As 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 States”), but not to the Article II vesting clause (which reads, “The executive power shall be vested in a president of the United States of America”). 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.”
The drafting history of the vesting clauses supports a conception of executive power that is at odds with both modern pro-executive and pro-Congress readings. Contrary to the view of some champions of the unitary executive, it shows that the text, rather than reflecting a broad consensus in favor of a strong executive, was shaped by Morris’ subterfuge and that its meaning was contested. Contrary to the view of some champions of a pro-Congress position, it provides evidence that Hamilton’s reading was not idiosyncratic and that the text was, in fact, constructed to provide support for such a reading.
Morris fought at the convention for a powerful president, but he also thought the president should be accountable. More than other delegates, he favored impeachment for a broad range of behavior including “treachery, corrupting his electors, and incapacity.” The impeachment clause approved by the convention before the Committee of Style began its work provided for impeachment for “treason or bribery or other high crimes and misdemeanors against the United States.” Reflecting his views on impeachment, Morris expanded the clause’s scope by deleting “against the United States” so the clause in the Constitution provides for impeachment for “treason, bribery, or other high crimes and misdemeanors.”
The question whether this change was legally consequential played a central role in the debate about the constitutionality of the impeachment of President Bill Clinton, and it could be relevant to discussion of the constitutionality of potential impeachment charges against President Donald Trump. At the time of the impeachment proceedings involving Clinton, the standard view among academics, although not the House of Representatives, was that Clinton’s conduct was not an “offense against the United States” because it did not involve his actions as president. It was argued that the fact that the Committee of Style had dropped “against the United States” was insignificant. But the language change accorded with Morris’ support for an expansive conception of impeachment.
While some scholars have argued that there is not a textual basis in the Constitution for judicial review, Morris inserted language in the constitution that supported judicial review, and his contemporaries relied on that language. The critical change here is that Morris, a supporter of judicial review, added language stating that the Constitution is “the supreme law of the land.” The text previously approved by the convention had simply stated that the Constitution was “the supreme law of the several States.” Morris’ law-of-the-land provision was used to justify judicial review by Supreme Court justices riding circuit in two crucial pre-Marbury cases, Hayburn’s Case and Van Horne’s Lessee v. Dorrance, and Chief Justice John Marshall also invoked it in Marbury v. Madison as support for the judicial power to invalidate an act of Congress.
Morris was a dedicated champion of the protection of private property and believed that states should not be able to either interfere with private contracts or alter the terms of contracts the states themselves had made (such as state corporate charters). When the convention had initially considered the contract clause, it rejected it (in part because Morris had opposed the proposed contract clause as potentially barring changes to statutes of limitation). As drafter for the committee, Morris took the rejected proposal and removed the word “private” – the bar on interference with “private contracts or engagements” became simply a bar on “altering or impairing the obligation of contracts.” The convention adopted this version (without any apparent recognition that it had previously voted down the contract clause proposal). The dominant position among scholars is that the contract clause as originally drafted did not apply to contracts with the state. Morris, however, had written the clause in a way that made it applicable to public contracts.
Finally, Morris was the most forceful opponent of slavery at the convention, and he made two changes to the Constitution that reflected that opposition. He dropped the word “justly” from the fugitive slave clause. During the antebellum period, abolitionists argued that the Constitution did not sanction slavery. Morris’ elimination of the word “justly” had made that argument possible.
Through the clever addition of a semicolon, Morris changed the new states clause in a way designed to bar the admission of the potential state slave of Kentucky (which would have been formed from western counties in Virginia). He converted “no new State shall be hereafter formed or erected within the jurisdiction of any of the present States, without the consent of the Legislature or such State as well as of the general Legislature” — text that clearly supported Kentucky’s being formed out of Virginia — into “no new state shall be formed or erected within the jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures concerned as well as of Congress.” The modified text arguably meant that Kentucky could not become a state. (As Michael Paulsen and Vasan Kesavan have pointed out in a law review article, it would also mean that West Virginia, also formed from Virginia, is unconstitutional. Maine, split from Massachusetts, would also lose its statehood under this reading of the text.) Unlike Morris’ other textual changes, however, this one seems to have gone unnoticed, and Kentucky became a state without controversy.
It is a stunning list – the Preamble; the Article I, II, III framework; the contract clause; the vesting clauses; the law-of-the-land clause; the impeachment clause; the fugitive slave clause; the new states clause. Much of our constitutional history and many of our debates today involve the construction of text that Morris wrote to advance his constitutional vision, not the vision of his fellow delegates. With respect to critical parts of the Constitution, the Constitution’s author was a dishonest scrivener, and we have never realized that fact.
What does this history mean for constitutional law?
The Supreme Court has never had a case in which a party argued that the Morris was not an honest scrivener or in which the court was made aware of the extent of his changes. (Indeed, until my article, there was no recognition that Morris had made a significant number of changes.) It has however, on four occasions, adjudicated cases in which text crafted by the Committee of Style arguably had a different meaning than the text previously adopted by the convention. None of these cases involved clauses with the significance of any of the provisions discussed above. Two involved the clause governing qualifications for membership in the House of Representatives, one involved the census clause’s “enumeration” requirement, and one involved the requirement that the Senate shall have the “sole Power” to try impeachments. In each case, the court simply disregarded the committee’s text, holding, in the language of Powell v. McCormack, that the “Committee [of Style] … had no authority from the Convention to make alterations of substance in the Constitution as voted by the Convention, nor did it purport to do so.”
Only Justice Clarence Thomas has disagreed with this approach, observing in dissent in Utah v. Evans (the census case) that he considered the Committee of Style’s language binding because it was the language that was ratified and “I focus on the words of the adopted Constitution.”
As Thomas’ dissent suggests, the court’s approach is at odds with democratic theory. “We, the People” ratified the constitutional text that the convention ultimately adopted; the ratifiers not only did not adopt the provisions referred to the Committee of Style, which were not made public until generations after ratification, they never even saw them. The Supreme Court’s approach in Powell and the other Committee of Style cases is inconsistent with majoritarian decision-making. The constitutional text that the court should implement is the text of the Constitution.
At the same time, Thomas’ approach misses the fact that, in general, Morris’ text did not have one clear meaning. In order to get his text through the convention, Morris used language that did not obviously have a different meaning than the language that the convention had previously adopted. It was, as a result, ambiguous. Examination of the early history of debates about how to interpret the Constitution shows that, in many cases, there was both a Republican and a Federalist reading of his text. Federalists used the Preamble to justify the Bank of the United States; Republicans countered that the Preamble was hortatory. In his Pacificus essay, Hamilton used vesting clause language to argue that the president had a broad power in foreign affairs, but Madison, in his Helvidius essay, responded with a narrow understanding of presidential power. Morris created a Federalist Constitution, but he could not displace the Republican Constitution.
With respect to the clauses Morris changed, a public-meaning originalist should therefore find multiple readings of the text. To use the terminology of my colleague Professor Larry Solum, these clauses are in the “construction zone,” in which originalists have to rely on non-originalist tools, such as precedent or constitutional structure, to choose between two originalist meanings to resolve modern constitutional law questions. In a series of critical areas, then, Morris succeeded in crafting language that led, not to one best reading of the Constitution, but to two competing best readings, one of which reflected the prior votes of the convention and one that reflected Morris’ vision and that was the product of his rewriting.