Category: General Law

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Unintended Consequences and the Bill of Rights

As you know, I’m working on a book about the Bill of Rights.  The book is currently in publisher’s limbo, by which I mean that I’ve turned in the first draft and am waiting for the manuscript to be returned to me for the next round of changes.  Until then, what will I be mulling over?

First, I want to see what (if anything) President Trump has to say about the Bill of Rights.  My book ends with Bush 41’s speech in 1991 marking the bicentennial of the Bill of Rights.  (I’ve posted about that speech before.)  Since then, there really haven’t been any significant presidential statements on the Bill of Rights, and no real celebration was held to mark the 225th anniversary of ratification this past December. But maybe the new President will say something that I will need to include.

Second, I’m wondering about a question posed by one reader of the draft.  To what extent was the expansion of civil liberties in the 1940s an unintended consequence of the way in which FDR talked about the Bill of Rights?  One argument in the book is that Roosevelt often used and emphasize the Bill of Rights to justify the New Deal and the growth of federal power to fight World War II.  If that’s true, then couldn’t you say that the wider embrace of the term and of the first set of amendments for a different purpose was in part an accident. I think my answer is “kind of,” but I need to give that more thought.

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The Validity of Section Two of the Fourteenth Amendment

The other day I posted a hypothesis that the current apportionment of the House of Representatives does not comply with Section Two of the Fourteenth Amendment. Before explaining that further, I must address the threshold question of whether Section 2 is still part of the Constitution. This is a live issue partly because Professor Gabriel Chin (now at Davis) wrote an excellent article in 2004 arguing that the Fifteenth Amendment implicitly repealed Section Two of the Fourteenth. I do not find this claim persuasive though.

Here is why you might think that the Fifteenth Amendment repealed Section Two of the Fourteenth Amendment. Section Two allows states to deny African-American men the right to vote–the result is just that the state loses representatives.  But The Fifteenth Amendment says that the states may not discriminate on the basis of race for voting. Since these are inconsistent ideas, perhaps the best reading is that the Fifteenth Amendment superseded Section Two. Professor Chin’s article explains that some people also made this argument shortly after the Fifteenth Amendment was ratified.

Nevertheless, there are significant problems with this interpretation. One is that the Fifteenth Amendment talks only about race whereas Section Two is not so limited. Granted, the object of Section Two was primarily to encourage voting access by African-American men, but the omission of the word race makes the two texts somewhat different. A second, and more powerful objection to my mind, is that one year after the Fifteenth Amendment was ratified Congress and the Census Bureau spent a considerable amount of time thinking about whether and how Section Two should be applied. Not a word was uttered then that the Fifteenth Amendment had repealed Section Two (nor was anything said about that when the Fifteenth Amendment was debated).  This seems like pretty strong evidence that no repeal occurred.

This is not a complete response to Professor Chin’s arguments, which I guess I would have to save for an article, but the upshot is that I think Section Two is still the law. But what does this mean for how we conduct the census and apportionment?  That’s my next post.

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FAN 138 (First Amendment News) Forthcoming book: “Unsafe Space: The Crisis of Free Speech on Campus”

A call to arms for studnets and academics who want to turn the tide on campus censorshipNadine Strossen 

Tom Slater

Seattle. He is the  deputy editor at Spiked, a British Internet magazine focusing on politics, culture and society from a libertarian viewpoint. His name is Tom Slater and he is the editor of a forthcoming book entitled Unsafe Space: The Crisis of Free Speech on Campus (Palgrave Macmillan, May 25, 2016). Here you can see young Slater speaking with calculated fervor on British TV while attacking those who would censor campus speech.

Here is the publisher’s summary of the book consisting of ten essays:

The academy is in crisis. Students call for speakers to be banned, books to be slapped with trigger warnings and university to be a Safe Space, free of offensive words or upsetting ideas. But as tempting as it is to write off intolerant students as a generational blip, or a science experiment gone wrong, they’ve been getting their ideas from somewhere. Bringing together leading journalists, academics and agitators from the US and UK, Unsafe Space is a wake-up call. From the war on lad culture to the clampdown on climate sceptics, we need to resist all attempts to curtail free speech on campus. But society also needs to take a long, hard look at itself. Our inability to stick up for our founding, liberal values, to insist that the free exchange of ideas should always be a risky business, has eroded free speech from within.

To give the book added spark, in his introduction Slater (a Brit) draws his inspiration from the Berkley free-speech movement of 1964 when students rebelled against the “university bureaucrats who severely limited students’ ability to speak freely and organize politically on campus.”

↓ Below is the list of contributors (many from Spiked): ↓

Introduction, Tom Slater, Reinvigorating the Spirit of ’64

Chapter 1: Brendan O’Neill, From No Platform to Safe Space: A Crisis of Enlightenment

Chapter 2: Nancy McDermott, The ‘New’ Feminism and the Fear of Free Speech

Chapter 3: Tom Slater, Re-Educating Men: The War on Lads and Frats

Chapter 4: Joanna Williams, Teaching Students to Censor: How Academics Betrayed Free Speech

Chapter 5: Greg Lukianoff, Trigger Warnings: A Gun to the Head of Academia

Chapter 6: Sean Collins, BDS: Demonising Israel, Destroying Free Speech

Chapter 7: Jon O’Brien, Debating Abortion on Campus: Let Both the Pro and Anti Sides Speak

Chapter 8: Peter Wood, A Climate of Censorship: Eco-Orthodoxy on Campus

Chapter 9: Tom Slater, Terrorism and Free Speech: An Unholy Alliance of State and Students

Chapter 10: Frank Furedi, Academic Freedom: The Threat from Within

Conclusion: Tom Slater, How to Make Your University an Unsafe Space

If you’re really serious about challenging prejudice, censorsing bigots is the worst thing you can possibly do. . . . It effectively buries our heads in the sand. It stops us from locating those views, arguing against them, and then discrediting them in the public forum. Censorship makes these problems worse, not better. — Tom Slater

→ Lee v. Tam (the “Slants” case) to be argued today (see here re Washington Post interview with the bands’ members)

From SCOTUSblog: “Argument analysis: Merchants seem to fall short in challenge to New York statute banning credit-card ‘surcharges'”

Professor Ronald Mann

This from Professor Ronald Mann writing in SCOTUSblog: “The oral argument . . . in Expressions Hair Design v. Schneiderman brought the justices face to face with the battle between merchants and credit-card networks over the “interchange” fees that merchants pay when they accept cards in retail transactions. The dispute that got the fees before the justices involves a New York statute that says that ‘[n]o seller in any sales transaction may impose a surcharge on a holder who elects to use a credit card in lieu of payment by cash, check, or similar means.’ The petitioner, Expressions Hair Design (leader of the group of merchants challenging the provision), argues that the statute violates the First Amendment because it limits a merchant’s right to describe the extra costs imposed on purchasers using credit cards as ‘surcharges.'”

“For a case into which so many groups poured so much effort (23 amicus briefs), the argument must have been deeply frustrating, because the most prominent thing not on display was any strong inclination to address the case head-on. Three themes dominated the argument. The first was a considered refusal of the parties to join issue about what the statute actually means. Representing the merchants, Deepak Gupta insisted that the statute prevents merchants from posting separate cash and credit prices and that the state of New York has no justifiable reason to do so. Representing the state, Steven Wu insisted that the statute is aimed only at “bait-and-switch” pricing – when a retailer posts a single price but then asks for a higher price at the register for customers who pay with cards. . . .”

David Cole: “Donald Trump vs the First Amendment”

The ACLU’s David Cole

That is the title of a new piece just published in The Nation.  David Cole, the ACLU’s new National Legal Director, took First Amendment aim at President-elect Donald Trump. Here are a few excerpts:

“Donald Trump has no particular reverence for the First Amendment. He may not even understand it very well. During the campaign, Trump said he would “open up” libel law so that newspapers could more easily be sued. As president-elect, he tweeted that those who burn the American flag should be stripped of their citizenship and jailed. These threats are constitutional nonstarters. There is no federal libel law to “open up”: Libel is a matter of state law, and to the extent it is governed by federal law, it’s the First Amendment that governs. Similarly, the Supreme Court held in 1989 (in a case I litigated) that the First Amendment protects flag-burning and ruled in 1967 that citizenship is a constitutional right that cannot be taken away as punishment under any circumstances—not for murder, not for treason, and certainly not for flag-burning.”

“. . . The First Amendment itself serves a critical checking function, by safeguarding the rights of citizens to criticize government officials, to associate with like-minded citizens in collective action, and to petition the government for redress of grievances. It is this First Amendment tradition that protects the institutions we will rely on to push back against Trump’s abuses.”

“The press has its own express protection in the First Amendment, and it will play a critical role in bringing abuses to light and arming citizens with information and arguments. Think Watergate. The academy, protected by the doctrine of academic freedom, will also be essential—questioning Trump’s policies, providing empirical evidence to refute his assertions, and educating citizens about the value of our civil liberties and civil rights. And the nonprofit sector, including organizations such as Planned Parenthood, the NAACP Legal Defense Fund, the ACLU, the American Immigration Lawyers Association, 350.org, and the groups that comprise the Movement for Black Lives, will be a focal point for organizing, educating, litigating, and inspiring resistance. If we are saved, it will be thanks to actions by citizens exercising their First Amendment rights against Trump. . .”

Massaro, Norton & Kaminski on Artifical Intelligence and the First Amendment 

Professor Toni Massaro

The article is entitled Siri-ously 2.0: What Artificial Intelligence Reveals about the First Amendment. It is scheduled to be published in the Minnesota Law Review. The authors (three tech-savvy and free-speech- informed scholars) are Toni Massaro, Helen Norton, and Margot Kaminski. Here is the abstract from this cutting-edge article:

The First Amendment may protect speech by strong Artificial Intelligence (AI). In this Article, we support this provocative claim by expanding on earlier work, addressing significant concerns and challenges, and suggesting potential paths forward.

This is not a claim about the state of technology. Whether strong AI — as-yet-hypothetical machines that can actually think — will ever come to exist remains far from clear. It is instead a claim that discussing AI speech sheds light on key features of prevailing First Amendment doctrine and theory, including the surprising lack of humanness at its core.

Professor Margot Kaminski

Courts and commentators wrestling with free speech problems increasingly focus not on protecting speakers as speakers but instead on providing value to listeners and constraining the government’s power. These approaches to free speech law support the extension of First Amendment coverage to expression regardless of its nontraditional source or form. First Amendment thinking and practice thus have developed in a manner that permits extensions of coverage in ways that may seem exceedingly odd, counterintuitive, and perhaps even dangerous. This is not a feature of the new technologies, but of free speech law.

Professor Helen Norton

The possibility that the First Amendment covers speech by strong AI need not, however, rob the First Amendment of a human focus. Instead, it might encourage greater clarification of and emphasis on expression’s value to human listeners — and its potential harms — in First Amendment theory and doctrine. To contemplate — Siri-ously — the relationship between the First Amendment and AI speech invites critical analysis of the contours of current free speech law, as well as sharp thinking about free speech problems posed by the rise of AI.

 Related & Forthcoming: Collins & Skover, Robotica: The Discourse of Data (Cambridge University Press, 2018).

Forthcoming Books Read More

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The Clay Feet of Qualified Immunity Doctrine

I want to draw your attention to an important new paper by Will Baude on the flawed legal  foundations of qualified immunity doctrine. The paper lucidly explains that the Supreme Court’s explanations for why 42 U.S.C. Section 1983 should be interpreted to include a qualified immunity exception are unconvincing, and thus at a minimum the Court should stop enforcing the doctrine vigorously through summary reversals and compounding its error.

As a law clerk and then as a scholar teaching Torts and Constitutional Law, I have always found qualified immunity law puzzling. Why? Because Section 1983 says nothing about immunity and there is no compelling reason for thinking that Congress intended to create anything like qualified immunity following the Civil War.  (I looked into this when I was writing the Bingham biography, but I did not find anything revealing). The only way that I can make sense of the Court’s cases in this area is that Section 1983 is being treated as a common-law statute much like the Sherman Antitrust Act or the Lanham Act. By that I mean that the Justices believe Congress intended to give the courts broad latitude to develop the law of the statute. Professor Baude observes, though, that the Court has never given this justification for its qualified immunity rulings, perhaps because there is also no reason to think that Congress thought Section 1983 was that kind of statute.

The law in this area is so thick that it is hard to imagine the Court abolishing qualified immunity (though, of course, Congress can). Indeed, it is telling that none of the Justices dissent from the basic features of current doctrine. Professor Baude’s paper, though, might change that.

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A Scholar is a Bus

This is a phrase attributed to Alexander Bickel, the noted constitutional scholar.  What he meant was that scholars should do their research without concern about its partisan implications. The bus goes on its route no matter who might be riding, where they get on, where they get off. The same is true for researchers and those who use their research.

Years ago I posted here about the fact that I believed the federal anti-nepotism statute may well be unconstitutional as applied to at least some presidential appointments. This reading now helps the President-elect, as he wants to name his son-in-law to the White House staff. Now I can’t stand the President-elect–he’s like Yosemite Sam come to life.  But is my view of the anti-nepotism law any different because of that?  No, as I’ve been telling journalists who call me.

To be fair, it’s easier to follow (or stick to) the logical consequences of previously published work. Remaining detached when engaging with a new issue where you know what the immediate political impact will be is much harder. But we try.

 

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FAN 137 (First Amendment News) Backpage.com removes adult content due to government censorship — vows to fight First Amendment battles

Seattle. This from a press release from Backpage.com:

As the direct result of unconstitutional government censorship, Backpage.com has removed its Adult content section from the highly popular classified website, effective immediately. For years, the legal system protecting freedom of speech prevailed, but new government tactics, including pressuring credit card companies to cease doing business with Backpage, have left the company with no other choice but to remove the content in the United States.

As federal appeals court Judge Richard Posner has described, the goal is either to “suffocate” Backpage out of existence or use the awesome powers of the government to force Backpage to follow in the footsteps of Craigslist and abandon its Adult advertising section. Judge Posner described such tactics as “a formula for permitting unauthorized, unregulated, foolproof, lawless government coercion.” [Backpage.com v. Dart, 7th Cir., 2015]

“It’s a sad day for America’s children victimized by prostitution,” said Dr. Lois Lee, Founder and President, Children of the Night, a leading national hotline and shelter program for victims of sex trafficking based in Los Angeles. “Backpage.com was a critical investigative tool depended on by America’s vice detectives and agents in the field to locate and recover missing children and to arrest and successfully prosecute the pimps who prostitute children.” She added, “The ability to search for and track potentially exploited children on a website and have the website bend over backwards to help and cooperate with police the way Backpage did was totally unique. It not only made law enforcement’s job easier, it made them much more effective at rescuing kids and convicting pimps.”

Backpage.com was created thirteen years ago by Jim Larkin and Michael Lacey, through their newspaper company, New Times Media, to compete with Craigslist, the nation’s largest online classified ad platform. Larkin and Lacey were pioneers in independent journalism, establishing Village Voice Media in 1970 to provide alternative news coverage of the Vietnam war and later served as editor and publisher of twenty weekly newspapers.

As The Center for Democracy and Technology and the Electronic Frontier Foundation have observed, the Senate subcommittee has engaged in an “invasive, burdensome inquiry into Backpage.com’s editorial practices [that] creates an intense chilling effect, not only for Backpage but for any website operator seeking to define their own editorial viewpoint and moderation procedures for the third-party content they host.” [amicus brief below]

This will not end the fight for online freedom of speech. Backpage.com will continue to pursue its efforts in court to vindicate its First Amendment rights and those of other online platforms for third party expression.

 Appellants’ Reply Brief, Ferrer v. Senate Permanent Subcommittee on Investigations (D.C. Cir., oral arguments pending)

Lawyers for Backpage.com re Appellants’ Reply Brief:

  • Steven R. Ross & Stanley M. Brand (Akin Gump Strauss Hauer & Feld)
  • Robert D. Luskin, Stephen B. Kinnaird, & Jamie S. Gardner (Paul Hastings)
  • Robert Corn-Revere & Ronald London (Davis Wright Tremaine)

Amicus Brief on behalf of DKT Liberty Project, Cato Institute & Reason Foundation (supporting Appellant) (counsel: Jessica Ring Amunson & Joshua M. Parker (Jenner & Block))

Jessica Ring Amunson, Joshua M. Parker, Ilya Shapiro, & Manuel S. Klausner, Ferrer v. Senate Permanent Subcommittee on Investigations, Cato Institute, Nov. 22, 2016

Related links

Cert Petition: Case to Watch 

The case is is McKay v. Federspiel in which a cert. petition has just been filed in the Supreme Court.  The issues in the case are:

1. Whether a law criminalizing protected speech or conduct implies a threat to prosecute such that a pre-enforcement challenge is proper without any additional showing that enforcement is imminent.

2. Whether, absent extenuating circumstances, there is a constitutional right to make a public recording of courtroom proceedings.

Summary of Facts: the chief judges of Saginaw County, Michigan issued a joint administrative order limiting the use of electronic devices in courtrooms and court-related facilities in the Saginaw County Governmental Center. Robert McKay, a resident of neighboring Tuscola County who states that he wishes to record law enforcement officers’ and judges’ activities inside the Governmental Center, contends that the administrative order violates his federal constitutional rights.

Sixth Circuit opinion (here)

Lead counsel for Petitioner: John J. Bursch 

Andy Hoag, Federal judge: Saginaw County cellphone ban not unconstitutional; preliminary injunction denied, Michigan Live, April 18, 2014

[ht: A.L.]

Court Denies Cert. in Internet Communications Case

On Monday the Court denied cert in Flytenow, Inc. v. Federal Aviation Administration. One of the issues in the case was: whether the circuit court erred in holding that the Federal Aviation Administration could, consistent with the First Amendment, lawfully discriminate against content-based Internet communications because of the message conveyed and the means chosen by pilots to convey it.

[ht: Art Spitzer]

Public Employee: No 1-A protection for racial epithet Read More

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A Right to Use Cash?

A development in India that unfolded while I was there inspires this post about money and privacy.  In November, the Indian Government announced a “demonetization” plan.  The largest bills in circulation (500 and 1000 rupee notes) were declared invalid by the end of the year, to be replaced by a new 2000 rupee note.  You could deposit 500 and 1000 rupee notes in the bank before the deadline, but that would either force people to open a bank account (as many people there do not have one) or raise awkward tax questions for people depositing cash amounts far in excess of their declared income.  How well this worked is an open question (lots of people apparently swapped their old cash for the new cash), but here is my question:

To what extent does the ability to use cash implicate a significant privacy right?  Some economists, most notable Kenneth Rogoff, argue that we would be better off getting rid of cash.  Illegal activity, they point out, would be much more difficult to finance without cash. The same could be said about corruption.  No cash means all money would be in the financial system, and so on. One objection to this line of thought, though, is that getting rid of cash would mean that every transaction would be known by your credit card company or bank, and could be known by the government through a search warrant. Cash, by contrast, allows you to keep transactions private, so long as the vendor doesn’t report or remember you.

While I cannot imagine a court saying that Congress lacked the power to prohibit cash as legal tender (the power to coin money probably includes the power not to coin money), I can imagine Congress refusing to adopt such a proposal because of its privacy aspects.  Should those concerns, though, outweigh the benefits of channeling transactions into other forms of payment?  Someday we may have to think about that more carefully.

 

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FAN 136.1 (First Amendment News) Nat Hentoff, First Amendment Champion, Dies

Sad to report the death of my father tonight at the age of 91. He died surrounded by family listening to Billie Holiday. — Nick Hentoff

Seattle. He was a friend, an inspiration, and someone who led the kind of life that so many long to live but are afraid to do so. When Ira Glasser shared the news, I left a party and went back to a quiet place to listen to Miles Davis’ Blue in Green . . . and then I turned off the lights and just sat and thought of Nat.

Perhaps no person better embodied the spirit of the First Amend — robust, rebellious, free-flyin’ and straight-talking — than Nat Hentoff (1925-2017) (AP obit here)

Fuse the life spirit of Lenny Bruce together with that of the early Bob Dylan and add a dollop of Miles Davis’ jazz and Allen Ginsberg’s poetry and you’ll get a sense of Hentoff’s persona. There was also a Tom Paine quality about him — feisty in his defense of freedom, no matter how unpopular it made him. Some liberals loved him, some conservatives admired him, and some libertarians applauded him — but very few came along for the full Hentoff monty. And that’s the way he liked it! If you have an open mind and a tolerant side, you had to love the guy . . . if only at a First Amendment distance.

If any of this strikes a chord in your free-speech consciousness, then check out the 2013 documentary on Nat — The Pleasures of Being out of Step, directed by David L. Lewis. Here is a description of the documentary:

Pleasures profiles legendary jazz writer and civil libertarian Nat Hentoff, whose career tracks the greatest cultural and political movements of the last 65 years. The film is about an idea as well as a man – the idea of free expression as the defining characteristic of the individual. . . . Pleasures wraps the themes of liberty and identity around a historical narrative that stretches from the Great Depression to the Patriot Act. Brought to life by actor Andre Braugher, the narration doesn’t tell the story – it is the story, consisting entirely of writings by Hentoff and some of his subjects. With a potent mix of interviews, archival footage, photographs and music, the film employs a complex non-linear structure to engage the audience in a life of independent ideas and the creation of an enduring voice.

At the core of the film are three extraordinarily intimate interviews with Hentoff, shot by award-winning cinematographer Tom Hurwitz. The film also includes interviews with Floyd Abrams, Amiri Baraka, Stanley Crouch, Dan Morgenstern, Aryeh Neier, Karen Durbin, Margot Hentoff and John Gennari, among others. It features music by Duke Ellington, Miles Davis, John Coltrane, Bob Dylan and Charles Mingus, and never-before seen photographs of these artists and other cultural figures at the height of their powers.

 Here is the trailer.

 Here is the bookThe Pleasures of Being Out of Step: Nat Hentoff’s Life in Journalism, Jazz and the First Amendment.

Nat Hentoff on Bill Buckley's Firing Line

   Hentoff on Bill Buckley’s Firing Line

Hentoff Books

Some of Nat’s books on free speech and related topics include the following:

See also Ronald Collins & David Skover, The Trials of Lenny Bruce (2002) (cd narrated by Nat Hentoff)

Video clips

       Hentoff & Allen Ginsberg on Charlie Rose (1995)

 Nat Hentoff on Free Speech,Jazs, & FIRE (this is precious!)

 See and hear the man himself on this Brian Lamb, C-SPAN interview with Nat (go here).

 And go here, too, for Richard Heffner’s Open Mind interview with Nat.  (See also here for a Cato Interview)

 One more — this, too, is precious: The young Nat debating the young Bill Buckley on Firing Line.

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The Framers’ Coup: The Making of the United States Constitution

One book that I read during my trip was Michael Klarman’s account of the Constitution’s creation, which I highly recommend. The book provides a wonderful overview of the political crisis under the Articles of Confederation, the process that led to the Constitutional Convention, the Convention, the ratification debate, and the drafting of what we now call the Bill of Rights.

Klarman’s thesis is that the Framers were far more nationalist and antidemocratic than the average American in 1787, but their proposal was ratified in spite of this disparity for a variety of reasons. I agree with the first part of this claim–the Framers were ultra nationalists for their era–but I think the second claim about their skepticism about democracy is overblown.

One flaw in Klarman’s account is that the Framers omitted a bill of rights from their proposal. In a sense, they were more willing to trust the democratic process (direct or indirect) than their critics, who insisted that additional constraints were necessary to protect basic liberties. Thus, I’m not sure who was more skeptical of democracy–the Federalists or the Antifederalists–although this insight does depend on how much you think the Antifederalists contemplated judicial review.

A second issue is that I’m not sure that the state constitutions of that era were more democratic than the Federal Constitution, which is part of Klarman’s case against the Framers.  Some of the state constitutions were more democratic, but others were not. Klarman himself points out that many of the states had grossly malapportioned legislative districts (which helped the Federalists in the ratification conventions), for example.

Third, I am dubious about the thought that what the Framers said in Philadelphia represented their “real” views about democracy and that anything they said later was “phony” and designed solely to win support for the Constitution. This was true to some extent, but that cynical take ignores the idea that some of the Framers could have changed their views over the course of the debate.

In any event, you should read the book.  You’ll learn a lot.