On the issue of constitutional interpretation, notice how this important co-author of the Constitution says “don’t ask what we were thinking — interpret the thing using the plain meaning of my words.” But at the same time, he goes out of his way to leave room for future generations to interpret it differently, in the express hope that they will? Guess that clears up THAT question!
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For those interested in the actual, unabridged texts, here you go:
Letter of Gouverneur Morris to Timothy Pickering
Morrisania, December 22d, 1814.
While I sat in the Convention, my mind was too much occupied by the interests of our country to keep notes of what we had done. Some gentlemen, I was told, passed their evenings in transcribing speeches from shorthand minutes of the day. They can speak positively on matters, of which I have little recollection. My faculties were on the stretch to further our business, remove impediments, obviate objections, and conciliate jarring opinions. All which I can now do is to ask myself what I should do were questions stated anew; for, in all probability, what I should now do would be what I then did, my sentiments and opinions having undergone no essential change in forty years.
Propositions to countenance the issue of paper money, and the consequent violation of contracts, must have met with all the opposition I could make. But, my dear Sir, what can a history of the Constitution avail towards interpreting its provisions. This must be done by comparing the plain import of the words, with the general tenor and object of the instrument. That instrument was written by the fingers, which write this letter.
Having rejected redundant and equivocal terms, I believed it to be as clear as out language would permit; excepting, nevertheless, a part of what relates to the judiciary. On that subject, conflicting opinions had been maintained with so much professional astuteness, that it became necessary to select phrases, which expressing my own notions would not alarm others, nor shock their selflove, and to the best of my recollection, this was the only part which passed without cavil.
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Letter of Gouverneur Morris to Henry W. Livingston
December 4, 1803
A circumstance, which turned up in conversation yesterday, has led me again to read over your letter of the third of November, and my answer of the twenty-eighth. I perceive now, that I mistook the drift of your inquiry, which is substantially whether the Congress can admit, as a new State, territory, which did not belong to the United States when the Constitution was made. In my opinion they cannot.
I always thought that, when we should acquire Canada and Louisiana it would be proper to govern them as provinces, and allow them no voice in our councils. In wording the third section of the fourth article, I went as far as circumstances would permit to establish the exclusion. Candor obliges me to add my belief, that, had it been more pointedly expressed, a strong opposition would have been made.
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Notes of Thomas Jefferson of private remarks by George Mason
Gunston Hall, September 30, 1792
The constn as agreed to till a fortnight before the convention rose was such a one as he wd have set his hand & heart to. 1. the presidt was to be elected for 7 years, then ineligible for 7 more. 2. rotation in the senate. 3. a vote of 2/3 in the legislature on particular subjects, & expressly on that of navign. the 3 new Engld. states were constantly with us in all questions (Rho. isld. not there, & N. York seldom) so that it was these 3 states with the 5 Southern ones against Pennsva Jersey & Delaware. with respect to the importn of slaves it was left to Congress. this disturbed the 2 Southernmost states who knew that Congress would immediately suppress the importn of slaves. those 2 states therefore struck up a bargain with the 3 N. Engld. states, if they would join in changing the clause which required 2/3 of the legislature in any vote. it was done. these articles were changed accordingly, & from that moment the two S. states and the 3 Northern ones joined Pen. Jers. & Del. & made the majority 8 to 3 against us instead of 8 to 3 for us as it had been thro’ the whole Convention. under this coalition the great principles of the Constn were changed in the last days of the Convention.
Anecdote. Yates Lansing & Hamilton represented N.Y. Yates & Lansing never voted in one single instance with Ham. who was so much mortified at it that he went home. when the season for courts came on, Yates a judge & Lansing a lawyer went to attend their courts. then Ham. returned.
Anecdote. the constn. as agreed at first was that amendments might be proposed either by Congr. or the legislatures a commee was appointed to digest & redraw. Gov. Morris & King were of the commee. one morng. Gov. M. moved and instrn for certain alterns (not 1/2 the members yet come in) in a hurry & without understanding it was agreed to. the Commee reported so that Congr. shd have the exclusve. power of proposg. amendmts. G. Mason observd it on the report & opposed it. King denied the constrn. Mason demonstrated it, & asked the Commee by what authority they had varied what had been agreed. G. Morris then impudently got up & said by authority of the convention & produced the blind instruction beforementd. which was unknown by 1/2 of the house & not till then understood by the other. they then restored it as it stood originally.
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Statement of Albert Gallatin in the House of Representatives, June 19, 1798
Mr. G. said he was well informed that those words had originally been inserted in the Constitution as a limitation to the power of laying taxes. After the limitation had been agreed to, and the Constitution was completed, a member of the Convention, (he was one of the members who represented the State of Pennsylvania) being one of a committee of revisal and arrangement, attempted to throw these words into a distinct paragraph, so as to create not a limitation, but a distinct power. The trick, however, was discovered by a member from Connecticut, now deceased, and the words restored as they now stand.
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Despite that spending clause backtrack, Morris might have gotten his way anyway. See McCulloch v. Maryland, 17 U.S. 316 (1819) (holding that Congress has implied powers not limited to those that were enumerated — we will get to this one in more detail later).
There’s a lot going on in this quote: “The framers of the constitution wished its adoption, and well knew that it would be endangered by its strength, not by its weakness. Had they been capable of using language which would convey to the eye one idea, and, after deep reflection, impress on the mind another, they would rather have disguised the grant of power than its limitation.”
This corresponds neatly with what Morris seems to have been trying to accomplish, making it look restrictive while leaving room for later interpretation that is instead expansive.
And it serves as the basis for the following crucial words of the decision: “If, then, their intention had been, by this clause, to restrain the free use of means which might otherwise have been implied, that intention would have been inserted in another place, and would have been expressed in terms resembling these. ‘In carrying into execution the foregoing powers, and all others,’ &c., ‘no laws shall be passed but such as are necessary and proper.’ Had the intention been to make this clause restrictive, it would unquestionably have been so in form as well as in effect.” And therefore, he reasons, it is open to interpretation as enlarging Congress’s powers, but not as restricting them.
But there’s more going on here, and it’d be a mistake to shoehorn this case into the topic at hand. We’ll get to it, don’t worry.
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And so long as I’m quoting letters, here’s one showing how Guv’neer’s “room for interpretation” backfired on him when it came to recess appointments:
Letter of Gouverneur Morris to W. H. Wells
Morrisania, February 24th, 1815.
The Constitution, I think, intended that certain offices should be held at the President’s pleasure. It is unquestionably an abuse to create a vacancy in the recess of the senate, by turning a man out of office, and then filling it as a vacancy that has happened.
Shortly after the Convention met, there was a serious discussion on the importance of arranging a national system of sufficient strength to operate, in despite of State opposition, and yet not strong enough to break down State authority. I delivered on that occasion this short speech. “Mr President; if the rod of Aaron do not swallow the rods of the Magicians, the rods of the Magicians will swallow the rod of Aaron.”
You will ask, perhaps, how, under such impressions, I could be an advocate of the Federal Constitution. To this I answer, first, that I was warmly pressed by Hamilton to assist in writing the Federalist, which I declined. Secondly, that nothing human can be perfect. Thirdly, that the obstacles to a less imperfect system were insurmountable. Fourthly, that the Old Confederation was worse. And fifthly, that there was no reason, at that time, to suppose our public morals would be so soon and so entirely corrupted. Mr Mason, a delegate from Virginia, constantly inveighing against Aristocracy, labored to introduce Aristocratic provisions. Some of them might have been wholesome, but they would have been rejected by public feeling, in the form proposed, and if modified to render them acceptable, by detracting proportionately from executive authority, which was his plan, we should have risked less indeed from the whelming flood of Democracy, but we should have had a President unable to perform the duties of his office.
Surrounded by difficulties, we did the best we could; leaving it with those who should come after us to take counsel from experience, and exercise prudently the power of amendment, which we had provided.
