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