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
Reading The Founder’s Coup, I couldn’t help but feel like Michael Klarman was arguing with an unseen interlocutor who engaged in hero-worship of the Constitution’s framers, who imagined their using pure reason and philosophical texts to craft a plan of government more brilliant than any seen previously, and then nobly campaigning throughout the nation to convince the public of their wisdom. Klarman illustrates why this impression would be mistaken with painstaking attention to detail — describing precisely the messy manner in which decisions were made at the constitutional convention, who said what, what alternatives were considered and why, and how a result was finally achieved. Often delegates advocated positions that would be to the advantage of themselves or their states. At other times, delegates did advocate positions in the broad interest of the union, although those positions were often contingent to the political climate of the time — some ideas could be sold to the public; others could not.
While The Founders’ Coup soundly addresses the hypothetical hero-worshipper, another question follows. What should we, in the present-day, do in light of these portraits of the framers and of the Constitution’s origins? Klarman’s earlier work suggests that he believes the imperfect, anti-democratic, practically-minded framers do not deserve our deference and fidelity. In his 1997 article Antifidelity, Klarman wrote, “Why would one think, presumptively, that Framers who lived two hundred years ago, inhabited a radically different world, and possessed radically different ideas would have anything useful to say about how we should govern ourselves today?” Klarman continued to argue that, rather than focus on the Constitution, 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), rather than through the edicts of long-dead Framers or relatively unaccountable judges.”
One could respond to Klarman, and the awesome body of evidence he corrals, in a manner quite perpendicular to his narrative. Maybe it doesn’t really matter what the framers were like, any more than it matters what the legislators sitting in Congress in 1953 were like. If we recognize what they wrote as law, it should remain the law until amended or altered by an acceptable mechanism, or until we jettison the legal regime for being sufficiently unjust or unworkable (as the framers did with the Articles of Confederation).
But perhaps a more interesting and relevant question to Klarman’s book is to ask, given the qualities of the framers of the Constitution, should we be more or less inclined to take their views and writings seriously? Klarman appears to be arguing that, to the extent our approach to constitutional interpretation is influenced by the framers’ words, actions, and intentions, the picture he paints would tell us that they are unworthy of deference.
On the other hand, humanizing the founders and exposing their flaws, as Klarman does, may be more endearing than alienating. There is a reason that books and biopics about seriously flawed leaders, scientists, and artists are so popular. Seeing someone struggle with illness, emotions, trauma, petty rivalries — and still creating or doing something of value — is an inspiring experience because it reminds us that despite our own imperfections, we can also create valuable objects and institutions. And so reading about the delegates’ attempts to advance their own agendas and produce a plan of government that would prevent the states from descending into chaos or war, and being successful at it, has a similar inspirational effect.
Indeed, practically speaking, a plan of government created by flawed human beings, with mixed motives and the prejudices of their time, was probably more likely to be successful in keeping the union together and functional than something that delegates behind a veil of ignorance would have designed. When reading this book, I kept trying to imagine what “pure-hearted,” disinterested delegates would do, and my mind kept wandering back to Plato’s Republic and his philosopher-kings. If you’ve read the Republic, you probably remember the supreme oddness of the fact that Socrates’s Republic sounds at times like a horrifying dystopia, even though Socrates is trying to rationally deduce what the good society is. Socrates has the leeway to ignore cultural norms because the Republic is an idealized blueprint, not something that was going to be implemented in a city-state as-written. One suspects that if Plato or Socrates had tried to implement it in an existing society, their attempts at steering everyone into the “best” system would have spawned violent rebellion (particularly concerning the parts about forcibly separating parents and children). Even if Socrates were right, and had in fact deduced the best framework for society, he wouldn’t have been able to actualize it because it would have cut too much against the cultural values and existing interests of the polity he lived among. So, while we can criticize the framers for being motivated by petty or culturally-contingent interests, we can also see their selfish interests and local interests as creating the possibility that a successful plan of government would be adopted at all.
It is also quite possible to see the division between selfish and noble interests as much muddier. For example, Klarman points out a comment by Gunning Bedford, delegate from Delaware, in which he expressed concern that Delaware’s interests could be trampled on by other states if Congressional representation were only allocated by population, and if Congress could veto state legislation. At the time, Delaware only had 1/90th of the population of the union. While Bedford was indeed working to retain and gain power for his home state, his concern is also plausible — if Delaware found itself in a rivalry with a few larger states, those states could have joined together to undermine Delaware’s internal governance. (157)
Similarly, many of the framers’ elitist statements equally reflect the valid concern that majorities sometimes inappropriately oppress minorities. Klarman quotes Madison: “The greatest desideratum in government” was how to “render it sufficiently neutral between the different interests and factions. . . .” While a monarch could be “neutral” towards subjects, a monarch could also “sacrifice their happiness to his ambition and avarice.” On the other hand, pure majority rule would not keep the majority “from unjust violations of the rights and interests of the minority, or of individuals.” (131-32) Klarman also notes that delegate Elbridge Gerry “balanced his fear of democracy with an equally strong suspicion of elites.” (142) We know from experience that majorities can make unjust decisions, and that it’s unclear how to defend against those dangers of majorities without implementing measures that are, effectively by definition, undemocratic. The framers’ conflicting instincts about democracy reflect the phenomenon legal thinkers still struggle with: popular majorities and elite minorities can both abuse power, and no one has derived the perfect answer for how to prevent one type of abuse without enabling the other. (And it’s far from clear that we’d design a significantly better system for avoiding abuses of power, if starting from scratch today.)
In other cases, the framers’ decisions do reflect humanity’s great ability to sanction evil once it is normalized within society. Klarman tragically notes, even only “very few northerners were sufficiently aggrieved by the Constitution’s proslavery features to oppose its ratification on that basis.” (304) The fact that the framers and ratifiers could only see the just society through a glass darkly, because of their environment, interests, and culture, reminds readers that none of us can claim to see justice clearly. We all are impacted by the assumptions and standards of the time and place we exist. We can still try to do justice, and even if we don’t always even succeed at moving the ball forward, maybe, through our imperfect efforts, we at least stop it from backsliding further.
The Founders’ Coup is a book I know I will return to frequently, for citations and anecdotes and details about the founding-era debates. But those narratives of humans' struggling to compromise and form a government will be more inspiring than discouraging, because of and not despite the founders’ flaws. Indeed, in the current polarized political climate, the framers’ ability to sustain the Union almost functions as a beacon of hope. If they managed to succeed at all — despite their near-failures, divergent interests, and dirty political tricks — maybe we have a chance today too.