In the more than two centuries since delegates gathered in Philadelphia to form a new government for America, most historians have considered Monday, July 16, 1787, as the decisive day of the Constitutional Convention. For a day so momentous, for a vote so important, the proceedings had an almost anticlimactic feel.
In a lengthy soliloquy the previous Saturday, Madison had strenuously argued in favor of proportional representation in both houses. He addressed and rebutted the small-state arguments one-by-one, pleading with delegates to see the injustice in equal representation in either branch of the new legislature. Using an argument he had voiced before, Madison declared: “No one would say that, either in Congress or out of Congress, Delaware had equal weight with Pennsylvania.” Debate had been long, tiring, and circular as other nationalists desperately fought for a cause they knew in their hearts was hopeless.
Now, Maryland’s Luther Martin, wasting little time, moved that the entire report of the Grand Committee, “as amended and including the equality of votes in the second branch,” be approved by the convention. On a narrow vote of five in favor, four opposed, and Massachusetts divided, the motion carried—it would soon become known as the Great Compromise. North Carolina joined Connecticut, Delaware, New Jersey, and Maryland in the majority. Rejecting the proposal were Virginia, Pennsylvania, South Carolina, and Georgia. Divided Massachusetts delegates Elbridge Gerry and Caleb Strong supported the motion, albeit unenthusiastically, while staunch nationalists Rufus King and Nathaniel Gorham voted in the negative.
That quickly it was over—in the second branch of the legislature, the Senate, each state, large or small, would have an equal vote. Senators would be chosen by the state legislatures and serve for six years, two structural components that would assure the upper chamber was removed from the political passions of the moment; the “cooling” that Washington had described to Jefferson over breakfast (one of these elements was abolished in 1913 when the Seventeenth Amendment provided for direct elections of senators by the people). Each senator would have one vote and each state would be represented by two senators.
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THE NATIONALISTS WERE SO dejected by the Senate vote that the next morning, before the formal convention commenced, a number of large-state delegates gathered to determine what they should do. But it was clear their will to fight on had ebbed.
Some delegates—tenacious nationalists such as Madison, Morris, King, and Randolph—believed the large states should press on and propose a method of governing that benefits “the principal states and a majority of the people of America.” Others, though, perhaps less offended by the small-state position, were also less willing to jeopardize the convention’s work.
In the end, nothing came of the large-state threat to take further action.
Thus, each state, large and small, would have an equal number of votes in the U.S. Senate—state sovereignty, a bedrock principle of the American experience, remained strong. More to the point, the country would be governed by a solution that was at once deliberately difficult to navigate and delicately ingenious in the manner in which it balanced power: one that historians have referred to as “part national” and “part federal,” with the “people” represented according to their numbers in one branch, and the “states” represented with their own power in the other. The more populous states would have an advantage in the lower house, and the Senate’s makeup would ensure that smaller states, and thus the rights of the minority of the population, would not be trampled.
Stung by the loss, James Madison nevertheless kept up appearances in a letter to Thomas Jefferson written one day after the impromptu large-state gathering. While Madison could not share details, he had “little doubt that the people will be as ready to receive as we shall be able to propose—a government that will secure their liberties and happiness.”
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IF THE BATTLE BETWEEN large states and small states over the issue of Senate representation proved anything, it illustrated that nothing in Philadelphia during the summer of 1787 was preordained or predestined. The struggle to create a new government—a new constitution—was arduous, suspenseful, fraught with anxiety and peril, and for weeks during the Senate debate, compromise appeared futile and resolution hopeless. For all of June and half of July, the delegates faced the strong possibility—even likelihood—that the convention would dissolve without consensus or any lasting agreement.
The formation of a new country, the very future of that country, had been in jeopardy for weeks.
The struggle to determine the makeup of the Senate had a sobering effect on delegates; teetering so close to the precipice had taught them a lesson and strengthened their resoluteness to succeed. In the succeeding days, they moved quickly, and while debates and disagreements continued, members made rapid progress without the bitter rancor that the Senate debates had produced.
There is no doubt that the Pennsylvania Packet and Daily Advertiser engaged in hyperbole in its July 19 edition when it reported rumors that delegates were in “great unanimity” at the convention, so united “that it has been proposed to call the room in which they assemble Unanimity Hall.”
But it is not an exaggeration to say that once members had disposed of the controversial and bitter Senate representation issue, they never looked back.
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THERE WERE DISPUTES, FOR certain, but delegates never again approached the anger and animosity generated by the Senate battle.
They disagreed for a time on the role of the chief executive, as well as the way such an executive would be selected. Some delegates favored a three-man chief executive office while others favored a single individual. In the end, the single-person faction prevailed—and that person would have extensive powers—mostly because of the presence, virtue, and leadership of George Washington, whom most delegates believed would be the nation’s first chief executive. South Carolina’s Pierce Butler, who worried deeply about an oppressive chief executive, felt that delegates put too much stock in the fact that Washington would likely become the nation’s first—what would happen in the future, long after Washington was gone?
There were also long debates on how the executive—delegates would eventually settle on the term “president”—would be elected and for how long he would serve. Some delegates favored his election by the national legislature, arguing that he should be little more than an agent carrying out the legislature’s will. Others feared that such a process would limit his independence and violate the principle of separation of powers by making the president beholden to the legislature rather than the people.
A few delegates favored the president’s election directly by the people, but most opposed this method, believing in some cases that ordinary Americans did not possess the intellectual capability to make a proper choice, or—the more common objection—that America’s vast expanse would make it impossible for the people to know about good candidates in distant locales. In that case, they would be more likely to vote for the candidate they knew rather than the best leader for the country; this would reduce the presidency to a local rather than a national office.
It was James Madison who helped delegates to decide; initially, Madison’s Virginia Plan favored the legislature choosing the president, but this was before the makeup of the Senate had changed. Madison instead proposed that state legislatures decide how electors in each state would be chosen, with the number of electors equivalent to the state’s combined number of senators and representatives in Congress. This “electoral college” would choose the president. Moreover, to discourage provincialism, Madison proposed that each elector cast two votes, one of which had to be for someone from outside his home state. In this way, the vice presidency came into being—the person with the most electoral votes would become president, and the man with the second highest number would become vice president. The vice president would be first in line of succession and serve as president of the Senate, but he would only cast a vote in the event of a tie in the upper chamber.
Thus, the president and vice president would be independent from the national legislature; state legislatures could opt to have voters choose the electors, which assured that both states and the people were involved in the president’s selection; and large states were provided with an appropriate advantage in the electoral college because their populations assured they would have a larger number of representatives in the legislature’s “first branch.”
Madison’s plan, with minor changes, was similar to the electoral college system we have today, and while unwieldy, contained benefits for everyone.
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AS FOR THE PRESIDENT’S length of term, delegates also differed, but their views were not intractable.
One delegate suggested the president serve for life so long as he exhibited “good behavior,” a notion that horrified those who feared the similarities to a monarchy and the potential abuses that could accompany it; in fact, trepidation about granting the president the powers of a king permeated the debates. Other members argued that one term would be sufficient; in fact, a proposed single seven-year term appeared on its way to approval until very late in the convention. There were lengthy discussions on the power of the office and how the president could be removed or impeached.
In the end, of course, delegates settled on a four-year term for the president, with no restrictions on reelection. (This would only change in 1951 with the passage of the Twenty-second Amendment, which reads, in part, that “no person shall be elected to the office of the President more than twice”; it was put forth in response to President Franklin Delano Roosevelt’s tenure—he was elected four times.)
Through all of the discussions about a chief executive, the delegates operated on the fundamental principle that the president’s powers should be limited: checks and balances between the president and the legislature should be locked into place; and the legislature, the body closest to the people, should retain the lion’s share of the influence in the new government. The president would administer and “faithfully execute” the laws passed by Congress, would serve as commander in chief—though only Congress could declare war—and could appoint judges and make treaties, but only subject to the Senate’s “advice and consent.” Legislation passed by Congress—and only Congress could do so—would not become law until the president signed it, and he could veto proposed legislation with the stroke of his pen. However, his veto could be overridden if two-thirds of the Congress in each house agreed. And ultimately, it was the legislature who could try, convict, and remove—impeach—a president for treason, bribery, or “other high crimes and misdemeanors.”
Gouverneur Morris, though an outspoken advocate for a strong national president, nonetheless reminded his colleagues of the importance of providing the people, through their legislators, with appropriate checks and oversights on the president. “This magistrate is not the King,” he said, “but the prime-minister. The people are the King.”
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DELEGATES ALSO AGREED WITH the concept of a national judiciary but struggled to fully define its powers and its relationship with the other branches of government—part of the convention’s constant tug to find equilibrium between the simultaneous concepts of checks and balances and separation of powers.
In some ways the creation of a judiciary was almost a constitutional afterthought; delegates believed that establishing the roles of the legislature and executive were far greater priorities. Ultimately, Article III of the Constitution created a single Supreme Court and “such inferior courts as the Congress may from time to time ordain and establish.” The federal judiciary would have jurisdiction over all cases “arising under this Constitution.” Article III also made clear that, with the exception of impeachment proceedings, the “trial of all crimes … shall be by jury.”
Much more fuzzy, however, and certainly not delineated in the Constitution’s section on the judiciary, was whether the Supreme Court would have the right to declare federal or state laws unconstitutional or contrary to the law of the land. Many delegates adhered to this principle, but several vocal ones feared judicial overreach. Nathaniel Gorham of Massachusetts argued that judges did not possess any special expertise that would give them the right to veto legislation. Luther Martin of Maryland added that “a knowledge of mankind, of legislative affairs, cannot be presumed to belong to a higher degree to the judges than to the legislature.” Others had faith in a strong, independent judiciary and saw it as essential to checking the power of Congress or the president. Connecticut’s Oliver Ellsworth offered a harbinger of the future role of the judiciary. He wrote “that if the united States … make a law which the Constitution does not authorize, it is void, and the judicial power, the national judges, who to secure their impartiality are to be made independent, will declare it to be void.”
Delegates, however, included no direct language about the judiciary’s ability to declare a law unconstitutional. Such power would emanate from the judiciary itself, but not until 1803, when the Supreme Court ruled for the first time that one of Congress’s laws was unconstitutional in the landmark Marbury v. Madison case.
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THE CONVENTION WELCOMED THE long-awaited New Hampshire delegation on July 23, and three days later, members decided they were far enough along to refer all of their work to a five-member Committee of Detail, whose responsibility would be to organize the various resolutions into a coherent document. The committee was not charged with writing a final document, but with integrating and collating the decisions of the past seven weeks, or to frame “a constitution comfortable to the resolutions passed by the Convention.” Once the committee was named, the convention adjourned for two weeks and the other delegates rested.
When members reconvened on August 6, the Committee of Detail had prepared a draft, and delegates further debated new issues and revisited old ones, all of which generated additional changes to the Constitution: slavery, impeachment, the powers and limitations of the presidency, the relationship between the House and the Senate, the powers of Congress, and even where the seat of government would be located. For the latter issue, they agreed, but only after intense debate, to create a ten-mile-square “federal district” that would not be part of any existing state. In addition, delegates settled on nine states as the number needed to ratify any finished Constitution.
In mid-September, Virginia’s George Mason raised the issue that the draft Constitution did not include a bill of rights, wishing that such an enumeration of government’s limits and the people’s rights “had prefaced” the document. He said such a listing of rights would “give great quiet to the people, and, with the aid of the state Declarations, a bill might be prepared in a few hours.” Shockingly, not a single state delegation supported the idea. Delegates did not address the reasons why at the time, though later, during ratification discussions, Pennsylvania’s James Wilson defended the convention’s decision, asking, “Who will be bold enough to undertake to enumerate all the rights of the people?” The danger of trying to do so, he said, was that “if the enumeration is not complete, everything not expressly mentioned will be presumed to be purposely omitted.”
James Madison was also dismissive of Mason’s concerns, arguing that because most states had their own bills of rights, a federal guarantee of constitutional rights would be redundant. There were several reasons why George Mason declared late in the debates that he would “sooner chop off my right hand than to put it to the Constitution as it now stands,” and the omission of a bill of rights ranked high on the list.
Eventually, during the ratification debates, Madison and others who opposed the addition of a bill of rights would see the error of their ways; the promise of a strong bill of rights would become critical, not only to ratifying the Constitution but to preserving it—and the American government—against threats to weaken or overturn it. For now, the delegates were coming down the home stretch of their work and were uninterested in getting sidetracked on such an enormous and potentially controversial undertaking.
By the second week of September, the Constitution needed a “last polish,” in the words of one delegate, and the convention assigned the task to a five-member Committee of Style and Arrangement to essentially write the final document. Members selected Madison, Gouverneur Morris, Rufus King, and Alexander Hamilton (who had returned just days earlier)—among the most influential men at the convention—and they were joined by Connecticut’s William Samuel Johnson.
Of this esteemed group, Pennsylvania’s Morris would make the most memorable contribution of all.
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SOMETIMES A MAN’S LEGACY is immortalized with a single action or event rather than an entire body of work.
Such a man was Gouverneur Morris—the delegate with the unusual first name (his mother’s maiden name), whose pronunciation even today is debated by historians (Abigail Adams, who often spelled phonetically, wrote his name as “Governeer,” which is as close as we are likely to get). Morris was as complex and multidimensional as any member of the Constitutional Convention. Full of brashness and brimming with intelligence, Morris possessed great wealth, good looks, a piercing wit, a quarrelsome disposition, a gift for oratory, a flair for writing, a mischievous sense of humor, and a reputation as a swashbuckling philanderer (the last of which he did nothing to discourage).
On the other hand, his unabashed patriotism lent a serious air and a passion to his work. He loved his country deeply and always had. During the Revolutionary War, while a member of the New York Convention prior to his move to Pennsylvania, he was separated from his dying mother, who was still loyal to the Crown. “I would like to be able to console you in your old age—the duty toward a dear mother commands it,” he wrote to her, “but a task of a higher order binds me to the service of my fellowmen.” In addition, the fact that Morris had lived through his own painful physical ordeals often inspired him—his wealth and station in life notwithstanding—to assist the downtrodden and offer a sympathetic ear to others who were suffering through troubles.
And yet, for the many layers that made up his personality, Morris is remembered most for three small words that flowed from his quill, words that generated admiration and controversy in 1787. Along with “all men are created equal” and “life, liberty, and the pursuit of happiness,” these words are today among the most oft-referenced that Americans use to define the essence of their democracy and their constitutional republic form of government.
Morris would have agreed that his decision to pen the words “We the People” was a major step in the development of the new nation. He likely would have also argued that the four words that followed—“of the United States”—demonstrated his true political brilliance and had an equally transformative impact on the nation’s future.
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AT AGE THIRTY-FIVE, Gouverneur Morris would become one of the most admired delegates at the convention and the most vocal of all, speaking more than 170 times during the summer of 1787. “No man has more wit—nor can any one engage the attention more than Mr. Morris,” exclaimed South Carolina’s William Pierce.
For certain, Morris commanded attention for his words, his ideas, his startling audacity, but also for his physical appearance, which was a reminder to delegates of what he had overcome. When Morris was just a boy, he had tipped a kettle of boiling water onto his right side, burning his arm badly. Doctors, who feared gangrene, managed to save the arm, but the limb was badly disfigured. Then, at age twenty-eight, he was mounting a carriage in Philadelphia when the horses bolted. Morris was thrown and his left leg was caught in the spokes of the wheel, crushing his ankle and fracturing bones in his leg. The two physicians who treated him—Morris’s own doctor was out of town—recommended immediate amputation as the only means to save his life, and they removed the leg below the knee. Neither Morris’s burned arm nor his wooden peg leg slowed him down, “except when he occasionally slipped on muddy cobblestones,” noted his biographer, Richard Brookhiser. Rather, the injuries “reminded him what he lacked.” The “inescapable mark of two heavy blows” enabled Morris to adopt a philosophy of compassion toward others and an ability to enjoy life to its fullest—no one knew what lurked around the next corner.
Morris’s humor was an outgrowth of this thinking. When a friend visited him the day after the amputation and offered Morris a lengthy pep talk on how the loss of his leg could actually build his character and strengthen his moral fiber, Morris replied: “My good sir, you argue the matter so handsomely and point out so clearly the advantages of being without legs, that I am almost tempted to part with the other.” Morris also never fully refuted and likely took delight in the apocryphal story that circulated after his accident—that he had damaged his leg jumping from a bedroom window, narrowly escaping his lover’s incensed husband.
Quipster or not, serving on the convention’s Committee of Style and Arrangement was serious business, and Morris, who handled the bulk of the organizing and polishing, did his job well. He led the committee as they transformed the resolutions into words, and he did the lion’s share of the work, impressing his colleagues. “The finish given to the style and arrangement of the Constitution fairly belongs to the pen of Mr. Morris,” said James Madison. “A better choice could not have been made.”
Arranging and editing the work of the entire convention was a major task, but most of Morris’s efforts to scrub clean the prose in the main body of the Constitution did not require sustained creativity and did not employ his original words.
The document’s preamble was another story. Morris sensed the importance and profound meaning that Americans would attach to the opening words of this historic document.
For that reason, while he incorporated some words written by others, Morris took it upon himself to make the preamble his own—and he did not disappoint.
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TO START, MORRIS DISCARDED the original preamble developed by the Committee of Detail. Like other introductions to documents and treaties that Congress had approved under the Articles of Confederation, the initial draft preamble in the Constitution mentioned “the people” but only as a means to highlight their relationship to individual states. Thus, the Committee of Detail’s draft preamble began: “We the people of the States of New Hampshire, Massachusetts … etc.,” continuing in a north-to-south geographic order all the way to Georgia. It then continued: “do ordain, declare, and establish the following Constitution for the Government of ourselves and our posterity.”
Morris opted for a lengthier preamble, one that captured the full meaning of what the Constitution was intended to accomplish, and one that immediately established from whence the new government derived its legitimacy and power:
We the People of the United States, in Order to form a more perfect union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Morris’s decision to omit the names of the individual states and replace them with “United States” accomplished the near-impossible: the successful meshing and blending of the priorities of the two major factions and points of view at odds throughout the convention. At first blush, the preamble seemed to advance the nationalists’ point of view. Whereas the Committee of Detail had vested power in the individual states through their residents, Morris’s preamble appeared to vest authority in the people of the entire nation.
Or did it?
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ON SECOND LOOK, MORRIS’S opening words were just vague enough to also placate the states’ rights advocates at the convention; in fact, the preamble’s brilliance lay in its opening ambiguity. When Morris wrote, “We the People of the United States,” was he talking about a brand-new sprawling country called the “United States” to whom the people pledged their fealty? Or was he talking about a confederation of states that was “united” in its efforts to create a new government—hence, the “United States”—perhaps better interpreted as “States United”?
Certainly Morris, Madison, Washington, and others would have preferred that delegates embraced the former interpretation, but the vagueness of the language also allowed states-rights’ advocates to call the preamble their own.
In fact, whether deliberate or not, Morris’s simple and powerful opening words embody the delicate balance between national and state power that provoked such passions during the Senate discussion and remain a cornerstone of our constitutional republic today. In his eloquent defense of the Constitution in The Federalist Papers, James Madison would later describe the Constitution as being “neither a national nor a federal constitution, but a composition of both,” and Morris’s preamble captured this concept in the opening seven words.
Even so, Morris’s “We the People of the United States” phrase would prove controversial and set some tempers aflame during the state ratification debates that followed the approval of the Constitution. “Who authorized them to speak the language of ‘We the People,’ instead of ‘We the States’?” an angry Patrick Henry asked during Virginia’s ratification convention.
But it was clear, as the convention neared its end in Philadelphia, that Morris had captured the essence of the delegates’ thinking. He had spoken the words during the debate on the presidency and his preamble dramatically illustrated the point: “The people are the King.”
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IN THE REMAINDER OF the remarkable preamble, Morris articulates the major themes of the convention and the major goals of the new government with bold clarity. “To form a more perfect union,” a phrase often misinterpreted in contemporary times, meant simply to improve upon the disastrous and largely unworkable Articles of Confederation. The word “perfect” did not carry the absolutist connotation it has today; thus, a “more perfect” union was an understandable and aspirational concept that simply meant America would strive to improve.
“Establish justice” referred not only to the establishment of a national set of legal principles that the courts would enforce; it also signified a level playing field for trade and an overall concept of fairness and human dignity that the Constitution would promote. Morris had the recent memories of Shays’ Rebellion and other civil unrest in mind when he referred to the “domestic tranquility” the Constitution would help ensure.
And when Morris penned the words “provide for the common defence,” delegates recognized the phrase as a way for the national government to protect its citizens against foreign invaders—something no state could do individually—several of whom had either explicitly or, in a veiled way, threatened the young nation’s shores and sovereignty.
To Morris and the other delegates, to “promote the general Welfare” was the culmination of everything that had come before in the preamble—the welfare of the people was the reason for justice, tranquility, and defense. Such “welfare” was defined as establishing the framework for an equitable and peaceful domestic environment, which included the prospects for a robust economic and commerce system that would benefit as many Americans as possible.
Finally, Morris’s powerful last clause, to “secure the Blessings of Liberty to ourselves and our Posterity,” summed up the most important concept that delegates discussed in Philadelphia in both 1787 and eleven years earlier during the debates over the Declaration of Independence. A document that would “secure the Blessings of Liberty” would codify the Declaration’s promise of ensuring the unalienable rights of “life, liberty, and the pursuit of happiness.” Above all else, in both documents, individual liberty and freedom would be the bedrock upon which the new government would rest. All power the government derived would emanate not from the courts or the president or even the national legislature—but, again, from “We the People.”
Thus, Morris’s preamble—a poetic introduction to the new Constitution that lacked the legal authority of the document itself—signaled clearly that not only had delegates created a comprehensive blueprint for governing the young nation, but in so doing, they had fulfilled the promise of the ideas and ideals expressed in America’s sacred founding scripture, the Declaration of Independence.