6. Conclusions on Document IV
I have dwelled on Randolph's draft both for its intrinsic importance and because it illustrates something significant about the historiography of the Convention. It is difficult to find accounts that grant his draft more than a sentence or two. But it should now be clear that this is a document of the utmost importance. It introduces many striking innovations--the enumeration of powers, the protection of the slave trade, the rules on exports and navigation acts, the granting of appointment powers to the Senate, the specification of the jurisdiction of the federal courts. Moreover, none of the most widespread theories about the Committee of Detail is able to survive even a casual encounter with Randolph's document. The view that the Committee was a mere intermission is plainly untenable. The view that the Committee was "a committee of Wilson and four others" is equally untenable. Of the major innovations I have just listed, Wilson would have opposed all but the last. At this stage there is no clear sign of his participation, even on minor matters. And as for the theory that Rutledge rather than Wilson dominated (or even "hijacked") the sessions, it is of course true that the Committee acted to protect the interests of the deep South; and it must be the case that Rutledge was deeply involved. (133) But the first appearance of the objectionable provisions is in Randolph's hand, not Rutledge's.
It is undeniable that Randolph was something of a "chameleon," that he was cantankerous, and that in the end he refused to sign the Constitution. Perhaps for these reasons most historians place him far down in the rankings of delegates. In his most visible role at the Convention, when he opened the proceedings by presenting the Virginia Plan, he is generally viewed as merely Madison's mouthpiece. But if the analysis given here is correct (and complete certainty is not possible) then Randolph produced Document IV largely on his own; and this makes him the primary author of the jurisdictional provisions of Article III. He more broadly has the honor, not only of having presented the Virginia Plan, but also of having written the first draft of the Constitution. But it is a very mixed honor. His positive contributions, though of fundamental importance, are overshadowed by the provisions on slavery. Moreover, he had the opportunity to follow the precedent of the state constitutions, and to begin the national Constitution with a "preamble," i.e. a Bill of Rights. That would have been no radical step; and, as Mason subsequently pointed out to the Convention, the job could have been accomplished "in a few hours." (134) But Randolph consciously chose a different course: a decision that nearly derailed the ratification of the Constitution. Ironically, he and Mason both refused to sign the final document: and Mason's refusal was in large measure based on the absence of a Bill of Rights. It is these facts that give the unexplained presence of Randolph's draft among Mason's papers a certain poignancy.
We now come to the Wilson drafts, which make up the rest of the surviving documents from the Committee of Detail. (Of all the Committee documents, only the Randolph draft is not in Wilson's handwriting.) The next document is numbered by Farrand as "Document V." This is misleading. It is in fact written on two different sheets of paper, which are located in distinct parts of the Wilson archive: Farrand has spliced them together to create a single document. (135)
Wilson's normal practice in preparing the Committee drafts was to begin with a large folio sheet, which he folded in half across its width. This gave him a signature of four pages; frequently he would write only on the right half of the page, allowing ample room for subsequent additions. His two full drafts of the Constitution consist each of several such signatures. In this instance, he began writing on the outside front page of the signature, leaving the left-hand side of the page blank. There are numerous insertions and re-writings. The page (cleaned up, with some deletions and false starts omitted) began as follows:
The People of the States of New Hampshire &C, ^already confederated united and known by the Stile of the "United States of America"^ do [begin strikethrough]agree--upon[end strike through] ordain ^declare^ and establish the following Frame of Gov. as the Constitution of the said United States. (136) He then inserted a "We" before "The People." This is the first occurrence of what were to become the famous opening words of the Constitution.
There follow two brief paragraphs dealing with the national legislature, whose two chambers he designates (probably following the terminology of the Pinckney Plan) as the "House of Representatives" and the "Senate." In the wide margin he experiments with the wording. This folio sheet breaks off halfway down the page. On both sides of a separate, smaller sheet of paper (headed "The Continuation of the Scheme") he lists the topics remaining to be treated. The ordering is the usual one: legislature--executive--judiciary--miscellaneous. The sheet is a mere laundry list; no details are given.
The two sheets are only a sketch, and have the look of something prepared by Wilson for his own purposes, possibly in the days before the Committee first met. There is no sign of contributions from other members of the Committee and there is also no sign that he had seen the Randolph draft. The first sheet contains a property requirement for the House of Representatives (of 50 acres of land). Whether this was to be a restriction on the voters or on the candidates is not clear. The provision is difficult to reconcile with Wilson's general position against limitations on the franchise; but Wilson here would have been constrained by the explicit instructions of the Convention. (137)
From today's perspective, the most interesting part of the document is the opening words. Wilson explicitly grounds the Constitution in the people of the states, rather than in the states themselves. The idea of popular sovereignty was central to Wilson--more central, perhaps, to Wilson than to any other delegate and certainly more than to any other member of the Committee of Detail. (138) There is a subtle ambiguity in his formula, "We the People of the States of New Hampshire &c." Is this People a single collectivity (i.e. the totality of inhabitants of these thirteen states)? Or is it instead thirteen separate collectivities? There is no question about Wilson's own view, and the formulation "We the People of the United States" would have been closer to his actual position. But at this stage of the proceedings it would have been pressing matters to omit the states altogether. And perhaps he already foresaw that, unless ratification by the states was to be unanimous, his formula would need to be changed.
1. General Remarks
The documents Farrand labels VI, VII, and VIII need to be treated as a unit. Draft VI/VIII (as I shall designate it) is a proper draft of a Constitution--the second after Randolph's, and the first clearly produced by the Committee. It is in Wilson's hand and incorporates elements both from the Randolph draft and from the earlier Wilson sketch. Unfortunately it is not complete. It originally consisted of three folio sheets, each folded into a four-page signature. But the middle signature has disappeared.
We are thus left with three pieces. Document VI is the first signature. It consists of four pages and deals principally with the composition and election of the House of Representatives and Senate. Document VIII is the third signature; it deals primarily with the "miscellaneous" category of topics--ratification, amendments, and the like. It has one curious feature. The first sheet of Wilson's Document V filled only the front half-page of a four-page signature. The thrifty Wilson flipped the signature over to begin writing Document VIII. This has the consequence that the first version of "We the People" in Document V appears upside-down on the last page of Document VIII.
The missing middle signature would have contained, on four pages, the enumeration of congressional powers, as well as the treatment of the presidency and the judicial branch. In the Wilson archive, placed between the first and the third signatures, was a further document, also written in Wilson's hand. This document (Document VII) Jameson identified as a set of extracts from the New Jersey Plan, followed by a set of extracts from the Pinckney Plan. The two sets of excerpts are written onto a single four-page folio signature; the passages deal with the powers of Congress, and with the executive and judicial branches, i.e. precisely the topics that would have been treated in the missing signature. It is highly unlikely that any of Wilson's descendants would have known enough about the workings of the Committee of Detail to have expertly placed this sheet precisely where Jameson found it, between the two surviving sheets of the Committee draft. This suggests that the placement was made by Wilson himself, and perhaps that the missing middle sheet had already disappeared during his lifetime: but there is no way to be sure.
Draft VI/VIII adopted Wilson's opening words, originally in the form, "We the People and the States of New Hampshire &C." But Wilson altered that formulation back to his original (and far more Wilsonian) "We the People of the States." The draft also provides that the new government is to be called the "United People and States of America"--also a Wilsonian formula, but this time with echoes of the Roman republic. (139)
A few general remarks about VI/VIII are in order. The entire draft is in Wilson's hand. There are in particular no annotations by Rutledge. Only on the somewhat messy last page of the first signature do we find a number of items checked off (again, in Wilson's hand). It is often said...