For the Symposium on Michael Klarman, The Framers' Coup: The Making of the United States Constitution.
Michael
Klarman’s The Framers’ Coup: The Making
of the United States Constitution (Oxford 2016) is an opponent’s history of
the adoption of the American Constitution.
Some point of view is needed in any history because historical facts in
even great numbers do not organize themselves nor generate an objective deep
meaning. Histories written from across a
partisan line select and organize the cacophony of facts in very different
ways. For instance, when John and Jane
go through a bitter divorce after 20 years of marriage, they write very
different histories of each other. Jane
treats Johns’ explanations of his decisions as just excuses covering his bad
ulterior motives. Jane’s history of her
inner life is very different from the character study that John would
write. Jane thinks that John never
understood her, which is an understatement. .
If the Constitution wrote her own history, I think she would say, “Klarman
never understood me.”
The Framers’ Coup is an immense collection of
the arguments in the framing and ratification of the Constitution,
intelligently summarized. Still
Klarman’s oppositional roots betray his judgment. The Constitution was
revolutionary document creating a strong national government to replace the
loose confederation of sovereign states.
The Constitution was needed first to pay the debts of the Revolutionary
war, because in the next and inevitable war, the nation would need to borrow
again. Klarman misses the desperate need
for money and emphasizes instead less important issues used to undercut the case
for the Constitution.
Oppositional histories are rare from
lawyers because they do not fit into the lawyers’ professional outlook. A lawyer cannot successfully argue, “Your
Honors, opposing counsel is right about the reading of Article II, but the
Constitution is a counter-revolutionary document written by aristocratic pigs
and should not have been adopted.” Still,
an odd-bed-fellows mix of states’-rights advocates and progressive historians
do so argue.
To
judge from his introduction, Klarman joins the bed-fellows of Constitution
skeptics, by reaction to the deification of the Constitution. Klarman is rightly skeptical about
deification. The founders were not gods
who walked for too short a time among us. All words, including the Constitution are
weapons in some battle trying to accomplish some program. To understand the historical meaning of the
Constitution, you need to understand the programs. The difficulty is that Klarman under-emphasizes
the core program that required the Constitution and inflates the importance of not
very important objections to its adoption.
The
Articles of Confederation which preceded the Constitution had been only a “firm
league of friendship” among sovereign states and the Articles’ congress was
only an assembly of diplomats. The congress was then limited to a list of
powers expressly delegated and had no tax power. The Constitution affected
a revolution, replacing the confederation with a strong national government
able to walk on its own legs. The new
national government could raise taxes without recourse to the states and enact
legislation for the common defense and general welfare that was paramount over
state law including their constitutions.
The
primary need for the constitutional revolution was to give the national
government tax power to pay the debts of the Revolutionary War. The States under the Articles were required
to pay requisitions to the Congress to manage the war debts, but they did
not. The states had also vetoed the most
reasonable national-level tax. In the
coming, inevitable war, the national government would need to borrow again. The
Framers were desperate. This thin
coast-line nation was vulnerable to three predatory empires, England, Spain and
France, and it had not a dollar to buy a sloop or a gun to defend itself, and
no prospect of borrowing a dollar. The
payments on the war debts, at least to the Dutch, had to be maintained. The Constitution is first a tax document, a
pro-tax document that created a national government because the separate state sovereignties
in a confederation were jeopardizing the common defense.
Ratification
is primarily a contest between state power and the new national government. Patrick Henry in Virginia and George Clinton
in New York hated the threat to their power by their nationalist political
enemies, first among them, Madison and Hamilton. The Federalists believed that the people were
for them, but that the holders of state office would oppose them.
The
ratification of the Constitution was an important step toward modern
democracy. The Framers asked for
endorsement by the people, whereas the Articles had been ratified only by
states. The voting rules for election of
delegates to the ratification convention were the least restrictive up to that
time, often allowing all free adult males to vote. The people responded by debating the
Constitution, not just in the conventions, but in the papers, letters and
taverns along America.
The
best democrats in the nation, including Tom Paine, Ben Franklin and James Wilson,
chose the Constitution’s side of the battle.
The Anti-Federalist opponents include the worst anti-Democratic tongues,
especially when they feared the people would endorse this Constitution. In Massachussets, Anti-Federalist Mercy Otis
Warren denounced the “absurd enthusiasm” that “spread over the lower classes of
people,” giving “blind and idolatrous homage to false leaders.” Anti-Federalist Elbridge Gerry said “the evils
we experience flow from the excess of democracy” and he warned against “the
danger of the levilling [sic] spirit.”
In New York, Anti-Federalist Melanction Smith warned that the people are
“frequently incompetent to deliberate discussion,” and subject to “errors and
imprudences.” Anti-Federalist Governor George
Clinton argued that the people were “guilty of the most imprudent and desperate
measures” and were “too apt to vibrate from one extreme to another. The times were not as democratic as America
would evolve to, but the Federalists overall were better democrats than their
opponents.
Madison’s
Federalist 10 is a proof, consistent with the proposed strong national
government, that only the extended republic could protect individual rights
from abuse. In Virginia, Patrick Henry had
tried to establish the Episcopal Church, abusing the rights of Baptists and
Presbyterians, but on the national level, no one denomination could be a
majority. In the extended national republic,
power would be counterbalanced by power, whereas the smaller states governments
would inevitably abuse the fundamental rights for which the Revolutionary war
had been fought.
The
most important issue in the ratification debate was whether the federal
government would have the power to lay dry-land “direct taxes.” No Anti-Federalist could allow the power, and
no Federalist could let it go. Washington
explained the core to Jefferson in far off Paris, saying he would not much
object to any of the Anti-Federalist proposed amendments on rights, but he
objected to their proposed prohibition of federal direct tax, “which is the one
they most strenuously insist on.” He
expected that the new government would do justice to the public creditors on
the war debts, and “retrieve the National character.” But if internal taxes were prohibited and
the new government could use only requisitions, Washington said, then we might
as well recur to the old confederation.
Madison
first viewed the various amendment proposals as primarily Anti-Federalist
excuses to defeat the transfer of power from state to national government, which
seems a fair assessment. The most
important individual right, trial by jury in criminal cases, was already in the
Philadelphia Constitution. The Bill of
Rights looks mostly like criminal procedure details, at least once you realize
that both sides soon thereafter were interpreting freedom of the press to allow
them to put opposition editors in jail. Anti-Federalist
Nathan Dane told New York Anti-Federalist Melancton Smith that none of Smith’s
amendments were worth secession, shortly before Smith switched over to allow
New York ratification, and Dane’s assessment seems fair.
Washington
and Madison, however, supported those amendments that might better bolster the
fundamental rights for which the Revolution had been fought, as long as they
did not impede the creation of a strong new national government. The Virginia
Anti-Federalists voted against the Bill of Rights, when first offered to them for
ratification, because it did nothing to return power to the states, which was their
goal.
Klarman
from his oppositional viewpoint inflates the importance of issues to undercut
the victory of the Constitution. He
inflates, first, the importance of paper money.
In his Economic Interpretation of the Constitution, Charles Beard
thought the Constitution was written, more or less, to “crucify Mankind upon a
Cross of Gold,” by imposing hard money on yeoman farmers and other private
debtors that made it hard to repay their debts.
Klarman agrees. Paper money is the critical issue in the
contest between William Jennings Bryan and William McKinley in Beard’s own time,
but it is not, however, a critical issue in 1787-88.
The Framers are debtors in
distress, trying to restore the public credit for the next inevitable war. The most important creditors on the public
debt are the Dutch. The most important
creditors on the private debts are the British factors. There are domestic creditors who held public
debt, but no one has ever heard of them.
When Hamilton became Secretary of the Treasury, he and the Congress cut
back their contractual rights, dismissing their protest. The cries of Federalists that failure to pay
the public debts are shameful, a humiliation and dangerous are the voice of
debtors trying to restore the ability to borrow, not the cries of the Dutch or
British creditors trying to get paid. Beard
claims to analyze economic interests, but he looks on the wrong side of the
creditor-debtor line and at private debts when it is the public debts that are
critical.
The
ban on state paper money in Article II, section 10 was barely contested in the
ratification. The failure of the
Continental dollar, stealing from everyone who held it, was too recent and too
ugly a memory. Patrick Henry was smeared
by his Federalist enemies as being in favor of paper money, but in the
ratification convention, he declared that paper money was the “bane of this
country. I detest it.” New York Anti-Federalists opposed the
Constitution, line by line, but the NY Convention read through the passages
banning state paper money “with little or no debate.” Paper money did not come up in Massachusetts
ratification convention, where Shays Rebellion had occurred. It was not included in any of the 100 or so proposed
Anti-Federalist amendments. Opponents of the ban on state paper were sparse or
at least quiet.
Paper
money is important in Rhode Island, but there it was an abuse against the
Union. Rhode Island mandated that out-of-state
creditors who held public debt for money lent to Rhode Island for the war
effort had to take Rhode Island paper dollars in full payment. Rhode Island paper had depreciated to ten
cents on the dollar or less so that Rhode Island was in effect renouncing its
debt, forcing honest creditors who lent in the “times that try men’s souls” to take
the 90 percent or more loss on cheap Rhode Island paper or forfeit
everything. Rhode Island also forced
out-of-state creditors to take Rhode Island paper to pay private debt incurred
by Rhode Island citizens for goods delivered, but there too, the abuse is by
one state upon another. Rhode Island was
betraying the “United We Stand” that had won the Revolution, also by vetoing
the tax on imports which Congress could use to pay the war debts, and by
opening Providence as a free port, when Massachusetts tried a state tax on
imports. Rhode Island paper was just another
proof that Rhode Island was that “detestable little corner of the Continent”
that had done more damage to the Union that the whole state was worth.
Paper
money also does not help explain the structural revolution. A ban on paper money could have perfectly well
accomplished under a confederation mode.
The Articles had already made relations with foreign states an
exclusively national issue, and there was support reflected in the Constitution
itself for uniform national standards for immigration, weights and measures and
patents. A single national currency,
which for instance the European Union has, was a feasible step even within a
confederation. State paper money had
nothing to do with abandoning the confederation mode.
Indeed,
in the years following the Constitution, it is nationalist Alexander Hamilton
who fought for paper money, in form of national bank notes, and anti-nationalist
Thomas Jefferson who opposed paper money.
George Mason of Virginia, among the most important Anti-Federalist,
succeeded in getting legislation, quickly repealed, that would have killed
“book debt.” Book debt was the way the
small yeoman farmer got his credit from the shop keepers to pay for seeds,
clothes and supplies. Mason’s
legislation would have devastated them. Mason
is the opponent of soft money who fits William
Jenning Bryan’s “crucify-mankind” label, and he is on the Anti-Federalist side.
Klarman,
also overstates the importance of American rights to navigation on the
Mississippi. In negotiations with Spain
over a draft treaty to gain access to Spanish markets for American wheat,
tobacco and cod, John Jay asked for instructions that would allow him to accede
to Spanish insistence that Spain would have monopoly on navigation of the
Mississippi into Spanish New Orleans.
The issue was not then important.
American settlers west of the Appalachians in 1787-88 were subsistence
farmers without a surplus to trade for the reasonable foreseeable future. Spain in the treaty negotiations displayed it
wanted American goods, so a navigation-act monopoly for Spanish ships on the
Mississippi, even if it held, would not have stopped trade. Jay, moreover, did not get his
instructions. Patrick Henry tried to use
the issue to whip up Southern resentments against the Union, but in the end,
the grand ideal of the Revolution, United We Stand, prevailed by adoption of
the Constitution.
Klarman
also overstates the importance of Shays’ Rebellion. Shays is better fodder for Anti-Federalist opponents,
especially as time went on. The
Anti-Federalists argued that Shays was decisive evidence of the vigor of the
states, and rebutted Federalist arguments that a strong national government was
needed to meet rebellions. As the time
receded, Shays looked less and less important. The Massachusetts militia had easily
dispersed the Shaysites. The Shaysites
had also delegitimated themselves by firing from behind taking civilian hostages. Even Anti-Federalist leaders disavowed
Shaysites. The Constitutional movement,
moreover, comes out of Virginia as Madison’s reaction to the anti-federalism of
Patrick Henry and his party, and Massachusetts was always a late and remote
side show.
The
Anti-Federalists expected the new national government to increase tax, and
Klarman describes the anti-tax streak sympathetically. It is difficult to take the anti-tax yelps
seriously, however, given that Hamilton, as first Secretary of the Treasury,
restored the federal credit with per capita annual taxes equal to a day and a
half of a working man’s wages. Even
those taxes were sin taxes imposed on things considered properly repressed,
that is, imports and hard liquors.
Klarman
calls the Constitution, the Framers’ Coup, and he bridles at Federalist
insisting on a closed rule under which amendments would be considered only
after the Framers’ document out of Philadelphia had been ratified. The instructions to the delegates meeting in
the Philadelphia did say that they were to propose amendments to be offered to
the states for unanimous ratification as the Articles required. The framers did not think they could get
unanimity, given the anti-federal behavior of Rhode Island, Virginia and New
York. They ignored their instructions, and created a new framework, a sovereign
national government, to meet the desperate needs.
There
was no coup though. The Constitution coming
out of Philadelphia was a mere proposal, a dead letter unless ratification by
the people gave it life. A mere paper proposal
cannot be a usurpation of power. In the
end, delegates representing 65 percent of the electorate and all the states
ratified the Constitution. The
Anti-Federalists badly lost the first election, taking only 19% of the House
and only one state in the Senate. Once
the strong national government was established, opposition to the Constitution
ceased to be a viable political banner. The Constitution prevailed by endorsement
of the people once they got used to it.
Madison
is right, notwithstanding Klarman’s brush off, that amendments before
ratification was not a viable procedure.
In Philadelphia, the delegates met from May to September to hammer out a
single document in spite of their disagreements. Once the delegates left Philadelphia, there
was no mechanism to reconcile even petty differences in the text. Many states recommended amendments as they
ratified, but none of the sets are the same.
If state amendments were a condition of ratification, then each state
would insist upon its own amendments, some of purely local interest. There
would be no single document with nine state support. The Constitution would then
be defeated by a procedural Gordian knot, which is a fine result for opponents
of the Constitution, but not for those who saw its desperate need. The Federalists were justly proud of the
national government that they were creating and, of course, they did not want
to undo their progress and go back to the drawing board with a second
convention.
Klarman
wants a parliamentary form of government under which the President would have
been chosen by the Congress. That was a
viable alternative at the time, indeed the rule proposed by Madison’s Virginia
Plan. If the supremacy of the British
House of Commons had reached the full form it reached in the next 100 years, we
might have copied it. The framers chose
instead to have an independent election of the President, so that the President
would not be beholden to the Congress. Independent
election of the President arises from trying to contain power with
counterbalancing power, just as Madison used offsetting power to rein in abuse
of individual rights by the states in Federalist 10. A parliamentary form in which the Congress
elected the President until it changed its mind might allow the passage of
legislation with well-oiled efficiency.
Desire for well-oiled efficiency in passage of laws, however, is not the
usual program among fellow Constitutional skeptics. Constitutional skeptics are usually more
comfortable with a national government in which counter-vailing power prevents
the Congress from acting too quickly.
Klarman
is right that the weighting of votes by the Senate rule of equal votes per
state is unsupportable now and was then.
A democracy requires equal weight of votes per adult. The rule of the Senate treats the votes of a
Wyoming resident as worth 67 times more than the votes of a Californian. In the equality of each person before God,
nobody is worth 67 times more than another. The rule gives too much power to
residents of states that nobody wants to live in, inverse to the revealed desirability
of the state. The error cannot be fixed
by the normal process of Article V amendment, but nothing ever said, then or
now, can justify that injustice.
The
difficulty of the idea in the delegitimating of the Constitution is that the
Senate rule is what the Anti-Federalists were fighting for applicable to the
whole Congress. Patrick Henry said the
Congress needed to represent states, and not people, just as they had under the
Articles of Confederation. Madison and
Wilson hated the apportioning votes by states.
They were using the People to take power away from the states. Had they prevailed in full, we would not now
be stuck with the rule.
Calvin H. Johnson is Andrews & Kurth Centennial Professor at the University of Texas School of Law. You can reach him by e-mail at CJohnson@law.utexas.edu