A People's History of the Supreme Court
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George Mason, who followed Randolph in addressing the delegates, enjoyed his own eminence as the author of Virginia’s Declaration of Rights and from his indefatigable labors in framing the Constitution he now rose to reject. Mason spoke in even stronger words than Randolph. The “dangerous power”. given to Congress in the Constitution, he predicted, “would end either in monarchy, or a tyrannical aristocracy; which, he was in doubt, but one or other, he was sure.” Mason complained that the Constitution “had been formed without the knowledge or idea of the people.” He followed Randolph in proposing another convention, one that could add a bill of rights to the version before the delegates. “It was improper to say to the people, take this or nothing,” Mason argued.
The arguments of Randolph and Mason, made by delegates who were widely respected by their fellows, did not fall on deaf ears in the State House chamber. But they did not sway any votes that were not already committed. Charles Pinckney of South Carolina responded to his fellow southerners. “These declarations from members so respectable,” he said, “give a particular solemnity to the present moment.” But Pinckney saw no reason for a second convention. “Nothing but confusion and contrariety could spring from the experiment,” he predicted. “He was not without objections as well as others to the plan,” Pinckney said of the draft Constitution. “But apprehending the danger of a general confusion, and an ultimate decision by the sword, he should give the plan his support.”
The last delegate to speak before the convention took its final votes on the Constitution had, like Randolph and Mason, labored hard over the past four months. Elbridge Gerry had risen to speak more than a hundred times, most often to denounce the “Federalist” provisions that Madison had drafted, which Gerry considered incursions on the rights of the states. In his speech of September 15, Gerry listed in detail his accumulated objections to the Constitution. Some points were minor, such as “the power of Congress over the places of election.” Others were substantial, such as the Great Compromise on counting slaves as three fifths of a “person” in allocating House seats. But on each of Gerry’s objections, other delegates had voted with him in the minority and then swallowed their doubts when the time came for a final vote on the Constitution.
Gerry assured his fellow delegates that he, too, could “get over all these” objections. But he could not sign a document in which “the rights of the citizens” had been “ rendered insecure by the general power of legislature to make what laws they please to call necessary and proper.” Gerry was not a diehard on the states’ rights issue; he had earlier spoken in favor of a federal union as “an umpire to decide controversies” between the states. Neither did he support “the people” as best qualified to make political decisions, as shown by his remarks about the “excesses” of democracy. But Gerry equally distrusted legislative supremacy, and his advocacy of a national bill of rights fit into his political philosophy, which sought a broad dispersal of power between the states and federal government, and between their separate branches. Having opened his speech by stating that he felt compelled “to withhold his name from the Constitution,” Gerry ended with a plea for “a second general convention,” as Randolph had moved.
As soon as Gerry sat down, the convention voted on Randolph’s motion for “another general convention” to consider amendments “offered by the state conventions” when they met to consider ratification of the Constitution. Madison recorded the verdict on Randolph’s motion: “All the states answered—no.” Madison then scribbled in his notes: “On the question to agree to the Constitution, as amended. All the states aye. The Constitution was then ordered to be engrossed. And the House adjourned.”
The delegates met on this Saturday until six o’clock, and left the State House for dinners in their rooming houses or taverns while the product of their labors was copied in a fine hand on four sheets of parchment and printed by the firm of Dunlap and Claypoole for their final session on Monday, September 17.Sunday may have been a day of rest for many of the weary delegates, but some worked in their rooms with pen and ink, putting onto paper their final words on the document over which they had labored for the past four months. Not a single delegate was pleased with every provision of the Constitution. George Washington, who rarely spoke from his presiding chair, expressed his thoughts in a letter to Patrick Henry, his friend and fellow revolutionary soldier. “I wish the Constitution which is offered had been made more perfect,” Washington confessed, “but I sincerely believe it is the best that could be obtained at this time.” Henry, who would soon lead the Virginia campaign against ratification of the Constitution, revered Washington as a military leader but rejected the product of the Philadelphia convention as providing “no checks, no real balances, in this government.”
The question of checks and balances had consumed the delegates in Philadelphia over the entire summer of 1787. How should they check the powers of government over the rights of the citizens? And how should they balance the powers of the separate branches of the national government? These were questions that had provoked four months of debate, and that produced a document based on many compromises, both large and small. When the delegates returned to the State House on Monday morning, September 17, they first listened while the convention secretary, William Jackson, read the engrossed copy of the Constitution, which had been placed on each desk in the chamber. During this reading, which consumed at least an hour, a dozen of the delegates looked down at their notes and rehearsed their final speeches to the convention
The first to rise, slowly and with helping arms, was Benjamin Franklin, the oldest delegate at the age of eighty-one. Crippled by gout. Franklin handed the pages of his speech to his fellow Pennsylvanian James Wilson and sat down to hear his words read to the convention. “I confess that there are several parts of this Constitution which I do not at present approve,” Wilson read from Franklin’s speech, “but I am not sure I shall ever approve them.” Franklin made light of his advanced age. “The older I grow, the more apt I am to doubt my own judgment, and to pay more respect to the judgment of others.” Franklin continued with a joking reference to theological debate. An Episcopalian divine, he recounted, once told the Pope that the only difference between their denominations was that “the Church of Rome is infallible and the Church of England is never in the wrong.”
James Madison did not indicate in his notes whether the delegates responded with laughter to Franklin’s little joke. He did, however, record Franklin’s next jest, about “a certain French lady, who in a dispute with her sister said, I don’t know how it happens, sister, but I meet with nobody but myself, that’s always in the rights—Il n’y a que moi qui a toujours raison.” Madison got the French right, and Franklin got his point across. “For when you assemble a number of men to have the advantage of their joint wisdom,” Franklin continued, “you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an assembly can a perfect production be expected?” This was, in almost the same words, the question George Washington had posed to Patrick Henry.
Benjamin Franklin answered his own rhetorical question about the Constitution. “The opinions I have had of its errors, I sacrifice to the public good,” he told his fellow delegates. Franklin concluded with his “wish that every member of the convention who may still have objections to it, would with me, on this occasion doubt a little of his own infallability, and to make manifest our unanimity, put his name to this instrument.” Franklin made one final effort to achieve unanimity on the Constitution. He proposed that “the Constitution be signed by members” not as individuals but “by the unanimous consent of the states present” at the convention.
Franklin’s motion to adopt the Constitution by vote of the states ran into a minor roadblock. Nathaniel Gorham of Massachusetts, who rose to speak on almost every issue the delegates considered, made one final motion. Expressing his wish “of lessening objectio
ns to the Constitution,” Gorham proposed changing the provision that apportioned House seats from “every forty thousand” inhabitants to thirty thousand. This motion would have given Massachusetts another House seat in Congress. Gorham’s motion struck one delegate. perhaps the most influential in the convention, as “of so much consequence that it would give much satisfaction to see it adopted.” With this blessing from George Washington, Gorham’s motion passed without dissent.
James Madison then recorded the convention’s final action. “On the question to agree to the Constitution enrolled in order to be signed. It was agreed to, all the states answering aye.” But even this unanimous vote did not end debate on the Constitution. Edmund Randolph rose from his seat, asked George Washington for permission to speak, and then looked directly at Benjamin Frankiln, almost three times his age. Randolph “apologized for his refusing to sign the Constitution,” he said, “notwithstanding the vast majority and venerable names that would give sanction to its wisdom and its worth.” Randolph had not decided “that he should oppose the Constitution” after the convention ended, he assured Franklin. “He meant only to keep himself free to be governed by his duty as it should be prescribed by his future judgment,” he continued. Randolph then pledged to take “such steps as might appear to him most consistent with the public good.” With these equivocal words, Randolph nodded to Franklin and took his seat.
Once again, and with great effort, Franklin rose to address the convention. “He expressed a high sense of obligation to Mr. Randolph for having brought forward” the Virginia Plan, Madison recorded, “and hoped that he would yet lay aside his objections, and by concurring with his brethren, prevent the great mischief which the refusal of his name might produce.” Randolph was deeply moved by Franklin’s remarks. Madison recorded his colleague’s final words to the convention. “He repeated that in refusing to sign the Constitution, he took a step which might be the most awful of his life, but it was dictated by his conscience, and it was not possible for him to hesitate, much less, to change.” Once again, Randolph appealed to the delegates to allow the state conventions to propose amendments, and for a second national convention to consider them before final ratification. Failure to do this, he predicted, “would really produce the anarchy and civil convulsions which were apprehended from the refusal of individuals to sign it.”
Elbridge Gerry then rose to describe “the painful feelings of his situation, and the embarrassment” he felt at Franklin’s remarks, which he considered as “levelled at himself and the other gentlemen who meant not to sign.” But Gerry felt even more strongly that “a civil war may result from the present crisis of the United States,” a crisis that would only worsen under the proposed Constitution. Franklin’s motion, that the Constitution be signed by individual delegates but sent for ratification “by the unanimous consent of the states, ” was adopted without dissent. The delegates then took their final vote, to deposit the Journal of the Convention with the president, with directions that “he retain the Journal and other papers, subject to the order of the Congress, if ever formed under the Constitution.” However confident, the delegates were that a new Congress would be formed, they knew that ratification by nine states—required by Article VII—was not a foregone conclusion.
Madison recorded the next step in his notes: “The members then proceeded to sign the instrument.” The parchment copy of the Constitution was laid on the small table, covered with green baize, that stood before Washington’s chair as presiding officer George Washington signed first, as president of the convention. While he placed his signature on the parchment, dipping his pen in a silver inkwell, the remaining delegates lined up, as they had in voting on motions, in geographical order, north to south—beginning with New Hampshire and ending with Georgia. John Langdon of New Hampshire was the first to sign after Washington, and Abraham Baldwin of Georgia the last, ironically, neither man had contributed much to the convention. The name of John Dickinson of Delaware, who was ill and had returned home the day before, was signed by his colleague George Read.
While the last signatures were being affixed, Madison recorded a touching scene. Benjamin Franklin, who had been helped forward to sign the Constitution, looked at the wall behind the president’s chair, on which a bright yellow sun had been painted. Franklin spoke to the delegates who surrounded him. “I have, said he, often in the course of a session, and the vicissitudes of my hopes and fears as to its issue, looked at that behind the President without being able to tell whether it was rising or setting: But now at length I have the happiness to know that it is a rising and not a setting sun.”
With that last remark in their minds, the delegates voted to adjourn “sine die.” And then, as George Washington reported in his diary, “the members adjourned to the City Tavern,“ the meeting and eating place of Philadelphia’s elite, for a dinner hosted by Washington. Most likely, even the three delegates who refused to sign the Constitution trooped along with the men they had argued with for an entire summer. Indeed, scarcely a delegate had not made at least one passionate speech on an issue about which he felt strongly.
Fifty-five men attended at least part of the Philadelphia convention. Some, like John Lansing and Robert Yates of New York, departed soon after they arrived, convinced that the convention’s real purpose was to discard the Articles of Confederation and impose a strong national government on the states. Others who opposed the “Federalist” plan, like Luther Martin of Maryland, remained in Philadelphia until shortly before the convention ended, but left without a farewell speech. Martin’s last words, spoken on August 31, warned that “the people would be against” the Constitution, and “would not ratify it unless hurried into it by surprise.” Six of the delegates, including the three who stayed through the final session and refused to sign the Constitution, became leaders of the Antifederalist movement against ratification. Of the thirty-nine delegates who did sign the final document, only a handful were men of national reputation and renown: Alexander Hamilton of New York, Benjamin Franklin, Robert Morris, and Gouverneur Morris of Pennsylvania, and James Madison and George Washington of Virginia. Other signers, of course, held positions of influence in their states, and several gained eminence after the Constitution was ratified, as members of Congress, cabinet officers, or justices of the Supreme Court.
The men who sat through the long and often tedious sessions of the Philadelphia convention in 1787 constituted, with some exceptions, a notable collection of political thinkers and pactitioners. Measured by their prior and subsequent public service, both in state and federal government, no comparable group has contributed more to the American system of government. For more than two centuries, scholars have debated the motivations of the men who framed the Constitution. In a book that shattered the conventional view of the Framers, historian Charles Beard of Columbia University argued in 1913 that the Philadelphia delegates were motivated primarily by economic self-interest. He computed—down to the last dollar—the amount of wealth that cach delegate held in public securities, land speculation, “mercantile, manufacturing, and shipping” businesses, and ownership of slaves. Beard claimed that the “overwhelming majority” of the Framers were “economic beneficiaries from the adoption of the Constitution.” His book, An Economic Interpretation of the Constitution, came at the height of the “progressive” era in American politics, a time in which “muckrakers” such as Lincoln Steffens, Ida Tarbell, and Upton Sinclair exposed the greed and corruption of American capitalism.
Historians, much like politicians, move with the currents of public opinion. Beard’s depiction of the Framers as self-interested capitalists was countered in 1928 by Charles Warren of Harvard, who had already won the Pulitzer Prize for his three-volume work, The Supreme Court in United States History. Warren, a lawyer and scion of a patrician Boston family, argued in his book, The Making of the Constitution, that the Framers were farsighted statesmen who abandoned their parochial interests to forge a Grand Compromise tha
t created a strong national union as the only alternative to the disunity of the confederated states. Basing his research largely on the correspondence of the Framers, Warren wrote that the “patriotic sincerity” of these men was based on “principles which were distinctively American and little connected with economics.” Warren, of course, wrote in a decade that celebrated the achievements of American capitalism, which soon crumbled in the Great Depression that followed the Crash of 1929.
Which historian—Beard or Warren—correctly identified the underlying motivations of the men who framed the Constitution? There is no question, as Beard concluded, that most of the Framers had some personal stake in the outcome of their deliberations. But evidence of economic motivation does not necessarily contradict Warren’s claim that the Framers also acted from “such motives as patriotism, pride in country, unselfish devotion to the public welfare, desire for independence, inherited sentiments, and convictions of right and justice.”
Politicians often act from motives that reflect a mixture of interests. Some are personal, some are philosophical, and others respond to public opinion. It would be difficult to identify a single delegate to the Philadelphia convention in 1787 who voted—on hundreds of motions—with a consistency of motivation. James Madison himself, who could aptly be called the first of the Framers, advocated a plan of popular election for all members of Congress and the president. But Madison finally agreed to equal votes for states in the Senate, to indirect election of the president, and to counting slaves as three fifths of a person in allocating House seats.
Madison later shared with Thomas Jefferson—who observed the Philadelphia convention from his diplomatic post in Paris—his concern that the Constitution, “should it be adopted, will neither effectually answer its national object nor prevent the local mischiefs which everywhere excite disgust against the state governments.” In this gloomy assessment of his labors, Madison took little account of the combination of principle and practicality that he brought to the monumental task of framing the Constitution. There is, in retrospect, significance in the fact that Madison’s last words to the convention—spoken on September 15—responded to a motion that every state have an equal vote in the Senate, a proposal he had consistently opposed. “Begin with these special provisos, ” he said, “and every state will insist on them. ” When the convention ended, Madison had agreed to this provision in the Constitution. More than any delegate in Philadelphia, Madison knew that ratification of the Constitution depended on the many compromises that he had initially opposed and then grudgingly accepted.