The Framers' Compromise

67 American Journal of Comparative Law 677 (2019) DOI:10.1093/ajcl/avz022

San Diego Legal Studies Paper No. 20-449

Posted: 12 May 2020 Last revised: 14 May 2020

See all articles by Laurence Claus

Laurence Claus

University of San Diego School of Law

Date Written: September 30, 2019

Abstract

Michael Klarman argues in The Framers’ Coup that “[t]he compromises undertaken in Philadelphia . . . illustrate the extent to which the Constitution was a product of clashing interests rather than dispassionate political philosophizing.” Klarman reaches beyond the Constitution’s writing and ratification to cover how the Bill of Rights was achieved too. And he deftly illuminates the ways that clashing interests drove the compromises that accommodated slavery’s enduring, malignant presence.

Klarman delves less deeply into the history of the Philadelphia Convention’s other momentous compromise over the composition of Congress. The debates that led to and followed the Connecticut Compromise support Klarman’s overall thesis about the role of “clashing interests” in more ways than he identifies. As comparative constitutional experience has since confirmed, success in serving as a political safeguard of federalism depends not on states having equal voting power in a states’ house, but on the voting power in a states’ house genuinely belonging to the states. Decisions made in the wake of the Connecticut Compromise suggest that key American framers recognized this. After agreeing that United States senators would in fact be individually powerful and long-serving national leaders rather than true state government agents, the Philadelphia Convention enumerated Congress’s powers and acknowledged more clearly a role for judicial review in settling the distribution of power. The Supreme Court, not the Senate, would serve as the primary institutional safeguard of federalism. The Convention’s vestigial decision to draw senators in equal numbers from the states was only superficially about federalism, and more substantively about careerism. The deeper story of the Connecticut Compromise tells how some small-state political leaders used the federalism principle to advance their own prospects of national leadership, only to jettison that principle once a pathway for their personal ambitions had been cleared.

The Philadelphia Convention’s choice of judicially enforced power enumeration became central to the American ratification debate over whether to add an express bill of rights. Opponents such as James Wilson argued that the courts would construe Congress’s enumerated powers not to reach important rights, effectively creating an implied bill of rights that would protect liberty more than any finite list of express rights could hope to do. Klarman’s aspiration to account for the whole sequence of events through to achieving the Bill of Rights calls for telling the deeper story of the Connecticut Compromise.

Keywords: The Framers' Coup, Philadelphia Convention, Enumeration, Bill of Rights, Connecticut Compromise, federalism, United States Senate, United States Supreme Court

Suggested Citation

Claus, Laurence, The Framers' Compromise (September 30, 2019). 67 American Journal of Comparative Law 677 (2019) DOI:10.1093/ajcl/avz022, San Diego Legal Studies Paper No. 20-449, Available at SSRN: https://ssrn.com/abstract=3591492

Laurence Claus (Contact Author)

University of San Diego School of Law ( email )

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