Harvard law professor Michael Klarman was the keynote speaker at the June 2019 Indiana Graduate Judges Conference. As an attendee I received a signed copy of Klarman’s book, The Framers’Coup, The Making of the United States Constitution. Gentle Reader, to give you some perspective on the exhilarating experience of a law professor’s book, the tome’s Note and Index sections run from page 633 to 865. Of course, the substance of the book contains 632 pages of which several pages thank the law students who did the grunt work. Regardless, I do recommend the book to you as an interesting and often surprising exposition of how our Constitution survived the throes of birth. As Klarman says of our pantheon of founding heroes:
“In the book I try to tell the story of the Constitution’s origins in a way that demythifies it. The men who wrote the Constitution were extremely impressive, but they were not demigods; they had interests, prejudices, and moral blind spots. They could not foresee the future, and they made mistakes.”
This is Klarman’s raison d’etre for writing the book. His admonition is that the men, and they were all white, Anglo Saxon, Christian men, who struggled for six months in Philadelphia in 1789 to create the United States were just men, not gods. Some of them owned slaves, some did not. Some were from populous states, others were not. But they were all mere mortals with virtues and defects.
The underlying message of the book is that if those men could find a way to overcome their political and philosophical divisions, we and future Americans should also be able to. For example, in our current culture wars where President Trump alleges Ukraine helped Secretary Clinton in the 2016 election and Clinton alleges Russia helped Trump and more recently both Trump and Clinton and many others are flinging arrows in all directions alleging our leaders are “foreign assets” we should just chill. If James Madison and the Federalists and Thomas Jefferson and the anti-Federalists could reach compromises, we should be able to also.
The salient issues and the thorniest were how could our Founders apportion representation among populous and less populous states, how was slavery to be addressed (or not) and could common citizens be trusted to govern themselves.
According to Klarman, as our Framers struggled to hold the Constitutional Convention together the Federalists and the anti-Federalists, “Questioned their opponents’ motives and attacked their characters, appealed to the material interests of voters, employed dirty tricks and made backroom deals when necessary.” Sound familiar?
Okay, you probably are choosing to go sort your socks rather than to hear any more from Professor Klarman or from me. But a word of caution, Gentle Reader, if I have had to experience the joys of all the almost 900 pages of Constitutional history, you may have the same opportunity in next week’s column. We might even delve into the vicissitudes of whether the United States Supreme Court is truly independent or are its decisions as politically based as those of the other two Branches
On the other hand, if you are in need of more self-flagellation you could be where American Paul Whelan is, a courtroom in the glummest of all places, Russia in January. You talk about grey. Being in Moscow and Volgograd, Russia in the winter of 2003 was like living inside a wet, icy-cold burlap bag for Peg and me. And as our son, Jim, says, “You can always pick out the American tourists from the Russian natives, the Americans are the only ones smiling”.
What the photographs show is Whelan in a cage, in a courtroom, trying to communicate through a translator with his attorney and through the bars and in front of everyone. When the Russian judges asked me to critique a jury trial of a man charged with murdering two people, I had difficulty being diplomatic. With the judge and jury in place and the Russian prosecutor wearing a blue military type uniform seated between the mothers of the two murder victims right in front of the jury, the courtroom doors burst open and this is what Peg and I and the judge and jury saw: four guards armed with AK 47 rifles escorting the handcuffed defendant into court and locking him into a cage.