THE CUNNING OF REASON: MICHAEL KLARMAN'S THE FRAMERS' COUP.

AuthorFried, Charles
PositionBook review

THE FRAMERS' COUP: THE MAKING OF THE UNITED STATES CONSTITUTION. By Michael J. Klarman. Oxford and New York: Oxford University Press. 2016. Pp. xiii, 631. Cloth, $39.95; Paper, $24.95.

People, for reasons of their own, often fail to do things that would be good for them or good for society. Those failures--joined with the similar failures of others--can readily have a substantial effect on interstate commerce. Under the Government's logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act.

That is not the country the Framers of our Constitution envisioned. (1)

INTRODUCTION: THE FRAMERS' INTENT

What was the country the Framers of our constitution envisioned? Michael Klarman, (2) in his magisterial, comprehensive, and meticulously documented The Framers' Coup: the Making of The United States Constitution, answers that question--at least if "the framers" (or Framers) is a designation that comprehends the masters of the process that led to the drafting and adoption of the document that was transmitted by the Philadelphia Convention to the Confederation Congress in 1787, then forwarded to the thirteen states for their consideration in conventions specially to be created by the state legislatures for that purpose, and ratified by those conventions in all states but Rhode Island by 1789. (Rhode Island ratified in 1790 (pp. 529-30).) Though many remarkable men participated in that process, including passionate but ultimately defeated opponents, the undoubted masters of the conception, formulation, and defense of the Constitution of 1789 were Alexander Hamilton and James Madison. Standing behind them at every stage with lesser eloquence but unparalleled judgment, commitment, and prestige stood the guiding spirit of George Washington, (3) who had been the president of the Philadelphia Convention.

The precarious journey, from the contested authority of the Philadelphia Convention to act at all to its triumphant outcome in 1789, that Klarman presents in riveting detail shows beyond all doubt that these master Framers were determined to overcome the populist dislike, born of the spirit of the Revolution of 1776, of strong government in general and of a strong national government in particular. Following the work of Gordon S. Wood and many others, (4) Klarman shows how these Framers overcame the populist democratic sentiment--a sentiment animating majorities in every state. Although this is an oft-told tale, Klarman's narrative has the suspense and tradecraft of the best adventure thrillers. He shows how the Framers in 1789 caused the emergence of a structure of government that was strongly centralized--or at least designedly carried the seeds of strong centralization in it--and that leaned heavily in the direction of institutionalizing government by a small elite, presided over by a strong executive embodied in a single dominant personality. All this was accomplished against a general sentiment favoring a pervasive localism, which dispersed power first to the states and then further dispersed it to localities, the limitation of all governmental powers at every level, and the further dispersion of actual authority to legislatures in which each legislator represented a relatively small constituency. This last feature--together with provisions for recall and binding instructions, short terms of office (in many states legislative elections were annual), and term limits--was all designed to keep legislators closely bound to the popular will and to obviate the development of a professional cadre of rulers (p. 173). State executives, such as governors, also enjoyed short terms of office and were often restrained by an elected or appointed executive council (pp. 213-14). Analogous provisions were pressed in the Philadelphia Convention (pp. 171-76).

This was anathema to the Framers. Theirs was a maximalist vision. The Framers succeeded in pressing for a numerical limit on the number of members of the House of Representatives, thereby assuring representatives with larger, more diverse districts (pp. 171-73). The representatives' terms were two years, but with no mandatory rotation in office, no recall, no binding instructions (pp. 244-45). When it came to the Senate, the Framers (or some of them) pressed for seven-year or even life terms--staggered to assure a more limited turnover at each election (pp. 209-11). And as for the executive, the focus of the popular and probably majority antipathy to concentrated power (like the classical Roman odium nominis regis), (5) here the Framers moved in quite the opposite direction. They pushed for a president who would serve a long term in office--some initially proposing seven-year terms, some even life terms (pp. 228-29)--with all executive power, including that of commander-in-chief (Hamilton's "unitary executive") (pp. 237-38). From the outset, the Framers initially sought this--what its opponents called monarchic and aristocratic--government, not the limited powers accorded to the Continental Congress, which were conceived as those of a confederation of sovereigns. (6)

Though this concentrated, nationalist conception was in the course of the Convention adjusted and compromised in several respects, the lineaments of our present government are clearly discernible. As what emerged from the Convention and was later ratified in the states ran counter to the nation's majority preference for a dispersed, populist, and popular structure of government, Klarman's characterization of this outcome in the title of his book as The Framers' Coup seems altogether correct. The arguments that the Affordable Care Act's invocation of this conception "is not the country the Framers of our Constitution envisioned" (7) and that it would "change[] the relationship of the Federal Government to the individual in a very fundamental way" (8) seem, if not rhetorical excesses, at least considerable exaggerations. (9)

Klarman's meticulous and exhaustive documentation is a signal feature of this definitive work, as is his predilection for developing his account so far as possible out of the mouths of the participants themselves. (10) Indeed, Klarman hardly takes notice of the dispute about the accuracy of Madison's notes of the debates in the Philadelphia convention (pp. 392-93). That Madison took such notes daily during the Convention is not disputed. Whether he had altered these notes to accord more with his later avatar as a defender of states' rights, strict construction--especially of the grant of powers to the national government--and in general as a stalwart lieutenant of Thomas Jefferson's conception of popular government and as Jefferson's protege and successor is more controversial (pp. 135-36, 229, 384, 737 n.300). There are those who contend that Madison was a sincere and principled supporter of states' rights, limited government, strict construction of the powers of Congress, and a restrained view of the role of the executive and that he had fallen in with Hamilton's more consolidating and monarchical views out of necessity to save the Convention altogether. (11) Klarman's account, without explicitly entering into that dispute, as it mainly relates to developments after 1789 and the end of his story, leaves little doubt that this account of Madison as a consistent man of principle--or the same principles--is hardly plausible. (12) It was Madison who in the Virginia Plan proposed a general veto somewhere in the national government of any state legislation (pp. 139-40). If there could be any doubt that Madison became a different man in the years after 1790 as the relations between France and Great Britain heated up and Jefferson's opposition became more pronounced, Mary Sarah Bilder's recent Madison's Hand: Revising the Constitutional Convention puts paid to those revisionist contentions. Bilder shows that Madison either altered or replaced his contemporaneous notes so that his own speeches to the Convention would be more in accord with his burgeoning Jeffersonian bent. (13) In any event, as I say, Klarman makes little of Madison's later change of heart and is able to rely on multiple sources to tell his story. The account I give in the next Parts takes Klarman's story to be as well-founded as his exhaustive documentation can offer.

The reliability, objectivity, and good faith of Klarman's account are underwritten by a remarkable fact: Klarman is no fan of the centralizing, elitist tendency of the Federalist project and its outcome. The very title of the book attests to that--a coup after all is not a celebratory sobriquet. I am reminded of a discovery made in reading The Travels of Marco Polo. The author records so many marvels in his fourteenth-century account of his travels to a world almost wholly unknown to Europeans that one grows skeptical of his claim to firsthand experience. So when toward the end of his narrative he tells of his encounter (in what today is known as Sumatra) with a unicorn, I thought, Aha, now I got you, here is the thirteenth chime of this particular clock--until I read on to his description of the graceful, mythical beast:

[Having] hair like that of a buffalo, feet like those of an elephant, and a horn in the middle of the forehead, which is black and very thick.... The head resembles that of a wild boar, and they carry it ever bent towards the ground. They delight much to abide in mire and mud. (14) And then I realized that Polo was telling the truth in much the same way as it dawned on me how much Klarman's sympathies lay with the populist, democratizing majority. Any skeptical doubts of the accuracy of his narrative dissipated--to him this was not a triumphalist tale. Klarman ends his epic account of those three years on a distinctly sour note:

In the final analysis, the Constitution--like any governmental arrangement--must be defended on the basis of its consistency with our basic (democratic)...

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