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Monday, June 08, 2020

Review: The Summer of 1787: The Men Who Invented the Constitution by David O. Stewart

David Stewart, a lawyer who has argued before the Supreme Court and become an expert on the impeachment of Andrew Johnson, has written a marvelously detailed account of the constitutional Convention of 1787.

We really only have Madison's notes for what went on and he edited those, some suspect for political considerations, after the fact, but it appears to be a fairly accurate account of what happened in that stuffy and stifling room in Philadelphia in 1787.

Benjamin Franklin remarked that he wasn't sure if the carving of the sun on the back of Washington's chair was rising or setting, and indeed, there was a lot of antagonism to a system that gave more power to a central government. However, it was necessary as states were constantly squabbling among each other about tariffs on each other's goods, militias, paying debts, honoring each other's money, and a myriad of other issues.

George Washington was particularly concerned after Shay's Rebellion that pitted one colony (they weren't really states yet) against another: “I am mortified beyond expression,” Washington wrote in October 1786, “when I view the clouds that have spread over the brightest morn that ever dawned upon any country.” Without “some alteration in our political creed,” he declared, “the superstructure we have been seven years raising at the expense of so much blood and treasure, must fall. We are fast verging to anarchy and confusion!”

Slave states worried about their slave trade and feared that a central power would create a centralized army that could shut it down. Indeed, Patrick Henry in his tirade against the ratification of the new Constitution in Virginia's House of Delegates was heard to exclaim, "They're coming to get your niggers." Slavery was the elephant in the room throughout the discussions. It was intertwined with what to do with the "West." No one was quite sure how to parcel it out and westerners were considered treacherous, fickle, and not to be trusted. It was even feared they might form their own government and secede. Land titles were unclear and several of the delegates, including Washington, were speculating on land values beyond the Appalachians, which formed the boundary between east and west.* Native American "ownership" was never considered, but there were many squatters and it took years to resolve the claims. **

I was humbled to realize how much I had forgotten from high school and surprised to learn (relearn?) of the role of John Rutledge and the Committee of five who were tasked with the job of summarizing and codifying the work of the larger Committee of the Whole that had slugged its way to some unanimity during the summer. Rutledge and the committee rewrote and even changed much of what had been agreed upon. Most importantly, Rutledge was intent on weakening the central government and providing protections for slavery. He was, after all, from South Carolina, and owned as many as 60 slaves, a number that had decreased to only one by the time of his death in 1800. The Committee, which had excluded Madison -- perhaps the members tiring of his pedantic allocutions -- made clear that the Supreme Court was to decide issues and not just offer advisory opinions. As a judge who went on to become the second chief justice, after John Jay, a position of great importance to him. He didn't last long in that position. He had begged for the job and Washington gave it to him as a recess appointment, but then he turned around and gnawed on the hand that tried to help him by vitriolically attacking the treaty that John Jay had concluded for Washington with Great Britain. Rutledge reportedly said in the speech "that he had rather the President should die than sign that puerile instrument"– and that he "preferred war to an adoption of it." His appointment was rejected by the Senate, a first. Rutledge remains the only Supreme Court justice unseated involuntarily by the Senate, serving the shortest term of any justice, 138 days.

In a fit of depression he walked into a river, but as the level reached his neck he was spotted by some slaves who managed to save him from drowning in spite of his kicking and screaming. The great defender of slavery was prevented from taking his life by those whom he wanted to keep enslaved. Several other delegates did not fare well after the convention: two duels and several bankruptcies among their downfalls.

Stewart has told a great story.

*Aaron Burr was heavily involved in speculation. He was accused of conspiring to foment a war with Spain (Andrew Jackson and General Wilkenson were in on it) in order to increase the value of his property in the west. Ultimately, having seriously irritated the Jefferson administration, he was tried for treason, Justice Marshall presiding, but was acquitted.

**Native American rights were nicely eliminated by the Discovery Doctrine, a colonial technique to void aboriginal ownership of lands conquered. It said that any land "discovered" by a European power was owned by that power. This doctrine was a major factor in the Lewis & Clark expedition. It gave the Jefferson administration rights to all the lands they explored. Justice Marshall, in one of his more notorious decisions, validated the doctrine writing, "As a corollary, the "discovering" power gains the exclusive right to extinguish the "right of occupancy" of the Indigenous occupants, which otherwise survived the assumption of sovereignty. " See Miller, Robert J. Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies. New York: Oxford University Press, 2010 and https://en.wikipedia.org/wiki/Discovery_doctrine

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