THE CASE OF THE DISHONEST SCRIVENER: GOUVERNEUR MORRIS AND THE CREATION OF THE FEDERALIST CONSTITUTION.

• Author: Treanor, William Michael

This Article undertakes that comparison. It shows that Morris made fifteen significant changes to the Constitution and that many of the Constitution's central elements were wholly or in critical part Morris's work. Morris's changes strengthened the national executive and judiciary, provided the textual basis for judicial review, increased presidential accountability through an expansive conception of impeachment, protected private property, mandated that the census report reflect "actual enumeration," removed the constitutional text suggesting that slavery was just, and fought slavery's spread.

This Article also shows that Morris created the basis for the Federalist reading of the Constitution. Federalists--notably including fellow Committee member Alexander Hamilton--repeatedly drew on language crafted by Morris as they fought for their vision of the Constitution. Because the changes Morris made to the Convention's agreed language were subtle, both Republicans and Federalists were able to appeal to text in the great constitutional battles of the early republic. Modern originalists claim that the Republican reading reflects the original understanding of the Constitution, but this Article argues that the largely dismissed Federalist reading explains words, phrases, and punctuation that the Republican reading ignores or renders unintelligible. By contrast, the Federalist reading of 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 they read to cover public as well as private contracts), the Impeachment Clause (which they read to cover both nonofficial and official acts), and the "law of the land" provision (which they construed as a basis for judicial review) gives effect to Morris's--and the Constitution's--words.

TABLE OF CONTENTS INTRODUCTION I. THE COMMITTEE OF STYLE AND MORRIS'S CONSTITUTION A. The Membership of the Committee B. Gouverneur Morris C. Morris's Draft and the Work of the Committee D. The Convention's Consideration of the Committee of Style's Draft and the Committee's Punctuation of the General Welfare Clause E. Scholarship on the Committee of Style II. GOUVERNEUR MORRIS'S CONSTITUTIONAL VISION A. Nationalism B. The Presidency 1. Presidential Powers 2. Impeachment C. The Judiciary 1. Lower Federal Courts 2. Judicial Review D. Property 1. Morris's Commitment to Property 2. The Contract Clause E. Slavery and New States 1. Slavery 2. New States III. THE WORK OF THE COMMITTEE OF STYLE A. The Preamble B. Three Articles for Three Branches and Three Vesting Clauses C. Qualifications Clause D. Enumeration Clause E. Contract Clause F. Presidential Succession Clause G. Impeachment Clauses 1. High Crimes and Misdemeanors 2. Trial by the Senate H. The Federal Judiciary 1. Judicial V esting Clause 2. Law-of-the-Land Provision I. Slavery and New States 1. Slavery and the Fugitive Slave Clause 2. New States Clause J. Engagements Clause IV. THE SIGNIFICANCE OF THE COMMITTEE OF STYLE'S CHANGES A. Drafters' Intent Originalism B. Relevance of the Committee of Style's Text to Current Controversies 1. Supreme Court Case Law and Academic Commentators on the Committee of Style 2. The Text, the Construction Zone, and the Federalist Constitution CONCLUSION INTRODUCTION

That instrument [the Constitution] was written by the fingers, which write this letter. --Gouverneur Morris to Timothy Pickering (1)

The finish given to the style and arrangement of the Constitution fairly belongs to the pen of Mr. Morris; the task having, probably, been handed over to him by the chairman of the Committee, himself a highly respectable member, and with the ready concurrence of the others. A better choice could not have been made, as the performance of the task proved.

--James Madison to Jared Sparks (2)

Gouverneur Morris was probably the most brilliant member of the Pennsylvania delegation and of the convention as well. Sharp-witted, clever, startling in his audacity, and with a wonderful command of language, he was admired more than he was trusted....

--Max Farrand, The Framing of the Constitution (3)

After more than three months of debate--including a month debating the final draft of the Constitution--the delegates to the Constitutional Convention elected "a Committee of five to revise the style of and arrange the articles agreed to by the House." (4) The chair of the Committee asked delegate Gouverneur Morris to prepare a draft constitution, which Morris did over the course of three days. With limited debate and minor changes, Morris's draff was adopted by the Convention and became the Constitution submitted to, and ratified by, the states. (5)

Largely forgotten today, Morris had been a dominant figure at the Convention. He fought for a constitutional vision that largely anticipated the Federalist agenda in the early republic: he pushed for a national government with expansive powers; he wanted a powerful executive who would be held accountable by a Congress with broad impeachment powers; he supported a strong federal judiciary, including judicial review of federal and state legislation and the creation of lower federal courts; he pressed for strong protection for private property; and he denounced slavery with more fierceness than any other delegate to the Convention. (6)

Morris's forceful views and rhetorical gifts aroused the suspicion of his contemporaries. During a House debate on the scope of the General Welfare Clause in 1798, Congressman Albert Gallatin charged Morris with deceptively (and subtly) changing the text of that clause. Gallatin accused Morris of converting a comma into a semicolon in order to convert a limitation on the taxing authority into a broad positive grant of power, but delegate Roger Sherman caught the "trick" and restored the original punctuation. (7)

Gallatin's charge has been noted by a range of modern scholars, and it has been discussed in the context of academic work on individual clauses. (8) Yet both scholars studying the Convention and Morris's biographers have either ignored the charge or concluded that Morris was an honest scrivener. (9) Remarkably, no scholarly work has systematically compared the provisions referred to the Committee of Style with the draft the Committee produced.

Comparison of the document Morris and the Committee produced with the text previously approved by the Convention reveals a series of crucial (if typically subtle) changes, including changes to some of the most prominent part of the Constitution. "We the People of the United States"--the opening words of the Preamble and undoubtedly the most famous phrase in the document--was the Committee's creation, as were the Preamble's substantive ends: "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...." The Committee reinserted the Contract Clause into the Constitution--it had been rejected on the floor--and altered the clause's scope, providing a textual basis for it to reach public contracts. It created the familiar structure of the Constitution: Article I (legislative), Article II (executive), and Article III (judicial). It differentiated the Article I Vesting Clause from that of Article II and revised the Vesting Clauses of Articles II and III. It altered, in important (though unobvious) ways, the language of the law-of-the-land provision, the Engagement Clauses, the Qualifications Clause, the Impeachment Clause, the Census Clause, the Presidential Succession Clause, and the New States Clause. Finally, the Committee removed the word "justly" from the Fugitive Slave Clause. (10)

Morris's contemporaries--apart from Gallatin--failed to recognize the significance of Morris's changes. Yet they were of immediate consequence. During the great constitutional controversies of the Washington and Adams administrations, Federalists repeatedly invoked language that Morris had placed in the Constitution. Morris authored the constitutional text that Federalists invoked in the debates over the Judiciary Act of 1789, the Sedition Act, the creation of the Bank of the United States, the presidential succession act, state statutes repealing land grants, the Quaker antislavery petitions, and the first impeachment case to be considered by the House and Senate, as well as the early cases establishing judicial review. Most notably, Federalists read the Preamble, now treated as hortatory or as a gloss on powers otherwise granted Congress, as a separate (and capacious) grant of power.

Even though the Committee's mandate was limited to style and arrangement, Morris covertly made fifteen substantive changes to the text. These changes advanced ends that he had unsuccessfully fought for on the Convention floor. The man who drafted the final version of the Constitution did not limit his work to matters of style and arrangement. He was a dishonest scrivener.

The primary focus of this Article is historical. Part I discusses the Committee of Style, its membership, and its mandate as well as presenting a minibiography of Morris. Part I also discusses the scholarly consensus that as Professor Michael Klarman observes in his leading account of the origins of the Constitution the Committee simply "put the finishing touches on the Constitution." (11) Part II studies Morris's constitutional philosophy (an almost unexamined topic) and highlights the ways he failed to achieve his goals during floor debates before the Committee of Style began its work.

Part III is the heart of the Article. It discusses the fifteen substantive changes Morris made and how they advanced goals that were central to his constitutional vision. This Part also shows the role of those changes in early...