Putting the Constitution in Its Place (A Book Review)

Abstract

The fact that Donald Trump became President in 2016, despite losing the popular vote by a substantial margin, has brought renewed attention to the Electoral College system. Forging the American Nation, Shlomo Slonim provides an illuminating account of the process that led to this bizarre method of determining the outcome of presidential elections. But Professor Slonim's book also provides insights into the origins of many other structural features of our constitutional system that are of questionable value in a modern democracy, such as elections by state for the Senate, the Senate's exclusive exercise of legislative authority for treaties and appointments, and the constraints on the authority of our central government.

The book covers the drafting and ratification of the Constitution between the years 1787 and 1791,3 and also moves backward into times preceding the Articles of Confederation era and forward to the Marshall Court's decisions, culminating with McCulloch v. Maryland in 1819. Although the events it describes are among the most fully documented in world history,' Forging the American Nation provides a new and valuable perspective on them. Slonim joins other recent authors who approach the Convention and ratification process with a degree of skepticism, but, in this relatively succinct book, he identifies certain themes with unusual clarity and legal precision. In doing so, he also offers clear lessons for constitutional interpretation and particular support for the Legal Process School's argument that the structural features of the Constitution should not be interpreted strictly, if at all, by the courts. This review summarizes some of the main themes that Professor Slonim describes (Part I) and then discusses the implications about contemporary constitutional interpretation that flow from that account (Part II). It ends with some specific implications about the Electoral College and a pending effort to reform it, the National Popular Vote Initiative.