Barger happy reputations it's going to be somebody who went off and became a hero in the Revolutionary War like George Washington or a very large wealthy landowner who has a large patronage that work and lots of people know about and are indebted to that person a conversation with Harvard law professor Michael Clement who argues that the creation of the us constitution was an act to thwart the popular will of the time in which people are clamoring for debt and tax relief during an economic depression just after the Revolutionary War Michael Klare money is the author of the book the framers coup the making of the us constitution and he joins us next on letters and politics. First the news Imax Purnell with these headlines the preliminary trade deal with Mexico will leave some open questions some wonder of President Trump can reach a replacement NAFTA deal with Mexico alone if Canada can't you can book coaxed to come aboard Trump has suggested he might leave Canada out altogether future story news is Kate Fisher reports they say was originally a trial after a leg remains in the main We only have 2 countries he was signed owns with the u.s. And Mexico Mexico making it very clear the president making it clear that he wants that Chile is it to be over this deal again and negotiations will begin on she's day morning here in Washington with the Canadian team to try to get that still change and he said he's not committed to a trilateral deal and if he can't get the one he once he's here the Snake centric violence really agreements with Mexico. And that report from Feature Story News is Kate Fisher The UN's top human rights body says the governments of Yemen the United Arab Emirates and Saudi Arabia may have been responsible for war crimes including rape torture and does appearances during 3 and a half years of escalated fighting against Hooty rebels in Yemen. In their 1st report for the Human Rights Council un experts also point to possible crimes by rebels Shiite Hutu militias in Yemen who've been fighting the Saudi led coalition and Yemen's government in a civil war since March of 2015 the experts have also chronicled the damages from coalition air strikes the single most lethal force in the fighting over the last year u.n. Expert Charles Garraway individuals in the government of Yemen and the coalition including Saudi Arabia and the United. States may have conducted attacks in violation of the principles of distinction proportion and all precautions which may amount to war crimes the un urge the international community to refrain from providing arms that could be used in the conflict it's an apparent reference to countries including the u.s. And Britain that help arm the Saudi led coalition as well as Iran which the coalition has accused of arming the who tease Defense Secretary James Mattis said today at the Pentagon that the u.s. As always urged limiting civilian casualties and we will continue to do everything we can to limit this kind of tragedy but the most effective way is to get this to a u.n. Brokered negotiation the experts visited some but not all parts of Yemen as they compiled their report the death of 6 term senator John McCain is shadowing the primary contests today in Arizona to replace his seat mate in a race to succeed Senator Jeff Flake lays bare the fissures in the Republican Party dramatically remade by President Trump the 3 Republicans running for flake seat have embraced Trump and distanced themselves from McCain a sign of how far the late senator status as fall in with conservatives dominate Arizona's g.o.p. Primaries the outcome of Tuesday's primary will be closely watched by Arizona governor Doug do see a must name a replacement to fill McCain's. Seat for the next 2 years McCain died Saturday after a year long battle with brain cancer Florida is also holding a primary today all voters in Oklahoma participate on a run off for governor in San Francisco may be allowed to pilot a program to let people inject heroin and other drugs under medical supervision in an effort to curb overdose deaths the California Assembly voted today to send the governor a bill allowing San Francisco to operate so-called safe injection sites the sites would provide sterile needles and people would be able to use illegal drugs there without fear of arrest Stockton Assemblywoman Susan Edmonds says her bill would help connect addicts to treatment but opponents say they worry it will encourage prolonged drug use Los Angeles County health officials say they have they are continuing to detect evidence of West Nile virus in the region officials say 19 mosquitoes have tested positive for West Nile in the past few weeks k p f k's Ernesto are say reports the greater Los Angeles County Vector Control District reported that the positive samples were collected in Burbank and see no luck Marotta might have bellowed Northridge probably around the city Porter Ranch Sherman Oaks Sun Valley and vanities and the period between July 3rd in August 16th West Nile virus is transmitted to people and animals through the bite of an infected mosquito and the leading cause of severe infections of the nervous system among adults over 50 in Los Angeles County there is no current cure for West Nile Virus a total of 10 cases of the West Nile virus have been reported by the l.a. County Department of Public Health so far this year with 70 percent of the patients requiring hospitalization residents are encouraged to make sure that water holding containers on private property are emptied to prevent mosquito reproduction The district also recommends residents use Environmental Protection Agency registered repellents including the e t. R 3535 an oil of lemon you go. This to prevent bites and West Nile virus in Los Angeles summer Nestore say Pacifica Radio k p f k and Imax Pringle letters in politics is next Welcome to letters on politics I'm it's just rich it's fascinating to see in history what the role of financial debt and financial instability plays in society and Agent Athens the long road towards democracy began arguably in the 7th century b.c. When people entrusted a man by the name a Solon known as a law giver to devise a new political system as Athens experience shattering turmoil spurred by a great inequality so long now did not create democracy but he took a step towards it that would be eventually fulfilled by others he enlarged who got to participate in the political sphere and he also abolished slavery and ancient Rome that played a role in the collapse of the republic as populist with curry the favor of the Roman soldiers who saw their farms in disarray after returning for many years I'm fighting for Rome's imperial ambitions historical figures like Julius Caesar promise land reform for the soldiers and food supports for the poor and return for absolute power that has also played a crucial role in the formation of the United States and in particular its constitution just after the end of the Revolutionary War the United States faced the worst economic recession and its history all the way up until the Great Depression of the 1930 s. Farmers who made up the majority of the people at the time could no longer pay their debts nor could they pay their taxes the desperation caused revolts across the country including what would be known as Shay's Rebellion in response to the uprising state governments responded with measures to alleviate debt and tax burdens for their people least most states did but this worried nearest a credit class who feared it would lead to economic ruin and collapse of the union of the 13 states this was the condition that laid the road at the Constitutional Convention of 1787 in Philadelphia that would create the Constitution and hence the rules that we still. Govern us today how many of the influential participants in the convention like James Madison and Alexander Hamilton Hamilton feared the populace moves by the State and worked to devise a constitution that created a barrier between those who ruled and the popular sentiment of their time can be argued that it made the United States less democratic Well today this is the conversation that we are going to have Joining me is Michael j. Klarman Michael j. Klarman is the Kirkland and Ellis professor of law at Harvard Law School and he is the author of the book the framers coup the making of the United States Constitution Michael Carmen is my very good pleasure to welcome you to our radio program thanks very much for having me let me you know I just gave a little soliloquy there let me get your sense now that 2nd part especially about the United States was inspired from me preparing for our conversation and going through your book The framers koodoo do you think I summarized your position correctly very accurate. Tell me about. Shay's Rebellion this is also $1787.00 in Massachusetts right starts the previous summer summer of $76.00 Massachusetts has for lack of a better word one of the more conservative constitutions among the states meeting that it's somewhat less responsive to populist opinion than other state legislatures other state constitutions such as that Sylvania. What that means is the Massachusetts legislature somewhat just regarding the sentiments of that are farmers as decided that it's actually going to raise taxes in 76 it's trying to pay off its requisitions to Congress Congress doesn't really have a taxing power but it is shoes request for money and measure that's what requisitions our great record as trying to figure out what is going to look requisitions are what what you owe the federal government what the states will decide what the states are right we would today call it taxes but there was no compulsory in that an ism so they were basically voluntary requests meaning the states would always pay that's a Choose it was actually trying in good faith to raise revenue to pay its congressional requisitions But farmers were having a very hard time and in the midst of a severe economic contraction it's not clear that you really want to be raising taxes because Congress require that the taxes be paid in gold and silver that means farmers are going to have to cough up any gold and silver and it turns out they're in very much of that in circulation so even if they wanted to pay their taxes it's not clear they've got the currency to do it they do have monetize of all wealth in their farms but what they need to be able to do is borrow money on that and maybe get a little bit of tax relief and. They need some inflation of their currencies that they can they can pay from paper money which is essentially a loan that the government would be offering them so in the absence of that sort of relief. Which most state legislatures provided that the Massachusetts legislature didn't provide there's an uprising and a couple 1000 farmers led by a Revolutionary War veteran Daniel Shays decided that they would prefer to shutdown the civil courts than the bankrupt and the Eastern creditor elite ends up hiring an army basically a private army to suppress the insurrection and this had a pretty dramatic effect as you might expect on the New England more aristocratic elite types they saw the sky was falling that basically people were taking the law into their own hands and shutting down the civil courts in order to provide in order to avoid paying their debts and taxes and this made a lot of them much more sympathetic to the idea of a powerful national government that was more removed from the will of the people and that if necessary could supply federal troops to suppress dead or insurrections my my impression was wishes rebellion and what ended up happening actually 1st to the rebellion it was put down with some bloodshed not an enormous amount from a modern perspective a few people were killed it was put down by that. That army stablish by Eastern creditors but it had a huge effect on the willingness of various states to send delegates to this Philadelphia convention that had been called for May to write a constitution it probably had an effect on George Washington's willingness to attend the convention and it clearly had an effect on the New England and New England the leet who previously had been pretty skeptical about the idea of a national convention which they had been concerned might be dominated by Southerners and they were concerned would turn the country in an anti-Republican direction and they became more sympathetic to that idea Madison's correspondence Washington's correspondence talks about how the New England elite was increasingly starting to look fondly on the idea of a king if that was necessary to have an anti-Republican government in order to make sure that the rule of law. The rule of law was implemented and that he didn't have too much populist influence on government they were starting to think well maybe that's what we need to do he even said that Shays rebellion was put down by and I guess a militia that was put together by Eastern creditors. It's a private army basically these are the people who held the debt they were the creditors they had a very direct interest in making sure that those debts were paid and that the courts weren't shut down and they were the ones who coughed up the money to hire the militia I think part of the problem was that militias are just ordinary people and they might decline to intervene against. Chaises army which was also consisting of ordinary people who were not really trying to overthrow the government they were just trying to protect their farms from being taken from them in bankruptcy it's not hard to be sympathetic to them they felt like. You know it really wasn't fair that they were being taxed at fairly high rates and desperate economic conditions and the money that they were being taxed for was going to creditors who had 'd often been speculators who had just bought up the debt. For pennies on the dollar they often bought the debt from the very same people who are now joining chaises army right so you suppose or of Revolutionary War soldier and you got paid not in cash but you got paid in in script you got paid in some sort of government IOU And then in Jesper times you would sell that to a speculator because it wasn't clear that the federal government would ever be able to redeem it in an actual currency so you might sell it to a Boston creditor for $0.10 on the dollar as people scooped up the debt now they're demanding pretty rigorous and lamentation of taxes to pay off the debt and that didn't necessarily seem far fair to the farmers. So they decided they're into something that they're going to take the law into their own hands and then the Eastern creditors can as early trust the government militia because the government militias just composed of ordinary people who might decide that they weren't going to fire upon their comrades and so they hired their own private army basically as interesting so the economic condition in. 13 states making up the United States is just after the Revolutionary War is a dire one because a countries in major debt in large part because of the war debt that it owes And so this is a situation in Massachusetts you mention Massachusetts I think is how it was made more conservative or at least not as as easy on requiring its citizens to pay taxes because other states are taking different measures the Massachusetts so they don't they don't have the same situation that Massachusetts had a majority of the states at least 7 of the 13 states have passed paper money laws which are basically. Basically. You're emitting paper money which is basically just loaning money to farmers so they're paying interest on it but it enables them to monetize the wealth they have in the farm and to pay their taxes so majority of states that passed paper money laws and debt relief laws so a debt relief law for example might say even though you have a contract with a creditor and you have to pay back a certain sum on a certain day we're going to give you 6 extra months to pay the debt or will allow you to pay the debt not in hard currency even though that's what the contract calls for will allow you to pay it in some other sort of in kind property and a majority of states are passing those laws because most of the state constitutions are very democratic and these debtor farmers are a majority of the population so when they demand relief they tend to get it in the state that they didn't get it in Massachusetts. Basically things bought you know they they build up until finally some steam is lot off and the farmers decide to shut down the courts but in the end most of the states there have been smaller variations on Shay's Rebellion So in Massachusetts you've got a larger role a larger revolt but in other states especially in western parts of the states it was an unusual to have similar sorts of efforts but on a smaller scale if the legislature was not perceived as being sufficiently responsive to demands for debt and and tax relief then people would shut down the courts rather than see their farms taken away from them and if your argument that this situation with these 1st these these rebellions from Che's rebellions other of millions are happening throughout the country and then States responding to the popular will. There their citizens at the time is is what that we do bring along to I guess who we call the leaders of the country for for bringing a constitutional convention. I don't want to reduce it to one variable and I don't want to claim any great originality for the argument this argument's been around for 100 years I basically agree with that and I've tried to flesh it out perhaps in a little bit more detail and I've also tried to offer an explanation of how the elite was able to pull off this kind of coup which is adopting a more conservative Constitution to suppress the debt and tax relief movement but that they're clear there's clearly more than one thing going on the Articles of Confederation which are what was kind of the governing arrangement before the Constitution it's clearly failing because the national government just doesn't have sufficient power as we've already discussed it doesn't have the taxing power it doesn't have power to regulate foreign or international commerce it doesn't even have the power to implement the treaties which it's explicitly given authority to negotiate but there's no mechanism for obliging a state to comply with a treaty that the national government has negotiated so clearly something has to be done about this the national government just needs to be made more powerful but there's another dimension which is that anti populist aspect of the Constitution you could make a more nationally powerful government without making it as anti populist as the framers did so there's are to different dimensions to think about one is shifting power from the state and local level to the national level and the other is trying to remove the national government to the extent possible from direct control of the people using mechanisms like lengthy terms in office and direct elections a lot of the just agreement among historians is which of these should we see is the dominant dimension and I think maybe the kind of conventional view is. This it is to emphasize the nationalizing dimension that word what we're doing is responding to acknowledge deficiencies in the national government by making it more powerful and I think I'm suggesting and other revisionists have suggested. That's downplaying the anti populist angle too much and Madison actually said at the convention that of the things that brought them to Philadelphia he thought the most important factor was this need to respond to the excessively populist impulses that have been predominating in the states or medicine is a pretty good adjudicator of this disagreement among historians he's really more responsible than anyone else for the success of the Movement for the constitution and he said pretty explicitly in Philadelphia you know to the extent we're here for one predominant reason it's to try to suppress this excessively populist dimension of what's going on in the States and I do want to dive into how that has how that happened it within the Constitution itself a little more on the Articles of Confederation and understanding with the United States was like during when it was governed by the articles of the Confederation before we get the United States Constitution is it something to can as is the European Union or the United Nations in which what you really had at the time were almost like 13 independent countries even if they didn't see themselves yeah. Yeah and they're even less integrated then than the European Union is today because the large part of the European Union is to create I mean the primary goal is to create an economic common union and the Articles of Confederation were not that so states could set up tariff barriers to one another Congress had no authority to regulate interstate Schrade States could discriminate against ships coming from other states just as they could discriminate against ships coming from other nations basically the Articles of Confederation were an effort to negotiate a pact among 13 independent states that were fighting a war for their independence so it is mostly consists of is granting authority to Congress to fight the Revolutionary War So Congress has the power to negotiate a treaty like the treaty with France which is what enabled the United States to be successful in the war Congress can create a commander in chief George Washington Congress can request the states to contribute money that will be used to pay off work sponsors but because the states were still very much jealous of their sovereignty in a same way that we're seeing today like with Bragg's it with Britain even the European Union states were very jealous of their sovereignty they did not delegate a great deal of power and so they didn't give Congress the authority to impose mandatory taxes they didn't give Congress the authority to regulate interstate or international commerce and they didn't create federal courts so that you know even if Congress did have the authority for example to negotiate treaties but if a state decides to violate the terms of the treaty there are no federal courts in which you can haul the state in and try to force it to comply with the terms so the articles were a very weak alliance of 13 independent states that are joining together to. Right for their independence but don't necessarily see themselves as part of the same nation and I mean it's been pointed out you know Massachusetts had more in common with Great Britain than it had with South Carolina the same thing would be true for South Carolina it has much closer relationships with London that it has with Boston so and most people spend their entire lives within 10 miles of where they grew up so you know the idea of the United States today where everybody moves around you go to college in a different place you get a job in a different place that wasn't really descriptive of their experience back then they were very jealous of the idea of conferring power to a national entity this is letters and politics and we are in conversation with Michael j. Clement He is the Kirkland and Ellis professor of law at Harvard Law School author of the book the framers coup the making of the United States Constitution and that is what we are and conversation about so let's get into the Constitutional Convention of $1787.00 it's happening in Philadelphia it would go from I think May 25th to September 17th. And just from what you just said there about the Articles of Confederation it isn't really what's behind the great debate and there was never any certainty that this constitution was going to even make it out of the convention never mind be ratified by a sufficient number of states but it sounds to me let's really behind this debate if we're talking about these 13 original states or Basically their own independent countries it almost sounds like they were they were negotiating or they were debating whether or not they should give up their own sovereignty Yeah that's exactly right so the question one of the main questions in Philadelphia is how much of their sovereignty they're willing to give up and they are willing to give up more of it than they had been under the Articles of Confederation one of the interesting questions to me as I. Working on the book is the convention seems to be of a greater nationalist bent and a greater anti populace bent than the American citizenry as a whole so I'm trying to figure out why the convention was not perfectly representative of the country why it's willing to go further and granting power to the national government and the average American citizen would have been and then how they managed to convince the country to ratify this thing that is both more nationalizing and more anti populist or anti-democratic than the average American was inclined to support your exactly right it's highly uncertain highly contingent the Philadelphia convention almost fell apart the ratification struggle almost was unsuccessful at the end of the day they barely succeeded in accomplishing what I call a kind of coup against public opinion because it's pretty clear they did go further in a nationalizing direction and in an anti populist direction that most Americans were comfortable with of you know just one example there were several people not a majority not even close to a majority but there were several delegates in Philadelphia who would have been happy to obliterate the states entirely and just create a nation without even a federal system at all just basically just Roy the existing states and just create one conglomerated nation and there are very few people in the country who would have supported that but there were several delegates in Philadelphia like George Reed of Delaware Alexander Hamilton of New York who are prepared to go that far so it's an interesting puzzle why does the convention just proportionately consist of people who are inclined to go pretty far in that direction relative to the country as a whole and I try to offer some explanations for why that would happen so how did it get to be so under representative of the populist feels are the populist sentiments of the day at the. Mentioned so I offered a bunch of different explanations which are conjectural that I hope together might you know offer a plausible explanation one thing is simply that the states generally chose their most eminent citizens to go to Philadelphia and by virtue of being the most eminent citizen in a state like Virginia or South Carolina as usual and that you were a large landowner or that you had participated in the Revolutionary War as a soldier that you'd served in the Continental Congress and those were experiences that were fairly nationalizing right for example George Washington as commander in chief of the revolutionary army became a nationalist for life partly because he had been struggling to create a nation but also partly because he greatly resented the extent to which the states have been impediments to success during the Revolutionary War because the states had refused to pony up money in the states and refused to provide soldiers when the revolution or army was desperately in need so one factor is just how are these people chosen and simply by virtue of being the most eminent citizens in the country they were just proportionately likely to be nationalist and anti populist Another explanation is the people who chose to go and the people who chose not to go there were some people who were appointed as delegates like Patrick Henry of Virginia who chose not to go to Philadelphia for reasons that are not entirely clear and he turned out to be one of the great critics of the Constitution if people that 8 or 10 of those delegates like that had chosen to turn down their appointments and then it become leading critics of the document that came out of the convention if they had chosen to go and fight for something that was more. More satisfying toward their views less nationalist less anti populous and maybe the Constitution wouldn't have leaned that far in that direction some people also went to Philadelphia and when they didn't like the way the convention was trending they decided to leave and there. By ensuring that the convention would go even further in the direction that they just approved they were hoping that they could do you achieve as the convention by walking out but instead they ensured that the convention would adopt an even more nationalist an anti populous documents. There couple other factors you know they close the doors of the convention which meant that they didn't have newspaper reporters and the galley in the galleries writing down what they were saying and publicizing it to the nation and I think that liberated the delegates to take more extreme positions and they otherwise might have done because it would have jeopardized their political careers to take positions like the one that Hamilton expressed privately at the convention that the state should simply be abolished so and finally the delegates just decided to go for broke they decide they're going to take a chance and see what they can get away with they thought this might be the last genuine opportunity they would have to reform the governing document in his radical way as they preferred and they decided to go for broke and they ended up being successful although as I said it was a narrowly fought contest and they just barely emerged victorious the man staying with his vein here let's talk about the formation and what the Constitution actually does of itself and in it when you talk about who came in and who was chosen and who decides to home and all that about who ended up participating in the constitutional convention itself and how it may not truly have represented the interest of every day people Congress itself was designed to have a similar dynamic to it didn't write it so there are a lot of different examples of the things that they did that might not have been so popular in the country but one is they give Congress very broad power and they structure Congress in a way that it will be much more removed from the ordinary citizens political influence than a state legislature of that day would have then so 2 different dimensions one is empowering Congress in ways that were different from the Articles of Confederation and structuring Congress in a way that would enable greater distance both physical and metaphorical between can see. Issuance and their representatives So a couple examples of the power Congress has given almost unlimited taxing power whereas under the articles all it had was this power of requisition to make requests Congress has given most unlimited military powers raising an army creating a Navy calling state militias into federal service Congress is given unlimited power to regulate foreign and interstate commerce Congress is explicitly granted implied powers so in addition to each of the enumerated powers like the taxing power the power to regulate commerce Congress is also given the power to pass any laws necessary and proper to implementing the enumerated powers which is essentially a grant of implied powers so those are all a short significant broadening of Congress's powers relative to the articles but then they also created a Congress that was very distant from the people so much longer terms in office senators serve 6 years representative serve 2 years under state constitutions almost all officeholders had to be annually elected in direct election of senators in direct election of presidents very large constituencies so Congress was going to be tiny the 1st Congress was $65.00 representatives for the entire nation that's compared to the Massachusetts lower house which had over $300.00 representatives that's a very large constituency for each Congressional representative and the point of that was both to ensure that the quote unquote better sort was you know a very well known large farmers the wealthy elite would be elected to office but also to create more distance between representatives and constituents to ensure that the national government would not never fall under the populist thumb of the citizenry so on both dimensions the Constitution is actually a pretty radical departure from the status quo and they actually want to. To go further it's an important point to note that they were constrained by the need to get what they did ratified by popular conventions so they didn't go as far as they were inclined to many of the delegates in Philadelphia would all like to create a lifetime tenure as president and many of them would have liked to create longer terms in office than 6 years for Senators So they talked about 9 year terms 13 year terms 15 year terms kind of unimaginable from a modern perspective but they were trying to create an institution in the Senate that was like the British House of Lords and they were trying to create an institution in the presidency that was much further in the direction of a monarch than any of the state governors at the time who actually had very little authority and the idea of representing so many people as a congressional member and then in the end tell me how that benefits somebody who's wealthy or a large landowner an aristocrat So the baseline from today's perspective each count congressional representative today represents about 700000 people so we're talking about vast constituencies there was nothing like that at the time in the 1st Congress most of the representatives were representing 30 or 40000 people but you have to compare that for example to a legislator in Massachusetts a member of the lower house of the Massachusetts legislature represented about 1400 people so 1400 as compared to 30 or 40000 series talking about 20 times as many constituents for each congressional representative as for each member of the Massachusetts lower house now how does that translate into a greater likelihood of the elite being represented you know if you're going to be represented from a vast geographic constituency with 40000 people and remember there are very few cities back then most of these districts would have been very large geographically because they were sparsely populated and there was very. Report transportation and communication so how are 30 or 40000 people going to elect a representative there aren't that many people in the district who have larger eppy reputations it's going to be somebody who went off and became a hero in the Revolutionary War like George Washington or a very large wealthy landowner who has a large patronage network and lots of people know about and are indebted to that person so the larger the district and the people who are supporting the constitution fully understood this the larger the districts the more likely you are to get a member of the elite and in addition the larger the district and the larger the number of people being represented the greater the distance the metaphorical and physical distance that the representative has which enables the representative to pursue his own vision of the common good rather than simply being a faithful delegate of whatever popular opinion has and that's what they were looking for they were looking for a leak people who would have a fair amount of discretion to pursue what they saw as the common good rather than just faithfully representing the views of their constituents and they designed a system that was most more likely to accomplish and you mentioned earlier the indirect election not just of senators but also of the president and I imagine that's through the electoral college which in its original design did not have to necessarily correspond with how a state voted for president right so we still have the Electoral College system today but it doesn't operate anywhere like what the framers anticipated so they were expecting a system that was really twice removed from direct popular election and they're pretty explicit about the reason they didn't trust the average American to have informed enough judgments and good enough sense to elect the president the United States so the the double insulation from direct democracy constitution says that electors. Choose the president and those electors will be selected by a method specified by state legislatures now what many of them were anticipating was that state legislatures would just themselves choose electors rather than turning it over to a popular election the state legislature for example in Virginia would just choose 10 electors because Virginia got 10 of the actually 12 electors because Virginia was the largest state and 10 representatives to senators are 12 electors and there's a lectors then would exercise independent judgment in selecting somebody to be the chief executive the United States so it's a double insulation from direct democracy the people are not choosing the legislatures are choosing electors who then themselves get together an exercise independent judgment that hasn't worked out the way that they anticipated. From within the 1st couple decades of the Republican hasn't really worked out the way they anticipated but they were not expecting the president of the United States to be elected popularly and of course as we've seen both in 200-2016 you can still win the popular vote and not win the Electoral College that's not a very sensible system in today's world it's not clear that it was a very sensible system in the world of $787.00 but they adopted it because they were having a terrible time figuring out how this powerful chief executive they were creating for the 1st time under the Constitution ought to be selected and they managed in the Electoral College system to achieve various different compromises all together which enabled them to finally resolve this near impasse that it almost brought the convention to a halt over how to choose the president Michael j. Clement is our guest Michael j. Klarman is the Kirkland and Ellis professor of law at Harvard Law School and he's the author of the book the framers coup the making of the United States Constitution. So again I think as we're talking about the formation of the legislature and I think we'll look at other aspects and we will look at other expert aspects and talk about other aspects of the Constitution and form the government that governs us today this idea of creating a buffer between those who rule and those in the populous sentiments of their constituency of the day is important and this is all happening and we have to keep in mind as we were talking about earlier this is with Shay's Rebellion in the back of their mind along with how other states which they objected to how other states were giving debt relief and tax relief for people who are in trouble. Right right that background is. The framers are horrified by what's going on in the States and the number one item on their agenda is to make sure that a the national government will never be overrun by those sorts of populace demands for relief and the they actually write a provision in Article one Section 10 that provides the national government. Sorry that the Constitution forbids States going forward from adopting those sorts of relief measures and the Constitution creates a federal court system so if a state decides to pass one of these data relief laws going forward the federal courts are supposed to strike it down yet and you know it's Article one Section 10 that gives the power to print money to the to the federal government that that's directly related to what was happening there in 800 in a seventy's right so the federal government is going to be. It's actually not entirely clear at the founding what exactly the Federal Government's is government's power is to to print paper money that led to a debate after during and after the Civil War there was a big Supreme Court case about whether the federal government really could print paper money or not the Constitution is a little ambiguous about that it's not ambiguous the states are barred from making anything but gold or silver legal tender So the states are clearly being deprived of this authority they've been exercising of issuing paper money it's not include tiredly clear whether the federal government has been given the authority to print paper money that had to be resolved by the Supreme Court nearly 100 years later but they they want the states out of the business of doing those and James Madison who's really the driver of this constitutional process all did to getting to the convention its convention itself and then basically just wrote the the Bill of Rights afterwards and self he. Was also a driver was called the Virginia plan that was sort of a rough draft to work on it was also a New Jersey plan there are other plans at that came to this convention but James Madison in his Virginia plant wanted well is known as the right to veto In other words the Federal veto and that the federal government could veto any legislation any bill any law that passed from the state legislature right it's a very radical concept even today the national government does not have any unlimited authority to simply veto of his the legislation if the Massachusetts legislature decides to build a bridge over the Charles River the federal government doesn't have any power to veto that but under Madison's for Genya plan actually that is since preferred veto would have been absolutely unlimited He compromised it a little bit in the Virginia plan and limited it to vetoing laws passed by the states that contravened the articles of union that the new constitution they were writing but then somebody else at the convention Charles Pinkney from South Carolina proposed an amendment to return to this unlimited veto and Madison gave a speech in favor of it this is again addressed exactly to this problem of debt relief and paper money laws that is and was not convinced that simply having an article in the constitution saying States shall not pass paper money laws that states shall not in that paper currency is just what they think that was sufficient he thought click created state legislatures would figure out a way to maneuver around it and he wanted the national government to have unlimited veto authority over any state legislation that's an incredibly nationalizing proposal even the very nationalist Philadelphia convention found that going too far so they substituted for that proposal Article one Section. 10 which puts limits on the state's ability to issue paper money limits the ability of states to pass retrospective debt relief and then he create they create a federal court system and they create a supremacy clause that makes it clear that federal law trumps state law to the contrary that's their substitute for what Madison preferred which was this unlimited national veto and it's true Madison was the one who came up with the Virginia plan it's interesting to note you know why was Madison so important it's not that he was the most eminent of the delegates in Philadelphia George Washington Benjamin Franklin were far better known much older Madison's pretty young he's 36 years old he has a good reputation but he's only had a few years in the national legislature a few years in the state legislature basically Madison just worked harder was better prepared worked out a systematic critique of the status quo and came up with proposed remedies for the flaws of the articles in the flaws in the state constitutions he encouraged his fellow Virginians to show up early in Philadelphia they coordinated around the plan for Jr was by far the largest and most important state they coordinated with the Pennsylvania and Spencer venue was the 2nd largest state and they came up with a plan and of course even though they didn't get everything they wanted they basically formulated the starting agenda of the convention and where you start influences where you end up so Madison exercised greater influence over the constitution I think it's fair to say than any other single individual and then later the Bill of Rights which was added a couple years later that's almost entirely Madison's a product of Madison's efforts I think I think it's not going too far to say if it had not been for Madison there would not have been a Bill of Rights added to the Constitution a couple of years after the Constitution was ratified. Michel Klayman a you don't really in your book say this is good or bad this. This distance seen. The rulers from the popular will of the people now your book 600 pages long I can't say I got through every single page of it is somewhere you will forgive me on that but I never fight just are you saying this is this is how they did it and I guess the framers would argue in my 1st reading of this is like wow man this is just about aristocrats taking you know the complete power but I guess the way the framers would look at this is hey you know we're learning from even and I believe that human from the classical world of what happens with mob rule on check factionalism and that there should be separation between leaders and the popular will or even what you know and during extreme times the mob Yeah it's a great point I mean I think well I was working on the book I found the anti populism of the framers a little bit just tasteful but mostly because I thought there was a pretty good justification for what the jet or farmers were demanding the elite tended to regard the debtor farmers as just a bunch of lazy dissolute never do wells who wanted to redistribute wealth in their direction but were too lazy to work hard enough to pay their taxes and I don't think that's probably the best portrait the most accurate portrait of the debtor farmers I think basically they felt as if they were being screwed over by a contract thing economy and an effort simultaneously to raise taxes and insist on the payment in hard currency which largely didn't exist at the time so if you have a more sympathetic view of the substantive legislation that the debtor farmers were pursuing then I think you're going to have a less attractive view of the framers anti populism I confess that as we get closer to the 26 a lot 4060. You know election which is roughly when the book came out and you see what's going on in the rest of the world you know populist movements taking England out of a European Union or electing right wing authoritarians in countries like hungry in Poland you know populism they start to look a little bit less attractive and again you start to see the wisdom of the framers and thinking maybe there ought to be some distance between government and the mob but I think at the end of the day probably what you think about populism and anti populism is heavily influenced by the substantive policies that are being debated and it popped you know in take an example in Switzerland they had a referendum 10 years ago on whether to allow minarets So there's an incredibly populist solution we're going have a referendum on whether to ban minarets because the people of Switzerland were worried about increasing Muslim population and it passed it passed by like 55 to 60 percent so that is extreme populism government by referendum and what I think most of us ought to see is a very unattractive result because now this was Constitution says freedom of religion shall be protected but you are forbidden from building a minaret which sounds like a contradiction and that won't happen here and that when it happened here under our Constitution unless we made a constitutional amendment which is which is a huge process in of itself yes and I'm actually not sure about that right I don't know if the you know if it is possible for authoritarian minded leaders who can exploit fear of the other to lead people to very unattractive positions some you know just go back 10 or 15 years a majority of states pass constitutional amendments through referendum barring gay marriage and today 65 percent of the country thinks gay marriage is a good thing but if you just go back to 2004 only a 3rd of the country thought it was a good thing and. State after state Republican politicians put it on the ballot because they realized it would be a very productive way to mobilize their base and maybe influence wing voters in their direction so you know populism can produce good results and it can produce bad results and maybe at the end of the day we evaluate populism based on the substantive outcomes that it produces and in today's world some of those results are pretty scary now the framers thought that about debt relief and tax relief but I think they actually had a kind of unjustified elite distain for average hard working farmers who were being crushed by debt and taxes at a time that any modern economist would tell you we ought to be loosening fiscal and monetary policy but the states are doing the opposite as they were trying to pay off their word debt how do slavery play in the creation of the Constitution slavery is a big deal I've devoted an entire chapter does slavery but it's important to try to understand exactly what sense it was a big deal there was never any significant effort to suppress slavery in the Constitution that would have been a nonstarter there were people in Philadelphia who had severe distaste for slavery people like Alexander Hamilton Benjamin Franklin were at the forefront of trying to end slavery in their own states that would be respectively New York for Hamilton and Pennsylvania for Franklin but it would be a nonstarter to provide in the Constitution that slavery is forbidden and I think that's true for 3 reasons 1st of all the set southern states were utterly dependent on slavery both as a economic and social system so 40 percent of the sales population was in slaved in South Carolina 50 to 60 percent of the populations in slaved the wealthiest people in the. Eastern South Carolina rice planners and there's just no chance they're going to give up this system which is both critical to their economic livelihood and to their sense of what a good social system has so you're not going to have a union between north and south if the North insists on ending slavery 2nd point is even northerners who have just taste for slavery tend to be fairly racist by modern standards and they're not looking to liberate the black population and turn them into citizens especially in a state like South Carolina where as I've said more than 50 percent of the population is in slave they can't really imagine a world in which those people are free and treated as equal citizens and then finally the last factor is everybody in Philadelphia believes deeply in the sanctity of property rights so they wouldn't think you can just engage in whole Fit wholesale confiscation of slave property they would thank you would have to compensate for that and that was would've been a vast amount of money which the federal government never could conceivably have undertaken even in northern states where the slave population was relatively small you know in Pennsylvania it's a few percent the largest would be you know a state like New York or New Jersey where it might be 8 to 10 percent even in those states slave owners exercised enough political clout that they were able to resist emancipation in New York and New Jersey for several years after the constitution was adopted and and when those states did emancipate slaves they did it with a form of compensation basically they adopted laws that said nobody currently alive will be freed but only children born slaves from this state going forward will be freed when they reach the age for example $28.00 which was a way of compensating owners for the emancipation of their slaves has removed or Apple again the title of your book is The framers crew and you feel vindicated one rationale for calling it the framers coup earlier I. I also thought of the coup connection with just the way that. The convention and the Constitution itself was approved again this was under the auspices of the Articles of Confederation and the idea was to amend the Articles of Confederation and to change them to make them stronger to make the central government stronger but not to undo it and with the Articles of Confederation to make major changes to them you needed all 13 states to sign off on them a constitution you only needed 9 states to to ratify it. Not not all 13 so so for me that in itself the way they did that switch from the Articles of Confederation to the Constitution that we now recognize very much seems like a coup in of itself yeah it's a great point it was one of the things I was fascinated by it was working on the project I didn't really appreciate until I got into the details exactly how strong extraordinary was the accomplishment of what they managed to execute so that in the title I'm thinking of it mostly as a coup against public opinion because I don't think the American people as a Sara Lee approved of them out of what was in the Constitution but you're exactly right it is a coup against the Articles of Confederation in several different ways so the Articles of Confederation don't provide for a constitutional convention if you want to amend the articles it's expressly provided how you do that Congress passes an amendment that it goes before the States as you say it has to be unanimously ratified it has to be ratified by state legislatures and in Philadelphia they just change the rules and they simply they were trying to see if they could get away with it so Article 7 of the Constitution provides that the constitution will go into effect once 9 states approve it and it's not the state legislatures it's a special convention of the people that will be called by the legislature. So you've moved from unanimity to 9 states putting this into operation although concededly those 9 states can only dine themselves no state can bind any other and it's not the legislatures the legislatures have the most to lose from the Constitution because they're being deprived of their power the delegates decided to circumvent the legislatures and have special conventions with the people who might have less of a vested interest in preserving the articles and they just made it up you know when they went to Philadelphia everybody assumed that anything proposed by the convention would have to go to Congress for its approval and then be submitted to the States for unanimous approval and they just changed the rules and decided to see if they could get away with it and they did it's really kind of extraordinary what they what they pulled off I think yeah I tried to explain this it's not not a lot of evidence for this but I think basically once they had written the Constitution and Congress had agreed to pass it on to the states it became very difficult for a state legislature to explain why they would refuse to call a ratifying convention of the people to pronounce a verdict on the constitution but how can a state legislature or run for reelection saying I just trust the people and therefore I oppose submitting the Constitution to a popular verdict in a popularly elected ratifying convention and I think that's why the state legislatures decided to call the conventions because the thought of the convention had no way of forcing state legislatures to do anything but in the end every state legislature except Rhode Island's which held out for several years every other state legislature acquiesced to calling a convention and then once 9 states ratified it was almost impossible for the remaining 4 to stay out of the Union because they would be treated as foreign nations they would be deprived of the Letairis protection and they would be subjected to trade discrimination like a foreign nation so once 9 states ratified it was pretty much afore. Gone conclusion that the other 4 would have no choice but to come along Michael j. Clement is the Kirkland and Ellis professor of law at Harvard Law School and he is the author of the book the framers coup the making of the United States Constitution Michael Klim and I enjoyed our conversation very much found it very interesting and I thank you greatly for spending time with us today I enjoyed it too thanks very much for having me. And the broadcaster from high atop monument peak in the mountains this is kinda scary funny already being on point one of them springing a lot of the kalo straight out of work and on the truth in smartphones out. And out a moment in San Diego's history sente is located 80 miles east of the Pacific Ocean it was the homeland to the comi eye people of the city have a river runs through it and to do so long the river that the coolie are the people established a village name city where Chief George Coles was one of the founders of the city of 70 and after his death and 87 his widow there rebuilt in the 74 home the city was named in 8093 since he was a realtor and surveyor in the region. New sound of social justice Cayenne s.j. 89 point one I think this got self.