The Case of the Dishonest Scrivener: Gouverneur Morris and the Creation of the Federalist Constitution

111 Pages Posted: 13 May 2019 Last revised: 15 Jun 2020

Date Written: February 5, 2019

Abstract

At the end of the proceedings of the federal constitutional convention, the delegates appointed the Committee of Style and Arrangement to bring together the textual provisions that the convention had previously agreed to and to prepare a final constitution. Pennsylvania delegate Gouverneur Morris drafted the document for the committee, and, with few revisions and little debate, the convention subsequently adopted the constitution proposed by the Committee. For more than two hundred years, questions have been raised as to whether Morris as drafter covertly made changes to the text in order to advance his constitutional vision, but the legal scholars and modern historians studying the convention have either ignored the issue or concluded that Morris was an honest scrivener. No prior article, however, has systematically compared the Committee’s draft to the previously adopted resolutions or discussed the implications of those changes for constitutional law. This article undertakes that comparison and reveals how many changes Morris made to the text delegates had previously agreed to and how important those changes were (and are). It shows that many of the central elements of the Constitution (including the Preamble; the basic Article I, Article II, and Article III structure; the vesting clauses; the contract clause; and the impeachment clause) were wholly or in critical part the product of the Committee’s work. In total, Morris made fifteen significant changes to the Constitution, and these textual changes advanced his constitutional goals, including strengthening the national government, the executive, and the judiciary; providing the textual basis for judicial review; increasing presidential accountability through an expansive conception of impeachment; protecting private property; mandating that the census report reflect “actual enumeration,” and fighting the spread of slavery. The article also shows that, in central debates in the early republic, Federalists, and, notably, fellow committee member Alexander Hamilton, repeatedly drew on language crafted by the Committee as they fought for their vision of the Constitution. In revising the constitutional text, Morris created the basis for what was to become the Federalist reading of the Constitution.

As drafter, Morris was seeking to reverse losses he had suffered on the convention floor, and he used language that did not alert his opponents to the changes in meaning he was seeking to effect. Because the changes were subtle, Madison and Jeffersonian Republican were, like Hamilton and the Federalists, able to appeal to text in the great constitutional battles of the early republic. Critically, in virtually every area, modern originalists have embraced the Republican reading as reflecting the original understanding, but this Article both reveals the now wholly or largely disregarded Federalist reading of the constitutional text crafted by Morris – including the Preamble (which they saw as a grant of substantive power), the Article I and Article II vesting clauses (which were contrasted to argue for expansive executive power), the Article III vesting clause (which they read to mandate the creation of lower federal courts), the contracts clause (which covered public, as well as private, contracts), the impeachment clause (which they read to cover both non-official and official acts), and the law of the land clause (used as the basis for judicial review), as well as other constitutional clauses - and argues these readings are better able to explain the complete text than competing Republican readings because Republican readings repeatedly ignore words, phrases, and punctuation or treat text as lacking substantive meaning while the Federalist readings are able to give effect to Morris’s – and the Constitution’s - words.

Keywords: Gouverneur Morris, Committee of Style

Suggested Citation

Treanor, William Michael, The Case of the Dishonest Scrivener: Gouverneur Morris and the Creation of the Federalist Constitution (February 5, 2019). Michigan Law Review, Vol. 119, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3383183 or http://dx.doi.org/10.2139/ssrn.3383183

William Michael Treanor (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States
202-662-9030 (Phone)

HOME PAGE: http://www.law.georgetown.edu/faculty/treanor-william-m.cfm

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