80 CBJ 367. CONNECTICUT'S MOST MEMORABLE 'GOOD FOR NOTHING RASCAL' IN THIS 'LAND OF STEADY HABITS'.

• Author: BY JACOB D. ZELDES*

Connecticut Bar Journal

Volume 80.

80 CBJ 367.

CONNECTICUT'S MOST MEMORABLE "GOOD FOR NOTHING RASCAL" IN THIS "LAND OF STEADY HABITS"

CONNECTICUT BAR JOURNAL

Volume 80, No. 4CONNECTICUT'S MOST MEMORABLE "GOOD FOR NOTHING RASCAL" IN THIS "LAND OF STEADY HABITS"BY JACOB D. ZELDES*THE YEAR IS 1815.

IT IS TWENTY-EIGHT YEARS after the ratification of the constitution of 1787 - "The Miracle at Philadelphia"(fn1) - which produced a federal Constitution based on the fundamental concept that "a national governt. ought to be established consisting of a supreme Legislative Executive & Judiciary."(fn2) This was a concept foreign to Connecticut then and for more than three decades after the Philadelphia Convention. Notwithstanding the reticence of Connecticut to accept a tripartite government for itself, Connecticut's three delegates, Oliver Ellsworth, William Samuel Johnson, and Roger Sherman,(fn3) had significant roles in bringing about a federal government. It is Sherman who is given major credit for the

í---------í* Of the Bridgeport Bar. The author is indebted to Jennifer Y. Montgomery, formerly of the Bridgeport Bar and now law clerk for Judge Kermit E. Bye of the U.S. Court of Appeals for the Eighth Circuit, for her extensive and thorough research and assistance.

This is the second in a series of essays about the most memorable events or unusual crimes in Connecticut criminal law. The first, Connecticut's Most Memorable Nolle, 68 CONN. B.J. 443 (1994), was an account of former Fairfield County State's Attorney and later Attorney General of the United States Homer Stille Cumming's decision not to prosecute an indigent World War I veteran felt by the press, the public, and state officials to have murdered a popular Bridgeport priest in 1924. In 1995, the Deputy Attorney General of the United States distributed the article "to all professional responsibility officers" in the United States Attorneys offices throughout the country with a memorandum stating as a "general reminder ... that the facts of the case may not always be as they appear at first glance." Editor's Note, 69 CONN. B.J. 158 (1995).

1 CATHERINE DRINKER BOWEN, MIRACLE AT PHILADELPHIA: THE STORY OF THE CONSTITUTIONAL CONVENTION MAY TO SEPTEMBER 1787 (1986).

2 This language is from James Madison's notes of the proceedings at the convention. See James Madison's notes for May 30, 1787, available at http://www.yale.edu/lawweb/avalon/debates/530.htm (last visited on July 11, 2006)(hereinafter "James Madison's notes").

3 Sherman was a self-made man in the shoemakers' trade. He then served as a lawyer, as a Superior Court judge, as a delegate to the Continental Congress, as mayor of the City of New Haven, as Representative in Congress, and finally as a Senator. He holds the unique distinction of being the only citizen of the original thirteen colonies to sign the Continental Association of 1774, Declaration of Independence, Articles of Confederation and the U.S. Constitution. ALBERT E. VAN

DUSEN, CONNECTICUT: A FULLY ILLUSTRATED HISTORY OF THE STATE FROM THE SEVENTEENTH CENTURY TO THE PRESENT 177-78 (1961). Less well known is the fact

that he also signed the document known as the "Olive Branch Petition" seeking peace with England before the Revolutionary War. The "Olive Branch" was adoptso-called "Connecticut Compromise," which broke the impasse between the large and small states by providing equal representation in the Senate and proportional representation in the House of Representatives.(fn4) Connecticut may have saved the federal Constitution, but Connecticut, with its reluctance to accept for itself a separation of governmental powers, objected to establishing a nation with three separate branches of government. Connecticut voted "no" to the following resolution:

resolved in Committee of the whole that a national governt. ought to be established consisting of a supreme Legislative Executive & Judiciary.

Steeped in the resolve of an all powerful general assembly, Sherman's "no" vote for Connecticut - cast on June 1, 1787 on his third day of the Convention - is explained by Sherman's firm belief that

"An independence of the executive on the supreme legislative was in his opinion the very essence of tyranny" . . . "the national legislature should have the power to remove the executive at pleasure."(fn5)

Sherman also spoke against including a Bill of Rights - the only delegate to do so, according to James Madison's

í---------í3 (cont.) by the First Continental Congress as a petition to the King wherein "it blamed all the trouble on the ministers of George III, and begged His Majesty to call them off before it was too late." The King was not persuaded as is evidenced by the events in Lexington on April 19, 1775. Randolph G. Adams, A Study of the Olive Branch Petition, in THE "OLIVE BRANCH" PETITION: TO KING GEORGE III OF

ENGLAND FROM THE SECOND CONTINENTAL CONGRESS SIGNED BY FORTY-SIX OF ITS MEMBERS; AN AUCTION PAMPHLET (Amer. Art Assoc., 1932).

4 Sherman's compromise may have been significant in saving the Constitution. Popular historian Garry Wills suggests that the significant compromise was not just related to the small state versus the large state issue, but was related to the slave state versus non-slave state issue. The compromise, Wills says, related to the so-called "three-fifths clause" by which each slave held in the United States would, for determining the number of representatives in Congress, constitute three-fifths of a person, but would have no voting rights. GARRY WILLS, "NEGRO PRESIDENT" JEFFERSON AND THE SLAVE POWER 2 (2003). Although Wills is generally supportive of Jefferson, he is quite critical of him in his reliance on the three-fifths clause in the 1800 presidential election. Without counting what Wills termed the "slave bonus," Jefferson would not have been elected and Adams would have returned to office. Id. at 2-3.

5 COLLIER AND COLLIER, DECISION IN PHILADELPHIA, 208-209 (1986). The

phraseology of the resolution quoted comes from James Madison's notes taken at the Constitutional Convention. See James Madison's notes for May 30, 1787, available at http://www.yale.edu/lawweb/avalon/debates/530.htm (last visited on July 11, 2006). See infra note 21.

notes from the Convention. The great Connecticut Yankee wrote that frequent elections were "a much greater security than a declaration of rights or restraining clauses on paper."(fn6) Such was his position on a tripartite government as well. By 1787, there was a wide national consensus on the constitutional theory holding that legislatures must be restrained by written constitutions.(fn7) But Sherman still put his faith in a system which should be restricted only by common-law tradition and held in check by frequent elections.(fn8)

í---------í6 Christopher Collier, The Common Law and Individual Rights in Connecticut Before the Federal Bill of Rights, 76 CONN. B.J. 1, 54 (2002)(hereinafter COLLIER I). Collier, Professor of History Emeritus at the University of Connecticut, Emeritus Connecticut State Historian, Vice President of the newly formed Connecticut Supreme Court Historical Society, and a Pulitzer Prize-nominee for his book Roger Sherman's Connecticut, is the premier authority on Connecticut legal history and has written numerous scholarly works on Connecticut and federal constitutional history. I have relied heavily on Collier's extensive writings and am indebted to Professor Collier for his review and suggestions for improvement of the initial draft of this essay. Of course, any errors are mine.

7 Id. at 54.

8 Id. There has been several recent articles published in the American Political

Science Review comparing Sherman's work at the Convention with Hamilton's: The Constitution is the by-product of expedient accommodations forced on Madison. Madison sought national authority independent of state governments and a swift victory for population-based congressional representation. Delegates from economincally disadvantaged states opposed these plans, seeking instead to nationalize only selective public goods, to maintain most state policy autonomy, and to minimize contingencies imposed by other governments. Connecticut's delegates, particularly Roger Sherman, played a pivotal role in spoiling Madison's agenda and altering his substantive plans for Constitutional design. Madison's Convention opponents are responsible for a Constitution that nationalized only enumerated public goods and imposed potentially high transaction costs on any further nationalization of policy authority. They helped make federalism a lasting political weapon used to win substantive policy outcomes.

David B. Robertson, Madison's Opponents and Constitutional Design, 99 AMER. POL. SCI. REV. 225 (2005).

Robertson (2005) and Rakove (1996) argue that Roger Sherman was surprisingly influential at the Constitutional Convention. Using empirically estimated ideal points, we show that Sherman was a pivotal voter from a pivotal state. We also demonstrate that if the votes were tallied by individual delegates, rather than being grouped by the home state, then Sherman would have been less pivotal. This suggests that the voting procedures adopted at the Constitutional Convention may have affected Sherman's ability to get his interests enacted. Such institutions might have been more responsible than his legislative ability for making Sherman effective.

Keith L. Dougherty & Jac C. Heckelman, A Pivotal Voter from a Pivotal State: Roger Sherman at...