Monthly Archives: May 2017

Ordinary Politics, Extraordinary Results: A Definitive History of the Framing of the United States Constitution

May 31, 2017 Reuel SchillerAdd a Comment

Michael Klarman’s The Framers’ Coup: The Making of the United States Constitution is a marvel. It’s an 850-page tome that draws us in even though we all know what happens in the end. Indeed, for most readers, the broad outlines of its narrative are ones that we’ve heard many times: in grade school, again in high school, perhaps in college, and, for a lucky few, once again in graduate school. The book’s seven chronological chapters tell our nation’s origin story: the flaws of the Articles of Confederation; the politics of the pre-constitutional period; the Constitutional Convention in Philadelphia; the debate over the constitutional status of slavery; the hard-fought political battles between Federalists and Antifederalists at the state ratifying conventions; ratification itself; and the drafting and adoption of the Bill of Rights.

Yet Klarman manages to give us a story that demands reading despite its familiarity. There are three reasons why The Framers’ Coup succeeds despite covering a subject that doesn’t lack for historical attention. First, the narrative he relates is both exhaustive and sparkling. It is encyclopedic without being an encyclopedia. The story moves along briskly because Klarman’s prose is simple and propulsive. Yet any fact that a reader would like to know about the framing and ratification of the Constitution is in here. We get the comforting reassurance of hearing well-told versions of stories we already know, such as the famous large state-small state compromise over representation in Congress. But Klarman also highlights the importance of issues that have slipped out of the traditional narrative. Only an expert in eighteenth-century political history would know of the profound effect that John Jay’s failed yearlong negotiations with the Spanish over navigation rights on the Mississippi had on the deliberations at the Philadelphia and subsequent ratifying conventions. (Klarman convincingly argues that Jay’s attempt to bargain away these rights in exchange for a favorable commercial treaty with Spain did more to engender southern fears about a powerful, northern-dominated federal government than any other issue, slavery included.)

The narrative is also replete with lesser-known tales of political skullduggery: the Pennsylvania legislature’s decision not to pay the state’s delegates to the convention, thereby decreasing the likelihood that less elite delegates would attend; and Patrick Henry’s ultimately unsuccessful attempt to gerrymander James Madison out of the first Congress. The existence of these and many other examples of “bare knuckled” political tactics (P. 612) are central, as we shall see, to Klarman’s analytic framework for his story, but they also make for excellent reading.

The second thing that makes The Framers’ Coup such a pleasure to read is Klarman’s decision to emphasize the contingency of his narrative. This is most noticeable in his chapter on the ratifying conventions. Klarman shows that many of these contests, particularly in the largest states, were decided by slim margins. He makes clear that the entire process could have come out the other way for a variety of reasons, not the least of which was the Antifederalists’ tactical error of holding the New York and Virginia conventions after most of the other states had ratified the Constitution, thereby presenting these crucially important and closely divided conventions with what was essentially a fait accompli.

Other such contingencies abound. What if Washington had refused to attend the Constitutional Convention, thereby denying it his unquestioned legitimacy? (Klarman demonstrates that it took some real arm-twisting to get the General to go.) On the other hand, what if Patrick Henry had decided to go, thereby adding to the deliberations a politically savvy and exceptionally gifted orator who was opposed to the centralizing preferences of most delegates? (Klarman reports that the historical record is unclear as to why Henry refused to attend the convention despite the fact that the Virginia legislature appointed him.)

As for the actual substance of the Constitution, the complexity of the document, combined with time constraints and a focus on certain controversial subjects (particularly the nature of each state’s representation in Congress), meant that many parts of the proposed Constitution were sent to the ratifying conventions without much thought or debate. Thus, Klarman demonstrates that some of its most important provisions, such as how the president was selected, “seemed” to be the product of “an almost random solution.” (P. 599.) By highlighting all these contingencies – would more Antifederalist delegates have gone if there hadn’t been an outbreak of smallpox in Philadelphia that summer? – Klarman creates a narrative with many of the characteristics of an action movie. We know that our “hero” (the Constitution) will triumph in the end, but we are thrilled by each of the multitude of close escapes it makes.

Finally, The Framers’ Coup is an engaging read because of Klarman’s forthright and, I imagine, controversial interpretation of the events he recounts. It’s all there in his title. Klarman views the framing and ratification of the Constitution as a coup d’état. It was a political outcome, he repeatedly argues, that did not reflect the desires of the majority of Americans. Most people may have been frustrated with the Articles of Confederation, but the creation of a completely new governing document that dramatically increased the power of the federal government was not the solution most would have wanted. Instead, that outcome reflected the desires of the emergent national elites who were appalled by the redistributive, leveling actions of many state legislatures in the 1780s. It was adopted, not because of its popularity, but because of the political savvy of the Federalists, their willingness to use underhanded tactics, their domination of the national press, the gross malapportionment of many of the ratifying conventions, the tactical ineptitude of the Antifederalists, and, quite frankly, a dose of good luck.

This brief description of Klarman’s analytic framework risks portraying The Framer’s Coup as nothing more than recycled Charles Beard: a reassertion that the Constitution was a document proposed by mercantile elites to protect their depreciating securities. Yet, Klarman is much more subtle than this. First of all, his focus on the contingency would have no place in Beard’s reductionist account. Second, he catalogues a whole host of interests – political, economic, religious – that determined why any individual would support or oppose the proposed Constitution. Unlike Beard, Klarman’s primary point is not that the framing of the Constitution was designed to further the economic interests of a particular group of people. Instead, Klarman wishes to emphasize that the framing was a political act that was supported by people for a host of reasons. The main thing he impresses on his readers is not that some particular class benefited from the Constitution’s adoption, but that all the actors in the drama of framing and ratification were engaged in a political struggle rather than a philosophical one.

Thus, Klarman’s story of the framing is not one of brilliant political philosophers collaborating on a document to preserve their republican revolution. Instead, it is one of “ordinary politics” (p. 8) in which each side attempted to create a federal government that would further its mundane political interests. While the debates at the Constitutional Convention frequently became philosophical, Klarman suggests that these arguments changed no one’s mind. They were simply rationalizations for particularized interests. In Klarman’s decidedly unromantic view of the Framers’ political thought, ideas such as popular sovereignty or Federalist No. 10’s famous theory of factions were simply stalking horses for increasing the power of the federal government in order to prevent state-level public policies that the elites disliked. There is no doubt, Klarman tells us, that James Madison was a genius, but that genius was as much political as philosophical. Our graduate school debates about “liberalism versus republicanism,” or the importance of “civic virtue” are gone from the narrative of the framing. Instead, we are left with a story of politics and power.

It seems likely that The Framers’ Coup will engender a strong reaction. Slaying sacred cows can be a dangerous business. Klarman seeks to replace the often reflexive adulation that the Framers engender in our popular culture with a more realistic portrayal of their motives. He also takes aim at an academic literature that has often emphasized intellectual history and political thought at the expense of politics. Wherever one stands in these debates, however, it is impossible to imagine that The Framers’ Coup will not become an essential text for understanding the intent of the Framers and the history of the Constitution.

“Coke-Upon-Littleton of the Fist”: Law, Custom, and Complications

May 1, 2017 Angela FernandezAdd a Comment

Robert Deal is a historian at Marshall University. His book is a nuanced account of the nineteenth-century British and American whaling industry and how it was misunderstood by contemporary lawyers and judges and continues to be misunderstood by present-day legal scholars.

Herman Melville famously wrote in Moby-Dick that whalemen settled their disputes using “hard words and harder knocks – the Coke-Upon-Littleton of the fist” (Moby-Dick, Chapter 89). As Deal shows, however, little violence actually sprung up when the crews of two (or more) ships pursued a whale but only one took it.

Deal’s explanation is that captains had incentives to engage in negotiations in a gentlemanly manner. Ownership of a whale (or shares in its blubber, sperm, or bone) was a question for the captains to negotiate and, if they could not agree, the owners of the ships could decide to pursue arbitration or, in extremely rare cases, litigation. Litigation was unpopular because it was slow and expensive. These usual problems were exacerbated in an industry where witnesses would quickly be unavailable and onto their next voyage, Deal explains. Captains spoke often about personal ethics and “laws of honor.” Good relations between captains were imperative to survival on whaling voyages because one captain might well need to turn to another for assistance if his ship ran into trouble in ice or the high winds and waves of storms at sea.

Cooperation was also important not just to the survival but also the success of a voyage. Captains were expected to help, or at least not deliberately mislead, one another about issues like weather conditions and where whales were located. When times were good and there were plenty of whales, this fact alone would greatly reduce an incentive for captains to engage in protracted and highly confrontational dispute over any particular whale. In most cases it was better to quickly agree to go halves, or some other proportion that seemed fair in the circumstances given the efforts each had invested, and move on to chasing other whales. When the catch was not going as well, as whale stocks became depleted and whalers had to go deeper into the ocean to pursue them and in more unfamiliar waters, one whale might make the difference between a voyage that was economically viable and one that was not. Deal points out that some of the litigated cases arose during lean times. The problem is that “[m]any – indeed the vast majority – of bad seasons did not send whalemen to the courtroom.” (P. 143.) And the dispute in one of the cases that Deal discusses at length, Taber v. Jenny, happened in 1852, a year that “may well have been the most successful season in the history of the Okhotsk fishery.” (P. 139.)

So what kept whaling disputes out of the courts? Deal insists it was not (contra Melville and legal scholars such as Robert Ellickson) because industry participants had a very firm and settled sense of what the rules or customs were for settling disputes. Deal argues that captains used a jumble of different competing ideas, rules, norms, and customs, including personal ethics, to decide how to negotiate situations of conflict. He concludes that captains must have wanted it that way, “prefer[ing] to operate on the basis of vague standards rather than clear rules.” (P. 162.) And while we are often told by law and economics scholars that flexibility will lead to conflict and more litigation, on the contrary, in this case at least: the “muddy standards” of the whalemen “were remarkably successful at avoiding [both] violent disputes and litigation.” (P. 163.) Hence, Coke-Upon-Littleton, i.e. legal rules, were only a very small part of what was in operation.

It is certainly true that lawyers and judges tried to generate firm rules from the handful of whaling cases that did appear before them. However, when they did so, they were not apt to follow custom or care very much about what whalemen actually did. And so when they issued rules like “fast-fish, loose-fish” (the whale was yours as long and for only as long as you remained attached to it), as the British courts did in whaling cases coming from the Greenland fishery, they deliberately ignored the rival custom that was certainly alive in that industry of “iron-holds-the-whale” (the whale went to the first ship to affix an iron with its mark on it regardless of whether it remained attached). Or they did worse, misunderstanding or misapplying custom, as American courts did dealing with disputes that arose in the Sea of Okhotsk (as in the Massachusetts United States District Court cases Swift v. Gifford (1872) and Taber v. Jenny (1856), as Deal explains).

Deal’s principal argument in the book is that whalemen “largely ignored judicial pronouncements as to the customs of whaling and continued to operate in ways that made sense to them in their relentless quest to kill whales.” (P. 2.) And “Anglo-American courts failed to understand how whalemen settled disputes [because] lawyers and judges were never all that interested in or concerned about whaling practices.” (Id.) Hence, there was a fundamental disconnect between the two worlds, impossible to see in the few litigated cases, which give the impression that whalemen operated according to settled customs that the judges turned into (or refused to turn into) rules. However, the reality was much more complicated. The customs were much less settled, the judges did not seem to understand them or preferred to ignore them, and the rules the judges made were probably of little consequence to the whalemen.

What happened to whales under the pressure of this relentlessly extractive industry is a tragedy, although Deal argues it was not technically a “tragedy of the commons.” Why? Because it is unclear, at least before 1850, that it was understood to be possible to hunt whales to extinction. Hence, whalers were not taking from the commons knowing that it was hurting the collective resource but doing so anyway in order to further their own economic short-term interest. They could not then have been knowingly engaged in a race to the bottom, Deal argues, because the ocean was (conveniently) thought to be boundless, its bounties limitless, the whale mythical and hence indestructible. When it became increasingly difficult to find whales, they were thought to be retreating further and further away, (romantically) hiding like the great White Whale from Ahab, rather than disappearing. This might seem laughable and implausible to us sitting now where we do with our current ecological consciousness.

Deal explains at the end of the book how petroleum developed as an alternate fuel for lighting and machine oil lubrication, a move that, fortunately for them, saved the whales. This is an arresting historical irony given our current crisis and the very well-grounded fears we have about who or what technological innovation will save us from our relentlessly extractive pursuit of oil and gas given the turn towards tremendously environmentally destructive processes such as fracking.

This book is an excellent read. Given its exploration of the great gulf between law-on-the-ground and law-in-the-courts, it has the potential to become a classic law and society study. It is particularly useful for legal historians interested in the way that history complicates our understanding of economic self-interest. The whalemen were primarily motivated by economic self-interest, there is no question. Yet the tight-knit nature of their group and their hazardous physical surroundings made ethical conduct (at least towards one another if not the whales) essential. That conduct required a certain kind of flexibility that we fail to understand if we continue to insist, as judges and lawyers of the day did, on reducing the norms they followed to a legal rule or custom.

This was a point that Herman Melville probably well appreciated when he surely intentionally mashed together the law of “fast-fish, loose-fish” and the custom of “iron-holds-the-whale” in his famous Chapter 89 in Moby-Dick. He might well have been trying to make the point that Deal demonstrates through his historical research – namely, that this was not an industry governed by pure law or custom; it was both of these plus more, a mishmash of different norms and priorities. The ways that all of these forces interrelated were loosely grasped even by participants themselves. Hence, the order that famously prevailed in the industry (emphasized in Ellickson’s Order Without Law) was neither a consequence of law, Melville’s Coke-Upon-Littleton, nor a product of well-settled understandings. It was more fluid and complicated than either of these.