The Coup Against Public Opinion

constitutional_conventionBet you think this will be about politics. It is, but not how you think. The Framer’s Coup: The Making of the US Constitution is Michael J. Klarman’s book about the formation and adoption of the U.S. Constitution. Politicians who wave the Constitution about should perhaps read his book first. As he described in a recent lecture at the David Library of the American Revolution, the Founding Fathers tore up what they were supposed to do in Philadelphia and rewrote our founding document quite differently than what the people expected.

Klarman, a Harvard Law School professor, believes the Constitution was a conservative response to the egalitarian impulses that produced the Revolutionary War. In the War, the founding fathers were frustrated at how slow the states were to provide support, deeming them “as obstructionist as the British.” And, they wanted government in the hands of “the right sort” of people—what today we would call “the elites.”

Contrary to what was expected, the framers of the Constitution produced a document that is more nationalizing, with certain explicit and implied powers reserved to the federal government, unlimited taxing and military authority, and the ability to regulate foreign and interstate commerce. It also has the ability to create laws “necessary and proper” to implement these provisions.

The federal government has a mechanism to enforce its supremacy, too, including the federal court system and rules that limit the powers of the states, forbidding them, for example, to print their own paper currency as they did in colonial times.

The Constitution’s anti-populist provisions include relatively long terms in office (for which we can be grateful; constant political campaigning sounds totally unbearable at the moment). Essentially, the men who framed the Constitution did not trust the people’s choice—“you might as well ask a blind man to pick a color,” they believed—and favored a system of indirect elections. Although members of the House of Representatives were to be elected directly, the number of these legislators was at first small, and they were elected from a state at large, not from specific districts, as now. This diluted an individual’s vote. Another of these anti-populist provisions was, of course, the Electoral College.

These friction points of more than 200 years ago are not irrelevant today. Texas governor Greg Abbott has agitated for a new Constitutional Convention aimed at restricting federal power. Article V of the Constitution allows for a new Constitutional Convention if two-thirds of state legislatures request it.

Klarman says, “there’s a reason there hasn’t been another one.” There are no rules in the Constitution about how such a body should proceed, making Article V “the black hole of constitutional law,” according to one legal scholar. Nor are their limits on what such a body can do, which means it could tear the whole thing up and start over, exactly as the Founding Fathers did.

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