For the Symposium on Michael Klarman, The Framers' Coup: The Making of the United States Constitution.
On January 20, 2017, Donald Trump began
his grim inaugural address by castigating the political establishment for enriching
itself at the public’s expense. Standing at the West Front of the Capitol
building on that rainy, gloomy day, Trump repeatedly invoked populist themes,
defiantly pledging to “transfer power from Washington” back to the people and declaring
them “the rulers of this nation again.” But, accepting the premise, when had
the people stopped ruling? One possibility, as controversial as it may sound,
is when the Constitution was ratified in 1787-88.
The Constitution was far more
nationalist and democracy-constraining than its predecessor, the Articles of
Confederation, granting Congress virtually unqualified power to levy direct
taxes and raise armies during peacetime and substantially insulating national
government officials from direct popular influence. The Antifederalists (those
who opposed the Constitution’s ratification) decried these very features, using
populist arguments echoed today by Trump and his allies. John Williams, a New
York Antifederalist, worried in 1788 that the Constitution would enable “men
who may be interested in betraying the rights of the people and elevating
themselves upon the ruins of liberty.”
Yet, in an incredible stroke of irony, Trump’s
obstacles to victory in fact resembled the ones confronted by the Federalist
elites during the ratification contest. Both faced the challenge of attempting
to drastically alter the nation while having perhaps less than half of the
nation’s support. The Constitution, as mentioned above, took power away from
the people and reimagined a country with a powerful, vigorous central
government better shielded from popular sentiment. The public would have quite
possibly rejected ratification had it been conducted as a national referendum. Similarly,
Trump called for an end to many decades of bipartisan foreign policy orthodoxy,
a dramatic pivot away from globalization and foreign trade, and revolutions in
immigration policy, tax policy, and far more. Trump had the highest unfavorable
rating, 63%, ever recorded for a presidential candidate and received fewer
votes than his opponent, Hillary Clinton.
Did Trump and the Federalists overcome
these obstacles in similar ways? Were the forces in 2016 that made an unpopular
man the nation’s chief executive the same ones that in 1787-88 made an extremely
contentious document the nation’s highest law? I do not mean to equate the
outcome or desirability of these two events, and differences undoubtedly exist—significantly,
as we have already seen, 18th century elites championed the
Constitution, whereas 21st century elites detest Trump. But the
similarities are striking enough to warrant notice. In this short essay I will identify
five crucial advantages that Trump and the Federalists shared: (1) a national
sense of crisis, (2) a binary set of options, (3) a favorable geographic
distribution among supporters and opponents, (4) aid from the press, and (5)
the ease with which their supporters, relative to their opponents, could
participate in the contest.
(1) A National Sense Of Crisis
Trump and the Federalists were both
boosted by a sense that the status quo was failing. Trump’s dystopian campaign
was predicated on the idea that America’s greatness had expired and that only he
could restore it. He often stated that the country had become an international laughingstock
and was plagued by rampant levels of illegal immigration, crime, terrorism, and
unemployment. “The American dream,” Trump proclaimed in his first campaign
speech, “is dead.”
Trump’s harsh description resonated with
many voters in part because of genuine struggles in communities across America.
Real wages had flatlined for decades; the economy had recovered unevenly from
the 2008 crisis, with income inequality at its highest level since the Great
Depression; the labor market, owing to automation and trade, was unforgiving to
low-skilled workers who might have found gainful employment just a generation earlier;
nearly two decades of the global war on terror had made Americans weary of both
terrorism and the nation’s broad military footprint; an opioid crisis was devastating
many rural communities and had taken many young lives; Congress was
increasingly seen as the loyal servant of wealthy interests; society had become
deeply polarized and government had become bitterly gridlocked. Three months
before the election, nearly 70% of Americans believed that the country was on
the wrong track. Many of Trump’s voters, including millions of longtime
Democrats, had significant reservations about the Republican nominee but felt that
a national overhaul was imperative. Mike Kirk, a Trump supporter and pawnshop
owner in West Virginia, told the Associated Press before the election, “[Trump]
offers us hope, and hope’s the one thing we have left.”
Similarly, the drive to ratify the
Constitution was advanced by the nation’s struggles under the Articles of Confederation.
A dire economic situation led to defaults on foreign and domestic debts and an
inability to respond adequately to trade and foreign policy challenges. Debtor
and taxpayer revolts, most famously Shay’s Rebellion, were common; army
officers had threatened mutiny in order to extract promised pensions and back
pay from Congress; sectional strife was intense over commercial policy and
navigation rights on the Mississippi River; states discriminated against one
another’s trade; and national morale had sunk. George Washington aptly summed
up this national angst, writing, “without some alteration in our political
creed, the superstructure we have been seven years raising at the expense of
much blood and treasure must fall. We are fast verging to anarchy and
confusion!” Most Americans, including many Antifederalists, also recognized that
the status quo was unsustainable. Nathanial Barrell, an Antifederalist who eventually
voted for ratification at the Massachusetts ratifying convention, did so despite
reservations because the Articles of Confederation were “essentially
deficient.”
(2) A Binary Set of Options
The Constitution and Donald Trump each
benefited not just from being an alternative to an undesirable status quo, but
also from being the only plausible
alternative. It is likely that most Americans would have preferred a less democracy-constraining
and less nationalizing option to the Constitution, and that a less boorish and egomaniacal
outsider would have garnered more popular support than Trump. But those options
were not available.
Democratic primary candidate Bernie
Sanders, like Trump, was a populist outsider. He was not an establishment
Democrat—in fact, not a Democrat at all. Many of his campaign themes were
similar to Trump’s, including denouncing the status quo generally and
specifically targeting as culprits Wall Street avarice and free trade. But
Sanders adopted a more temperate, empathetic approach. While he expressed
concerns with the impact of immigration on American labor, he also called for
fewer deportations and urged that the country “must not turn our backs” on
Syrian and Afghani refugees. Sanders proposed compassionate criminal justice
reform whereas Trump called for stop-and-frisk and “law and order.” He also spoke
out against Trump’s insults toward POWs, women, and racial and ethnic
minorities, condemning Islamophobia where Trump called for a ban on Muslim
entry. Polls suggest that Sanders would have fared better in a matchup against
Trump than Clinton did. But that matchup was never presented to the American
people.
During the ratifying contest, the
Federalists desperately sought to avoid both ratification contingent upon antecedent
amendments and a second convention, creating a stark, binary choice between the
obviously defective Articles of Confederation and a Constitution that contained
nationalizing and democracy-constraining features that many Americans found
troubling. John Dawson, a swing delegate at the Virginia ratifying convention,
claimed that had the Constitution “been presented to our view ten years ago, .
. . it would have been considered as containing principles incompatible with
republican liberty and doomed to infamy.” A majority of Americans probably would
have favored an intermediate option between the two extremes with which they
were presented, but the Federalists desperately (and successfully) sought to
present the nation with only a binary choice, and most Americans preferred the
Constitution to the status quo. Charles Turner, an Antifederalist who eventually
voted for ratification in Massachusetts, expressed that, despite the
Constitution’s “several imperfections,” the alternative would mean that “we
shall be an undone people.”
(3) A Favorable Geographic Distribution
Among Supporters And Opponents
The geographic
distribution of both Trump’s supporters and the Federalists played an essential
role in their respective victories. Trump created a sea of light red across the
map; Clinton created very dark blue drops, mostly on the coasts, which led to
many wasted votes, including over 4 million in California alone. Trump won
2,134 more counties and 10 more states than Clinton, despite winning nearly 2.9
million fewer votes overall. In an era of relatively primitive transportation
and communication, the Federalists actually benefited from the concentration of
their supporters in urban areas. Conversely, the Antifederalists were hampered
by the distribution of their supporters across the western frontier and in
other backwoods regions throughout the states. Patrick Henry, the leading
Antifederalist in Virginia, spoke of the “the inconveniences arising from our
dispersed situation,” which prevented both intrastate and interstate
coordination. According to a Pennsylvania Antifederalist, many on that side of
the debate in the central part of the state were “at a great loss . . . for
intelligence,” whereas “our adversary carries on a constant intercourse with
their confederates everywhere.” This organizational advantage allowed the
Federalists to move quickly, with early ratification victories establishing
momentum in the broader contest.
(4) Aid From The Press
Trump and the Federalists both received,
intentionally or incidentally, great help from the press. Newspaper coverage
was heavily biased in the Federalists’ favor during the ratifying period, with
only 12 of over 90 newspapers in the nation offering any substantial criticism
of the Constitution, and many papers exclusively publishing material promoting
the document. The newspapers in Connecticut, an Antifederalist there reported,
were “evidently shut against all those that would dare and presume to write . .
. against the new Constitution.” Federalist
publishers in Pennsylvania even deliberately created the false impression (a
bit of 18th century “fake news”) that the state’s ratifying debates
contained little opposition to the Constitution.
The press, or media, also promoted
Trump, though indirectly. The source most Americans use for
news—television—helped to obfuscate the real stakes and create a false
equivalence with Clinton. Guided by the ratings bonanza promised by a reality-star-turned-presidential-candidate,
the networks gave Trump more free media ($2 billion) in the primary than all
other major candidates combined. Early on in the election season, CBS chairman
Les Moonves all-too-candidly admitted, "Donald's place in this election is
a good thing . . . it may not be good for America, but it's damn good for
CBS." He later added, “Man, who would have expected the ride we're all
having right now? The money's rolling in and this is fun . . . [i]t's a
terrible thing to say. But, bring it on, Donald. Keep going.” Further, network
newscasts spent more time during the election cycle covering Clinton's private
email server than all policy issues combined. This coverage, in part, led to
Clinton being viewed as far less trustworthy than Trump, even though a
significantly smaller percentage of her campaign statements were factually
inaccurate.
Moreover, the networks often treated
Trump like a traditional candidate, normalizing his odd and often repulsive
behavior and encouraging hesitant voters to embrace him. Trump was invited to
host Saturday Night Live after he had called Mexicans “rapists,” and Jimmy
Fallon tousled Trump’s hair on national television after he had mocked the
disabled, called for an entry ban on Muslims, and smeared a Gold Star family,
to name a few of his traditionally disqualifying actions.
(5) The Ease With Which Their Supporters,
Relative To Their Opponents, Could Participate In The Contest
Finally, both Trump and the Federalists
were able to compensate for what they lacked in numbers by utilizing a larger
share of their supporters. 14 states had restrictive voting laws in effect for
the first time in 2016, and these laws disproportionately affected Clinton
supporters. According to the 2014 Cooperative Congressional Election Study, voter
ID laws significantly depress racial and ethnic minority turnout, and Latinos
are affected most, with an average 7.1% decline in general election turnout
when states adopt strict ID policies. Interestingly, such laws modestly increase White turnout. Roughly 9 out of
every 10 Trump supporters were White, and racial and ethnic minorities
overwhelmingly voted for Clinton. In Wisconsin, one of the states with a new
voting law in effect, 60,000 fewer people voted in Milwaukee, where the majority
of Black Wisconsinites live, than had in 2012. Trump won the state by a narrow
margin of 27,000 votes.
Similarly, the Antifederalists, who were
typically poorer than Federalists, were often faced with prohibitive travel
costs, as ratifying contests in some states were held in eastern cities, far
away from their homes. This may have prevented the attendance of dozens of
their delegates at the closely divided Massachusetts ratifying convention,
where the Federalists’ eventual victory tally was just 187 to 168. Further, the
difference in financial status between the two sides meant that the Antifederalists
were more likely to leave ratifying contests before a vote was taken—with the
most closely contested conventions the likeliest to drag on the longest—because
of the accumulating costs of being away from home. The Antifederalists were
thus at less than full strength, which may have cost them several victories in
the end.
Conclusion
Much of Trump’s populist rhetoric during
the 2016 presidential campaign was nearly indiscernible from Antifederalist
declamations during the 1787-88 state ratifying conventions. It is thus ironic
that Trump won for the same reasons that the Antifederalists lost—a sense of
national crisis, a binary set of options, the geographic distribution among supporters
and opponents, slanted press coverage, and a disparity in the ease of
participation between the two sides. Trump was able to use these advantages,
just as the Federalists did, to transform American life—over the protests of
perhaps a majority of the American people.
Maseeh Moradi is Class of 2018 at Harvard Law School. You can reach him by e-mail at mmoradi at jd18.law.harvard.edu