Tuesday, April 11, 2017

The Framers’ Coup as a Challenge for Originalism

Guest Blogger

James Fox

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

The Framers’ Coup is destined to become a leading work on the creation of the Constitution.  Its scope, care, and balance are remarkable. It will take quite a bit of time, and many footnoted pages, before scholars come close to full digesting Michael Klarman’s latest book.

What I want to do here is explore what I see as two possible consequences of The Framers’ Coup for how we think about the meaning of Constitution.  Klarman argues that the Framers drafted a Constitution that was relatively antidemocratic for its time and that Federalists ratified it using a highly politicized, somewhat deceptive, anti-populist process. This claim poses a crucial challenge to one of the foundational justifications for originalism:  that the Constitution was the product of a great moment of popular sovereignty.   It also should cause us to consider more deeply the ways in which our fitful revisions of the text over time should affect the meaning of the entire text.

On the first point I should be clear that Klarman does not engage originalism directly, focusing instead, as one would expect from an award-winning historian, on a meticulous and balanced reconstruction of the political arguments, motivations, and actions that document in detail his claims about the Framers. The Framers’ Coup nevertheless presents a direct challenge to originalism in this respect: by detailing the extensive antidemocratic beliefs, methods, and handiwork of the Framers, Klarman causes us to question assertions that the Constitution resulted from an especially democratic process and that we should, 230 years later, grant special status to that process in determining constitutional meaning today.

Klarman argues that the Constitution departed from prevailing democratic norms in both substance and process.  The substantive departures are better known: large congressional districts, indirect elections and long terms for senators and presidents, no powers for voters to  instruct or recall legislators, no term limits, a powerful president with a veto, and judges with lifetime tenure, among others. (606-07).  Perhaps more important, the process itself involved repeated efforts to perform an end-around the public.  The call for the convention hid the intent to scrap (rather than amend) the Articles, likely reducing antifederalist participation.  The convention was conducted in secret, violating accepted American norms for transparency of democratic bodies. Ratification was done by conventions more likely to obtain federalist support rather than by referendum or town meetings, and most states did not allow instruction of delegates.  Ratification was pressed quickly and, given the convention’s secrecy, with little time for reflection or organization of opposition.  And, perhaps in part due to the foregoing, Federalists successfully opposed allowing state conventions to condition ratification on amendment or to call a second, more transparent,  constitutional convention to modify the document.  As Klarman writes, “[o]nly a ratifying process that was less participatory than the governance norms employed in many states could have secured endorsement of a constitution that was less democratic” than state constitutions, and “what most Federalists wanted was not a genuine national debate on the merits of the Constitution but simply its ratification.” (618). Moreover, Federalists disingenuously claimed that this politically manipulated process nonetheless represented a grand principle of popular sovereignty that legitimated the antidemocratic substance of the document.

If Klarman is right—if the Constitution was indeed an antidemocratic coup and a manipulation of popular sovereignty—then the originalist claim that the text was the product of “one of the most profoundly democratic moments in human history” (Larry Solum) can no longer be a basis for privileging original meaning of that text.  In this respect The Founders Coup represents a potential body blow to a foundational justification for originalism, one relied on by originalists both new and old.  It is an antidemocratic text, obtained by ordinary, interest-driven politics that, through both tactic and luck, manipulated and evaded public opinion.  Given this rather rushed, unreflective, and relatively undemocratic process, we cannot say that there was a clear “public” meaning for ambiguous or vague text since the process was designed to obscure meaning for the purpose of obtaining the result (Mary Bilder nicely develops a related point in a recent op-ed).  Nor can we say that the meanings we can divine hold any particular claims to democratic legitimacy. The drafting and ratification process was not a baptismal font of popular sovereignty washing away sins of illegitimacy (violating the amendment rules of the Articles) and bad faith (lack of transparency and disingenuous public arguments by Federalists).  Claims to privilege original public meanings must be found elsewhere, and as such will they continue to be subject to arguments that they seek to override other democratic processes (ordinary legislation, constitutional moments, etc.).

Klarman’s thesis could be countered in several ways.  Perhaps he overstates the democratic nature of the laws and practices prevailing at the state level; maybe he downplays the fact that the Constitution was more democratic than the Articles or any other national system; possibly he gives too little attention to how the Framers’ antidemocratic proclivities were substantially constrained by the fact that they knew they had to obtain approval from popularly elected ratifying conventions (although Klarman frequently highlights just this point).  Still, to my mind none of these critiques on their face undercuts the vast evidence Klarman presents.  It may be that the coming years will see scholars, including originalists, attempt to do so.  Such efforts will be welcome, not least because they will represent a re-engagement between originalists and historians that, as Jonathan Gienapp has recently argued, New Originalism has largely tried to escape.  But it will be hard for anyone to assert a popular sovereignty justification for originalism without addressing The Framers Coup.

Klarman also suggests that the demythification of the Framers and the original Constitution should help counter a tendency in our history to use Constitution worship and Founder envy to “block proposed changes to the Constitution or its traditional interpretation.” (3).  I would add that another problem of over-valuing the democratic aspects of the Framing is that we will become overly hesitant to consider the meaning of constitutional changes that occur after the initial Founding.  If the framing was indeed antidemocratic in the ways that Klarman suggests, does that not mean that there should be a greater interpretive role for the more democratic changes to the text made over time?

I think it does.  If we see the initial framing as important but flawed, changes to the text, and especially those expanding its democratic legitimacy, take on greater weight.  As the myth of the initial Founding recedes the import of Reconstruction as the Second Founding and the progressive era as a Third Founding comes into focus.  Interestingly, this was also the perspective of many antebellum African American leaders.  Frederick Douglass would have agreed with Klarman about the dangers of Founders worship when he excoriated the hypocrisy of Fourth of July celebrations and said that “men seldom eulogize the wisdom and virtues of their fathers, but to excuse some folly or wickedness of their own.”  H. Ford Douglas challenged the Republicans in 1860 by arguing that  “Republicans say they are bringing the Government back to the policy of the fathers.  I do not desire to do this; the policy of the fathers was not uncompromising opposition to oppression; and nothing less than a position far higher than they occupied will ever make us worthy of the name of freemen.”  James McCune Smith sought to inspire fellow African Americans to remain in America and fight slavery because they could be the new Founders:  “Slavery must cease and over its grave there will grow up a pure Republic. The destiny then, which we must fulfill in relation to the form of government under which we dwell is eminently conservative. We will save the form of government and convert it into a substance.”

Reconstruction and its Amendments then represented this new Revolution.  As one freed slave said, “bottom rung’s on top now.”  With the Reconstruction Amendments and enforcing legislation formerly enslaved blacks were not merely free—not, as antislavery Framers would have had it, free and recolonized or free but subordinated—they were free with full citizenship, legal rights, and political power.  The bottom quite literally was on top. 

This was not Madison’s Constitution.  Madison and other Federalists wanted a strong national government to curtail the influence of those who “labor under the hardships of life, and secretly sigh for a more equal distribution of its blessing.” (209)  The reconstructed Constitution, on the other hand, empowered the national government to ensure that government—state and federal—addressed inequalities and protected the poorest and most disadvantaged.  Indeed, Reconstruction and its Amendments changed the very meaning of liberty, equality, and property.  The Framers’ saw the protection of property as the “great object of government” and a significant reason for not interfering with slavery.  (245)  Reconstruction overturned these principles.  Property was no longer a justification for the denial of liberty;  liberty was no longer meaningful unless it was also equally protected.  Liberty and equality were now at least on par with property as “great objects of government.”   

Such changes represented not only the shift in the relational meaning  of individual rights claims—property ownership no longer trumping personal liberty—but also the powers of the federal and state governments.  Some of these changes were explicit: Congress could legislate over civil rights not in order to prevent assaults on wealth (the Framers concern) but to protect against assaults on persons and the perpetuation of racial caste (the Second Founders concern). 
Other changes were implicit.  As Klarman so nicely explains, the issuance of paper money was, for the Framers, one of the worst sins of post-Revolutionary American democracy, resulting in it being both prohibited for the states and omitted as an express power for Congress.  Yet after the Civil War and Reconstruction federal power to issue paper money was rightly upheld—not because the Amendments expressly said so but because the very foundation of the relationship between federal power, property, and the economy had changed.

A similar point can be made for the Progressive Era Amendments.  The Sixteenth Amendment granted Congress the power to lay and collect taxes on incomes in order to redistribute the great wealth of the gilded age and equalize property—directly contrary to Federalists visions of the purpose of the federal government (and also contrary to the Supreme Court’s effort to re-privilege property).  Property had slid further down the scale of the “objects of government.”  The Seventeenth Amendment upended one of the Framers critical antidemocratic protections by subjecting Senators to popular elections, and the Nineteenth Amendment changed the very nature of popular sovereignty and constitutional citizenship by recognizing  women as full public and political citizens.  By the 1920s, then, people who had been considered property (African Americans) or its near equivalent (married women) at the Founding constituted  the majority of the people who held popular sovereignty.

None of this means that the initial constitutional framing is irrelevant.  But if Klarman is right that reverence for the framing as a special moment of democracy and constitution-making is misplaced, if it is no more and no less special than other moments of constitution-making in our history, then maybe we should do a better job of exploring those later makings.  Maybe it is worth seeing each moment of amending as a reframing that not only made adjustments and corrects “flaws” but that moves us closer to McCune Smith’s pure Republic, that reinterprets the principles of the existing constitution to make it more than it was before.  Maybe the “framing” is an ongoing project.  Maybe it is our project.

James Fox is Leroy Highbaugh Sr. Research Chair and Professor of Law at Stetson University College of Law. You can reach him by e-mail at fox at

Older Posts
Newer Posts