The Return of George Washington

by Edward Larson

  16. Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Knopf, 1997), 14.

  17. Pierce Butler to Weedon Butler, May 5, 1788, Farrand, 3: 302.

  18. Virginia Plan, Resolutions 7 and 8, Farrand, May 29 and June 1–2, 1787, 1: 21, 63, 94.

  19. See Max Farrand, The Fathers of the Constitution: A Chronicle of the Establishment of the Union (New Haven, CT: Yale University Press, 1921), 111 (“Washington was the great man of this day and the members not only respected and admired him; some of them were actually afraid of him”).

  20. Farrand, June 1, 1787, 1: 65.

  21. Farrand, June 4, 1787, 1: 103.

  22. The Declaration of Independence, para. 2 (U.S. 1776).

  23. George Washington to Lafayette, Nov. 8, 1785, PGW, CS 3: 345. In this letter, Washington accepted that Franklin acted with “the best designs . . . to reconcile the jarring interests of the State,” but doubted if it would be “to the satisfaction of both parties.”

  24. Farrand, June 1, 1787, 1: 66; Farrand, June 2, 1787, 1: 88.

  25. Farrand, June 4, 1787, 1: 113. Randolph agreed that the three members of the Executive should represent different sections of the country. Farrand, June 2, 1787, 1: 65–66.

  26. Farrand, June 2, 1787, 1: 90. Echoing this argument, Wilson stated about a triumvirate executive, “Among three equal members, he foresaw nothing but uncontrouled, continued, & violent animosities; which would not only interrupt the public administration; but diffuse their poison thro’ the other branches of Govt.” Farrand, June 4, 1787, 1: 96.

  27. Farrand, June 1, 1787, 1: 65–66, 70, 73. Making a similar comment, Rutledge at this point added, “A single man would feel the greatest responsibility and administer the public affairs best.” Ibid., 65.

  28. Farrand, June 4, 1787, 1: 97.

  29. Farrand, June 2, 1787, 1: 83, 86. On this day, Randolph again warned of a single President as being “the fetus of a Monarchy.” Ibid., 92.

  30. Butler to Butler, Farrand, 3: 302.

  31. Farrand, June 4, 1787, 1: 97.

  32. It was Madison who moved and Wilson who seconded replacing the Virginia Plan’s broad language that the future presidency “ought to enjoy the Executive rights vested in Congress by the Confederation” with language naming certain specific executive powers in a form suggesting that the delegates would later revisit the list to add other powers. The motion passed without dissent. Farrand, June 1, 1787, 1: 67. The Virginia Plan would have lodged an absolute power to veto legislation in a council of revision composed of the executive and members of the national judiciary. After considerable debate on the proper nature and extent of the veto, the delegates approved by a margin of eight to two (with Virginia voting yes) a much-amended motion giving “the Executive alone without the Judiciary the revisionary control on the laws unless overruled by 2/3 of each branch” or house of Congress. Farrand, June 4, 1787, 1: 104. At the urging of the big-state nationalists who favored a strong executive, the Convention at one point raised the fraction of both houses needed to override a presidential veto to three-fourths. During its final week, however, the Convention restored the two-thirds requirement. At that point, a divided Virginia delegation was one of four states voting to retain the three-fourths fraction. Skeptical of a powerful presidency, Mason and Randolph supported the two-thirds fraction; Washington, Madison, and Blair voted to retain the three-fourths fraction and carried Virginia (but not the Convention) with them. Farrand, Sept. 12, 1787, 2: 587. It was one of the few clear defeats for Washington on a core matter relating to the executive.

  33. Farrand, June 1, 1787, 1: 65–66. At this point in the debate, Wilson depicted powers of “war and peace” as legislative. Speaking about these and other possible executive powers, Madison here reportedly added, “Executive powers ex vi termini, do not include the Rights of war & peace &c. but the powers sh[oul]d be confined and defined—if large we shall have the Evils of elective Monarchy.” Ibid., at 70. Under British and Continental legal theory, however, John Locke, Montesquieu, and William Blackstone presented powers of war and peace as effectively a royal prerogative.

  34. Farrand, June 13, 1787, 1: 226.

  35. Farrand, July 26, 1787, 2: 119.

  36. Ibid., 121. Washington and Madison cast their no votes against the whole resolution on the executive as it then stood. The dispute likely focused on the part of that resolution relating to the executive being chosen by Congress because only minutes earlier Virginia had voted in favor of Mason’s motion “that the Executive be appointed for seven years, & be ineligible a 2d. time” without an indication in Madison’s notes that Washington objected. Farrand, July 26, 1787, 2: 220. Logically, given his age and attachment to Mount Vernon, Washington could be happy with a single seven-year term as President while still wanting the independence of not having been chosen by Congress. By this point, Madison seemed more concerned with legislative selection than the term limit. In his analysis of the episode, however, Phelps argues that Washington here was voting against a one-term limit but Phelps reaches that conclusion on the erroneous premise that the Convention had already approved having an electoral college rather than Congress choosing the executive. Phelps, Washington and Constitutionalism, 105–6. As discussed below, most delegates opposed the term limit after the Convention in September approved having independent electors choose the President.

  37. Farrand, June 1, 1787, 1: 65. The following day, Sherman added, “The National Legislature should have power to remove the Executive at pleasure.” Farrand, June 2, 1787, 1: 85.

  38. Farrand, Sept. 4, 1787, 2: 501.

  39. GWD, June 10, 1787, 3: 222.

  40. George Washington to George Augustine Washington, June 15, 1787, PGW, CS 5: 224.

  41. George Washington to George Augustine Washington, June 3, 1787, PGW, CS 5: 217.

  42. Farrand, June 9, 1787, 1: 179.

  43. Ibid.

  44. Farrand, June 30, 1781, 1: 483.

  45. Ibid., 502.

  46. Ibid., 490.

  47. Ibid., 488.

  48. Ibid., 482, 494.

  49. Ibid., 492.

  50. Ibid., 499.

  51. Jared Sparks, Life of Gouverneur Morris (Boston: Gray & Bowie, 1832), 1: 283.

  52. Alexander Hamilton to George Washington, July 3, 1787, PAH, 4: 224.

  53. George Washington to Alexander Hamilton, July 10, 1787, PGW, CS 5: 257.

  54. Farrand, July 2, 1787, 1: 510–16, 519.

  55. George Washington to David Stuart, July 1, 1787, PGW, CS 5: 240. Stuart was the second husband of Washington’s stepson’s widow and a member of the Virginia House of Delegates.

  56. “Philadelphia, July 4,” Pennsylvania Evening Herald, July 4, 1787, p. 3; “The Twelfth Anniversary,” Independent Gazette, July 6, 1787, p. 3; “Philadelphia, July 6,” Pennsylvania Packet, July 6, 1787, p. 3; “Philadelphia, July 7,” Pennsylvania Evening Herald, July 7, 1787, p. 3; and see generally Beeman, Plain, Honest Men, 190–93.

  57. “Trenton, July 10,” Independent Gazetteer, July 14, 2787, p. 2; “New York, July 12,” Pennsylvania Packet, July 19, 2787, p. 2; “Extract from a Letter from Lancaster,” Independent Gazetteer, July 17, 2787, p. 3; “Extract from a Letter from Boston,” Independent Gazetteer, July 6, 1787, p. 3.

  58. C. W. Peale, “The Subscriber,” Pennsylvania Packet, Aug. 20, 1787, p. 3; “A Messotinto Print,” Pennsylvania Packet, Sept. 18, 1787, p. 3.

  59. Farrand, July 5, 1787, 1: 525–27.

  60. Farrand, Aug. 8, 1787, 2: 224–25; Farrand, Aug. 13, 1787, 2: 274, 280.

  61. Farrand, Sept. 10, 1787, 2: 568.

  62. Farrand, June 11, 1787, 1: 192.

  63. Ibid., 201.

  64. Ibid., 193. They borrowed this formula from a 1783 proposal passed by Congress but never ratified by the states for equitably allocating requisitions among the states.

  65. Ibid., 208.

  66. For a clear expression of this distinction by Morris, see his comments at Farrand, July 13, 1787, 1:
604.

  67. Farrand, July 9, 1787, 1: 561.

  68. Farrand, July 11, 1787, 1: 587.

  69. Farrand, July 13, 1787, 1: 605.

  70. Farrand, July 9, 1787, 1: 560.

  71. Beeman, Plain, Honest Men, 207 (“General Washington—recognizing that the report from Morris’s committee had managed to stir up more unease among the delegates—used his authority as presiding officer to appoint another committee”). In explaining what he meant in this sentence by “appoint,” Richard Beeman said that the better word might be “create”—by which he meant, Washington created the committee, he did not necessarily name its members. That was likely done by ballot of the delegates.

  72. Farrand, Sept. 17, 1787, 2: 644. In his analysis of Washington’s decision to speak on this relatively minor point after he had refrained from speaking substantively on other matters, Glenn Phelps agrees that it “reveals the pragmatic side of [Washington’s] constitutional thinking.” Phelps paints the amendment as a minor concession to small-scale republicans calculated to help secure ratification. Phelps, Washington and Constitutionalism, 101.

  73. George Washington to Henry Knox, Aug. 19, 1787, PGW, CS 5: 297.

  74. Farrand, Aug. 21–22, 1787, 2: 364, 371, 373.

  75. Paul Finkelman, “Slavery and the Constitutional Convention: Making a Covenant with Death,” in Richard Beeman et al., Beyond Confederation: Origins of the Constitution and American National Identity (Chapel Hill: University of North Carolina Press, 1987), 221.

  76. The northeastern states, which went along with this restriction, participated in the slave trade by being home to many of the shippers and merchants transporting enslaved Africans to the South. Virginia, which by that point could profit from the sale of slaves born on plantations in the state, resisted it. For a succinct analysis of this aspect of Convention politics, see Ray Raphael, Constitutional Myths: What We Get Wrong and How to Get It Right (New York: New Press, 2013), 48–49.

  77. Historian of the Convention Richard Beeman makes this supposition in Beeman, Plain, Honest Men, 333.

  78. Fritz Hirschfeld, George Washington and Slavery: A Documentary History (Columbia: University of Missouri Press, 1997), 173.

  79. On this point, Hirschfeld concluded, “Whatever Washington may have thought of the slavery issue being debated and decided at the federal convention, it is interesting to note that the proslavery views that found their way into the Constitution were (coincidentally or not) those most compatible with Washington’s own values and beliefs.” Ibid., 177. Accord, Henry Wiencek, An Imperfect God: George Washington, His Slaves, and the Creation of America (New York: Farrar, Straus & Giroux, 2003), 269–70.

  80. Farrand, July 23, 1787, 2: 94.

  81. Farrand, Aug. 13, 1787, 2: 274, 278.

  82. Farrand, June 18–19, 1787, 1: 288–89.

  83. Farrand, July 23, 1787, 2: 94–95. Mirroring this debate, on August 14 the delegates considered whether senators should receive their pay from their state governments (as under the Articles of Confederation) or from the general government. Predictably, Martin maintained that “as the Senate is to represent the States, the members of it ought to be paid by the States.” Butler agreed that, given their long terms, senators “will lose sight of their Constituents unless dependent on them for their support.” Madison countered, however, that making senators “constantly dependent on the [State] Legislatures” would prevent them from being “really independ[en]t for six years,” which was the purpose of giving them long terms. Others agreed. “The States can now say,” Carroll now noted, “if you do not comply with our wishes, we will starve you: if you do we will reward you. The new Gov[ernmen]t in this form was nothing more than a second edition of the [Confederation] Congress.” The delegations voted nine to two for paying Congress from the national treasury. Farrand, Aug. 14, 1787, 290–92.

  84. George Washington to John Jay, Sept. 2, 1787, PGW, CS 5: 307.

  85. GWD, July 31, 1787, 3: 230.

  86. George Washington to Elizabeth Powel, July 30, 1787, PGW, CS 5: 280.

  87. Farrand, Aug. 13, 1787, 2: 278.

  88. Farrand, Aug. 6, 1787, 2: 185.

  89. From the Convention’s outset, there was a clear sense that Congress should hold power over war and peace. See Farrand, June 1, 1787, 1: 66–70. The Committee of Detail’s draft constitution assigned Congress the power to make war and the Senate the power to draft treaties, including peace treaties. On August 17, with little debate, the Convention changed the wording of this congressional power: “To make war” became “To declare war.” Apparently the delegates saw this as a clarifying amendment. Madison and Gerry proposed it in response to Charles Pinckney’s concern that vesting the power of making war in Congress might cause too much delay. Madison and Gerry stated that their change would leave “to the Executive the power to repel sudden attacks,” which apparently addressed Pinckney’s concern. Sherman immediately added, “The Executive should be able to repel and not to commence war.” In support of the change, Mason said that he “was against giving the power of war to the Executive, because [he was] not safely to be trusted with it.” In a similar vein, King noted “that ‘make’ war might be understood to ‘conduct’ it which was an Executive function.” Farrand, Aug. 17, 1787, 2: 318–19.

  90. In addition to the shift of duties from the Senate to the presidency, which are discussed below, during the final deliberations the power to adjudicate disputes between states passed from the Senate to the Supreme Court while the duty to try impeachments passed from the Supreme Court to the Senate. See Farrand, Aug. 24, 1787, 2: 401; Farrand, Aug. 27, 1787, 2: 427; Farrand, Sept. 4, 1787, 2: 493; and Farrand, Sept. 8, 1787, 2: 554.

  91. Farrand, Aug. 8, 1787, 2: 224.

  92. Farrand, Aug. 13, 1787, 2: 278.

  93. On June 30, for example, Madison complained, “The plan in its present shape makes the Senate absolutely dependent on the States. The Senate therefore is only another edition of [the Confederation] Cong[res]s. He knew the faults of that Body & had used a bold language ag[ain]st it.” Farrand, June 30, 1787, 1: 491.

  94. Farrand, Aug. 23, 1787, 2: 392.

  95. Ibid., 389.

  96. Farrand, Sept. 4, 1787, 2: 493–95. For early advocacy of this approach, see Farrand, July 18, 1787, 2: 41–44.

  97. Farrand, Sept. 7, 1787, 2: 539.

  98. Farrand, Sept. 4, 1787, 2: 493. With the added language Congress arguably gained the power to tax for the general welfare; without it, Congress arguably could only tax to further purposes otherwise authorized under the Constitution. A further example of the nationalists’ principled commitment to a broad taxing power involved a late August dispute over exports. The Committee of Detail’s draft constitution included a clause barring Congress from taxing exports. The clause was supported by the export-rich plantation states of the South. When the full Convention debated this clause, Madison, Wilson, and Gouverneur Morris spoke against it even though Virginia and perhaps Pennsylvania would benefit from it. “These local considerations ought not to impede the general interest,” Morris declared. Arguing that “we ought to be governed by national and permanent views,” Madison proposed limiting the “evil” by allowing Congress to tax exports if two-thirds of its members agreed. Madison’s proposal lost five votes to six with a divided Virginia delegation voting no. The Convention then approved the bar on taxing exports with a divided Virginia voting yes. In both cases, against the interest of their state but in support of nationalist principle, Washington and Madison voted in the minority. Farrand, Aug. 21, 1787, 2: 360–64.

  99. The committee’s recommendations authorizing the President to make treaties and appoint officers with the advice and consent of the Senate passed the Convention without dissent. Farrand, Sept. 7, 1787, 2: 538–39. The key vote “for Appointing the President by electors” passed by a margin of nine to two. Farrand, Sept. 6, 1787, 2: 525. Most of the discussion over using electors to choose the President involved what would happen if no candidate received votes from a majority of t
he electors. The committee recommended that the Senate then choose the President from the five candidates receiving the most votes from electors. Addressing objections from many delegates that this gave too much power to the Senate, the Convention resolved that the House of Representatives would make this choice with “the members from each state having one vote.” Farrand, Sept. 6, 1787, 2: 527. The expanded language in the taxing clause passed without dissent. Farrand, Sept. 4, 1787, 2: 499.

  100. For example, at one point, Hamilton painted the single-term president as a “Monster” who would “consider his 7 years as 7 years of lawful plunder.” Farrand, Sept. 6, 1787, 2: 524, 530.

  101. Farrand, Sept. 6, 1787, 2: 499.

  102. George Washington to George Augustine Washington, Sept. 9, 1787, PGW, CS 5: 321.

  Chapter 6: “Little Short of a Miracle”

  1. Farrand, Sept. 17, 1787, 2: 651.

  2. Morris later claimed credit and Madison confirmed it. See Gouverneur Morris to Timothy Pickering, Dec. 22, 1814, Farrand, 3: 420 (“That instrument was written by the fingers that write this letter”); James Madison to Jared Sparks, April 8, 1831, Farrand, 3: 449 (“The finish given to the style and arrangement of the Constitution fairly belongs to the pen of Mr. Morris”).

  3. The Convention adopted the new preamble as part of the Constitution without comment or objection. Less than a year later, however, at the Virginia ratifying convention, anti-nationalist Patrick Henry made it one focus of his objections. “Who authorized them to speak the language of, We, the People, instead of We, the States?” he asked, pointing the finger directly at Washington, or “that Illustrious man,” as he called him. “If the State be not the agents of this compact, it must be one great consolidated National Government of the people of all the States.” Patrick Henry, June 4, 1788, DHRC, 9: 930–31.

  4. The Declaration of Independence also uses the phrase “the united States of America,” and the first article in the Articles of Confederation states, “The Stile of this Confederacy shall be ‘The United States of America.’”