Tuesday, June 13, 2017

A Conservative Counterrevolution - Note for a discussion, "E Pluribus Unum? What Keeps the United States United."


The anti-democratic origins of the Constitution

A contemporary rendering of the Springfield arsenal attack during Shays’s Rebellion—a shaping event for the Founders
Image from Bridgeman Images
The Framers' Coup: The Making of the United States Constitution, by Michael J. Klarman (Oxford, $39.95)

WHEN THE Revolutionary War ended in 1783, the American states went into a severe economic depression. The British government barred its people from buying American goods they could get elsewhere, and kept the country’s shipping companies from buying American-made ships. The gross national product fell precipitously. Yet despite the depression, most of the 13 states hiked taxes to pay down their war debts and cover their share of the nation’s—and the new taxes were much higher than Americans had paid under British rule.
The states taxed land and people especially, and required that the taxes be paid in gold or silver, as Congress and foreign creditors demanded—an unusual hardship for farmers, whose wealth was in land and crops, not coins. Tens of thousands lost their farms while remaining burdened with debt. Many people turned to politics for relief. Most of the states eased the supply of money by issuing paper currency that could be used to pay taxes. Some states deferred the obligation to pay taxes and approved other forms of debt relief, like allowing people to repay in installments.

Struggling Americans viewed the relief as essential in a punishing time. Prosperous citizens regarded it as indulgence fostering indolence. Paper money, the Virginian James Madison wrote, was “unjust, impolitic, destructive of public and private confidence, and of that virtue which is the basis of republican governments.” The disagreement was fierce. State legislatures that passed relief laws did so in some cases to stave off violence. In 1786, when Madison contradicted himself by voting in the Virginia legislature to let tobacco be used to pay taxes, he said that was “a prudential compliance”—not as bad as paper money.
The conservative Federalist government of Massachusetts chose neither to issue paper money nor to pass meaningful tax or debt relief. In the western part of the state, a sometimes violent rebellion erupted in August 1786, named for the farmer and war veteran Daniel Shays. The climax of Shays’s Rebellion came in January 1787, when he led about 1,200 insurgents in a raid on a federal arsenal of weapons and ammunition in Springfield. Government militia repelled them with a volley of artillery that killed four Shaysites, as Federalists called their antagonists. It was the beginning of the end of the uprising.
Yet many rebels were prosperous leaders in their communities who resented the state’s eastern elite and its aristocratic rule. In April 1787, insurgents or their sympathizers were elected to fill a large majority of seats in the state legislature, which slashed taxes and eased tax collection. Populism triumphed in Massachusetts, too, as it had earlier in most of the other states. 
Members of the Massachusetts elite deplored this development. So did members of the political elite throughout the country. To them, the rebellion and its after-effects were proof that the American revolution had gone too far, and that the new country needed a powerful national government that could succeed without being undermined by the excesses of democracy prevailing in the states. Beginning that May, these concerns became the project of what was then called the federal Convention. 
In his new book The Framers’ Coup, Michael J. Klarman explains how this brief, geographically isolated, and seemingly thwarted uprising fundamentally shaped American governance. The Bancroft Prize-winning legal historian and Kirkland & Ellis professor of law writes, “Shays’s Rebellion played a critical role in the creation of the Constitution.” 
Michael Klarman interprets the drafting
of the Constitution as a coup.

IT WAS A COUP, Klarman lays out, because Madison—now known as the father of the Constitution and a primary shaper of it—and key colleagues went to the convention in Philadelphia with a frankly anti-democratic agenda and, by and large, fulfilled it. By anti-democratic, Klarman does not mean autocratic. Instead, he means opposed to a purely democratic system in which the majority would always rule. After persuading the other delegates to deliberate behind closed doors and keep what happened there a secret, the Federalists led the convention to approve a constitution that was, in Klarman’s words, “nationalist and democracy-constraining.” Madison later observed that “no constitution would ever have been adopted by the convention if the debates had been public.” 
To solve problems Congress had struggled with in the wake of the war, the new document gave that body power that was “virtually unlimited” to impose taxes, regulate commerce, and create a military. The constitution said that, once it was ratified, it would be “the supreme law of the land,” along with federal laws and treaties. To enforce that principle, it commanded the creation of a supreme court and authorized Congress to create lower federal courts.
Most state constitutions equipped voters to keep their representatives on short leashes: the tools included, as Klarman writes, “annual elections, small constituencies, mandatory rotation in office, and (often) instruction of representatives”—the right of voters to tell their representatives what to do in office. The national constitution established terms “longer than any existing under state constitutions,” with four years for presidents and six for senators. Even for the members of the more democratic House of Representatives, the delegates’ anti-democratic bias showed: they established two-year rather than one-year terms; large constituencies for each member, rather than small; and no provisions for “instruction, recall, or mandatory rotation in office.”
Some delegates wanted the constitution to be far more nationalist, either by empowering Congress to veto state laws it disliked, or by abolishing the states altogether—in order, as one delegate put it, to create “one nation instead of a confederation of republics.” [JB emphasis] But the convention struck the balance it did in September 1787 because its leaders understood that nine of the 13 states would need to ratify the document to turn it into the Constitution and that popular support was imperative for that to happen. The next June, New Hampshire became the ninth to ratify. Congress determined that the newly constituted government of the United States, operating under the Constitution, would commence in March 1789.
In Ratification: The People Debate the Constitution, the late historian Pauline Maier ’60, Ph.D. ’68, drawing on 21 of the now 24 volumes of The Documentary History of the Ratification of the American Constitution, recounted what she described as “one of the greatest and most probing public debates in American history”: the choleric, pub-to-pew disputes throughout the states. In the Harvard Law Review, in 2011, Klarman accurately called Maier’s book “one of the best books ever written about the American Founding.” Writing that review, he says in the preface to The Framers’ Coup, got him hooked on “the primary source materials of the Founding—correspondence, newspaper essays, pamphlets, legislative and convention debates.” He spent four years immersed in them while composing his book.
His goals were to write “a comprehensive account of the Founding,” as much as possible “in the words of the participants,” and to advance his version of the view that “the Constitution was a conservative counterrevolution against what leading American statesmen regarded as the irresponsible economic measures enacted by a majority of state legislatures in the mid-1780s.” 
The book has the authority and elegance of a reference work written for the ages. It spans from an account of the deficiencies of the Articles of Confederation, that first constitution intended to empower the Continental Congress to coordinate the states’ efforts in the Revolutionary War, to a review of the Bill of Rights. Ordinary citizens forced the Federalist leaders to add this section of the document, codifying the rights of citizens, that now dominates constitutional law. The book is meticulously researched, cogently written, and rich with voices and insights. It has the allure that the historian Daniel J. Boorstin ’34, said a first-rate history should have: the sense that the author is figuring out, along with the reader, how the story will come out, though both already know. It is also a handsomely made volume, with scores of wonderful illustrations.
An historian’s comment about the book opposite the title page calls it a “page-turning narrative,” which is true yet somewhat misleading. Each of the 631 pages of text is so laden with facts that it sometimes feels like it takes two hands to turn a page. The comprehensiveness that Klarman achieved is a mild affliction, translating into denseness that can challenge a reader. Occasionally, that spills over into tendentiousness when he repeats his theme about the Federalists’ anti-democratic agenda.
But the book is often revelatory. After he reports that the first official act of the Constitutional Convention was to elect George Washington president of the gathering and a former personal secretary of his, William Jackson, as “secretary to keep the official minutes,” Klarman includes a footnote about the historical records of what was said at the Pennsylvania statehouse during the course of those mythologized months that led to a new kind of nation. Madison, for example, “kept detailed notes” and “was present every day of the proceedings,” but his “notes could not have captured even 10 percent of the words that were spoken.” In addition, he summarized points rather than recording speeches verbatim, drained emotion from other delegates’ speeches, and paid scant attention to points that didn’t interest him (like the jurisdiction of the federal courts). He also “tended to revise his own speeches to make himself appear less dogmatic.” Klarman’s point, as he summarizes, is that “while we have a fairly detailed record of what transpired at the Philadelphia convention, it is important to be aware of the limits on what we can know.”
KLARMAN SHARES the customary view that the “delegates were, in general, an extraordinarily talented bunch,” quoting Benjamin Franklin that they were “the most august and respectable assembly” he ever joined. But he writes that a more revealing reflection of Franklin’s has been neglected: that “when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views.”
That is one of Klarman’s core judgments: impressive as they were, the framers “had interests, prejudices, and moral blind spots. They could not foresee the future, and they made mistakes.” They argued “in terms of political principles,” but those arguments “simply served as rationalizations for the interests being advanced.” Those interests were elementary and clashed constantly, with delegates working to give their states as much power as possible. Large states squared off against small ones, northern states versus southern ones, manufacturing states versus slave-dependent agricultural ones, Federalists versus Antifederalists, and nationalists versus statists.
The enduring question that Klarman frames is the extent of the duty that American citizens today owe to an old, imperfect document, written “by people possessed of very different assumptions, concerns, and values”—which led almost all of them to accept and protect the institution of slavery, to exclude women from the protection of political and civil rights, and to adopt many undemocratic mechanisms in the Constitution. 
When Donald J. Trump defeated Hillary R. Clinton for the presidency, he was the second candidate in 16 years (and the fourth in American history) to win in the Electoral College despite losing the popular vote (the number of electors in a state equals its number of representatives in Congress plus its two senators, which favors less populated states by making their voters’ votes count more). As Klarman underscores, the malapportionment of the Senate defies the modern principle of one person, one vote, with states of widely varying populations each having two senators so states with small populations exert much more than their share of influence in presidential elections.
These days, 230 years after the convention, the Constitution is still usually spoken about with reverence and interpreted as a document expressing legal and political philosophy. But Klarman argues persuasively that Americans must defend their political, economic, and social interests on the merits, not by invoking the Constitution as a sacred text. History warrants this realism, as he shows: the framers designed America’s basic law to serve their sometimes undemocratic interests, rather than always making paramount the democratic ideals on which they founded the country. They did not intend that their intentions would bind future Americans.  

OF EQUAL IMPORTANCE, Klarman shows the framers’ genuine capacity for compromise and how, through the centuries, the Constitution they shaped has been amended and interpreted to rid the document of its prejudices and provide a platform on which America has built progress. In the book’s index, there are a score of entries for “democracy,” but none for “republic.” Yet the skepticism about providing unbridled power to the majority, which has led to, among other things, the protection of minorities, reflects the wisdom of the Republic that the framers both empowered and prudently constrained, with checks and balances. 
Klarman ends with a thought from Thomas Jefferson, that each generation has “a right to choose for itself the form of government it believes most promotive of its own happiness.” That understates what The Framers’ Coup teaches. The Constitution was not inevitable. The progress that Jefferson envisioned has never been inevitable either. 
Each generation has a duty to apply or amend the Constitution, so the Republic fulfills the commitments of the document’s Preamble, above all to securing “the Blessings of Liberty to ourselves and our Posterity.” Failure to fulfill those commitments would end or sorely test the great American experiment in self-government. The Constitution kindled its promise, but leaves in the hands of the People the full responsibility for its fate.   H

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