HLS Library Book Talk | Michael Klarman: “The Framer’s Coup”
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HLS Library Book Talk | Michael Klarman: “The Framer’s Coup”

October 8, 2019

JOCELYN KENNEDY: Hey, everybody. Good afternoon. My name is Jocelyn Kennedy. I’m the Executive Director of
the Harvard Law School Library. Thank you all for coming
today for our book talk. Copies of our book are on
sale at the front of the room. Professor Klarman will
be on hand to sign books after his presentation. So I’d encourage you to do that. This talk is being
recorded today. So during the presentation
and during the Q&A session, we will be recorded
and it will be broadcast on the law
school’s YouTube channel sometime next week. Our guest today is
Professor Klarman. He is the Kirkland & Ellis
Professor here at Harvard Law. He is a renowned
legal historian. He teaches and writes in the
areas of constitutional law and constitutional history. He has written books exploring
racial and sex equality in the constitutional
context, winning the Bancroft Prize in History
for his first book From Jim Crow to Civil Rights– The Supreme Court and the
Struggle For Racial Equality. Today Professor Klarman will
be sharing from his very recently published book. I think it came
out three days ago. The Framer’s Coup, The Making of
the United States Constitution. So without further
ado, Professor Klarman. [APPLAUSE] MICHAEL KLARMAN:
Thanks for coming. So usually I would start
with some sort of reference to the Red Sox, but it’s
actually too painful a subject. Plus I don’t have much
time and I want to give you all time for questions. So I’m just going to
jump right into it. I’m going to talk to
you about this book that was just formally released
a couple of days ago. The book, as I see it,
makes three contributions. It’s called The Framer’s Coup– The Making of the United
States Constitution. Three main contributions. So a disturbingly
large number of you have actually already
heard me talk about this. So I’m not sure why you’re here. In any event. I wish I had something
different to say about it, but I’m not sure I do. So three contributions. First of all, there are some
really marvelous books written about pieces of the story. Dick’s heard me talk about this. I don’t know why Dick’s here. I’m getting distracted. So there are many
wonderful books written about pieces of the story. Nobody’s actually written
a book within two covers that covers the whole account
of the US Constitution. So starting with the flaws in
the Articles of Confederation, working through the state
economic and monetary fiscal policy disputes of the
1780s, then the Philadelphia Convention, then the
battle between Federalists and Anti-Federalists
over ratification of the Constitution,
then the Bill of Rights, which was added
a couple of years after, as I’m sure
most of you know. So I thought there
was a certain virtue in filling that gap in
the scholarship even though, as I’ve said, there’s a
rich and voluminous literature on pieces of the story. I think this is the
first book on the making of the Constitution
from soup to nuts. Second of all, I’ve
tried to tell the story as much as I possibly
can through the words of the participants. So there’s vast literature,
primary literature. And one of the advantages of
being in Harvard Law School is I have access to
terrific research assistants and a fabulous librarian
who’s designated as my reference librarian. And there are all these
incredible documentary histories. So for example, the
documentary history of the ratification of the
Constitution is now 27 volumes, and it’s not done yet. And each volume has like 500
pages of diaries, letters, people who are trading
in government securities, writing letters back to
their home base in Scotland, talking about whether
the securities are going up or down based on whether
the Constitution’s likely to be ratified or not. All that stuff is available
with a click of your computer. You can sit there
in your living room and you can access
all of this stuff. So I’ve tried to
tell the story as much as I can through the
voices of participants. I think that has the virtue
of maybe making the story a little bit more vibrant. And it also has the
advantage of allowing people to form their own judgment. So you can decide
if my interpretation seems persuasive. And then third and
finally, I’ve tried to give a sharper edge to
an interpretation that’s been out there for a long time. I don’t claim any originality in
inventing this interpretation. I agree with the
interpretation, but I’ve tried to explore a little bit
more as to why it may be true. So that interpretation
is the Constitution is a kind of conservative
counter-revolution against the forces
that were set in motion or accelerated by the
Revolutionary War. So those are the
three contributions I’ve tried to make. I thought I’d talk now
about three points that are made in the book. And that will take me
about 25 more minutes and then I’ll stop
and ask for questions. So point number one. I’m going to describe for you
ways in which the Constitution was more nationalist. And by nationalist,
I simply mean shifting power from the
state and local level to the national level. So the ways in which
the Constitution was more nationalist and more
constraining of democracy. Sometimes I’ll talk
about anti-populist, sometimes I’ll say
democracy-constraining. I mean those
basically as synonyms. So that’s the first
part of the talk, just describing the ways in
which the Constitution is more nationalist, more
democracy-constraining than probably most Americans
expected the Philadelphia Convention would
accomplish and maybe more than most
Americans actually wanted the Philadelphia
Convention to push the country in that direction. Second point, I want to try to
explain how the framers wrote that Constitution. Why were they unrepresentative
of the country at large? And then third, and I think most
interestingly, how in the world did they get the country in
a fairly democratic process? And we have to add the
obvious conditions– democratic for that time,
democratic for the era. They didn’t allow women
to vote, they didn’t allow black people to vote,
they didn’t allow people without property to vote. That doesn’t sound
very democratic from our perspective, but
from the world’s perspective in 1787, the United States had
the most inclusive democracy of anyone. So how in the world did
they get a fairly democratic ratifying process to approve
a constitution, one of which is principal accomplishments was
constraining popular influence on government? So that’s a roadmap of
where I’m going now. So I’ll start with the point
of describing the nationalizing features of the Constitution. First, Congress gets almost
unlimited taxing power under the Constitution. Under the Articles
of Confederation, Congress had no taxing power. All it could do was
requisition– i.e., request– that states provide money,
which states would or would not do as they deemed attractive
under the circumstances. Often states just didn’t
pay their requisitions. Under the Articles
there had been a proposal for an amendment. That amendment would have
given Congress the authority to impose one sort of tax– import duties. That was rejected. They never got any amendments
to the Articles approved. The Constitution goes
from no taxing power whatsoever to almost
unlimited taxing authority. Second, the Constitution gives
Congress virtually unlimited military authorities. Congress can raise an army,
Congress can raise a navy, Congress can call up state
militias into federal service. You need to compare that with
the Articles of Confederation. All Congress could
do under the Articles was requisition troops. Again, ask for troops, but
not necessarily the case that any state
would cough them up. Now, there were proposals
made at the Convention, and there were criticisms
of the Constitution made by anti-Federalists, that
said Congress should only be able to raise
armies during wartime or there should be a
limited number of troops that Congress could raise or
that you should have to have supermajority
requirements in Congress if they were going to raise
an army during peacetime. None of that was adopted. Philadelphia Convention gives
Congress essentially unlimited authority to raise armies,
navies, and call state militias into federal service. Third, the Constitution
gives Congress unlimited power to
regulate foreign and interstate commerce. There was no such
power like that of any sort under the Articles. Fourth, Congress has implied
powers under the Constitution in the form of the
Necessary and Proper Clause. Necessary and Proper Clause
says that in addition to the enumerated
powers of Congress, Congress can adopt
measures that are necessary and proper
for implementing the enumerated powers. That’s in contrast
to the Articles, which explicitly
limited Congress to explicitly delegated powers. Article II of the
Articles of Confederation said Congress only
has those powers that are expressly delegated. Fifth, Constitution
supplies a mechanism for enforcing federal supremacy. Under the Articles, there
were no way, for example, to make a treaty which
Congress had adopted effective against state governments that
wanted to ignore the treaty. Under the Constitution, Madison,
who was the most important person at the
Philadelphia Convention– and I’ll explain that
a little bit later– Madison actually wanted
the national government to have the power to veto
any state legislation. Nobody had ever made
a proposal like that under the Articles
of Confederation. That was a completely
novel idea. And even the
nationalist Convention thought that was too
nationalist for their taste. So instead they adopted
a tripartite system for enforcing federal supremacy. First, the Supremacy
Clause clearly spells out that federal law
is supreme over state law. Second, the Constitution
authorizes federal judges. It actually mandates that
there be a US Supreme Court. And it authorizes Congress to
create lower federal courts. Contrast that with the
Articles of Confederation, where there were no general
jurisdiction federal courts. And then the final part of that
scheme, Article 1, Section 10, forbids the states from
emitting paper currency or interfering with the
obligation of contract. That’s a measure
that was designed to suppress state debtor
relief legislation, which a majority of states had
adopted in the 1780s. Now, you have to
keep this in mind. A majority of states
had quite recently adopted paper money laws
and debtor relief laws to assist farmers who
were going bankrupt in a great recession that
followed the Revolutionary War. The Constitution forbids that. It creates federal courts
and federal supremacy to ensure that the
federal government will suppress such legislation
at the state level. That was unanimously adopted
by the Philadelphia Convention even though a majority of
states within as little as one or two years had
adopted such measures. That alone tells you there’s
something unrepresentative about the Philadelphia
Convention. So turning from the
nationalist features to the anti populist
features and the feature I just mentioned is both,
Article I, Section 10. Both constrains populist
democracy at the state level and gives the federal
government the authority to ensure that those sorts
of debtor relief laws no longer get passed. So anti populist features. First, long terms in office. Under state constitutions,
the lower house of legislatures, those
legislators almost invariably had one year time in
office, except in a couple of New England states
where they actually served only for six months. Under the Articles
of Confederation, delegates were appointed
by state legislatures for annual terms. Under the Constitution, you
get two years for the House. They actually provisionally
agreed on three years and changed that toward
the end, probably because they want to maximize
their chances of getting the Constitution ratified. Presidents serve four years. That’s longer than any
governor in the nation served at that time. And senators served
six years, which was longer than any
legislator or governor served at that time. Most of the delegates
wanted to go further. As I said, they actually had
agreed on three-year terms for representatives. Many of them favored 11
years, 13 years for senators. Four delegations
in Philadelphia, not delegates, four
delegations, actually approved of lifetime
tenure for presidents. Alexander Hamilton
wanted lifetime tenure both for senators
and presidents. He thought that was the only
way you could adequately protect property rights,
which would inevitably be insecure if you
had a democratically accountable government. Second feature,
indirect elections. The only office holders
in the federal government who were directly elected
were House members. Senators were selected
by state legislatures. That persisted up until
the 17th amendment, which wasn’t adopted until 1913. Presidents were
and still are today elected by delegates in
the electoral college who might be elected by
the people, but might very well be appointed
by state legislatures. That’s what many of the
founders had in mind. They didn’t trust the people to
play a direct role in electing federal office holders. As indicative, as
illustrative of that distrust, George Mason, an
important delegate from Virginia at the
Philadelphia Convention, said that asking the people to
choose the president directly would be like referring a
trial of colors to a blind man. Think about running for
office on that platform. That’s going to be real
popular with voters. The framers even tried to
limit the House in various ways to make it less populous. So the House is the
only institution at the federal level where
you have a direct election. The House also only has two-year
terms that members serve. But they actually adopted
a variety of mechanisms to try to make the
House even less populous than it would appear
at first glance. So they created a
very small House. The original House
of Representatives is 65 people to govern
the entire country. Compare that to, for
example, the lower house of the Massachusetts
legislature, which back then had
over 350 members. So the idea was if you
have a very small House, you have very large
geographic constituencies. And they believed that large
geographic constituencies would favor the election
of the sort of people they liked in two different ways. One is they figured in
large constituencies, only famous people,
large landholders, military heroes
would get elected. And they also believed that
the larger the constituency, the looser the connection
between a representative and that representative’s
constituents, which would enable the
representatives, in Madison’s words, to refine and enlarge– i.e., ignore– their
constituents’ sentiments. So that’s the small House. They also believed,
and this is not widely known today, under Article
I, Section 4, Congress has the authority to revise
state regulations of the time, place, and manner of
congressional elections. Now, what does that mean? They thought that
Congress could tell the states that they
would have to elect their congressman-at-large. So what does that mean? For example, Virginia was going
to have 10 representatives in the first House
under this theory that the framers were
trying to designate, although the
Constitution is suitably vague for this purpose. Congress had the authority
to say to Virginia, all 10 of your representatives
get elected by all of Virginia rather than in districted
constituencies. That would be a
gigantic constituency which would enable the
election of, quote, unquote, “the better sort of people”–
the large landholders– and it would disconnect
representatives from tight binding relationships
with their constituents. Finally, the Constitution
omits instruction, recall, and mandatory
rotation in office. I’ll explain those
in one second. Many state constitutions
had those features. Under the Articles
of Confederation, congressmen were bound
by those features. The Constitution rejects that. And this is an omission,
so therefore is less likely to attract attention. Instruction means
what it sounds like, which is you tell your
representatives how to vote and they have to do
it or else resign. Mandatory rotation
means you only serve a certain period
of time and then you’re rotated out of office. And recall means that
your constituents or the legislature, who’s
ever appointing you, can recall you during
your term in office. So under the Articles
of Confederation, you had annual terms
in office, but you were subject to recall at any time. Constitution omits
all of those features, thereby making representatives
even freer of influence from their constituents. The purpose of these
democracy-constraining features was very clear. They wanted to make sure that
the federal government would never be subject
to the influence of the populist impulses that
had passed tax and debt relief legislation in the 1780s. And they hope that
the federal government would suppress such measures
under Article I, Section 10. All right, so that’s
first part of my talk. Second part. How did the Philadelphia
Convention manage to accomplish these things? One leading contemporary
critic of the Constitution called them
Anti-Federalists, which is what they were called at
the time, said that, quote, “The democratic and aristocratic
parts of the community were disproportionately
represented in Philadelphia.” That’s an accurate statement. And the question is why? Here are several discrete
points that together might constitute an explanation. And I admit, this is
fairly speculative. I said a few minutes
ago that I was trying to provide
a sharper edge to a conventional interpretation
that’s out there. This is part of
the sharper edge. I’m trying to explain why the
Philadelphia Convention was representative,
and then I’m trying to explain how
they managed to get such an unrepresentative
document ratified. So first, state legislatures in
every state but South Carolina were the institutions
responsible for choosing delegates to the convention. In South Carolina, the
governor chose the delegates. Everywhere else it
was legislatures. The legislature
seems simply to have chosen the most famous citizens
of the community, which would mean at that time they’re
likely to be military veterans. Remember this is right
after the Revolutionary War. Most political leaders were
Revolutionary War veterans. And it also means
people who were likely to have served in
the national government in the Confederation Congress. Now, it turns out both
of those are profoundly nationalizing means of service. If you fought in the
Revolutionary War, in the Revolutionary Army,
you fought to build a nation. And often leaders like
George Washington, the general, the
commander-in-chief, regarded the states as
being as obstructionist in the Revolutionary War
as the British redcoats. And Washington became
a strong nationalist as a result of constantly
having to battle the states for money and men. So if you served in the
Confederation Congress, you’re used to thinking about
the interests of the nation rather than the
interests of your state. You served in the
Revolutionary Army, you’re used to thinking
in national terms. In addition, the
most eminent citizens were generally wealthy
and well-educated. And those
characteristics correlate with people who are skeptical
about populist influence on government. So simply by virtue of trying to
pick their best known and most illustrious citizens,
there was probably a bias in the pool toward
nationalism and anti-populism. Second, opponents had no
reason to mobilize their forces in opposition to the
nationalizing and democracy-constraining
project because they had no way of knowing
what was going to happen in Philadelphia. It turns out that the
agenda of the Convention mostly existed in
James Madison’s head. That’s not for any
particularly good reason. Madison wasn’t the most
illustrious person, not by far. Franklin, Washington were at
the Philadelphia Convention. Madison was known
outside his state, but he was not
one of the leading statesmen in the country. He was the only one who bothered
to sit down, think through systematically what are the
problems with the Articles? What are the problems with
the state constitutions? And map out an agenda, a
structure of government, for trying to solve
those problems. He then encouraged
his fellow Virginians to show up early
in Philadelphia. They coordinated with the
Pennsylvania Convention, all of whom came
from Philadelphia, so they were already there. And they came up with a
proposal, known as the Virginia Plan, because it was introduced
by the Virginia delegation, which became the working
blueprint for the Philadelphia Convention. And it turns out where you start
influences where you end up. And even though Madison
lost on several issues that he cared deeply
about, the fact that the Virginia Plan
proved the starting point for the Convention’s
deliberation had a lot to do with how the
Constitution that they finally came up with on
September 17 looked. And the Virginia
Plan was extremely nationalist and anti-populist. Third, and this seems almost
like a fortuity, some delegates who had been appointed by their
legislatures– for example, Patrick Henry in Virginia,
Richard Henry Lee in Virginia, Samuel Chase in Maryland–
all these people would become leading
Anti-Federalists– that is, critics of the Constitution. They were all appointed
by their legislatures and they all decided not
to go to Philadelphia. Now, it’s dangerous
to generalize. I’m speculating here. Some of them offered
reasons, but we don’t really have any good way of knowing
why they didn’t show up. But one possibility,
it seems to me, is maybe they weren’t
interested in what they thought would be the mildly
nationalizing agenda that you would have predicted for
the Philadelphia Convention, and they had no idea that
there was a radical reform enterprise in the works. If they had suspected
it, maybe they would have shown up
to fight against it. They certainly fought against
it once the Constitution was proposed and was
up for ratification. Fourth, some delegates
who did go to Philadelphia and who opposed the
nationalizing and democracy-constraining agenda
made the dubious choice to leave early when they
thought the Convention was trending against them. So that’s John Lansing of New
York, Robert Gates of New York, Luther Martin of Maryland. They left early
mainly because they were losing in
Philadelphia and they didn’t want to legitimize
an enterprise that they saw as deeply illegitimate
because they thought the Philadelphia Convention
had been constrained by instructions from Congress. Yet it ripped up those
instructions basically on day one. Now, it’s always
a dubious choice. You see this happening all
the time in the world today. When a country’s holding
elections and the opposition says they’re
illegitimate, do you decide to participate, thereby
legitimizing the enterprise, but trying to defeat it? Or do you opt out,
thereby de-legitimizing it but enhancing the chances
that the final product is going to be something
that you like even less? Fifth, the delegates
in Philadelphia made the critical
decision to close the doors of the Old
Pennsylvania Statehouse, which is where they were meeting. They had good
reasons for doing so. Madison later
explained, and I think he’s right about this, that if
they hadn’t closed the doors, they probably wouldn’t have
gotten any Constitution at all. But one effect of
closing the doors was it liberated the
delegates to take extreme nationalizing and
anti-democratic positions that they would have feared
would jeopardize their careers if they were willing to
embrace them in the open. In addition, maybe
even more importantly, by shutting the
Convention’s doors, they made it harder for their
opponents to begin mobilizing. Basically they got a
four-month head start, which they wouldn’t have
gotten if the press were in the galleries and could
report on what was going on. And then sixth and
lastly, the delegates made the momentous
choice that they were going to go for broke. Washington and Madison had
exchanged correspondence before the convention
and each of them was egging on the
other, saying, we don’t believe in
temporizing expedience. We ought to propose
the form of government that we think is the best
form of government the United States could have. When Edmund Randolph, who
was the governor of Virginia, introduced the Virginia
Plan at the beginning of the Convention, this is
what Madison’s notes record him as saying. Quote, “He”– that’s Randolph–
“would not as far as depended on him leave anything that
seemed unnecessary undone. The present moment is favorable
and is probably the last that we’ll offer.” In sum, what they were
doing was they were saying, this is our last chance. Let’s go for broke. Let’s get the best
government we can get. Let’s not temporize, let’s not
adopt narrow reform measures. Let’s revolutionize the
structure of government and hope we can get the
country to approve it. So the last question
is, how in the world did they get the country
to approve this thing that was so dramatically different
from what most people probably expected and probably wanted? The first point to note
is we shouldn’t think it was inevitable that they won. It’s worth emphasizing
how close the battle was and how narrowly the
Federalists triumphed. So initially, Rhode
Island and North Carolina rejected the Constitution. And the New Hampshire
Convention would have rejected the
Constitution most likely, but the Federalists
shrewdly adjourned it. They’d gotten there
early so that they could play a role in adopting
the procedural rules. They managed to adjourn
it when they probably would have lost a vote. In addition, in several
of the largest states, the vote in favor was
so close that it’s easy to imagine that the
Federalists could have lost. So in Virginia, the
final vote was 89 to 79. In New York, it was 30 to 27. In Massachusetts,
it was 187 to 168. Those are very narrow margins. It’s easy to imagine
the vote coming out the other way in those states. Those are three of the
five largest states. If one or two of them had
rejected the Constitution, there’s a good chance
that it would have been impossible to form a union. So Federalists had a number
of advantages in the contest. It was not entirely
a fair fight. You might even say
the system was rigged. Federalists, first of
all, they benefited from malapportionment. This was especially an
issue in South Carolina, although it was an issue in
other states like New York as well. So the South
Carolina legislature was badly malapportioned. Population moved from east
to west, but people in power are rarely altruistic
about distributing away from themselves. So the legislature
never reapportioned. The coastal planners who were
the richest men in the country had huge slave holdings. They were the ones who
controlled the legislature and they were the ones who
controlled the Convention, and they were strongly in
favor of the Constitution. Those people who lived along the
coastal area of South Carolina were about 20% of
the white population and they elected
60% of the delegates to the Convention in Charleston. So right there it’s
likely the case, I think most historians
agree, that if you’d had a referendum
in South Carolina, there would have been
majority opposition. But instead, the
Convention ratified by a two-to-one
margin, demonstrating how malapportioned it was. Second, the press, call them the
media, overwhelmingly favored ratification. The media was clearly
biased on this question. Almost all newspapers
were published in cities, even though only about
10% of the population lived in cities at the time. That meant that
subscribers and advertisers played a disproportionate role. They were overwhelmingly
supportive of the Constitution. Any Federalist in
many states had a hard time even
getting their essays published in the newspapers. In the words of one of
them, Aedanus Burke, who was a leading
Anti-Federalist in South Carolina, quote,
“The whole weight and influence of the
press was on the side of the Constitution.” There are about 90 newspapers
in the country in 1787. Only 12 of them, 12
out of 90, published any significant amount of
Anti-Federalist literature. Third advantage of
the Federalists. Several conventions were
held in coastal cities. Charleston, South Carolina,
Philadelphia, Boston. In those cities, support
for the Constitution was almost universal, and that
was true across class lines. This would have an effect both
inside and outside of the state ratifying conventions. All of the conventions
were open to the public, unlike the Philadelphia
Convention. And spectators would attend
sitting in the galleries, and they were not shy about
making their opinions heard. In Connecticut, for example,
where Federalists dominated the galleries, they would
whistle, hoot, and stomp their feet while any
Federalists were trying to make themselves heard. And in South Carolina,
where the delegates would adjourn in the
evening to open houses that were held by members of
the eastern planter elite, you can be sure that they heard
nothing but positive things about the Constitution being
whispered into their ears. Fourth Federalist
advantage was simply the way in which
support and opposition was distributed geographically. The Federalists benefited
from overwhelming support in cities, such as they were. This is a country of
about 3.8 million people at the time of the 1790 census. The largest city
in the country is Philadelphia,
population of which was somewhere between
30,000 and 40,000. So there are no
cities like London, for example, which had 1
million people at the time. But such as they were, cities
overwhelmingly supported the Constitution,
and so did people living along the seaboard. This is an era of
primitive transportation and communication. It’s much easier to organize
people in cities and people who live along the coast. Most Anti-Federalists
came from western regions or from backwoods regions
closer to the coast. Very difficult, bad roads,
no real transportation other than horses. Very difficult to communicate. Therefore, the
Anti-Federalists, even if they had roughly the
same number of supporters as the Federalists,
simply had a harder time organizing their forces. Fifth, the better sort of
people, and both the better sort and their opponents
referred to these people as the better sort. The people who were
well-educated and well-born meant it as a compliment. The other side used it
sort of sarcastically, as if you think you’re a
better sort just because you’re well-born, but they didn’t
really necessarily acknowledge them as the better sort. But this better sort,
as they were called, overwhelmingly supported
ratification everywhere but in Virginia. In Virginia, the
elite was actually divided pretty much down the
middle, but not elsewhere. And that meant a significant
oratorical advantage for Federalists in ratifying
conventions to the extent that delegates came
with open minds. And that’s not true everywhere. In some of the conventions,
they didn’t have open minds, but in others they did. To the extent delegates
had open minds, backwoods farmers
could not possibly compete with these
well-educated elite Federalists who could quote Cicero
in the original Latin. They were often
intimidated out of trying to speak before their better
born and better educated opponents. So for example, at the
Massachusetts Ratifying Convention, one leading
Anti-Federalists, Amos Singletary,
complained of, quote, “These lawyers and men of
learning and money men that talk so finely and
gloss over matters so smoothly to make us
poor illiterate people swallow down the pill.” He’s being sarcastic. He doesn’t really think
of the Anti-Federalists as poor illiterate people. But you understand the extent
of the anti-elitism there. These people are
trying to sell us a bill of goods, these elite
lawyers, preachers, doctors, the well-educated elite. Final advantage for
the Federalists, which they created for
themselves, Article VII of the Constitution. Article VII provides that
once nine states have ratified the Constitution, the
Constitution goes into effect. Now, those nine states
can only bind themselves. No state can be bound
without its consent. Nonetheless, that’s
a significant shift from the Articles
of Confederation where unanimous state agreement
was necessary for any amendment to the Articles. Now, the Federalists
simply made this up. Nobody going into
the Convention would have thought that you
could change that rule that every state had to
consent to whatever was coming out of the Convention. Federalists simply
took a shot and hoped people would be willing
to accept it and they did. Now, why does this matter? Think about how you’ve
shifted the bargaining power from the Articles
to the Constitution for prospective holdout states. Under the Articles
of Confederation, a prospective holdout
state could try to bargain for better terms. So 12 states actually
ratified the amendment that provided for Congress
having the authority to raise import duties. New York was the lone holdout. And in the spring of 1786, New
York actually went to Congress and said, we’ll ratify this
on the following conditions, one of which is New York
wanted to be able to substitute its paper money for
the gold and silver that it raised as tariff duties. You can imagine the difficulty
this puts Congress in. Compare that with
prospective holdouts under the Constitution. Once the new nation
was up and running, if you didn’t ratify because
you were one of the four last states to do
so, you would not be protected by the
federal military, your trade might be subject
to discriminatory tariffs, and you would have no voice
in the first Congress, which was going to be deciding
critically important issues, like where are you going
to put the national capital and are you going to amend
the Constitution to include a bill of rights? All right, so I’m
almost done now. The Federalists also benefited
from some Anti-Federalist miscalculations, especially
in New York and Virginia, where the Anti-Federalist
had agreed and perhaps even had proposed that the
ratifying conventions be held late in the process. So the New York Ratifying
Convention and the Virginia Ratifying Convention didn’t
meet until June of 1788, even though the
Constitution went out to the country nine months
earlier, in September of 1787. They probably calculated, the
Anti-Federalists in Virginia and New York
probably calculated, that it would benefit them
to give them more time to organize their supporters. And they might have believed
that their states would exercise more influence if they
decided later in the process. But it turned out by doing so
they made themselves largely irrelevant to the outcome. Because by the time the
Virginia Convention met, eight states had ratified and
the New Hampshire Convention was about to reconvene. And the predictions
were almost universal that it would become the
ninth state to ratify. And by the time
New York ratified, 11 states, New Hampshire
and Virginia included, had already approved
the Constitution. New York actually had an
Anti-Federalist majority of more than two to one at
the ratifying convention, but New York still ratified
because once 11 states had already– 10 states, sorry, had
already put the Constitution into operation, they felt
like they had no choice. The last important
point to note. The Federalists managed–
I think this is important. This is something
that I learned as I was working on the process. So I think this is
speculative, but I think this point is right. The Federalists managed to
keep intermediate options off the table, and that
was a critical component of their success. So intermediate
options would have been a constitution
that was somewhere in between the obviously flawed
Articles of Confederation and the vastly more nationalist
anti-populist Constitution. That’s probably what most
Americans would have wanted. And the Federalists
desperately tried to prevent giving them that option. So the two main ways to have
gotten that option on the table would have been either through
antecedent amendments, meaning ratification conditioned
upon amendments, as opposed to ratification
with a promise that there would be
amendments down the road, or a second convention. Now, the Anti-Federalists
made pretty good arguments in favor of both of
these procedural devices. The argument for
antecedent amendments was you would have to be a
lunatic, to quote Patrick Henry, who was the leader of
the opposition in Virginia, you would have to be a lunatic
to approve a form of government on a promise that there are
going to be changes coming down the road, but nobody will tell
you what those changes are. Wouldn’t you insist before
you undertake a contract to know what the terms are? The Anti-Federalists’ argument
for a second convention was we just had a
first convention that operated in the dark
and that did something that nobody predicted. Now we’ve had a national debate. People have expressed
their concerns. Let’s gather all
that information, look at all the amendments
that have been proposed by the state
ratifying conventions, and now we’ll elect
new delegates who will go to a second
convention and write a different constitution
that’s closer to what most people want. The Federalists made both
legal and practical arguments as to why neither of
those procedural devices was possible. But I think the
real reason was they knew they could never
duplicate what the Philadelphia Convention had proposed. The cat was out of the bag. People knew now what
was on the agenda, and there was a good
chance that they weren’t going to support it if
they were given the opportunity to achieve something
closer to what you might call the median
voter would have approved. So for example,
consider Randolph proposing the following to
Madison before the convention. In correspondence,
Madison and Randolph, the governor of Virginia,
are talking about what the convention would do. And Randolph says, whatever we
propose, let’s do it in a form that the people can
agree to the provisions they like and disapprove the
provisions they don’t like. Madison was horrified
by that idea, and he ridiculed the notion
that the American public were informed enough to have
opinions on issues as important as governance. Here’s what he told
Jefferson later in 1787. Quote, “In Virginia,
where the mass of people have been so accustomed to
be guided by their rulers on all new and
intricate questions, the matter of whether to
ratify the Constitution certainly surpasses the judgment
of the greater part of them.” So to sum up, the
Constitution almost surely was more nationalist and
more democracy-constraining than most Americans expected
or would have wished for. The framers took advantage of
surprise to get it drafted. Then they barely got the
country to approve it. They benefited from some
advantageous circumstances. They benefited from some
good luck, some of which they created for themselves. And they benefited from
some miscalculations by their adversaries. Whether you agree or
disagree with what they did, whether you think
it’s legitimate or illegitimate, I think you have to admire
their skill at pulling off what I think can only be called
a coup against public opinion. So I left some
time for questions. [APPLAUSE] Sandy. AUDIENCE: Not surprisingly,
I look forward to reading the book. And I’m sure I will agree with
basically everything you say. But I’m intrigued by
literally your last sentence. Are you presenting
this book only as an historian full of very,
very interesting details and arguments about 1787, 1788? Or do you think it
has any implications for the way in 2016 we
should teach or regard the Constitution as a
foundational document? MICHAEL KLARMAN: So, people
can draw their own conclusions. I do talk at the
end of the book. I resisted the inclination
which I think a lot of people were pushing me to do is to
talk more about originalism and what sort of light
does the book shed on how we ought to interpret
the Constitution today. I’ve never thought originalism
was a very sensible way to interpret the Constitution. And when you look at
a lot of what went on in the Philadelphia Convention
and the ratifying contest, I think there are additional
reasons for why originalism doesn’t make a lot of sense. And those involved some things
I haven’t talked about at all today, like the extent to
which people were just pursuing their narrow interests. They weren’t really
dispassionately reflecting on political philosophy. But the state of
New York was trying to protect its advantages
because it has the best natural harbor, and therefore it
could impose import duties that were forcing surrounding states
like Connecticut and New Jersey to finance the New
York government. Because half of those
states’ consumption comes through New York Harbor. Or how Virginians in
the west are calculating if we adopt the
Constitution, we think the national government is
going to sell off our right to use the Mississippi River. But on the other hand, if we
don’t ratify the Constitution, we’re worried that we’re
going to be murdered by Native American
tribes that are starting to start a war against Georgia. They’re making
calculations that are all the sort of narrow calculations
that people make in politics. And it seems weird that 225
years later, a document that was written under
those circumstances and the ratifying contest
that was fought over in those sort of
ordinary political ways would make a lot of sense for
governing ourselves today. In addition to the fact
that they were elitist and they were racist
and they didn’t believe women should participate. I mean, it just seems
weird that people held such different values
and were confronting such different issues would
have written a document that makes a lot of
sense to interpret as it was originally written. But that wasn’t my point
in writing the book. The other obvious
connection today, which I alluded to
not too vaguely, is what do you think
about populism? The Tea Party,
obviously, they have that history exactly backwards. They should love the
Anti-Federalists. The Anti-Federalists are the
ones who are the Tea Partiers. They don’t believe
in national power, they believe in direct
democratic control. When I worked on this book,
up until the last year, I didn’t like that
aspect of the framers. I think that the debtor farmers
had really good arguments for pursuing the loose
fiscal and monetary policies that they did. You had a severe
economic recession. These people were
being wiped out. State governments were
raising higher taxes, forcing that you pay
in gold and silver when there was essentially
no gold or silver to be had. They were losing their farms,
which were being sold off, but they couldn’t get
fair market value. And the money was
going to pay off the war debt, which
was increasingly combined in the hands of
a few wealthy speculators. Literally when the debt
was funded under Hamilton, you’re talking about
200 or 300 people holding 2/3 of the state
and federal war debt, which most of them had bought
up at a fraction of par value. They’d often bought it from
these very farmers and soldiers who are now being asked
to pay higher taxes to pay off the debt
which speculators had bought from them. There’s a really good argument
in that context for loose fiscal and monetary policy. But the elite thought
these were a bunch of communist-inclined
farmers trying to redistribute property. And Shays’ Rebellion was an
effort to take over the state and redistribute wealth. And that’s not what it was. So I’m actually pretty
sympathetic to them. And the Constitution
was an effort to suppress that sort
of direct democracy. In the last year, as
Donald Trump inches closer and closer
to the presidency, populism doesn’t look so good. And the framers seem
pretty wise because what they said was democracy
will lead to a demagogue. That’s why we don’t
trust democracy. Most people are too
clueless about government. They’re too distracted,
they’re too ignorant, they’re not really going
to pay much attention, and you’re going to get some
smooth-talking demagogue who’s going to convince them that
he will deliver the world. And they thought it
was Patrick Henry, but they would have
identified Donald Trump if they’d had the chance. People laugh, but I’m
actually serious about that. I mean, if a democracy
means 40% or 45% of the country votes
for somebody who would be the most
dangerous president you could imagine
in our lifetimes, then democracy
doesn’t necessarily seem like such a good
idea if it leads to that. Now, of course, you can’t
say that or defend that as a political position today. I mean, if Hillary
Clinton says these are a basket full
of deplorables, you can’t do that
as a politician even though many of the
people who will vote for Trump obviously are deplorable. But you don’t call
voters names, not in a populous political system. I’m sorry. That’s the talk next Friday. Whether American democracy
can survive President Trump. AUDIENCE: I hope you
don’t give that talk. MICHAEL KLARMAN: I
was asked to give it. The students wanted it. AUDIENCE: I hope that it’s
not after the election that you’re giving the talk. MICHAEL KLARMAN: It’s
before the election. AUDIENCE: So I have
a two-part question. The title of the book,
The Framers’ Coup, makes it sound vaguely in the
genre of great men in history, that a few people
made this happen. And so I wonder if you
just comment on that. That’s the first
part of the question, whether there is something
peculiar about this time or whether that’s generally. The second part of the question
is, it’s a era in US history in which we all think
we know something about the leading players. And now that you focused so
closely on the leading players, who were the ones
who were underrated and who were the ones
who were overrated in terms of pulling this off? MICHAEL KLARMAN: I like that. I like that a lot. The short answer, a little
facetious but accurate, is the marketing people
take control of the title. So I was going to call
it something else. But I actually like the title. It’s not like they
foisted it on me. I was going to call it a
paraphrase of a Benjamin Franklin quote,
which was something like Passions, Prejudices,
Errors, and Interests– The Making of the
US Constitution. Franklin was saying that
these are great men, these are the greatest
men in the country. They’re extraordinary people,
but like everybody else, they have their own
passions, prejudices, errors, and interests. I think he said that on the
last day of the Convention. I like that, but they
said there are too many nouns in that title. The marketing people
want something else. I said to them, I was thinking
of writing a law review article called “The Constitution
Has a Coup Against Public Opinion” and they loved that. So I’m fine with the title. The great men, I do think it was
possible for a relative handful to make policy back then in
a way that wouldn’t be true today. But I don’t want to suggest
it’s just Madison and Hamilton. They’re stand-ins for
lots of other people, lots of well-connected, prosperous,
important local leading figures in the banking community. Lawyers, prosperous merchants. So I can name some
names, but I’m not sure these are sort
of second-tier people that you wouldn’t
have heard of today. But people like Jeremiah
Wadsworth of Connecticut. Henry Knox is an
important player. He probably rises
to the top tier. There are lots of those
people in Virginia, people who are Madison’s correspondents. But we’re talking about
hundreds of people. We’re not talking about
thousands of people. Yeah, I think in a way
that just isn’t true today. Look at how populist you are. You make law in California
through initiative and referendum. Donald Trump wins millions
and millions of votes to become the Republican
Party nominee. Compare that to the
Virginia legislature picking its most eminent citizens. Washington, Henry,
Mason, Lee, Madison. They just picked their most
famous, illustrious citizens. And they’re the ones who
went to the Convention and they’re the ones who
wrote the Constitution and they’re the ones
who tried to sell it. Now, at the state
ratifying convention, you’re talking about maybe
1,500 delegates at state ratifying conventions. And they’re voted
for by maybe several hundred thousand voters. So that’s what you’re
talking about back then. Underrated and overrated. So I love the question. Madison is extraordinary. Madison played a critical
role in all of this. The calling of the convention,
the convention itself. He was one of the three
or four leading figures. The Virginia ratifying
convention contemporaries all observed Patrick Henry is
the greatest orator of the age. He’s the leading opponent. Madison is doing yeoman’s
service in response to him. So Madison, probably
without his efforts, Virginia wouldn’t have ratified. Virginia was by far the largest
and most important state. Without Madison’s
influence, George Washington might have refused to
attend the convention. And Washington provided
enormous legitimizing force for the Constitution. And without Madison,
there clearly would not have been a Bill of Rights. That’s all him. So you read his correspondence,
just extraordinary. Same thing with Hamilton. Off the charts, brilliant. Taught himself public finance,
spending his spare time reading Adam Smith
and writing letters to Robert Morris, the
financier of the Revolution. Saying, I was reading Adam
Smith and he said this and I think New York could
provide this amount of taxes. Just off the charts
brilliant while they’re doing a million other
things with their lives. Washington is a unique figure. He is more influential
and more revered by anyone at any time in the
country’s history, I think. Maybe Eisenhower after
he wins World War II. Washington is unique. He’s going to provide
extraordinary legitimizing influence for the Constitution. Everyone assumes he’ll
be the first president. That provides
reassurance for people who are worried that
the president might become a monarch. Washington is important for
selecting wise men around him. Madison’s his principal adviser. He writes his inaugural address. He chooses Jefferson and
Hamilton for his cabinet. But if you read
Washington’s correspondence, he is not a distinguished
political thinker in the same way
those others are. And when he’s deciding to go
to the Philadelphia Convention, there’s this wonderful
correspondence between his former
aides Henry Knox and David Humphreys
and Washington. And when you look at
Washington’s calculations about whether I should
go to Philadelphia, they’re mostly
focused on he’s trying to preserve his reputation
and he’s very risk-averse. He’s not necessarily thinking,
how can I serve my country? Is this an important
thing to do? But more like, I have
this pristine reputation. I’m the Cincinnatus who
laid down his generalship to take up the plow. And am I going to be
risking people thinking I’m grasping for power? And is it going
to be successful? If it’s unsuccessful,
of course I’ll be chosen the president
of the convention, so I’m the one who’ll
get most of the blame. And it’s not a very
attractive picture. I’m thinking about should
I risk my reputation for the good of my country,
rather than this is a really important thing to do. I should lend my
service to the cause. So I wouldn’t say I’m not
impressed with Washington, but I’m a law professor. I like people who think
in analytical ways. And Madison and Hamilton,
Gouverneur Morris, James Wilson, those
guys are unbelievably sharp and impressive. You think about all
the other things they had going on in their lives. I’ll leave it at that. AUDIENCE: I’ve only
skimmed some of the things in the index about
Gordon Wood, but I was interested to see
that you had approved some of his beliefs about
the social implications for the founders. But I remember one
of the claims he made was that the Shays’
Rebellion didn’t actually contribute a lot
to the Convention because he said
the timing was off. But I saw that in
your book, you did think that Shays’
Rebellion was a large part. So I was wondering
if you had addressed that part of this argument. MICHAEL KLARMAN:
Gordon Wood said that? So I’m drawing on Gordon Wood’s
interpretation in general. So I’d give
tremendous credit for the conservative
counterrevolution interpretation. If he says that about
Shays’ Rebellion, and I read so many
different accounts I don’t remember who
says what, I think he’s pretty clearly mistaken. So one difference
is Gordon Wood is one of my favorite historians. What he did 45 years ago in the
creation of American republic is extraordinary. But remember none of the
documentary histories existed back then. So when Gordon Wood
did his research, he’s literally
traveling around by car to dozens of different archives. Whereas all of this stuff
now is combined in one place. Shays’ Rebellion was incredibly
important to the Convention. Now, obviously the
Convention was started before Shays’ Rebellion. They have this
Annapolis Convention, which is a meeting to try
to adopt commercial reform. That’s in September
1786, right when Shays’ Rebellion is starting,
and before it becomes a really serious affair. And Shays’ Rebellion is
then suppressed, finally, in February 1787. A bunch of states had already
signed on to the Convention. But it seems quite possible
that Massachusetts wouldn’t have gone, that New
York wouldn’t have gone, that Connecticut
wouldn’t have gone, and that Washington wouldn’t
have gone had it not been for Shays’ Rebellion. So there’s a lot
of direct evidence. And the timing there does fit. So New York and
Massachusetts haven’t decided to attend
until February, which is right after the apex
of Shays’ Rebellion, when the first people
were actually killed in a battle between the
militia that was put together to suppress the rebellion
and the farmers who were leading the rebellion. So I don’t even think Wood would
disagree with that anymore. It’s not that Shays’ Rebellion
is the only thing that matters. But Shays’ Rebellion is
turning the New England elite against democracy. Two years earlier,
the New England elite wanted to strengthen Congress
to regulate commerce, but they were not interested in
making the national government anti-populist. And by early 1787, Madison
and others are saying, can you believe
these New Englanders? They’re willing to
support a monarchy now. There’s direct evidence
making that point about how dramatically
the New England elite shifted their view in
the anti-populist direction. All right, so are we–? Yeah, one more. AUDIENCE: I’m just
curious because you talked about how the Anti-Federalist
elements were sort of isolated, were being manipulated somehow. I wonder if you can make a
counterfactual assessment of if the whole thing was taking
place in a media environment more similar to today,
with all the social media and all the radically
democratic media environment, how would it turn out? MICHAEL KLARMAN: So
there’s no way to know. And when I call it a coup
against public opinion, I always have to qualify. We don’t have Gallup polls. They didn’t do referenda. We don’t know for sure. Most historians
seem to be pretty comfortable with the
idea that the country was close to split down the middle. So if you imagine not
only the modern media, but also a modern mechanism
like a referendum. If the country had just had
one national referendum and you had a media culture where
everybody could read a copy of the Constitution. Although the problem
is it would be easy to make that
available to everyone. Whether people would
actually read it, people would get to be
getting their version of it from Fox News or
Rachel Maddow and so they think different things
about the same document. But if everybody read
it and then everybody expressed an opinion,
I think most historians are comfortable with
the idea that it would have split the country
roughly down the middle. But we don’t know for sure. I actually think from what
I’ve seen that maybe it would have been the
Anti-Federalists would have had a slight majority. But that’s just
really speculative. We just don’t know for sure. AUDIENCE: Hello. I have 23 questions. I’m kidding. Two questions. First one is, you
said that you have to give in in regards to the
title because of the marketing thing. Is there anything
that you have given in that you can share with us? We do not have media here. The first question. MICHAEL KLARMAN: Anything
else besides the title? AUDIENCE: Yeah, yeah. I mean that you can share. And the second one is
related to the framers. I haven’t seen the book yet. But have you thought of going
in even in the characters of the framers? Especially I mean in
their beliefs in regards to their Christianity? Thank you. MICHAEL KLARMAN: I only
gave in on the title because I didn’t have a problem
with the title that they wanted and they were treating the
book as a trade book, which means they’re
going to promote it not just as an academic book. And I thought if they’re going
to do that, they’re entitled to have a say on the title. Editors don’t do much anymore. I mean, you read these books
from Oxford University Press 30 or 40 years ago and
you get people thanking Sheldon Hackney, who is this
celebrated famous editor who actually edited their books. They just don’t do that anymore. I mean, I hired my own editor. They have somebody
who copy edits, but that’s just to
align with styles. So my view is the book has to
be exactly the way I want it when I send it to them,
because they’re actually not going to do very much. So Mindy illustrated it. Mindy my assistant went
and got the pictures. I wrote much of the
book description, which is embarrassing, because
the book description is just talking about how this
is the one and only comprehensive history
of the founding. But when they write
it, you don’t like it. So you have to rewrite it. But then it’s embarrassing
because you have to say those sort of things. My view is everything
I can possibly control, I want to, because they’re just
not as invested in the book as I am. So I didn’t give in
on anything else. I put in as many
pictures as I wanted. It’s nice to write
books about olden times, because there are no
copyrights anymore. So it costs a fortune
to illustrate a book. My Jim Crow civil
rights book, I was paying $300 or $400 a picture. But for this it’s
almost nothing. Religion’s interesting. So there are people who
opposed the Constitution on religious grounds. If you think about, for
example, Virginia Baptists, they’ve been persecuted
within the recent past by the established
Anglican Church. And yet the Constitution
has no provision for religious freedom. There is no Bill of Rights,
there is no First Amendment, there’s no free exercise clause. So Baptists in Virginia,
Baptists in Massachusetts, overwhelmingly opposed
the Constitution. I think because
they saw themselves as dissident sects that had
been exposed to discrimination. And the Constitution was
a step backwards for them. Ironically, some of
those same people opposed the Constitution because
it was too tolerant with regard to federal office-holding. This seems weird to us,
but the same Baptists in Virginia who
thought there ought to be a protection
for free exercise were troubled by the absence
of bans on office holding for Catholics,
Jews, and Muslims. So in many states
at the time, you could only hold
office if you were willing to affirm
that you believe in the Old and New Testament. Some states had
exclusions for Catholics. Some states only allowed
Christians to hold office. So some people actually
opposed the Constitution because it was too tolerant. And the reason why there are no
office holding qualifications is because a bunch
of the framers were actually pretty
separationist. So people like James
Madison, James Iredell, were willing to
defend the proposition that if you don’t
defend Muslims and Jews, tomorrow you won’t be defending
Baptists and Quakers either. And they also said you
can trust the citizenry. They’re not going
to elect Catholics and Jews to the presidency. Thanks a lot for
coming, everybody. [APPLAUSE]

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  1. "It would be as unnatural to refer the choice of President to the people as it would to refer a trial of colors to a blind man," declared Virginia delegate George Mason at the Constitutional Convention of 1787 (http://avalon.law.yale.edu/18th_century/debates_717.asp).

     The Constitution as an elitist counterrevolution to the burgeoning democratic zeitgeist of the 1780s is not a new thesis: Charles Beard, Gordon Wood, and Woody Holton each put their own spin on it. Michael Klarman, however, exemplifies the difference between 'vulgar Marxism' – in this case, reducing the Founders to greedy pocket-liners – and mature historical accounts which evaluate the granularity of underlying economic interests with due care and seriousness. The thicket of romanticism Klarman must machete through is so dense that he almost sounds like a radical. But how could any American not feel some sympathy for a bunch of broke farmers who, just having fought in a war for independence, demanded legislative debt relief during a period of severe crisis and hardship? From that perspective, the Constitution was the original revenge of the top 1%. Delegates at the Convention specifically designed it to keep ordinary citizens from playing a direct role in governing themselves, to suppress populist policies seeking wealth redistribution, to cut "an excess of democracy" off at the pass.

     Now that we've got a little distance on the last bovine nationalist swindle, we should permanently discard the hokey romanticism bandied about, by both the major party presidential candidates especially, regarding the founding of this country. Not because the existence of chattel slavery or the exclusion of women and property-lacking men or the dispossession of the nations already living here. Even fully acknowledging those crimes and others, the newly emancipated colonies enjoyed the most participatory democracy in the world – until, that is, Madison, Hamilton, and Washington staged their coup.

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