Michelman Reviews Klarman's "Framer's Coup"

Frank I. Michelman, Harvard Law School, reviews Michael J. Klarman’s The Framers' Coup, in Constitutional Commentary 33 (2018): 109-28:

This commendatory review of Michael Klarman’s The Framer's Coup takes up for consideration some polemical uses to which the book might be put. One of those might be as a brief in support of calls now heard for a national constitutional convention or other project of major constitutional repair. “[T]hroughout American history,” Klarman reminds us,”political actors have invoked the wisdom and virtue of the Framers as arguments against constitutional change,” while the facts assembled in his new book—about the values, aims, beliefs, tactics, and strategies of those who took controlling parts in the Constitution-making process, about general hazards to rationality affecting the process as a whole, and about the role in these events of sheer accident and luck—can be read as a takedown of the Framing from any high pedestal of reverence it may hitherto have occupied in the minds of readers.

What about more radical implications? Klarman has in the past authored scholarship to question the entire project of constitutionalism, at least of what he has called the “judicially enforceable” type. He has proposed to Americans, for serious consideration as our path of deliverance from a choice between rule from eighteenth-century graveyards and rule by electorally untethered judges, that “we can simply be anticonstitutionalists. That is, we can decide controverted policy questions for ourselves through political struggle (as much of the rest of the world does it), rather than through the edicts of long-dead Framers or relatively unaccountable judges.”

Should we, then, be reading The Framers’ Coup as a brief in support of a general stance of constitutional disparagement? I have doubted it. Setting the Framing on clay feet is one thing; a call for ejection of the resulting Constitution from its place of providing, while it stands, a basic law for the country is quite another thing. The second thing is not logically deducible from the first; and Klarman’s book, to my eye, stops noticeably short of the second—perhaps partly, I suggest, as a result of Klarman's experience in researching and writing this treasure of scholarship.