Putting the Constitution in its Place: Shlomo Slonim, Forging the American Nation, 1787-1793; James Madison and the Federalist Revolution.

• Author: Rubin, Edward L.
• Position: Book review

CONTENTS INTRODUCTION I. SLONIM'S ACCOUNT II. SLONIM'S LESSONS III. THE ELECTORAL COLLEGE INTRODUCTION

The fact that Donald Trump became President in 2016, despite losing the popular vote by a substantial margin, has brought renewed attention to the Electoral College system. (1) In Forging the American Nation, (2) Shlomo Slonim provides an illuminating account of the process that led to this bizarre method of determining the outcome of presidential elections. But Professor Slonim's book also provides insights into the origins of many other structural features of our constitutional system that are of questionable value in a modern democracy, such as elections by state for the Senate, the Senate's exclusive exercise of legislative authority for treaties and appointments, and the constraints on the authority of our central government.

The book covers the drafting and ratification of the Constitution between the years 1787 and 1791, (3) and also moves backward into times preceding the Articles of Confederation era and forward to the Marshall Court's decisions, culminating with McCulloch v. Maryland in 1819. (4) Although the events it describes are among the most fully documented in world history, (5) Forging the American Nation provides a new and valuable perspective on them. Slonim joins other recent authors who approach the Convention and ratification process with a degree of skepticism, but, in this relatively succinct book, he identifies certain themes with unusual clarity and legal precision. In doing so, he also offers clear lessons for constitutional interpretation and particular support for the Legal Process School's argument that the structural features of the Constitution should not be interpreted strictly, if at all, by the courts. (6) This review summarizes some of the main themes that Professor Slonim describes (Part I) and then discusses the implications about contemporary constitutional interpretation that flow from that account (Part II). It ends with some specific implications about the Electoral College and a pending effort to reform it, the National Popular Vote Initiative.

1. SLONIM'S ACCOUNT

   The story of the book is so familiar as to render even a brief summary unnecessary. Instead, this section will describe some of the principal themes that emerge from Professor Slonim's rendition of the story. These are the character and fate of James Madison's nationalist ideas, the role of the small states, and the role of slavery.

   Madison is described in popular literature about American history as the Father of the Constitution. (7) Professor Slonim's account reveals that this sobriquet (and incidentally, his own subtitle) is misleading. (8) To be sure, we tend to view the Constitutional Convention through Madison's eyes, since his notes are the centerpiece of the leading document collection on the subject. (9) He is also the author of the most noteworthy justifications for the constitutional structure (10) and the primary draftsman of the Bill of Rights. (11) But ascribing parentage to Madison obscures the extent to which the Constitution was not in fact the product of this great political theorist and visionary, but of a host of ordinary politicians, concerned with their own careers, answerable to their home-state interests and interest groups, and dominated or distracted by the immediate pressures of the day.

   As Professor Slonim recounts, Madison had a very different vision of the Constitution from the one that actually emerged from the Convention. (12) He could be described, at least at that time, as a radical nationalist or Federalist. (13) His position was that "the states, as such, would have to be precluded from any role in the governing structure of the national authority, and secondly, the authority would be empowered to exercise a supervisory veto over state legislation." (14) Both elements of this formulation were defeated in the Convention. The first, embodied in the Virginia Plan, was rejected in favor of the New Jersey Plan, which granted all states an equal vote in the legislature's upper house, whose members were to be chosen by the state legislatures. (15) That body, where states and not citizens were represented, was then given the sole authority to approve treaties (by a two-thirds vote in fact) and to confirm presidential appointments. Madison's proposal for a Congressional veto was modified and then rejected, with even his Federalist allies opposing it because they thought it would make ratification impossible. (16) Several months after the Convention ended, Madison continued to bemoan the rejection of the veto as undermining the authority that he thought the central government needed to fulfill its mission. (17) As a strong or radical Federalist, Madison also believed that a bill of rights was an unnecessary constraint on the national legislature. (18) The reason he acceded to Jefferson's demand and drafted the document was not because he shared Jefferson's belief in its necessity but because he realized that it would be the best way to fore--stall demands by New York and Virginia Anti-Federalists for a second constitutional convention that might weaken the national government still further. (19) In short, the Constitution is at best a wayward child, badly injured and debased by a rough world from which its parent could not shield it.

   Many of those injuries and debasements result from a second theme in Professor Slonim's book--the role of the small states at the Convention. While the disproportionate influence that the Constitution, and specifically the Electoral College system, gives to smaller states is widely recognized, and commentators discern a resulting conservative bias, we do not think of small states as a separate interest group. The most common contrast notes that votes for President in Wyoming, a reliably red state, count for 3.6 times as much as votes in California, a reliably blue one. (20) But the calculation yields an almost equal disproportion between Wyoming and Texas, also a red state, or between Texas and the next least populous state, Vermont, which is reliably blue. (21) In other words, there is no politically salient difference between large and small states per se. (22) Thus, the contemporary political significance of the Electoral College is not entirely clear. Professor Slonim explains, however, that the small states functioned as a unified interest group at the Constitutional Convention. (23) Their concern was that the larger states, specifically Massachusetts, Pennsylvania, and Virginia, would use a strong central government to dominate them, and perhaps even destroy them. (24) This led them to oppose Madison's Virginia Plan with the New Jersey Plan that gave all states equal representation in the Senate and gave the Senate its authority over treaties and appointments. And it was directly responsible for the Electoral College. (25)

   The concerns of the smaller states, as Professor Slonim explains them, are understandable, but they are neither admirable nor farsighted. Each of the thirteen colonies had been administered separately by Britain. (26) Although independence was declared by the newly formed Continental Congress, and the war against Britain was pursued under Congress' auspices, the machinery of day-to-day governance of each state was in the hands of the local elites who had taken control of the colonial apparatus. (27) It was natural for them to see the nation as separate polities that might engage in commercial or even military conflict, and for those who controlled the smaller states to ally with each other and assert disproportionate control over the central government. (28) However understandable, this was certainly not admirable; it committed the common error of assuming that the interests of the governing elites were equivalent to the interests of the citizens, and that their continued control of the state government would be more beneficial for their citizens than any decision made by the majority of the nation. (29) Neither was the alliance of small states particularly farsighted. It should not have required much imagination to realize that the issues that would divide a functioning nation would not revolve around the size of its political subdivisions. The separate identity of the small states disappeared almost as soon as the nation was formed, to be replaced by more substantive divisions. (30) But it left a powerful imprint on the constitutional design, one that we continue to live with long after the birth pains of the new nation had been forgotten.

   The most divisive of those substantive issues was slavery, and this also left an indelible imprint on the Constitution. As Professor Slonim notes, William Wiecek identifies ten clauses in the Constitution that explicitly refer to slavery, (31) while Paul Finkelman identifies no fewer than fifteen. (32) In fact, Slonim argues, every clause of the Constitution was influenced by the Southern states' desire to protect their "peculiar institution." (33) It motivated the Southern delegates to increase the representation of the slave states in the House of Representatives through the three-fifths clause; (34) to demand that the Senate be designed to represent states, rather than citizens who were more numerous in the North despite that clause; (35) to insist that this Senate be given the exclusive role in approving treaties and ambassadors; (36) to endorse a bizarre method of determining the election of the chief executive that gave decisive weight to the three-fifths-based House and the states-quastates Senate; (37) to enumerate the powers granted to Congress in place of a general provision that might have permitted legislation regarding slavery; and to construct an elaborate method of amendment that demanded both a supermajority in the three-fifths-based House, the state-qua-states Senate, and the states themselves. (38) Based on the picture that Professor Slonim paints for us...