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08/08/2019

William Treanor on Gouverneur Morris and the Constitution
Michael Ramsey

At SCOTUSblog, William Treanor: The Framer’s intent: Gouverneur Morris, the Committee of Style and the creation of the Federalist Constitution.  From the introduction: 

As the federal constitutional convention drew to a close, the delegates appointed the Committee of Style and Arrangement to prepare a final Constitution from the textual provisions that the convention had previously adopted. Pennsylvania delegate Gouverneur Morris was assigned the task of drafting, and, with few revisions and little debate, the convention hurriedly adopted the committee’s proposed Constitution. For more than 200 years, questions have been raised as to whether Morris as drafter covertly made changes in the text in order to advance his constitutional vision, but the legal scholars and historians studying the convention have either failed to consider that possibility or concluded that Morris was an honest scrivener. Remarkably, however, there is no study that systematically compares the committee’s draft to the previously adopted resolutions. Also remarkably, even though in four decisions in the last 50 years the Supreme Court has concluded that the committee had no right to change the Constitution’s meaning and that any substantive changes it made should be disregarded, there has been little attention to whether the court’s approach is sound. My recently posted article, “Framer’s Intent: Gouverneur Morris, the Committee of Style and the Creation of the Federalist Constitution,” is the first article to focus on the committee’s draft and the ways in which it departed from the text the convention had previously approved and to examine the legal significance of those important changes.

Although largely forgotten today, Morris was a “genius,” in the admiring judgment of both Alexander Hamilton and James Madison. He spoke more often at the convention than any other delegate, and he was a logical choice to be the drafter. Although the committee had other talented members (including Hamilton and Madison), Morris’ speeches evidenced an unmatched gift for language, and he was the committee member with the deepest experience as a constitutional drafter, having been one of the three principal authors of the New York Constitution.

As drafter for the Committee of Style, Morris made a series of subtle changes that his fellow delegates missed (or thought stylistic) when they considered the Committee of Style’s draft but that advanced goals that he had not been able to win during the floor votes. The most prominent examples appear below, but the article discusses 12 substantive changes that Morris made. His changes became central to many of the great constitutional debates of the early republic, and, for originalists, they are central – or should be central – to many of today’s most significant constitutional debates.

An earlier version of Dean Treanor's outstanding paper was presented at the Originalism Works-in-Progress conference in San Diego in February.