SCOTUSblog by William Treanor 8/5/2019
The Framer’s intent: Gouverneur Morris, the Committee of Style and the creation of the Federalist ConstitutionAs the federal constitutional convention drew to a close, the delegates appointed the Committee of Style and Arrangement to prepare a final Constitution from the textual provisions that the convention had previously adopted. Pennsylvania delegate Gouverneur Morris was assigned the task of drafting, and, with few revisions and little debate, the convention hurriedly adopted the committee’s proposed Constitution. For more than 200 years, questions have been raised as to whether Morris as drafter covertly made changes in the text in order to advance his constitutional vision, but the legal scholars and historians studying the convention have either failed to consider that possibility or concluded that Morris was an honest scrivener. Remarkably, however, there is no study that systematically compares the committee’s draft to the previously adopted resolutions. Also remarkably, even though in four decisions in the last 50 years the Supreme Court has concluded that the committee had no right to change the Constitution’s meaning and that any substantive changes it made should be disregarded, there has been little attention to whether the court’s approach is sound. My recently posted article, “Framer’s Intent: Gouverneur Morris, the Committee of Style and the Creation of the Federalist Constitution,†is the first article to focus on the committee’s draft and the ways in which it departed from the text the convention had previously approved and to examine the legal significance of those important changes.
Although largely forgotten today, Morris was a “genius,†in the admiring judgment of both Alexander Hamilton and James Madison. He spoke more often at the convention than any other delegate, and he was a logical choice to be the drafter. Although the committee had other talented members (including Hamilton and Madison), Morris’ speeches evidenced an unmatched gift for language, and he was the committee member with the deepest experience as a constitutional drafter, having been one of the three principal authors of the New York Constitution.
As drafter for the Committee of Style, Morris made a series of subtle changes that his fellow delegates missed (or thought stylistic) when they considered the Committee of Style’s draft but that advanced goals that he had not been able to win during the floor votes. The most prominent examples appear below, but the article discusses 12 substantive changes that Morris made. His changes became central to many of the great constitutional debates of the early republic, and, for originalists, they are central – or should be central – to many of today’s most significant constitutional debates.
Morris was a nationalist, perhaps the strongest champion of a powerful national government at the convention. He advanced his nationalist vision through rewriting the Preamble. He changed the opening line from “We the People of the States of New-Hampshire, Massachusetts,†etc., to “WE, the People of the United States,†and he added all the Preamble’s goals. Contrary to modern Supreme Court jurisprudence, the list of goals was not a rhetorical flourish. In the debates in the early years of the republic, Federalists argued that the Preamble (in combination with the necessary and proper clause) was a substantive grant of power to the national government and made both the Bank of the United States and the Sedition Act constitutional. Moreover, in Chisholm v. Georgia, both Justice James Wilson and Chief Justice John Jay relied on the Preamble as justifying the court’s holding that it had jurisdiction over Georgia. Focus on the text and early uses of the Preamble shows that, from an originalist perspective, it provides a textual basis for a broad understanding of national power that modern case law has failed to recognize.
Although legislatures were the dominant branch of state governments during the revolutionary era, Morris envisioned three co-equal branches of the national government. The older conception of legislative pre-eminence was implicit in the fact that, in the draft constitution approved by the delegates before the Committee of Style began its work, Congress was the subject of seven articles (Articles III through IX), while the executive was limited to one article (Article X), as was the judiciary (Article XI). Morris dramatically conveyed the equality of the three branches by devising the now familiar Article I (Congress), Article II (executive) and Article III (judiciary) framework. While this basic structure now seems like a core element of the Constitution, it was Morris’ construct.
With the possible exception of Wilson, Morris was the convention’s pre-eminent champion of a strong president. As drafter, he advanced presidential power by adding “herein granted†to the Article I vesting clause (which, with his addition, reads “ALL legislative power herein granted shall be vested in a Congress of the United Statesâ€), but not to the Article II vesting clause (which reads, “The executive power shall be vested in a president of the United States of Americaâ€). Hamilton (not only a fellow member of the committee, but Morris’ best friend, even though Morris didn’t make it into the musical) relied on that subtle difference when he argued in 1793 in his landmark Pacificus essays for broad presidential power. Hamilton maintained that the textual difference between the two vesting clauses indicated that the president had all executive powers (except where the Constitution explicitly provided otherwise), whereas Congress only had the powers specified in the Constitution. Arguing for a broad understanding of presidential powers, modern adherents of the unitary executive theory make the same argument, drawing, like Hamilton, on Morris’ language. Madison, however, in his Helvidius essay, responded to Hamilton and took a very different view of Article II. He attacked “the new and aspiring doctrine, which ascribes to the executive the prerogative of judging and deciding whether there be causes of war or not.â€
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