Monday, April 17, 2017

The Framers’ Coup and the Merely Human Constitution

Guest Blogger

Ryan C. Williams

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

In the opening pages of The Framers’ Coup --Michael Klarman’s deeply impressive new work of constitutional history – Klarman describes the goal of his project as being “to tell the story of the Constitution’s origins in a way that demystifies them” and that makes clear that “[t]he men who wrote” it “were not demigods” but rather “had interests, prejudices, and moral blindspots,” could not “foresee the future,” and “made mistakes.”  (p. 5).  In other words, Klarman aims to show us that the Constitution is a merely human document constructed by historically situated actors who were not immune from familiar human frailties and limitations.  If this were the sole contribution of Klarman’s book, few but the most intrepid or naïve students of constitutional history might bother wading through the hundreds of pages of carefully footnoted text that follows.

But those willing to press beyond will be rewarded with a magisterial account of the Framing that offers important new insights to even those deeply versed in the period.  Far more than merely “demystifying” the Framers and their achievement, Klarman provides a careful step-by-step dissection of the major decisions, victories, compromises, and capitulations that gave shape to the Constitution as we know it today.  The panoramic sweep of his narrative – which stretches from the Confederation period through the drafting and ratification debates, and the subsequent adoption of the Bill of Rights – allows for new appreciation of how significantly decisions made at one point influenced and constrained decisions taken months or even years later and how easily events could have unfolded in any number of radically different ways.  Indeed, Klarman identifies the highly contingent nature of the decisions that structured the Constitution and that led to its eventual adoption as one of the core themes that ties his narrative together.

Even those tenuously versed in the Framing will probably come to this work with some general knowledge that the success of the Philadelphia Convention was not preordained.  But Klarman does a masterful job of demonstrating precisely how improbable the task confronting the Philadelphia delegates was when they assembled in 1787. Although the defects of the existing Articles of Confederation were numerous and almost universally acknowledged, attempts at even marginal changes to the dysfunctional Confederation government had repeatedly foundered due to the Articles’ strict unanimity requirement for amendments.  The Annapolis Convention, which had assembled the prior year for the specific purpose of proposing amendments to enhance Congress’s power, ended in embarrassment when more than half the States failed to even send a delegation. (pp. 103-08).   The prospects for a more successful effort when delegations from twelve States convened in Philadelphia seemed so improbable that many of the most forceful opponents of enhanced national authority declined opportunities to attend.  (pp. 250-51).  Such decisions, along with the decision by Rhode Island to boycott the Convention entirely, significantly enhanced the prospects of cohesion among the disproportionately pro-nationalist delegates who did show up.  Even so, the negotiations among the Framers in Philadelphia threatened to founder at several points, including, most pointedly, over the question of the States’ representation in Congress.  (pp. 192-205).
At each step in his description of the drafting process, Klarman takes pains to emphasize how the familiar rough-and-tumble of the legislative process – including such factors as agenda control, path dependence, negotiating baselines, hold-ups, and strategic bargaining -- shaped the document’s ultimate form.  For example, the small States’ ability to extract from the larger States a concession on equal suffrage in the Senate derived largely from the fact that the Confederation had established a negotiating baseline of equal State representation – a concession extracted more than a decade earlier.  (p. 202).  Likewise, the deep South’s single-minded commitment to preserving the international slave trade allowed them to credibly threaten to walk away from the negotiations if their demands were not accommodated.  (p. 286).  Interconnections between various provisions – for example, those specifying the composition and qualifications for various federal Departments and those specifying those same Departments’ powers and responsibilities – meant that tentative decisions reached during one stage of deliberations “produced path dependencies” for resolution of related issues that “led to more highly contingent resolutions.”  (p. 599).
Perhaps unsurprisingly, the document that emerged from this complex negotiating process consisted of a set of compromises that almost certainly satisfied none of the participants fully. Madison, in particular, was left “despondent” over the rejection of many of his most cherished plans for the new national government, including a national veto over State legislation. (pp. 158, 284). Nonetheless, the disproportionate representation in the Convention of pro-nationalists and democracy skeptics ensured that the resulting document more closely tracked their collective preferences than those of their ideological adversaries.

In the ratification debates that followed, the Federalists skillfully outmaneuvered their opponents at several key points, including by beating back proposals in multiple States for making ratification conditional on subsequent amendments.  By insisting that the ratifying conventions either accept or reject the proposed Constitution in full, the Federalists were able to avoid reopening the carefully wrought bargains they had forged in Philadelphia to a new round of negotiations in which their ideological adversaries would play a much more active and engaged role.  Indeed, the threat of a second convention that might reverse or modify the Framers’ handiwork only dissipated fully after Madison persuaded the First Congress to approve a set of largely anodyne constitutional amendments  (bitterly described by one Antifederalist critic as mere “milk and water” (p. 584)) designed to secure individual liberties.

In addition to highlighting the historical contingency of the Framers’ achievement, Klarman also emphasizes the extent to which both the motivations of the Constitution’s supporters and the processes they used to achieve their objectives departed from prevailing democratic norms of the time. But reasonable minds can differ as to how much weight to accord such democratic shortcomings in assessing the overall significance of the Framers’ achievement.  Although the delegates to the Philadelphia Convention were, as a group, far more elitist and anti-democratic than the voting population as a whole, their deliberations occurred under the omnipresent shadow of the ratification debates that would follow.  (pp. 243-45).  The knowledge that public acceptance of the document would require some reasonably democratic process of ratification ensured that many of the most stridently anti-democratic proposals mooted in Philadelphia – including such measures as life tenure for Senators and constitutionally specified property qualifications for federal elections – were left on the cutting room floor.  (pp. 178-79, 209-11).  And though Klarman makes a convincing case that the ratification process that followed was hardly a model of democratic deliberation, he concedes that this process was at least “reasonably democratic” when judged by the standards of the time.  (pp. x, 609).
It might well be true that many members of the public – perhaps even a majority – would have preferred a different plan of government had one been available to them.  But given the many contingencies that were necessary to the success of the Framers’ project, there does not seem to be any particularly strong reason for confidence that a more open and democratic process would have produced consensus on what such of a plan of government should look like.  Had the effort to reform the Articles ended in failure, the consequences for the Union and for representative democracy in general might have been quite severe.  (Klarman notes that a failure of the Philadelphia Convention to reach agreement on reforms to the Articles may have led to the collapse of the Confederation government and possibly even wholesale abandonment of republican principles by many American elites (pp. 598-99)).
Further evidence that the Constitution was viewed as at least tolerably acceptable by most Americans is provided by the near total evaporation of legitimacy-based objections in the years immediately following its adoption. Rather than persisting in the objection that the Framers had improperly usurped authority belonging to either the Confederation Congress or to the States, most Antifederalists quickly accommodated themselves to the new governmental structure and began working to achieve their objectives from within that structure.  (pp.   619-22).  The rapid acquiescence of even the most vocal Antifederalists suggest that many Americans of the time may have viewed the existence of a functioning national government as more important than the particular form that that government should take.

As with any significant new history of the Constitution’s Framing, it seems inevitable that Klarman’s book will be pressed into service by the contending sides in the decades-long debate over “originalist” theories of constitutional interpretation.  Klarman himself has refreshingly little to say on this topic, preferring to lay out the history and allow the interpretive conclusions to fall where they may.  And Klarman’s history may prove challenging for at least certain types of originalist theories, particularly those that depend on an unduly romantic conception of popular sovereignty or implausible notions of the Framers’ foresight to legitimate their enterprise.

But as Stephen Smith observes, originalists as a group are generally untroubled by the notion of a “merely human” Constitution.  The fact that the Constitution was drafted by historically situated, fallible individuals working under constraints of limited time, knowledge, and foresight is a familiar starting point for virtually all theories of originalism.  Nor would the fact that the Constitution was drafted and ratified under conditions that fell far short of a democratic ideal necessarily doom the originalist endeavor.  Indeed, when viewed from a modern perspective, the anti-democratic features of the drafting and ratification process to which Klarman draws our attention pale in significance to the much more familiar democratic deficiencies resulting from exclusions of African Americans, Native Americans, and women.  Moreover, to the extent Klarman identifies lingering substantive anti-democratic deficiencies resulting from the Framers’ decisions, these deficiencies are clustered almost entirely in the Constitution’s “hard-wired” provisions, such as those providing for equal State representation in the Senate, the Electoral College method of choosing the President, and the onerous amendment processes set forth in Article V.  (pp. 625-28).  Because proponents of virtually all interpretive theories tend to read such provisions the same way, Klarman’s account gives us little concrete basis for choosing one interpretive theory over another.

In the end, the question confronting modern interpreters is very similar to the one presented to members of the ratifying public in 1787 and 1788 – namely, whether we are willing to accept the highly imperfect document bequeathed to us by the Framers in Philadelphia as a source of binding law.  Like the vast majority of the ratifiers at that time, members of the present generation had no opportunity to participate in that document’s drafting and many might well prefer any number of alternative governmental arrangements if given the choice. Nevertheless, once the universe of realistic alternative choices is clearly in view, some may find reasons for believing that the merely human Constitution of 1787 – whatever its flaws or shortcomings – is nonetheless acceptable enough to warrant their recognition.

Ryan C. Williams is Assistant Professor of Law at Boston College School of Law. You can reach him by e-mail at ryanwilliams123 at   

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