The Miracle of the Constitution

C. WALLER BARRETT

Address to May 1977 Annual Meeting, Supreme Court Historical Society

In 1966 an extremely talented writer, Catherine Drinker Bowen, published an exciting and absorbing book Miracle at Philadelphia. She had previously written biographical works on Justice Holmes, John Adams and Sir Edward Coke. She justly called the creation of the Constitution a miracle but as she, herself said, she was not the first to do so. In February of 1788, George Washington wrote to Lafayette "It appears to me, then little short of a miracle, that the delegates from so many different states (which states you know are also different from each other)–should unite in forming a system of National Government, so little liable to well founded objections."

James Madison, in writing to Thomas Jefferson, also called it a miracle. As one considers the matter, the realization comes that the miracle of the Constitution was only the last of a series. In fact, the whole circumstances of the founding of the new nation take on a miraculous aspect. The meeting at Philadelphia was the last act in a dramatic sequence of events that occurred from 1776 to 1787. The first impetus to national union had been given by the Declaration of Independence.

The first move toward a constitutional convention took root in the supple mind of Jefferson's neighbor, James Madison. He had no trouble in enlisting George Washington in the cause. Although Madison had been brooding on the State of the Confederation for some time his ideas began to take definite form at a Commission held in Annapolis in 1786 to settle a controversy between Maryland and Virginia over the navigation of the Potomac River. There Madison met Alexander Hamilton. Hamilton was to become Madison's principal collaborator in The Federalist Papers published in 1788 which proved to be a powerful tool in securing ratification of the Constitution. This was a fateful meeting as Hamilton has been called–"the most potent single influence toward calling the convention of 1787."

In any event, Hamilton and Madison between them influenced the Annapolis Commission to recommend to Congress (the words are Hamilton's) "that all thirteen States appoint delegates to convene at Philadelphia on May 2nd next, to take into consideration the trade and commerce of the United States." This phrasing was a slightly deceptive description of what the Convention could attempt but the collaborators knew what they were about. They had no intention of exciting alarms from New England to Georgia.

But, let's get back to our series of miracles. Was it not extraordinary that a young, thirty-three year old backwoods lawyer from Albemarle should be chosen to draft that fateful Declaration of Independence? But, whoever else in that Continental Congress of 1776 could have composed the inspired flow of words that give the document its immortality? This was followed by another miracubus event when a lieutenant-colonel of the Virginia militia was appointed general of the Continental Army. Who could have foretold the development of that indomitable fortitude which in the face of almost insuperable obstacles and mortifying defeats would enable Washington to gain the victory? And, once again, what other member of that Continental Congress could have achieved that result? Another extraordinarily inspired event was the sending of Dr. Benjamin Franklin to Paris to seek French support for American arms. The success of that charismatic diplomat in convincing the French to send armies and fleets to aid the colonies was an indispensable ingredient in securing the victory.

To return to the Constitutional Convention one must recognize that in those days conventions were unusual, practically an innovation. One of the delegates, Oliver Ellsworth of Connecticut, said–"A new set of ideas seemed to have crept in since the Articles of Confederation had been established. Conventions of the people, or with power derived expressly from the people, were not then thought of." It had been the state legislatures which had addressed themselves to establishing or changing constitutions. But, now to many Americans, and in particular James Madison, it had become obvious that this should be done "by a power superior to that of the ordinary legislature, the people themselves."

Thus had ensued the recommendation of the Annapolis Commission to Congress which that body had adopted. However, Congress had authorized the Convention "for the sole purpose of revising the Articles of Confederation." It had said nothing about a new Constitution. Neither the country at large nor most of the delegates themselves fully understood that they were setting up what became known as a constitutional convention. However, Washington and Madison and Hamilton knew what was required. They knew their task was to educate and to lead the representatives of the people.

Seventy-four delegates were named to the Convention; only fifty-five attended. These included some of the most distinguished men in America. Aside from our redoubtable triumvirate of Washington and Madison and Hamilton, there were Benjamin Franklin, John Rutledge and the two Pinckneys, from South Carolina; Robert and Gouverneur Morris; John Dickinson of Delaware; George Wythe, George Mason and John Blair from Virginia; Roger Sherman of Connecticut; Rufus King and Elbridge Gerry of Massachusetts. Many were young men; Charles Pinckney was twenty-nine, Hamilton, thirty, Gouverneur Morris, thirty-five and Madison, thirty-six. At eighty-one Franklin was the patriarch. Twelve states were represented. Rhode Island sent no delegates. Jefferson called it "an assembly of demi-gods." Jefferson, himself, in Paris, and John Adams, in London, were unavoidably absent. They were, however, intensely and patriotically concerned. Adams' now book on American constitutions circulated among the members. Madison sought advice from Jefferson and, characteristically, Jefferson sent him a small library on constitutions and confederacies.

In Philadelphia in May the weather was hot and sultry. Contemporaneous accounts called it the worst summer since 1750. Madison, arrived in Philadelphia eleven days early. He was a member of Congress and rode over from New York. He has been described as "a small man, slight of figure-no bigger than half a piece of soap. He had a quiet voice and delegates frequently called out, asking him to speak louder. Of the entire convention no one was better prepared intellectually."

The State House, now called Independence Hall, was the place where the Continental Congress had sat and had signed the Declaration of Independence. The east chamber was a large and handsome room, some forty by forty, with lofty windows on two sides. On a small platform against the east wall was the high-backed chair of the presiding officer. Delegates were seated in windsor chairs, state by state, at tables covered with green baize. Such was the scene on which the curtain was about to rise.

George Washington arrived on May 13th, a Sunday, and was received with military honors. The opening was set for the following day. The last act of the drama that forged the union of all the states was about to be played. There will be three stars, five supporting actors including a villain and thirty supernumeraries. In theatrical terms it was a disappointing opening. Only Virginia and Georgia were represented. Virginia was proud of her delegation of seven; she had been the first to appoint delegates. Although nominated, Patrick Henry, looking ancient at fifty-one, declined saying he "smelt a rat." He continued, "I stumble at the threshold. I meet with a National Government instead of a Union of Sovereign States." He was to become the most virulent opponent of ratification. Of Georgia's four delegates, two, like Madison, came over from Congress in New York. It was the twenty-fifth of May before a quorum was obtained. This presented an opportunity for the Virginians to draft the fifteen resolves which were to be the basis of the Constitution.

The last delegate, John Francis Mercer of Maryland, did not arrive until August 6th. In the meantime, members came and went as they pleased and no more than eleven states were represented at one time and scarcely more than thirty delegates at any meeting. As each delegate arrived he presented his 'credientials from his state legislature. The credentials consisted mostly of the various ideas the states had formed of the proper objectives of the Convention. Virginia's preamble, however, declared in ringing terms– "the necessity of extending the revision of the federal system to all its defects. The crisis is arrived at which the good people of America are to decide the solemn question whether they will by just and magnanimous Efforts reap the just fruits of that Independence which they have so gloriously acquired and of that Union which they have cemented with so much of their common blood."

On the twenty-fifth of May, when a quorum was present, Washington was unanimously elected President of the Convention and escorted to the chair. Characteristically, he made a little speech in deprecation of his own abilities. Washington proved an exemplary presiding officer. Courteous but firm and extremely sparing of speech. The universal respect accorded him caused the delegates to glance toward him whenever they made a point as though seeking his approval. He responded not with words but with a slight smile or occasionaly a frown. It has been said that for four months his "August presence kept the Federal convention together, kept it going, just as his presence had kept a straggling, ill-conditioned army together during the terrible years of war."

The Convention was soon ready to get down to business. Edmund Randolph, Governor of Virginia, thirty-three years old, was a handsome man of nearly six feet. In oratorical fashion he presented the Virginia resolves which envisaged an entirely new national government with a national executive, a national judiciary and a national legislature of two branches. Everyone understood the intention of the resolves and felt that here indeed were–that dread word to some–innovations. They also realized that here was something to work on. The Virginia plan provided a point of departure and, although many did not fully realize this, it would form the basis of the United States Constitution. It is sad and ironic that Randolph in the end found himself unable to sign the Constitution. He was followed by Charles Pinckney who generally supported the principles of the Virginia plan. "The house then resolved," wrote delegate Yates of New York, "that they would the next day form themselves into a Committee of the Whole, to take into consideration, the state of the Nation."

The next few weeks were given over to debate on the fifteen Virginia resolves. The content of these articles evoked great controversy. For discussion and voting Washington stepped down from his chair and took his place with the Virginia delegation. The first subject for consideration and the most vital was the establishment of a supreme national authority as against a federal compact among the States. This not unnaturally evoked a storm of debate for several days. New actors appeared on the scene. One-legged Gouverneur Morris, a brilliant and a compulsive talker left no doubt as to his position. "We had better take a supreme government now than a despot twenty years hence" and, he continued–"This generation will die away and give place to a race of Americans."

Elbridge Gerry, one of "the old patriots" and a signer of the Declaration was afraid of unchecked democracy, the rule of the people. George Mason, white-haired and dignified Virginia land-owner, answered Gerry, "We ought to attend to the rights of every class of people . . . provide no less carefully for the lowest than the highest orders of citizens." Unhappily, Mason was one of the three who refused to sign the Constitution. When the clause containing the words, "to call forth the forces of the Union against any member of the Union failing to fulfill its duties under the articles," Madison prudently called for postponement and the House adjourned.

Next came the thorny questions of a chief executive, the executive veto power, proportional representation, the naming of judges for the lower courts. During these lengthy discussions, three delegates made their appearances on the rostrum. The first of these, James Wilson, forty-four, born in Scotland and with a pronounced burr called for a single vigorous executive, who, in his words, would be the best safeguard against tyranny. Wilson has been called the unsung hero of the Convention and Lord Bryce in his The American Commonwealth described him as "one of the Convention's deepest thinkers and most exact reasoners." John Dickinson of Delaware, famous for his Letters from a Farmer in Pennsylvania, rose on June 2nd to declare for a single executive. He said he considered a limited monarchy "as one of the best governments in the world though in America it was out of the question."

On June 11th, the Convention seemed deadlocked on the question of a national legislature. A new star appeared on the floor, Roger Sherman of Connecticut. Sixty-six, tall and lean, his features projected honesty, sincerity and dignity. "That old Puritan, honest as an angel," said John Adams and Jefferson remarked, "Mr. Sherman of Connecticut . . . never said a foolish thing in his life." He tackled the question of proportional representation head-on and moved the three-fifths rule for slaves. In deference to the small states, he proposed that each state should have one vote in the Senate. It has been said that although this compromise was not fully accepted it was eventually to save the Convention.

'On June 15th, the meeting was thrown into a turmoil by the introduction of The New Jersey Plan. This plan differed from the Virginia resolves in no less than eight vital conditions. On the following Monday, Hamilton was first on his feet. He began a long harangue that lasted six hours. Hamilton was a strange and complex character, young and slight with a countenance endlessly expressive. He was a friend of Washington and an enemy of Jefferson. Hamilton had an almost overblown idea of the structure of a national government. And yet he was one of the staunchest and earliest advocates of that concept. He had written voluminously about it and was to write more. In this particular speech he no doubt went too far in suggesting monarchy. There was no rebuttal. None was needed. Hamilton left town shortly thereafter but returned sporadically and was on hand to sign the Constitution, the only one of the New York delegation to do so.

On June 19th Madison was on his feet early and proceeded to blast the New Jersey plan point by point. On that day the delegates voted it down. However, the small states were by no means silenced. It was now that the real b~te-noir of the Convention rose to make one of his intemperate and interminable speeches. As all dramas must have a villain he was appropriately cast in that r6le. Luther Martin of Maryland was a man of forty years with a consuming love for the battle and political speechifying. He has been characterized as "impulsive, undisciplined, altogether the wild man of the Convention," talking stridently and profanely about "the rights of free men and free states."

Weariness now beset the delegates–the heat and humidity and long-winded speeches exhausted them–so much so that the venerable Franklin asked that prayers be instituted in the Assembly every morning before proceeding to business. Accordingly a chaplain was appointed. On July 10th Washington wrote to Hamilton, "I am sorry you went away. I wish you were back. The crisis is equally important and alarming . . . I almost despair of seeing a favorable issue to "the proceedings of the Convention."

On July 16th, the heat wave broke at Philadelphia. It was now cool and comfortable. More importantly, the >delegates had reached agreement on what has been called the great compromise–equal representation for all states in the Senate. Also there was laid to rest any lingering fancy about setting up a monarchy.

On July 26th the Convention appointed a Committee of Detail. On August 6th this Committee rendered its report, drawn up into articles and sections. Since any clause could be reargued and voted on again, five weeks were to ensue before delegates could agree and give the document to a Committee on final drafting and polishing. Among other matters there was still undecided the question of the method of ratification, whether to be done by the State legislatures or the people at large. To Madison it was clear that the legislatures were incompetent to handle the problem. "I consider," he said, "the difference between a system founded on the legislatures only, and one founded on the people, to be the true difference between a league or treaty and a constitution.

With some questions not settled, nevertheless the Convention was ready to attempt to revise the style and arrangement of the articles. Accordingly, a committee of five was chosen: William Samuel Johnson of Connecticut, Hamilton, Gouverneur Morris, Madison and Rufus King of Massachusetts. These were excellent choices. Johnson, named chairman, has been described as "the perfect man to preside over four masters of argument and political strategy." Rufus King, called the most eloquent man in the United States, had come to Philadelphia fearful and undecided. He became a strong constitutional supporter and lent his masterful oratory to the struggle for approval of the document. The committee produced a powerful preamble:

"We the people of the United States, in order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution of the United States of America.

In the book, Miracle at Philadelphia, Mrs. Bowen praised this preamble. She said–"The seven verbs rolled out: to form, establish, insure, provide, promote, secure, ordain. One might challenge the Centuries to better these verbs." In the phrasing Gouverneur Morris played an important r6le. The finish given to the style and arrangement," Madison wrote, "fairly belongs to the pen of Mr. Morris."

On September 15th the final arguments were heard. On the motion to approve the Constitution, as amended, all the States voted aye. The Constitution was then ordered to be engrossed for signing and the Convention adjourned. On September 17th, the sky was clear, the sun shown brightly as if to bless the labors of the delegates. A cool breeze sprang up. Thirty-eight gathered in the room where they had sweated and argued through a hot and steamy summer. The benign and universally respected Dr. Franklin, noting the reluctance of some of those present to sign made a motion, carefully phrased to beguile dissenters; it suggested that the Constitution be signed by all of the delegates as follows: Done in Convention by the unanimous consent of all the States present September 17th.

There were present six delegates who had attended faithfully all summer but who had not uttered one word on the floor. Blount of North Carolina now rose and declared he would not sign but added he was willing to accept the form proposed. Jared Ingersoll of Pennsylvania broke his silence with a similar statement. Whereupon, the four remaining speechless delegates joined in signing without comment. There were three non-signers: George Mason, Edmund Randolph from Virginia and Elbridge Gerry from Massachusetts. The Secretary received his instructions to carry the document tomorrow to Congress in New York.

And so the curtain descended on one of the most stirring dramas in our nation's history. The players departed from the room leaving the scene deserted. Washington's and Madison's miracle had been wrought.