Academic journal article Michigan Law Review

The Cunning of Reason: Michael Klarman's the Framers' Coup

Academic journal article Michigan Law Review

The Cunning of Reason: Michael Klarman's the Framers' Coup

Article excerpt

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

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. …

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