an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Framers’ Coup is at once a wonderful book and achievement. It provides a vibrant one-volume account of the Founding from the period when the flaws in the Articles of Confederation became evident through the drafting and ratification of the Constitution and the adoption of the Bill of Rights.It displays its author’s immersion in the era’s correspondence, periodicals and pamphlets; in the debates of Framers, legislators and ratifiers; and in virtually every item in the multi-volume and voluminous Documentary History of the Ratification of the Constitution.We hear from a cross-section of participants in their own words—from the Pennsylvania Antifederalist who reported that the only ratificationists in one county were “half-pay officers, Cincinnati, attorneys-at-law, public defaulters and Jews,” to the Massachusetts Federalist who defined anti-federalism as “anarchy, confusion, rebellion, treason, sacrilege, and rapine.” To top it all off, The Framers’ Coup offers what I believe is a welcome revival and revision of “Progressive” legal historiography by presenting the Constitution as an anti-populist, democracy-constraining, and nationalist conservative counter-revolution that the Federalists put over on “the people.”In this post, I’ll focus on Klarman’s resuscitation of Charles Beard for law professors.
Beard, of course, famously, or infamously, contended in his 1913 book, An Economic Interpretation of the Constitution, that examination of the property, bonds and securities held by the Constitution’s Framers demonstrated that most were “immediately, directly, and personally interested in, and derived economic advantages from, the establishment of a new system.”The Federalists possessed assets which grew in value and were “made more secure by their labors at Philadelphia,” and they represented “distinct groups whose economic interests they understood and felt in concrete, definite form.”In contrast, according to Beard, the anti-ratificationist anti-Federalists (to whom he devoted relatively little attention), hailed from “the agricultural regions, and from the areas in which debtors had been formulating paper money and other depreciatory schemes.”  But the “debtors everywhere” who fought ratification lacked money and power. “The wonder is that they came so near defeating the Constitution at the polls.” 
Over the next half-century, historians waged battle over the house Beard built. “It is obvious by now,” Gordon Wood wrote in 1967, that “Beard’s notion that men’s property holdings, particularly personalty holdings, determined their ideas and their behavior was so crude that no further time should be spent on it.” Yet Wood insisted that “while Beard’s interpretation in a narrow sense is undeniably dead,” killed by historians who provided chapter and verse on its methodological flaws,“the general Progressive interpretation” that Beard epitomized and that portrayed the Constitution as a battle between the classes and the masses, retained its vitality.And indeed what Saul Cornell calls “the soft version of Beardianism” remains alive for some historians in history departments like Woody Holton.
Whatever their politics, law professor historians have often seen that as bad news.“In an era of robber barons and brutal corporate buccaneers, of urban corruption and grinding poverty, of struggles between labor and capital that reminded observers of European class struggles, Beard asserted for the first time that the Constitution was conceived in earthly sin, the sin of self-interest and bitter group struggle,” Morton Horwitz wrote in 1984.He blamed Beard for the “moribund” state of the legal historiography of the late nineteenth and early twentieth centuries, where most scholars, continued to ask, along with the progressives themselves, why the Supreme Court had gone “’off the tracks’ through use of substantive due process during the Lochner era.”And twenty years after Horwitz, G. Edward White contended that Beard ignored the “ethos of disinterestedness” for public servants during the late eighteenth century.For White, that made Beard’s Economic Interpretation as “anachronistic in its approach to the framing period” as the approaches of “his Progressive successors” who maintained that “much of the language of the law, which features technical discussions of legal sources that are often unintelligible to persons without legal training, which almost never allude to ‘classes’ or interests,’ and which only rarely detail the short-run political, social or economic consequences of a decision, needs to be ignored or discounted by persons seeking the meaning of legal decisions.”Others were more charitable. Most of the participants in the 2013 symposium on the centenary of An Economic Interpretation of the Constitution of the United States in Constitutional Commentary, saluted Beard.But they still treated his book with the same condescending approbation that historians accord a work like Richard Hofstadter’s Age of Reform that we conclude was great because it provoked scholars to prove it was completely mistaken.
For many law professors, Beard had become the scapegoat for everything that was wrong with previous interpretations of constitutional history.If you were a Horwitz traveling, like Saul on the road to Damascus, between Transformation I and Transformation II, at a time when Critical Legal Studies was both flourishing and distinguishing itself from politically liberal Law and Society approaches that treated law as the mirror of society, you belatedly joined with, or, perhaps, capitulated to, your friend and colleague, Duncan Kennedy, in switching the focus away from how judges froze their economic interests in law, a la Beard, towards their ideology, or legal consciousness.And if you were White, you dismissed Beard, however much he would have protested, as “one of the first of a line of twentieth-century legal historians who combined a belief that interest group affiliation and ideology drove legal decision making with a growing conviction that, over time, leveling tendencies would inevitably overcome the efforts of entrenched interests to resist them.”
Now comes Klarman, White’s onetime colleague, to argue for the viability of a hard-edged Beardianism.Unlike Beard, Klarman does not focus only on the Framers, and he avoids Beard’s missteps.For Klarman, the Constitution represented “a ‘coup’ against public opinion” that undermined democracy and reflected the Framers’ “deep distrust of the people.” The elite and relatively wealthy “extraordinarily talented” statesmen who gathered in Philadelphia knew that the Articles of Confederation were flawed, were terrified by the tax and debt relief measures that some states had enacted, and saw Shays’s Rebellion as ‘’truly deplorable’ and ‘distressing indeed,’” Klarman contends.They possessed “interests” and good intentions, and both helped to explain why the Constitution proved “so much more nationalist and anti-democratic than the country as a whole.”
Among others, ratificationists were comprised of city dwellers, including merchants and shippers, who benefited from the Constitution’s trade provisions and hoped the document would limit inflation; creditors, who appreciated Article I, Section 10, which prevented states from making paper money and said they could not impair contractual obligations by enacting debtor relief laws; and government bondholders, who believed that the federal government would assume the state’ war debt at ratification. “Beard was not wrong to claim that government creditors—especially creditors of the federal government—had strong incentives to support ratification,” Klarman maintains in one footnote.“His mistake was in overstating the extent to which those who drafted and ratified the Constitution held government securities at the time of their actions, as opposed to having purchased them by the time of Secretary of the Treasury Hamilton’s funding operation, beginning in 1790.”Ratificationists did not necessarily act “solely out of self-interest,” for creditors and government bondholders reasonably believed “government must pay their debts—both as a matter of justice and as a means of maintaining a strong credit rating.”
While it may be easier to prove that class interests determined who supported the Constitution than who opposed it, Klarman also contends that economic considerations may have played a role in explaining why some battled ratification.A good percentage of“the poor and middling farmers” who fought it, he hypothesizes, may have been moved by the Constitution’s inclusion of Article I, Section 10, “which presumably would bar the sort of relief programs that a majority of states had enacted in the mid-1780s and that many farmers probably believed (or knew) had saved them from bankruptcy.”Westerners proved less enthusiastic about ratification than Easterners because they were “more supportive of the debtor relief measures that the Constitution prohibited” and because they “reflexively opposed any measures endorsed by easterners, who flaunted their polished manners and superior educations, and outvoted westerners in malapportioned legislatures.”Northerners wanted the Constitution more than Southerners because some Southern Anti-Federalists warned that ratification would put slavery “at risk,” and, even more importantly, feared that “northerners would control the national government and use its power—especially those over commerce and treaty making—to the detriment of southern economic interests.”By Klarman’s account, only groups with religious concerns apparently did not take economic interests into consideration.
To be sure, he acknowledges, we cannot be sure of what motivated individual delegates to the Constitutional or ratifying conventions and other participants in the great ratification contest.Who knows, for example, Patrick Henry’s “real reasons” for objecting so strenuously to the Constitution, “which might have been as trivial as his not participating in its drafting”?Yet Klarman seems certain that“the Framers were seeking to establish an aristocracy of sorts” and that “it certainly appears as if calculations of material interest were a vitally important factor” for delegates to the ratifying conventions.
And as he stresses, the battle over ratification was so close “the Framers’ coup” might have failed, particularly since “perhaps as many as half of all Americans had opposed ratification in 1787-88.”But the Federalists were smart strategists. After exceeding the Confederation Congress’s instructions at the Constitutional Convention, for example, they wisely settled for what George Washington characterized as a “feeble” unanimous agreement by all delegates to the Confederation Congress to transmit the document to the state ratifying conventions “without,” anti-Federalist Richard Henry Lee stressed, “a syllable of approbation or disapprobation.” As Lee mourned, “while unanimity had characterized only the act of transmission, Federalists hoped ‘to have it mistaken for a unanimous approbation of the thing.’”Klarman shows that “the Federalists made some of their own luck” in persuading the nation to adopt “the thing.” They also benefited, he demonstrates, from dismay over Shays’s Rebellion; their head start in the propaganda war against anti-ratificationists; malapportionment of state legislatures; a sympathetic media; the geographical distribution of the Constitution’s proponents and opponents; the locations of the ratifying conventions; overwhelming elite support, except in Virginia; Article VII’s requirement of just nine states for ratification; their success in warding off intermediate solutions to the flawed Articles of Confederation or the nationalizing, anti-populist Constitution; and anti-ratificationist blunders.
It all sounds reasonable to me! Some may reply that no one but martyrs or ideologues would advance positions contrary to their self-interest and that Klarman and Beard don’t get us that far.Moreover, just because the Constitution helped the economic interests of certain wealthy individuals and/or groups doesn’t mean it hurt the interests of others.After all, “ordinary people” benefited from the Constitution too, and, as Klarman notes, challenges to its legitimacy virtually disappeared in the years after ratification, thanks to reduced taxes, an expanding boom economy, and the realization by ex-Antifederalists that “working within the new system” and party politics could prove as productive as challenges to the Constitution’s validity.Doubtless, many scholars will continue to focus on how the Constitution promoted, preserved and revised the ideals of the Revolutionary generation.They will, however, have to reckon with Klarman’s revival of a Beard for the twenty-first century.
If Klarman and Beard are correct, or even if they are not, why do we fetishize the Constitution, and what allegiance do we owe it?Why should we venerate a document whose ratification reflected political and economic interests as pedestrian as New York City leaders’ fierce desire to keep Congress stationed in present-day Manhattan?In The Framers’ Coup, Klarman prudently steers clear of the question of whether we can and should honor his subjects’ intent.He had enough to do!But he has made his disdain for “originalists” evident on this very blog. Since I share it, I hope that his dazzling book will provide grist for anti-originalists’ mill.Originalism’s foes customarily trot out Thomas Jefferson.Just as Klarman quotes him in the final paragraph of the book, I cannot resist doing so in my last one here.Perhaps the sage of Monticello was right to remind an acquaintance in 1816:
Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched.They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment.I knew that age well; I belonged to it, and labored with it.It deserved well of its country.It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of book-reading; and this they would say themselves, were they to rise from the dead….[L]aws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.
Laura Kalman is Distinguished Professor of History, University of California, Santa Barbara. You can reach her by e-mail at kalman at history.ucsb.edu
*Distinguished Professor of History, University of California, Santa Barbara.I thank Rosemarie Zagarri for help with this comment.
 Michael Klarman, The Framers’ Coup: The Making of the United States Constitution 399, 400 (New York: Oxford University Press, 2016).
 Charles Beard, An Economic Interpretation of the Constitution 324 (New York: Macmillan, 1913).
 Gordon Wood, Book Review, 24 Wm. & Mary Q. 632, 637 (1967). See, e.g., Robert Brown, Charles Beard and the Constitution (Princeton: Princeton University Press, 1956); Forrest McDonald, We the People: The Economic Origins of the Constitution (Chicago: University of Chicago Press, 1958).
 Saul Cornell, “Conflict, Consensus & Constitutional Meaning: The Enduring Legacy of Charles Beard,” 29 Const. Comment. 383, 387 (2014); Woody Holton, Unruly Americans and the Origins of the Constitution (New York: Hill & Wang, 2007).
 Richard Hofstadter, The Age of Reform: From Bryan to F.D.R.(New York: Knopf, 1955).See Laura Kalman, “Transformations,” 28 LSI 1149, 1150-51 (2003). Hofstadter himself mourned in 1968, “Today, Beard’s reputation stands like an imposing ruin in the landscape of American historiography.”Richard Hofstadter,The Progressive Historians: Turner, Beard, Parrington 344 (New York: Knopf, 1968).Hofstadter still possesses protectors.See, e.g., Robert Johnston, “’The Age of Reform’:A Defense of Richard Hofstadter Fifty Years On,” 6 J. Gilded Age and Progressive Era 127 (2007).
 Morton Horwitz, The Transformation of American Law, 1780-1860 259 (Cambridge: Harvard University Press, 1977); Horwitz, The Transformation of American Law 1870-1960: The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992).
 John Schlegel, “Notes Toward an Intimate, Opinionated, and Affectionate History of the Conference on Critical Legal Studies,” 36 Stan. L. Rev. 391,402-03 (1984): “Nor would I ever miss the balding, almost elfin, Morty Horwitz, embarrassedly defending his latest attempt to salvage his limited version of the socioeconomic determinism of legal ideas from the onslaught of his neighbor in Langdell Hall, Mr. Kennedy” at Conference of Critical Legal Studies meetings.
Beard subsequently insisted that he had not meant to dishonor the Framers by arguing that they acted to feather their nests, or that economics by itself determined the shape of the Constitution, only that “economic pressures” had a place in the study of history.Charles Beard, An Economic Interpretation of the Constitution of the United States xvi, xvii (New York: Free Press, 1935). Should we accept his “one explicit disavowal or follow the many contrary passages interspersed throughout his text?,” Hofstadter once asked. Do neither, Hofstadter advised, but recognize the “ambiguity” in An Economic Interpretation of the Constitution that reflected the two Charles Beards.There was “Beard the reformer, the moralist, the rebel against authority,” the Progressive muckraker who “strayed into economic reductionism.” And there was the Beard of Knightstown, Indiana, “reared in solid Republicanism, himself strongly driven to achievement, a man who admired mastery and control, a scholar disciplined and inhibited by the ideal of scientific history, an American patriot who did indeed revere the practical genius of the Founding Fathers and who, in the light of all they accomplished, did not feel that the self-serving side of their work was an unforgiveable flaw or that it should be taken to discredit their statecraft.”Hofstadter, The Progressive Historians, at 216-17.
 White, “Charles Beard & Progressive Legal Historiography,” at 364.
 Michael Klarman, The Framers’ Coup, at xi, 608.
 Religious dissenters “disproportionately opposed ratification” because the Constitution did not then protect religious liberty, while others who were “religiously devout” maintained that the Constitution afforded too much protection for religious liberty by forbidding any religious test for federal officeholder.” Id. at 391.Emphasis in the original.