By CASS SUNSTEIN
Review of The Framers' Coup: The Making of the United States Constitution, by Michael J. Klarman
Oxford: Oxford University Press, 2016
Michael Klarman’s magisterial book has two central goals. The first is to de-deify the framers of the United States Constitution – to demonstrate that they were practical men, “not demigods; they had interests, prejudices, and moral blind spots. They could not foresee the future, and they made mistakes” (p. 5). And while Klarman greatly admires the framers, his second goal is to show that they were elitists, in a sense even aristocrats, skeptical about the very idea of popular sovereignty.
James Madison, the father of the Constitution, thought that “the people could not be trusted to intelligently rule themselves” (p. 4). Klarman urges that committed to this belief, the framers undertook a kind of coup, and it was anything but a democratic one. The framers believed in “the natural aristocracy of virtue, talent, and education – men like themselves” (p. 600). They were affirmatively hostile to democracy (p. 606). Their invocation of popular sovereignty was strategic, not sincere. More particularly, “the Constitution was designed in part to block legislation for tax and debt relief,” and therefore “represented a victory for one party in a debate that genuinely had two sides” (p. 5). Modern Americans are entitled to hold the framers in the highest regard, but they should not revere them, or refrain from asking about the inconsistency of their handiwork “with our basic (democratic) political commitments.”
The Framers’ Coup might well be the best book ever written on the founders and their handiwork. With impressive, even loving detail, and mostly emphasizing historical facts rather than his own opinions, Klarman conjures up the framers’ whole world – their despair about the breakdown of governance under the Articles of Confederation; their acute fear, in 1786-1787, that the union was on the verge of disintegrating; the perceived risk of a return to monarchy; the dubious legality, questionable legitimacy, and sheer ballsiness of their decision to abandon the Articles altogether; the piercing intelligence of Madison, that big brain with the astonishing work ethic, without whom almost certainly no constitution, and certainly no bill of rights.
Much of the book is riveting, not least because it shows the contingency of the Constitution – the multiple points where it might have been derailed. The Constitutional Convention in Philadelphia was preceded by the Annapolis Convention, which accomplished exactly nothing. A lot of smart, experienced people forecast that nothing would happen in Philadelphia either. With apparently unrealistic optimism, Madison and his Virginia colleagues nonetheless invited states to come (and without Madison’s own tireless efforts, there is a good chance that Virginia itself would have rejected the ultimate product). The ambivalent, anguished George Washington nearly refused to attend. Without Washington, it might well have been impossible to legitimate the convention at all.
Many of the deliberations nearly stalemated. At multiple points, the convention came close to falling apart. As Charles Pinckney reported, the group was “repeatedly in danger of dissolving without doing anything.” After the improbable drafting of the actual document, ratification itself hung on a knife’s edge. In key states, close observers could not forecast the outcome. (Prediction markets would have had it at around 50-50 in several places.) And if not for Madison’s absolute insistence on keeping his promise to the Constitution’s opponents, there would have been no bill of rights, because the framers didn’t want it – and Madison himself was a late and somewhat reluctant convert.
Klarman offers detailed, unfailingly even-handed accounts of the central issues, including the perceived need to expand the powers of the national government, the fights between the small and large states, the architecture of checks and balances, and the ugly but perhaps also essential compromises on slavery. (“To have expected the Constitution to be less protective of slavery than it was probably have been unrealistic. Because all the delegates to the Constitutional Convention wished to preserve the union, southerners enjoyed considerable bargaining power.” P. 303.) If you are generally interested in the Constitution – and tend to side with today’s self-proclaimed constitutionalists, who make grand claims about what the document was really about, and which current political disputes it resolves in their favor – Klarman will be your best guide, the kind of teacher you never thought you’d find.
An especially important point here is that the framers wanted to increase the authority of the national government, not to weaken or disable it; they were centralizers. Also important is that they sought a “powerful unitary executive” (p. 226). Even if you are a constitutional specialist and think you know all about the founding generation, you’ll learn an extraordinary amount from him. It is true that the various strands of the argument are available elsewhere – including, of course, the debates between large and small states, the compromises on slavery, and the desire to strengthen the central government – and that on particular points, Klarman does not break a lot of fresh ground. But with the sheer accumulation of fascinating details, and the careful, comprehensive elaboration of the precise steps that led from the failure in Annapolis to the Bill of Rights, Klarman has produced something genuinely new.
Klarman also succeeds in the task of bringing the founders down to earth. Rather than grand theorists with unique access to philosophical fundamentals, they were practical men, determined to solve intensely practical problems. To the extent that they have become deified, Klarman thinks that it is because of a distorting historical mist, which he tries to pierce. (With Thomas Jefferson, he does not approve of ancestor worship.) Much of his book consists of a series of accounts of what, concretely, the founders were trying to do -- and the disparate issues on which they split with one another and with those who opposed their whole enterprise.
Madison emerges as the most important actor on the scene, and as Klarman shows, his thought had impressive unity. His theoretical commitments and his institutional preferences marched hand-in-hand. Most fundamentally, Madison’s conception of republicanism departed radically from preexisting understandings, associated with Montesquieu, who favored small republics and who feared heterogeneity. (The opponents of the proposed Constitution were dedicated followers of Montesquieu.) For Madison, a large republic would be far preferable to a small one, not least because representatives would be in a better position to exercise their deliberative functions, and hence, in the words of The Federalist No. 10:
to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose.
As Klarman shows, Madison believed that national representatives should have a high degree of autonomy to do what they deemed in the public interest. He favored an emphatically deliberative democracy, in which national representatives would pay attention to, but not necessarily follow, the views of “the people themselves.” For this reason, and sharp opposing more populist trends in the young union, he preferred large election districts and long length of service. He despised debtor relief laws, which he saw as a defining sacrifice to “temporary or partial considerations.” Responding to what he saw as destructive actions at the state level, he wanted Congress to have general authority to invalidate any and all state laws of which it disapproved (the power to “negative”). Klarman demonstrates that while Madison lost on a lot of particulars (including the latter power, which was not granted), he won the war. The Constitution reflects his essential vision.
Americans celebrate that triumph, but Klarman is ambivalent about it. Hence his provocative title, suggesting that the framers undertook some kind of coup. Klarman thinks that with that coup, they successfully opposed the self-consciously democratic practices that were prospering in the aftermath of the Revolution. Purporting to create a system of rule by We the People, and repeatedly speaking in terms of popular sovereignty, they created a series of filters to ensure ultimate control by a kind of enlightened elite – one with interests of its own.
Klarman invites us to see the framers’ institutional choices in this light. For example, the president was to be selected by the Electoral College, not by the voters; state legislatures would appoint senators; and the Supremacy Clause, a kind of second-best for Madison’s preferred power to negate state laws, allowed the central government to override such laws, at least over a large terrain. Klarman concludes that in the intensely political struggles that resulted in the Constitution’s adoption, the founders were speaking for a badly compromised conception of democracy. And there was an economic goal here; the founders were working to prevent the redistribution of wealth. As Klarman puts it, “The Constitution was a conservative counterrevolution against what leading American statesmen regarded as the irresponsible economic measures enacted by a majority of state legislatures in the mid-1780s.”
Klarman compiles considerable evidence in support of these conclusions. As he shows, Elbridge Gerry was hardly alone in suggesting that “the evils we experience flow from an excess of democracy.” But consistent with the same evidence (and also armed with the evidence of the last two centuries), the framers’ views, and their ultimate product, can be put in a much more favorable light. You can believe in self-government, and ultimate control by We the People, while also fearing the adverse effects of interest, passion, and short-term thinking. You can insist that populist pressures can threaten to lead governments to adopt measures that ill serve the very people who are clamoring for them. With Madison, you can insist on the importance of promoting deliberative processes in government. You can emphasize that information is indispensable to sensible decisions and that undue responsiveness to short-term pressures from the public can ensure that decisions are insufficiently informed. Whether the issue involves “discriminatory trade restrictions” among the states (p. 12), confiscation of land (p. 44), refusal to pay debts to foreign creditors (id.), or violations of treaty obligations (p. 46), the public might favor measures that are inimical to the public good. You can believe that debtor-relief laws are a terrible idea, because they make it less likely that people will get loans in the first place, or that people will be able to rely on the enforceability of contracts, without favoring the rich or being indifferent to the poor, or thinking that creditors matter more than debtors. Madison himself abhorred debtor-relief laws but also wanted laws to “raise extreme indigence towards a state of comfort.” In my view, Madison rocked.
True, Madison was no economist, but he was acutely aware of the potentially harmful systematic effects of popular and seemingly well-motivated interventions. His enthusiasm for large election districts and long length of service can be seen as an effort to square the idea of self-government with a belief in the importance of knowledge, expertise, and long-term thinking, deployed in the public interest. He sought a kind of epistemic democracy. Klarman demonstrates well enough that many of the framers had parochial concerns (including intense loyalty to the interests of their states), but the materials that he assembles in this magnificent book do not, in my view, support the conclusion that the winners in the founding era were intolerably antidemocratic, or that the Constitution’s opponents stood more firmly or in the right way with We the People.
In some ways, the framers did indeed manage a coup. But that coup saved, and made possible, the nation that won the Revolution – and served, with stains and imperfectly but more than well enough, the ideals for which it had been fought.
Posted on 31 October 2016