Wednesday, September 30, 2020

History of the Constitution of the United States of America

Last night, watching Joe Biden wrestle a pig for ninety minutes -- and come away with his tie straight and not too much mud on his jacket, I'd say -- I was reminded of some of my current reading. It's about the 1780s but boy, it's enlightening about 2020.

I've been reading The Framers' Coup: The Making of the United States Constitution by Michael J. Klarman. It's not a quick or easy read, but it is topical, particularly for someone who has never had much more American history than every Canadian is infused with, and has recently felt particularly unschooled on American constitution-making.

Despite the provocation in his title, Klarman does not come across as radical. He teaches constitutional history at Harvard Law School, writes fat academic books citing masses of mainstream scholarship, and makes almost no contemporary lessons out of his work here -- except at times to tease Americans' faith in their constitution as providential and God-given.

I learned here:

  • Those who participated in the constitution-drafting at Philadelphia in 1787 formally represented no one. They were generally private citizens invited by state legislatures and chosen mostly as prominent, educated, well-to-do respectable citizens, hardly a cross-section of American opinion.
  • Their only authority was to review the existing Articles of Confederation adopted during the Revolution, not to write a constitution.
  • They constituted not "We the People" but "a conservative counterrevolution against... economic measures enacted by a majority of state legislatures ... which they diagnosed as a symptom of excessive democracy." Boy, did they fear outbreaks of democracy.
  • Most of the things most frustrating about the American system today -- from the Electoral College to the unrepresentative Senate -- were features, not flaws, of their plan. Even the abolitionists among them agreed that slavery had to be accepted and safeguarded, but not actually mentioned, in their constitution.
  • They refused to have their proposals assessed or ratified by Congress, state legislatures, a second convention, or popular referendums. They insisted instead on state ratifying conventions where the delegates were about as unrepresentative as they were.
  • At the state ratifying conventions, they refused to have clause-by-clause voting or to allow amendments, only a Yes or nothing vote.
  • They did not believe a list of rights was needed, which is why the Bill of Rights came in as Congressional amendments after ratification of the constitution, largely as a PR gesture to appease opponents. They gave little thought to judicial review of the constitution.
There's been a lot of cringing apology published about the Canadian constitution-making, unfavourably compared to American democratic processes. I'm thinking not much in Klarman sustains that view..  

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