The Framers' Coup: Was the Constitution Designed to Restrain Democracy?

Was the U.S. Constitution really the product of a group of visionaries creating the world's greatest democracy, or was it, at least in part, an effort to restrain popular rule?

In this episode, Kevin is joined by Harvard Law professor and historian Michael Klarman to discuss his acclaimed book, The Framers' Coup: The Making of the United States Constitution. They explore the economic turmoil and political unrest that followed the Revolutionary War, why many of the Constitution's framers feared the growing influence of ordinary citizens, and how those fears shaped the design of the new government.

The conversation dives into the fierce debates at the Constitutional Convention, the origins of the Senate and Electoral College, the compromises that nearly derailed the project, and the ways in which the Constitution was intentionally structured to filter and temper popular opinion. They also discuss what modern Americans often misunderstand about the founding era and how many of the Constitution's most controversial features continue to influence American politics today.

Whether you're a constitutional originalist, a critic of America's institutions, or simply interested in how the United States was actually founded, this is a fascinating look at the contested origins and enduring legacy of the American republic.

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Michael J. Klarman, The Framers' Coup: The Making of the United States Constitution (Oxford Univ. Press 2016).

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Professor Michael J. Klarman is the Charles Warren Professor of Legal History 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. 

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. 

Klarman 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.

Klarman’s first book, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality, was published by Oxford University Press in 2004 and received the 2005 Bancroft Prize in History. He published two books in the summer of 2007, also with Oxford University Press: Brown v. Board of Education and the Civil Rights Movement and Unfinished Business: Racial Equality in American History, the latter of which is part of Oxford’s Inalienable Rights series. In 2012, he published From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage. In 2016, Professor Klarman published The Framers’ Coup: The Making of the United States Constitution, which was a finalist for the George Washington Book Prize. In 2020, he authored the Foreword to the Harvard Law Review’s annual Supreme Court issue, entitled “The Degradation of American Democracy—and the Court.” Professor Klarman is currently writing a book on Race and Sports in American History

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Transcript

Kevin Maley (00:00)
Professor Claren, thanks so much for joining the show.

Michael Klarman (00:03)
Thank you very much for having me.

Kevin Maley (00:04)
So I wanted to have you on. You wrote, ⁓ I think it was about 10 years ago, this book, the The Framers Coup, The Making of the United States Constitution. kind of appropriate time now as we're on the 250th anniversary of the Declaration of Independence, so not the the Constitution, but still a good time to ⁓ to look back at the founding of the Republic. so the book itself is is wide-ranging, but

I'm interested in kind of two themes in particular that I wanted to dive into you into with you. so one is sort of the central thesis of the book that the framers of the Constitution consciously subverted the Articles of Confederation or sort of First Republic and then replaced them with a government that was intentionally designed to be less responsive to the popular will. And we'll get into the the reasons for that. And the second theme

I was really interested in was just kind of the deep debates revisions informing the Constitution and the strong opposition to it at the time. the reason for that is basically today it's treated as a a kind of perfect document. you know, you have people like the late Robert Byrd used to say something like there, you know, the hand of God was there in Philadelphia guiding the founders ⁓ or the framers as they were writing.

you hear a lot of people talk about that today. but it's really not true. I mean there's just a lot of deep division going on. so let's get into how it formed. I wanna I wanna really focus on Philadelphia itself, but I think it's important to give that backdrop to what's going on. you know, the the the treaty with Brighton was sound in signed in 1783. ⁓

Our first government was the Articles of Confederation. but it would be good to get from you just kind of an overview of the sense of the country at the time under the Artis Articles of Confederation. you you mentioned in the book there's deep economic depression, effectively. ⁓ there's a kind of radicalized population radicalized by the ⁓ the Revolutionary War and a lot of debt and debt relief that was.

going on in the state level and and all sorts of other issues. But ⁓ I'll just kind of throw to you to start us off talking about what was that pre Constitution mood in the country like?

Michael Klarman (02:20)
Sure. let me start back with your quotation from Senator Byrd, which is so cool because that's exactly what some of the Federalists, the people who were trying to sell the Constitution to the country, it's actually what they said as well. It was clearly in their minds a kind of political ploy to treat the Constitution as something

that was divinely inspired. And for them it was political. That was a way of convincing people that they should support it. And I think it probably has that function when people over the course of American history say that. That these are usually people who are invested in the status quo and don't want to change the Constitution. So they treat it as a

divine product. there was strong opposition at the time. I think most historians would say the country was probably pretty evenly divided. That if you could imagine a national referendum where everybody who was deemed a citizen at the time, which would mostly be

white males, although not necessarily just people with property, because in in New England 90% of white males were actually enfranchised. If you could imagine a national referendum, the country was pretty much divided down the middle. the framers had some advantages in the ratifying contest, which we'll talk about.

On the point about subverting the articles, which is where you started, ⁓ I don't know that they were subverting the articles in the sense that subversion has a kind of connotation. I think everybody agreed the articles were flawed, pretty badly flawed. The question was exactly what change you should try to effectuate, and that's where people were really were really divided. So ⁓ the people who were behind this project, the Federalists, they wanted to accomplish

Radical change if they could, whereas other people said, you know, the articles can be reformed in a couple of fairly small ways and we'll be fine. We just need to give Congress a little more power, a taxing power, a power to regulate international commerce so other countries don't rip us off in trade agreements. But we don't need to fundamentally restructure the union. We don't need to create a much more powerful national government. We don't need to make that national government as

As

removed from popular opinion as we can ingeniously divide. So that's the subverting the articles to me has a connotation that there were people who really wanted to preserve the articles, and I think everybody agreed by 1787 the articles weren't working. Okay, so to get to your main question, which is the state of the country. ⁓ the war is over, and you know, the fighting stopped in 1781, the treaty was negotiated in 1783.

A lot of people thought, well, we don't even really need a government anymore, right? The reason why we created the Continental Congress and the reason why we adopted the Articles was so we could fight this war and secure independence, and we've done that. So we we don't we don't really need much of a national government. The economy was terrible in the mid-1780s. It wasn't quite as bad by the time that they were writing and ratifying the Constitution, but I think the Nader was sort of 1784.

Into 1786. And there were a lot of problems causing this. But the main one is: you know, it's pretty common after a war to have a recession because you had all this demand in the economy. You had two armies in the field, they needed to be fed, they needed to be clothed, they needed to be armed. All that's gone. And

in addition a lot of property damage in the United States where the fighting was, so especially in the South, places like South Carolina,

Places like Virginia, ⁓ a lot of economic devastation. another big problem is the United States has now lost its position in the British Empire, and that means that the British are gonna cut the United States out of various economic arrangements, which they had enjoyed being part of the empire. So anything Britain can get from within the empire, they're gonna prefer to what they can get from the United States. So if they used to import cod.

fish from New England, they're going to get it from Canada now. And if they used to get timber from the United States, they'll also get that from Canada. And other countries in Europe are doing the same thing. Shipping as well. So the United States had played a role in the very lucrative transatlantic carrying trade. But of course Britain has the economic clout to simply say we're only going to import American goods if they're carried in British ships. So you've lost this transatlantic carrying trade. You're

Not allowed to trade anymore with the British West Indies, which is a really big deal. The United States is providing a lot of food to the planters in the West Indies. And the United States can't do what any sovereign country would do, which is fight back, because the United States doesn't have a sovereign country. There is no power to regulate international commerce. So

So economic depression, they're raising taxes because they're trying to pay off the war debt, both at the national and state level, there's a large war debt.

And the war debt is things like, you know, soldiers were paid in certificates, which was essentially lending money to the federal government, right? You provided labor, federal government gave you this paper, which at some point you thought you could trade in for gold, and now suddenly they're raising taxes to pay off this debt, but the debt's all been bought up by speculators. So, you know, if you're a soldier

And you need to put food on the table for your family, you're gonna sell off this government-issued paper for whatever you can get. And the speculators are buying it up on 10 cents on the dollar, and then they're demanding that the state governments and the federal government raise taxes to pay it off at face value, which they're gonna make a killing. So you got a whole bunch of stuff that people are very upset about, and farmers, thousands of farmers are losing their farms because they can't pay the higher taxes, and you know, they're they've been

Been

devastated by the loss of the trade with Europe. So the farmers are demanding relief. And they say, you know, why it's not going to do anybody any good to for our farm to go into bankruptcy, and it's not really fair that you're raising our taxes to pay off these speculators. And so they turn to state legislatures to give them tax and debt relief. And because the United States has the broadest suffrage in the world in its state constitutions, the state legislatures do.

What's kind of predictable, which is if all the farmers, which is most people are asking for relief, are going to give them relief. And the more elite citizens, you know, the ones who might have loaned their money out at interest, are now seeing I said debt relief. They're also passing paper money laws because there isn't a lot of hard currency around. But with paper money, you always worry about inflation. So the creditors who lent out money and expected to get paid.

Back in gold are now being forced to take paper, which is often depreciated. So you have a basic conflict of interest between the debtor farmers and the creditors, slash bankers, slash large land owning people. And because the United States has such a democratic system, they're actually favoring the relatively poor debtors. And in the one state where they don't give them relief, Massachusetts, they actually, you know, revolt and

They form what's called Shays Rebellion, where they cut down the they shut down the civil courts because they don't want their farms to go into bankruptcy. So that's kind of a mess, and that's something that the framers are going to try to respond to, and they don't have a lot of sympathy for the Democratic legislatures and the debt relief and the paper money, and they're going to suppress that and they're going to set up a federal system that is going to be disinclined to capitulate to populism. That's a fairly I don't think that's.

A particularly controversial view. It's certainly not the view you would get in a high school civics textbook today. But I think among historians, that's not a particularly controversial view. There'd be some disagreement around the margins about how much the enterprise was about expanding the power of commerce and Congress, and how much of it was about doing anti-populist things. But I think the basic story I gave you is not that controversial among historians of the era.

Kevin Maley (10:57)
Yeah, and I thought it was interesting the response from the state legislatures, most of them, the economic relief measures. you wrote that the Constitution was in part a response to the flaws in the Articles of Confederation, which we'll get into in a moment, yet it was even more a reaction to the economic relief measures enacted by most states in the seventeen eighties, because that sort of elite commercial class, the the bankers and lawyers and so forth,

were freaking out. you had quoted Madison as saying, interferences by the states with the security of private rights and the steady dispensation of justice were evils which had perhaps more than anything else produced the Philadelphia Convention. So there's a real kind of consternation from the elite classes. And you you see this throughout American history, you know, certain classes reacting to the depression, to the New Deal I should say.

And that really reverberates with with the framers who then gathered in ⁓ in Philadelphia. But then, you know, just to touch on briefly, and I think this is something most people learn in school, so I don't want to spend too much time on it, but there were lots of flaws in the Articles of Confederation themselves. you list some of them as there's kind of a lack of taxing power. I think they could request requisition from the states, but not directly tax people and that.

has problems. As you mentioned, there's national debt that needs to be paid off. There's lack of commerce power. there there's unanimity for amendments. There's lots of supermajority requirements. there's also just trouble meeting quorum people barely showing up. annual term limits so people are really coming in and out. but then the there's it seemed like there were two catalysts that

you talk about in the book that really led to first Annapolis and then and then Philadelphia. So one you had mentioned was Shea's Rebellion, which really freaked out the the elite classes seeing armed uprisings across Massachusetts. And then you also spoke about the the Jade Treaty negotiations on commercial navigation rights on the Mississippi. And that was really a kind of regional faction, certain states, western states

⁓ really wanted free access to the Mississippi, exporting via New Orleans. they were negoti John Jay was negotiating with Spain, who owned the vast territory that came to be known as Louisiana later. ⁓ but there's just a little a lot of acrimony in the ⁓ the Confederation Congress on that treaty, which I think eventually fell apart and then came back in the early 1790s. But this this all sort of leads to

A brief convention in Annapolis meant to initially, I believe, just revise the commerce powers of the Articles of Confederation. Only five states show up, it's kind of a flop. And then they decide to have another convention in Philadelphia, this to really wholeheartedly revise the articles themselves. Not replace, but revise the articles and

James Madison came in with a plan. can you talk a little bit about that? Just kind of, you know, it seemed like Madison and and ⁓ some of his buddies from Virginia were very intentional about what they were gonna be doing in Philadelphia and really came prepared to you know, they had a plan themselves, the Virginia plan, but really what they wanted to get out of the convention.

Michael Klarman (14:19)
Yeah, so let me ⁓ start with some of the preliminaries that you mentioned and and then I'll get to the question of Madison.

The letters are so revealing. So you you see these letters from and to Washington, from and to Madison, and most of the other elite framers, and they are just very upset about what's going on. And I guess they're upset about both parts of the story that the national government really ⁓ is falling apart. states are refusing to pay their requisitions, which are voluntary. There's no enforcement mechanism. So Congress is trying to raise money, it asks for money and the states don't

Cough it up. So the the federal government is about to go bankrupt, and that means there are all sorts of things that you can't do. So, for example, you know, the pirates in the Mediterranean are holding Americans captive, and the United States can't even raise a navy. They don't have any money. They can't pay off their creditors in Europe, the people who let loaned money, the French government, which loaned money, which made the victory in the Revolutionary War possible. And then there's

just very upset about what's going on in Massachusetts because it's a revolution. It's a revolution where people who are being taxed and can't pay the taxes are violently overthrowing the government. So Washington thinks, you know, we just fought this great war for independence and now we're proving what the world already thought, which is, you know, we're not really up to the task of self-government. As as you point out, I I think it's actually true throughout history that

Wealthy people tend to be very worried that any kind of populist government and any kind of even mild redistribution from their perspective is, you know, the camel's nose under the tent. So in the 1930s, opponents of the New Deal denounced the National Labor Relations Act or the Social Security Act as communist. In the 1960s, conservatives denounced Medicare as communism. Today,

⁓ Trump and a lot of other people denounce Mamdami and rent control and free buses as communism. Billionaires in California are losing it over the possibility of a billionaires tax. I think this is true throughout history, is people who have accumulated a lot are scared of really populist democratic government because it might redistribute. The flaws in the articles, I mean, as you nicely noted, no taxing power, no power to regulate commerce.

Which is a big deal. They have no way of enforcing treaties. They do have a power to make treaties, but there is no federal court system. And if a state decides that it wants to depart from the terms of a treaty, which would be cause for the foreign nation to go to war, the United States really can't do anything about it. There's no executive, so there's no analog to the president, nobody who can provide effective enforcement of any edicts coming from the federal government. As you

said unanimity for amendments, which basically makes amendments impossible because one state will always have some incentive to stick with the status quo.

The catalyst. So exactly right about Shay's Rebellion. ⁓ the Jay Treaty, let me say a word about 'cause I don't think most people know much about that and and I didn't know much about that when I went into the project. There was this effort. ⁓ John Jay was the Secretary of Foreign Affairs and he was instructed by the Confederation and Con co Confederation Congress to go negotiate a treaty with Spain. And the instructions were, you know, we need to get the Mississippi River open. Spain was controlling that.

that part of the United States, the western part of the United States. And if you're a farmer who's migrated from Virginia to Kentucky or North Carolina to Tennessee, if you're in the western part of that region, you absolutely need access to the Mississippi River if you're going to engage in any kind of foreign trade. So Jay goes to Spain and and Spain says, well we're not really interested in opening access to the Mississippi River, but we'll give you this commercial treaty and we'll buy, you know, we'll buy timber and we'll buy fish. But

But that's something that New England's interested in, but not the Southerners who've moved westward toward the Mississippi River, and they feel betrayed. And there's actual talk of the country coming apart and the possibility of the two regions going to war with each other. It's a little hard to know exactly how seriously to take that, but again, the you know, the private correspondence suggests that people took it pretty seriously, and you know, the North and

The South have some very different, mostly economic interests, some of which have to do with the fact that the South is a slave society and the North is a society with just a few slaves, but other other reasons as well, including, you know, climate, the productivity of the soil, what you can grow in the soil. And so it's not obvious that they have that much in common in terms of interests. You know, it's often said that before the Revolutionary War, South Carolina had more in common.

With London and Boston had more in common with London than Boston and South Carolina, Charleston had in common with each other, and maybe now that they've secured their independence, they're going to go back in that direction and the union's going to fall apart. All right, so you know, James Madison in the Virginia legislature engineers this Annapolis convention where they're going to get together and discuss the possibility of giving Congress a commerce power, but they have this problem that, you know, only five states, twelve delegates show up.

⁓ it was very difficult to convene a meeting at that point, right? It's a huge problem given the technology.

It's a collective action problem. I mean, nobody wants to be the first one there 'cause they're gonna be there for a week waiting for everyone else to show up, so everybody shows up late and people get frustrated and they're not gonna wait forever 'cause they need to get back home and take care of their business. So Hamilton and Madison are two of the people there and they do something very risk preferring, which is they say, Okay, rather than acknowledging that this was this was a a farce and a joke, let's call another convention

in May and really hope that that one does better. But there's no reason to think it's going to do better. It's it's not clear that anybody's going to show up for that convention. As you said, they're they're calling a convention to revise the articles, not to scrap them and start over again. Yet that's exactly what the Philadelphia Convention's going to do from day one. And because of Shay's Rebellion, the states decide to go, and because Madison was very shrewd

And in the Virginia legislature, he nominates George Washington to head the V Virginia delegation, even though Washington hasn't consented to go. And that shows everybody else in the country that this is very serious because Virginia's sending its, you know, most illustrious statesman, not only George Washington, but George Mason and Governor Edmund Randolph. And so, you know, they managed to pull it off and people do show up in in Philadelphia.

Now Madison, because he's the hardest working guy, you know, he's one of the

cleverest, most ingenious, but a bunch of them, these are really impressive people. A bunch of them are really smart and really learned and have thought a lot about this. But Madison has a plan and he gets the Virginia delegates together and they show up early in Philadelphia. And the Pennsylvania delegates all come from Philadelphia, so they're already there. And these are two of the three largest states. And they come up with a plan and that's gonna turn into the first draft. So, you know, it's not like they have any special power.

But whenever you are part of a committee meeting, if you set the agenda, you're more likely to get your way than if you don't. So Madison's plan is pretty darn nationalist in the sense of shifting a lot of power from the states and the local governments to the national government. It will create an independent executive. It's also going to be very favorable to the large states. So, you know, two key aspects of Madison's plan is the national government should be able to

Veto anything the states do, which is incredibly nationalist. We actually don't have that in our modern system. The national government can't just veto anything the states do. And it's going to give equal representation in both houses of the national government. So no Senate where every state gets the same two senators, but rather population apportionment in both houses of Congress, which means the large states are going to do much better than under the Articles, where every state has.

One vote. So Madison doesn't get everything he wants. He doesn't get the national veto. He loses on the equally appor on the ⁓ Senate apportion according to population. he loses on some other stuff. He actually comes out of the convention pretty depressed because he doesn't think they've actually moved as much in the direction of a powerful national government. But it's still a pretty radical change. You know, maybe the most radical part is this is not.

This is not a a

a ⁓ league of nations anymore. It's not like the United Nations, right? The United Nations today does not have power to tax individual American citizens. The United States would never give it that power. But they have given the national government the power to act directly on citizens by raising taxes and calling them into national military service. And that's a radical transformation and that's not what anybody had been anticipating. And indeed

You know, they're they're I don't know, I don't dishonest might be too strong a word, disingenuous. I mean, they had called for a convention to enlarge and revise the articles, and then they started almost from day one just by scrapping the articles and starting over again. And that requires a lot of, you know, chutzpah, as my Yiddish ancestors would say, and they got away with it.

Kevin Maley (24:12)
Yeah, and I wanna I want to circle back on the Senate because I feel like that's one of the really interesting parts of the book. you know, at the the kind of representation and then the different powers and debates around it. but can you say a little on just sort of thematically going into Philadelphia, it sort of going back to one of the the themes or thesis of the book,

You had written that Madison in Philadelphia was an advocate for policy refining popular appointments through successive filtrations. he had just have a couple quotes here on this, and basically getting to this idea that from the very beginning, some of the framers in Philadelphia, Madison and Hamilton, wanted to use, wanted to embed in the architecture of the new government a

an ability to be less responsive or water down the populist impulses that they were seeing across the early republic under the articles and that were you know having policy impacts in the state legislatures and and those economic relief measures. It seemed like from the very beginning that they wanted to construct a government that had mechanisms, which we'll get into, that were meant to

You know, not completely subvert the popular will, but cool it down a bit and and you know, protect people from pr protect elected officials from the populist will.

Michael Klarman (25:38)
Yeah, that's a huge part of Madison's scheme. he thinks the problem with the state legislatures is that most adult white males are participating. You have annual elections, you have very small constituencies, so ⁓ in New England, in Massachusetts.

A state legislature represents only fifteen hundred people. There are over three hundred members of the larger house of the Massachusetts legislature. Madison talks famously in the Federalist Papers about refining and enlarging the popular will. But as my tell my students, you know, I don't think it would be that much of a stretch to say what he really wants is kind of ignoring of the popular will. Maybe that's put a little too strongly, but ⁓ he doesn't think much.

Of ordinary people and their capacity to orchestrate government. So there are a variety of ways you can do this, and Madison's going to use all of them. So long terms in office. Under the articles, the representatives serve one year, and under state legislatures, the dominant mode is annual terms. Even in half the states, the upper houses of the legislature serves annual terms. Nobody serves anything like six-year terms.

Terms for U.S. senators. Even congressmen are going to serve two years. And again, in the lower house of state legislatures, I think everyone but South Carolina has annual elections. So that's one mechanism, long terms. Large constituencies. Congress is going to be tiny. There are going be 65 representatives in the first Congress. That's 65 for the whole country as compared to over 300 in the lower house of the Massachusetts legislature.

Point of a very large constituency. So these people are in Congress are going to be representing 30,000 rather than 1,500. So 20 times as many constituents in a congressional district as in a Massachusetts lower house district. There are two points to having large constituencies. One, the larger the geographic area, the more people. A the more likely that the rich and famous will be elected, right? The only person

With a reputation large enough that 30,000 people know who they are, is going to be a military commander or a large landholder. So you're going to fence out the ordinary people, the barkeeper and the blacksmith. Those people are not going to be elected. And second, the larger the constituency, the tougher it will be to keep a tight rein on your representative. So this is a way of kind of adding slack to the relationship between representatives and constituencies.

Constituents. Method of selecting government officials, right? You know, are you going to directly elect them in the House? Yes, but in the Senate, state legislatures are choosing senators, and we have this, you know, abstruse electoral college in which electors are going to choose the president, and it's not even clear that the electors will be elected by the people. The electors could just be chosen by state legislatures, and then the electors choose the president.

Removing the president a couple steps from any kind of direct ⁓ tie to the people. And there are other mechanisms too, you know, term limits saying that you know you shouldn't just sit in the capital for the rest of your life. You should get back and mingle with the people so you don't forget where you come from. Recall of representatives, you know, under the articles. If you didn't like what your representatives in Congress were doing, you could recall them at any moment. The U.S. Constitution rejects the idea of recall, you're stuck with.

These people. So, you know, Madison's plan is very much, either, depending on how you like it, to refine and enlarge the popular will or to ignore the popular will. If you're a cynic, you say this is just a ruse to make the people think they're in charge when really the people maybe are responsible for approving the scheme, but once the scheme is up and running, it's not really going to have any direct tie to the people. And, you know,

Gordon Wood, the great historian of the revolution who who just passed away in the last month,

Tragically. You know, Gordon Wood, I think, does a great job in his scholarship reminding us how dramatic the change was that came over the United States a couple of decades into the new system. Right? Jacksonian democracy, which you can see starting to have an effect very early in the 19th century, even though Jackson isn't going to be president until the late 1820s. That's not what the framers grew up with.

With it's not what the framers wanted. They did not think ordinary people were competent to run the government. So they should, you know, approve the system and then largely get out of the way and let their betters run things. And that seems so elitist, so anti-democratic, but that's where they were coming from. And

The ones who lived long enough to see this new democratic era, the Madison's and Jeffersons and John Adams, they didn't like what they saw.

Kevin Maley (30:54)
Yeah. So you know, you spoke about st just kind of thinking about that the House of Representatives. you know, it was very intentional that they would have large districts, as you said, to kind of water down the ⁓ the popul the populist influence on the government. I thought it was interesting. I didn't realize that there were at large elections.

allowed in the constitution that some states originally had at large elections. and it eventually just kind of became the standard that they're they're district based. but the the Senate again is something that just really interests me and I'll, you know, put my biases on the table. I'm not a huge fan of the Senate myself. and I'm from Massachusetts originally, so a smaller state now. I live in DC at the moment, so don't have any senator. But

⁓ or any like real senator. going back to the Virginia plan, it was really interesting to read about Madison's initial proposal that both the lower chamber, the House of Representatives, and the upper chamber that became the Senate would be a portion based. the Senate ⁓ would be elected by the lower chamber. and I think you talked about by portion based, maybe that was population, maybe it was

tax contributions, but I guess that's a that's a whole nother thing. but it it seemed like the debate over whether the representation in the Senate should be based on the like equal per state, so eventually two per state. I know there's a lot of variation in what it was going to be versus apportioned, that was one of the key divisions. I mean in you know

Circling back to the like the Robert Byrd quote and how people when you talk about the Senate with them today, as I've talked with many people about my frustrations with the Senate, there's just this kind of like, yeah, that's what the the framers wanted. They they saw the genius of state representation, but some of the key people really did not want equal representation in the Senate. You mentioned Virginia and Philadelphia, two of the largest states. Massachusetts, I believe, was the third largest state at the time.

All these states were strongly against equal representation in the Senate, but it was the smaller states like the Delawares that were basically threatening to walk out and saying we're not going any like this is over if we don't have equal representation. We're not moving forward. This is done. so that it seemed like you were saying in the book, this is one of the key fights at Philadelphia, in addition to a lot of the other fights. But can you just say a little bit about that?

Michael Klarman (33:24)
Yeah. you should be unhappy with the Senate. I I share your unhappiness. I don't think there was ever a very good argument for why every state should get the same number of senators, and I'm quite sure there's no a good argument for it today. this was a fight

entirely between large states and small states. Obviously in the dis when you're distributing power, everybody in politics wants as much as they can get. There's very little altruism when you're having a basic contest over political power. So the three largest states at the time were generally understood to be Massachusetts, Pennsylvania, and Virginia. North Carolina was actually North Carolina might have been the third biggest

But I don't think everybody knew it at the time. And so say North Carolina was four and New York was five. And small states are states like Delaware, Rhode Island, and the Deep South, because population was more congregated in the Atlantic and New England, the South, in a sense, was less settled. So Georgia and South Carolina are very small populated states, although they're expecting to become big. So

⁓ they're expecting population to move to the southwest where there's more land that hasn't been settled, which will be cheaper. So ⁓ the fight is between large states and small states. The status quo under the articles was every state gets the same vote, the one vote in the Confederation Congress. And this is the by far most controversial issue at Philadelphia. They debate it for six weeks. There's very little shifting of position.

And the small staters are threatening to walk out. They say, you know, if you don't we have we have equality in the Confederation Congress, and if you take it away from us in both houses, we're not going to participate, and we're not our our constituents will not support it. You know, Delaware is very clever. The Delaware legislature actually instructs their delegates to the Philadelphia Convention that you do not have the power to agree to something that takes away our equal representation and at least.

Least one house. So they can say, you know, in good faith, you know, if you don't if you don't concede on this, we're just gonna have to walk out. So they fight over it, and initially the vote is six to five. There are two states that aren't represented. Rhode Island never showed up, and New Hampshire showed up late. And the six were the three large states and the three southernmost states, which as I said were banking on becoming large pretty quickly, against the five other states, which are the smaller states.

And they appoint a committee. The committee is composed of delegates who have already indicated they may compromise.

I think the reason why the small states are going to win is some combination of what political scientists or economists would call an endowment effect, which is they start out with this power because under the Articles, they had extracted this power at the beginning of the Revolutionary War when the states showed up in Philadelphia in the Continental Congress, and a small state, I think it was Rhode Island, said, We're not participating unless you give us an equal vote. So they extracted an equal vote.

vote and now in the Philadelphia Convention they're also insisting. ⁓ and by the way, all the votes at the convention are by delegation. So it's one state, one vote at the convention. And some of the large staters had said, maybe we should change that. And Madison said, let's not fight about that at the beginning because then the whole thing will just fall apart. You know, we'll be able to insist on our view later on. But they never got their view because the small staters

Said, you know, we're entitled to this, so they do have this endowment effect. And I think they also have what again you might call, you know, maybe there's a term of art intensity of preference, which is I don't think the large states cared quite as much as the small states. So the small states get what they were after, and it was really impossible to justify. I mean, Delaware and Rhode Island had like one-twelfth of the population of Virginia. Today, Wyoming has one-seventieth the population of California.

And the only good argument the small staters made was, you know, the usual argument for kind of minority protection, minority rights, is the large states will gang up on the small states, the three large states will agree among themselves, and the ten smaller states will lose on every issue in Congress. But the large staters, you know, this is explicitly what Madison and Hamilton said in response was

Tell us what are issues where the three large states have something in common in opposition to the other ten states. And it's really hard to think of it because, you know, Virginia is a southern state, it's the largest state, the wealthiest state, it has the largest number of slaves. Pennsylvania is a mid-Atlantic state, has a very different religious tradition, has a very different economy. Massachusetts is the third largest state, it's from the far north. Again, you know, very few slaves, different religious traditions.

Tradition, the you know, the Congregationalist church is the established church in Massachusetts, it's the Anglican church in Virginia, there are lots of Quakers in Pennsylvania. These three states have nothing in common with regard to slavery, nothing in common with regard to religion, very little in common in terms of economic interests, right? Massachusetts is mostly about, you know, fishing. ⁓ Pennsylvania, they grow wheat. in Virginia, they grow tobacco. So, you know, Madison and Hamilton say, give us an example.

Where the large states have something in common and will form an alliance and oppression in the small states. And if you can show us that, then we'll concede that maybe you deserve some minority protection. But the small staters never really had a very good response to that. And today it's just outrageous that California has the same two senators. You know, it's even more outrageous that DC has no representation in either House of Congress. But California has the same two senators as Wyoming, and California has 40 million people.

In Wyoming doesn't even have 600,000, and there is just no way in democratic theory to justify that. It might be the most malapportioned legislative body in the world, but of course you would need a constitutional amendment to change it, and not even any old constitutional amendment. You'd need unanimous consent among the states, and obviously Wyoming is not going to be altruistic and give up its two senators who bring back lots of bacon to Wyoming.

Kevin Maley (39:59)
And you had all these states added I think in the late nineteenth century, that Republicans kind of a different party at the time, but Republicans thought would be solid Republican states, the Dakotas and so on and so forth, that wound up still solidly being Republican. And I believe the trends said so the the lean of the Senate now, because there's an over representation of rural white voters, because of their political

predilections, the Senate leans to the right of the population, of the general population because of its structure. And trends are showing that it's going to lean even more to the right. I think in the next 10, 15, 20 years, as population shifts and growth patterns occur, we're gonna have even more kind of malapportionment in the Senate.

So it's just a very unfortunate legacy. one thing that that I did want to touch on is that, you know, so that that was a fight that Madison lost. Madison, ⁓ but there was this kind of near consensus at the beginning that the Senate was meant to be aristocratic in nature. you had said that the delegates expected the Senate would quote function as a bastion of privilege.

⁓ Madison said the the Senate ought to come from and represent the wealth of the nation. John Dickinson said it should be as close to the British House of Lords as possible. Charles Pickney said it should ⁓ represent the wealth of the nation, just so on and so forth. Hamilton said he won the Senate terms to be permanent and said that that would help be a a check on the imprudence of democracy. It's kind of shocking. I mean, you know, when you go to

I don't know, eighth grade civics course and learn it, you know, it's all about the freedom and liberty and democracy. But they were very, very open about how much they wanted, you know, not just the government, the Senate in particular, to be insulated from populist impulses and and be that aristocratic kind of House of Lords as a check on democracy, not as a tool of democracy.

Michael Klarman (42:01)
Yeah. let me say a quick word about the point you made about the eighteen nineties. It's really incredible what the Republican Party did. So, you know, they lost the

The presidency for the first time since before the Civil War in 1884, and they they lost control of the government. The Democrats controlled the federal government. And when Republicans got back very narrowly, right, they they they elected a president in 1888, but it was without winning the popular vote. They created six new states. Heather Cox Richardson talks about this a lot. They just created six new states, so they would create 12 new Republican senators. It was kind of outrageous.

It's just a coup. The Senate traditionally did not have this partisan lean because it wasn't that long ago that you could still have Democrats representing Wyoming and Utah. I think through the 1960s, maybe even occasionally, you know, Frank Church was a famous liberal senator from Idaho. It's only in the last few cycles that you've lost the ability to elect a Democrat in Montana or in North Dakota, right?

The Democrats. Now those states are just, you know, from the Democratic perspective, just hopelessly red. And the reason is largely because we now have a partisan geography where rural, largely whites, have become much more conservative, and cities in large states, even cities in red states, have become much more left-leaning. So you just have more Wyomings, Montana's, South and North Dakotas than you.

You have Vermont, you know, Vermont is the second smallest ki state and it has a socialist senators, but there just aren't that many Vermonts, and there are a lot more Wyoming's and Montana's and and Dakotas. So the Republican Party has a built in advantage in the Senate, and Democrats can win a majority of the vote for senators and not control the Senate, and that actually translates into giving Republicans more likely control of the Supreme Court because it turns out of

The six Republican appointed justices, I believe four of them were confirmed by such narrow votes in the Senate that the majority of senators who voted for them did not represent a majority of the people. They represented a minority. And with the Electoral College, five of those six Republican justices were appointed by presidents who entered the White House without a popular vote mandate. They got into the White House simply because of the Electoral College. So we have a system that

That is kind of biased against majority rule. And sometimes majority rule is not a great thing. We all believe in minority rights. We don't believe we should have a vote on whether to enslave African Americans or whether to racially segregate schools. But it turns out in a democracy, on most issues, majorities should have their way. And the fact that you have a lot of people who live in rural areas with conservative political preferences, I'm sorry.

Sorry, but that's not the sort of minority that is entitled to special protection. It just makes the system anti democratic. Yes, on your main question, which is it's unbelievable. Behind the closed doors of the Philadelphia Convention, which they had all agreed about and was very important, they openly celebrated the Senate as the bastion of wealth and like the House of Lords. And they never talked that way in the ratifying debates. In the ratifying debates, they said, well.

Senators need six-year terms because they have to develop expertise in foreign policy because they're the ones who are going to ratify treaties. They didn't say in the ratifying debates, we need the senators to block any populist legislation from the House and make sure that we don't do any wealth redistribution and make sure that we protect property and the interests of aristocrats. So again, you know, a little disingenuous because if you want to know what they really thought, I would look at what they can't.

Said in the closed doors of the Philadelphia Convention, not the way they tried to sell this thing to the broader public. Right? The real trick for them was we wrote this thing successfully that's kind of anti-populist and extremely nationalist. How are we going to sell it to the country in a process that actually is pretty populist? You know, how are you going to get most Americans to create a system of government where their own political power

will be reduced from what it currently is. And that's not an easy thing to do. And they were pretty clever and they, you know, narrowly managed to accomplish it.

Kevin Maley (46:36)
So the Senate is it's designed to be kind of aristocratic, designed to be anti-democratic, and then morphs into something substantially more anti-democratic. I I am also not a huge fan of the filibuster, ⁓ which is something that was not mentioned at all in your book because it was not mentioned at all in Philadelphia. But, you know, I talk to people, friends in DC who are

Democrats and they had this reverence for the filibuster as if it were something that were baked into the Constitution, as if, you know, Hamilton and, you know, everyone just sort of agrees on it. And people talk about the Senate being this cooling saucer from the House of Representatives and the filibuster is part of that. But there was a lot of debate around supermajority requirements in the Senate. I think there was debate around should commercial

Treaties or not treaties, should commercial legislation, statutes have supermajority requirements, ⁓ should taxation have supermajority requirements? It wound up being there were some things that did have supermajority requirements, so treaties, conviction on impeachments, probably a few others. I'm thinking big requirements or amendments, but most things were not. And and that was conscious. I mean, there were elements of the Articles of Confederation that had supermajority requirements.

You know, you have Hamil Hamilton, I believe, in I think one of the Federalist papers talking about the the downsides supermajority requirements. So can you talk a little bit about that and I guess it'd be interesting to hear what you think the framers would think about what the Senate has become with an effective sixty vote majority needed for

Most legislation, ⁓ with exceptions, you know, reconciliation and all that. But w what would they think of the way it's operating today?

Michael Klarman (48:24)
Yeah, that's a great question. And and two different parts. Let me say a word about the filibuster, which I'm not a fan of either, and then I'll say a word about supermajority requirements in the Constitution. So filibuster is not part of the Constitution, it's not part of the original understanding. It basically developed in the nineteenth century. Actually it was ⁓ it often existed in the House more than the Senate. in the twentieth century it's mostly functioned, you know, from nineteen twenty to

To 1970, it functioned as a way for Southern white supremacist senators to block civil rights legislation. So, first anti-lynching legislation in the early 1920s, then voting rights legislation in the 1940s, 1950s, then there was an effort to block the Civil Rights Act in 1964 with the longest filibuster in history. So even though Southern senators were a distinct minority, because of the filibuster rules.

Which were even more draconian back then, you needed to get two-thirds rather than 60. You could block civil rights legislation. To me, it seems obvious that Democrats should break the filibuster, and I'll say that as a pretty partisan Democrat. And Republicans know that. Republicans understand that Democrats should break the filibuster, and that's why Republicans won't break it while Trump keeps, you know, insisting that they do so. So Mitch McConnell.

Connell and John Thune and John Cornyn understand that the filibuster systematically benefits the Republican Party, but it doesn't seem like Democrats have been able to figure out the same thing. Now, the reason for that is the Republican Party and the Democratic Party generally want different things from government. When Trump is elected president in 2016 and again in 2024, the only thing the Republican Party really wants to

Do and does is pass a tax cut, which includes some deregulation, cutting back on Medicaid, and so forth. Democrats are the party of activist government which want government to do things. So Democrats want to pass a new labor law to make it easier for workers to unionize. Democrats want to pass a voting law to expand the suffrage when Republicans at the state and federal level are trying to suppress voting. Democrats want to redistribute, they want to pass the affordable care.

Act to make life better for poor people who don't have health care. So the party that needs government to function is the party that systematically should prefer making it easier to legislate. And Mitch McConnell understands that, and that's why he won't break the filibuster in the first administration when Trump insists it, and that's why Thune won't do it now. And you would think if the Republican leaders of the Senate could figure that out, that the filibuster systematically benefits them, so they're

They're not willing to break it just to have this one law, the vote suppression law pass, that Democrats could figure out the same thing and be willing to break it. And maybe they will, you know, because they've gotten an education in authoritarianism and maybe they'll start to think in more creative and radical ways. On the supermajority requirements. So super

Kevin Maley (51:38)
Can I just ⁓

just a quick intro, one one other thing I'd add on the filibuster, and I know it's kind of a recent whittling down on it, you can also confirm judges with fifty one votes. And it it feels like the the GOP's two biggest priorities, it's tax cuts, which you can do with fifty one votes, and confirm judges with fifty one votes. and you can change policy sometimes with judge you know, if you want to overturn Roe v. Wade, you don't need to take a vote in the Senate on it. You can do fifty one votes in the Senate, get

judges on the Supreme Court and the lower courts and overturn it that way. So just to r re like underscore even more the the benefits of the filibuster, the status quo I should say, for Republicans versus versus Democrats,

Michael Klarman (52:18)
another great point. It's something that Mitch McConnell also figured out in the nineteen nineties was that you can't get the United States Congress to do lots of the things that are on the Republican agenda. You can't get it, for example, to you know, to pass national legislation suppressing abortion. you can't get it to

You can't get it to pass a law that, you know, repeals Medicare and Social Security, but you can get

very right wing judges, as you say, they've carved out an exception to the filibuster. You can get very conservative Federalist Society judges who will give you almost everything you want, ⁓ dismantling the federal government through the unitary executive and nondelegation doctrine and major questions doctrine that they invented a whole cloth, unleashing money in politics through First Amendment decisions, overturning roads, striking down striking down

On affirmative action, expanding gun rights beyond what Democratic majorities would probably support. So McConnell figured this out a long time ago, and it's not obvious that Democrats have been as quick to suss out the game. On the supermajority requirements, so what a supermajority requirement protects the status quo, it makes it hard to change, and it protects minorities. So the most important minority at the time was the South, and this dates back to what we were.

We're talking this relates back to what we were talking about with the Jade Treaty. There are eight northern states and five southern states, so the southern states can be outvoted in Congress, and that's why they want a two-thirds majority for commercial statutes. They're worried that Congress will pass a law giving a monopoly to northern shippers or imposing tariffs on goods that are produced both in England and in New England and are consumed in the South. So if Congress imposes tariffs to benefit

For example, you know, shoe manufacturers in New York City from cheap British competition, it's not going to do Virginia any good because they're buying their boots from somebody else and they don't want to have to buy them from New Yorkers who are protected by tariff barriers, which will allow them to raise the prices. So the two-thirds majority for commercial legislation would have been a way of protecting a southern minority. And as I said, it protects the status quo, it makes it hard to change. Well, you know, the basic fact

Function of government in the 20th and 21st century is different from the basic function of government in the 18th century. What the framers were worried about was, you know, government passing laws to interfere with property rights. Since the New Deal and the Great Depression, what the political left wants is for government to redistribute and provide stuff to poor people. That requires that government be able to do things. So any kind of supermajority requirement.

is now making it harder for the people who want government to be active. If you're a libertarian, you want small government, then supermajority requirements and filibusters are great for you. But if you're a liberal Democrat who in the 30s wanted Social Security and legislation making it easier to unionize, and in the 1960s wanted the federal government providing Medicare and Medicaid and aid to education, and in the 2010s providing Obamacare, and today doing

things like free community college, free child care, expanding health care. If you need the government to do stuff, then, you know, this this filibuster protecting the status quo and protecting the minority of wealthy people who don't want redistribution is your enemy. And again, I don't quite understand, you know, when you read these d debates today, you don't see Democrats saying we understand what Mitch McConnell and John Thune figured out. So of course we're going to break the filibuster

Once we get control. Now, of course, they shouldn't say that because, you know, they don't want the filibuster broken right now, because I don't even think the Republicans necessarily want to pass this vote suppression bill. The other thing about the filibuster, this is sort of a separate point, is that the Republican Party has become so radicalized that

Kevin Maley (56:22)
Yeah.

Michael Klarman (56:31)
a lot of their agenda would destroy them at the polls if it ever got enacted. So you think about what a state leg state Republican legislature does with abortion. They don't compromise, they don't reduce the access to abortion, they just suppress it entirely. No abortion from the moment of contr contra conception. If you ever pass such a law at the federal level, which the Republican Party might have to do because their base demanded it, then they would be wiped out as a political entity because maybe 15%

Of Americans would vote for such a law. They're protected by the filibuster. So, you know, the the Republican leader like Mitch McConnell says, well, you know, I'd like to give you what you want on abortion, but I can't do it because we need 60 votes. It actually protects them from the radicals in their own caucus. I don't think Democrats quite have that pop problem. The Democrats are not as radicalized to the left as the Republicans are to the right. So I don't think they really have to worry that, you know, without a filibuster, Bernie Sanders is going.

you know, do radical redistribution which I'm not even sure Bernie Sanders supports, but in any event.

Kevin Maley (57:37)
Yeah, one kind of wonders if there are elements of the the Democratic Senate caucus that do and prefer the protections from votes on things like Medicare for all. maybe not the majority of the caucus.

so the rest of the book, I mean it's fascinating and and I don't mean to skip over the executive, the judicial branch. I think the the ratification contest itself is fascinating, the divisions there, and even just the Bill of Rights and how that came to be, which I don't even think I realized that was Madison who had written those and it was kind of a check on

a bigger push for more far-reaching amendments. But I I did want to step back and just kind of ask a few broader questions. Some that really just popped up in my head as I was going through the book. One thing that I kept going to was ⁓ I think a lot of people don't realize Thomas Jefferson wasn't there. He was off in Paris as a kind of effective ambassador. I don't I don't know if we used that title at the time. And John Adams, I believe, was in London.

Can you just say a few words about their absence? I and maybe particularly Jefferson, who's, you know, viewed as the author of the Declaration of Independence, both huge intellectuals. And of course they're writing letters back and forth, but just to be on the other side of the Atlantic when this monumental thing is happening and they can only kind of react and weigh in very much delayed because of the way the mail would work. what did their absence mean there? And did they have FOMO?

Michael Klarman (59:01)
Yeah. it's really interesting, especially with Jefferson, because Jefferson becomes the head of the opposition political party.

⁓ in Washington's cabinet. He's the Secretary of State and he is representing the opposition to the nationalizing anti-populist, anti-agrarian bent of the Washington administration. So, you know, Jefferson becomes this pretty radical states writer in seventeen ninety eight in his private correspondence. He's actually talking about threatening to secede from the Union because

He thinks the Adam administration has become tyrannical. He thinks it's going to get the country into an unnecessary war with France. The Adams administration is starting throwing opposition newspaper editors and politicians in jail under the Sedition Act, and they're threatening to deport all these aliens, mostly French and Irish, who are supportive of Jefferson's political party. So has Jefferson changed, or might Jefferson, had he been at the Philadelphia Convention, been in opposition?

Opposition to his friend Madison and actually have, you know, taken a much more states' rights position. Would he have been an anti-federalist, an opponent of the Constitution like Patrick Henry or George Mason in Virginia? I don't think we know the answer. You know, Madison is keeping him up to date. Madison is a very faithful lieutenant. He writes long letters to Jefferson, which shed a lot of light on what's going on in Madison's mind. That's how we know how unhappy Madison was about the Constitution as it came out.

Out

of the convention. That's how we know how Madison was not a fan of a Bill of Rights. Jefferson is a fan of a Bill of Rights. But you know, I think Jefferson says things to Madison, like, I generally like the Constitution. There are two things I really don't like. I don't like the absence of a Bill of Rights, and I don't like the fact that the president can serve an infinite number of terms. He's not term-limited. That doesn't come, of course, until the 1950s, after Republicans are angry at FDR for serving four terms. So, you know, he

He says things like, I mostly like the Constitution, but it may be he's just saying that because Madison is the one who's been working on the Constitution. I don't I don't feel comfortable saying, you know, with any kind of definiteness, what Jefferson would have done because it's also possible Jefferson kind of changed. You know, I think Madison changed. Madison became much less nationalist. he became very skeptical of what Alexander Hamilton was trying to do with the power of the national government. Madison is Jefferson's lieutenant. He also

forms the states rights Jeffersonian party and while Madison was never as radical as Jefferson in threatening secession, Madison is very skeptical of what John Marshall is going to do with national power as the great Chief Justice of the Supreme Court. So yeah really interesting that two of them you know two of the five most important people in the country are not there. John Adams is in England and Jefferson's in France and would things have turned out differently?

It's hard to know. You know, it's it's also really significant that a bunch of people who were appointed as delegates didn't go. So, you know, states writers in Virginia like you know Patrick Henry and Richard Henry Lee didn't go.

There were other ⁓ important states' rights figures who who chose not to go ⁓ in Maryland, Samuel Chase didn't go. And if they'd gone and stood up for their states rights principles and expressed strong opposition to what was going on, maybe you wouldn't have gotten the constitution that you got. And part of the reason they didn't go, I think, is because they didn't have any idea what Madison was gonna try to pull in Philadelphia. If they knew what he was planning to do, I think they might have gone so they could fight him.

Kevin Maley (1:02:41)
And then final question, and this is kind of broad so recognize it it could be a whole podcast in itself, but is do you have a kind of preferred form of government if you could switch it up? ⁓ you know, is it proportional representation? Is it I I think the late John Dingle ⁓ before he died wrote a book advocating for abolishing the Senate. so we have something more like the House of Commons and elect a PM from there. ⁓ just any kind of

Changes that you would like to see, either starting from scratch or just quick changes that we could make to the system today.

Michael Klarman (1:03:16)
Yeah, so the problem is, you know, most of the changes are are either impossible or virtually impossible because

a constitutional amendment is impossible unless you have bipartisan agreement, but most of the issues I'm gonna mention are issues where the parties disagree because one party benefits. So yes, proportional representation would be much better than the gerrymandering that we have. There's no no other country is crazy enough to do gerrymandering the way we do it. It's it's a farce. I mean it is produces extremism, it's gonna wipe out African American representation in the South.

It creates a two-party system where there's a pretty good argument for having more parties. If you had more parties, you'd never end up with Trump as the nominee of the Republican Party. It's only a two-party system that enables that to happen. So proportional representation is a good idea. There shouldn't be a Senate apportion according to state. It's outrageously anti-democratic. The Electoral College is outrageously anti-democratic. We should have a direct vote for the president. We almost did that by constitutional amendment in 1970.

70,

you had 80% of Republicans and Democrats in agreement. But what happened was it was blocked by Southern segregationists in the Senate. And over the next 50 years, it became clear that the Republican Party benefited from the Electoral College. They won the 2000 election, they won the 2016 election because of the Electoral College. You should probably have a larger house, 700,000 people is too many in a district. But the two most important things are get money out of

Politics because the political system is absolutely dominated by money. That's the fault of the Supreme Court. No other country in the world allows $20 billion to be elected in a spent in a presidential election. No other country allows Elon Musk to spend $300 million, you know, buying an election for Donald Trump. that is the Supreme Court's interpretation of the First Amendment. That's something they made up 50 years ago. If we don't do something about money in politics, we're just we're just royally screwed.

And related to that is I would I would end the Supreme Court's power to strike down statutes. I think it's unjustifiable, it's anti-democratic. And in the short term, I would actually, if Democrats had the trifecta, I would pack the court so that the Republicans wouldn't dominate the court and they wouldn't be able to use the court to undermine democracy by striking down the Voting Rights Act, allowing gerrymandering, allowing voter suppression, and they would.

Wouldn't be just implementing Republican policy on abortion, affirmative action, gun control, reducing government. There's no good reason why we should have an institution that's not directly politically accountable exercising this sort of power. So in the long term, I actually think there should be a bipartisan consensus that courts shouldn't be able to strike down statutes. And in the short term, as a way of rescuing democracy, I think Democrats actually just need to take control of the court because if they don't,

Everything they want to do to kind of rescue us from our terrible current situation, the Supreme Court will strike down. It would strike down a wealth tax, it'd strike down student debt relief, it will strike down ⁓ voting rights legislation. If you passed a federal law to prevent states from gerrymandering, they'd strike that down. the the Supreme Court is out of control and just an arm of the Republican Party, and there's no reason why Democrats should tolerate that.

Kevin Maley (1:06:41)
Yeah, the Supreme Court is a fascinating topic on its own. I know that's your specialty. and you've written a lot on that. And so recommend for everyone. The book is The Framers Coup. you can get it anywhere. Just such a great book and can't can't recommend it enough. Professor Claren, thanks so much for joining the show.

Michael Klarman (1:06:59)
Thank you for having me, Kevin. That was really fun, and I appreciate your close reading of the book. And those are terrific questions. So thank you very much.