the developing American cities along the Atlantic coast, as against more rural (or “western” Americans who were fearful of the elite interested represented by the city-dwellers and were particularly concerned, for example, with John Jay’s apparent selling out of their interests with regard to navigating the Mississippi, then controlled by Spain. 

            Most of all, Klarman concerns himself with the question suggested by his very title:  How was it that the aptly named Articles of Confederation that clearly recognized the “sovereignty” of the constituent states were replaced by a remarkably new document that reflected a far more “consolidationist” view of American government than ever could have imagined under the Articles and, in addition, did whatever it could to undergird control of this new government by political elites who would be relatively free, as a matter of practice, to ignore the views (and interests) of the great unwashed for whom they had little respect and often outright contempt?  There is certainly no single answer, and Klarman emphasizes the role that sheer contingency and blind luck played in the “coup” of 1787.   We literally have no way of knowing what might have happened, for example, had New York and Virginia decided to have their conventions significantly earlier in 1788 than was the case.  Anti-ratification delegates in both states seemed poised to reject the Constitution—or to ratify it contingent on the adoption of certain amendments in a second constitutional convention—but, of course, that did not happen.  By the time they met, New Hampshire had already become the ninth state to ratify the Constitution, which according to the all-important Article VII—in flagrant defiance of Article XIII of the discarded Articles of Confederation—was enough to breathe life into the new constitutional project. 

One suspects that the two large states might still have torpedoed the project had they said no—the New York vote was a breathtakingly close 30-27—but, of course, they chose in essence to be “good sports” and to cast their lot, unlike North Carolina and Rhode Island, with the new Constitution.  One explanation, especially in New York, is that potential opponents relied on the good faith of those Federalists who promised to rectify at least some of the defects of the new Constitution and, indeed, to support a second constitutional convention that would examine potential defects of the document in light of what had been propounded in the various state conventions.  Thus we got the Bill of Rights, though Klarman demonstrates quite convincingly that those particular amendments were “tubs thrown to the whale” inasmuch as they were distractions from the far more fundamental structural amendments that many opponents of the Constitution desired and foolishly believed might actually be addressed by the newly empowered winners.

            Klarman paints vivid portraits of many of the Framers; in fact, one feature of the book is the inclusion of many actual portraits that inevitably serve to humanize these near-legendary figures.  Invariably, as Americans who continue to live with the consequences of what they achieved, we must come to our own conclusions as to our continuing esteem for them.  Do we condemn them for compromising with slavery, which they surely did?  Or submitting to the extortionate demands of Delaware and other small states for equal representation in the Senate?  Or do we applaud them for designing the system of government under which we continue to operate over two century later?  Anyone who knows my own work and its continuing and ever-increasing distaste for the Constitution’s consequences in our own lives can hardly be surprised that I’m not inclined to treat them as “demigods” who purveyed a unique wisdom about how best to achieve self-government that we should simply follow as loyal acolytes. 

Yet I continue to admire their sheer audacity in overthrowing the Confederation and being willing to engage in the “coup” because of what were undoubtedly good-faith (and perhaps even correct) beliefs that the Confederation system was “imbecilic” and threatening the very survival of the United States especially insofar, as my colleague Calvin Johnson emphasizes, it was unable to finance itself or, just as importantly, to become a credible borrower for funds that would be needed to fight the next war.  And I admire the fact that they drew on what Publius would repeatedly call, in The Federalist, the “lessons of experience” in making their arguments.  Good for them!  I only wish that more of us today shared their audacity and their willingness to address head-on the full panoply of lessons taught by our 229-year-long experience with the Philadelphians’ handiwork.  But, to put it mildly, that is not to say that we lack good reason to be highly ambivalent—even outright disturbed—by some of the specific lessons that might be taught through Klarman’s close examination of the historical record.

            Thus I want to spend the rest of my comments on certain aspects of Klarman’s argument that, for me at least, have great relevance for our present situation.  Interestingly enough, they are illustrated most vividly by his discussion of what might be termed the “convention controversy” with regard to ratification of the Constitution.  It is absolutely clear that the supporters of the Constitution, certainly including James Madison, were vehemently opposed to the very possibility that a second convention be convened.  One of the arguments supporting a new convention, incidentally, was that the first one was conducted entirely in secret, with no opportunity whatsoever for any contributions by those Americans who would in fact be asked to ratify the document.  And, perhaps as importantly, the Federalists were successful in presenting the Constitution as a classic adhesion contract, offered on a single take-it-or-leave-it basis.  Thus the adamant opposition to any “contingent” ratification.  During the Massachusetts convention, the reluctant concession was made that conventions could suggest to the new Congress established by the Constitution the desirability of certain amendments, but that is obviously far different from ratification conditional on their acceptance or, even more so, an agreement by Congress to call a second convention.

            In my own recent book An Argument Open to All:  Reading the Federalist in the 21st Century, I place great, perhaps inordinate, emphasis on the opening argument of Publius in Federalist Number 1, where he emphasizes that America is truly exceptional in demonstrating the reality that a free people can engage in “reflection and choice” before adopting a new form of government.  It is certainly true that Publius—in this case Alexander Hamilton—wrote those words.  But one conclusion, after reading Klarman’s marshalling of all of the evidence, is that almost none of the supporters of the new Constitution genuinely believed that their fellow Americans, en masse, were capable of “reflection and choice.”  In no serious sense did they act to maximize the reality of collective “reflection and choice” that might be attached to the notion of “popular sovereignty.”  The very decision, after all, to look to conventions rather than to popular referenda, as occurred in Massachusetts by way of adopting the 1780 constitution in that state (following the rejection by the Massachusetts electorate of the earlier proffered constitution of 1778), scarcely manifested any great confidence in popular government.  And Klarman brilliantly demonstrates that Federalists did whatever they could to manipulate the state conventions to minimize the actual extent of “reflection and choice” for fear that this would end up generating opposition rather than support for the new government and its remarkably enhanced power relative to the Confederation government.  Let me simply quote Klarman, again from his concluding chapter:

“[I]n 1787-88, Federalist leaders—recognizing that the more participatory the ratifying process was, the lower their chances of success—sought to minimize direct popular influence on the decision over ratification.  They favored state conventions over referenda or decisions by town meetings, opposed the instruction of delegates to ratifying conventions, resisted the adjournment of convention for the purpose of consulting constituents, and opposed efforts to alter the Constitution they had drafted by conditioning ratification upon prior amendments.  Only a ratifying process that was less participatory than the governance norms employed in many states could have secured endorsement of a constitution aht was less democratic in its substance than were all state constitutions of the era.  In sum, what most Federalists wanted was not a genuine national debate on the merits of the Constitution but simply its ratification.”

So why do I find this argument so important—and resonant?  The answer is deceptively simple.  As readers of Balkinization know, I share Klarman’s belief that the Constitution is almost grotesquely undemocratic by 21st century standards, and (perhaps unlike him), strongly support a new constitutional convention to engage in genuine nationwide “reflection and choice” about its adequacy and what might be done to make it truly fit for a country that is in almost every respect remarkably different from that for which the Constitution was drafted.  But, as revealed, for example, in the recent exchange between Professor David Marcus and myself (which could be supplemented by dozens of similar exchanges with academic colleagues, close friends, and family), there is today an abject fear of putting up the Constitution to any kind of serious popular “reflection and choice.”  A primary motif of many of the arguments made (in secret) in the Philadelphia State House was the sheer distrust of popular capacity to govern.  After all, that is what contributed to debtor relief laws (and Shays’s Rebellion), which Klarman presents as almost September 11-like in terms of structuring many of the commitments of the delegates to reining in the possibility of genuine “self-government” by the masses of Americans. 

Especially after the egregious elections of 2016, one finds many “democrats” (and not simply “Democrats”) who are questioning their prior allegiance to a capacious version of democratic participation and decision-making.  Can a people 46% of whom are willing to vote for a mountebank like Donald Trump, especially in a country that continues to be ruled by the 1787 electoral college adopted almost frivolously as the mechanism of selecting our presidents, really be trusted to “rule at home”?  That is no small question, especially for those who take seriously the notion of “popular sovereignty.”  Perhaps the central question facing the modern “resistance” to the uniquely unqualified scoundrel who inhabits (when he is not at Mar a Lago or one of his golf courses) the White House is whether the solution lies in a truly reinvigorated democratic theory and set of practices that reflects, with whatever degree of ambivalence, a genuine faith in the “democratic project” of self-government.  The alternative, of course, is to seek the replacement of one set of justifiably discredited elites, who managed to con enough of the deluded public to vote for them, with another set of elites who will, at the end of the day, feel equally entitled to rule on the basis of their own technocratic visions.  It would surely be understandable if some reformers found in the tale told by Klarman support for an almost Leninist politics led by a nationalist “vanguard” willing to bend existing political practices in order to achieve their objective of political hegemony over a basically incompetent “We the People.” 

Lincoln’s great evocation of “government by, of, and for the people” is itself riddled with ambiguity.  Benevolent despots—or technocratic elites—can make legitimate claims to rule “for” the people even as they are contemptuous of rule “by” the masses.  And, of course, the rejection of rule “by” the people is made far easier in a national governmental system that was purposely designed, unlike many of the 50 state constitutions, to suppress any possibility at all for “direct democracy” via initiative and referenda (or recalls). Inevitably, as one reads Klarman’s quotations from a broad array of participants in the Philadelphia and ratification debates, one must decide whether to identify with the vigorous critics of democracy or with the relatively few Framers who seemed to believe in the actual competence of “we the people” to engage in genuine self-government not entirely mediated by ostensible “representatives” who would, ideally, be drawn from benevolent elites far more capable of discerning the “public good” in ways than the ordinary electorate.   

The blurbers are are absolutely correct:  Anyone interested in American constitutional history must read The Framers’ Coup. But I would insist as well that anyone who cares about the state of our political health in 2017—and the degree to which the Constitution is a cause or a cure for the problems we face—should read it as well.

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