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Gouverneur Morris, the Committee of Style, and the Creation of the Federalist Constitution

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Georgetown University Law Center Scholarship @ GEORGETOWN LAW 2019 Framer’s Intent: Gouverneur Morris, the Committee of Style, and the Creation of the Federalist Constitution William M. Treanor Georgetown University Law Center, [email protected] This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/2163 https://ssrn.com/abstract=3383183 Presentation to San Diego Originalism Conference, February 2019. This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub Part of the Constitutional Law Commons, Law and Philosophy Commons, and the Legal History Commons February 5, 2019 Presentation to San Diego Originalism Conference Working paper; Comments welcome and should be sent to [email protected] Framer’s Intent: Gouverneur Morris, the Committee of Style, and the Creation of the Federalist Constitution William Michael Treanor1 Table of Contents Table of Contents .......................................................................................................................... 1 Abstract ........................................................................................................................................ 3 Introduction .................................................................................................................................. 4 I. The Committee of Style and Morris’s Constitution .................................................................... 8 a. The Mandate and Selection of the Committee ................................................................ 8 b. Gouverneur Morris ...................................................................................................... 16 c. Morris’s draft and the work of the Committee .............................................................. 25 d. The Convention’s Consideration of the Committee of Style’s draft ........................... 29 i. Offences against the law of nations clause ......................................................... 30 ii. The General Welfare Clause............................................................................. 32 II. Historians’ views of the Committee’s work ............................................................................ 36 III. The Significance of the Changes of the Committee of Style’s Changes The Supreme Court Caselaw ................................................................................................. 43 IV. Law Review Scholarship ....................................................................................................... 50 V. Gouverneur Morris’s Constitutional Vision ............................................................................ 57 a. Nationalism.................................................................................................................. 57 b. The Presidency ............................................................................................................ 61 c. Judiciary ...................................................................................................................... 63 i. Lower federal courts ......................................................................................... 63 ii. Judicial Review ................................................................................................ 65 1 d. Contract Clause and Property ....................................................................................... 67 e. Slavery and New States ................................................................................................ 72 VI. The Work of the Committee of Style ..................................................................................... 77 a. The Preamble ............................................................................................................... 78 b. Three Articles for Three Branches and Three Vesting Clauses ..................................... 87 c. The Qualifications Clause ............................................................................................ 95 d. The Federal Judiciary ................................................................................................... 98 i. Judicial Power clause ........................................................................................ 98 ii. Law of the Land Clause ................................................................................. 102 e. The Contract Clause ................................................................................................... 105 f. Engagements Clause ................................................................................................... 108 g. Slavery ...................................................................................................................... 109 h. New States Clause ..................................................................................................... 110 i. Impeachment Clause ................................................................................................... 111 j. Presidential Succession Clauses (section to be added) ................................................. 112 h. Conclusion ................................................................................................................. 112 VII. The Committee of Style and Constitutional Interpretation .................................................. 113 Conclusion ................................................................................................................................ 117 2 February 5, 2019 Presentation to San Diego Originalism Conference Framer’s Intent: Gouverneur Morris, the Committee of Style, and the Creation of the Federalist Constitution William Michael Treanor2 Abstract At the end of the proceedings of the federal constitutional convention, the delegates appointed the Committee on Style and Arrangement to bring together the textual provisions that the convention had previously agreed to and to prepare a final constitution. Pennsylvania delegate Gouverneur Morris was assigned to draft the document for the committee, and, with few revisions and little debate, the convention subsequently adopted the Committee’s proposed constitution. For more than two hundred 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 concluded that Morris was an honest scrivener. No prior article, however, has systematically compared the Committee’s draft to the previously adopted resolutions or discussed the implications of those changes for constitutional law. This article reveals how many changes Morris made to the text delegates had previously agreed to and how important those changes were (and are). It shows that many of the central elements of the Constitution (including the Preamble; the basic Article I, Article II, and Article III structure; and the contract clause) were wholly or largely the product of the Committee’s work. In total, Morris made twelve significant changes to the Constitution, and these textual changes advanced his constitutional goals, including strengthening the national government, the executive, and the judiciary; protecting private property; and fighting the spread of slavery. Finally, it shows that, in central debates in the early republic, Federalists, and, notably, fellow committee member Alexander Hamilton repeatedly drew on language crafted by the Committee as they fought for their expansive vision of the Constitution. In revising the constitutional text, Morris created the basis for what was to become the Hamiltonian reading of the Constitution. This history has significant implications for modern constitutional law. While the Supreme Court has never been presented with a case that reveals the extent of the Committee’s changes, in four cases it has confronted situations in which the Committee’s text arguably had a different meaning than the provision previously adopted by the convention, and the Court has consistently treated the Committee’s work as substantively meaningless and concluded that the prior resolutions were controlling. That approach should be rejected because it is at odds with the majoritarian premise of constitutional ratification by “the people.” The text that was ratified is controlling. At the same time, in most circumstances, Morris’s language was ambiguous. A modern public meaning originalist approach leads to the conclusion that Morris’s revisions made possible alternate readings of the Constitution: it supported what was to become the Federalist approach, but did not prevent Republican textualist readings. On important contemporary issues, focus on Morris’s text makes us aware of originalist understandings of the text that have been 3 frequently dismissed or wholly forgotten; although it does not eliminate the originalist basis for narrower readings, that focus provides new originalist support for broad understandings of congressional, judicial, and presidential power and for protection of private property. Framer’s Intent: Gouverneur Morris, the Committee of Style, and the Creation of the Federalist Constitution William Michael Treanor Introduction That document [the Constitution] was written by the fingers, which write this letter. Gouverneur Morris to Timothy Pickering,
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