[This essay was first published in the ARIZONA STATE LAW JOURNAL, Volume 1985, Number 4]
Douglas 0. Linder
Some men look at Constitutions with sanctimonious reverence, and
deem them, like the ark of the covenant, too sacred to be
They ascribe to the men of the preceding age a wisdom more than human,
and suppose what they did to be beyond amendment. I knew that age
well; I belonged to and labored with it. It deserved well of its
country. It was very like the present, but without the experience
of the present; and forty years of experience in Government is worth a
century of book-reading; and this they would say themselves, were they
to rise from the dead.
-Thomas Jefferson 1
One of the nice things about Heaven is that all of us who reside here may choose the "age" that we wish to be. And when we wish to change our age again, it's as simple as wishing it were done. Right now, for example, I look just as I did in 1787 when I was a fifty-one year-old physician, astronomer, congressman, and delegate to the Federal Convention in Philadelphia.2 Unfortunately, even in Heaven we can't change anything else; whatever intellectual and emotional shortcomings I had at age fifty-one, I still have today.
Lord knows I have shortcomings. Historians, to the extent that they have taken any interest at all in "obscure" Hugh Williamson, have pointed some of them out. I've been described as having "a language and manner that might be considered abrupt"3 and wholly lacking patience for "anyone suspected of ignorance or want of moral character."4 While historians have given me some credit for my versatility and for my inquiring mind,5 they've taken delight in ridiculing some of my wilder scientific speculation--for example, my belief that every planet and comet in the solar system was inhabited.6 (You laugh? I wonder how some of your notions about science are going to look in 200 years?)
On the other hand, there really isn't much about myself that I'd
to change. I've even grown somewhat fond of my strong featured
from my dark grey eyes to my long thin nose.7
I have a "keen good
humor"8--that is, when I'm not being
"impatient" or "abrupt." Humor was
probably my most important contribution to the Convention during that
hot summer of 1787. I'm more or less a moral man. (I used to be a
preacher until I gave it up because of "internal squabbles over
And despite the now transparent silliness of my belief in a thriving
on Neptune, most of my peers would concede that I was one of the
intellects at the Convention, even though I may not have shined as
Tonight is a night I've looked forward to for a long time. Here, let me take this crumpled invitation out of my side pocket and read it to you. It says:
YOU ARE CORDIALLY INVITED TO A CELEBRATION COMMEMORATING THE 200th ANNIVERSARY OF THE SIGNING OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA ON SEPTEMBER 17, 1987 IN THE GOLD BALLROOM OF THE HALLOWED HALL. COCKTAILS AT 7:00, DINNER AT 8:00. PERIOD DRESS ONLY.I've always enjoyed social events. Although the Convention sessions at the State House were sometimes long and tedious, evening gatherings at the Indian Queen Tavern were a pleasure. So were the times spent in Ben Franklin's courtyard, listening to him tell stories as he sat under his mulberry tree.11 Incidentally, Ben and I are very good friends.12 Although everyone's heard of Ben's famous experiments concerning the nature of electricity, few historians bother to point out that I was also a pioneer in the field. I published works on lightning rods and electric eels.13There's not a single painting of Hugh Williamson holding an electric eel during a thunderstorm, but "you could," as people say today, "look it up."
GEORGE WASHINGTON, PRESIDENT
OF THE CONVENTION AND OF
THE REUNION COMMITTEE
It will be great fun to see Ben again. And the other delegates as well.14 (Or most of them). I do hope they're all there. I wonder a little about William Blount. Later, Senator Blount. You haven't heard of William Blount? He's been swept under the rug of history along with people like Spiro Agnew. Blount said nothing during the entire Convention, but made a lot of news afterwards. He was a handsome, dark-haired gentleman from my home state of North Carolina who loved high living.15 Blount was the only delegate I know who broke the Convention's secrecy rule,16 but I'm sure God's forgiven him for that. What I'll be curious to find out is whether he was also forgiven for conspiring to start an Indian war to increase western land values.17 For that, he became the first man ever expelled from the U.S. Senate.18 He posted bond to guarantee his appearance at a Senate impeachment trial, but then fled by backroads to Tennessee or somewhere, causing Abagail Adams to remark that it's too bad Pennsylvania "keeps no gallows."19 If Blount shows up, we'll know how lax admission standards are around here.
I hope everyone's on their best behavior tonight. I'll try to be. We had a few differences among us, as you probably know. Not any more differences than you'd expect if you cooped up fifty-five ambitious politicians for four summer months in a building without air conditioning--but then you'd probably expect quite a few differences under those conditions. I can recall, painfully, the day Luther Martin, that brilliant but dogmatic states' rights man from Maryland, made a rambling five-hour attack on everything the Convention had done to that date and might do in the future.20 The speech drove Alexander Hamilton back to New York21 (we can be thankful for small favors), caused Ben Franklin to propose prayer,22 and incited the usually agreeable Oliver Ellsworth to accuse Martin of putting on a "mortifying" and "disgusting" display.23 For his part, Martin said Ellsworth had a weakness of the head,24 which he might have had, though it's generally not the sort of thing said in polite society--at least to one's face.
I expect some stimulating conversation tonight. Some of the best minds of our time were assembled in Philadelphia. It is 6:45. As soon as I adjust the ruffles on my shirt and pop in a breath mint, I'll be ready to go.
A CONVERSATION ABOUT THE PRESIDENCY AND THE AIMS OF
Even though it's after 7:00, two servants are still placing namecards around two long dinner tables (one table for the signers and one for the dissenters, I imagine). Two other servants are bringing in hors d'oeuvres, and setting up the bar. I wonder where Washington got the servants? Probably, they are his former slaves at Mount Vernon.25 People today like to forget that most of the founding fathers had slaves. If you tour Mount Vernon today, don't expect to be shown the slave quarters. But slavery was a reality in 1787, and not just in the southern states. A number of delegates from northern states were slave owners as well.26
Only a dozen or so guests have arrived. Roger Sherman, Gouverneur Morris and James Wilson are talking near the hors d'oeuvre table. An unlikely trio. Sherman, who John Adams once aptly described as "an old Puritan, honest as an angel,"27 was a strong supporter of states' rights. Morris, at thirty-three--exactly half Sherman's age, was a blue-blooded aristocrat and strong nationalist. Wilson was also a nationalist, but decidedly not an aristocrat. James was an erudite, bookish liberal. Curious as to what topic of conversation could be keeping the three together, and anxious to get my share of hors d'oeuvres, I amble off in their direction. As I fill a plate with pickled herring, brie, and spanish peanuts, I remember the Roger Sherman I knew 200 years ago.
I deeply respected Sherman. This may have been in part because of his age--he was the second oldest of the delegates to the Convention.28 More significantly, though, I respected him for his regular, deep and comprehensive thinking, as revealed in his many speeches that summer. It was always a surprise to hear those thoughtful comments coming from a man with such a rough, almost wild, appearance. Sherman had a gnarled face, unkempt hair hanging over a wilted collar, and a sharp protruding nose.29 His manner was "awkward, unmeaning and unaccountably strange.30 As he spoke in his odd Yankee twang, his left fist was always clenched, while his right hand grasped his left wrist.31 It is certainly easier to picture Sherman as the poor Connecticut cobbler he used to be than as one of the principal shapers of the Constitution in Philadelphia. It's as easy to picture President Taft as a dance instructor.
Roger looks uncomfortable. But then Roger always looks uncomfortable. It was once said of Sherman that he is "as fitted for a polite dinner as a chestnut burr is for an eyestone."32 Fortunately, the Reunion didn't fall on a Sunday. Sherman was a strictly religious man who never talked politics on a Sunday. He also did not--any day of the week--drink, swear, own slaves, play cards, or go to the theater.33 Needless to say, Roger was not especially fond of the off-color jokes Gouverneur Morris loved to share with delegates.34
Sherman is making his best effort to engage in small talk. He is asking Morris whether he had taken advantage of his spare time--and time is given to all in great abundance in Heaven--to do any fishing with his close friend, George Washington. Sherman's question, no doubt, was prompted by knowledge of Morris' and Washington's fishing trip to George's old stomping ground (so to speak) of Valley Forge during a recess in the Convention. If fishing stories are no exception to Washington's usual truth-telling, the two men did very well with the trout and Delaware perch.35
My appearance, however, postpones any response from Morris. He turns to greet me. "Hugh, my multitalented friend, it's truly a pleasure to see you again." We shake hands warmly.
Gouverneur Morris, almost as much as Sherman, was a character so striking that the passage of 200 years could scarcely begin to erase the memory of him. Morris lost a leg in a carriage accident when he was in his twenties. The wooden peg leg that he wore in its place gave him a piratical appearance. The missing leg didn't seem to discourage many amorous adventures, at least until he finally ended his bachelorhood, many years after the Convention, at age 57.36 Then there was the matter of his first name, which has been a source of confusion for students of the Constitutional Convention. (I've noticed how few twentieth-century parents christen their children Governor or Senator, despite the obvious advantages that such names might have for the child). Morris was a vehement and colorful orator. And a frequent orator. Morris spoke more often than any of the other delegates.37 He also knew how to write. Morris' words, "We the people of the United States, in order to form a more perfect union . . .,"38 comprise the preamble of our Constitution.39
I greet Sherman and Wilson. "Roger was just asking whether George and I have done much fishing since we arrived here. Surprisingly, the answer is 'very little.' It just doesn't seem to hold the challenge that it used to." (This is neither the time nor the place to explain how one fishes in Heaven). "But my hobbies have always seemed dull compared to Hugh Williamson's. Tell me, Hugh, have you met any interesting people from comets lately? Any constitutional lawyers from eastern Mars?" I can tell that it's going to be a long evening.
"I sincerely doubt, Gouverneur, that amateur astronomy is a more exciting hobby than those of a libertine like you. Actually, I've spent the better part of the last two centuries as you have, I suspect. Not stargazing, but earth-watching. More particularly, America-watching. It's endlessly entertaining to see what preposterous things our great-great-great-grandchildren have to say about our Constitution." All three men nod in agreement.
I knew that James Wilson had been America-watching. He was anxious to discover whether historians would recognize the contribution that he had made to constitutional government. He had made quite a contribution. Only James Madison might claim to have been a more important influence at the Convention, and only Madison could claim to be Wilson's equal as a political theorist.40 Unfortunately, Wilson was not able to achieve in his lifetime the prestige he had always sought. He campaigned for the job of Chief Justice, but had to settle for Associate Justice.41 Nine years later, broken mentally, bankrupt and in danger of being thrown into debtor's prison, he died.42 Wilson was a tall Scotsman, solid-looking at his Convention age of forty-five, with a ruddy complexion. He wore a neat white wig and thick spectacles which made him look quite professorial.43 Wilson was not a mixer.44 He had little patience for typical cocktail party conversation about race horses, the price of tea, or who's dueling with whom. It was to be expected, therefore, that Wilson would seek to shift the conversation to politics.
"It's said that time brings to ruins the best laid plans of mice and
men. Our Constitution's been around for 200 years now. A
longer, I daresay, than many of us would have predicted, and it remains
far from 'in ruins.' Nonetheless, it hasn't worked out precisely as we
expected or hoped. Take the eleventh amendment,45
for example, reversing
the decision I authored in Chisholm v. Georgia,46
a state may be sued in the federal courts by private individuals.
It's not easy to be remembered as the first judge to have a decision
by constitutional amendment. Anyway, the question which I have on
my mind is this: What do you think, gentlemen, is the most surprising
of our efforts during that summer of 1787?"
That's not an easy question, I think. "Hawaiian statehood," "the prohibition amendment," and "the Presidency of Ulysses S. Grant" all come to mind, but I decide to say nothing. Roger Sherman offers a better answer.
"The biggest surprise would have to be the concentration of power within the executive branch. In the 1700's, as you remember, state executives were 'little more than Cyphers' and state legislatures were omnipotent.47 We assumed that the tendency in any government we'd establish would be for power to be sucked into the legislative branch. That is why we included provisions, such as those relating to veto power and the power to appoint Supreme Court Justices, which were designed to insure that the executive branch could act as a check on the legislative. Despite these efforts, virtually all of us fully expected Congressional dominance."48
"I don't have to tell you that it hasn't worked out that way. From Polk to Roosevelt to Reagan, presidents have either grabbed or been handed a larger and larger share of the national power. People today are talking about the 'Imperial Presidency.'49 F.D.R. had to beg Congress for six senior aides.50 Do you know how many presidential aides there are today?---over 600!51 The President controls a bureaucracy which includes literally hundreds of agencies, most of them with responsibilities we could never have dreamed of. Through that control, the President has an enormous impact on national life. Congress, meanwhile, has almost nothing to say about foreign policy, and precious little about domestic. The President, our invention to provide something of a check on Congressional dominance, has come to set the national agenda. That, my friends, has to be the greatest surprise of all."
I agree with Sherman. "Yes," I find myself saying, "if present trends continue, we will have a king before long. Except for Alexander Hamilton and perhaps you, Gouverneur, we were all fervently opposed to monarchical government. We'd lived under a monarchy, and most of us despised it. Now, we have something just as bad: the Royal Television Presidency. The Chief Executive of the United States, blowing kisses to the masses as he travels from one "media event" to another! It's enough to make any true republican throw up! But I suppose it's the growth of Presidential power that should worry us most. Congressional power was to be checked, as Roger said, by the other two branches, but there wouldn't have been a second's hesitation if we had been asked which branch was the heart and soul of our republican government."
"Hold off on the coronation," Morris says, as he moves his peg leg to a different position. Morris was a vehement orator, and on no issue at the Convention was his vehemence better demonstrated than on the issue of presidential power. He was a supporter of a strong President. He described the President as "the great protector of the mass of the people,"52 and had urged that the President hold office for life and be given an absolute and unlimited veto power.53 We all knew Morris too well to believe that Morris' principal concern was protecting "the mass of the people." Morris was, as I said before, an aristocrat. He wanted a strong executive primarily to check what he feared would be a legislature's tendency to redistribute wealth from the rich to the poor. Exactly that redistribution had happened shortly before the Convention in Rhode Island, and the events in Little Rhody were a major reason for our meeting in Philadelphia.54
"To the contrary, gentlemen," Morris begins, "the flow of power to the President should come as no surprise to any student of Charles Darwin. It's survival, or dominance we might say, of the fittest branch! Over the past 200 years, the executive branch has proven to be the branch best suited to protecting the interests of the nation. Let's consider a few of those occasions on which the President's power has grown. The Louisiana Purchase, for example. Would you condemn President Jefferson for seizing the opportunity to double our nation's size at a cost that would put the shrewdest land speculator to shame? Would you condemn President Lincoln for taking the steps he did to preserve the Union and abolish that despicable institution of slavery?55 Do you fault President Reagan for using power as he has to counter the leveling influences which had been corroding our nation's character, and which Congress seemed helpless to prevent? As I said, no person who understands the principle of natural selection should find the growth of presidential power surprising."
Morris' attempt to scientifically explain the rise of presidential power reminds me of a remark made by historian Henry Adams, surveying American history from the wreckage of the late 1800's. Adams said, "The progress of evolution from President Washington to President Grant is alone evidence enough to upset Darwin."56 I'm not sure that Adams would find the theory of natural selection any more vindicated in the last hundred years. If I happen to run into him, I'll have to ask.
If Sherman was unpersuaded that a strong presidency was within the contemplation of the Convention, he was even more likely to be strongly opposed to the notion, implicit in Morris' comments, that a strong presidency was good for the country. I can sense a rerun of one of our most divisive debates shaping up, and with all three of the major viewpoints represented in Morris, Sherman, and Wilson." Government governs best when it's closest to the people," the Old Puritan says, restating the philosophy which dominated his thinking 200 years ago. "That's why I initially supported patching up the old Articles of Confederation and keeping most of the real power in the state legislatures.57 It was also the basis for my suggestion that members of Congress be chosen by the various state legislatures, and that the President be elected by members of Congress.58 If my proposals had been adopted, we would have a political system in which the moral character of those in power could really be judged by people responsible for electing them. I have faith in the people to choose their representatives wisely when it is a choice among their neighbors that they are making. I have much less faith in their choice when it is made between people they have never met, and about whom all they know comes from thirty-second advertisements prepared by media consultants and other image-shapers. I think it was George Mason who said, 'Election (of the president) by the people is like giving a trial by colors to a blind man.'59 It is dangerous in the extreme to give any more power than is necessary to a person elected in such a way."
I look at Wilson. He is wearing the bemused expression one sees on law professors after a first-year student makes an ambitious, but totally off-base, attempt at an answer. It is only natural that he should. Wilson was, after all, a lecturer-in-law at the College of Philadelphia after serving as a Pennsylvania delegate to the Convention.60 His introductory law lecture was attended by George and Martha Washington.61 Had Professor Wilson called on George to recite the facts of Shelley's Case,62 law professors for generations to come would have a treasured anecdote to relate to their property students. Alas, no such thing happened.
"Let me paraphrase a comment that has been made about our system generally," says Wilson. "Direct election of the President is the worst possible method of election--except for all the rest. God knows it's hard for voters to make intelligent choices about candidates packaged like laundry detergent, yet it's best that we let them do the best that they can. Voters today know a damned bit more about their presidential candidates than did voters in the eighteenth century, when a very small percentage of the electorate so much as glimpsed a presidential candidate. They are exposed to daily news segments, debates, and other sources of candidate information not available 200 years ago. I know, Roger, that this is not the sort of information concerning moral character that you would wish our elections to turn upon. But the type of election you envision is a museum piece. Even races for state legislatures today are more likely to be determined by image-makers and information-packagers than by personal interaction between voters and candidates. For every president lacking in moral character, I'll point out two dozen congressmen and senators who are to varying degrees scoundrels, common criminals, sleazebags or morons. And I could list morally defective state legislators from now until our 300th Reunion."
"That's the least of the problems with your proposal, Roger." Mr. Morris has not become any more quiet spoken in the last 200 years, I observe. "The worst of it is, as I said in Philadelphia, that election by the legislature would be like 'election of a pope by a conclave of cardinals.'63 Full of cabal and intrigue. Except much worse. It's considerably easier to buy off congressmen than it is to buy off cardinals."
"Moreover, what kind of a president would we have, if chosen by the
Congress? Why he would be a mere puppet of those responsible for
his election.64 Weakness and
servility is what you'd have.
The Congress is always at the trough, and interest groups are shoveling
in feed faster than ever. The presidency was created so that
narrow interests can be transcended, the large public interest in a
and unregulated economy recognized, and bad legislation stopped in its
tracks. Checks and balances, checks and balances! We all
recognize the truth of what I said in Philadelphia: 'the excess, rather
than the deficiency of laws was to be dreaded.'65
is the great final obstacle standing in the way of oppression."
Morris is starting to roll now. I expect that any minute he'll tell us the primary goal of government is to preserve property. I am right.
"The primary goal of government is to preserve property, not liberty. I think I said it well in Philadelphia when I observed, 'The savage state is more favorable to liberty than the civilized, and was only renounced for the sake of property.'66 Our Convention was called, as I see it, to secure property from the threats posed by rogue states like Rhode Island. We needed a strong federal government to do that. State governments had proven their untrustworthiness. To quote myself once again, 'State attachments, and State importance have been the bane of this country. We cannot annihilate; but we may perhaps take out the teeth of the serpents.'"67
"As you all know, I was a staunch supporter of our
But I have one major regret; one thing that causes me to worry about
nation's future. It was our failure to adopt my proposal to
suffrage to freeholders. As I saw in France, republicanism can be
'absolutely a moral Influenza.'68
Far be it from me to say 'I told
you so,' but consider my prophetic words of 200 years ago: 'The time is
not distant,' I said, when this country will abound with mechanics and
manufacturers who will receive their bread from their employers.
Will such men be the secure and faithful Guardians of liberty?
ignorant and the dependent can be as little trusted with the public
as children.'69 If anything, when I
look at the riff-raff, the depraved,
the multitudes without property in society today, I believe that my
sadly failed to match the danger."
If looks could kill, Roger Sherman's look would have knocked off a neighborhood. But Sherman began his response to Morris' tirade with measured words.
"Property is a wonderful thing, isn't it? That it can, by its
mere possession, give to its possessor wisdom is a wonder indeed.
What other thing can instantly turn childish and ignorant riff-raff
a knowledgeable guardian of the public interest?"
"As I objected to your elitist proposal at the Convention, Gouverneur, I must again object to your description of the preservation of property as the primary goal of government. Only a fool would deny the importance of protecting property, of course, but I believe that government can serve a higher purpose. You may call this belief, as James described another one of my ideas, 'a museum piece.' Maybe I am myself a museum piece. I'm older than practically anyone here and my philosophical roots are in another generation. I believe that government should above all else try to elevate man's character. I believe that government should be an agency of moral education. Old-fashioned notions, I agree, but I think maybe the country's coming around to them again."
Historians say that the time of classical republicanism "had come and gone by 1787."70 For the most part, they are right. There were a few delegates like Roger Sherman around to blow on the embers, but the majority of us doubted whether government could, or should, do much to improve the morality of its citizens. It was not the character of the people that would preserve the Republic, but rather the machinery of government. Sherman lost his battles with Lockean liberalism. The Bill of Rights was adopted over his opposition, and his efforts to rid the nation of the scourges of cock-fighting, horse racing, and live theater all failed.71 To Sherman's credit, however, he was able to accept his defeats with good grace, and serve a valuable role as a facilitator of compromise, both at the Convention and during his other years of public service.
James Wilson represented the prevailing liberal tradition. In the two centuries since the Convention, the government which has evolved perhaps resembles the vision of Wilson more closely than it does the vision of any other delegate. The popular sovereignty and the strong federal role as a protector of individual rights, which are the major features of American government today, are precisely those that Wilson fought for in Philadelphia. Wilson believed that a strong, directly elected president would make the government more energetic and sensitive to a variety of needs than it would otherwise be. Although Gouverneur Morris has been described as "the floor leader" for Wilson's strong Executive plan,72 Wilson did not see the President as primarily serving Morris' role as a last defense against the erosion of protection for private property. In Philadelphia, Wilson responded to Morris' ode to private property by saying that he "could not agree that property is the sole or primary object of government and society."73 Rather, he said, "The cultivation and improvement of the human mind is the most noble object."74
"Isn't it interesting," I say, "how our various backgrounds seem to dictate what we see as the principal object of government? Gouverneur Morris, the aristocratic business executive, lawyer, and assistant finance officer, says the main object is to preserve property. Roger Sherman, the theological expert who financed Yale's chapel, says the main object ought to be the improvement of man's moral character. And academic James Wilson, lecturer on subjects from law to literature, says government ought to be about the business of bettering the human mind. For my part, I suppose, I should argue that the highest goals of government are to keep the population free of smallpox and the earth in its proper orbit."
"Yes," says Morris, "and the citizenry prepared for war, should our Jovian neighbors ever decide to attack!"
Wilson looks at me with the slightly devious smile one occasionally sees on law professors as they size up their prey. "What I want to know," he says, "is how many presidents Hugh would have trying to do these things. Perhaps a baker's dozen by now? Surely the Midwest needs a president, and the Pacific Northwest, and probably two for California?"
What an embarrassment! I was hoping to make it through the evening without anyone bringing up my multiple-president plan. My proposal at the Convention was to place executive power in three people, one person representing each of the three great geographical regions-the North, the Mid-Atlantic, and the South.75 Crazy, you say? Well, maybe. But the idea didn't seem so crazy in 1787, when jealousies and suspicions between regions threatened to make the creation of any national government impossible. It also seemed to serve the general goal of diffusing power as much as possible. Edmund Randolph, my pro-choice colleague from Virginia, said "Unity in the executive is the fetus of monarchy!"76 In the end, however, my proposal lost. I suppose you know that. It was Wilson who had made the most telling objections. He pointed out that frequent struggles were likely to arise between the three members of the executive, paralyzing the government.77 78 Sometimes, a case of executive paralysis may do a country more good than harm. Wilson's argument that a "council oftener covers malpractices than prevents them" was harder to answer. When power is given to a single executive, at least we have the advantage of knowing whom to blame when things go sour. The fingerpointing ends or, as Harry Truman said, "the buck stops."
Wilson is looking at the bottom of his glass. I need a gin and tonic. "James," I say, "walk over to the bar with me and I'll tell you all about it . . ."
A CONVERSATION ABOUT THE JUDICIARY
As I'm waiting for my drink to be mixed, Wilson nudges me. "Look over there--Hamilton and Spaight. I bet we can guess what they're talking about!" We both laugh. You all know Alexander Hamilton, the federalist (but usually absent) delegate from New York. You probably don't know Richard Spaight, a delegate somewhat more obscure than myself and, like me, from North Carolina. Both arrived here in Heaven straight from duels.79 The two must be sharing gratification over the fact that neither of their opponents had been so fortunate as to arrive here at all. Aaron Burr's bullets ended the life of one of the most dynamic, elegant, eloquent, and brilliant people of our times. Although "The Little Lion," as we called him,80 did not contribute significantly to the formation of the Constitution,81 he did help in securing its adoption. Hamilton, along with James Madison and John Jay, wrote an influential series of letters in support of the proposed constitution, published under the name of "Publius."82
"I heard the Little Lion never misses 'Wall-Street Week.' He told someone that he thought Louis Rukeyser would make a great President."
"It's too bad he didn't have so wise a financial advisor two hundred years ago," says Wilson. "I could have used a little sage financial advice back then, too. It hardly befit a Supreme Court justice to be hounded by hungry creditors. Say, I see a couple of ex-Chief Justices over there in the corner, talking with John Dickinson. Let's go say 'hello' to them. That is, if you can tolerate a conversation that includes four lawyers. I promise to translate the legalese, Hugh."
One of the two former Chief Justices is Oliver Ellsworth of Connecticut. Still using snuff, I note with mild digust. Ellsworth, before becoming John Marshall's immediate predecessor on the Supreme Court, drafted the Judiciary Act of 1789.83 As a federalist delegate from Connecticut to the Convention, he served on the committee which drafted the Article on the Judiciary for the proposed Constitution.84 Ellsworth was a tall, robust, broad-shouldered man, though not especially handsome, suffering from a too-long chin.85 He was neither imaginative or brilliant,86 but was blessed with a thoughtfulness and a sense of practicality which made him a major contributor in Philadelphia.
John Rutledge of South Carolina is standing next to Ellsworth, sipping a glass of Madeira. He was especially fond of the drink, calling himself a "two-bottle man."87 Rutledge was nominated by George Washington to succeed John Jay as the Courts' second Chief Justice.88 He served only five months until his nomination was defeated, 14-10, in the U.S. Senate.89 Alexander Hamilton successfully led the campaign to defeat Rutledge's nomination on the grounds that John was "insane."90 History is not especially clear on the issue, but apparently some of the strongest evidence presented for Rutledge's "insanity" was his untimely opposition to the Jay Treaty.91 Rutledge probably had as big of a role as anyone in shaping the Article on the Judiciary. The words of Article Three are his.92 Tonight, as always, Rutledge is the essence of legal decorum, dressed in his fine wig, ruffles and silk gown.93 People today say Warren Burger looks every inch a Chief Justice. If they could only have seen Rutledge!
The third man in the group is John Dickinson. Let's face it-Dickinson is not a household name. (You may, however, have heard of the college he founded in Pennsylvania).94 Despite his relative obscurity, Dickinson was, as a delegate from Delaware, an important member of the Convention.95 I remember him best for his efforts to restrict the powers of the federal judiciary. Even though my career as a physician predated the medical malpractice boom, I've always been reluctant to let loose the judges. It's unusual, however, to see a former Philadelphia lawyer such as Dickinson making the same arguments against expansive judicial power.
"Hugh Williamson and James Wilson," says Rutledge, "The two men last in the alphabet, but somewhere in the middle of the hearts of their countrymen . . . James, old chap, how the hell have you been? We'll have to catch the first act of that play sometime?"96
"I have lots of time."
"Don't we all? Even Halley's Comet is becoming old hat, don't you agree, Hugh?"
"Yes," I agree. "The first time is always best." I am anxious to avoid further ridicule of my theories about extraterrestial beings, however goodnatured, and decide that a preemptive strike, in the form of a serious question, is necessary. "James has posed an interesting question that I'd like to get your opinions on as well. We've been considering the question of what has been the most surprising result of the Convention. Does anyone here have a nomination?"
"I have one," Dickinson says, "but it's not safe to make in the presence of three former justices, all of whom served on the Committee which drafted Article Three. On the other hand, you only live once, and I've already done that, so I suppose I may speak frankly. My biggest worry about the Constitution concerns the Supreme Court's usurpation of power. You may remember the warning I gave in Philadelphia. 'The judiciary of Aragon became by degrees the law-giver.'"97 (I can tell that Ellsworth, for one, doesn't remember. In fact, he looks surprised to hear that Aragon was located on our own planet). "We're fast becoming another Aragon. Not only has the Court claimed the powers to void federal legislation and to overturn final judgments of state supreme courts, but it has, through its strained interpretation of our words and those of the First Congress, managed to turn virtually every social, economic, and political question into a constitutional question. I'm willing to concede that not all of the delegates shared my view on the proper extent of judicial powers, but every last one of them expected the judiciary to be the weakest branch and assumed further that virtually all litigation would start in state courts."98
"John," Ellsworth says, "Your memory's playing tricks on you after two centuries. You say 'not all' the delegates shared your view on judicial powers. Don't you really mean 'hardly any'? In fact, as I recall, it was only you and Mercer of Maryland that expressed opposition to the Supreme Court's power to void federal legislation offensive to the Constitution."99
"And Ben Franklin," I add.100
"And perhaps Franklin. That makes three out of fifty-five delegates, at the most. On the other hand, a large number of us voiced support for just such a power. Including, as you know, Wilson, Rutledge, and myself."
"And we were on the five-person committee that wrote the [bleeping] article," Rutledge breaks in. Rutledge swore a lot 200 years ago.101 Still, it always strikes me as strange to hear an angel swear.
"The delegates who expressly supported giving the Supreme Court judicial review power included some of our most founding of fathers," says Wilson. "James Madison, Gouverneur Morris,--even the two most notable delegates who refused to sign the constitution, George Mason of Virginia and Luther Martin of Maryland, spoke out in favor of Supreme Court review of federal legislation.102 Our reasons were similar. As Publius said in The Federalist Papers, the Court was to be the 'bulwark of a limited constitution against legislative encroachments.'103 A few justices, carefully selected by the President and appointed for life, form a tribunal relatively safe from the passing enthusiasms of a multitudinous assembly elected for short periods, and from the 'intrepid fixedness of uncompromising party.'"104
"True enough, James," says Dickinson "But black robes and a lifetime appointment do not guarantee infallibility, or even divest a man of his prejudices. Judges make mistakes. And a 'court from which there is no appeal is likely to forget circumspection in its sense of security.'"105
"I'll accept that as a danger," says Rutledge. "But remember that even decisions of the Supreme Court are not final. History contains many instances where a decision of one Court has been reversed by a later court. Moreover, in the end, the people themselves retain the power to reverse unpopular decisions through the amendment process."
"I don't suppose that after all these years we should expect our friend Dickinson to suddenly change his opinion," says Rutledge. "If the force of John Marshall's decision in Marbury v. Madison106 didn't convince him of the necessity of judicial review, it's unlikely that any of us can."
"To think that had I not resigned from the Court, I could have authored that opinion!", says Ellsworth as he takes another pinch of snuff. "Generations of constitutional law students would be reading the words of Oliver Ellsworth-although they wouldn't have been nearly so clever as Marshall's, I fear." As often happened when Ellsworth was absorbed in conversation or thought, he forgets to lift the snuff to his nose, and instead drops it on the freshly scrubbed floor.107
I decide that the badly-outnumbered Dickinson needs a little support. So I offer what little I can give. "Whatever the merits of judicial review, isn't John right in identifying its extensive use as a major surprise? Our Constitution created a government of enumerated powers, and most of us thought it highly unlikely that Congress would ever draft unconstitutional legislations.108 That's why the question of judicial review received so little debate in the Convention. It also explains why there was no express mention of the power in the document itself."
"On the contrary, Hugh," says Wilson, "I would contend that the omission of any express reference to judicial review power resulted from our virtually unanimous agreement that such a power must exist. That its existence was, as Marshall pointed out in Marbury, implied by the very structure of our government."
"To be fair," says Rutledge, "I think both explanations have some merit. The fact of the matter is that we did spend a remarkably small amount of time discussing what has become one of the most important features of our constitutional system. We spent much more time discussing, for example, the question of whether the Supreme Court should be given, along with the president, a 'veto power' over legislation before it became effective. As we all know, that proposal was rejected-four times.109 Wisely, to my mind."
"Yes," agrees Dickinson. "And one of the reasons we rejected
idea was because we believed the more appropriate context for judicial
consideration of legislation to be a particular case raising the issue
of the legislation's constitutionality. Judges have no special
on pure policy questions, and judicial and legislative duties should
be mixed. The judicial veto proposal reflected a widespread fear
of legislative usurpation of power, and a belief that the danger could
be countered by having the executive branch and the judicial branch
up' against Congress. I preferred to keep all three branches
"I seem to recall another issue of judicial power debated at the convention," I say. "Didn't Randolph propose giving the Supreme Court the power to void any state law 'found contrary to the principles of equity and justice'?110 Quite a power. Imagine how that proposal would fare in Strom Thurmond's Judiciary Committee. If we had bought the idea, goodbye federalism."
"You're right, Hugh," Dickinson says. "James Madison supported the idea.111 A number of delegates thought the idea was pure poppycock, of course. Not just the states' righters like Luther Martin and Roger Sherman, but even some of the strong nationalists like Gouverneur Morris."112 Wilson's eyebrows rise above his thick, circular glasses whenever he finds an argument to be particularly appalling. They rise now. "To my mind," he says, "There are only two arguably justifiable criticisms of Randolph's proposal. First, that it is unnecessary because judges inherently possess such a power. Second, that it doesn't go far enough, in that it fails to provide for invalidation of federal legislation which is offensive to principles of equity and justices.113 The Constitution is not the highest law of the land. The highest law, or natural law as it is often called, is ordained by God. It is perceived by man either through his conscience-which I have described as 'the voice of God within us'114--or through his powers of reason. I explained all this in my introductory law lectures. Ask George Washington--he was there."
"Natural law envisages for man the widest possible measure of
only to limitations where necessary to prevent injury to others,"
goes on, sounding more and more professorial. "Our dignity as
comes from our voluntary acts. We all have a right to seek
in our own ways, however foolish or harmful to ourselves they may be."115
"I regret, and admit to some surprise, that judges have been unwilling to assume their responsibilities to invalidate legislation which violates fundamental principles of natural law. It is a fact which reveals a profound ignorance of the political presuppositions upon which the Constitution and the Bill of Rights rest. As you all recall, the principal objection to certain provisions of the Bill of Rights was not that the government should have the power to conduct unreasonable searches, inflict cruel and unusual punishments, or deny the free exercise of religion. Rather, it was that these were powers so clearly outside the bounds of legitimate government activity as to make the explicit denial of these powers silly.116 One member of the First Congress sarcastically asked whether it was also thought necessary by proponents of the Bill of Rights to deny the government the power to tell a citizen whether he may 'wear his hat, get up, [or] go to bed when he pleases.'117 If there were any lingering doubts about the matter of whether natural law limits the exercise of government power, you would have thought that the ninth amendment would have taken care of it.118 Unfortunately, that has not been the case. It's practically as though the amendment had never been passed, for all the attention it's received from judges. Only that Griswold fellow in the Goldberg case-or was it Justice Goldberg in the Griswold'119 case?-seems to have so much as bothered to read it!"
"James, I was one of the non-lawyers at the Convention, and I subscribe to the U.S. Reports, so fill me in on something. Has anyone on the U.S. Supreme Court ever explicitly bought your natural law theory-other than you, of course? Frankly, 'natural law' strikes me as a concept that might better be used by biologists studying the mating habits of tree frogs than by judges in resolving conflicts between individuals and governments."
"Justice Chase's opinion in Calder v. Bul1120 is a good early statement of natural law theory, Hugh. I just happen to have a copy of his opinion in my coat pocket. Let me read to you from it."
"You have the opinion in Calder v. Bull in your coat pocket?," I ask, incredulously. Wilson has it alright. Never be surprised at what a law professor might pull out of his pocket.
Justice Chase had this to say about natural law in Calder:
An act of the legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority. . . . A few instances will suffice to explain what I mean. A law that punished a citizen for an innocent action, or, in other words, for an act, which, when done, was in violation of no existing law; a law that destroys, or impairs, the lawful private contracts of citizens; a law that makes a man a judge in his own cause; or a law that takes property from A and gives it to B: It is against all reason and justice, for a people to entrust a legislature with [such] powers; and therefore it cannot be presumed that they have done it. . . . [T]o maintain that our Federal, or State, Legislature possesses such powers, if they had not been expressly restrained; would, in my opinion be a political heresy, altogether inadmissible in our free republican governments.121
"This Justice Chase you're quoting is, I presume, the same irascible Justice Chase who was later defended in impeachment proceedings by our fellow delegate from Maryland, Luther Martin?," I ask.
Ellsworth grimaces at the mention of Luther Martin. He
the name-calling contest the two had at the Convention.
"The same," answers Wilson. "Though if your suspicion is that Chase was tried for advocating natural law, you're mistaken."
"You and Madison, and maybe a handful of others may have intended to write all of Locke into the Constitution," says Ellsworth. "But most of us were just lawyers and businessmen dealing with a definite situation. We weren't political philosophers. 1, for one, hardly gave natural law a moment's thought. As I recall, most of our debates about article three concerned how justices would be appointed, not what they'd do once they were."122
"It was the appointment process," Ellsworth continues, "that was our biggest mistake. Madison, Rutledge, myself and others all warned that we were giving the President too much power.123 No one person should be able to determine the course of constitutional law for decades."
"As you know, the appointment process for Supreme Court Justices is an especially sore subject for me," says Rutledge. "Even after all these years, I'm just beginning to forgive you for voting against me in my Senate confirmation hearings, you two-faced yankee bastard, Oliver! It's true that at the Convention I argued for appointment of Supreme Court Justices by the Senate, but after my experience, I'm not so sure we wouldn't be better off with a system that gave the President unreviewable discretion to make the selections."
"I'm glad to see you're coming around to what was always my position in the matter," says Wilson.124 "It sickens me to see confirmation hearings turn into ideological inquisitions. It's interesting, though, to consider what would have happened had the Madison-Ellsworth-Rutledge position been adopted. If judicial selections were made by a large body like the Senate, you'd tend to get more moderate, less idiosyncratic justices. A William 0. Douglas or a William Rehnquist wouldn't have a prayer of appointment. Not today, anyway. Incidentally, the same bias toward moderate candidates would have been the consequence of adopting Sherman's proposal for Congressional election of Presidents. We'd get fewer FDRs and Reagans, and a lot more Jerry Fords. Involving the Senate, even to the extent we did in the judicial confirmation process, has kept some ideologically extreme or politically controversial people off the bench."
"And some deranged old Southerners, as well," adds Rutledge, smiling only slightly.
An awkward silence is broken by the sound of a bugle. Into the hall strides George Washington, escorted by two servants. He is wearing an outfit which must have cost more than the gross national product of Upper Volta. All things considered, a rather low-profile entrance for the former President of our Convention. I'm surprised George didn't show up atop the white steed with the leopard-skin housing and the gold-bound saddlecloth he used to ride around Manhattan.125 (New York was our first capital, in case you've forgotten). There's huzzahs from the crowd, a bow from Washington, and then a slow drifting of delegates to their assigned places at the dinner tables.
A CONVERSATION ABOUT THE CONGRESS
I find, to my pleasure, that I have been seated next to some of the best minds of the Convention. I flatter myself for a second by thinking it to be planned. I imagine George Washington turning to Martha and asking, "Who could be put next to Hugh Williamson?--He's such a smart fellow. We must surround him with the Convention's brightest lights or he's apt to become bored sometime between the spinach salad and the chicken kiev. Madison will do nicely, of course. And perhaps George Mason and Luther Martin. What do you think?"
James Madison needs no introduction. But like everyone else who, since guest speakers were invented, has said someone "needs no introduction," I have no intention of passing up the opportunity. Besides, most people really do need introductions. There are a lot of ignorant people in the world. Maybe you're one of them. James Madison, the defendant in the previously mentioned case of Marbury, was five-foot-six and slightly built.126 He was also the fourth President of the United States, and the principal architect of our Constitution. Most of his evenings in Philadelphia that summer of '87 were spent at the inn of Mary House at Fifth and Market, laboriously transcribing notes from the day's speeches.127 He enjoyed little of the conviviality at the Indian Queen. To be perfectly honest, James is dull. You know what they say about "all work and no play." At large gatherings, he tends to be stiff, aloof, reserved, and gloomy.128 We almost never had success in getting him to recite any of the bawdy rhymes he was famous for at Princeton. Madison did escape during the Convention once or twice, however, to the estate of Richard Peters where evenings were spent sharing ribald poetry.129 I'm surprised some doctoral candidate hasn't attempted to explain the First Amendment, drafted by James, as a consequence of his interest in pornography.
George Mason, like Madison, a Virginian, was a liberal and a staunch republican. Madison greatly admired him.130 Mason had drafted Virginia's Declaration of Rights which was the model for the Bill of Rights.131 Although he was a wealthy planter and a slave owner, no one argued more frequently and more eloquently at the Convention against the institution of slavery and for the express protection of individual rights. When his proposal for a bill of rights was rejected, Mason became a vocal opponent of the Constitution. In a memorable speech he said, "I should sooner chop off my right hand than put it to the Constitution as it now stands."132 133 The whole summer was something of a downer for George. Not only was he disappointed in the Convention's results, but he was also seriously injured in a carriage accident near Baltimore while on his way back home from Philadelphia. Potholes are not just a twentieth-century problem.
Luther Martin is already at least one sheet to the wind, and in the process of adding another sheet. Martin, as one historian noted, tended to "both the bottle and the battological."134 You either loved or hated this "Bulldog of Federalism."135 You hated him when he was delivering one of his rambling, dogmatic speeches, but you loved him after sessions when he was hearty, friendly, and jovial.136 He was also bright, no doubt about that. Martin finished first in his class in languages and science at Princeton,137 that school on the King's Highway attended by Madison and so many other delegates.138 As the acknowledged leader of the Maryland bar for two generations, he never shied away from controversy. He defended, among other controversial clients, Aaron Burr in his treason trial.139 The fact that Luther, the sly old bulldog, was in love with Aaron Burr's daughter may have had something to do with the arrangement, but let's not get into that.140 Incidentally, speaking of relationships, Luther Martin has none with Martin Luther, except, perhaps, a gutsy willingness to take on the Establishment. Near the end of the Convention, Luther Martin figuratively, and in no uncertain terms, nailed his list of objections to the Pennsylvania State House's door.
"If you expect to be served dinner," I say to Martin and Mason, "you'll have to sign the Constitution."
"Yes," Madison agrees. "Better late than never."
"Why, I'd sooner chop of Luther's right hand than sign the Constitution as it now stands," laughs Mason, grabbing Martin's right hand and a steak knife.
"I'll sign," volunteers Martin, "as soon as hell freezes over..... I wonder what's going on down there, by the way. Some of my best friends are in Hell. You know what they say, 'Heaven for the climate, but Hell for the company.'"
"Hell's weather couldn't be much worse than Philadelphia in the summer," I point out, "unless Philadelphia's weather's improved since we left it."
"The only thing that's better now about Philadelphia is that it's no longer full of people like Madison here with the power and the will to strangle liberty in its crib," says Martin.
"I've never believed in strangling liberty, or even in separating powers, on an empty stomach," I say, beginning to dig into my salad.
"Seriously, Luther," asks Madison, "do you really think, after 200 years, that the Constitution has harmed, rather than helped, the cause of liberty?"
Not many of us Founding Fathers wavered very much on the issue of liberty. Some favored liberty with order, some liberty with a measure of equality, some liberty of conscience, some liberty of property-but above all, we wanted liberty. As historian James MacGregor Burns has noted, liberty was, in 1787, the "unifying symbol and goal around which practical men could rally."141 We had our "ideology of liberty, with all its kindling power and glowing, confusing, contradictory implications for the future."142 We all wanted liberty; our disagreement was over how best to achieve and preserve it.
"We anti-federalists used to be fond of describing your government as a 'many-headed monster' in 'federal city,'"143 Martin answers, looking straight at Madison. "But it's not the monster's heads I'm worried about-it's the arms. They're wrapped all around us now, and if we miraculously succeed in pushing one away, another takes its place. Liberty can survive only when government is kept weak, small, and close to the people. That is the fundamental fact of political life you federalists failed to appreciate, and that error that has cost us our liberty."
"Historians say that I was a political disciple of John Locke," says Madison, "and it is true that there was much I admired in Locke's thought.144 Yet, it was Edmund Burke who made one of the most profound observations about the task we faced in Philadelphia. Burke said that making government is easy and so is giving freedom-the hard thing is to form a free government.145 Threats to liberty come in many forms. There is tyranny of opinion, tyranny by government, and tyranny by a popular majority. Our Constitution had to include protections against each of the three threats. Tyranny of opinion was to be prevented by a Bill of Rights which nurtured political and social pluralism. Governmental tyranny was to be thwarted through ensuring the right to vote, frequent elections, and judicial appeal. The toughest job however,-and source of our disagreement, Luther-concerns the means of guarding against tyranny by a popular majority. I believe that the best hope lies in dispersing power as much as possible-among the three branches of government, and between the national government and the state government. You saw a simple relationship: the more centralized the government, the greater the danger to liberty. But most of us saw that state governments posed the greater threat to liberty. It is far easier for overzealous majorities and demagogues to capture a state government than it is for them to take control of the national government. Especially the national government we created, with its elaborate system of checks and balances and staggered elections.146
"If we had followed your prescription, James, my name would have been on the Constitution along with the rest of yours," says Mason. "Need I remind you that I pointed out in Philadelphia that a Bill of Rights 'would give great quiet to the people; and, with the aid of the State declarations, a Bill might be prepared in a few hours?'147 As a matter of fact, Luther had actually spent some time drafting such a Bill of Rights.148 Yet when it wag moved that a Committee be appointed to recommend such a Bill, it was defeated, ten states to zero.149 Strangely, James, for one who professes such a love for liberty, your voice was silent."
"You know why the proposal lost," says Madison. "George Washington wrote that there was not a member of Congress who disagreed with the principles articulated in a Bill of Rights,150 and I think George was probably right. The motion was defeated because we believed that in a government of enumerated powers, such protection was unnecessary. It was clear, or so we thought, that Congress lacked the power to encroach on the liberties your Bill of Rights would protect.151 We were wrong. We failed to appreciate the scope that would be given to the necessary and proper clause,152 the commerce clause,153 and the other powers granted to Congress. We also made a political and tactical mistake. We failed to appreciate the depth of public feeling for a Bill of Rights. Our mistakes very nearly cost us our Constitution. Bless old Patrick Henry and all the rest of them. The anti-Federalists damned near did us in, and the strongest ammunition they had was the omission of a Bill of Rights."154 I do hope, however, that you, George, as good a republican and liberal spirit as I have ever known, understand that I share with you a concern for individual rights. I was, and to a degree, still am, skeptical whether 'parchment barriers' can adequately protect rights.155 My main focus at the Convention was rather on establishing a machinery for government which would make it as unlikely as possible that government would threaten liberty. Nonetheless, I am guilty as charged. I should have raised my voice in support of your proposal. It is only a weak defense to point out my own role in introducing the Bill of Rights in the First Congress. A bill which took much of your language from Virginia's Declaration of Rights, of course."
"I have never doubted the sincerity of your support for liberty, James. And the Bill of Rights is now part of the Constitution. That's what matters."
"My greater regret," says Madison, "was our disgraceful failure to face up to another issue dear to both you and Luther-- slavery. History has taught us a cruel lesson. No amendment to our Constitution has carried a higher price tag than the thirteenth amendment abolishing slavery."
There is silence for a moment. I think about that difficult issue. It seemed that everyone everywhere in 1787 wrote and spoke of slavery as an evil. If you polled the delegates at the Convention, hardly a man would have defended the institution. I certainly was no friend of slavery.156 Yet I, like most delegates, was anxious to avoid discussion of the morality of slavery. Better to sweep it under the rug. Better to call it a matter of local concern. Better to avoid even using the word "slavery." Still, the issue had to be faced. We compromised from start to finish. On the issue of "representation" of slaves, we adopted the "Federal-ratio" of three-fifths157--although the three-fifths represented an additional increment of representation for the slave owner, not the slave. Another compromise was on the abolition issue-no interference with slavery until 1808, we decided.158 Also, we wrote a strong provision requiring the extradition of fugitive slaves.159 Weaknesses? Yes, I suppose they are. But the plain and simple fact of the matter is that without these provisions, there would have been no United States. The Southern states would never have ratified."160
James Madison is turning over pages in a worn old book he had pulled from his coat pocket. Finally he stops, reads for a moment, then smiles. "Yes, here it is. You were at your most eloquent on the slavery issue, George. Let me read what you had to say on Wednesday, August 29, 1787:
Every master of slaves is born a petty tyrant. They bring the judgment of heaven on a Country. As nations cannot be rewarded or punished in the next world they must be in this. By an inevitable chain of causes & effects, providence punishes national sins by national calamities. I lament that some of our Eastern brethren had from a lust of gain embarked in this nefarious traffic. As to the States being in possession of the Right to import, this is the case with many other rights, now to be properly given up. [I hold] it essential in every point of view that the General Government should have the power to prevent the increase of slavery."161"I still remember Ellsworth's answer," says Mason. "He said, with a mocking irony: '[As I have] never owned a slave [I cannot] judge the effects of slavery on character.'"162
"Then our other Chief Justice, John Rutledge, rose to say: 'religion and humanity have nothing to do with the question.163 Chief Justice Taney might well have said the same thing three-quarters of a century later in Dred Scott v. Sandford.164 What moral bankruptcy!"
Luther Martin was nearly as passionate as Mason on the slavery issue. He opposed the Constitution as "an insult to God" who "views with an equal eye the poor African slave and his American master."165 Yet it was the idea of a powerful national government which really ignited Luther.
"Although the absence of a Bill of Rights and protection for slave owners were reasons enough for condemning your Constitution, James, there was another, even better reason. You claimed a few minutes ago that the people had little to fear from the national government. Your elaborate system of dispersing power between the various branches would prevent oppression, or so you said. Open your eyes, man! Your government of limited powers has become, without benefit of constitutional amendment, a government of unlimited powers. The commerce clause turned out to be a loophole big enough to drive one hundred volumes of the Code of Federal Regulations through. The necessary and proper clause became the arguably-necessary-and-somewhat-proper clause. The ninth and tenth amendments turned out not to be worth the parchment they were written on. If you're the Father of the Constitution, Madison, you sired a mutant!"
"There's one thing you won't get an argument on from me," Madison says. "I agree that the grants of power to the Congress have been construed far too liberally. You may remember that, as President, I wrote a speech arguing that the proposed legislation to establish a national bank was unconstitutional.166 Chief Justice Marshall said otherwise in McCulloch v. Maryland.167 That was a mistake of interpretation. But it was nothing compared to what came later."
"It was in the New Deal Era that our government of limited powers was transformed into a regulatory state, finally with the blessing of the Supreme Court.168 There was no Constitutional Convention in the 1930's, but after that decade, the country had a different Constitution. Would I have supported the new Constitution if I were alive? I don't know. I wasn't alive. Different times may demand different governments. But I do agree with you that after about 1935, our intentions, and the intentions of those who ratified our Constitution, lost their relevance-at least with respect to our views on the legitimacy of federal power."
"Still, the general principle that dispersed power is the least dangerous power is as valid as ever. The United States remains the freest nation on earth. I'm just not sure that there was much more we could have done to make it any freer. Had your views carried the day, Luther, we might well have a continent ruled by statehouse dictators or populist legislatures, with no misgivings about trampling on minority rights or taking private property. I said in the Federalist Papers, 'if men were angels, no government would be necessary.'169 But we're not angels--at least they're not angels--and so a government is necessary which takes into account the limitations of human nature."
"A government in which a thousand groups and associations pull in different directions is a safer one for liberty than a government in which only a handful of interests contend for power. There is safety in numbers-and there is safety in size, too, Luther. A mixed system, partly national, partly federal, can't offer perfect safety, but it was our best hope."
There are certainly other criticisms of Luther Martin's position
Madison could have made. Luther, for example, had opposed
states from printing paper money.170
Imagine having to exchange currency
every time you crossed a state line! (Actually, most of us assumed we
gone further than abolishing state paper money-we thought we had done
with paper currency altogether!171
It took some pretty fancy
judicial footwork for the Supreme Court to reach a different conclusion
in the 1870's).172 Luther
also proposed that the Constitution
limit the size of any standing army raised by the federal government to
less than three thousand men.173
George Washington was inspired to
suggest a satirical amendment to the motion: "no foreign enemy should
the United States at any time, with more than three thousand troops."174
Madison, Martin, and Mason are arguing about the commerce clause. Strange that they should do so, you might think, as the clause was adopted by the Convention without dissent.175 The disagreement seems not to be over whether there should have been an affirmative grant to Congress to regulate commerce, but rather over whether that grant should be interpreted as a limitation on the power of the states. Madison is making some point about The Passenger Cases176 as I focus my attention on the dessert that has just been placed in front of me. I ponder in my mind the question of whether, if forced to choose between the first amendment and strawberry shortcake, which one I would take . . . .
A CONVERSATION WITH FRANKLIN
Reunions cause minds to travel back to places they have not been for
a long time. As I look down into the bottom of my empty tea cup,
I remember a day long ago in Boston. I was waiting for my ship to
sail for Europe when I observed some men, disguised as Mohawk Indians,
dumping tea from British ships into the Boston harbor. When I was
called before the British privy council as a witness to the incident, I
warned that the American colonies would rebel unless England changed
repressive colonial policies.177 I
guess you know that they didn't
listen. I met another person in England who was very interested
hear my account of the "Boston Tea Party." Ben Franklin . . . Ben
wonder where the philosopher is?
My eyes search the room until they come to rest on a short, fat, old man in plain Quaker dress, with a bald pate and white locks. He is walking slowly toward the door when I quickly rise from the table, and move to intercept him.
"Ben Franklin," I say, embracing my old friend, "you look great--not a day over 281."
Ben smiles. Then he repeats the words to a song he often sang called "The Old Man's Wish": 'May I govern my passion with absolute sway, Grow wiser and better as my strength wears away, without gout or stone by gently decay.'178
Ben got most of his wish, but not all of it. He did suffer from gout. By the time of the Convention, he was a weak man. His speeches had to be read by James Wilson. Ben was too feeble to recite them himself.
"I'm tempted, Ben, to say that you couldn't possibly grow any wiser or better than you already are-but I recall you saying, '[if] any man flatters me, I'll flatter him again; tho' he were my best friend.'"179
"Yes, I probably said something like that. But I believe I also wrote, 'A Flatterer never seems absurd; the Flatter'd always takes his Word!"180
"I expected to see your two-headed snake here tonight. If the
snake is sick, you should have called on Dr. Williamson."
"No, the snake's fine. One head wanted to come, and the other preferred to stay home. They're still arguing."
This conversation about two-headed snakes must seem odd to you. In July of 1787, Ben was anxious to display a two-headed snake that had been caught four miles from Philadelphia, just in time for the Convention. He kept it at his home in a "large phial."181 Ben used it as a prop for a story he told. The story was meant to illustrate the fatal flaw in two of the reigning political orthodoxies-separation of powers and bicameralism.182
[The two-headed snake] was going to a Brook to drink, and in her Way was to pass thro' a Hedge, a Twig of which opposed her direct Course; one Head chose the right side of the Twig, the other the left; so that time was spent in the Contest, and before the Decision was completed, the poor Snake died with thirst.183
"My snake worked wonders, didn't it? One look at the snake and the delegates were ready to cast aside their Rube Goldberg governments of checks and balances and more checks for my simple unicameral model. [I]f someone figured batting averages based on proposals made and adopted at the Convention, we'd both be sitting on the bench, Hugh."184
"Some of your proposals didn't have, as they say, 'a snowball's chance in hell.' Did you really expect, for example, a group of ambitious politicians to adopt your proposal to require all government officers to work for free?"185
"No, I suppose we should be thankful Charles Pinckney's proposal on compensation was rejected. Do you remember that one? He would have required candidates for President to prove a fortune of $100,000, federal judges to be worth at least $50,000, and congressmen $25,000."186
"Pinckney has won, I'm afraid. Fortunes much greater than those he proposed are, practically speaking, required for political office seekers today. Nonetheless, Ben, I appreciated your answer to Pinckney. I believe you said, [I]f poverty was exposed to peculiar temptation, the possession of property increases the desire for more. Some of the greatest rogues [I] was ever acquainted with, were the richest rogues.' "187
"You do have a sharp memory, don't you, Hugh? I don't know anyone else who could accurately quote my speeches from 200 years ago."
"I must confess that it's not so much my memory that's responsible, but my research. You see, I've been studying records of the Convention in preparation for this event. I thought that I might write a first-person account of our reunion. Perhaps I'll send it to some law reviews on Earth. Perhaps one might even publish it?"
"Whatever gave you that idea, Hugh?"
"I don't know, really. It just seems as though legal scholars might be interested in meeting--'up close and personal,' as they say on television-the people who drafted the Constitution that they spend so much time writing and arguing about. Also, there are some mistaken impressions to be corrected. They seem to think that we're all of one mind. They always lump us together-call us the 'Founding Fathers' (as if we're a baseball team)--and fail to appreciate that there were far more differences between us, at least in terms of our views, then there are differences between just about any fifty-five politicians they could find today. Take Alexander Hamilton and his desire to create an English-style monarchy on the western shores of the Atlantic, with George Washington as King, and himself as Prime Minister.188 Compare Hamilton's view to Roger Sherman's or Luther Martin's view that all we should do was put a few patches on the Articles of Confederation.189 Or contrast George Mason's and John Rutledge's views on slavery.190 Or compare your view with that of Gouverneur Morris and the other plutocrats on the desirability of a government of the elite, elected by the elite. And consider the differing views as to how our diverse goals might be accomplished. What would people today make of David Brearley's novel plan to wipe the then-existing thirteen states off the map and make a new partition of the country into thirteen equal parts?191 Or George Read's idea to have the President choose senators?"192
"You're right, Hugh, people in the twentieth-century don't fully appreciate our differences. On the other hand, though, you may overestimate them. Remember that many of the radical proposals came in the early days of the Convention when we were still writing on a mostly blank slate. On the whole, I think our debates were remarkably free of sharp ideological conflict. We were, practically all of us, pragmatists concerned with creating a workable government that would afford substantial protection for human liberty. Much has been made by historians of the battle between supporters of Madison, Randolph, and Wilson's 'Virginia Plan' and supporters of Sherman, Martin, and Paterson's 'New Jersey Plan.' These historians fail to appreciate that the New Jersey Plan accepted the major premises of the Virginia Plan: greater national power; direct national control over individuals, as well as states; and presidential power to coerce noncomplying states."193
"That sounds like a perspective mellowed by 200 years. You were a good deal more concerned with our conflicts in Philadelphia, Ben.194 Do you recall the proposal you made for prayer one Thursday afternoon in June?":
I also believe that without [God's] concurring aid we shall succeed in this political building no better, than the builders of Babel: We shall be divided by our little partial local interests; our projects will be confounded, and we shall become a reproach and bye word down to future ages. And what is worse, mankind may hereafter from this unfortunate instance, despair of establishing Governments by Human wisdom and leave it to chance, war and conquest.195
"My proposal for prayer was supported by Roger Sherman and two or three others. Quite a politician I am, that can muster only three or four votes for prayer. . . . But you see, Hugh, I was warning that day about petty regional differences. They burdened every discussion. The issue of representation was far more difficult to resolve than the issue of powers. Once equal suffrage in the Senate was adopted,196 the smaller states, which had previously been most opposed to expanding federal power, became the most enthusiastic backers of a strong national government, and Madison and the Virginia Plan supporters began to see some value in establishing a government of carefully limited powers.197 Our other major difficulty was caused by regional differences as well. It was the North-South split over the issues of slavery and the regulation of commerce and navigation.198 Compared to those two disagreements, our ideological conflicts were nothing. The rest of the Convention was simply sawing boards to make them fit."
"Are you familiar with Charles Beard, Ben?"
"Charles Beard. Wasn't he the historian who claimed we were just a bunch of unscrupulous plutocrats engaged in a right-wing plot?"199
"That's right. More specifically, Beard described the Constitution as a conservative economic document formed by an unrepresentative minority employing undemocratic means to protect personal property interests by establishing a central government responsive to their needs and able to thwart populistic majorities in the states.'200 If anyone at the Convention might be suspected of agreeing with Beard, it would be you, Ben. There was no purer democrat, no one more liberal in spirit in Philadelphia that summer than Dr. Franklin."
"If I agree with Mr. Beard, will I be invited back to our next reunion? Not to worry: I think his position is vastly overstated. It is obvious, of course, that many Americans-women and Negroes, for example-were not represented at the Convention. It is also obvious that many other groups were overrepresented-lawyers, wealthy plantation owners, businessmen. We were, as has been noted, a Convention of 'the well-bred, the well-fed, the well-read, and the well-wed.'201 It is also true that our meeting was not called to protect the rights and liberties of minorities and the poor, so much as it was to create union, order, and national strength in order to protect private property. Many delegates became practically hysterical when discussing the actions of the populist legislature in Little Rhody. You are right in suggesting that our emphasis was a little different than I would have preferred. But my preferences mattered little. I was just an old man who knew a thing or two about science and about people. I was no politician. But there were some fine politicians in Philadelphia. The Convention was, as I've said before, 'the most august and respectable assembly'202 I ever attended in my life. The delegates were genuinely concerned about the public interest, it was just that their views of the public interest often coincided with their own selfish interests. Mine too, I should add. As I recall, I stated my feelings about the Constitution as a whole on the last day of the Convention. Do you have that speech memorized too, Hugh?"
"Who could forget it? It was described by all the papers as the 'literary masterpiece' of the Convention.203 In your last words urging unanimous ratification you said, or rather, Wilson said for you:
[W]hen you assemble a number of men to have advantage of their joint wisdom, you inevitably assemble with those men all their prejudices, their passions, their errors of opinion, their local interests, their selfish views. From such an assembly can perfect production be expected? It therefore astonishes me, Sir, to find this system approaching so near to perfection as it does. . . . Thus I consent, Sir, to this Constitution because I expect no better, and because I am not sure it is not the best.204"History has not forgotten another comment you made on that day, September 17, 1787. You're too modest to admit that you know which words I mean. As the delegates were signing the Constitution, you made a reference to the chair which had been occupied by John Hancock as President of the Continental Congress, and which was occupied by George Washington, as presiding officer of the Convention. As Madison reported, you said:
Doctr. Franklin looking towards the President's chair, at the back of which a rising sun happened to be painted, observed to a few members near him, that painters had found it difficult to distinguish in their art a rising from a setting sun. I have, said he, often and often in the course of this session, and the vicissitudes of my hopes and fears as to its issue, looked at that behind the President, without being able to tell whether it was rising or setting; but now at length I have the happiness to know that it is a rising and not a setting sun.205"After 200 years, our American sun shines more brilliantly than ever," says Franklin. "It illuminates the human spirit on every continent. There remains, as there always will, the shadows and the darkness, but we can take pride in our role in urging our bright star of liberty above the horizon and on its way. And now, if you'll excuse me, Hugh, I really must be on my way. As Poor Richard says, 'Early to bed, early to rise, makes a man healthy, wealthy, and wise.'"
1. Letter from Thomas Jefferson to Samuel Kerchival (July 12, 1816), quoted in C. WARREN, THE MAKING OF THE CONSTITUTION 781 (1937).
2. D. WHITNEY, FOUNDERS OF FREEDOM IN AMERICA 225 (1964) (describing delegate Hugh Williamson).
5. E. MASON, SIGNERS OF THE CONSTITUTION 124 (1975). Williamson helped to start the Philosophical Society, and was an active member of the New York Historical Society. He published articles on snakes, diseases, canals, climatology, and history. Williamson's studies of swampland diseases led him to develop an innoculation program which virtually eliminated infections among Carolina troops during the American Revolution. Id.
6. D. WHITNEY, supra note 2, at 227. The American Philosophical Society appointed Williamson to research the orbits of planets. He studied comets as a sidelight. E. MASON, supra note 5, at 122.
7. D. WHITNEY, supra note 2, at 225.
8. E. MASON, supra note 5, at 124.
9. Id. at 122.
10. A fellow delegate to the Convention, William Pierce of Georgia, described Williamson as a "gentleman of education and talents" who, although "no Orator," has "a great degree of good humour and pleasantry in his character," Notes of Major William Pierce in the Federal Convention of 1787 [hereinafter cited as W. Pierce], reprinted in DOCUMENTS ILLUSTRATIVE OF THE FORMATION OF THE UNION OF AMERICAN STATES, H.R. Doc. No. 398, 69th Cong., 1st Sess. 106 (1927).
11. Id. at 191.
12. E. MASON supra note 5, at 122-24.
13. Id. at 122.
14. There were 55 delegates in the Convention, although usually there were no more than about 30 in attendance at the State House sessions. All 55 delegates were white males. They included at least 12 planters or farmers, and as many lawyers. Another dozen were state office holders. They were generally young, averaging in their early forties. J. BURNS, THE VINEYARD OF LIBERTY 32 (1982).
15. D. WHITNEY, supra note 2, at 55-57. Blount did not show up in Philadelphia until a month after the Convention opened. He stayed only two weeks, and did not return again until August. Id. at 57.
16. Blount sent copies of the Convention's plans to friends in North Carolina. Id. at 57.
17. Id. at 59.
18. Id. at 60. The vote on Blount's expulsion was 25 to 1. Id.
19. Id. Blount was nonetheless treated as a hero in Tennessee. The people of that state considered his impeachment trial to be a politically-inspired move by the Federalists. Id.
20. Debates of the Federal Convention of 1787, as reported by James Madison [hereinafter cited as Debates], reprinted in DOCUMENTS ILLUSTRATIVE OF THE FORMATION OF THE UNION OF AMERICAN STATES, H.R. Doc. No. 398, 69th Cong., 1st Sess. 285-90 (1927). James Madison reported that Martin's speech "was delivered with much diffuseness and considerable vehemence." Id. at 290. It was very unusual for Madison to make such an editorial comment about a delegate's speech.
21. P. CLARKSON AND S. JETT, LUTHER MARTIN OF MARYLAND 101-03 (1970).
22. Debates, supra note 20, at 295.
23. Id. at 89. Ellsworth said in response to a speech by Martin, "You cannot have forgotten, that by such ignorance in politics . . . you have exhausted the politeness of the Convention, which at length prepared to slumber when you rose to speak." B. MITCHELL AND L. MITCHELL, A BIOGRAPHY OF THE CONSTITUTION OF THE UNITED STATES 124 (1964). Martin answered,
if the framing and approving the Constitution . . .
proof of knowledge in the science of government . . . I glory in my
and if my rising to speak had such a somnific influence on the
as the Landholder [Ellsworth] represents . . . the time will come,
this system be adopted, when my countrymen will ardently wish I had
left the Convention, but remained there to the last, daily
to my associates the salutary opiate.
Id. In response to another attack by Ellsworth, Martin described Ellsworth's allegation as "a falsehood so groundless, so base and malignant, that it could only have . . . been devised by a heart which would dishonour the midnight assasin." Id. at 125.
24. P. CLARKSON AND S. JETT, supra note 21, at 140.
25. The more than one hundred slaves of George Washington were probably his largest financial asset. J. FLEXNER, WASHINGTON: THE INDISPENSABLE MAN 393 (1984).
26. Over a third of the delegates owned slaves. J. BURNS, supra note 14, at 32. The slave-owning delegates included the Convention's most articulate critic of slavery, George Mason, who denounced slave trade as "diabolical" and "disgraceful." H. MILLER, GEORGE MASON: GENTLEMAN REVOLUTIONARY 294 (1975).
27. R. BARRY, MR. RUTLEDGE OF SOUTH CAROLINA 331 (1942).
28. Sherman was 66 years old at the time of the Convention. Only Benjamin Franklin, 81, was older. C. WARREN, supra note 1, at 58 (1928).
29. R. BARRY, supra note 27, at 331.
30. W. Pierce, supra note 10, at 97. Pierce wrote of Sherman, the vulgarisms that accompany his public speaking, and that strange new England cant which runs through his public as well as his private speaking make everything that is connected with him grotesque and laughable;--and yet he deserves infinite praise,--no Man has a better Heart or a clearer Head.
Id. at 98.
31. R. BARRY, supra note 27, at 331.
33. Id. at 328.
34. M. MINTZ, GOUVERNEUR MORRIS AND THE AMERICAN REVOLUTION 207 (1970).
35. See R. KETCHAM, JAMES MADISON 219 (1971).
36. D. WHITNEY, supra note 2, at 157.
37. William Pierce's description of the oratorical talents of Morris is interesting:
Mr. Governeur Morris is one of those Genius's in
every species of talents combine to render him conspicious and
in public debate: - He winds through all the mazes of rhetoric, and
around him such a glare that he charms, captivates, and leads away all
the senses of all who hear him. With an infinite stretch of fancy
he brings to view things when he is engaged in deep argumentation, that
render all the labor of reasoning easy and pleasant. But with all
those powers he is fickle and inconstant, - never pursuing one train of
thinking,--nor ever regular. . . . No man has more wit,--nor ran anyone
engage the attention more than Mr. Morris.
W. Pierce, supra note 10, at 101-02.
38. C. WARREN, supra note 1, at 686-87.
39. U.S. CONST. preamble.
40. William Pierce wrote that
Mr. Wilson ranks among the foremost in legal and
knowledge. . . . Government seems to have been his peculiar Study, all
the political institutions of the World he knows in detail, and can
the causes and effects of every revolution from the earliest stages of
the Grecian commonwealth down to present time.
W. Pierce, supra note 10, at 101.
41. G. SEED, JAMES WILSON 141 (1978). Wilson was appointed Associate Justice by President Washington in 1789. Id.
42. R. BARRY, supra note 27, at 360.
43. R. KETCHAM, supra note 35, at 191.
44. See R. BARRY, supra note 27, at 316.
45. "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. CONST. amend. XI.
46. 2 U.S. (2 Dall.) 419 (1793).
47. Debates, supra note 20, at 398.
48. Sherman said he "considered the Executive Magistracy as nothing more than an institution for carrying the will of the Legislature into effect." Id. at 132. Most probably, the Convention intended the President to have only the narrow, limited powers of most chief executives of the time. Primarily, these included the powers to execute the laws, appoint officers, and exercise a limited veto. Only the presidential pardon power was broader than the power granted to chief executives in most state constitutions. C. WARREN, supra note 1, at 529.
49. See generally T. LOWI, THE PERSONAL PRESIDENT: POWER INVESTED, PROMISE UNFULFILLED (1985).
50. Leuchtenburg, Book Review, THE NEW REPUBLIC, June 17, 1985, at 33 (reviewing T. LOWI, THE PERSONAL PRESIDENT: POWER INVESTED, PROMISE UNFULFILLED (1985)).
51. Id. In response to those who argued that adoption of the proposed Constitution would mean a large federal bureaucracy, Madison wrote that state officials "must exceed, beyond all proportions, both in number and influence, those of every description who will be employed in the administration of the federal system." THE FEDERALIST No. 45, at 235 (Bantam ed. 1982).
52. Debates, supra note 20, at 409.
53. Id. at 396; 2 G. BANCROFT, FORMATION OF THE CONSTITUTION 167 (1982).
54. The Rhode Island legislature was captured by supporters of cheap money. Alone among the thirteen original states, Rhode Island did not send delegates to the Convention. J. BURNS, supra note 14, at 31.
55. James MacGregor Burns wrote of the growth of presidential power during the Lincoln presidency:
"Ambition must be made to counteract ambition,"
Madison had written-and his strategy was working even amid civil war,
the crisis brought the Congress as well as the judiciary into conflict
with the President. The foundations for a permanently large and
chief executive were building under the stupendous wartime
In the long run, the increased scope of presidential power and the
of the issues at stake in the war guaranteed that President and
J. BURNS, supra note 14, at 619.
56. H. ADAMS, THE EDUCATION OF HENRY ADAMS 266 (1918).
57. C. WARREN, supra note 1, at 184.
58. Debates, supra note 20, at 134, 392.
59. R. KETCHAM, supra note 35, at 217.
60. G. SEED, supra note 41, at 150.
61. Id. George Washington's high opinion of Wilson's legal skills is evidenced by the fact that Washington paid Wilson 500 guineas in gold for allowing Bushrod Washington, George's nephew, to "read law" in Wilson's office. Bushrod Washington later succeeded Wilson on the Supreme Court. R. BARRY, supra note 27, at 316.
62. 1 Co. Rep. (1581).
63. Debates, supra note 20, at 392.
64. Morris said at the Convention, "Of all possible modes of appointment that by the Legislature is worst. If the Legislature is to appoint and to impeach or to influence the Impeachment, the Executive will be a mere creature of it." Id. at 446.
65. C. WARREN, supra note 1, at 456.
66. 2 G. BANCROFT, supra note 53, at 69-70; Debates, supra note 20, at 330.
67. Debates, supra note 20, at 327.
68. M. MINTZ, supra note 34, at 208.
69. Debates, supra note 20, at 488. Nathaniel Gorham, a delegate from Massachusetts, answered Morris: "The elections in Philadelphia, New York and Boston where the merchants and mechanics vote are at least as good as those made by freeholders only." Id. at 491.
70. Sandel, Book Review, NEW REPUBLIC, June 10, 1985, at 40 (reviewing R. NEUHAs. THE NAKED PUBLIC SQUARE: RELIGION AND DEMOCRACY IN AMERICA (1985) and J. DIGGINs, THE LOST SOUL OF AMERICAN POLITICS: VIRTUE, SELF-INTEREST AND THE FOUNDATIONS OF MODERN LIBERALISM (1985)).
71. R. BARRY, supra note 27, at 331.
72. M. MINTZ, supra, note 34, at 192.
73. Debates, supra note 20, at 373.
75. Id. at 442-43.
76. Id. at 132.
77. Id. at 145-46.
79. Hamilton was killed by Aaron Burr in a duel on the west bank of the Hudson on July 11, 1804. D. WHITNEY, supra note 2, at II 2. Spaight died in a duel on September 5, 1802. Spaight's duel resulted from his publishing of handbills which defamed the character of a Federalist congressman.
Id. at 200.
80. Id. at 105.
81. C. WARREN, supra note 1, at 675. Hamilton was absent from most of the Convention sessions. Id. at 719.
82. These letters are better known, of course, as The Federalist Papers.
83. B. MITCHELL AND L. MITCHELL, supra note 23, at 24.
84. Other members of the committee included Rutledge, Wilson, and Edmund Randolph. G, BANCROFT, supra note 53, at 195.
85. W. BROWN, THE LIFE OF OLIVER ELLSWORTH 28 (1970).
86. Id. at 26.
87. R. BARRY, supra note 27, at 74.
88. Id. at 353. Rutledge was first appointed to the position of Associate Justice in 1789, but resigned in 1791 to take the job as Chief Justice of the South Carolina Supreme Court. Id. at 352-53.
89. Id. at 357-58. Ellsworth, Madison, and Hamilton all voted against his appointment. Id. at 367. During his brief tenure as acting Chief Justice, Rutledge wrote one opinion and delivered one oral opinion. Id. at 353.
90. Id. at 357.
91. On the other hand, one author describes Rutledge as "little better than a maniac" while acting as Chief Justice. W. BROWN, supra note 85, at 239.
92. R. BARRY, supra note 27, at 344-45.
93. Id. at 80. This was described as his usual dress. Rutledge had a negro body servant, Pompey, who would dress and shave him, and powder his hair. Id. at 48.
94. Dickinson College in Carlisle, Pennsylvania.
95. See generally M. FLOWER, JOHN DICKINSON: CONSERVATIVE REVOLUMNARY (1983). William Pierce, as his notes reveal, was not impressed with Dickinson's Convention speeches:
I had often heard that [Dickinson] was a great
but I found him to be an indifferent speaker. With an affected
of wisdom he labors to produce a trifle, - his language is irregular
incorrect,--his flourishes, (for he sometimes attempts them), arc like
expiring flames, they just shew themselves and go out;--no traces of
are left on the mind to clear or animate it.
W. Pierce, supra note 10, at 102.
96. Wilson visited Rutledge at his home in South Carolina in 1796, when Wilson was riding circuit. The two men attended the last two acts of a play together. Wilson died a short time later in North Carolina. R. BARRY, supra note 27, at 360.
97. Debates, supra note 20, at 549.
98. Hamilton thought that the Supreme Court's role would be a modest one. Writing in the Federalist, he noted that the Court "has no influence over either the sword or the purse; no direction either of the strength or the wealth of society; and can take no active resolution whatever." THE FEDERALIST No. 78, at 393-94 (A. Hamilton) (Bantam ed. 1982). Hamilton described the Court as "beyond comparison the weakest of the three departments of power." Id. at 394.
99. Debates, supra note 20, at 548-49. Madison's notes indicate that Mercer "disapproved of the doctrine that judges as expositors of the Constitution should have the authority to declare a law void. He thought laws ought to be well and cautiously made, and then to be uncontroulable." Id. at 548.
100. R. BARRY, supra note 27, at 344. Rutledge apparently also at one time questioned the desirability of judicial review, then changed his mind. Id.
101. Id. at 361.
102. C. WARREN, supra note 1, at 333-35.
103. THE FEDERALIST No. 78, at 397 (A. Hamilton) (Bantam ed. 1982).
104. 2 G. BANCROFT, supra note 53, at 201.
106. 5 U.S. (I Cranch) 137 (1803).
107. Ellsworth's absent-minded use of snuff has been commented on by historians: "An inveterate user of snuff, when absorbed in writing he would take pinches from his box, but forget to convey them to his nose-, instead he would drop the powder in little piles encircling his chair." B. MITCHELL AND L. MITCHELL, supra note 23, at 24. The same authors note that Ellsworth often talked to himself, even when others were present. Id.
108. C. WARREN, supra note 1, at 335.
109. Ellsworth, Madison, Mason, Morris, and Wilson all supported the proposal. Luther, Dickinson, and Martin opposed the proposal. C. WARREN, supra note 1, at 332-35.
110. Id. at 317. Even Randolph's proposal didn't go as far as some delegates would have liked. Hamilton, for example, actually advocated the abolition of state government. Debates, supra note 20, at 249.
111. Debates, supra note 20, at 390. "The necessity of a general government proceeds from the propensity of the States to pursue their particular interests in opposition to the general interests. This propensity will continue to disturb the system, unless effectually controuled. Nothing short of a negative on their laws will controul it." Id.
112. Id. After Randolph's proposal was rejected, Luther Martin of Maryland proposed adoption of the supremacy clause. Id. at 391-92.
113. Wilson, as well as Gouverneur Morris, objected to Elbridge Gerry's proposal to prohibit bills of attainder and ex post facto laws on the ground that such a prohibition was unnecessary, as such legislation was inconsistent with natural law principles. Id. at 596-97.
114. G. SEED, supra note 41, at 16.
115. 1 R. MCCLOSKEY, THE WORKS OF JAMES WILSON 242 (1967).
116. C. WARREN, supra note 1, at 507-10. Alexander Hamilton further explained the omission of Bill of Rights in The Federalist:
I would go further and affirm that bills of rights .
. are not only unnecessary in the proposed Constitution but would even
be dangerous. They would contain various exceptions to powers not
granted, and on this very account would afford a colorable pretext to
more than were granted. For why declare that things shall not be
done, which there is no power to do? THE FEDERALIST No. 84, at
(A. Hamilton) (Bantam ed. 1982).
117. B. MITCHELL AND L. MITCHELL, supra note 23, at 195-96.
118. In offering the provision that became the Ninth Amendment, Madison explained its purpose:
It has been objected also against a bill of rights,
by enumerating particular exceptions to the grant of power, it would
those rights which were not placed in enumeration, and it might follow
by implication, that those rights which were not singled out, were
to be assigned into the hands of the general government, and were
insecure. This is one of the most plausible arguments I have ever
heard urged against the admission of a bill of rights into this system;
but, I conceive, that it may be guarded against. I have attempted
it, as gentleman may see by turning to the last clause of the fourth
[the ninth amendment] . . . .
1 ANNALS OF CONG. 439 (1789); see also Dunbar, James Madison and the Ninth Amendment, 42 VA. L. REV. 627 (1956); Ringold, The History of the Enactment of the Ninth Amendment and its Recent Development, 8 TULSA L. REV. (1972).
119. Griswold v. Connecticut, 381 U.S. 479 (1965).
120. 3 U.S. (3 Dall.) 386 (1798). See also Justice Marshall's urging of natural law as an alternative ground for the holding in Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810), and Justice Story's reliance on natural law in his decision in Terrett v. Taylor, 13 U.S. (9 Cranch) 43 (1815).
121. 3 U.S. (3 Dall.) at 388-89.
122. The Convention made no provision whatever as to the powers of the Supreme Court. Rather, it merely specified the Court's jurisdiction. See generally C. WARREN, supra note 1, at 317-36.
123. Id. at 327, 639-43.
124. Id. at 327.
125. J. Burns, supra note 14, at 83.
126. R. KETCHAM, supra note 35, at 89.
127. Id. at 207.
128. Id. at 107. Madison was considerably more comfortable among a small group of friends, according to fellow delegate William Pierce. Pierce, wrote Madison, was "easy and unreserved among his acquaintance, and has a most agreeable style of conversation." W. Pierce, supra note 10, at 105. Pierce also wrote of Madison:
He blends together the profound politician, with the
In the management of every great question he evidently took the lead in
the Convention, and tho' he cannot be called an Orator, he is a most
eloquent, and convincing Speaker. From a spirit of industry and
which he possesses in eminent degree, he always comes forward the best
informed Man of any point in debate.
129. Id. at 216.
130. Id. at 71.
131. B. MITCHELL AND L. MITCHELL, supra note 23, at 190.
132. Debates, supra note 20, at 652.
133. H. MILLER, supra note 26, at 269. Mason's fellow passenger, Maryland delegate James McHenry, was also injured. Id.
134. J. BURNS, supra note 14, at 36. Another author noted that Martin's famous five-hour speech on June 1, 1787 was "heightened by whiskey." R. KETCHAM, supra note 11, at 202.
135. R. CLARKSON AND S. JETT, supra note 21, at 2.
136. Id. at 11 3. William Pierce was not impressed with Martin's speaking abilities. He described his delivery as "very bad" and "so extremely prolix, that he never speaks without tiring the patience of all who hear him." W. Pierce, supra note 10, at 103.
137. Id. at 17.
138. John Dickinson, John Blair, Gunning Bedford, and William Peterson were among the Princeton alums at the Convention. D. WHITNEY, supra note 2, at 38, 39, 49. William Houston, Madison's Princeton tutor, was in the New Jersey delegation. R. KETCHAM, supra note 35, at 193. Oliver Ellsworth was also in Luther Martin's class. Although not a delegate, Aaron Burr, the man Martin would later defend in his treason trial, was also in Martin's class. W. BROWN, supra note 85, at 18.
139. P. CLARKSON AND S. JETT, supra note 21, at 2.
140. Unfortunately, Aaron Burr's daughter, Theodosia, was already quite happily married. B. MITCHELL AND L. MITCHELL, supra note 23, at 37.
141. J. BURNS, supra note 14, at 33.
143. Id. at 58-59. Hamilton later ridiculed some of the excessive imagery of the anti-federalists: In reading many of the publications of and against the Constitution, a man is apt to imagine that he is perusing some ill-written tale or romance, which instead of natural and agreeable images, exhibits to the mind nothing but frightful and distorted shapes-- "gorgons, hydras, and chimeras dire"; discoloring and disfiguring whatever it represents, and transforming everything it touches into a monster.
THE FEDERALIST No. 29, at 141 (A. Hamilton) (Bantam ed. 1982).
144. R. KETCHAM, supra note 35, at 49. Ketcham writes, "Locke's thought influenced Madison early and remained always the foundation of his personal and public philosophy." Id.
145. Id. at 303.
146. On June 6th, 1787, Madison gave his most complete argument for transferring power from the state to the national government. After observing that it was the interference with "the security of private rights" by state legislatures that "had more perhaps than anything else, produced this convention," Madison identified the fundamental problem as being "where a majority are united by a common interest or passion, the rights of the minority are in danger." Debates, supra note 20, at 162. He then proposed his solution:
The only remedy is to enlarge the sphere, &
divide the community into so great a number of interests & parties,
that in the first place a majority will not be likely at the same
to have a common interest separate from that of the whole or of the
and in the second place, that in case they should have such an
they may not be apt to unite in pursuit of it.
Id. at 163.
147. Debates, supra note 20, at 716.
148. C. WARREN, supra note 1, at 508.
149. Debates, supra note 20, at 716.
150. C. WARREN, supra note 1, at 508 n. I.
151. Id. at 508-09.
152. U.S. CONST. art. 1, § 8, cl. 18. Charles Warren argues that the delegates understood that the necessary and proper clause added nothing to the powers already granted. C. WARREN, supra note 1, at 487. He also contends that the delegates intended the grant of power "to provide for the common defense and general welfare" to authorize only the collection of taxes and payment of debt for those purposes, and was not meant to otherwise add to the enumerated powers vested in Congress. Id. at 474-75.
153. U.S. CONST. art 1, 18, cl. 3. The relatively narrow view delegates most likely had of the commerce clause is evidenced by their decision to deny Congress specific powers now assumed to be included within the commerce power. For example, the Convention voted down a proposal to grant Congress the power to cut canals. Debates, supra note 20, at 724-25.
154. See generally J. BURNS, supra note 14, 42-63. The failure of the Constitution to include a guarantee of a jury trial in civil cases was probably the most politically significant omission, according to Hamilton. He wrote, "The objection to the Convention which has met with the most success in this State, and perhaps in several of the other states, is that relative to the want of a constitutional provision for the trial by jury in civil cases." THE FEDERALIST No. 83, at 421 (A. Hamilton) (Bantam ed. 1982).
155. R. KETCHAM, supra note 35, at 274.
156. Debates, supra note 20, at 617.
157. U.S. CONST. art, § 2, cl. 3. Gouverneur Morris made an eloquent speech against the proposal to allow an additional increment of representation for slave ownership:
Upon what principle shall slaves be computed in the
Are they men? Then make them Citizens, and let them vote.
they property? Why, then, is no other property included?
Houses in this city are worth more than all the wretched slaves who
the rice-swamps of South Carolina. The admission of slaves into
representation when fairly explained, comes to this: that the
of Georgia and South Carolina who goes to the Coast of Africa, and in
of the most sacred laws of humanity tears away his fellow-creatures
their dearest connections & damns them to the most cruel bondages,
shall have more votes in a Government instituted for the protection of
mankind than the citizen of Pennsylvania or New Jersey who views with
horror so nefarious a practice.
Debates, supra note 20, at 497.
158. U.S. CONST. art V.
159. U.S. CONST. art IV, § 2, cl. 3.
160. John Rutledge said, "[i]f the Convention thinks that North Carolina, South Carolina & Georgia will ever agree to the plan, unless their right to import slaves be untouched, the expectation is vain." Debates, supra note 20, at 593.
161. Id. at 590.
163. C. WARREN, supra note 1, at 576.
164. 60 U.S. (19 How.) 393 (1857).
165. S. LYND, SLAVERY AND THE FOUNDING FATHERS IN BLACK HISTORY: A REAPPRAISAL 119 (1968).
166. 11 Gales & Secton's Debates and Proceedings of the Congress of the United States, 1944-52 (1834) (speech to the House of Representatives).
167. 17 U.S. (4 Wheat.) 316 (1819).
168. See, e.g., Wickard v. Filburn, 317 U.S. III (I 942); United States v. Darby, 312 U.S. 100 (1941); Mulford v. Smith, 307 U.S. 38 (1939); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).
169. THE FEDERALIST No. 51, at 262 (J. Madison) (Bantam ed. 1982).
170. C. WARREN, supra note 1, at 550.
171. See generally 2 G. BANCROFT, supra note 53, 132-37. Gouverneur Morris moved to strike out the power of Congress to emit bills of credit. He was supported by Ellsworth, who said, "this is a favorable movement to shut and bar the door against paper money, which can in no case be necessary." Id. at 133. Wilson agreed, "Paper money can never succeed while its mischiefs are remembered; and, as long as it can be resorted to, it will be a bar to other resources." Id. at 134. The vote on the question of whether the federal government should be given the power to issue bills of credit that would be legal tender was nine states against the power, two in favor. Id. at 134. Madison and others agreed that the effect of their vote was to deny the federal government the power to issue paper money. Id.
172. Knox v. Lee, 79 U.S. 457 (1871) (overruling Hepburn v. Griswold, 75 U.S. 603 (1870), which ruled that the Legal Tender Acts, passed during the Civil War, were invalid).
173. C. WARREN, supra note 1, at 483.
175. Id. at 570. Disagreement over the meaning of "commerce," and whether the power to "regulate" was exclusively with Congress, was not foreseen. Id.
176. 48 U.S. (7 How.) 282 (1849) (holding that the states have exclusive power to control who may reside within their borders).
177. E. MASON, supra note 5, at 122.
178. C. DRINKER BOWEN, THE MOST DANGEROUS MAN IN AMERICA 250 (1974).
179. P. CONNER, POOR RICHARD'S POLITICKS 153 (1965).
180. Id. at 154.
181. Id. at 59.
182. Madison's notes on the Convention suggest that Franklin may have been the only strong partisan of unicarneralism at the Convention:
that the national Legislature ought to consist of
branches was agreed to without debate or dissent, except that of
given probably from complaisance to Doc. Franklin who was
to be partial to a single House . . . .
THE RECORDS OF THE FEDERAL CONVENTION, I 48 (M. Farrand ed. 1911).
183. B. FRANKLIN, THE WRITINGS OF BENJAMIN FRANKLIN 57-58 (A. Smyth ed. 1906).
184. The rejected ideas of Franklin included a single legislature, a plural executive, and the nonpayment of federal officials. C. VAN DOREN, BEN FRANKLIN 745 (1938).
185. C. WARREN, supra note 1, at 447-48.
186. Debates, supra note 20, at 511-12.
187. Id. at 512.
188. Hamilton called the "Virginia Plan" of the Madison-Wilson forces "pork still with a little change of sauce." G. BANCRON, supra note 53, at 43. He added, "it seems to be admitted that no good executive can be established on republican principles. The English model is the only good one." Id. Bancroft says that Hamilton's plan for a monarchical government "was praised by everybody, but supported by none." Id. at 45.
189. C. WARREN, supra note 1, at 184.
190. John Rutledge who, in 1787, owned twenty-eight slaves, was thought of as the chief protagonist of slavery at the Convention. R. BARRY, supra note 27, at 329.
191. Debates, supra note 20, at 180-81. Madison made a speech critical of the plan of Brearley, the Chief Justice of New Jersey. Id. at 233-34.
192. Id. at 169.
193. C. WARREN, supra note 1, at 220-22.
194. George Washington also had nearly given up hope for successful resolution of the Convention. In a letter written to Hamilton on July 12, 1787, Washington said, "In a word, I almost despair of seeing a favorable issue to the proceedings of our Convention, and do therefore repent having any agency in the business." Id. at 284.
195. Debates, supra note 20, at 296.
196. The so-called "Great Compromise" was adopted by a vote of five states to four, with one split, on July 16. Id. at 383.
197. R. KETCHAM, supra note 35, at 215.
198. The Southerners were concerned that the North would use federal power to help their ship-building interests. Shipping was very important to the South, and the Southerners relied mostly on English ships. In return for northern concessions on the issue of slavery, the South agreed to drop its demand that federal legislation affecting commerce and navigation be passed by a two-thirds vote. Warren describes this as the Convention's most important compromise. C. WARREN, supra note 1, at 584. The outline for the compromise was probably reached at a June 30 dinner at the Indian Queen Tavern. The major participants were Roger Sherman of Connecticut and John Rutledge of South Carolina. R. BARRY, supra note 27, at 328-30.
199. P. BREST & S. LEVINSON, PROCESSES OF CONSTITUTIONAL DECISIONMAKING: CASES AND MATERIALS (2d ed. 1983) (citing C. BEARD, AN ECONOMIC INTERPRETATION OF THE CONSTITUTION OF THE UNITED STATES (1921)).
200. P. BREST & S. LEVINSON, supra note 199, at 59.
201. J. BURNS, supra note 14, at 33.
202. C. WARREN, supra note 1, at 182.
203. C. VAN DOREN, supra note 184, at 753.
204. Debates, supra note 20, at 739-40.
205. Id. at 745.
Exploring Constitutional Conflicts