Wednesday, April 19, 2017

The Constitution as Political Project

Stephen Griffin

In his outstanding book The Framers’ Coup, Michael Klarman’s great objective is to retrieve the immediate context in which the Constitution was adopted and so recover our most fundamental document as a Federalist political project.  To this objective Klarman brings a compelling combination of historical insight and lawyerly thoroughness, confirming his status as one of our leading legal historians.  His careful treatment of the multiple chains of argument that surrounded the making of the Constitution results in a memorable volume that will be consulted for years.

I have to admit to wondering whether Klarman could add anything new to the many prior works on the adoption of the Constitution.  I’m happy to be proved wrong.  One of the most striking examples comes early, as Klarman provides the most detailed yet balanced discussion I have read of the many difficult issues facing the United States under the Articles of Confederation.  These issues were both internal, with respect to how the states related to each other and external, as the US could not fulfill its obligations under the treaties it had signed and still faced a dangerous situation, in effect surrounded by the European great powers.  At least in my reading of Klarman’s evidence, the Antifederalists were never able to formulate a compelling defense of the Articles, particularly with respect to America’s challenges in foreign affairs.

Another example is Klarman’s handling of Madison’s key role.  Some scholars have questioned Madison’s centrality, noting that Madison failed to prevail on several issues he saw as crucial in the Philadelphia Convention.  They have pointed as well to the relatively overlooked role of Madison’s opponents such as Roger Sherman of Connecticut.  To my mind, the sheer mass of evidence Klarman accumulates as to Madison’s contribution rebuilds the case that Madison, more than any other person, deserves the title of “Father of the Constitution.”  This is true not so much with respect to authorship of the text, but to Madison’s absolutely central place in the Federalist political project.  From beginning to end, from the Annapolis Convention to the Bill of Rights, Madison was not only there but always seemed to be the most prepared, the framer who kept his eye on all the moving parts.  Klarman restores Madison to his rightful place in the constitutional pantheon.

Emphasizing that the Constitution was a political project designed to cope with the defects of the Articles of Confederation means that in various ways, “theory” takes a backseat in Klarman’s account.  Klarman returns repeatedly to the theme that the framers were practical men of affairs, not philosophers or designers concerned with every last detail.  Considerations such as the legitimacy of the Constitution and how it should be interpreted were certainly not irrelevant, but were subordinated to the larger political and policy struggle between Federalists and Antifederalists.  Certainly the immediacy of the economic concerns of both sides should impress any reader as well as the cut and thrust of the fight over ratification.

With respect to the ratification struggle Federalists had a distinct advantage, for all that Klarman makes of the narrowness and contingency of their victory.  Klarman’s judicious book gives due attention to the arguments of both sides, but it seems to me they were not evenly balanced.  In particular, Antifederalists had no answer for the problems the US faced abroad because of the defects of the Articles.  Klarman portrays the Federalists as both nationalists and anti-democrats.  But a degree of nationalism was pretty clearly required if the Union was to succeed at all.  The Framers’ “anti-democratic” tendencies often amounted to little more than their rejection of eighteenth-century nostrums such as rotation in office and the recall.  Their rejection seems to me to be means to nationalist ends, rather than malign attempts to remake American politics in an elitist direction.  And surely the Antifederalist faith in these measures was misplaced.  Our politics today is surely more democratic than that of the eighteenth century, but we have wisely laid aside recourse to these aspects of Antifederalist conventional wisdom.

Another deficiency in Antifederalist thinking that Klarman documents in great detail was their tendency to assume that only legal checks were relevant, that political checks such as elections would count for nothing in controlling the excesses of the new government.  Antifederalists worried about undermining the militia or direct taxes, but rarely stopped to think that if such measures were truly unpopular, then they would not be enacted.  In fact, at times Antifederalists appear to be the forerunners of today’s Tea Party, also notable for its lack of basic trust in our political institutions.

So I came away from Klarman’s book even less impressed with the quality of Antifederalist thinking and with a renewed respect for the cogency of the Federalist project.  It is important to realize, however, that the Antifederalists may well have had the last laugh.  In his last chapter, Klarman discusses how Antifederalists accommodated themselves to the Constitution by folding their strict constructionist perspective into its framework.  Perhaps there was no real “revolution” in 1800, but there most assuredly was what might be called a Jeffersonian transition, in which the Constitution took on a fundamentally different character than that planned by Federalists at Philadelphia.  One of the signal virtues of Klarman’s book is that he greatly improves our understanding of just how far the nation traveled with respect to views about the purpose and interpretation of the Constitution from September 1787 to March 1801.

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