Author:Michelman, Frank I.

THE FRAMERS' COUP: THE MAKING OF THE UNITED STATES CONSTITUTION. By Michael J. Klarman. (1) Oxford University Press. 2016. PP. xii + 865. $39.95 (hardcover).

"I got no dog in that fight"--Anon.



      A tonic to the mind is The Framers' Coup, Michael J. Klarman's imposing new investigative report on the great American founding. Formally (and formidably), the book stands as a contribution to scholarly researches in United States history and the politics of laws. But of course it carries cues and messages, too, for all who would expound or instruct upon the Constitution's place in American life and politics. For this is not a tale simply of coup d'etat, of triumph "by one party in a debate that genuinely had two sides" (p. 5). It is also a close and expert study of complexities--ambiguities, accidents, miscalculations, confusions, contradictions and reversals--in the lining up, sometimes sooner, sometimes later, of delegates at Philadelphia behind one or another article of constitutional text, and of state conventions behind the whole shebang.

      As a first consequence: When, predictably in times to come, we see Klarman's researches getting caught up in tangles of law-office history, (3) it will not be his fault. Neither can it be his wish, because Klarman is an avowed foe of originalist-minded constitutional application. (4) Any sight of his pages being rummaged and sacked by lawyers and judges out for proofs of neatly amberized framers' intents and original public meanings will be for him, we must assume, a cause of chagrin.

      Still, if you were looking for some present-day political fight in which Coup has its intended dog, you might easily find one--not that Klarman ever tells you directly what it is. He has pretty much, in this present text (the contrast, as we will see, is with some earlier writings of Klarman's on the topic of American constitutional devotion) kept clear of normative overhangs, preferring to let his history speak for itself toward whatever actions or postures in response it might move his readers to take up. His closest approach to the pulpit comes at the close of the book's lead-off chapter, where Klarman prompts readers to consider how they should "think" and "feel" about constitutional provisions (he anticipates here some of what his pending historical account will show)

      continuing to bind Americans today despite their inconsistency with modern democratic norms? More generally, how should one feel about a modern democratic society's being governed by a [virtually non-amendable] constitution that was written 225 years ago by people possessed of very different assumptions, concerns, and values [from those today prevailing]? (pp. 9-10). How we should feel is the aim of the jab, not what we should do. At no point does the book speak directly--as some other worried contemporary authors do--to the question of what steps we should think of taking in response to this situation, about which we presumably are meant to feel not good.


      Compare the example set by Sanford Levinson. Having charted at length and detail the defects that block his endorsement of the Constitution as one that Americans today in their right minds could adopt as truly fit to govern their affairs, (5) Levinson issues a call for corrective action of a kind that still maintains a thread of constitutional attachment, to wit, a campaign of petitioning to Congress to exercise a constitutionally vested responsibility to call, when and as the times may require, a national convention "to assess the adequacy of the... Constitution to our... needs." (6)

      The Framer's Coup might perfectly well have been drafted as a brief in support of exactly such a cry to the country for a national project of major constitutional repair. Viewed thus, the book's particular input would be more in the line of replication than case-in-chief. "[T]hroughout American history," as Klarman reminds us early on, "political actors have invoked the wisdom and virtue of the Framers as arguments against constitutional change" (pp. 4-5). His work in Coup seems perfectly designed to cut the ground from under that sort of resistance against meddling with the wisdom of historical framers deemed better situated, better able, or better motivated than us to call the shots correctly for the long run. The facts assembled and presented here about the values, (7) aims, (8) beliefs, (9) tactics, (10) and strategies (11) of those who took controlling parts in the Constitution-making process, or about general hazards to rationality affecting the process as a whole, (12) or about the role in these events of sheer accident and luck, (13) seem designed to counter any lingering dispositions toward "'sanctimonious reverence'" for the outcome. (14) The Framers' Coup shines its light on the Framing's seamier side, its face of ordinary politics. Without denying the Framers their reputations for exceptional intelligence, statecraft, and patriotism, the book stands as a takedown of the Framing from any high pedestal of reverence it may hitherto have occupied in the minds of readers. (15) The work thus incidentally also serves as a response to other reasons sometimes heard against upending ancient laws, such as a need of the community to maintain its identity or integrity or confidence through time, or an obligation of respect owed by posterity to ancestors. And that, indeed, is the note on which the book ends:

      That [the Constitution] has been around for a long time or that its authors were especially wise and virtuous should not be sufficient to immunize it against criticism.... As Jefferson would have recognized, those who wish to sanctify the Constitution are often using it to defend some particular interest that, in their own day, cannot be adequately justified on its own merits (p. 631). So there, in sum is one perfectly plausible attribution of a fight in which Klarman has entered his dog: to wit, a nascent agitation for major constitutional repair, perhaps by way of a new constitutional convention.


      I bring up now a rather different, more radical possible attribution. Klarman's dog could not, as I have said, be any preference of his over specific applications of constitutional clauses. But what about an exactly opposite kind of preference? 1 have in mind an agitation (which does occasionally make it into the op-ed zone of current American awareness) (16) over the very constitutional faith that makes those applications seem to matter in our lives in the way that they do. Coup could plausibly be meant for service in a project of detox of American politics from this not-so-minor tic by which the Constitution is allowed, or is imagined, to stand as sovereign guide to policy and law. (17)

      Such thoughts will come easily to anyone on terms with Klarman's earlier writings on this topic of American constitutional devotion. Our author has in the past stood out from the crowd of American constitutional-legal academics for the nerve and verve of scholarship of declared Constitution-resistant leanings. (18) These older works of Klarman's were addressed largely to the question of what he called "judicially enforceable" constitutionalism, as distinct from a broader Constitution-skeptical stance as above defined. (19) But they contain plenty of more broadly anticonstitutional fodder, too, as I shall be showing below. As Klarman has said, "constitutionalism without judicial review shares many of the virtues and vices of its judicially-enforceable variety." (20)

      The concession of virtues should not be overlooked; we will get back to it. It has not kept Klarman in the past from proposing seriously to Americans, as our path of escape from a choice deemed unacceptable, between rule from eighteenth-century graveyards and rule by electorally untethered judges doing on-the-fly, to-suit-themselves constitutional reconstruction, that "we can simply be anticonstitutionalists. That is, we can decide controverted policy questions for ourselves through political struggle (as much of the rest of the world does it), rather than through the edicts of long-dead Framers or relatively unaccountable judges." (21)

      "Anticonstitutionalist" (as you see) was one name Klarman had for that option. "Antifidelity" was another. (22) He did not in that place actually sign on the dotted line for party membership under either name, nor has he since then done so that I know of. But neither has he retracted the suggestion, and now comes Coup, bearing on its face what may easily be read as express incitement to Constitution-resisting deductions, those leading questions to readers to which I have already directed attention. Should we read them as a call to Antifidelity?

      I am going to doubt it. Setting the Framing on clay feet is one thing; a call for ejection of the resulting Constitution from its place of providing, while it stands, a basic law for the country is quite another thing. The second thing is not logically deducible from the first; and while Klarman plainly does mean for his history to do the first thing, his book--to my eye, anyway--stops noticeably short of the second. There may even be reason to think that it does so partly as a result of Klarman's experience in researching and writing this treasure of scholarship.

      In short, then, my thesis: Klarman's past scholarship posts an open invitation to Americans to get serious about ditching the Constitution from the conduct of our politics--or at least (a needed qualification, as we will see below) the Constitution's substantive parts, the parts that set restrictions or requirements on the goals to be sought or effects to be wrought by exertions of state powers as distinct from parts laying down organizational and procedural forms for such exertions. The new book, I think, may be pulling back, inferentially, from that brink.

      But let us pause now to define more carefully some key terms in our discussion.


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