MICHAEL KLARMAN: All right, why
don't we go ahead and start. Thanks for coming everybody. I'm Mike Klarman. I've been teaching here
for about nine years. I teach constitutional law,
constitutional history, a seminar on the Warren Court. I'm really honored,
flattered that some of you would want to be here. I do have to question your
judgment a little bit though. I was flipping
through the brochure, and I would have chosen several
sessions over this myself. So I'm going to guess
that you signed up for some of those
other sessions, and you were somehow frozen out. So I'm going to talk about-- I wrote a book. It was published last year. It's about the making
of the Constitution. I'm going to start just by
explaining very quickly three different reasons why I thought
this book was worth writing. As you probably
know, there's a ton of stuff written about the
making of the Constitution. Why do we need another book? And then I'm going to tell you
three arguments from the book that I think cohere into
a logical narrative. And then we'll have plenty
of time for questions. I think what I'm going
to do usually takes me about 45 minutes or so. So we'll have at
least 40 minutes or so I would think
for questions. OK. So three reasons why
I thought the book was worth writing,
even though there's already a tremendous amount-- much of it very, very good--
distinguished scholarship on the founding. Why do we need another book? First point, they're terrific
books on particular parts of the founding. So every generation
produces another good book on the Philadelphia Convention. There's Pauline Maier's
terrific book on ratification. Jack Rakove has written
a distinguished book about the Articles
of Confederation. There are books on
the Bill of Rights. Nobody has actually written
one volume from the beginning to the end. So starting with the
flaws in the Articles of Confederation, carrying
through to the conflict in the states over
monetary and fiscal policy that played a very large role in
the coming of the Constitution through the
Philadelphia Convention. Then the struggle
over ratification. The intellectual debate
between Federalists and any Federalists over
whether the Constitution should be approved. And then finally,
the Bill of Rights, which as you probably know, was
added a couple of years later. So I thought there
was a certain virtue in being able to go to one
book and finding all of that. Second, it's
possible now in a way that it wouldn't have
been a couple of decades ago to really go back to
the original sources, which are pretty much
gathered in one place. And they've actually
been digitized. So there are about 30
volumes on a project called The Documentary
History of Ratification of the Constitution. Each of those 30 volumes has
something like 400 or 500 pages of documents. They've literally
combed the world and found every newspaper
article, every letter, every diary entry. Anything that seemed
relevant to the ratification of the Constitution. And that's in addition to
the documentary collections of Madison's papers,
Washington's papers, the documentary history,
the first Congress. So it's possible now with
a fair amount of ease. This stuff, as I said,
has been digitized. You can literally sit in your
bedroom with your computer and get access to all of it. It's possible to go back
to the original sources and try to tell the
story through the voice of the participants. And that's what
I've tried to do. I think it adds a certain
vibrancy to the story. But it also enables
people to decide whether my interpretation seemed
convincing to them or not. I'm giving you the evidence. I'm quoting Madison
or Washington. I'm not saying take
my word for it. This is how I interpret them. You can read their words and
decide whether what I'm saying is persuasive. And then third, and
finally, I'm trying to put a sharper edge
on an interpretation that's been around
for a long time and that I basically agree with. That interpretation
is the Constitution is best understood as a kind of
conservative counterrevolution against forces of democracy
and redistribution that were set in
motion or accelerated by the Revolutionary War. Now, I didn't say that's an
uncontroversial interpretation, but it's an
interpretation that's been around for a long time. Lots of people have
subscribed to it. I basically agree with it. And, as I said, I'm trying
to put a sharper edge on it. And I'll explain as I move on
to the other parts of my talk exactly what I mean by that. So those are the three
reasons why I wrote the book. Now I'm going to tell you
three things about the book, and I hope they cohere into
an intelligible narrative. Obviously, I'm not talking
about everything in the book. The book is over
600 pages of text. For example, it doesn't actually
come up very much in my talks-- slavery-- but there's a whole chapter
in the book on slavery. I'm happy to answer
questions about slavery. But for reasons that
will become apparent, slavery actually is not an
important part of the narrative that I'm telling. If you're interested in
the larger picture, though, you can't understand what
happened in Philadelphia without understanding the
conflict between states that had a lot of
slaves and states that had very few slaves. All right, so three points
that I'm going to make. I'm going to describe
to you two ways-- the first point
has two sub-parts, because we're lawyers
and we love sub-parts-- two different points about
ways in which the Constitution differed from what most
Americans probably expected the Philadelphia
Convention to do, and indeed probably wanted the
Philadelphia Convention to do. Those are, first, the
Constitution's more nationalizing, by
which I mean simply shifting power from the
state and local level to the national level. And the Constitution is more
democracy-constraining or anti-populist. And I'm going to use
those as synonyms. And I don't mean anything fancy. They're just trying to set
up a national government that in various ways is removed
from the direct influence of ordinary people. So that's the first point. Second point, I want to explain
how the Philadelphia Convention managed to do these
things that were different from what most people
expected and probably wanted. And then third-- and I think,
in a way, most interestingly-- how did they manage
to get the country to approve something,
part of which was addressed toward depriving
ordinary people of influence over the national government? Why, in a fairly democratic
ratifying process, would people approve a
constitution, an important part of which was addressed
toward limiting the influence of ordinary people
on the national government? Now, when I say in a
fairly democratic process, I immediately have
to qualify that. From our perspective
today, the process doesn't look very democratic. Women were not
participating in politics. Most African Americans
were enslaved. Even those who were free
were often not allowed to participate in politics. Every state had property
qualifications on the suffrage, meaning that poor people who
didn't own any real estate weren't participating
in politics. That doesn't sound
very democratic from our perspective. But if you consider it from
a different perspective, either the perspective
of world history or the perspective of
international practice at the time of
the founding, this was the most democratic process
the world had ever seen. Literally hundreds of
thousands of Americans were voting for maybe 1,500
delegates who are then going to vote on whether
the Constitution became the nation's governing document. The world had never
seen anything like that. Not so democratic
from our perspective. Incredibly democratic from the
perspective of world history and the international context. So the first part
then, I'm going to talk about the nationalizing
features of the Constitution. One of those is the
national government is given virtually
unlimited taxing authority. Now, that doesn't sound, I
think, very extraordinary to us today. But when you compare it
to the relevant baseline, it actually is
fairly extraordinary. Under the Articles
of Confederation, which are what govern the
country for the decade before the Constitution,
Congress had no taxing power. Congress could
requisition funds, which was basically a request
for money from the states. But there was no coercive
mechanism to enforce that. So the states either ponied
up or not as they pleased. And often, they
didn't contribute their allocated requisitions. Under the Articles,
there was a proposal to change that because
people understood that you can't run an effective
government without a coercive taxing power. So there was an amendment
proposed under the Articles that would give
Congress the authority to impose import duties. I won't get into this in detail. But import duties were seen as
the easiest form of taxation at the time. We can talk more about that
if people are interested. So there was a proposal to give
Congress a very limited taxing authority to impose a 5% duty on
goods coming into the country. That proposal was rejected
because the Articles required unanimity for amendment. And there was never unanimity
about any of the amendments proposed under the Articles. So the Articles were
never successfully amended until the Philadelphia
Convention just tore them up and started over again. So again, we're going from a
system with no coercive taxing power where there
had been proposals to grant a limited
power, which were defeated, to a system with
a virtually unlimited taxing power. Now, just one more point
about that to illustrate. Congress is given the authority
to impose direct taxes, like taxes on land
or taxes on people. Those were the most
controversial form of taxes at the time, partly
because they were aggressive. A tax on people means poor
people pay the same tax as wealthy people. Even more importantly, a tax
on land if you can't pay it means you're going
to be bankrupted. And you're going to be
thrown off of your farm. A tax on imports,
if you can't pay it, simply means you won't
consume the goods that are being imported. And back then, most
of the imported goods were luxury items. We weren't importing
bread for people to eat. So Congress is being
given unlimited authority to impose the most controversial
forms of taxation, which enable you to throw
somebody off of their land if they can't pay the tax. Second, Congress is given
virtually unlimited authority with regard to the military. Congress is empowered
to raise armies. Congress is empowered
to create a navy. Congress is empowered to
conscript state militias into federal service. Now, there are
sorts of limits you could impose on those powers. And the people who
opposed the Constitution proposed such limits. So you could say,
of course we'll give Congress the authority to
create an army during wartime. But peacetime armies
are very dangerous, because they can be used to
suppress political dissent as well as protect
against invasion. So we're not going to allow
armies during peacetime. Or we'll allow a small
army during peacetime, but we want to limit it to
1,000 or 2,000 soldiers. Or standing armies
are dangerous, so we should require
that Congress vote by super majorities if we're
going to have such a standing army during peacetime. None of those restrictions
are part of the Constitution. Constitution gives Congress
virtually unlimited authority over the military. Now, again, contrast that with
the Articles of Confederation where Congress could
only requisition troops from the states. That's a request. Like a requisition for funds,
a requisition for troops doesn't come with any
enforcement authority. So Congress makes the request,
and states may or may not comply with the request. Third, constitution
gives Congress unlimited authority to
regulate interstate and foreign commerce. There was nothing like
that under the Articles of Confederation. Fourth, congress gets implied
powers under the Constitution. There is the Necessary and
Proper Clause at the end of Article 1, section 8. Article 1, section 8
lists Congress's powers-- power to tax, power
to regulate commerce, power to create postal roads. At the end of that is the
Necessary and Proper Clause. In addition to the
enumerated powers, Congress can adopt laws
necessary and proper to effectuating
the other powers. That is an explicit
grant of implied power. Contrast that with
the Articles where Congress was expressly limited
to explicitly delegated powers. So under the Articles,
there is an expressed denial of implied powers. And under the
Constitution, there is an explicit
expressed authorization of implied powers. Fifth, and finally,
Constitution provides a mechanism for the enforcement
of federal supremacy. Under the Articles,
even if Congress was delegated an explicit
power such as the power to make treaties,
Congress had no authority to actually enforce that
against recalcitrant states. Now, that was seen
as an obvious defect. Madison had a
proposed solution that was very dear to his heart. Madison, who was
more responsible-- and we'll talk a little bit
about this in a few minutes-- Madison, who was
more responsible for the Constitution
than anybody else, he actually wanted to give
the national government the authority to veto
any legislation adopted by the states. Now, if you think about
that, that's extraordinary. Even today, the
national government has no general authority apart
from its enumerated powers in which it can veto any
state law whatsoever. Even this nationalist
body of delegates thought that was going too far. And they came up,
as a replacement, with a kind of
three part mechanism for federal supremacy. So those three parts are, first
of all, the Supremacy Clause. Article VI says
explicitly, federal law-- constitution,
statute, treaties-- are supreme over state law. And state judges are
bound by that federal law. Anything in state law to the
contrary notwithstanding. A clear statement
of federal supremacy that was not provided
for under the Articles. Second, Constitution creates
a United States Supreme Court. And it authorizes Congress to
create lower federal courts. Under the Articles, there
were no federal courts of general jurisdiction. So it got an explicit
supremacy clause. And we've got federal courts. Supreme Court's mandated. Lower federal court's
authorized, but not mandated to enforce federal supremacy. The framers are anticipating
that federal judges with lifetime tenure, protection
against diminution of salary, they're going to be
more faithful enforcers of federal law than
state judges who are dependent on state
legislatures for their salary, for their tenure in office. And might also just
sympathize with state policy when it conflicts
with federal policy. Third part, they
actually come up with a specific
substantive rule that they want the Constitution to
implement to limit the states. That's Article I, section 10,
which provides that states may not emit bills of credit. States may not make anything
other than gold and silver legal tender. States may not impair the
obligation of contract. Now, that provision is
responsive to something that was going on in the
states in the mid-1780s and was one of the
most important events that the Constitution
was responding to. In the midst of a severe
economic recession, which economic historians
would rank, I think, second only to
the Great Depression in the 1930s in
terms of severity, states were trying
to protect farmers from being bankrupted by
issuing paper money that would allow them to monetize the
wealth they had in their farms. But that they couldn't turn
into actual cash to pay taxes. And states were passing
debtor relief laws trying to enable
farmers to pay off their debts in installments,
pay off their debts in goods rather than money. And the framers-- people like
Madison, Hamilton, Washington-- they thought that those
laws were irresponsible. They thought they were close
to officially sanctioned theft. You're basically taking
the property of creditors and redistributing
it to debtors. And they wanted to stop that. So federal judges will
enforce Article I, section 10. State judges are also
bound by Article I, section 10 under the Supremacy Clause. And the Constitution will
put a stop going forward to what they regard
as irresponsible state efforts to provide easy
money and fiscal relief to farmers in a severe
economic downturn. A majority of states had adopted
those laws in the mid-1780s. At the Philadelphia
Convention, there was unanimity in the adoption
of Article I, section 10. So I think that tells you
right off the bat there has to be something a
little unrepresentative of the Philadelphia Convention
if the delegates are unanimously suppressing
a form of legislation that a majority of states in
only the two preceding years had been enacting. All right, so those are
the nationalizing features of the Constitution. Now let me shift to
the anti-populist or anti-democratic features. And the one I was just
talking about is both. So it's a good bridge
between the subtopics. Article I, section
10 both shifts power to the national level. And it's directed toward a
populist form of legislation in the states. So in addition to
Article I, section 10, what are the anti-populist
features of the Constitution? First of all, very
long terms in office. Now, as you know, house
members serve two years. Presidents serve four years. Senators serve six years. That may not seem long to us. We're used to it. Under the state constitutions
and under the Articles of Confederation, the norm
was elections every year. In every state
legislature but three, the lower house was
elected every year. And in two of those
three exceptions, the lower house was
elected every six months. In Connecticut and
Rhode Island, they had elections every six months
for members of the lower house of the legislature. In a majority of
states, governors served one-year terms. In a majority of states,
even the upper house of the legislature was
elected to annual terms. And under the Articles
of Confederation, representatives served
only one year in office. So we're moving from one year
to two years, four years, six years. There was nothing like that
under the state constitutions. And it's worth noting that
the delegates in Philadelphia almost went
significantly further. So they provisionally
agreed on three-year terms for house members. Many of them, including
Madison, would have favored nine-year terms for senators. Four delegations-- not
individual delegates-- four delegations
favored lifetime tenure for the president. Alexander Hamilton
favored lifetime tenure for the president
and the Senate. He thought that was the only
way you could adequately protect property
rights and order against the democratic
forces in the United States. So basically, lifetime
tenure is the only way to protect property
and secure order. Second, the framers adopted
in direct elections. Second, in addition
to lengthy terms in office in direct
elections, house members are directly elected. Senators, however, are
selected by state legislatures, as you may know. That remained the case until the
17th amendment adopted in 1913. Presidents were not
elected directly either. They adopted a mechanism that
distances the president in two ways from direct election. So under the Constitution--
and this has never been changed in theory, but in practice it's
evolved very differently from the way the framers
anticipated-- the Constitution provides
state legislatures choose the mechanism by which
presidents are selected. So let me state that again. Article II says
state legislatures choose the method by which
presidential electors are selected. We do that by direct election. But many of the framers--
maybe most of them-- were not expecting that. They were expecting that
state legislatures would just pick the electors. Then the electors get
together in their own state, and they choose the president. Now, the way that's
evolved in practice is they just vote for whichever
candidate won the popular vote in their state. But the framers weren't
anticipating that, because they weren't
anticipating political parties. So what they anticipated
was a two-fold remove from ordinary people. Ordinary people might pick
their state legislators, but then the state legislatures
might choose the electors. And then the electors
would independently deliberate on who ought
to be the president. So for example,
George Mason, who was a very important Virginia
delegate at the convention. He's the author of the
Virginia state constitution and the Declaration of Rights. George Mason said
at the convention, in response to a
proposal that the people elect the president directly. He said, no, that's
not a good idea, quote, "it would be
as unnatural to refer the choice of a proper
character for chief magistrate to the people as it would be
to refer a trial of colors to a blind man." Think about that some time. Think about running for
office on that platform. The people can't possibly
choose the president. They're too ill-informed
and ignorant to be entrusted with such an important task. Third point about indirectness. Even in the house
where people directly choose their representatives
and they serve only two years in office, the framers came up
with a variety of mechanisms to reduce direct
populist influence. First, they created a tiny
house of representatives. In the first Congress,
there would only be 65 representatives
for the entire country. Now compare that
to the lower house of the Massachusetts
legislature which had well over 300 delegates. 300 for just the
Massachusetts lower house. 65 for the Congress that
governs the entire country. What that meant was one
member of the lower house of the Massachusetts
legislature represented about 1,400 people back in 1787. Each congressional
representative would represent 30,000
or 40,000 people. Now if you're looking
for a modern baseline, I think congressional
representatives today represent about 700,000 people a piece. But 30,000 or 40,000 is
more than 20 times what a Massachusetts representative
would have in his constituency. Now, why did that matter? There are two reasons why they
wanted a very small house. One is because they assumed that
the larger the constituency, the more likely
the, quote unquote, "better sort of the community"
would be elected to office. The well-born, fairly
wealthy, well-educated gentry, they're more likely to be
the ones elected to office in a large, physical
constituency, because they're going to be the ones
with a larger reputation. Second, in an era of very
primitive transportation and communication, they were
assuming quite plausibly that the larger the
physical constituency, the more remote the
connection between voters and their
representatives would be, thereby enabling
representatives some slack in their relationship. Essentially allowing
them-- in Madison's words-- to refine and enlarge the
views of their constituents. A critic of Madison might
say, ignore the views of their constituents. OK, so in the house, very
large constituencies in order to enable the better sort who
will be more remotely connected to their constituents. Second, this is
not widely-known. The Constitution
actually authorizes Congress to tell
states that they have to elect their
congressional representatives at large. What that means is-- to
give a specific example-- Virginia had 10 representatives
in the first house. Virginia was by far the
largest, wealthiest, most powerful state. 10 of the first 65 congressmen
come from Virginia. Article I of the Constitution
says state legislatures get the first
crack at specifying the time, place, and manner
of federal elections. But Congress can then
revise those regulations. Now, what the
framers were clearly anticipating is Congress
could say to Virginia, you have to elect all 10 of
your representatives at large. What does that mean? Well, you give all of
Virginia voters 10 votes and give them a
list of candidates. And the candidates
getting the most votes would then represent
the entire state. All Virginians would
elect 10 representatives who did not represent
districts and communities. They represented
the entire state. That's creating an even
more gigantic constituency, which is even more likely
to elect the better sort to office,
and give them more room for maneuver in
disregarding the views of their constituents. And then the last point
on this to mention, the Constitution
omits three mechanisms that you might call democracy or
populist-enhancing mechanisms. The Constitution does not
provide for instruction. It does not provide
for a recall. And it does not provide for
mandatory rotation in office. Many state constitutions did. The Articles of Confederation
provided for two of the three. Let me just explain briefly what
these are that the Constitution leaves out. Instruction means pretty
much what it sounds like. Constituents could instruct
their representative on how to vote on a substantive issue. So a Massachusetts town meeting
could tell their representative in the Massachusetts
house of representatives-- the town meeting could
say, we want you to vote against the tax increase. We want you to vote in favor
of declaring independence from Great Britain. And if the representative
didn't do as instructed, they would be morally
bound to resign. The Constitution
does away with that. Recall means even during
your elected term in office you can be recalled
by your constituents. So under the Articles
of Confederation, congressmen were elected
by state legislatures one-year terms in office. But they could be
recalled at any point if the state
legislature didn't like the way they were behaving. And finally, mandatory rotation
is just like it sounds. It's term limits. It's a way of preventing office
holders from getting entrenched in office. Constitution leaves that out. Lifetime tenure for
Article III judges, but also no limit on the ability
of a senator or a president to be elected ad infinitum. We changed that with the
presidency in the 1950s. We amended the
Constitution after FDR had served four terms. But under the original
Constitution, no term limits, mandatory rotations. Critics of the Constitution
said presidents will simply be elected for life. The purpose of leaving those
democracy-enhancing provisions out and the purpose of putting
in the anti-populist provisions was quite clear. It was twofold. One is they wanted to prevent
the federal government from ever adopting the sort
of populist legislation that the states had been
adopting in the mid-1780s. And second, they wanted
the federal government to constrain the states from
adopting similar legislation going forward. All right, so that's the
first part of my talk. Now I want to talk about how the
Philadelphia Convention managed to do these things, which I
suggested to you were slightly unrepresentative of
what the country was expecting or perhaps desiring. One leading contemporary
critic of the Constitution, these people are called
anti-federalists at the time. And that's what historians
call them as well. One leading
anti-federalist observed-- and I think this is
accurate-- quote, "The Democratic and aristocratic
parts of the community were disproportionately
represented in Philadelphia." I think that's right. And the question is, why? And I'm going to offer you
several discrete points that I hope in combination
might amount to an explanation. But I also want to
say, this is where I'm trying to put a sharper
edge on this view that's been around for a long time. Lots of people
previously have embraced the view the Constitution's
kind of a conservative counterrevolution by the more
aristocratic forces trying to stem the tide of democracy
and demands for redistribution. But the question that
historians have not focused on is how did they get
the Philadelphia Convention to do their work? And then how did they convince
the country to approve it? And that's where I hope
I've added something to that explanation that's
been around for a while. So several discrete points. I acknowledge openly
this is speculation. I'm doing the best
I can to explain what seems like a somewhat
puzzling phenomenon. First, we have to
ask, how did state legislatures choose who would
represent them in Philadelphia? Rhode Island chose not
to be represented at all. Rhode Island did not
go to Philadelphia. If people are curious,
we can talk about that in question and answer. The other 12 states did go. All of them but one
legislatures chose the delegate. South Carolina, the governor
chose the delegates. Everywhere else, state
legislatures choose. Who did they choose? Well, in many states
like Virginia, they just chose the most
famous eminent characters in the state. So Virginia sends to the
Philadelphia Convention who? They nominate George Washington,
Patrick Henry, George Mason, Edmund Randolph, the
governor, James Madison. The most eminent citizens. Now, you have to
ask yourself, OK, how does somebody become one
of the most eminent citizens? And the answer is probably
some combination of they have a national
reputation because they've served the nation,
maybe in the military. Maybe they were members
of the revolutionary army. Maybe they served in the
Confederation Congress. And they're probably
wealthy, large landowners. And that's true about
most of the delegates at the Philadelphia Convention. Now, having a
national reputation is highly-correlated
with being kind of nationalist in your outlook. If you served in the
Confederation Congress, you've gotten
adjusted to the idea of thinking in terms of the
nation's interests rather than local parochial interests. Serving in the
Confederation army is profoundly nationalizing
for two reasons. One is you're serving
in an army that's trying to create a nation. And the second is
the states actually were seen by many soldiers
as substantial impediments to success in the
Revolutionary War. So biographers of George
Washington, John Marshall-- who was also a soldier, the
great Chief Justice later-- they've actually traced
their nationalism back to their service in
the revolutionary army when they became very
resentful of states that they saw as
obstructive to success in the Revolutionary War. Being a large,
wealthy landowner is correlated with having
anti-populist views. Most people who
are fairly wealthy did not think much
of populist efforts to redistribute wealth
from creditors to debtors. So simply in the
pool of people who you would send to Philadelphia,
if you were thinking in terms of your most eminent
citizens, there's probably something of a
bias in favor of nationalism and anti-populism. Second, the opponents of the
nationalizing anti-populist agenda of the
Convention, they actually had no reason to mobilize
in advance an opposition. Because they had no
way of knowing what the Philadelphia
Convention was going to do. And the reason for
that is the agenda mostly existed in the mind
of one man, James Madison. That's not because Madison
was the most eminent person in Philadelphia. He certainly was not. George Washington was there. He was the most famous and
beloved American citizen perhaps of all time by
contemporary Americans. Benjamin Franklin might have
been the most famous person in the world in 1787. He was there. Madison is not a
formidable speaker. Often people in his presence
can't hear what he's saying. He's not a commanding
physical presence like George Washington. He's actually pretty short. He's often ill. Madison is the foremost player
in Philadelphia for one reason only. He is the best prepared
person in the room. And he's brilliant. That helps, too. Madison spent months before
the Philadelphia Convention studying the history
of conventions. He looked at the Articles. He looked at the
state constitutions. He diagnosed their flaws. And he came up with
a remedial plan. He then organized the Virginians
to go early to Philadelphia where they could
orchestrate among themselves the details of that plan. They coordinated with
the Pennsylvanians. Those are the two
largest states-- Virginia and Pennsylvania. The Pennsylvanians were
already in Philadelphia. Because, conveniently, all
the Pennsylvanian delegates actually lived in Philadelphia. And those two
largest delegations coordinated around a plan that
was known as the Virginia Plan. It was introduced on day
one of the convention. It became the working
blueprint of the convention. And even though lots of
things Madison cared about he lost on-- where you begin, influence
is where you end up. And they started on day one
with a fairly nationalizing anti-populist set of resolutions
because of Madison's influence. Some delegates who were
appointed to the convention-- about 8 or 10 of them-- turn down their
appointments and then became leading opponents
of the Constitution, leading anti-federalists. Patrick Henry of Virginia,
Richard Henry Lee of Virginia, Samuel
Chase of Maryland-- those were some of the leading
delegates who'd been appointed but chose not to go to the
Philadelphia Convention. Now, why did they
choose not to go? It's hard to know for sure. Some of these people offered
reasons and some of them didn't. Even the reasons they offered,
sometimes we might or might not want to credit those reasons. If somebody said, I'm
not going to Philadelphia because I'm ill. Maybe they were ill, or maybe
it's a convenient excuse. Patrick Henry might have said
that his resources at the time wouldn't permit him to go. Maybe that's true. Patrick Henry's
political opponents speculated he had other
reasons for not going. I'm simply going to toss out
another possibility, which I admit is speculative, and this
is a very small sample size. So it's dangerous to
try to generalize. But it seems to me plausible
that some of these people who were appointed to
Philadelphia chose not to go and then became leading
anti-Federalists. Maybe the reason
why they didn't go is because they assumed
what the convention was going to do was a mildly
nationalizing enterprise. Give Congress a
limited taxing power. Give Congress a
limited military power. They didn't dream that what
the convention was going to do was a radical reform initiative. And if they'd known
that, they might have gone to fight against it. But given what they
thought would happen, that was something that
didn't really interest them. It didn't concern them, but
it also didn't interest them. Maybe that's why people
like Henry didn't go. Fourth, there was a decision
by some delegates who did go and who opposed
the nationalizing and democracy-constraining
enterprise to leave early. So this is Yates in
Lansing of New York. When they left early,
they essentially deprived New York of its vote. So Alexander Hamilton, who was
the most extreme nationalist of the bunch, he actually
followed them out of Philadelphia soon thereafter. Because with New York
only having one delegate, it was no longer
entitled to a vote. This is also Luther
Martin of Maryland. Now, when you walk
out of something that you disagree with and
that you deny is legitimate, you're always making
a calculated risk. Walking away from it is to
suggest it's illegitimate. So you won't be
bound by its outcome. But by walking away from it,
you also enhance the chances that it's going to move in
the direction that you oppose, right? This happens all the
time in the world today. This is the Kenyan
opposition today deciding whether to participate
in the repeat election. They think it's
going to be fixed. So they've decided
not to participate. If they participated,
they might actually win. It's a difficult choice to make. You can understand
why people would decide one way or the other. I think Yates in
Lansing made a mistake. They thought that what
the convention was doing was illegitimate. And they wanted to
de-legitimize it. But by walking away, they
ensured that the convention would render an even
more nationalizing and democracy-constraining
document. Two more points on
this to mention. The delegates made a
critical decision on day one to close the doors of the
Philadelphia Convention. Now, they had some good
reasons for doing so. Madison said later-- and
this is plausibly right-- they wouldn't have produced
any constitution if they hadn't closed the doors. Closing the doors
means essentially there aren't going to be
newspaper reporters there publicizing what was said. By closing the doors, I think
they had two important impacts. One is they liberated
the delegates to make the most extreme
statements in favor of a nationalizing,
democracy-constraining constitution. They would have paid
a political price for those statements
had there been newspaper reporters writing them
down and then publishing them in their newspapers. Second of all, they prevented
the anti-Federalists from getting an
additional four months to organize an opposition. The convention
started around May 25. It ended on September 17. What was happening
in Philadelphia was a closely-guarded secret. If the anti-Federalists
had had those four months to start organizing
opposition, it would have been very
helpful for them. This is an era of very
primitive transportation and communication. And as we're going to
see in a few minutes, the anti-Federalists
were especially disadvantaged in their efforts
to organize opposition. So it would have
been very convenient for them to know what was
going on in Philadelphia. Sixth, and finally,
the delegates made a momentous choice. They decided that they
would go for broke. Madison and Washington had
been exchanging correspondence before the convention. And they were
pleasantly surprised to discover that they agreed
that what should happen in Philadelphia should
be radical reform, not what they called
temporizing expedience. Randolph, the
governor of Virginia, who introduced the
Virginia Plan-- because on day one,
Washington unanimously becomes the president
of the convention, which leaves Randolph as the
senior member of the Virginia delegation-- so Randolph introduces the
Virginia Plan, which was mostly attributable to Madison. Here's Madison
recording what Randolph said on that opening day. And Madison's notes
are my main but not only source on what was
said in Philadelphia. Quote, "he--" meaning Randolph-- "would not as far
as depended on him leave anything that
seemed necessary undone. The present moment is favorable
and is probably the last that we'll offer." Hamilton said similar things. Madison said similar things,
Rufus King from Massachusetts, and other big nationalists
said similar things. Their calculation was
the system is broke. We need to fix it. Fixing it requires radical
reform not incremental reform. This may be the last chance
we have to accomplish that. Let's not waste our opportunity. Third part of the talk, how'd
they get this thing ratified that was so different from what
people anticipated and perhaps desired? First point I want to make
is not an explanation. It's a point of emphasis. They barely managed
to get it approved. One real problem-- a large
problem for historians-- is that you're telling
a story, but you already know what the outcome is. And it's very tempting to
try to explain the outcome going backwards and making it
seem inevitable, especially something as important to the
American consciousness even today as the Constitution. It's hard for us to believe. This is true about
the Civil War as well. The best histories
of the Civil War emphasize the contingency
of the outcome. The Union did not have
to survive the Civil War. There are at least
three or four battles, if they had turned
out differently, the south might very
well have managed to get Northerners to give up
on the war, which would have been a victory for the south. Same thing is true
about the Constitution. We shouldn't delude
ourselves into thinking it had to be adopted. And what would have happened
had it not been adopted is actually a fascinating
counterfactual that we can speculate but surely
we don't know the answer to. The Constitution was a
very closely fought affair. North Carolina initially
rejected ratification. Rhode Island initially
rejected ratification. The New Hampshire convention
was set to reject ratification. But the Federalists who
had arrived early and set the procedural rules
actually managed definitely to adjourn the
convention to have it reassemble months later. Otherwise, New
Hampshire probably would have rejected it. And in three of the
five largest states, the vote was so close
that it's easy to imagine it coming out the other way. So in Virginia, the vote
was 89 to 79 in favor. In New York, it was
30 to 27 in favor. And in Massachusetts, it
was 187 to 168 in favor. Very narrow margins of approval. Easy to imagine the Constitution
meeting a different fate in those states. As I said, those are three
of the five largest states. It's easy to imagine if one
or two of those large states rejected ratification that the
Union would have failed even if nine states had
ratified, which is what Article VII of
the Constitution provides will be sufficient for the
Constitution to go into effect. Even if you add
nine states, if you didn't have Virginia and
Massachusetts, two of the three largest states,
it's a little hard to imagine the Union
being successful. So what are the explanations
for why the country approved the Constitution? I'm going to talk about
three different sorts of explanations. The main one has to do with
the Federalists built-in advantages. Then I'm going to say a
word about anti-Federalist miscalculations. Then I'm going to make a final
point about how the Federalists deftly prevented the
country from having a choice on intermediate solutions. And then I'll be done. I'll just wrap up quickly. So Federalist advantages. Now, I don't mean this as some
sort of conspiracy theory. These things just
happened to be the case, or sometimes the Federalists
actually made their own luck. But it's not that there was
some grand conspiracy that ensured that the
Constitution would be ratified against the
wishes of the American people. First point is malapportionment. This is especially
true in South Carolina. But it was also true enough
in Rhode Island and New York that it might have
made the difference. Malapportionment
meaning simply you did not have one
person, one vote in the ratifying conventions. So let me explain with
regard to South Carolina where the malapportionment
was extreme. Malapportionment is a result
of population moving over time, but political power not being
redistributed to reflect that population shift. In the 20th century,
that was mostly movement from rural areas to cities. In the late 18th century,
it was mostly movement from the Atlantic seaboard
to the Western frontier. In South Carolina,
the mal was extreme. So in South Carolina, 50% of
the population is enslaved. They're not voting obviously. And of those whites,
who otherwise might be eligible to
participate based on their race, probably about 40% of them
don't own enough property. But all that's to one side. That's not relevant to
what I'm talking about. Of those who are
allowed to participate, 20% live along the
Atlantic seaboard. They elect 60% of the delegates
at the Charleston Ratifying Convention. Now, that matters because
support for the Constitution is highly-correlated
with region. As you move from
east to west, you're going to get rapidly diminishing
support for the Constitution. So the 20% that
will elect 60% are the ones most likely to be
supportive of the Constitution. Historians agree that
if South Carolina had had a referendum on
the Constitution, it probably would
have rejected it. But the Ratifying Convention
approved it by a margin of two to one. That's how extreme the
malapportionment was. Second-- and maybe this is an
even more important point-- the press overwhelmingly
supported ratification. In the 1780s, 90% or
more of the population live outside of cities. But for obvious
economic reasons, newspapers were published almost
exclusively within cities. Now, the two most
important economic drivers of newspapers-- and I think this
is as true today as it was 225 years ago-- were advertisers
and subscribers. Advertisers in newspapers
and subscribers to newspapers were among the groups
most likely to support the Constitution. They would actually
threaten boycotts against newspaper editors who
dared to publish both sides on the ratifying debate. So anti-Federalists in some
states-- not all states-- actually had a hard
time of getting their essays published
in the newspapers. In the words of one of
these anti-Federalists, Agnes Burke, of South
Carolina, quote, "the whole weight and
influence of the press was on the side of
the Constitution." There were about 90 newspapers
in the country in 1787, 1788. Of those 90, only 12 published
any significant amount of any Federalist literature. Third point, several of
the ratifying conventions took place in coastal cities. In coastal cities, support
for the Constitution was almost universal. And that's across class lines. It's not only the bankers
and lawyers and merchants. It's also the carpenters and
blacksmiths and innkeepers. In the city like New
York, when they're voting for delegates to
the Poughkeepsie Ratifying Convention, 19 out
of every 20 voters votes for a
Federalist candidate. That's how lopsided
opinion was in the cities in favor of the Constitution. This has an effect
both inside and outside of the ratifying conventions. All of the conventions
were open to the public, unlike the Philadelphia
Convention was closed. That means there's going to
be crowds in the galleries. In Boston, 1,000 people line
up on a cold January day because they want to see
these debates, which are the best entertainment in town. They actually had to move
the Boston convention twice to find the largest
church in town that could accommodate
the 1,000 people that wanted to get in to see it. Now, the crowds who are
occupying the galleries, they're going to be
overwhelmingly Federalist if you are in a city. So the Massachusetts
convention is in Boston. It's not in Worcester. The South Carolina convention is
in Charleston, a coastal city, not in Columbia, which is
in the middle of the state. It's where the state capitol
just voted to be relocated to. The Pennsylvania
convention's in Philadelphia. It's not in Lancaster or York. So you're going to have
eastern cities in many states that are overwhelmingly
pro-constitution. The spectators in the galleries
have been anti-Federalists, gets up to speak. They boo. They hiss. They spit. They stomp their feet. They're rude. Anti-federalists can't
even get their speeches made without being insulted
and hissed into silence. Outside of the conventions,
it also has an effect. So when they adjourn from their
daily convention in Charleston, South Carolina, they
go to open houses that are being held by the
Charleston planner elite. And in those open
houses, you can be pretty sure they're having
whispered into their ears only pro-Constitution sentiments. Fourth, another important
Federalist advantage is simply that even
if the Federalists and anti-Federalists have
roughly equal numbers of supporters, the Federalists
have an advantage simply in organizing those supporters. That's because
Federalist supporters tend to be in cities. And they tend to be along
the eastern seaboard. And again, this is an era of
very rudimentary transportation and communication. Any Federalists tend to be
along the Western frontier or in backwoods regions
throughout the state that are only remotely tied
to commercial networks. Even if there are equal numbers
of supporters and opponents, the Federalists will have an
organizing advantage just based on the geographic distribution
of support and opposition. Fifth point, the better sort-- the well educated,
elite, well-born, often quite affluent
members of society-- they overwhelmingly
support ratification everywhere but in Virginia. In Virginia, the elite's
actually pretty evenly divided. But in other states, the
lawyers, the doctors, the clergymen, the
bankers, the merchants, they tend to overwhelmingly
support ratification. That's going to be a
disadvantage at conventions if there are genuinely open
minds subject to influence. And at some conventions,
people seem not really open to influence. But at others, it's quite
clear that lots of delegates change their minds. Backwoods farmers
were not able to quote Cicero in the original Latin. They're often unwilling
to stand up and do battle against
better educated, more socially elevated opponents. They're intimidated by speaking
against their social superiors. Thus, for example, at the
Massachusetts Ratifying Convention, an important
anti-Federalist named Amos Singletary complains. And I'm going to
give you the quote. But I want to say before I
do, I just want to preface it. Amos Singletary is speaking in
a voice dripping with sarcasm. Amos Singletary does not
think that the educated lawyers and doctors
are better than him. He's actually very
articulate, very learned, but he thinks they think
they're better than him. So this is with a voice
dripping with sarcasm. He complained of quote, "these
lawyers and men of learning and moneyed men that talk so
finely and gloss over matters so smoothly to make us poor,
illiterate people swallow down the pill." Amos Singletary
is not illiterate. Probably none of the
anti-Federalist delegates at the convention
are illiterate. Estimates are that 90% of adult
white men in Massachusetts could read and write
if for no other reason than they had to be able
to read their Bible. Amos Singletary is expressing
a common populist denunciation of the elites. That was pervasive at the
Massachusetts convention. They did so much denouncing
of lawyers that at one point, one of the anti-Federalists
had to stand up and put in a good word for lawyers. Some of my best
friends are lawyers. Sixth, and finally, the
genius of Article VII was a huge Federalist advantage. This is Article VII
of the Constitution. So this is an advantage
they created for themselves. Article VII provides nine
states can ratify and put the Constitution into operation. Those nine states can
only bind themselves. So you might ask yourself,
well, how in the end is that different from
the unanimity requirement of the articles if in the end
no state can bind any other? It turns out it's
massively different, and the framers understood that. Once nine states have ratified,
the other four, in theory, are free to join or not. But notice, they are no longer
facing the same choice set. The question now is not do
you prefer the Constitution to the Articles, but
rather, would you prefer to be in a new
form of government or be an outsider to it? In practice, if you do not join
the Union once nine states have ratified, you will be
denied representation in the first Congress
while they will be deciding very important
things, like where is the national capital
going to be located, which is worth a lot of
money to whichever city is the lucky recipient
of the capital. You will be denied federal
military protection. If you're about to have a war
against Native American tribes, as they are in Georgia,
the federal military is not going to protect you if
you're not part of the Union. And you may be subjected to
foreign trade discrimination. If you're Rhode Island and your
dilly dallying over ratifying the Constitution, Congress will
pass a law-- which it did-- threatening to treat Rhode
Island as a foreign country and impose tariff
barriers on its goods. So in practice, once nine
states have ratified, the other four states have
very strong incentives to fall in line. All right, those are the
Federalist advantages. I said I'd mention
anti-Federalist miscalculation. There's one I want to point to. In especially New
York and Virginia, I think anti-Federalists
in the legislature made an understandable
miscalculation. Understandable,
but it turned out to have deleterious
consequences for their cause. Virginia and New York
hold late conventions. They meet in June of 1788. That's nine months after
the Philadelphia Convention adjourned. Some states were already
holding conventions in November, just two months after the
Philadelphia Convention adjourned. Why are New York and
Massachusetts going so late? Anti-Federalists in the
legislature agreed-- I keep saying Massachusetts. Virginia and New York. Why did anti-Federalists in
those legislatures go so late? I think probably they
calculated they need more time to organize their supporters. Maybe they thought
their states would be more influential if they
went late in the process after earlier states
had disagreed. They could swoop in
and provide a solution. But they actually simply
made themselves irrelevant. By the time Virginia
and New York ratified, nine states had approved
the Constitution. Now, that's a little bit
of an over simplification, because New Hampshire
voted, and Virginia didn't discover it until afterwards. But Virginia knew that
eight states had ratified. And they knew New Hampshire
was on the verge of ratifying before Virginia approved. And then by the time
New York ratified, they knew that Virginia and
New Hampshire had ratified. So New Yorkers knew
that they were going to be the 11th state to ratify. And that absolutely
determined the outcome of the New York Convention. If Virginia and New
York had gone earlier, there is a very high
probability that they either would have rejected
ratification, or they would have ratified
only on the condition that amendments be adopted
before the Constitution went into effect. And if New York and Virginia
had gone earlier and reached those other outcomes, that would
have disrupted the momentum in favor of ratification
that had been building as state after state approved. The last important point
to note is something that I've learned while
working on the book. This is not something
I've learned from reading secondary
literature before I started on the project. The Federalists were very
astute at denying the country an intermediate choice. And it turns out that's
probably what most Americans would have wanted. Most Americans would have
agreed the Articles are flawed and need to be redressed. But most Americans-- or at
least a great many Americans-- thought the Constitution was a
more radical reform than they were comfortable with. So what most people
probably would have wanted was an intermediate solution. The Federalists desperately
sought to keep that solution off the table. The way that solution would
have gotten onto the table was by one of two
procedural mechanisms. Either a state insisting
that they would only ratify on the condition
that amendments first be proposed and approved. I'll call that
antecedent amendments. Ratification conditioned
on antecedent amendments. Or the second procedural
path was a second convention. Anti-Federalists made
pretty good arguments for those procedural routes. Patrick Henry in the
Virginia convention said, what sort of fool
would you have to be to enter into a contract
with another party where that party leader gets
to specify different terms? That's essentially what the
states were being asked to do. Approve the Constitution
with a vague statement. A vague promise that down the
road there may be amendments offered. And Henry says, you have
to be a lunatic to do that. Tell me what the
amendments are now. And let's actually
adopt the amendments, and then I'll ratify. The argument for a
second convention was we just had
a national debate on something that was
sprung on the country with no advance notice. It was very different
from what people had been led to believe
would happen in Philadelphia. They closed the doors
of Philadelphia. Now we've had months
to deliberate on it. We've identified flaws. We've proposed amendments. Now let's elect delegates
to a second convention where we can produce something
closer to what most Americans would be comfortable with. The Federalists responded both
by making practical arguments and legal arguments
as to why neither of those procedural methods
were actually acceptable. But the real reason why
the Federalists opposed is because they didn't want
the intermediate solutions. They liked the Constitution
as they had drafted it. And that's what they wanted
the country to receive. So in this regard, consider,
finally, a proposal by Randolph that he made in a letter to
Madison before the convention. Madison is tossing off
his ideas to Randolph. And Randolph says in response,
whatever we do in Philadelphia, we should submit
it to the country in a kind of detachable form. Let people approve
what they like and disapprove what
they don't like. Madison's response was horror. The idea that ordinary
people could possibly have informed views
on the Constitution was foreign to Madison. This is what he said in a letter
to Jefferson later in 1787. In Virginia, quote,
"where the mass of people have been so accustomed to
be guided by their rulers on all new and
intricate questions, the matter of whether to
ratify the Constitution certainly surpasses the judgment
of the greater part of them." Right, another good platform
to run for office on some time. All right, so to sum
up, the Constitution is much more nationalist,
much more anti-populist than the framers and that most
of Americans probably wanted, certainly than they anticipated. Framers took advantage
of some circumstances that were advantageous. They took advantage of
the element of surprise. They took advantage of
some miscalculations by their adversaries. Whether you agree with what
they did in Philadelphia, whether you think
it's legitimate and the anti-Federalists
raised legitimacy objections all the time. I think you have to
stand back and admire what they managed to execute. It really is a kind of coup
against public opinion. So that's what I wanted to say. And I'm happy to take
any and all questions. [APPLAUSE] Thank you.
