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The Making of the Constitution THE MAKING OF THE CONSTITUTION CLE Credit: 1.0 Thursday, June 14, 2018 12:00 p.m. - 1:00 p.m. Bluegrass Ballroom I Lexington Convention Center Lexington, Kentucky A NOTE CONCERNING THE PROGRAM MATERIALS The materials included in this Kentucky Bar Association Continuing Legal Education handbook are intended to provide current and accurate information about the subject matter covered. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of this Kentucky Bar Association CLE program disclaim liability therefore. Attorneys using these materials, or information otherwise conveyed during the program, in dealing with a specific legal matter have a duty to research original and current sources of authority. Printed by: Evolution Creative Solutions 7107 Shona Drive Cincinnati, Ohio 45237 Kentucky Bar Association TABLE OF CONTENTS The Presenter .................................................................................................................. i The Framers' Coup ......................................................................................................... 1 Interpreting the Convention .................................................................................. 1 The Federalists' Great Fears: Conditional Ratification and a Second Convention............................................. 15 Interpreting Ratification ...................................................................................... 23 Conclusion ......................................................................................................... 28 Contingency ........................................................................................... 28 Interests ................................................................................................. 31 Hostility toward Democracy .................................................................... 36 Ratification as Ordinary Politics .............................................................. 39 Excluding Intermediate Alternatives ....................................................... 44 The Decline of Legitimacy Objections .................................................... 46 How the Constitution Did and Did Not Adapt to Democracy ................... 48 From the Perspective of Today .............................................................. 53 THE PRESENTER Professor Michael J. Klarman Harvard Law School 1545 Massachusetts Avenue Cambridge, Massachusetts 02138 PROFESSOR MICHAEL J. KLARMAN is the Kirkland & Ellis Professor at Harvard Law School, where he joined the faculty in 2008. He received his B.A. and M.A. (political theory) from the University of Pennsylvania in 1980, his J.D. from Stanford Law School in 1983, and his D. Phil. in legal history from the University of Oxford (1988), where he was a Marshall Scholar. After law school, Professor Klarman clerked for the Honorable Ruth Bader Ginsburg on the United States Court of Appeals for the D.C. Circuit (1983- 84). He joined the faculty at the University of Virginia School of Law in 1987 and served there until 2008 as the James Monroe Distinguished Professor of Law and Professor of History. Professor Klarman has also served as the Ralph S. Tyler, Jr., Visiting Professor at Harvard Law School, Distinguished Visiting Lee Professor of Law at the Marshall Wythe School of Law at the College of William & Mary, Visiting Professor at Stanford Law School, and Visiting Professor at Yale Law School. He has won numerous awards for his teaching and scholarship, which are primarily in the areas of constitutional law and constitutional history. In 2009 he was inducted into the American Academy of Arts & Sciences. Professor Klarman’s first book, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality, was published in 2004 and received the 2005 Bancroft Prize in History. He published two books in 2007: Brown v. Board of Education and the Civil Rights Movement and Unfinished Business: Racial Equality in American History. In 2012, he published From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage. In 2016, Oxford University Press published his comprehensive history of the Founding, The Framers’ Coup: The Making of the United States Constitution. That book was finalist for both the George Washington Book Prize and the American Bar Association’s Silver Gavel Award. i ii THE FRAMERS' COUP Professor Michael Klarman Excerpted from The Framers' Coup: The Making of the United States Constitution. Reprinted with permission of the author. To: Kentucky Bar Association Annual Meeting Participants What follows are three excerpts from my book, The Framers' Coup: The Making of the United States Constitution (Oxford University Press 2016). I am giving you the conclusion to Chapter 3, on the Philadelphia Convention; two concluding sections from Chapter 6, which is on the struggle over ratification; and the book's Conclusion. Best, Mike Klarman * * * * Interpreting the Convention The convention finished its work on September 17, 1787. At this point, Franklin called upon each of the forty-one delegates present∗ who still had objections to the Constitution to "doubt a little his own infallibility" and agree to "put his name to this instrument" in order "to make manifest our unanimity." Professing high regard for Randolph, who two days earlier had made it clear he was unlikely to sign, Franklin urged him to join the majority to "prevent the great mischief which the refusal of his name might produce." Hamilton seconded the importance of unanimity: "A few characters of consequence, by opposing or even refusing to sign the Constitution, might do infinite mischief by kindling the latent sparks which lurk under an enthusiasm in favor of the convention which may 382 soon subside." Other delegates joined these appeals for unanimity. Morris emphasized that despite his own objections, he considered the Constitution "the best that was to be attained," and he would "take it with all its faults." Likewise confessing that he opposed "many parts" of the system, James McHenry of Maryland, who had been a surgeon in the Continental Army and then an assistant secretary to General Washington, explained that he would sign because "I distrust my own judgment, especially as it is opposite to the opinion of a majority of gentlemen whose abilities and patriotism are of the first cast," and because alterations could be obtained through the amendment process. To ameliorate the con- cerns of those still harboring doubts, the convention agreed to offer individual delegates the alternative of simply signing a letter announcing that the state delegations were unanimous in approving the Constitution. That option would have enabled dissenting delegates to soothe their consciences while preserving some veneer of unanimity—at 383 the cost of disingenuousness. ∗ Of those forty-one delegates present, three refused to sign the Constitution. Dickinson was ill and had asked Read to sign for him, which is why there are thirty-nine signatures on the document. 1 Despite such entreaties, though, three delegates—Gerry, Mason, and Randolph— remained solid in their opposition. Acknowledging the gravity of his decision not to sign the Constitution, Randolph insisted that it was "dictated by his conscience." He also emphasized that his refusal to sign did not mean that he would actively oppose ratification—only that he was keeping "himself free to be governed by his duty as it should be prescribed by his future judgment." Insisting that signing the proposed letter would not be meaningfully different from signing the Constitution, these three dissenting delegates declined to embrace the compromise solution that had been offered to them.384 Mason and Randolph were Virginians who felt that their state had been unjustly treated in both the Connecticut Compromise and the deal made between the states of the Deep South and New England involving the foreign slave trade and Congress's power to regulate commerce (to be discussed in chapter 4). Gerry, from Massachusetts, feared that the convention had veered too far in the direction of aristocracy. Critics would deride him as a "Grumbletonian" who objected to everything in the Constitution that he himself had not proposed. All three of the dissenters would play prominent roles in the ratifying contest—discussed in chapter 6—and we shall consider their more detailed objections to the Constitution there.385 Despite the three dissenters, the convention had achieved nearly unanimous support for a constitution that was especially striking in two ways. First, it dramatically expanded the power of the federal government. Second, it shielded that government in a variety of ways from much of the populist political pressure that state governments had proved susceptible to in the mid-1780s. The extent to which the convention centralized power in the hands of the federal government was extraordinary, given the baseline against which the delegates were operating. Under the Articles of Confederation, Congress could not impose any taxes, regulate foreign or interstate commerce, or enforce federal supremacy even in spheres
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