The Framers’ Coup: The Making of the United States Constitution
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The Framers’ Coup: The Making of the United States Constitution

August 27, 2019

>>From the Library of
Congress in Washington, D.C.>>Jane Sanchez: Hello, everyone. Welcome to the Law Library of Congress’s 2017
Constitution Day Program. Each year the Law Library
is happy to sponsor a talk, or somehow commemorate the event,
for the Nation’s Constitution Day. My name is Jane Sanchez. And I have the honor to serve
as Law Librarian of Congress. It is my pleasure to welcome
each and every one of you today. Please note that today’s program is
being live streamed on the Library of Congress’s Facebook page
and the YouTube channel, so all remarks including comments and questions will be
captured on the video. Also, if any of you have cell
phones, please silence them now. Constitution Day, officially
known as Constitution Day and Citizenship Day, is observed
each year to commemorate the signing of the U.S. Constitution
on September 17, 1787. Constitution Day recognizes all
who, excuse me, Constitution Day, and I quote, recognizes all who, by
coming of age or by naturalization, have become citizens, end
quote, of our great Nation. We can thank Senator Robert
C. Byrd of West Virginia, who included key provisions
designating September 17th as Constitution Day
and Citizenship Day in the Consolidated
Appropriations Act of 2005. Who said budget acts don’t also
include something important? The Act required all public
schools and governmental offices to provide educational
programs in an effort to promote a better understanding
of the U.S. Constitution. For the Law Library of Congress,
excuse me, for the Library, the Law Library annually develops a
program or talk to honor the history of the U.S. Constitution,
and the freedoms that the Constitution grants
to all American citizens. The U.S. Constitution,
signed 230 years ago, has undergone many amendments. However, it remains the longest
surviving charter of government to inspire democratic
ideals, and principles of freedom throughout the world. In fact, in 1791, the Polish
Constitution was the first European Constitution adopted after
the American Constitution. Established May 3rd,
1791, less than two years after the U.S. Constitution, it
reflected the American ideals of equality, federalism
and individual liberties. Ultimately it inspired democratic
changes throughout Europe. And now a little bit
about the Law Library. The Law Library of Congress, with
more than 2.9 million volumes of American, foreign and
international legal materials, is often called upon
to assist countries that are writing their
constitutions. For example, in 2016, we
provided legal research to the Sri Lankan Parliament as they
prepared to write a new constitution as they regrouped after a civil war. Likewise, the Law Library has worked with legislators in
emerging democracies. For example, we have
provided legal research to the House Democracy Partnership, a commission of the U.S.
House of Representatives. So it is quite fitting that we
are hosting the Library’s Annual Constitution Day Program. Although we’re a little
early this year since it officially
is September 17th. And now I’d like to
introduce our speaker. We are honored today to host Constitutional Law Professor
Michael J. Klarman, the Kirkland and Ellis Professor of
Law at Harvard Law School. Professor Klarman has won
numerous awards for his teaching and scholarship in the
areas of constitutional law and constitutional history. He has written a number of
books including “From Jim Crow to Civil Rights: The Supreme
Court and the Struggle for Racial Equality,” which won
the 2005 Bancroft Prize in history. Today Professor Klarman will
describe how the Framers drafted and ratified the Constitution,
despite many clashing interests. He has documented this in his
new book “The Framers’ Coup: The Making of the U.S.
Constitution,” which is an Oxford University
Press publication, 2016. Professor Klarman’s
book is available for purchase just outside the room. At this time, please join me in welcoming Professor
Michael Klarman to the stage. [ Applause ]>>Michael Klarman: Thank you. Happy Constitution
Day almost, everybody. I bring you warm greetings
from Red Sox Nation. I’ve heard you have a
decent baseball team in Washington this year. Hopefully, we’ll see
you in the World Series, at which point I will cease
wishing you good luck. I’m going to talk about three
different, I’m going to talk about two different things today. First, I’m going to give you
sort of three explanations for why I thought this
book was worth writing. And then I’m going to tell you
three things about the book that I hope hang together. So three reasons for writing this
book, which originally was going to be something very different. There’s been some terrific
scholarship written about the origins of the
Constitution, ratification, the Philadelphia Convention. But nobody’s actually told
the story in one place. So there’s no place that
you could go to to read within two covers a book about
the problems with the Articles of Confederation, a book that talks
about the conflict over fiscal and monetary policy in the states, talks about the Philadelphia
Convention, discusses the struggle over ratification, the differences
in ideas between the antifederalists and the federalists, and
then the Bill of Rights, which as you may know
came two years later. So one thing that I’ve
tried to do is I’ve tried to condense a huge body of
scholarship into one volume. Second, I’ve tried to tell the
story to the extent possible in the words of the participants. I did that both because I think
it makes the story more vibrant, but also because I think
it enables people to decide for themselves whether
they’re convinced by the interpretations that I offer. It’s only possible to do this because of the extraordinary
documentary histories that have been created in
the last 30 or 40 years. So people have literally
ransacked the world looking for every newspaper article, diary
entry, piece of correspondence that relates to the
making of the Constitution. And that stuff has been digitized
in the last 15 or 20 years. So it makes it possible
to do something that would have been I think
almost impossible just a generation or two ago. And then, third, and finally,
I’ve tried to put a sharper edge to a story that’s been
out there for a long time, and that I basically agree with, which is that the Constitution
is a kind of conservative counter-revolution
against egalitarian and redistributed forces that
were set in motion or accelerated by the Revolutionary War. So I’ll say a little bit as I go
along about how exactly I’m trying to put a finer edge on
that interpretation. But that interpretation I
don’t claim any originality for putting it forward. It’s been around for a long time. And, as I said, I mostly
agree with it. Okay. So I’m going to now
talk about three points that are made in the book. First of all, this first
point has two sub-parts. I apologize for this. I’m a lawyer. I tend to think in
lots of subcategories. Two points to the first part. I’m going to tell you two ways in
which the Constitution differed from what most people probably
wanted the Philadelphia Convention to do, and certainly expected the
Philadelphia Convention to do. Those two different ways were
the Constitution is much more nationalizing, by which I mean
simply shifting power from the state and local level to
the national level. And then second, the Constitution
is democracy constraining or antipopulist. And I’m going to use those
as synonyms for one another. By those terms I simply
mean the people who are writing the Constitution
don’t want direct democratic influence to be as powerful at
the national level as it’s been on the state level in the 1780s. Second point that I’m going
to try to explain how it was that the Framers in Philadelphia
were able to write this constitution that was so different from what
most people wanted and expected. And then third, and to me in
some ways most interestingly, how in the world did they get
the country to approve this thing in what was a fairly
democratic process? Now to call it a democratic process
we immediately have to qualify that. It’s not democratic from
our perspective today. Women weren’t participating
in politics. Most African-Americans were
enslaved, even those who were free, not necessarily allowed to vote. Every state had property
qualifications, so people who don’t own real
estate are not participating. Doesn’t sound that democratic to us. But situating it within
its historical context, the United States had the
broadest suffrage of any country in the world, probably
to that date in history. So it’s fairly participatory
from that perspective. And the question is, why would
people ratify a Constitution? One important point of which,
as I’ve already suggested, was to take away direct populist
influence from the people. Okay. So I’m going to start by briefly describing the
nationalizing features of the Constitution. Then I’ll talk about the
antipopulist features. First of all, the Constitution gives
the national government virtually unlimited taxing authority. Now that doesn’t sound that striking
to us, but you have to compare it to the relevant baseline, which
is the Articles of Confederation, which was the document that governed
the country before the Constitution. Under the Articles of Confederation,
Congress had no taxing power. It simply had a power to issue
requisitions, which are just like they sound, they’re
requests for money, which the states might
or not comply with. Usually they didn’t. And Congress had no coercive force
to ensure the implementation, the effectuation of
these requisitions. Under the Articles there
had been proposed amendments to give Congress a very
limited taxing power, basically the authority
to impose import duties. But those amendments
have been defeated. So you’re moving from no
taxing power to a proposal for very limited taxing power to
the Constitution that provides for almost unlimited
taxing authority. Second point, the Constitution
authorizes Congress to raise armies, create a navy, call state
militia into federal service, virtually without restriction. Now, again, you need to
compare that with the Articles. Under the Articles Congress could
requisition troops from the states. But, again, that was a request. And Congress could do nothing
if states decided not to comply with such a requisition for troops. So now you have Congress
that can raise an army, not only during wartime, but
during peacetime, with no limits as to number, no limits
as to duration, no limits as to whether they have
to get a supermajority commitment in both houses of Congress. That’s an extraordinary shift in
power to the national government. Especially given at
the time they thought that standing armies were
potentially very dangerous to liberty, because the executive
might use a standing army not to fight the enemy, but rather to suppress political
dissidents, for example. Third, the Constitution gives
Congress unlimited authority to regulate foreign and
interstate commerce. There was nothing like
that granted to Congress under the Articles of Confederation. Fourth, Congress has implied
powers under the Constitution. Under the Articles
of Confederation one of the Articles expressly provides that Congress may only
exercise those powers that are expressly delegated. Whereas, under the Constitution, the Constitution clearly
authorizes implied powers. So those of you who are
familiar with the Constitution, Congress’s powers are listed
in Article I, Section 8. There’s 17 specific grants of power. And then there’s an
18th that provides that Congress also has the authority
to pass laws that are necessary and proper to the implementation of
the other powers of the government. That is an explicit
authorization for Congress to exercise implied powers. That was an intensely controversial
provision in the ratifying contest. It was agreed to at the
Philadelphia Convention, virtually without dissent. Fifth, and finally, the
Constitution supplies a mechanism for the enforcement
of federal supremacy. For example, a mechanism
that would enable Congress to implement treaties which are
clearly within the authority of the Confederation Congress, but which the Confederation
Congress had no effective way of implementing. Madison had proposed at the
convention one particular mechanism for establishing federal supremacy. He would have given the
national government the authority to veto any state law
that it felt like vetoing. Now that was too nationalist even for this very nationalist
group of delegates. Instead they came up with
a three-part provision for establishing federal supremacy. Part one is the Supremacy Clause, which is in Article VI
of the Constitution. It makes it clear that federal
law of any sort, the Constitution, federal statute, federal
treaty is supreme over state law to the contrary. Second, the Constitution
creates a federal court system. There were no federal courts of general jurisdiction
under the Articles. Under the Constitution there is a
United States Supreme Court created by the Constitution. And Congress is authorized,
but not required, to establish lower federal courts. So the idea was now you’ve got an
explicit grant of federal supremacy, and you’ve got federal
judicial officials who will enforce that
federal supremacy. And then the third provision
is a Substantive Rule of Law. It’s in Article I, Section
10 of the Constitution. And it limits state governments. It says no state shall
make anything, but gold or silver legal tender. And it provides that states
shall not impair the obligation of contract. That was directly addressed
to relief legislation, economic relief legislation, paper
money laws, debtor relief laws, which states had been passing,
a majority of states had passed, in the mid-1780s in response
to a severe economic downturn. Modern historians, economic
historians regard the mid-1780s as the worst economic period
in the country’s history, other than the Great Depression. A majority of states that
enacted relief legislation, most of the Framers
regarded that legislation as almost an official form of theft. You were stealing property
from creditors, redistributing it to debtors. And they wanted to suppress
that through the Constitution. But it’s important, I think it’s
worth taking note of the fact that a majority of states had
passed these laws in the mid-1780s, yet the Philadelphia
Convention unanimously voted to suppress them in
the Constitution. That right there should
tell you something about how unrepresentative
the convention was of opinion in the country. All right. So those are the nationalist
provisions. Now let me turn to the antipopulist
provisions in the Constitution. The provision I just
mentioned is both. Article I, Section 10 is
both an antipopulist measure, but it’s also a nationalizing
measure, because it’s now shifting to the national level, the rule
that states are not allowed to pass populist economic
relief legislation. Other than that though, let me
mention a couple of other mechanisms for ensuring that the national
government remains largely immune from populist pressures. First were long terms in office. This is both relative
to the Articles and relative to state constitutions. Under the Articles congressional
representatives served one-year terms in office. Under state constitutions the Lower
House of every state legislature but one had annual terms in
office, or more frequent elections. Two New England states actually held
their elections for the Lower House of the legislature every six months. A majority of states had governors
who served annual terms in office. Some state senates had
annual terms in office. As you know under the U.S.
Constitution congressional representatives serve two
years, senators serve six years, presidents serve four years. Most of the delegates actually
wanted to go even further in extending the term in
office for state delegations, not delegates from individual
states, for state delegations voted at one point for lifetime
tenure for the president. There’s a scary thought for you. Donald Trump as a lifetime
president. Many delegates wanted
senators to serve nine years. Madison favored nine years,
rather than six years. Hamilton wanted senators and
presidents to be lifetime-tenured. He thought that was the only way that you could adequately
protect property rights in a representative
form of government. They made concessions to
the need for ratification. That’s why they reduced the terms in
office to two, four and six years. Second, the Framers
adopted indirect elections, both for senators and presidents. As you may know, senators were
elected by state legislatures for the first 125 years
of the republic. That remained the case until
1913 and the 17th amendment. Presidents were, and still are,
selected by electors who are chosen by a method specified
by state legislators. Today we assume that
means popular election. That’s not what the Framers assumed. And that’s not what lots of states
did at the time of the founding. Rather state legislatures
would just choose the electors. It didn’t matter. Nobody was voting for president. State legislators chose electors who then independently
deliberated and chose the president. The reason for that is they
distrusted the people to play a role as important as choosing the
nation’s chief executive. George Mason, who was an important
delegate from the state of Virginia, said at the Philadelphia
Convention that, quote, it would be as unnatural to refer
the choice of a proper character for chief magistrate, meaning
president, to refer that choice to the people as it
would be to refer a trial of colors to a blind man. Think about that. Think about running for office
sometimes on that platform. Right? The people can’t
possibly be trusted to choose their chief executive. They’d be like a blind man
choosing between colors. The Framers also insulated
even the House, which obviously was the most
populous branch, direct election of congressional representatives who would serve two-year
terms in office. But they even structured the House so that it would be
significantly insulated from direct popular opinion. First point is they created a very
small House of Representatives. That meant that individual
congressmen would be elected by very large constituencies. Now not like today. Today a House member
represents six or 700,000 people. Back at the time of the founding,
it was more like 30 or 40,000. But you still need to compare
that to like a state legislator in Massachusetts who might have
represented 14 or 1,500 people. So you’re talking about the
constituency 20 times as large for the House as it would
be for the Lower House of Massachusetts Legislature. Right? Very large constituencies
over fairly large geographic areas. The point of that was twofold. First of all, they would ensure that the quote-unquote better
sort would be elected to office. People who were well known,
had larger reputations, were more affluent,
large property owners. They would be more likely to be
elected from large constituencies. And in addition the larger the
constituency the greater the physical and metaphorical
distance between a representative and that representative’s
constituents. So the original house
was 65 members, compare that to the Lower House
of the Massachusetts Legislature, which was over 300 delegates. Three hundred for a
Massachusetts State Legislature. Sixty-five for the entire country. Next point, along the
same dimension, the Constitution actually authorized
Congress implicitly to ensure that the constituencies for
Congress were even larger. So Article I, Section 4 of
the Constitution provides that Congress can change state
regulations for the time, place and manner of
federal elections. That may sound complicated. But what they really had in mind,
or at least part of what they had in mind, was that Congress could
say to a state legislature, “We insist that you elect your
congressional representatives at large, rather than by district.” So Virginia, for example, was by
far the largest, most powerful, most important state at the time. The founding Virginia
had ten representatives. And today we assume they have to
be in district constituencies. You break down Virginia into ten
different district constituencies. The Framers apparently contemplated
that Congress could and would say to Virginia, “You need to elect all
ten congressional representatives from the entire state.” That is, you give every
Virginian ten votes. Give them a list of people. And every Virginian votes
for every representative. That, of course, would be an
even more enormous constituency where you would be even more likely to get the quote-unquote
better sort elected, and where they would
be even more insulated from the direct supervision
of their constituents. Finally, the Constitution omits
provision for instruction recall and mandatory rotation in office. Each of which I’ll
mention in a second, I’ll elaborate on in a second. But the key point here
is under the Articles of Confederation these
things existed. Under state constitutions
they often existed. But the Framers consciously
left them out of the federal Constitution. Instruction is pretty
much what it sounds like. It’s a mechanism that
allows constituents to instruct their representatives
how to vote. It would be sort of a modern
analog would be referendum where people actually get to
vote directly on legislation. They didn’t have that, for
the most part, back then. But a New England town meeting
could say to its representative, “We want you to vote this
way on raising taxes, or that way on declaring
independence from Great Britain.” And if you didn’t do what your
constituents had instructed you to do, you’d be morally
obliged to resign your seat. The Constitution doesn’t
provide for that. Recall. Under the Articles of Confederation congressional
representatives served one year in office. But during that year, at any
point, they could be recalled by their state legislatures. So you can be sure that congressional
representatives did the bidding of their state legislatures, or else they would be
immediately removed from office. The Constitution doesn’t
provide that. And mandatory rotation, which again
is just like it sounds, term limits. Under the Articles you could only
serve three out of every six years. After serving those three years,
you were rotated out of office. That’s a way to prevent officials
from getting entrenched in office. Okay. The Constitution
avoids those three democracy-enhancing provisions. And it includes these other
democracy-constraining provisions. And the reason why is
not really a mystery. It’s because they want the federal
government not to be susceptible to the populist political impulses
that have overwhelmed the states in the mid-1780s, and they want
the national government to be able to shut down state debtor relief
legislation, if any state tries to pass it again going forward. Okay. So that’s the
first part of my talk. The second part is explaining how
the Philadelphia Convention managed to do these things
that were different from what most people
expected and probably wanted. One leading contemporary
critic of the Constitution, I’m going to call them
antifederalists, which is what they
were known at the time, the people who opposed ratification,
one leading antifederalists said, and I think this is largely
accurate, quote, the democratic and aristocratic parts of the community were
disproportionately represented in Philadelphia. And the question is why. Why were the democratic parts and the aristocratic parts
differently represented in Philadelphia? Here are several discrete points that together maybe add
up to an explanation. And when I said at the beginning
of my talk that I was going to try to put a finer point on this
traditional interpretation of the Constitution as a
conservative counter-revolution, this is where I want to
put the finer point on it. I don’t think anybody has
sufficiently explained why the Philadelphia Convention
was so unrepresentative, and then how did they manage
to convince the American people to ratify something
that would deprive them of significant influence
over the national government. So here are a few points. First, state legislatures
elected the delegates for the Philadelphia Convention
in every state but one. In South Carolina the
governor picked the delegates. And Rhode Island actually didn’t
send delegates to Philadelphia. But in the other 11 states
legislatures chose the delegates. And the question is, how did
they choose the delegates? And the answer seems to be they
simply chose their most eminent, well-known, large reputationed
citizens. So in Virginia they send George
Washington, they send George Mason, they send James Madison, the
governor Edmund Randolph. In Pennsylvania they’re going to
send, probably the most famous man in the world, Benjamin Franklin. They’re sending their
most eminent citizens, people who have large reputations. The legislatures were
choosing people who were well-known,
eminent citizens. And usually the way you would
acquire such a reputation is either through having served in the Confederation Congress and/or
serving in the Revolutionary Army. A majority of delegates had served
in the Confederation Congress. And a majority of delegates had
served in the Revolutionary Army. If you think about it, both
of those are profoundly nationalizing experiences. If you served in the Confederation
Congress, you’re used to thinking in national terms, rather
than parochial terms. And serving in an army that
creates a nation is a profoundly nationalizing experience. You just fought and risked
your life to create a nation. And in addition many
people who served in the Revolutionary Army actually
learned to distrust the states. For example, George Washington or John Marshall, the
Great Chief Justice. Their biographers talk about
how their experiences serving in the National Army, where
they saw the states often as being obstructive, refusing
to ante up men, refusing to ante up money, it turned them
into nationalists for life. In addition these people
of large reputation tended to be well-educated, fairly
affluent, large landowners. Those characteristics
correlate pretty closely with not being a big fan of
populist influence on government. Second, the opponents of a nationalizing antipopulist
project really had no reason to mobilize in advance against that
agenda, because they had no reason to suspect that that’s what the
Philadelphia Convention would be up to. It turns out that the agenda of the Philadelphia Convention
mostly existed in the head of one man, James Madison. Now that’s not because
Madison was one of the most eminent
people in Philadelphia. He was 35, 36 years old. He had served in the
Confederation Congress. He had served in the
Virginia Legislature. He was well-regarded. He was obviously quite brilliant. I think people liked him. But he was not a formidable speaker. Often the reporter in a
legislative session had to write down when Madison was talking
could not hear what he said. He was sickly. He did not have a commanding
presence. He was not large like George
Washington, Thomas Jefferson. Madison played a large role because he was the best
prepared man in the room. One of the delegates who did
character sketches of the others in Philadelphia, that’s
what he said about Madison. Always the best prepared
person in any debate. Madison was the only one who had spent the months before
the Philadelphia Convention systematically analyzing the history
of ancient and modern confederacies, diagnosing the problems
that they tended to suffer from, and
proposing solutions. So Madison did that. Then he came up with his
ideas for the convention. He coordinated among his Virginia
co-delegates telling them to show up early in Philadelphia. They did arrive early. And they spent a couple
hours every day talking through their ideas
for the new government. They coordinated with the
Pennsylvania delegates, conveniently all of whom
lived in Philadelphia, so they were already there. And together these two large
states, the three largest states at the time were Virginia,
Pennsylvania and Massachusetts, so Pennsylvania and
Virginia they’re there early. They’re the two largest states. They’re coordinating on a fairly
nationalist antipopulist agenda. And it gets introduced the
first day of the convention. It’s called the Virginia Plan in
honor of the Virginia delegates. And it turns out that that
proposal was very nationalist and antipopulist. Now Madison didn’t win on everything
he wanted in Philadelphia. Indeed he lost on a lot of
things he cared a lot about. But obviously where you end
up depends on where you start. And they started on
a very nationalist and antipopulist point
on the spectrum. Third, some appointed delegates,
about eight or ten of them, decided to turn down
their appointments. Now some of them intriguingly,
like Patrick Henry of Virginia, Richard Henry Lee of Virginia,
Samuel Chase of Maryland, they actually became
leading antifederalists. They were appointed to the
Philadelphia Convention. They didn’t go. And then they became leading
opponents of ratification. Now it’s hard to know exactly why
they didn’t go with some of them. We don’t have any evidence. With others we have the
evidence what they said. But it’s not entirely clear
that we ought to credit that. It’s a fairly small sample size. So it’s dangerous to
speculate and generalize. But I would simply offer what is
candidly a piece of speculation. One possibility is
these people didn’t go because they had very
little sympathy for the mildly nationalizing
project they thought was under way. They didn’t have any interest in it. But they also didn’t have any
reason to rally against it. But they didn’t know
what was really going on in Philadelphia was a fairly
revolutionary reform project. And if they’d known about that, they
might have gone to fight against it. But they didn’t know that
was what was going to happen. And they weren’t interested in what
they thought was going to happen. So they didn’t go. Fourth point, there was a decision
made by some delegates who did go to the Philadelphia Convention,
didn’t approve of its nationalizing and antipopulist direction
to leave early. This is people like Robert Yates
and John Lansing of New York. That when they left that deprived
the New York delegation of its vote, because it left only
Alexander Hamilton, who was the most nationalizing
antipopulist of them all. But under the rules one delegate
couldn’t vote for his state. So once Yates and Lansing went,
that nullified New York’s vote. Luther Martin was another one of
these who left the convention early. And then became one of the leading
antifederalists in Maryland. Now you can understand
why they left. Their point was the Philadelphia
Convention was ignoring its instructions. It was doing something illegitimate. And they didn’t want to confer
legitimacy on it by staying. But, of course, it’s always a
very difficult choice to make. You can walk out and try to delegitimize the project you
disagree with, or you stay and fight against it, and try to
make it less objectionable. They chose to leave. And in retrospect, that
was probably a mistake. Fifth point, the delegates made the
critical decision to close the doors of the Philadelphia Convention. Now they had good reasons
for doing so. Madison said later, and I
think this is probably right, if they hadn’t done this, they
might not have been able to come up with any Constitution at all. But one effect of closing the
doors was it liberated delegates to take very extreme antipopulist
and nationalist positions. Positions that might have endangered
their subsequent political careers if they were making these statements
with the press in the galleries. And in addition, and
maybe more importantly, closing the convention meant
that the antifederalists, the people who were going
to oppose the Constitution, actually were deprived of about
four months of rallying opposition. The convention was meeting from
about May 25th to September 17th. And if the antifederalists
had known what was going on, they could have started immediately
organizing their opposition. But in fact they didn’t know until
the convention unlocked its doors and issued its report
on September 17th. Last point along these lines, the
delegates made a momentous choice in Philadelphia that they were
going to seize the moment. Leading up to the convention,
Madison is writing letters to his Virginian compatriots, his
mentors, Washington, Jefferson, his friend Edmund Randolph,
who’s the governor. Madison is airing his ideas. He’s thinking through his
ideas by talking about them. And in his letters with
Washington they find to their mutual satisfaction
that they agree that the convention should
not pursue what they call “temporizing expedience.” They actually want the convention
to do something more radical. Go and write the best form of government you think you can
get ratified, give up on the idea of incremental reform, do
something more drastic. When Randolph introduces the
Virginia Plan, which he gets to do because George Washington is
immediately appointed president of the convention, that makes
Randolph the most senior Virginian, he’s the governor, he
introduces the Virginia Plan. And according to Madison’s
notes, this is what he said. He, Randolph, would not as far as
dependent on him leave anything that seemed necessary undone. The present moment is favorable and is probably the
last that will offer. So they went for broke. This was their last
chance to get the form of government they really wanted. They were not going to pursue
temporizing expedience. They were going to pursue some
sort of more radical reform. Always taking into account
that whatever they were to come up with had to be ratified. So they did trim their
sails to some extent to ensure a likelihood
of ratification. But they weren’t just going
to make a few small changes. They were going to radically
overhaul the government. Okay. So how did they
get this thing ratified? The third part of my talk. How’d they get this ratified
when it’s so different from what most people were
expecting and probably wanting? The first point to note
is not an explanation. It’s simply a point of emphasis. You shouldn’t assume
this was inevitable. In fact it was a highly
contingent series of events that enabled the Constitution
to be approved. It almost failed. Two states rejected ratification
before later changing their minds. That’s Rhode Island
and North Carolina. New Hampshire, at its first
convention, probably was inclined to vote “no,” but the federalists,
the supporters of the Constitution, had deftly arranged for the
convention to be adjourned when they saw they
were going to lose, and they could come back several
months later and fight again. And in addition in three
of the five largest states, the vote was so close that
it’s obvious it could have come out the other way. So in Virginia the vote
was 89 to 79 in favor. In New York it was
30 to 27 in favor. And in Massachusetts it
was 187 to 168 in favor. Those are three of the
five largest states. If one or two of them had
rejected the Constitution, it’s doubtful that the Constitution
could have successfully gone into operation, even if nine states,
which was the number specified in the Constitution
to make it effective, even if nine states had
ratified, you couldn’t do without Virginia and Massachusetts. Two of the three largest states. All right. So how did the federalists
manage to win this battle? And the answer is, first of all, they actually had a bunch
of built-in advantages. This is not a rigged system. It’s not scam. But it just turns out for
reasons that I’ll elaborate on it, wasn’t entirely a fair fight. It wasn’t entirely an
even playing field. First, the federalists’ advantage
were advantaged by malapportionment in some state conventions,
especially South Carolina. In South Carolina 20%
of the white population, and remember obviously only
the white male population, and only those who own a significant
amount of land are voting, although I don’t want to make it
sound like it’s as exclusionary as it would have been in Britain
at the time, probably 50 or 60% of adult males in South Carolina
could participate in the voting for the Ratifying Convention. Twenty percent of the
population lives in coastal areas along
the Atlantic seaboard. Support for the Constitution
is very strong in those areas. And that 20% elects
60% of the delegates at the Ratifying Convention,
because of malapportionment. Basically as the population
moved from east to west, the legislature didn’t
reapportionment, because people who have political power tend not
to be altruistic in sharing it, so this has been a story
throughout American history. You get malapportionment as
people move either from farms to cities, or from east to west. So a majority of the
population in South Carolina, according to most historians,
oppose the Constitution. But because of severe
malapportionment, two-thirds of the delegates at the South Carolina
Convention voted in favor. Second, the press overwhelmingly
favored ratification. Ninety percent of Americans lived
outside of cities in 1787, 1788. But newspapers, for
obvious economic reasons, were published almost exclusively
in cities where subscribers and advertisers, the two economic
engines of the newspaper industry, tended to be overwhelmingly
supportive of the Constitution. Any federalists, again
the opponents, had a hard time even getting their
essays reprinted in many states. Aedanus Burke, who was a leading
antifederalist in South Carolina, complained that, quote, the
whole weight and influence of the press was on the
side of the Constitution. Only about 12 of the 90
newspapers then in circulation in the country published
any significant amount of antifederalist literature. Right? So it’d be like today having
a debate about some political issue, and you’ve only got Fox News. You’ve got nothing
on the other side. Third, several conventions were
held in coastal cities where support for the Constitution tended to be
almost universal across class lines. So, for example, in New York we
know 19 out of every 20 voters who was participating
in electing delegates to the New York Convention,
19 out of every 20 voted for a federalist delegate. This had an effect, this
overwhelming support for ratification, in
these cities where many of the conventions were held, had
an effect both inside and outside of the state ratifying conventions. All of the ratifying conventions
were open to the public, unlike the Philadelphia
Convention, which was closed. That means that the galleries tended
to be dominated by spectators. And, because these were cities,
they tended to be dominated by federalist speakers, federalists
spectators, who were not shy about voicing their opinions. So when any federalists
would get up to speak in the Connecticut Convention,
they would be his staff, they would be booed, people
would stomp their feet, making it difficult
for any federalist even to get their opinions voiced. Outside of conventions, for example, in South Carolina the
local planter elite, which overwhelmingly
supported the Constitution, which tells you something
about their perception of the Constitution,
strong support for slavery, they would hold open houses at
their homes during the duration of the South Carolina Convention. They would adjourn to their homes after the day’s deliberations
were over. And you can be sure that they
were whispering into the ears of the delegates positive things,
glowing praise for the Constitution. Fourth point, fourth
federalist advantage, federalists just had an easier
time organizing their supporters. People in cities tended
to be federalists. People close to the Atlantic
seaboard tended to be federalists. This is an era of very rudimentary
transportation and communication. People on the western frontier
tended to oppose the Constitution. People in backwoods’ areas that were
removed from commercial connection, remote from roads, they tended
to oppose the Constitution. Even if you assume that federalists
and antifederalists were about equal in number, which might be
about accurate to assume, the federalists would simply have
an easier time organizing their supporters than the
antifederalists would. Fifth point, the “better sort” as
they called them, the well-educated, reasonably affluent elite, overwhelmingly supported
ratification everywhere but in the state of Virginia. In Virginia the elite was
actually split down the middle. But in other states the elite
overwhelmingly supported the Constitution. That was a big advantage
for federalists in those ratifying conventions
where delegates were actually open to having their minds
changed, which was some of the conventions and not others. Backwoods’ farmers could not quote
Cicero in the original Latin. They were often intimidated by
their oratorically more gifted, better-educated opponents. For example, at the Massachusetts
Ratifying Convention leading antifederalist, Amos Singletary,
complained of, quote, these lawyers and men of learning and moneyed
men that talk so finely and gloss over matters so smoothly to make
us poor illiterate people swallow down the pill. Right? Anti-elitism 225 years ago. The last of the advantages
of the federalists, and then I’ll mention a couple
other points and I’ll be done, and I’m happy to take some
questions, the genius of Article VII of the Constitution was a huge
advantage for the federalists. Nine states under Article VII could
put the Constitution into operation. Although no state could
bind any other. Now under the Articles you
needed unanimous state consent for any amendment. And the Articles were
never successfully amended. But under the Constitution once
nine state conventions had approved, the Constitution would
be up and running, the other four states would
be free to do as they like. They couldn’t be bound
without their consent. But they also wouldn’t be part of
the country unless they ratified. Now that was important,
because it might sound like it’s preserving every state’s
independent right to go its own way. In fact the pressure on states
ten through 13 was enormous. Once nine states had ratified,
the other states could be, because they’re not in the country,
you would have a new country, they’re not being guaranteed
military protection. They could be subjected to
foreign trade discrimination, because they’re not
part of the country. So you could set up tariffs against Rhode Island the
same way you’re setting up tariffs against British goods. And, finally, they would be cut
out of any important decisions that were made by the
first new Congress. Once the new Congress met, it was going to have incredibly
important decisions to make, like where to place the
permanent national capital, whether to adopt amendments
to the Constitution. And if you were not
part of the nation, you wouldn’t be participating. So as a practical matter
once nine states ratified, the other four states
wouldn’t have much choice. That turned out to be
critically important. And they just made it up at
the Philadelphia Convention. Heading into the convention
everybody had thought, because Congress had said
it and so had the call for the Philadelphia Convention
said it, that anything proposed in Philadelphia will have to
be approved first by Congress, and then by all 13
state legislatures. And they just changed the rules, and saw whether they
could get away with it. And the answer was they could. Now the federalists also benefited from some antifederalist
miscalculations, especially in New York and Virginia, where any federalists
agreed to late conventions. The New York Convention, New York
and Virginia conventions didn’t meet until June of 1788,
which is nine months after the Philadelphia
Convention had ended. I think they were calculating that
that would give them more time to rally their supporters in
opposition to the Constitution. But what they ultimately did was
they made themselves irrelevant. By the time the New York Convention
was underway in late June, New Hampshire had become
the ninth state to ratify. Then while the New York Convention
was continuing to deliberate in the first week in
June, they got news that the Virginia Convention had
been the tenth state to ratify. And that just hugely changed
the calculus in New York. Previously the question was do
you like the Constitution or not? Now the question is whether you
like the Constitution or not, do you want to be part of a
new nation, which is going to exist whether you join it or not? And, by the way, the nation’s
capital was in New York. And they were going to
lose the capital obviously if they didn’t join the union. That was going to cost them
at least 100,000 pounds a year in hard currency, which was
a lot of money back then. If either Virginia or New
York had chose to go earlier, I think they probably would have
rejected unconditional ratification. That would have undercut the
momentum that was being built up in favor of ratification. And it quite possibly might
have influenced later states. Last important point I want to
emphasize, the federalists managed to do one other thing that I
think was incredibly important. And this is something I learned
while working on the book. This wasn’t something
I knew going into it. It was critically important
to their success to keep intermediate
options off the table. They wanted to force a
choice between the Articles of Confederation, which most
people agreed were deeply flawed, and the Constitution, which at least
half the country also thought was significantly flawed. They wanted to deny people a
choice on the spectrum somewhere in the middle between the Articles
and the vastly more nationalist and antipopulist Constitution. Now the two most likely
ways to have arrived at an intermediate solution were
the following procedural mechanisms. One was a demand for
antecedent amendments, meaning let’s amend the Constitution
before it gets ratified, rather than afterwards. And the other procedural mechanism
would have been let’s hold a second convention after the first. Now the antifederalists,
the opponents, made pretty good arguments for why these were sensible
procedural paths to follow. The argument for antecedent
amendments was pretty straightforward. “Who in their right mind,”
Patrick Henry said this at the Virginia Convention,
“You’d have to be a lunatic to sign a contract with another
party when that party then gets to change the terms that
you’ve already agreed to.” He said, “That’s like agreeing to
a Constitution with a vague promise of subsequent amendments to come. You should insist on seeing
the amendments in advance.” Which sounds pretty reasonable. The argument for a second convention
was the country just had a big debate on a Constitution that was
unveiled after a secret convention and did not map on to
what most people expected. We’ve now had a big national debate. People have told you
about their concerns. Now let’s go ahead and vote for
more delegates who can gather up all this information,
go to Philadelphia, and write a Constitution closer
to the intermediate position, which is where most
Americans were at. Federalists made legal arguments
against those procedural paths, and they made practical
political arguments. But I think the actual reason why
they opposed these alternatives is because they understood there’s
no way that a second convention, or antecedent amendments, would
allow them to preserve the core of what they had done
in Philadelphia. And what they wanted was not
to get arrived at a position that most Americans agreed with. What they wanted was to get the
Constitution they had written in Philadelphia approved, because they thought this was what
was necessary for the nation’s good. Now in this regard, consider the
proposal that Randolph had made to Madison before the convention. Randolph, the governor of Virginia, and Madison are corresponding
before the convention. Madison is playing with his ideas. And Randolph says in response,
“Whatever we write in Philadelphia, we should submit it to the country
in a kind of detachable form so people can approve
what they like, and disapprove what
they don’t like.” Madison was horrified by that idea. And he ridiculed the notion that ordinary Americans could have
informed opinions on something as important as designing a system
of government to govern them. This is what Madison said to
Jefferson later that year, towards the end of 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. Another good platform to
run for office on some time that most people are too
ill-informed, or not bright enough to actually participate meaningfully in deciding what governing structure
should exist at the national level. Okay. So to just sum
up in one minute. The Constitution is more
nationalist, more antipopulist than most Americans
expected, or probably wanted. The Framers took advantage
of the element of surprise to get it drafted. Then they barely got it ratified,
benefiting from some circumstances that proved advantageous,
some miscalculations by their political
adversaries, and some luck, portions of which they helped
to create for themselves. Whether you agree with what
they did in Philadelphia, whether you think it’s legitimate
or illegitimate, I think you have to stand back, and
express some admiration for what they accomplished, because the Constitution
genuinely was a kind of coup against public opinion. This is not what most
Americans had bargained for. So thank you very much
for your patience. And I’m happy to take
some questions. I don’t know how much
time we have, but– [ Applause ] Don’t be shy. [ Inaudible Speaker ] Yes, sir. Over here. We’ve got a microphone
that’s on its way over.>>One thing you didn’t
mention was the Bill of Rights. And that must have played a
big part in both the convention and the eventual ratification,
or did it not?>>Michael Klarman: So, yeah,
the Bill of Rights is tackled in the last substantive
chapter of the book. There is no Bill of
Rights in the Constitution. George Mason proposed the
addition of a Bill of Rights on the last day of the convention. And he was seconded by
Elbridge Gerry of Massachusetts. But no state delegation
supported them. The federalists, during the
ratifying convention, had to explain and defend the absence
of a Bill of Rights. That was clearly the main, of all the objections
the antifederalists made, the number one objection was
there is no Bill of Rights, there’s no protection for freedom
of speech, freedom of the press, free exercise of religion,
so forth, and so on. The federalists had a number
of arguments for why a Bill of Rights was actually unnecessary,
why they thought the existence of a Bill of Rights
would be dangerous. I can go into that. I think what I want to say
is actually it’s not clear to me whether they would
have opposed a Bill of Rights had it been proposed
earlier in the convention. But they’d been in Philadelphia for
four long, hot, contentious months. And they thought this would
be opening a Pandora’s box to suggest a new topic for debate. So I think the other
delegates just said, “We don’t want to deal with this.” It turned out to be
clearly a tactical mistake, because this was the
principle grounds of opposition to the Constitution. Madison became absolutely
critical to the Bill of Rights. So Madison was running for office. He wanted to be elected to the first
Congress from Central Virginia. He was from Orange County, Virginia. And Madison’s constituents
included a large share of Central Virginia Baptists,
who had first-hand experience with religious oppression. They had been oppressed. Many Baptist preachers
had been thrown in jail by the Anglican establishment
within the previous decade. These people couldn’t understand
why Virginia had a statute of religious freedom, but
there was no protection for religious liberty
in the Constitution. Madison was encouraged by
his friends in the district. He was actually running
against James Monroe, who had been a Revolutionary
War hero, opposed ratification in Virginia. And this is a district that had
been gerrymandered by Patrick Henry to try to keep Madison
out of the first Congress. Madison had to go home and campaign. And promised his constituents that if elected he would now
support a Bill of Rights. Now that the Constitution
had been ratified, he would support a Bill of Rights. So Madison gets up in
Congress on June 8th, 1789. This is the first session
of the Bill of Rights, first session of the new Congress. And he says, “I’m proposing
amendments to the Constitution. I’m proposing a Bill of Rights.” The antifederalists in
Congress are not interested in the proposals that
Madison’s offering. What they want are
structural changes. They want to limit
Congress’ taxing power, limit Congress’ military
powers, make the House of Representatives twice as large. That’s not what Madison offers. What Madison offers are
specific rights provisions. A right against search and seizure. A right against cruel
and unusual punishment. The antifederalists don’t
think those are really robust significant protections. They want structural
limits on national power, rather than rights’ protections. The federalists in Congress
say to Madison, “Okay. Now you’ve done your duty
to your constituents. You need to sit down and be quiet, because we have really
important things to do like raising tax revenue,
creating the executive branch of the government, creating
the national judiciary. Why in the world should we
be amending a Constitution when we don’t have any experience with whether it’ll work
without amendment?” So Madison gets neither
a positive reception from the federalists
or the antifederalists. He persists. He makes arguments like,
“If we don’t deliver on what our constituents
were promised, nobody’s ever going to believe us. People who are unhappy
about the power of the national government are
going to believe conspiracy theories about how it’s never going to be
amended in ways that limit it.” And Madison persists. And at the end of the day
he’s able to get Congress to approve 12 amendments, which ten
are then ratified by the states. And that’s how we get
a Bill of Rights. It is absolutely fascinating. Neither side of the debate in
1789 actually cares very much about the rights’ provisions,
largely because they think of them as parchment barriers. They think you can have all the nice
rights you want in a Constitution, but if majority opinion in
time of war or emergency wants to ignore them, then they
won’t have any weight. And that’s not what we think today,
because today we celebrate our Bill of Rights, and judges enforce them. But in 1789 neither side seemed to think this was a very important
change in the Constitution. Yeah. [ Inaudible Speaker ]>>Within a few years of the
adoption of the Constitution, most of the antifederalists had come around to supporting
the Constitution. And James Madison was
leading the opposition in Congress to the administration–>>Michael Klarman: Yeah.>>And was more or less a minority
leader in many of the Congresses. So I wonder if James
Madison would have seen this as a greatly successful coup, and whether the antifederalists
would have also rethought the situation.>>Michael Klarman: Yeah. That’s a great question. So I’m going to break
it into two parts. The first part is what happened to antifederalists’
criticism after ratification. And the second is what happened
to James Madison in the 1790s. So Gordon Wood, who’s probably
the most eminent of the historians of this time period,
wrote an article called “Is there a James Madison
Problem for Historians?” What exactly happened to Madison
between 1787 and the early 1790s? So in answer to the first part the
antifederalists did pretty quickly give up their legitimacy complaints. Those were a prominent
form of their objections to the Constitution during
the ratifying debate. This is illegitimate. There was no prep. There’s nothing under the
Articles allowing a convention. You’ve circumvented
the state legislatures. You’ve created special
ratifying conventions. You changed the rule for a
ratification from 13 to nine. They argued it was illegitimate. After they lost, they
largely gave up that argument. There are a couple possibilities. One possibility is the economy
was booming in the early 1790s. And the federalists and Hamilton
would have claimed it’s actually because of the Constitution. People who are more dubious might
say it’s because of the wars in Europe between France and
Great Britain that opened up a lot of demand for American
agricultural products, and the United States
remained neutral in the law. Whatever the reason is though,
in times of a booming economy, people are maybe not as
interested in objecting to the political arrangements
which exist. So that might be one possibility. The other possibility
is the Constitution, and I’m fond of this one,
this is the one I’m drawn to, the Constitution quickly proves
sufficiently indeterminate that the antifederalist types could
make the same arguments they had made against the Constitution
within the Constitution. Right? So one of the
first debates is over whether Congress can
charter a national bank. And Madison, who has now become one
of the leaders of the opposition, says, “Congress doesn’t have
authority to charter a bank. There’s nothing in Congress’ powers. It can raise taxes. It can regulate commerce. It can fund armies. There’s nothing about a bank.” But Alexander Hamilton says,
on the other hand, “Well, Congress can borrow money. Wouldn’t it be convenient to have
a bank that could lend you money? Congress can raise taxes and isn’t
it convenient if the bank has notes that circulate that people
can pay their taxes in?” And, so, they just disagree about
what the Constitution means. And that’s happening
from the very beginning. One of the first debates in Congress
is can the president remove the secretary of state, or
whether the same Senate that confirmed the secretary
of state has to play a role in removing the secretary of state. That’s a debate in
the first Congress. 1793, George Washington issues
a Neutrality Proclamation. Alexander Hamilton defends
that in the newspapers. James Madison attacks it saying
only Congress can declare war. So if Congress can declare war, why
can the president declare peace? The Constitution turns out to
be sufficiently indeterminate that the anti-federalist
types can go on making their same states’
rights’ populist arguments under the Constitution. And indeed for much of the
period until the Civil War, those people dominate the national
government, first under the guise of Jeffersonians, then under
the guise of Jacksonians. So what’s the point of attacking
the legitimacy of a Constitution when you can interview determine,
you can control its interpretation? That’s the first point. On Madison, you know, Madison
there is a real problem. Madison seemed like a huge
nationalist since 1787. He wanted national government
to be able to veto state laws. That’s about as nationalist
as you can get. By 1798 Madison is arguing for
the power of a state legislature to nullify a federal law,
as you know, in the context of the Alien and Sedition Acts. Madison’s writing resolutions for
the Virginia legislature saying that a state audit be able
to nullify a federal law that it thinks is unconstitutional. What happened to James Madison? Historians have offered lots
of different interpretations. The one that I’m most drawn to is
that Madison was only a nationalist when he had in mind the state
debtor relief laws of the 1780s. If states are going to be
redistributing wealth from creditors to debtors, Madison’s a nationalist,
he wants to put a stop to that. Madison never signed on to
Hamilton’s Mercantilist Program, which Hamilton is going to execute
as secretary of the treasury. Madison doesn’t think there
should be a national Bank. Madison doesn’t think the national
government should assume the state debts. Madison doesn’t think the
national government should subsidize manufacturing. That’s exactly what Hamilton’s
trying to put in place. Madison is a Virginia aristocrat. The south literally
doesn’t have any banks. And now Hamilton’s trying
to create a national bank? Virginia has already
paid off its debts. Why should it support the national
government assuming state debts? So Madison is representing
his constituents. He’s representing the
state of Virginia. And I think genuinely he’d never
signed on to exactly what it is that Hamilton wanted to
do with national power. If there is one. I may have exhausted everybody.>>Jane Sanchez: Okay.>>Michael Klarman: Thanks
a lot for coming everybody. I appreciate it. [ Applause ]>>Jane Sanchez: As a small
token of appreciation, we give you some items
from the Law Library.>>Michael Klarman: Thank you.>>Jane Sanchez: And we
hope you will enjoy them.>>Michael Klarman:
Thank you very much.>>Jane Sanchez: And once again
thank you so much for coming.>>Michael Klarman: Sure. Thanks for having me. [ Applause ]>>This has been a presentation
of the Library of Congress. Visit us at

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