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 gmail.com