For the Symposium on Michael Klarman, The Framers' Coup: The Making of the United States Constitution.
The delegates assembled at the Philadelphia convention in
May of 1787 mostly agreed with the assessment of Governor Edmund Randolph of
Virginia when he introduced the plan that would become the convention’s working
outline (the “Virginia Plan,” mostly written by James Madison): “Our chief
danger arises from the democratic parts of our constitutions,” and none of the
state constitutions had “provided sufficient checks against the democracy.”
Much of the Framers’ disdain for democracy derived from
their hostility to the populist economic policies that a majority of states had
enacted in the mid-1780s in response to a severe economic
contraction—principally, paper money laws and debtor relief legislation. The
Framers overwhelmingly regarded such laws as craven capitulations by overly
responsive state legislatures to the illegitimate demands of lazy and dissolute
farmers. Such legislation was “wicked and fraudulent”; it “corrupted the morals
of the people”; and it enabled “idle spendthrifts [and] dissipating drones of
the community” to live “upon the sweat of their neighbors’ brows.”
Governor William Livingston of New Jersey (who later
represented his state at the Philadelphia convention) responded to demands for
debt and tax relief by pillorying the “lazy, lounging, lubberly” fellows who
sat around drinking, “working perhaps but two days in the week and receiving
for that work double the wages [they] earn and spending the rest of [their]
time in squandering those . . . non-earnings in riot and debauch,” and yet dared
to complain “when the collector calls for his tax of the hardness of the
times.” The farmer who protested that he could not pay taxes was “a man whose
three daughters are under the discipline of a French dancing master when they
ought every one of them to be at the spinning wheel,” and while they should be
“dressed in decent homespun, as were their frugal grandmothers, now carry half
of their father’s crop upon their backs.” (Think Mitt Romney and the “47
percent . . . who are dependent on government, who believe that they are
victims, . . . who pay no income tax . . . [and] should take personal
responsibility . . . for their lives.”)
Elite statesmen of the 1780s blamed tax and debt relief
legislation on overly democratic state constitutions. Charles Lee of Virginia
told George Washington that unless state legislatures could be reconstructed to
make them “more powerful and independent of the people, the public debts and
even private debts will in my opinion be extinguished by [them].” Reflecting on
state relief measures, William Grayson (also of Virginia) concluded that
“however excellent democratical governments may be in some respects, the
payment of money and the preservation of the public faith are not among their
good qualifications.”
At least as alarming to the Framers were events in
Massachusetts, where the legislature’s refusal to provide tax or debt relief to
farmers provoked Shays’s Rebellion, during which armed protestors shut down
civil courts in several counties in 1786–87. The nation’s propertied elite were
even more distressed when, after an army raised by eastern Massachusetts
creditors had forcibly suppressed the rebellion, the Shaysites sought (as one
of their critics observed) to win “the same objects by legislation, which their
more manly brethren last winter would have procured by arms.”
An incredulous Madison reported, “We understand that the
discontents in Massachusetts which lately produced an appeal to the sword are
now producing a trial of strength in the field of electioneering,” and if they
could “muster sufficient numbers, their wicked measures are to be sheltered
under the forms of the constitution.” After the insurgent relief seekers scored
victories in gubernatorial and legislative contests in the spring of 1787,
Madison told James Monroe that the Massachusetts election had “shifted the
legislative power into the hands of the discontented party, and it is much
feared that a grievous abuse of it will characterize the new administration.”
Governor John Hancock, propelled into office by that
discontent, promptly pardoned most of the insurgents, including Daniel Shays.
The new legislature dramatically reduced taxes and repealed an earlier law
punishing insurgents with disfranchisement and exclusion from office. Washington’s
private secretary, Tobias Lear, asked General Benjamin Lincoln, who had led the
army that suppressed the rebellion: “What frenzy can have seized upon the
people of your state [Massachusetts] to induce them to aim at an establishment
of those principles by law, which, but a few days ago, they were opposing by
arms?” Lear feared that unless “some measures are pointed out and adopted to
give security to property,” the United States was verging “fast towards a point
which may . . . involve us in a civil war with all its terrible consequences.”
Shays’s Rebellion played a critical role in the creation
of the Constitution. Investigating the rebellion for the Confederation Congress,
Secretary at War Henry Knox wrote to George Washington, “The commotions of
Massachusetts have wrought prodigious changes in the minds of men in that state
respecting the powers of government. Everybody says they must be strengthened
and that unless this shall be effected, there is no security for liberty or
property.” Virginia congressional delegate Henry Lee wrote Washington, “The
period seems to be fast approaching when the people of these United States must
determine to establish a permanent capable government or submit to the horrors
of anarchy and licentiousness,” as “[w]eak and feeble governments are not
adequate to resist such high handed offenses.”
Rufus King, a Massachusetts delegate to the Philadelphia
convention, announced that Shays’s Rebellion had taught him that “the great
body of the people are without virtue and are not governed by any internal
restraints of conscience.” He was
therefore reconsidering his prior advocacy of “government free as air,” which
had been based on the mistaken belief that his “countrymen were virtuous,
enlightened, and governed by a sense of right and wrong.” It was Shays’s Rebellion that led
Massachusetts delegate Elbridge Gerry to declare to the Philadelphia convention
that the people of New England had “the wildest ideas of government in the
world,” and Alexander Hamilton to note “the amazing violence and turbulence of
the democratic spirit.”
Because the Framers blamed relief legislation on
“democratic licentiousness,” they designed the federal government to be
insulated from the populist politics that had produced such measures in the
states. Thus, they opted for enormous districts for congressional
representatives—the Constitution provides for sixty-five members for the first House,
compared, for example, to over three hundred representatives in the lower house
of the Massachusetts legislature—and for indirect elections and lengthy terms
in office for both senators and presidents. The U.S. Senate was expressly
designed to be “the aristocratic part of our government,” to “represent the
wealth of the country,” and to bear “as strong a likeness to the British House
of Lords as possible.” The Framers also rejected, for federal
legislators, instruction, recall, and mandatory rotation in office. In
addition, they created a powerful executive armed with a veto power that could
be used to block any populist economic measures that might somehow sneak
through a legislature designed to squelch them. To the extent that the Framers
were thinking about judicial review at all, they mostly conceived of it as
another potential check on such relief legislation.
As I was working on The Framers’ Coup (from
roughly the summer of 2012 through January of 2016), I found troubling the
extent of the Framers’ elitist disdain for populist politics. While Virginian Henry Lee complained to
Washington that “the malcontents” (the Shaysites) had as “their object . . .
the abolition of debts [and] the division of property,” the debtor farmers
actually had strong arguments for the relief programs they demanded in the
mid-1780s. In a time of severe economic distress, they were being forced to pay
heavy and regressive taxes in scarce hard currency in order to pay off
government securities that had been scooped up (sometimes from them) at a
fraction of par value by speculators who now stood to make a financial
killing. Relief measures had been
necessary, according to one opponent of the Constitution’s ratification in
North Carolina “to save vast numbers of people from ruin.” That perspective was
one for which most of the delegates to the Philadelphia convention had little
sympathy.
Political developments since I finished the book,
however, have cast a more favorable light upon the Framers’ deeply skeptical
view of populist politics. The Framers worried not only that the People would
redistribute wealth if left unchecked but also that they were simply too
ignorant and vulnerable to deception to exercise responsible influence upon
their government. At the Philadelphia convention, Virginia delegate George
Mason declared that “it would be as unnatural to refer the choice of a proper
character for chief magistrate [i.e., the president] to the people, as it would
be to refer a trial of colors to a blind man.” The People could not possibly
possess “the requisite capacity to judge of the respective pretensions of the
candidates.” (Incidentally, another concern of the Framers with regard to
presidential selection was, as Madison stated in Philadelphia, that
“[m]inisters of foreign powers” would seek to influence the selection of the
president. Pierce Butler of South Carolina seconded Madison’s concern, noting
that the two great evils to be avoided in selecting the chief executive were
“cabal at home and influence from abroad.”)
Elbridge Gerry, who had been especially shaken by Shays’s
Rebellion, opposed even direct election of congressional representatives on the
grounds that the People were “the dupes of pretended patriots” and were “daily
misled into the most baneful measures and opinions by the false reports
circulated by designing men.” George Mason told the convention that the chief
evils of republican government were “the majority oppressing the minority, and
the mischievous influence of demagogues.”
[Part Two of this Essay appears tomorrow]
Michael J. Klarman is Kirkland & Ellis Professor at
Harvard Law School and author of The Framers’ Coup: The Making of the United
States Constitution (Oxford University Press 2016).