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Gouverneur Morris’s Rewriting of the Constitution

Recently, the Center for the Study of Constitutional Originalism held its annual Works-in-Progress Conference. One of the papers was written by Dean William Treanor of Georgetown Law School. (Both Bill and I were at Yale Law School as students and we both wrote originalist student notes, though from very different perspectives.)

Bill’s paper “Framer’s Intent: Gouverneur Morris, the Committee of Style, and the Creation of the Federalist Constitution” is extremely interesting. He argues that Gouverneur Morris, who was a delegate at the Philadelphia Convention, had an extremely important influence on the Constitution produced by the Convention. Morris, who served on the Committee on Style that took the constitutional provisions agreed upon by the Convention and wrote them into a single document, was the lead author and in a very real sense “wrote the Constitution.” While Morris’s important role is well known, Treanor’s paper is the first work that I know about that discusses Morris’s role systematically. I highly recommend reading it once it is publicly available.

It turns out that the changes from Morris’s hand were quite substantial. Morris had an enormous effect on much of the now familiar constitutional language, including on the Preamble, the structuring of the first three articles of the Constitution, the three Vesting Clauses, the Supremacy Clause, and the Contract Clause. Significantly, Treanor argues that Morris’s changes were not generally recognized by the Convention and therefore he may have slipped these changes passed the Convention so that the language of the Constitution did not really represent the Convention’s intent.

In addition to noting Morris’s changes, Treanor argues that they had a dramatic effect on the Constitution. Treanor maintains that without those changes the Constitution would have had a number of unambiguous meanings, but that Morris’s changes meant that the Constitution was now ambiguous—and that Morris’s preference for a nationalist constitution, with a strong President and judiciary, and protection for property rights—could now be argued as one of the legitimate interpretations of the Constitution. Indeed, Treanor claims that as a result of Morris’s pen, the Constitution is unclear in many important ways, allowing for construction (rather than interpretation) of many of its provisions.

I am not sure I agree with this part of the paper. First, we do not really know whether Morris slipped these changes by or whether the delegates supported them (even though Madison’s Notes do not mention their discussing them). Second, I would need to study Morris’s changes much more carefully before I concluded that they rendered the Constitution more ambiguous than it would have been. In any event, in some cases, I believe that the “ambiguous provisions” support Morris’s vision and in other cases, I believe they are opposed to it.

The most interesting question here is, what should be the interpretive result if Treanor’s account of Morris’s changes is correct? In my view, we should look to the constitutional text that was enacted, not to the intent underlying the earlier version of the constitution.

The Ratification Conventions, which were needed to enact the Constitution, only saw the text and only voted upon it. Moreover, both the Philadelphia Convention and the Ratifiers would have agreed that the interpretive rule at the time was not to look at what the Philadelphia Convention had intended (especially behind the secrecy of its proceedings). Thus, no one would have believed that the former intent of the Philadelphia Convention was relevant to its interpretation.

So how could the Convention have avoided Morris allegedly pulling a fast one? They could have examined the text of the Constitution that he produced very carefully. There is nothing odd about that. In fact, today when textual changes are made to a legal document, lawyers typically do that. And I would assume that the Convention did the same thing.

It is possible that they failed to do so because they were tied and sought to leave Philadelphia. And that would be regrettable, but no different than the Convention’s failure to include a Bill of Rights in the Constitution for the same reason.

Reader Discussion

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on March 06, 2019 at 09:52:21 am

This calls to mind the lament of Morris's good friend Alexander Hamilton that the Confederation Congress had failed to exploit various sorts of vagueness in the Articles. Since encountering that, and in light of Morris's role in the Philadelphia Convention (particularly his essentially solo work on the Preamble), I've had the impression that Morris had done what you say Dean Treanor has proven he did, though like you I'm unaware of any published paper demonstrating it.

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Kevin Gutzman
on March 06, 2019 at 10:40:32 am

My friend Chris Bissex has done some good work on Morris:
https://cjbissex.wordpress.com/gouverneur-morris/

https://cjbissex.wordpress.com/tag/gouverneur-morris/

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CJ Wolfe
on March 06, 2019 at 11:55:37 am

Vagueness translates as full employment for lawyers In the 48 years since I first pondered this issue in Professor Velvel's classroom I come to the reality that we are the federalists and anti-federalists and we are still arguing style and meaning. In my pre-collegiate education I was subjected to Grammar, Logic, and Rhetoric in both English and Latin. While some modernists consider this trivial, we may someday solve the meaning of the founders.

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Earl Haehl
on March 06, 2019 at 12:56:36 pm

Given this "ambiguity", we may properly ask, "Did the Great Chief Marshall *interpret* or *construct*"

Such ambiguity may be said to "afford" the Jurist, especially one so clever and intelligent as Marshall ample opportunity to *expand* the Constitution, not simply expound it. Marshall shared the same nationalist / centralizing tendencies as did Morris. Not a conspiracy, rather a confluence of interests and disposition permitted Marshall to "expound" in the manner in which he did and, incidentally, raised the hackles of the anti-Feds.

It would, of course, be nice to view in detail some of the "changes" Treanor asserts that Morris made.

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gabe
on March 06, 2019 at 14:55:31 pm

I'm afraid Mr. Rappaport has fallen into that academic trap of focusing so narrowly on a subject that he forgets it is only one aspect of a very much larger picture.

It is my understanding that James Madison took careful notes of the Constitutional Convention. Other delegates kept their own notes. This is where to go for information about what went on behind closed doors that summer, and you can because they have long since been published and are part of the public record.

They show debate was intense, for the past, the present and the future were locked in mortal combat that entire summer, the hottest on record in Philadelphia at the time. Delegates argued over virtually every point. When the final draft was presented, I have a hard time believing it did not reflect their intentions, and if they had "smelled a rat!" they would have objected. Apparently a majority did not agree with Patrick Henry.

It occurs to me that logic, rhetoric and the law allow an identical point to be made several different ways, each way serving a particular purpose, and sometimes they will sound like they are entirely unrelated. Logic is to convince people of something they haven't accepted, rhetoric is to inspire people to some course of action, law is to show what actions can and cannot be taken to achieve an end. What goes up must come down vs. Let us not be foolish vs. This is lawful and that is unlawful.

If the Federalists hadn't won the day, the Confederacy would have prevailed. That would have meant the certain dissolution of the United States. It would have meant we wouldn't be here right now debating our origins. And slavery would not have been abolished in the U.S. until the 20th Century, if then, unless Great Britain had conquered North America in the 19th Century. I'm glad the Federalists won, and I'm not silly enough to think they didn't make mistakes. But I'm also not silly enough to think we should throw out what they did and replace it with something else.

Always remember that the States' Rights advocates were Democratic-Republicans who did not believe that the individual states were obligated to protect the Constitutional Rights of their citizens because that would have meant they would have had to abolish slavery. And this they most certainly did not want to do. The modern Democratic Party is the direct descendant of the Dem-Rep Party, retaining something of the illogical, appalling and self-defeating thinking that plagues it today.

You might want to read David Hackett Fischer's "Albion's Seed" for a good look at Americans during the Colonial and Founding periods. There was definitely a regional attitude about Liberty, law and government that actually gave American political philosophy a strong base from which to build a country that could live up to its ideals. Notice I said "could". We are still working on it because the potential is still there.

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Karen Renfro
on March 06, 2019 at 18:30:17 pm

Indeed. If the Federalists hadn't won, Lincoln's invasion of the south would not have left 650,000 dead, nor ushered in the age of Leviathan government centered in DC. And that whole War of 1812 invasion of Canada thing wouldn't have happened...

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OH Anarco-capitalist
on March 06, 2019 at 19:03:47 pm

The Confederates started the Civil War by firing on Ft. Sumpter. Lincoln's troops had to go where the enemy was, so of course they crossed over into Southern territory. It would not have been necessary to increase the size of the Federal government had not the South seceded from the Union. Blame them. And the War of 1812 was a bit more complicated than you suggest, so complicated that most of my knowledge of that conflict I learned from that song by Johnny Horton about the Battle of New Orleans.

But, getting back to what if the Federalists hadn't won, you are saying the world would be better off without the United States of America? So, you would be okay if slavery was never abolished? Or that the Nazis would have taken over the world? I don't get it.

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Karen Renfro
on March 06, 2019 at 21:53:21 pm

Anarcho:

"... Leviathan government centered in DC."

Not so. Rather rapidly after the cessation of hostilities, the size of the US Government was significantly reduced, budgets brought back into line, etc.

It was not until the coming of the Progressive Era, with its exalted notion of the State AND the States purported ability to resolve any and all human problems that the Central Government began its unending expansion.

To the contrary, it was not COTUS, nor Lincoln's understanding of, and deeply held belief in limited government but rather the Progressive's zeal to undo the US constitution.

Don;t blame COTUS for the sins of its enemies.

And Karen is quite correct. The War WAS started by the Slave Power at Fort Sumter, the precipitate cause but the contributing cause was the Slave Power's refusal to recognize the results of the election of 1860.

Geez Louise, sound bloody familiar. In those days the South interfered with the mails and / or physically assaulted those who disseminated information contrary to the position of the Slave Power.
Now we just BAN them on Twitter and beat them up for wearing a MAGA HAT or for espousing positions contrary to the current SJW view.

Screw 'em! The Dems have not changed their beliefs nor their behavior.
Where once they sought to enslave only Blacks, now they seek to enslave all with the promised benefits (unrealizable, of course) to be derived from the Soft Despotism (not always so soft, BTW) of the Federal Administrative State.

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gabe

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.