Georgetown Law Dean William Treanor Details Secret Changes to U.S. Constitution by Gouverneur Morris

“The Case of the Dishonest Scrivener: “Governeur Morris, the Creation “of the Federalist
Constitution, and its Loss.” So first of all, that’s
the dishonest scrivener, Governeur Morris, he’s seated
on the left on this page. So what this is about is, at the very end of the Constitutional
Convention, very end, they don’t have a Constitution. They have been debating for four months. They have a draft that is five weeks old, they have been arguing about it, voting things up, voting things down. Five committees, they
don’t have a Constitution. And so they create a Committee of Style to bring it all together,
and Style and Arrangement, supposed to be Style and Arrangement. They work over three days, and they produce what’s our Constitution. Everybody’s exhausted, and
they just wanna get home. So when they get the committee report, in three days, they very
quickly review the Constitution, they finalize it, and
it’s our Constitution. Governeur Morris, who’s the key player on the Committee of Style, the drafter of the Constitution is, I’m gonna be talking to you,
he’s a dishonest scrivener. So he’s supposed to be just codifying and putting the polish on a Constitution. Instead, and the article is online, I’m gonna give a overview of it, he makes 15 significant
changes in the Constitution, 15 substantive changes that
reflect what he’s fought for and lost
(audience laughs) on the Constitutional
floor; it’s extraordinary. He’s a big nationalist, he’s
a champion of the Executive, he’s a champion of the Federal, Judiciary; fights for private property. He’s the only one of all of the delegates who fights, who attacks slavery as injust. And on each of those, he makes
changes to the Constitution that are subtle and that
people don’t pick up on and that become our Constitutional text. That’s the first part. And then the second part is what happens. And I’m gonna talk about how he, on behalf of the
Federalists, wins the text, and then how he, really because of his post-convention career,
and his lack of concern with his place in history loses the battle for
Constitutional meaning. So Federalists win the text, but then Republicans win the battle for original understanding. So that’s the talk. And again, that’s Governeur
Morris on the left. Okay, how does he do it? Okay, so what the key document is what’s called the Report of the Committee of Style and Arrangement. So couple of things,
so when you think back about the Constitutional
history that you have, starting when you’re in a grammar school and that you have in
college and Law School, it’s got a couple of basic themes. The first theme is it’s
about the Virginians, okay? And that’s because Madison’s
taking the notes, right, and his story, and then
he lives the longest. And then his notes are published, so it’s all about the Virginians. If the Virginians get together
before the convention starts, that the convention begins
with the Virginia Plan being presented by John Randolph,
who we heard about before, Edmund Randolph rather. And then two big floor debates. One debate is over is representation by the number of people
or is it by states? And there’s the compromise,
big state-small state, Senate and House, right? And then there’s the
big fight over slavery. Is there gonna be representation
just by free inhabitants, or is it gonna be slave
people and free inhabitants? And there’s a compromise,
the three fiscals. That’s a standard account, and there are two ways
in which it’s wrong. One is, it’s not just the Virginians. So if you actually go and
you look who’s in the room when they’re planning what
becomes the Virginia Plan, it’s the Virginians but
it’s also two delegates from Pennsylvania: James
Wilson and Governeur Morris. And when the Virginia Plan is
presented to the Constitution, the first person who gets up and says, “This is fabulous,” is Governeur Morris. It’s clearly a choreographed
team effort, right? And then who speaks the most? Is it James Madison, the
founder of the Constitution, the father of the Constitution? No.
(audience chuckles) He’s third. Number two: James Wilson. Who speaks the most? Governeur Morris, right? Which is a real tribute
to Governeur Morris, because among other
things, he’s somebody who, everybody else is concerned
with their place in history. He’s concerned, he wants
a good Constitution, but he also, he’s a man of business. He takes two weeks off in the middle to kind of deal with his business affairs. So whenever he’s there, he’s talking. So he’s the one who talks
more than anybody else. That’s the first thing;
then the second thing is it’s not about the floor debates,
it’s about the committees. Anybody who knows Congress
knows how important the committees is. There are 12 committees,
and the text that we as lawyers construe is almost
all drafted in the committees. And the most important committee, I think, is the Committee of Style. Very end of the Constitution, again, supposed to be Style and Arrangement. They write the Constitution in three days, and that becomes our final Constitution. It’s about the committees, and
the most important committee is the Committee of Style and Arrangement. Now unlike other committees, we do not have contemporary diaries, we don’t have drafts of the Constitution as they’re writing it. But we do know that
there are five members: Rufus King of Massachusetts, Alexander Hamilton of New York, James Wilson of Pennsylvania, William Johnson of Connecticut, and Governeur Morris of Pennsylvania. James Wilson, sorry, James Wilson is there along the side, he’s not
actually on the committee, but he’s part of the negotiation. And on this group, we know that Morris is actually the drafter. And we know that because he writes, letter after, it’s that document, “The Constitution was
written by the fingers, “which write this letter.” And James Madison, and I have to say, there’s incredible tension overtime between Madison and Morris;
they’ve come to hate each other. But Madison acknowledges
that Morris was the drafter. “The finish,” and he underscores finish, “given to Style and
Arrangement of the Constitution “fairly belongs to the
pen of Mr. Morris.” right? So he’s the drafter,
Morris is the drafter. Over the three days, he’s the
drafter of the Constitution. Now as I said, when
they come with the draft of the Constitution, over
three days they review it, nobody, if you read Madison’s notes, nobody says, “Hey wait a minute, “some of the substance has changed.” Nobody says that, but
there’s some evidence that there is focus on
once particular clause. This is the General Welfare Clause. So what I’ve done is
I’ve taken the broad side of the committee’s report, and I’ve blown up the clause about the general welfare. And what I want to do is, and again, read my article, it’s on SSRN; fabulous. (audience laughs) So I’m not gonna be able
to parse all the text, I just wanna give the broad ideas. So what goes in on the
General Welfare Clause to the committee? So again, they’re
supposed to be just taking what they got and polishing it, okay? And it’s “The Legislature shall have power “to lay and collect debts, duties, “impost and excises,” comma comma, “to pay the debts and provide “for the common defense
and general welfare “of the United States.” So what’s this? This is about the taxing authority. What is the taxing authority for? They tax for the general welfare
and common defense, right? But what comes out of
the Committee of Style? This is why all your
bluebooking what so invaluable. “The Congress shall have power
to lay and collect taxes, “duties, imposts and excises,” semicolon “to pay the debts and provide
for the common defense “and general welfare
of the United States.” What had been a clause
about the taxing power becomes clause about two things, about the taxing power
and it’s essentially a plenary grant of power. If Congress now can pay the debts and provide for the common defense and general welfare of the United States. (murmurs) what Morris,
Morris is the big nationalist at the convention, and he’s lost. And now at the last minute, punctuation. (audience laughs) But he doesn’t get away with it. Roger Sherman.
(audience laughs) Now I just wanna call
attention to the pictures. Governeur Morris, remember
smiling, happy guy. Roger Sherman, he’s angry. He’s caught a typo. So we don’t know this
from the convention notes, but 10 years after in 1798, there’s a debate in Congress about the General Welfare Clause. And Albert Gallatin,
Congressman from Pennsylvania, who with Madison is really
the brains of the Republicans. He says, “During the
Constitutional convention, “Governeur Morris changed the comma “in the General Welfare
Clause to a semicolon, “but Roger Sherman spotted the trick.” That’s the word, spotted the trick, and got the language and
punctuation changed back. So we actually don’t have,
if you read Madison’s notes, there’s nothing about Sherman
calling attention to this. But if you look at what goes
into the Committee of Style is a comma, it’s report is a semicolon, and if you look at the
Constitution, it’s a comma. So that raises the
question, what’s going on? Is this isolated? Did Morris in fact change his
clothes or was it just a typo? And then was it part of a larger scheme? And we don’t have any response at the time ’cause Sherman is dead
and Morris is in Europe, so he never comments on,
he’s in Europe a lot. Now, nobody before me,
and I find this amazing, but that’s maybe ’cause
I’m obsessed by this, nobody has ever gone through
and looked at what goes in to the committee and what’s come out and written an article or a book that compares the two, okay? The one person who talks
about it is Clinton Rossiter. This is one of the great
Constitutional History, “1787”. It’s what I read in high school. And he doesn’t kind of detail
it, but he says in his books, “1787”, “Hey, I looked
at this, I compared it. “Morris was fine. “Morris was a faithful
servant in the committee “and the committee of the Convention.” So nobody has ever before
argued that Morris, and shown that Morris
systematically changes the text to win where he’d lost on all the issues that were big to him. Now there are four cases that
the Supreme Court has had in the last 50 yeas in which
one of the parties has said, “Hey, the Committee of
Style changed the text.” Well, the court has had to
choose between the language that went in the
committee and the language that came out of the committee. What it’s found each
time is we’re gonna go with the language that
went into the committee, not the Constitution that was ratified, (audience laughs) but the language that
went in to the committee, the rough draft that
nobody ever saw, right? So this is Powell, not obscure cases, Powell versus McCormack. Warren for the court. We’re looking at the rough draft. Committee of Style regiments. Just supposed to be about
style and arrangement, if they did anything
more, it’s ultra vires. So the rough draft is the trump. Now, in some ways that’s not surprising. This is really kind of at
the origins of originalism. Now we’ll look at text,
not drafter’s intent. Jefferson Powell convinced us
it wasn’t drafter’s intent, but the Supreme Court
still takes his approach. So this is the most recent one. Utah versus Evans, which is a census case, which is about actual enumeration, which is language that
the committee added. And writing for the court, prior says, “Forget actual Enumeration,
Committee of Style “and Arrangements, Style and Arrangement. “We’re gonna just reject what they added “’cause they were just supposed to be “about Style and Arrangement.” right? So the court in the most recent decision is going back to the rough draft. Only one justice has disagreed
and that’s Justice Thomas, who says in decent, “I focus on the words of the
adopted Constitution.” okay? But he’s alone. Justice Galia has never said that. The only person who’s
ever taken that position is Justice Thomas. And these are the modern
histories that are three really excellent Constitutional histories of the past 15 years. Michael Klarman of Harvard,
Richard Beeman of Penn, David Stewart, who’s an
extraordinary independent scholar. They don’t even recognize
that this is an issue. They don’t recognize that anybody’s called into question Morris’ integrity. So David Stewart, again,
this is a great book, but he says, “This draft, the
Committee of Style’s draft, “had to be faithful to
the Convention’s actions. “Morris could be trusted to do that.” Well, he couldn’t. (audience laughs) Okay, now, a little bit of my biography. Why am I obsessed by Gouverneur Morris? First of all, I’m from
Morristown, New Jersey. As I’m sure you know
it’s a military capital of the American Revolution. This is actually kind
of relatively humble. Normally, we Morristonians
say The Military Capital of the Revolution, and when I was a boy, (audience laughs) the Governor Morris Inn opened up, okay? This was a big deal. It was the first hotel in Morristown. This is the local newspaper. New Jersey’s first, all new! All new hotel in a quarter of a century! Big deal! So we’re all Gouverneur Morris. Now, those of you who are
Roger Sherman like proofreaders would say, “Hey, wait a
minute, Gouverneur Morris, “that’s not the way he spells his name.” (audience laughs) Well, they actually meant to name it
after our Gouverneur Morris, they just misspelled his name. Now, I just wanna say,
that’s actually part of kind of the Morristown brand. If you go to the Governor Morris Inn, which is still open, and
you go to their restaurant, Copeland’s, it’s named
after Aaron Copland. They misspelled his name too. (audience laughs) Okay, now, who is Morris? Now Morris is really at this point, he’s one of kind of the
third level founders. He’s not like a Hamilton or
a Madison or a Washington. He’s not even like Mason or Randolph, he’s a like a third level founder. There are two things that people remember about Morris, right? Two things. One is he is, I talked
about Richard Beeman, one of the classic
Constitutional historians. And that Constitutional history says, refers to Gouverneur Morris as, quote, “a serial philanderer”. And that’s actually a large part of what the history’s focused on. If you look at William
Howard Adams’ biography, which is the standard
biography, academic biography, if you go to the index, under romances, under Morris, he’s got 37 pages. (audience laughs) Under Committee of Style, nothin’. (audience laughs) Okay, so serial philanderer. And then the other thing
that he’s famous for is he’s got a peg leg. And there’s the debate
about, among historians, about how he gets the peg leg. But one of the stories, which
is the one he encourages, is that it’s linked to his
being a serial philanderer, and that he shattered his
leg jumping out of a window to avoid a husband. So that’s what people know
about Gouverneur Morris. But what should you know? First of all, he’s
physically dominant, right? If you think about the Federal
Constitutional Convention, if you go to Philadelphia,
it’s a small room. And most of them were actually not huge. So James Madison was five-four and under 100 pounds. Alexander Hamilton,
five-seven, very slight. Commanding is George Washington. This is the classic statue
of George Washington. It’s in the Virginia State Capitol, but it’s the one that’s copied everywhere. So if you go to art, the nation’s Capitol, if you go to Independence Hall, if you go to parks across the country, they’re all copies of this statue. Now, the face is Washington. So Jean Houdon, the great French sculptor goes to Mount Vernon, makes
a life mask of Washington. That’s Washington’s head. And Marshal, everybody
says, “This is Washington.” It’s in fact, the head is Washington, the body is Gouverneur Morris. (audience laughs) And that’s because, first of all, there are two kind of things
to highlight about that. First, it’s just he’s
the Ambassador to France when Houdon is doing the sculpture. They’re the same size, Morris and Washington are both six-four. Think about how big that is at the time. So he knows that they’re the right time. Morris gets a little
irritated that he’s going to Houdon all the time. He refers in his letters to the fact that he’s the mannequin. (audience laughs) Now, the other thing though
is that he frankly has a better body. (audience laughs) So Washington is by all contemporaneous accounts pear-shaped. (audience laughs) Don’t mean to speak ill of the dead (audience laughs) but, and that’s actually
good if you ride a horse, ’cause it (audience laughs). But if you’re looking at are you heroic, that’s Morris. And everybody at the time
says, “He has command,” right? So he’s big, he’s got physical command. He’s an aristocrat. So if you’re from, if
you know New York City, Morrisania in the Bronx,
that’s his family’s estate. This is the house torn
down about 100 years ago. So he’s an aristocrat, but
he doesn’t inherit any money. He’s from the second family. His father, first wife, the
first family gets all the money. Gouverneur is a child
of the second marriage after the first wife dies. He gets nothing. He becomes rich through being
a very successful lawyer and then businessman,
but no inherited money. Okay, other things. He has a gift for friendship,
and his friends love him. So when I went back
before, the first image Gouverneur Morris and Robert Morris, so everybody knows, not
everybody, but everybody in kind of my line of work knows that Robert Morris went bankrupt. He was the financier of the Revolution. He was the Superintendent of
Finance in the Revolution. He goes bankrupt, he
goes to debtor’s prison. What people generally don’t
know is Gouverneur Morris, who is Assistant Superintendent of Finance works with him, and then as his business
partner, rescues him. He pays to get him out of debtor’s prison, and because he has huge
debts, he gets him an annuity that can’t be seized, and
buys a house for Robert Morris to live in. For Washington, he’s like a son. Washington and he have a
father-son relationship. At the end of the Philadelphia
Convention, for example, they’d leave Philadelphia together, and he’s Hamilton’s closest friend. When he’s shot and dying,
he’s the one who lies and asked to come to the death bed. So he’s a great friend. He is brilliant according to everyone. Madison and Hamilton, who agree on nothing,
both call him a genius. And he is an extraordinary
writer of every kind. So he has experience as
a legislative drafter when he was in the New
York Provincial Congress, when he’s in the Continental Congress. When he’s Assistant
Superintended of Finance, he drafts the Critical Legislation. He’s a co-author as a very young man of the New York State Constitution. The report that he writes as Assistant Superintended
of Finance, dry report. It gives us two words
that everybody knows. He invents the word cent
and he says we should call the basics monetary unit for the United States Government dollar. So he has extraordinary gifts
at very technical writing and he’s enormously skilled rhetorician. So if you read the speeches in ‘ference Reports of the Constitution Convention, most of them are really dry. Wilson and Morris, very scholarly. Morris is extraordinary. He’s funny, he’s angry,
he’s emotionally powerful in a way that nobody can touch. And as evidence of how
rhetorically powerful he is, when Hamilton decides
that he’s gonna write the Federalist Papers, he
turns to Gouverneur Morris to be his co-author. So we all think of
Madison, J and Hamilton. Madison is the replacement
after Morris says no. Maybe the most famous
understudied in American history. (audience laughs) So he’s brilliant, he’s a gifted writer, the dark side is that
people suspect his integrity for a number of reasons. Part of it is his personal life. Part of it is some people think that as Assistant Superintendent of Finance he benefited himself financially. Most important, in “1783”, there’s what’s called
the New Birth Conspiracy, which is a plan mutiny of the officers to demand back pay. And the idea is that they
will march on Congress, and essentially force Congress on a panic to demand a taxing authority. And all the evidence is, and
it’s widely known at the time, that Gouverneur Morris
is the one behind it. So there’s real questions
about his integrity. So there he is with Robert. So three quick shots. So William Pierce, a Georgia Delegate, writes a series of many
biographies about all of the other delegates. This is what he writes about Morris. “One of those Genius’s,” that word again, “in whom every species of
talents combine to render him “conspicuous and flourishing
in public debate: “He winds through all
the mazes of rhetoric, “and throws around him such
a glare that he charms, “captivates, and leads away the
senses of all who hear him.” This is the French Embassy,
also writes mini biographies. This is his. “Celebrated lawyer, one of the
best heads on the continent, “but without morals, (audience laughs) “and if one believes his
enemies with principles.” (audience laughs) So basically everybody
agrees he’s without morals. (everyone laughs) The division is over
the principle’s matter. All right, so let’s
quickly go to Max Farrand. So Max Farrand is really probably the best Constitutional Historian. He’s the one, the debates
that we read today, he’s the one who brings them all together about 100 years ago. And he also writes a history of the Constitutional Convention. And this is what he says, “Gouverneur Morris was probably
the most brilliant member “of the convention.” I just wanna stop for a second. Not Madison, not Hamilton, not Franklin. The guy who writes what
I think is the best Constitutional History says
Morris is the smartest. And then he adds, “Sharp-witted, clever, “startling in his audacity,
and with a wonderful command “of language, he was admired
more than he was trusted.” All right. So let’s look at some of the text. And again, I have 15
examples in the SSRN Article that you’ll all be reading this evening, (audience laughs) but let’s start with the Preamble. Okay, what goes into the Committee? We the People of the
States of New Hampshire, Massachusets, Rhode Island
and Providence Plantations? And then what’s the ending of it? Do ordain and establish
the following Constitution. But comes the most famous
part of the Constitution. This is all the committee’s
help, this is all Morris. We the People of the United
States is a national statement. We’re not the People of the States, we’re the people of the nation. And then what are the ends? There were no ends before
except to have a Constitution. (audience laughs) To form a more perfect
union to establish justice, insure domestic tranquility,
provide for the common defense, promote the general welfare, and secure the blessings of liberty. Okay, he has defined, we are a nation and this is what we are about. That’s all Morris. But we also say, “Well, it’s nice.” (audience laughs) It’s a rhetorical flourish. Nobody really cares. What that misses is that
in the early debates about the Constitution, the
federalists went again and again to the Preamble not as
a rhetorical flourish but as a grant of power. So this is just one example. Congressman Fisher Ames, no relation, who’s one of his best friends, argues, “Why do we have the
power to create a bank?” The Preamble. Chisholm versus Georgia. Why does the United States Government had jurisdiction over
the State of Georgia? James Wilson who’s on,
works with the Committee, the Preamble. So we have this sense that the Preamble is just a hortatory flourish
not for the federalists at the founding. That’s example one. The Contracts Clause. Okay, the Contracts Clause is debated once on the House floor and it is voted down. It is voted down before
the Committee of Style begins its work. Now Morris actually speaks against it, but I think he votes against it because it’s too broad on
the statute of limitations. It comes back in the
Committee of Style Report. It’s been voted down. It comes back. And I wanna highlight, not
just that he’s brought it back, but one significant change. Okay, what’s been proposed
is that States can’t, this is the top, interfere with
or affect private contracts. Private contracts. Now we go to the actual
report of the Committee which is our language in
the Constitution today, States can’t alter or impair
the obligation of contracts. The word private
contracts has disappeared. And this is consistent with
Morris’ views elsewhere, because he thinks when States
grant corporate charters they’re done, they can’t revise it. So his dropping of the word
private is very intentional ’cause he wants it to reach
contracts at the statehouse with private individuals. And so Fletcher versus Peck, when Marshall reads the
Contracts Clause that way, most historians say, “Oh, he’s departing “from the original understanding.” ‘Cause in the ratifying
convention, most people say, “Oh, no, it doesn’t reach state contracts “with corporations.” Marshall is just carrying
out Morris’ language. Totally intentional. Okay, John talked a little bit about my work on judicial review. The standard view of generation, two generations ago was Marbury was created out of whole cloth. These are kind of, van Alstyne and Bickel are the two classic statements of that. I’ve shown that there were
about 31 cases before Marbury, which judicial review was exercised. But it’s also in the constitutional text. This is Morris’ speech on
judicial review at the convention. He argues in favor of judicial review. But when they go into
the Committee of Style there’s no text about judicial review. But then he makes a change. The clause that goes in
is that the Constitution, and I’ve underscored here,
shall be the supreme law of the several States. He changes it and makes
it the Constitution shall be the supreme law of the land. And then that becomes, by Wilson again, the basis of the exercise
of judicial review in Hayburn’s case. And it’s also used in a secondary way by Marshall and Marbury versus Madison. So another change. He’s added language to create
the basis for judicial review. That’s not the common wisdom. The common wisdom most people think judicial review is created by
Marbury, he’s added language. Okay, the final example I’m
gonna give some detail on is the Judicial Vesting Clause. So the general understanding,
the common wisdom is this is the way it works. Wilson and Madison say, “Gotta
have lower federal courts.” They lose. The counter measure is you’ll have low, the state courts would be the lower courts and then it’ll go to Supreme Court. Then Madison and Wilson come in and offer what’s called the Madisonian Compromise which is Congress can but
doesn’t have to create lower federal courts. Okay, that’s relevant for things like jurisdiction
stripping statutes, right? Morris wants lower federal courts and he changes the language. Oh, sorry. So he changes it from in such
Inferior Courts as shall, when necessary, from to time,
and they may not be necessary, that’s what goes in to the Committee. He changes it to in such inferior
courts as the Congress may from time to time ordain and establish. So he changes the language. And then in the initial debate, again the federalists use that language and they say, “The language is clear. “You gotta have lower federal courts. “It’s not discretionary.” Madison argues contrary to that. He says, “They’re a good idea. “You don’t have to have it.” Federalists say, “No, you gotta have it. “That’s what, the
constitutional text is clear,” including Morris in his
brief term in the Senate argues that, okay? So those are the, now the Supreme Court talks
about the Madisonian Compromise. These are our two textualist on the court. Scalia and Thomas. They both say, when
the argument is raised, “Oh, now, that argument fails,” ’cause there’s the Madisonian Compromise. They don’t realize that
Morris didn’t follow the Madisonian Compromise. He changed it. So those are my basic examples. The Preamble, the Contracts Clause, the Law of the Land Clause,
the Judicial Vesting Clause. In each case, he’s changed it
to get an end that he wants. And also, federalists use it
to argue for what they want. And the common understanding today: totally against the federalists. No judicial review, Madisonian Compromise, Contracts Clause really was
just about private contracts, the Preamble is hortatory. So he’s changed the language, he’s given language that
the federalists rely on and we ignore that today. Just a couple of other examples. The Vesting Clauses he creates: Unitary executive people make a big deal out of the difference between
the fact that Article I says, “Congress shall have all
legislative powers herein granted.” Article II says, “The president shall have “all executive powers.” That’s huge. Meyers. It’s very important for all
unitary executive theorists when they argue for a
broad presidential power. Morris, champion of board executive, he puts that difference
in, herein granted, he adds that to the
Vesting Clause in Congress. And then his buddy, Alexander
Hamilton, his best friend, relies on that in the first big
debate about foreign affairs to say that the president
has broad powers. “How do we know that”, says Hamilton. Because herein granted. “Congress just has legislative
powers herein granted.” The president has all executive powers. So Morris has created legislation that Hamilton is relying on. Two, quickly. Morris is a big pro-impeachment guy, thinks it should be broad
grounds of impeachment. He then, in the Impeachment Clause, he changes what goes in as, “high crimes and misdemeanors
against the United States,” he makes, “high crimes and misdemeanors.” He removes against the United States, which is actually very
important in, for example, the Clinton, when the question is, “President Clinton lied
before a grand jury,” it’s not a crime against
the United States. How much effect do we
give the the omission? Most historians say, “We’ll
go back to the prior draft,” but that’s not what Morris wanted. The other one which may become a big issue but nobody’s focused on yet, this is the Presidential
Succession Clause. What goes in is the
Legislature may declare by law what officer of the United
States shall act as President. So what that means is
that’s a term of our officer of the United States, is
members of the Executive and Judiciary, it’s not
members of Congress. So we change that to what officer. He’s gotten rid of the United States. So Nancy Pelosi is in
the line of succession because of Gouverneur Morris. Final point, he’s the only
one who speaks against slavery on a convention floor. Domestic slavery was a
nefarious institution. It was the curse of heaven on
the states where it prevailed. It was a horror, he talks about, this is in extraordinary power, that the admission of slaves
into the Representation means that the inhabitants
of Georgia in South Carolina who goes to the Coast of Africa, and in defiance of the most
sacred laws of humanity tears away his fellow
humans, fellow creatures from their dearest
connections and damns them to the most cruel bondages. Nobody else speaks against
slavery at the convention. And then in the Fugitive Slave Clause, he removes the word justly. So the original, what
goes into the Committee, talks about the person justly claiming their service or labor. He takes out justly. That’s critical. When the abolitionists
argue the Constitution recognizes slavery but
it doesn’t endorse it, it’s because of Gouverneur Morris. So what happens? Okay, again what are his goals? Pro-executive, pro-judiciary,
strong national government, protection of private
property, anti-slavery he gets language in on all of them. And then the common wisdom today is that’s not part of the
original understanding. Why? And I think it’s because, I mean there are number of reasons, but one is because of our worship of people who we consider
the great founders, right? And Madison plays it exactly right. He writes the notes and then doctors them to advance his interests. He then has a great career, member of Congress, secretary
of state, president, his notes are then published, he becomes iconic, he becomes the father of the Constitution. So when there are disagreements about what the Constitution means, “Well, Madison is the
father of Constitution. “This is what he says. “The Preamble is hortatory,” right? Madison plays it right. Okay, there are two other founders who could’ve been the
father of the Constitution, then who talk more than
Madison: Wilson and Morris. Just a few words about Wilson. Wilson explodes. Wilson cares too much
for his place in history. So he wants to be the chief
justice to the Supreme Court. Washington will not, and
he puts him on the court, but will not make him chief justice. I think partly because
he’s socially awkward. And Wilson is angry. And he wants to be one of the founders, he wants to be one of
the premier founders. And if he can be one of
the premier founders, he will be rich. And so he starts to (mumbles)
on the Supreme Court, he invests in real estate aggressively. And there’s a time in which he’s one of the five richest people in the country, but then the market
turns, the Panic of 1796, his creditors call in his
debts, he has no liquidity, he’s sent to a bankruptcy prison. He gets out but he travels the circuit as a member of the Supreme Court hiding from his creditors. (audience laughs) And he dies over a tavern in ignominy. So nobody says, “This
is what Wilson thought,” (audience laughs) because he’s become ignominious. Whereas, Morris is forgotten. Why? Now, and I just wanna say, first of all, he did have a take on this
stuff if he’d endured. This is a letter that he writes. And what he’s saying is, “When you’re interpreting
the Constitution, “don’t look at the drafter’s intent “or the ratifier’s
intent,” that’s confusing. (audience laughs) Look at the words. Why does he say that? ‘Cause they’re his words. (audience laughs) Okay, so even though he thinks that, it doesn’t become a powerful voice because he disappears from the
public after the convention. He’s the only one of the major founders who doesn’t go back and participate in a state ratifying convention. Hamilton goes to New York,
Madison goes to Virginia, Wilson goes to Pennsylvania,
he goes back to business. The only record we have of
him writing anything down, he goes to Virginia to visit his friend, Thomas Randolph, stayed at his house, goes to the Virginia Ratifying Convention, writes poems, making fun
of the Virginia delegates. (audience laughs)
Right? That’s the only thing
that we have from him during the ratifying debate. Then he goes to Europe. He does business in, he’s
Washington’s representative in England but also his business, he becomes ambassador to France during the French Revolution. After he’s pushed out
by the Jeffersonians, he stays in Europe making money. Then he comes back, he’s
briefly in the Senate and one of the things that
tells you a lot about Morris is he’s always elected to
office ’cause he’s so capable and he’s never re-elected. (audience laughs) So he’s very briefly in the Senate. And then when he loses re-election he returns to private life, he makes some important contributions. Again if you’re in Manhattan, the grid, the avenues in the streets
he’s the one who designs that. Erie Canal. He’s the major figure in the
creation of the Erie Canal. But mostly he’s focused on making money. And then at the age of
57, he gets married. But first, I just wanna,
this is Teddy Roosevelt who, this is what he says about Morris. And Teddy Roosevelt writes
a biography of Morris and I think of all the biographies he’s the only who gets Morris. Because he looks around and he goes, “Aristocratic (scoffs),
domineering, smart, “trying to get whatever he wants,” that’s a pretty impressive combination. He sees himself in Morris. So when he writes a biography of Morris, “There has never been
an American statesman “of keener intellect or more brilliant,” again that word, “genius. “Had he possessed but a
little more steadiness “and self-control he would have stood “among the two or three very foremost.” But he doesn’t. (audience laughs) He returns to private life. Everybody else is concerned
with their legacy; he’s concerned with himself. And building a nation is
just one chapter of his life. He’s got a vision, but it’s
just one chapter of his life. And then at the age of 57, he marries, this is not a great slide,
Nancy Randolph, okay? Now whenever I tell this
story, people go like, “Hey, that’d be a great rap opera,” right? I hope so. (all laugh) I hope I get some of the royalties. But if his story is a great rap opera, even more powerful is the story, which is truly operatic
of the woman he marries, Ann “Nancy” Randolph Morris. So just very briefly. So she’s another Randolph. When he’s in Virginia staying
in Thomas Randolph’s house she’s a teenager. Then Randolph’s wife
dies, he gets remarried, had a second wife, and he pushed
the kids out of the house. And they forced Nancy
and Judith, her sister, into marriages that they
don’t want with two cousins, Richard and Theodoric Randolph. Theodoric, Nancy’s fiance dies. She goes to live with Judith and Richard, she becomes pregnant. Probably by him. She either gives birth
or has a miscarriage. And he is tried for infanticide. He hires John Marshall and Patrick Henry and he gets acquitted. So then they all were living together, Judith and Nancy and
Richard in the same house. And then two years later, he dies. And some people think it’s natural causes, some people think Judith poisoned him, some people think Nancy poisoned him. After a couple more years, Judith kicks her sister out of the house. She’s an outcast in Virginia society. She makes her way north. We don’t know how she survived. And then she meets Gouverneur Morris. And Morris is looking for
somebody to run his house and he says, “Would you run my house?” And she moves in and she runs the house and they fall in love. Then she tells him this
story and he accepted. He’s a little bit
worried about the poison. (everyone laughs) So he writes a letter to
John Marshall, the lawyer, and he says, “I don’t want you to break “attorney-client privilege,
but you were the attorney, “and as a fellow federalist,
I’m thinking of marrying “Nancy Randolph, would that be a mistake?” (everyone laughs) And John Marshall writes back, he says, “Absolutely, go ahead.” And Morris marries Nancy Randolph and they have a child,
Gouverneur Morris I. He dies about four years later. If you go to the Bronx,
St. Ann’s in the Bronx which is later built
by Gouverneur Morris I in honor of his mother, Nancy Ann, is Gouverneur’s tomb. And the inscription was
written by his wife. And if you read tombs at the time, they’re mostly about
horrible things happening. This is unique. It’s about love. Conjugal affection consecrates this spot where the best of men was laid. And the last writings that
we have of Gouverneur Morris are poems that he wrote about his love for his wife and his child. That’s St. Ann’s. And this is his philosophy. “To try to do good, to avoid evil, “a little severity for one’s self, “a little indulgence for others, “this is the means to
obtain some good result “out of our poor existence. “To love one’s friends,
to be beloved by them “this is the means to brighten it.” Now I don’t mean to kinda be too maudlin, he did try to steal the Constitution. (audience laughs) But I think you can get
a sense of who he was by looking again at kind of the classic portraits of this period. Robert Morris and Gouverneur Morris. James Madison looking off
to the right to posterity. Hamilton, same pose. Washington, same pose. Totally different. This is the only major picture
of a framer with a friend, and they seem to be enjoying
each other’s company. So one of the enduring messages
of understanding Morris is that while all the other founders cared about their place and posterity, he cared more broadly,
in part about the nation, but in part about all the personal things that mattered to him. And so that’s really
what this talk is about. It’s about recovering
Morris and seeing him where he’s always been present. (audience laughs) But we’ve never known of his influence. Thank you all. (audience applauds)

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