Although the next day, Wednesday, did not dispel Washington’s doubts, it opened the door for the sort of radical cures that he wanted. Fittingly, the day marked the entrance of the last major player to arrive onstage: Connecticut’s sixty-six-year-old Roger Sherman. No delegate except Franklin had served the public longer than Sherman. And besides Franklin, Sherman was the only delegate from a true working-class background. Unlike the urbane Franklin, however, despite years of service in Congress and for his state, the rustic Sherman could still pass for a New England worker awkwardly dressed in an ill-fitting suit. Crude in speech and angular in shape, he was once depicted by John Adams as “the reverse of grace.” At the Convention, Pierce called him “grotesque and laughable.” Yet neither underestimated him. In 1777, Adams characterized Sherman “as honest as an angel, and as firm in the cause of American independence as Mount Atlas.” A decade later, Pierce wrote about Sherman, “No Man has a better Heart or a clearer Head.”54 But he was an old-school patriot from a small state and suspicious of centralized power. After Connecticut tapped Sherman for the Convention, one Hartford nationalist warned the ultra-nationalist Rufus King, “He is as cunning as the Devil, and if you attack him, you ought to know him well.”55 Angel and devil: both sides of Roger Sherman soon showed themselves in Philadelphia.
NATIONALISTS IN THE VIRGINIA and Pennsylvania delegations must have conspired on Tuesday night to present a united front on Wednesday. They entered with a joint strategy to focus debate on the issue of national versus state sovereignty. As Madison reported it, Randolph “moved on the suggestion of” Gouverneur Morris that the delegates preface consideration of the fifteen resolutions comprising the Virginia Plan by debating a single fundamental resolve: “That a national government ought to be established consisting of a supreme legislative, judicial and executive.” Initially, they offered this resolve with two others declaring that any “merely federal” government, like the one linking sovereign states by the treatylike Articles of Confederation, could not achieve the Articles’ express purposes of providing for “common defense, security of liberty, and general welfare,” but quickly agreed that the one resolve would suffice.56
Surviving accounts differ on what happened next but clearly a fierce debate ensued. “Mr. Charles Pinckney wanted to know of Mr. Randolph whether he meant to abolish the State Governments altogether,” Madison wrote. Pinckney’s cousin, General Charles Cotesworth Pinckney, denounced the proposed resolution as beyond the scope of the Convention’s call.
Gerry agreed. “A distinction has been made between a federal and national government,” he complained. “We ought not to determine that there is this distinction or if we do, it is questionable not only whether this convention can propose a government totally different or whether Congress itself would have a right to pass such a resolution.”57 Despite fears of state excesses, Gerry still favored a federal system.
Randolph and Morris parried these blows as best they could. His resolution would not abolish the states, the Virginia governor asserted, only take from them such sovereignty as hinders the general government from achieving its legitimate objectives. Morris questioned whether the Convention could make any meaningful distinction between a federal and national system anyway. If by “federal,” delegates meant “a mere compact resting on the good faith of the parties,” then that could not secure the confederation’s stated purposes. If “federal” instead meant a government that “has a right to compel every part to do its duty,” then the United States lacked one. “In all communities there must be one supreme power, and only one,” Morris stated. The result of leaving sovereignty with the states portended disaster. “We had better take [one] supreme government now, than a despot twenty years hence—for come he must,” Morris warned.58
Washington sat silent in the hall but surely spoke in private. “Persuaded I am that the primary cause of all our disorders lies in the different State Governments,” he soon wrote to a fellow nationalist in Virginia, “and in the tenacity of that power which pervades the whole of their systems.” So long as states retained “independent sovereignty,” Washington predicted, the country would remain weak.59
In addition to defending the states, opponents attacked the Virginia Plan’s open-ended grant of power to Congress. Conceding “that additional powers were necessary, particularly that of raising money which would involve many other powers,” Sherman stated that he was not “disposed to Make too great inroads on the existing system.” For narrow-minded reformers, merely empowering Congress to impose a tariff on imports would suffice.
Agreeing with Sherman, Dickinson urged that, instead of debating the broad Virginia Plan, the delegates should simply decide what added powers they should vest in Congress. “We may resolve,” he said, “that the confederation is defective; and then proceed to the definition of such powers as may be thought adequate to the objects for which it was instituted.” When Dickinson’s Delaware colleague George Read then moved to defer consideration of Randolph’s motion until after debate on Dickinson’s resolve, the Convention stood at a crossroads.
Every delegate understood the choice. “The object of the motion from Virginia [is] an establishment that is to act upon the whole people of the U.S.,” Rufus King noted. “The object of the motion from Delaware seems to have application merely to the strengthening of the confederation by some additional powers.”60 The delegates must choose, King all but said, and the country needed more than Dickinson’s approach allowed. If not yet fully convinced on all aspects of the Virginia Plan, at least many delegates already rejected the idea of merely amending the Articles of Confederation by granting added powers to Congress. Read’s motion lost on a tie vote, four to four, with Virginia voting no. The delegates returned to Randolph’s introductory resolve, which immediately passed with six states voting yes, New York divided, and only Sherman’s Connecticut voting no. Once its motion had lost, even Delaware voted aye.61 That settled, the Convention then moved on to the fifteen resolutions comprising the full Virginia Plan, which they took up, debated, revised, and expanded over the ensuing weeks.
The historic vote in favor of Randolph’s first resolve, which set the stage for all that followed, represented the high-water mark of nationalist influence at the Convention. With the delegates sitting as a committee of the whole for three more weeks and then in convention with Washington in the chair for three long months, Sherman, Dickinson, Paterson, Read, Yates, Gerry, and other critics steadily chipped away at the Virginia Plan. The addition of John Lansing tipped the balance of New York’s three-member delegation in their favor after June 2. They gained another key ally on June 9 when Maryland’s clever but cantankerous Luther Martin took his seat. The arrival of representatives from New Hampshire on July 23 added to the mix. These anti-nationalist and small-state delegates often had the past abuses of British imperial policy forefront in their minds.
Focused instead on recent instances of states run riot and flanked by a shifting array of allies that often included Massachusetts and sometimes the Carolinas, Georgia, or other states, the Virginia and Pennsylvania delegations, representing America’s two largest states, formed a virtual phalanx to defend the core concept of a supreme national government. Both sides claimed the moral high ground of liberty and justice for all free men.
One by one, the accoutrements of extreme nationalism fell away from the Constitution being crafted from the Virginia Plan, leaving the framework for a mixed government that remains susceptible to differing interpretations. The Virginia Plan would have empowered the national government “to call forth the full force of the Union” against states that failed to obey its commands. Even Madison could not stomach this and, on May 30, moved that it be struck. “The use of force against a State,” he observed, “would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound.” He fought harder to retain authority for Congress to veto state laws but could only get three states to agree. Instead, the Convention lef
t the defense of national supremacy to the courts, with its final draft providing that the Constitution, laws, and treaties of the United States “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby.”
Led by Sherman and Martin, the extreme anti-nationalists tried to strike the provision for inferior national courts, so that state judges would rule on the validity of state laws subject only to appeal to a national supreme court. Arguing the obvious—that “inferior courts are essential to render the authority of the National Legislature effective”—nationalists secured the compromise that Congress at least could create lower national courts.62
WHILE THESE COMPROMISES ENSURED that the general government would not rule over the states by force and veto like the British king and Parliament had reigned over the colonies, questions persisted about the extent of its power. Using their fluid procedural rules, the delegates repeatedly revisited the issue of whether the Constitution would invest the general government with open-ended power over “all cases to which the separate States are incompetent,” as the Virginia Plan provided, or enumerated powers as Sherman, Dickinson, and other states’ rights advocates wanted.63
When delegates first debated this provision on May 31, even members from Virginia admitted to having some qualms. Madison recorded himself as saying that “he had brought with him into the Convention a strong bias in favor of enumeration and definition of the powers necessary to be exercised by the national Legislature; but had also brought doubts about its practicability.” His frustration with the inadequate grant of power under the Articles of Confederation made him doubt that any current drafters could anticipate future needs. For his part, Randolph “disclaimed any intention to give indefinite powers to the national Legislature.”64
Washington again remained silent but soon wrote privately, “The Men who oppose a strong & energetic [national] government are, in my opinion, narrow minded politicians, or are under the influence of local views.”65
Of all the delegates, it was Hamilton and Wilson—two pro-business nationalists from large commercial states—who most vocally defended an open-ended grant of power to Congress. On June 18, for example, after New Jersey proposed an enumerated list of powers in its alternate plan for a federal government, Hamilton exploded. “The general power . . . must swallow up the State powers, otherwise it will be swallowed up by them,” he declared. “Between the National & State Legislatures,” he later added, “the former must therefore have indefinite authority.” It was then that Hamilton famously asserted that the centralized British government, with its aristocratic House of Lords and strong monarchy, “was the best in the world” and declared that nothing “short of it would do in America.”
Wilson was more discreet. Distancing himself from Hamilton’s extreme remarks, he still argued that the states should only survive as “lesser jurisdictions” or a “subdivision” of the nation.66 When the New Jersey Plan garnered only three votes, the Convention was left with the Virginia Plan’s language on national power. In an apparent nod to state-minded delegates, however, the Convention then passed a motion by Connecticut’s Oliver Ellsworth deleting the opening reference to “a national government” from the Virginia Plan.67 With this, the word “national” vanished from the emerging Constitution, and never returned.
In late July, without resolving an enumerated list of powers, the Convention sent the Virginia Plan’s provision on congressional power along with all else that it had passed to a Committee of Detail, composed of Randolph, Wilson, Gorham, Ellsworth, and Rutledge, charged with weaving them into a single constitution. There, Randolph tried his hand at composing an enumeration of powers to replace the Virginia Plan’s open-ended grant. His initial list then bounced around the committee until it included, among others, the power to lay and collect taxes; regulate international and interstate commerce; raise armies; and, in a sweeping final clause presumably added by Wilson, make “all laws that shall be necessary and proper for carrying into execution the forgoing powers.”68 Although Washington did not serve on this committee, its listing of enumerated powers mirrored the main concerns that he had expressed about limits on congressional power under the old confederation.
Madison accepted the list, too, but, along with the other compromises, it left him concerned about the government’s authority. Privately, he worried that the Constitution would “neither effectually answer its national object nor prevent the local mischiefs which every where excite disgusts against the state governments.”69 Later, putting the best public face on the overall document, Madison depicted the new government as “of a mixed character, presenting at least as many federal as national features.”70
From start to finish, Washington presided at the Convention without expressing his views on the proper extent of the general government’s power. He did not need to. Ever since his 1783 Circular to the States, which was then the country’s best-known public document other than the Declaration of Independence, Washington stood as the personification of nationalism in the United States. His daily presence on the dais spoke louder than the speeches of anyone in the hall. As Madison had planned, it gave weight to the Virginia Plan, which implicitly bore Washington’s imprimatur. And when Randolph drafted an enumeration of powers that the Virginia delegation supported, it included every one that Washington had publicly endorsed.
No issue mattered more to him than the new government’s supreme power and sovereignty. There were other topics for the members to address: some so divisive as to nearly derail the Convention; others that every delegate knew would directly impact Washington should he lead the resulting government. They would look to him on these issues, too, and he in turn helped to shape the outcome, but national supremacy mattered most to him. “Vain is it to look for respect from abroad, or tranquility at home,” Washington wrote to Lafayette one day before the delegates approved the committee’s list of enumerated powers, “till the wisdom and force of the Union can be more concentred.”71
Charles Willson Peale’s likeness of George Washington, sketched and printed in Philadelphia during the Constitutional Convention.
CHAPTER 5
In His Image
REMARKABLY LITTLE INFORMATION LEAKED about the ongoing deliberations at the Convention. Indeed, once the thirty-eight delegates adopted the secrecy rule, news from the Convention virtually ceased. Later arriving delegates, even those from states not yet represented when the rule was adopted, obeyed it. Early departing delegates, even those who left in protest that the Convention had exceeded its mandate, obeyed it.
Historians have speculated that the states’ rights patriot-agitator from Virginia, Patrick Henry, had he known what was afoot, would have ridden to the Convention, taken his seat, and denounced the nationalist plan offered by his state’s delegation.1 Yet, although Henry stayed away because he opposed the proceedings, no certain word of the Virginia Plan and its radical extent reached him. This remained true even after New York’s two anti-nationalist delegates, Robert Yates and John Lansing, stormed out of the Convention on July 10. Although committed to fight ratification of any nationalist Constitution emerging from the Convention, they did not publicly expose the extralegal nature of the proceedings. Even though Lansing had not been present to vote on the secrecy rule, he obeyed it.
Nearly a hundred newspapers then existed in the United States, with a full dozen operating in Philadelphia. They were hungry for content and eagerly reprinted stories lifted from other papers, especially about politics. Any news from the Convention would have quickly spread through the states, but after the initial reports of delegates assembling and their selection of Washington as president, the reliable accounts stopped.
The few articles about the Convention that did appear were either hopelessly vague or simply wrong. Conflicting reports of the Convention’s progress appeared in June, for example. “Though the particular arguments, debates, and decisions that take place in the federal Convention are considered as matters of secrecy,” one wide
ly republished article reported, “we understand, in general, that there exists a very great diversity of opinion amongst the members.”2 About the same time, another popular account stated, “We hear that the greatest unanimity subsists in the councils of the Federal Convention.”3 The most specific news appearing in widely circulating articles during the summer were wildly inaccurate reports that the delegates had voted to expel Rhode Island from the union and considered inviting George III’s second son, the Duke of York and Albany, to become America’s king.4
One early report from Philadelphia did hit the mark. “Such circumspection and secrecy mark the proceedings of the federal Convention,” a June 2 article in the Evening Herald noted, “that the members find it difficult to acquire a habit of communication even among themselves, and are so cautious in defeating the curiosity of the public, that all debate is suspended upon the entrance of their own inferior officers.” While the writer conceded the “propriety” of such secrecy, he urged the delegates to act with “dispatch, as the anxiety of the people must be necessarily increased, by every appearance of mystery in conducting this important business.”5
Not everyone accepted the secrecy rule so readily. Commenting from Paris, Jefferson complained that it set an “abominable” precedent in a free society. “Nothing can justify this example,” he wrote about the delegates, “but the innocence of their intentions, & ignorance of the value of public discussions.”6 Nevertheless the practice persisted for four months as the delegates wrangled behind closed doors and shuttered windows during a predictably hot and humid Philadelphia summer.
The Return of George Washington Page 14