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04/23/2017

Balkinization Symposium on "The Framers' Coup"
Michael Ramsey

At Balkinization, a symposium on Michael Klarman's book The Framers' Coup: The Making of the United States Constitution (Oxford Univ. Press 2016). Here is a complete list of contributions, from contributors Jack Balkin, James Fox, Laura Kalman, Jud Campbell, Sandy Levinson, Christina Mulligan, Calvin Johnson, Maseeh Moradi, Ryan Williams, Mark Graber, Steven Griffin and Michael Klarman.

Here is the book description from Amazon:

Americans revere their Constitution. However, most of us are unaware how tumultuous and improbable the drafting and ratification processes were. As Benjamin Franklin keenly observed, any assembly of men bring with them "all their prejudices, their passions, their errors of opinion, their local interests and their selfish views." One need not deny that the Framers had good intentions in order to believe that they also had interests. Based on prodigious research and told largely through the voices of the participants, Michael Klarman's The Framers' Coup narrates how the Framers' clashing interests shaped the Constitution--and American history itself.

The Philadelphia convention could easily have been a failure, and the risk of collapse was always present. Had the convention dissolved, any number of adverse outcomes could have resulted, including civil war or a reversion to monarchy. Not only does Klarman capture the knife's-edge atmosphere of the convention, he populates his narrative with riveting and colorful stories: the rebellion of debtor farmers in Massachusetts; George Washington's uncertainty about whether to attend; Gunning Bedford's threat to turn to a European prince if the small states were denied equal representation in the Senate; slave staters' threats to take their marbles and go home if denied representation for their slaves; Hamilton's quasi-monarchist speech to the convention; and Patrick Henry's herculean efforts to defeat the Constitution in Virginia through demagoguery and conspiracy theories.

The Framers' Coup is more than a compendium of great stories, however, and the powerful arguments that feature throughout will reshape our understanding of the nation's founding. Simply put, the Constitutional Convention almost didn't happen, and once it happened, it almost failed. And, even after the convention succeeded, the Constitution it produced almost failed to be ratified. Just as importantly, the Constitution was hardly the product of philosophical reflections by brilliant, disinterested statesmen, but rather ordinary interest group politics. Multiple conflicting interests had a say, from creditors and debtors to city dwellers and backwoodsmen. The upper class overwhelmingly supported the Constitution; many working class colonists were more dubious. Slave states and nonslave states had different perspectives on how well the Constitution served their interests.

Ultimately, both the Constitution's content and its ratification process raise troubling questions about democratic legitimacy. The Federalists were eager to avoid full-fledged democratic deliberation over the Constitution, and the document that was ratified was stacked in favor of their preferences. And in terms of substance, the Constitution was a significant departure from the more democratic state constitutions of the 1770s. Definitive and authoritative, The Framers' Coup explains why the Framers preferred such a constitution and how they managed to persuade the country to adopt it. We have lived with the consequences, both positive and negative, ever since.

And from Ryan Williams' contribution to the symposium:

As with any significant new history of the Constitution’s Framing, it seems inevitable that Klarman’s book will be pressed into service by the contending sides in the decades-long debate over “originalist” theories of constitutional interpretation.  Klarman himself has refreshingly little to say on this topic, preferring to lay out the history and allow the interpretive conclusions to fall where they may.  And Klarman’s history may prove challenging for at least certain types of originalist theories, particularly those that depend on an unduly romantic conception of popular sovereignty or implausible notions of the Framers’ foresight to legitimate their enterprise.

But as Stephen Smith observes, originalists as a group are generally untroubled by the notion of a “merely human” Constitution.  The fact that the Constitution was drafted by historically situated, fallible individuals working under constraints of limited time, knowledge, and foresight is a familiar starting point for virtually all theories of originalism.  Nor would the fact that the Constitution was drafted and ratified under conditions that fell far short of a democratic ideal necessarily doom the originalist endeavor.  Indeed, when viewed from a modern perspective, the anti-democratic features of the drafting and ratification process to which Klarman draws our attention pale in significance to the much more familiar democratic deficiencies resulting from exclusions of African Americans, Native Americans, and women.  Moreover, to the extent Klarman identifies lingering substantive anti-democratic deficiencies resulting from the Framers’ decisions, these deficiencies are clustered almost entirely in the Constitution’s “hard-wired” provisions, such as those providing for equal State representation in the Senate, the Electoral College method of choosing the President, and the onerous amendment processes set forth in Article V.  (pp. 625-28).  Because proponents of virtually all interpretive theories tend to read such provisions the same way, Klarman’s account gives us little concrete basis for choosing one interpretive theory over another.

In the end, the question confronting modern interpreters is very similar to the one presented to members of the ratifying public in 1787 and 1788 – namely, whether we are willing to accept the highly imperfect document bequeathed to us by the Framers in Philadelphia as a source of binding law.  Like the vast majority of the ratifiers at that time, members of the present generation had no opportunity to participate in that document’s drafting and many might well prefer any number of alternative governmental arrangements if given the choice. Nevertheless, once the universe of realistic alternative choices is clearly in view, some may find reasons for believing that the merely human Constitution of 1787 – whatever its flaws or shortcomings – is nonetheless acceptable enough to warrant their recognition.