Franklin & Washington

by Edward J. Larson

  As much as he enjoyed life at the Morris mansion, where he could dine every day, Washington often ate with other delegates at the common tables of taverns and public houses. Later that afternoon, after the extent of disagreement over the power, structure, and selection of the executive became apparent, he ate at City Tavern, where the subject of that day’s debate surely remained on everyone’s mind. While in session that day, the delegates had raised and could not resolve the issue of whether the United States should have one executive officer or three. Now, as many of those members dined with the man who would be king, Washington’s presence must have reassured them. One frequent guest at City Tavern, Pierce Butler, later commented that powers vested in the chief executive under the Constitution would not “have been so great had not many of the members cast their eyes toward General Washington as President.”104 At the Convention’s next session, the delegations voted by a margin of seven to three for a single executive. Virginia joined the majority, with Washington casting the deciding vote within its five-member delegation.105 Indeed, on every occasion during the proceedings, he cast his vote within the Virginia delegation for a stronger presidency.

  AFTER WORKING SIX DAYS A WEEK for more than two months, on July 28, the Convention referred all the provisions passed thus far to a five-member Committee of Detail charged with organizing them into a single coherent document, and recessed for nine days. The delegates needed a break. Washington visited his old encampment at Valley Forge and went fishing with Gouverneur Morris. Having gradually lost stamina and become noticeably tired, Franklin recuperated at home. “It must be no small comfort for you to have a short resting spell,” his grandson Benny wrote to him on August 1. “I really think your illness was in great measure owing to the fatigue you suffered while [the Convention] was sitting, but hope this respite from that business, will fortify your health.”106 Apparently it did. The surviving record suggests that Franklin’s vigor flagged in late July before rebounding in August. At the Convention’s end, he wrote, “Some tell me I look better, and they suppose the daily Exercise of going and returning from the State house, has done me good.”107

  As submitted to the full Convention on August 6, the committee’s draft Constitution presented a snapshot of where matters stood at the time. The president, elected by Congress for a single seven-year term, would execute the nation’s laws, possess a limited veto over legislation, hold the pardon power, and serve as commander in chief of the armed forces.108 This executive would be beholden to Congress, which expressly held the formerly monarchical powers of declaring war and making peace.109 The Senate, with two members appointed by each state’s legislature for six-year terms, would act as a coequal branch of Congress in lawmaking plus hold the traditionally executive powers of making treaties and appointing ambassadors and judges and the judicial power of resolving disputes between states. In effect, it would have mixed legislative, executive, and judicial functions. The electorate of each state would choose members of the House of Representatives—a purely legislative body—in numbers proportionate to the state’s free population and “three fifths of all other Persons.”110 Beyond creating a Supreme Court, the structure and powers of the judiciary were left intentionally vague, in large part because delegates raised but never settled whether courts could review the constitutionality of federal laws or if there would be lower federal courts.

  These provisions provided the starting point for concluding deliberations on the separation of powers between Congress and the executive, which extended into September as weary delegates raced toward adjournment. During this final stage of the Convention, with Washington’s apparent backing, the presidency gained power at the Senate’s expense.111 Franklin, who would have preferred giving more power to the popularly elected House of Representatives, largely stayed out of the tug-of-war between the Senate and executive, except to second a failed motion to have the president restrained by a regionally representative executive council such as he had as president of Pennsylvania. “A Council would not only be a check on a bad President,” Franklin argued to no avail, “but a relief to a good one.”112 Far from curbing the executive, by this point the delegates (led by Washington allies Hamilton, Wilson, and Gouverneur Morris) seemed intent on augmenting its power.

  The resulting changes in the power balance among branches, which laid the foundation for the American presidency, began with concerns over the Senate. Some delegates thought that the Committee of Detail, by allocating executive and judicial powers to the Senate, created an aristocracy, which Mason defined as “government of the few over the many.”113 Others soured on the Senate after it became the agency of the states rather than proportionally representative of the nation as a whole. Madison foresaw it perpetuating the failings of the confederation Congress by favoring state over national interests.114 By late August, most delegates wanted to rein in the Senate, leaving open the question how to reallocate its broad powers. Those powers could have gone to Congress as a whole, or to the Supreme Court, but supporters of a strong executive saw their chance and, given the widespread trust in Washington as president, pounced.

  While the members accepted most of the committee’s draft Constitution, they deferred action on several key provisions relating to the presidency and Senate. Reaching an impasse, on August 31 they referred these postponed parts, which included basic matters regarding presidential selection and executive power, to a committee with one member from each state. Led by Madison and Gouverneur Morris, this committee revived an idea floated earlier by Wilson of having the president elected by separately chosen, state-based electors, who collectively became known as the Electoral College.115 Freeing the presidency from selection by Congress led the committee to increase its power.116 Most important, the committee proposed that the president (rather than the Senate) make treaties and choose ambassadors and judges subject only to the Senate’s advice and consent. With delegates anxious to finish, the Convention accepted these fundamental changes with little debate.117

  So long as Congress elected the president, the delegates had limited the president to a single long term. Otherwise, they feared the executive would come under the sway of the legislators who could reelect him. Using independent electors to select the president opened the door for multiple terms.118 Accordingly, the Convention settled on a four-year term for the president but no limits on reelection. With this final shift, the Convention struck its ultimate balance between the executive and Congress, giving birth to the American presidency with its vast authority and independent selection process. Most Western democracies would not follow this model, favoring instead prime ministers beholden to the legislature. Instead, powerful, independent presidents would become the hallmark of postmonarchical authoritarian regimes.

  Surveying the final product evolved from their Virginia Plan, Edmund Randolph and George Mason warned fellow delegates that such a Constitution “would end either in monarchy, or a tyrannical aristocracy,” and voted against it.119 They found a vocal ally in Massachusetts’s Elbridge Gerry. Franklin had expressed similar concerns throughout the proceedings but, in part due to his trust in Washington as the first president, endorsed the final draft. His lingering worries, however, may account for his widely quoted answer to the grand dame of Philadelphia high society, Elizabeth Powel, when she allegedly asked him after the Convention ended if it had created a republic or a monarchy. “A republic,” Franklin reportedly replied, “if you can keep it.”120

  WITH RANDOLPH AND MASON NOW IN OPPOSITION, on September 15, when the delegates finally voted on the finished Constitution, Washington again cast the deciding ballot within his state’s five-member delegation. His aye carried Virginia, and with it unanimous consent from the eleven states remaining at the Convention to send the document forward to Congress and the states for ratification. Without the support at this point of Washington’s Virginia, prospects for ratification would have dimmed.

  As it was, with Randolph, Mason, and Gerry voting no, and with New York having pu
lled its delegation, the resistance took form. In the fight over ratification, antifederalists would oppose the president’s broad authority and the expansive list of federal powers that included not only to tax and spend for the general welfare and regulate interstate commerce but also to make any laws necessary and proper to implement the listed powers. In the give-and-take at the Convention, this list, which included every power sought by Washington, replaced the Virginia Plan’s vague assertion of federal authority “in all cases to which the separate States are incompetent.”121 Antifederalists also decried the refusal of Washington, Madison, and other federalists to include a bill of rights. Too much presidential and federal power coupled with too few restraints put individual liberty and private property at risk, they argued, just as federalists maintained that too little of the former and too many of the latter courted those same dangers.

  Riddled with compromises and jury-rigged provisions (somewhat like the war effort Washington once led), at core this was Washington’s Constitution, especially with respect to the presidency. During the ratification campaign, he declared to its opponents, “In the aggregate, it is the best Constitution that can be obtained in this Epocha.”122 In particular, Washington defended the powers given to Congress as no more “than are indispensably necessary to perform the functions of a good Government”123 and never doubted the broad authority conferred on the president even after Lafayette, writing from France early in 1788, singled out those “Extensive powers of the Executive” as one of only four points (along with no bill of rights, guarantee of jury trials, or presidential term limits) questioned by the European philosophers who had reviewed the document. Jefferson, he noted, concurred in these four concerns.124 In his reply, Washington gave ground only on a bill of rights and guaranteed jury trials by suggesting that, in due course, amendments could provide for them.125

  Franklin shared antifederalists’ concerns over presidential power and wanted a more democratic Constitution but endorsed the final draft as better than nothing and perhaps the best of all. “I agree to this Constitution with all its faults,” he told his fellow delegates in a major prepared address delivered on the Convention’s final day, “because I think a general Government necessary for us, and there is no form of Government but what may be a blessing to the people if well administered” (or a bane, he implied, if administered poorly). Franklin understood the divisions splitting the Convention and opted to support whatever compromise could produce a workable federal government. If the states met again, he darkly warned, it would only be “for the Purpose of cutting one anothers Throats.”126

  With a nod to Washington, Franklin expressed his faith that the Constitution “is likely to be well administered for a course of years,” yet predicted that it would “end in Despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic Government.” A Constitution providing more popular control and less executive power could better withstand corruption, Franklin believed, but “the older I grow, the more apt I am to doubt my own judgment, and to pay more respect to the judgment of others.” Accordingly, he favored ratifying the Constitution. “The opinions I had of its errors, I sacrifice to the public good,” he pledged. “Within these walls they were born, and here they shall die.”127 In short, while not his ideal Constitution, Franklin embraced it.

  “It is a singular Thing in the History of Mankind,” Franklin wrote to a friend in France, “that a great People have had the Opportunity of forming a Government for themselves.”128 Washington made similar comments to friends at home and abroad.129 Both viewed the Convention as a modern triumph of reasoned debate and compromise in politics that could serve as a model for others. In October, for example, the ever forward-looking Franklin sent a copy of the Constitution to Rodolphe-Ferdinand Grand, who had managed French loans to the United States during the American Revolution. “I do not see why you might not in Europe carry on the Project of . . . forming a Federal Union and One Grand Republick of all the different States and Kingdoms by means of a like Convention,” Franklin suggested, “for we [too] had many interests to reconcile.”130

  Franklin and Washington embraced the Constitution because it realized their long-held ambition for a fortified federal government with consolidated authority over commerce, defense, and taxation. Washington also secured a strong, independent, and unitary presidency that Franklin saw as overly monarchical. Coming from large states and fundamentally national-minded, neither Franklin nor Washington favored a Senate with two members from each state but both accepted it as a necessary compromise. Southern delegates (including Washington) also scored critical safeguards for slavery that many northern delegates (including Franklin) hoped would fail. It tells much about their rational pragmatism and faith in republican virtue that, despite its compromises, Franklin and Washington so unreservedly accepted the American Constitution.

  ALTHOUGH WRITTEN BY A COMMITTEE and approved by the Convention, the cover letter transmitting the Constitution to the confederation Congress was signed solely by George Washington. “The friends of our country have long seen and desired, that the power of making war, peace, and treaties, that of levying money and regulating commerce, and the corresponding executive and judiciary authorities should be fully and effectually vested in the general government,” the letter stated. Effecting these ends, it noted, justified “the consolidation of our Union, in which is involved our prosperity, felicity, safety, perhaps our national existence.”131 This letter launched the public campaign for ratification. Newspapers widely reprinted it along with Franklin’s closing speech, which (alone of all the deliberations at the closed-door Convention) leaked to the press.132 Taken together, these documents made it appear that the Constitution came directly from Washington and Franklin.

  As the two larger-than-life leaders whose support made the Convention and Constitution credible, Washington and Franklin dominate the monumental historical painting of the event by Howard Chandler Christy that a later Congress commissioned for the United States Capitol. The shutters symbolically open and drapes pulled to reveal a bright new day that backlights the figures in an almost holy aura, Franklin sits at center surrounded by the other signers. Washington, standing alone, surveys the scene from an overly elevated dais.

  Christy invented the arrangement of characters and tinkered with the setting, but his painting’s spirit rings true. Washington did oversee the signing from his seat on the dais. Franklin had written the day’s key address. The shutters remained closed throughout the proceedings, but the room may have seemed brighter than before on this final day. Although observed by no one except the Convention’s members and officers, the signing likely felt as historic to them as it looks in Christy’s painting. Washington signed first and above the rest in a bold, large hand somewhat reminiscent of John Hancock’s already well-known signature on the Declaration of Independence: “Go: Washington, Presidt and Deputy from Virginia.” Then the other thirty-eight signers filed forward state by state, north to south, with Franklin in the middle leading the Pennsylvanians.

  While the last members were signing, Franklin looked at the half sun adorning the crown of Washington’s chair. “I have,” he said to those near him, “often in the course of the 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.”133 Madison chose this anecdote involving the Sage of Philadelphia, Washington’s chair, and the rising sun of American nationhood to close his record of the Constitutional Convention. After relating it, Madison’s notes simply conclude that, once the final member signed, “The Convention dissolved itself.”134 Washington left Philadelphia the next day pleased with the Convention’s achievement. The draft Constitution, he soon made clear, fulfilled his hopes for the type of radical cures to the confederation’s infirmities that had drawn him to Philadelphia in the first place.135 Now
he would fight for its ratification.

  Two months later, the assembly and council of Pennsylvania unanimously reelected Franklin to another term as the state’s president. “This universal and unbounded confidence of a whole People,” he confessed to his sister Jane, “flatters my Vanity much more than a Peerage could do.”136 Given his devotion to public service, Franklin viewed his election as something akin to a republican ennoblement. It also gave him an official platform to promote ratification, which he hoped would happen quickly with his state leading the way.

  Seven

  Darkness at Dawn

  DESPITE THE MIRACLE AT PHILADELPHIA, as Washington later characterized the Convention’s work, ratification remained in doubt.1 Large and small, north and south, slave and free—the states would need to overlook vast differences to unite under a single Constitution. The process involved separate ratifying conventions in each state, with the approval of nine required for the document to take effect for those states. “The arguments . . . most insisted upon, in favor of the proposed constitution, are; that if the plan is not a good one, it is impossible that either General Washington or Dr. Franklin would have recommended it,” one Pennsylvania commentator wrote in late October.2 “Let the People confirm what was done by FRANKLIN the sage, and by brave WASHINGTON,” a South Carolina essayist added a week later.3 Even though neither Franklin nor Washington formally participated in the ratification process, as these newspaper articles suggested, each played a key part in it. Indeed, for their role in framing the Constitution, another correspondent had already hailed them jointly as “the fathers of their country.”4