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 law.stetson.edu.