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Gouverneur Morris and the Creation of the Federalist Constitution

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Georgetown University Law Center Scholarship @ GEORGETOWN LAW 2019 The Case of the Dishonest Scrivener: Gouverneur Morris 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 Forthcoming in Michigan Law Review, Vol. 119. 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 DRAFT 12/1/2020 The Case of the Dishonest Scrivener: Gouverneur Morris and the Creation of the Federalist Constitution William Michael Treanor* Table of Contents Table of Contents ................................................................................................................................ i Abstract ............................................................................................................................................ iii Introduction ........................................................................................................................................ 1 I. The Committee of Style and Morris’s Constitution ....................................................................... 5 A. The Membership of the Committee .................................................................................. 5 B. Gouverneur Morris ............................................................................................................ 7 C. Morris’s Draft and the Work of the Committee .............................................................. 12 D. The Convention’s Consideration of the Committee of Style’s Draft and the Committee’s Punctuation of the General Welfare Clause ......................................................................... 16 II. Gouverneur Morris’s Constitutional Vision ................................................................................ 23 A. Nationalism ..................................................................................................................... 24 B. The Presidency ................................................................................................................ 26 C. The Judiciary ................................................................................................................... 30 1. Lower federal courts ............................................................................................ 30 * Dean and Executive Vice President, Georgetown University Law Center; Paul Regis Dean Leadership Professor of Law. Ph.D., Harvard University. J.D., B.A., Yale University. Previous drafts of this article have been presented at the San Diego Originalism Conference, the Second Circuit Judicial Conference, the Washington DC Legal Historians Roundtable, the Fordham Law School Conference on New Originalism, the Pew Charitable Trust Judicial Congressional Dialogue Series, the Paul Regis Dean chair installation, and the Georgetown Law faculty workshop, as well as to John Mikhail’s and my class on drafting the Constitution at Georgetown and John Feerick’s constitutional history class at Fordham. Thanks to the attendees at these presentations and to Jane Aiken, Akhil Amar, Randy Barnett, Mary Bilder, Laura Donohue, Bill Eskridge, Dan Ernst, William Ewald, John Feerick, Francois Furstenberg, Jonathan Gienapp, Vicki Jackson, Calvin Johnson, Robert Katzmann, Michael McConnell, Maeve Marcus, John Mikhail, Henry Monaghan, Julian Mortensen, Victoria Nourse, Richard Primus, Jack Rakove, Michael Ramsey, Michael Rappaport, Robert Reinstein, John Rogan, Howard Shapiro, Larry Solum, Alison Spada, David Stewart, Seth Tillman, Amanda Tyler, David Vladeck, and Derek Webb for invaluable comments. I am grateful to research assistants Francis Aul, Mark Keurian and Justin Rattey for their excellent work, to Liz Cavender and Kelsey Levin-Epstein for their great care in preparing the manuscript, and to Georgetown Law librarians Andy Lang, Jenifer Davitt, Andrea Muto and Thanh Nguyen of the Georgetown Law Library for superb support. i 2. Judicial Review .................................................................................................... 31 D. Property ........................................................................................................................... 32 E. Slavery and New States ................................................................................................... 36 III. The Work of the Committee of Style ......................................................................................... 41 A. The Preamble .................................................................................................................. 44 B. Three Articles for Three Branches and Three Vesting Clauses ...................................... 55 C. The Qualifications Clause ............................................................................................... 63 D. Enumeration Clause ........................................................................................................ 66 E. The Contract Clause ........................................................................................................ 69 F. Presidential Succession Clause ........................................................................................ 74 G. Impeachment Clauses ..................................................................................................... 79 1. High Crimes and Misdemeanors .......................................................................... 79 2. Trial by the Senate ............................................................................................... 82 H. The Federal Judiciary ...................................................................................................... 84 1. Judicial Vesting Clause ........................................................................................ 84 2. Law of the Land Clause ....................................................................................... 88 I. Slavery and New States .................................................................................................... 92 J. New States Clause ............................................................................................................ 94 K. Engagements Clause ....................................................................................................... 98 L. Conclusion ....................................................................................................................... 99 IV. The Significance of the Committee of Style’s Changes ............................................................ 99 A. Drafters’ Intent Originalism .......................................................................................... 100 B. Relevance of the Committee of Style’s Text to current controversies .......................... 103 Conclusion ..................................................................................................................................... 112 Appendix ........................................................................................................................................ 115 ii The Case of the Dishonest Scrivener: Gouverneur Morris and the Creation of the Federalist Constitution Abstract At the end of the proceedings of the federal constitutional convention, the delegates appointed the Committee of 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 drafted the document for the committee, and, with few revisions and little debate, the convention subsequently adopted the constitution proposed by the Committee. For more than two hundred years, questions have been raised as to whether Morris as drafter covertly made changes to the text in order to advance his constitutional vision, but the legal scholars and modern historians studying the convention have either ignored the issue or 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 undertakes that comparison and 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; the vesting clauses; the contract clause; and the impeachment clause) were wholly or in critical part the product of the Committee’s work. In total, Morris made fifteen significant changes to the Constitution, and these textual changes advanced his constitutional goals, including strengthening the national government, the executive, and the judiciary; providing the textual basis for judicial review; increasing presidential accountability through an expansive conception of impeachment; protecting private property; mandating that the census report reflect “actual enumeration,” and fighting the spread of slavery. The article also shows that, in central debates in the early
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