Eighth Annual Salmon P. Chase Lecture. Gouverneur Morris and the Drafting of the Federalist Constitution

• Author: William Michael Treanor
• Position: Dean and Executive Vice President, Paul Regis Dean Leadership Chair, Georgetown University Law Center
• Pages: 1-24

EIGHTH ANNUAL SALMON P. CHASE

LECTURE

Gouverneur Morris and the Drafting of the

Federalist Constitution

†

WILLIAM MICHAEL TREANOR*

TABLE OF CONTENTS

THE FORGOTTEN GOUVERNEUR MORRIS . . . . . . . . . . . . . . . . . . . . . . . . . 3

JAMES MADISON - THE FATHER OF THE CONSTITUTION? . . . . . . . . . . . . . 4

WASHINGTON’S FRIENDSHIP WITH THE MORRISES AND HIS HISTORIC

DECISION ABOUT WHERE HE STAYS DURING THE CONVENTION . . . . . . . 5

THE VIRGINIA-PENNSYLVANIA PLAN. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

THE KEY SPEAKERS AND DRAFTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

WAS MORRIS AN HONEST DRAFTER? . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

THE SUPREME COURT AND THE COMMITTEE OF STYLE . . . . . . . . . . . . . . 10

GOUVERNEUR MORRIS AND THE MILITARY CAPITAL OF THE REVOLUTION 11

THE PENMAN OF THE CONSTITIUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

UNDERSTANDING GOUVERNEUR MORRIS . . . . . . . . . . . . . . . . . . . . . . . . . 13

THE PREAMBLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

THE CONTRACT CLAUSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

† I have adapted this essay from the Eighth Annual Salmon P. Chase Distinguished Lecture, which I

gave on November 17, 2021. The legal analysis in that lecture drew on my article, William Michael

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

Constitution, 120 MICH. L. REV. 1 (2021). Any quotes not footnoted is this essay are from that article.

The slides used in the talk are referenced in this essay’s footnotes.

* Dean and Executive Vice President, Paul Regis Dean Leadership Chair, Georgetown University

Law Center. © 2023, William Michael Treanor.

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JUDICIAL REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

LOWER FEDERAL COURTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

VESTING CLAUSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

SLAVERY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

MADISON’S VICTORY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

The Salmon P. Chase Colloquium series has had two themes: One is great moments

in constitutional law, and the other is people who have been forgotten but should not

have been. This colloquium is primarily in the latter category—it is about a forgotten

founder of the Constitution. But the Constitution has more than one forgotten founder.

I did a Google search this afternoon for “Forgotten Founder” and there are a whole se-

ries of books on various people who are the Constitution’s Forgotten Founder. So the

Chase Colloquium series has another decade of subjects: Luther Martin, George

Mason, Charles Pinckney, Roger Sherman. There is a lot to work with.

Gouverneur Morris is the one “forgotten founder” who really shouldn’t be for-

gotten. The classic picture of Gouverneur Morris is actually a joint picture

painted by Charles Willson Peale in 1783. Gouverneur Morris is on the left, and

Robert Morris is on the right.

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Referencing “Gouverneur Morris and Robert Morris,” Charles Willson Peale, oil on canvas

(1783). Available at https://www.pafa.org/museum/collection/item/gouverneur-morris-robert-morris

[https://perma.cc/4GL6-KTUJ].

They weren’t relatives, despite the shared last

name, but they were very close. Gouverneur Morris and Robert Morris were busi-

ness partners during the Revolutionary War. Robert Morris, who is kind of the

Jeff Bezos of the 1780s, was as close as the United States had to a president dur-

ing the Revolutionary War. He was the head of finance and Gouverneur Morris

was his number two. I will be focusing today on Gouverneur Morris’s work on

the Committee of Style at the end of the Federal Constitutional Convention.

As the Federal Constitutional Convention is drawing to close, it’s hot and

everybody’s tired. It has been four weeks since they had a draft of the

Constitution, which was composed by the Committee of Detail. There has been a

month of debate and votes up, votes down. There’s no draft constitution, even

though the Convention is near the end of its work. So, the delegates together form

a committee—the Committee of Style and Arrangement—and over three days this

committee drafts the Constitution with Morris as the lead drafter. And then, very

hurriedly, the Convention reviews it, almost completely adopts it, and goes home.

The work of the Committee is supposed to be polishing the Constitution—taking

what’s already been agreed to and putting it in a final document.

But what I argue in a recently published article in the Michigan Law Review—

the basis of this talk—is that, as the drafter on the Committee of Style, Morris

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2 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 21:1