The critical role of committees at the U.S. constitutional convention of 1787

American Journal of Legal History

Volumn 48, Issue 2, 2006, Pages 147-176

  Vile, John R ^a  

^a UNIVERSITY OF VIRGINIA   (United States)

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EID: 34548312354     PISSN: 00029319     EISSN: None     Source Type: Journal    
DOI: 10.2307/25434790     Document Type: Review

References (166)

1. For key works on the Confederation, see MERRILL JENSEN, THE ARTICLES OF CONFEDERATION (1966); ROBERT W. HOFFERT, A POLITICS OF TENSIONS: THE ARTICLES OF CONFEDERATION AND AMERICAN POLITICAL IDEALS (1992); KEITH L. DOUGHERTY, COLLECTIVE ACTION UNDER THE ARTICLES OF CONFEDERATION (2001); ANDREW C. MCLAUGHLIN, THE CONFEDERATION AND THE CONSTITUTION, 1783-1789 (1962 [1905]; and Richard B. Morris, The Confederation Period and the American Historian," 13 WM. & MARY QUAR., 3rd Ser. 139-156 (1956).
2. Quoted from Article II as found in WINTON U. SOLBERG, ED., THE FEDERAL CONVENTION AND THE FORMATION OF THE UNION OF THE AMERICAN STATES 42 (1958). Herinafter cited as SOLBERG.
3. Id., Article IX, p. 49 and Article XIII, p. 51. The former specifies that: "The united states in congress assembled shall never engage in a war, nor grant letters of marque and reprisal in time of peace, nor enter into any treaties or alliances, nor coin money, nor regulate the value thereof, nor ascertain the sums and expences necessary for the defence and welfare of the united states, or any of them, nor emit bills, nor borrow money on the credit of the united states, nor appropriate money, nor agree upon the number of vessels of war, to be built or purchased, or the number of land or sea forces to be raised, nor appoint a commander in chief of the army or navy, unless nine states assent to the same."
4. MAX M. EDLING, A REVOLUTION IN FAVOR OF GOVERNMENT: ORIGINS OF THE U.S. CONSTITUTION AND THE MAKING OF THE AMERICAN STATE (2003) and DAVID C. HENDRICKSON, PEACE PACT: THE LOST WORLD OF THE AMERICAN FOUNDING (2003).
5. See Jack N. Rakove, The Gamble at Annapolis, THIS CONSTITUTION no. 12, 5-10 (1986).
6. SOLBERG at 58-59.
7. Id. at 60-63,
8. For discussion of this event, see Robert A. Peer, Shay's Rebellion and the Constitution: A Study in Causation, 42 NEW ENG. QUAR. 388-410 (1969); LEONARD L. RICHARDS, SHAY'S REBELLION: THE AMERICAN REVOLUTION'S FINAL BATTLE (2002); and Joseph P. Warren, The Confederation and Shay's Rebellion. 11 AMER. HISTORICAL REV. 42-67 (1905).
9. SOLBERG at 64. The resolution specified: "Resolved that in the opinion of Congress it is expedient that on the second Monday in May next a Convention of delegates who shall have been appointed by the several states be held at Philadelphia for the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein as shall, when agreed to in Congress and confirmed by the states render the federal constitutional adequate to the exigencies of Government and the preservation of the Union."
10. In characteristically thorough fashion, historian Clinton Rossiter divided the convention delegates into four groups. Of the fifty-five men who attended, he classified 29 as "full-times" and 10 as "full-times except for a few missed weeks. He identified 12 who "missed long and critical portions of the Convention" and four others who could almost be called absentees. See CLINTON ROSSITER, 1787: THE GRAND CONVENTION 165-65 (1966).
11. Martin Diamond has observed that six of the 55 delegates had signed the Declaration of Independence and six had signed the Articles of Confederation; 24 had served in the Continental Congress; 46 had served in state or colonial legislatures; 10 had helped to draft state constitutions; 39 had served, or were then serving, in the federal Congress; and three had been administrative officers under the Articles. See MARTIN DIAMOND, THE FOUNDING OF THE DEMOCRATIC REPUBLIC 17 (1981).
12. Norman K. Risjord, Partisanship and Power: Home Committees and the Powers of the Speaker, 1789-1801. 49 WM. & MARY QUAR. 3rd Ser. 632 (1992).
13. For a summaiy of this plan and the controversy that surrounds it, see MARTY D. MATTHEWS, FORGOTTEN FOUNDER; THE LIFE AND TIMES OF CHARLES PINCKLEY 41-46 (2004).
14. MAX FARRAND, ed. THE RECORDS OF THE FEDERAL CONVENTION OF 1787 [herein cited as FARRAND], 4 vols., I, 2 (1937 rev. ed, 1966). These volumes have been ably supplemented by JAMES H. HUTSON, ed., SUPPLEMENT TO MAX FARRAND'S THE RECORDS OF THE FEDERAL CONVENTION OF 1787 (1987).
15. See JOHN R. VILE, ed., GREAT AMERICAN LAWYERS: AN ENCYCLOPEDIA, 2 vols., II, 735 (2001).
16. FARRAND, I, 7-8.
17. It is interesting to speculate as to whether Wythe might have asked Mason (a fellow delegate from Virginia) to suggest the secrecy rule on the floor of the convention, but since the states present unanimously adopted the rule, there is no special reason to believe that Wythe was using floor debates to win a battle he had lost in committee.
18. FARRAND, I, 9-11.
19. FARRAND, I, 11. Delegates from Delaware arrived at the Convention with specific instructions not to give up equal state representation in Congress, See FARRAND, I, 37, so it is unlikely that they would have stayed had they initially been denied the equal representation to which they had been accustomed under the Articles of Confederation.
20. Rhode Island did not send delegates, and delegates from New York left the convention about the time that those from New Hampshire arrived. On most matters, then, the maximum vote was eleven states. A vote of 7 to 3 to 1 would indicate that seven states votes for a proposal, three against it, one was divided, one state had not yet arrived, and one would never do so.
21. FARRAND, I, 12.
22. See especially Max Farrand, Compromises of the Constitution, 1 ANNUAL REPORT OF THE AMER. HISTORICAL ASSOC. 72-84 (1904) and William E. Nelson, Reason and Compromise in the Establishment of the Federal Constitution, 1787-1801. 44 WM. AND MARY QUAR., 3rd ser 458-84 (1987).
23. Peter B Knupfer, The Rhetoric of Conciliation: American Civil Culture and the Federalist Defense of Compromise. 11 J. OF THE EARLY REPUBLIC 315-37 (1991).
24. Dana Lansky, Proceeding to a Constitution: A Multi-Party Negotiation Analysis of the Constitutional Convention of 1787. 5 HARV. NEGOT. L. REV. 326 (2000).
25. Calvin C. Jillson, Constitution-Making: Alignment and Realignment in the Federal Convention of 1787, 75 AMER. POLITICAL SCI. REV. 603 (1981).
26. FARRAND, I, 17.
27. FARRAND, I, 17.
28. FARRAND, III, 279. In what may be something of an exception to this observation, the delegates voted on July 25 to furnish copies of the convention's proceedings to the Committee of Detail but to withhold them from other members of the house. See FARRAND, III, 115. The delegates likely reasoned that five men were less likely to misplace or "leak" copies of the proceedings to the general public than was the entire convention.
29. PAUL S. CLARKSON AND R. SAMUEL JETT, LUTHER MARTIN OF MARYLAND 108 (1970).
30. The idea of appointing committees with a member from each state, which the convention utilized on six different occasions, suggests that the Convention may actually have hoped that individual representatives would bring ideas from their state delegations to committee deliberations. Convention delegates might also have hoped that members of such committees would seek to persuade members of their delegations that they had made the best case on behalf of state interests that they could.
31. Risjord, note 12 supra at 633. Ironically, while the Committee of the Whole that operates in today's Congress at least in theory limits debates on amendment to five minutes for and against, [See GUIDE TO CONGRESS, 4th ed., 428 (1991)], the Committee of the Whole at the Constitutional Convention witnessed the longest speech (Hamilton's) of the proceedings. See FARRAND, I, 282-93.
32. George B. Galloway, Precedents Established in the First Congress, 22 WESTERN POLITICAL QUAR. 457-59 (1958).
33. FARRAND, I, 29, note 1 ; FARRAND, III, 433.
34. See Robert A, Rutland, The Virginia Plan of 1787: James Madison's Outline of a Model Constitution, THIS CONSTITUTION 23-30 (1984).
35. See, for example, MARVIN MEYERS, ed. THE MIND OF THE FOUNDER: SOURCES OF THE POLITICAL THOUGHT OF JAMES MADISON (1973). When an "admiring citizen" called Madison "the writer of the Constitution of the U.S." Madison responded: "You give me a credit to which I have made no claim." He further observed that the document "was not, like the fabled Goddess of Wisdom, the offspring of a single brain. It ought to be regarded as the work of many heads & many hands." See Rutland, Id. at 23.
36. FARRAND, I, 20-23, contains the series of 15 resolutions that Edmund Randolph introduced outlining the plan. For discussion of the mechanism for congressional veto of state laws and Madison's disappointment over its failure, see Charles F. Hobson, The Negative on State Laws: James Madison, the Constitution and the Crisis of Republican Government, 36 WM. AND MARY QUAR., 3rd Ser., 215-35 (1979).
37. FARRAND, I, 45; 62; 76; 93; 115; 130; 148; 162; 174, 192; 209; 223; 248; 281.
38. GUIDE TO CONGRESS at 428.
39. FARRAND, I, 228-32.
40. FARRAND, I, 242.
41. Randolph had first introduced the Virginia Plan on May 29, he had introduced it with the following: "Resolved that the articles of Confederation ought to be so corrected & enlarged as to accomplish the objects proposed by their institution; namely, 'common defence, security of liberty and general welfure.'" FARRAND, I, 20. By the next day, the Convention had voted to alter this to read: "Resolved that it is the opinion of this Committee that a national government ought to be established consisting of a supreme Legislative, Judiciary, and Executive." FARRAND, I, 30-31.
42. FARRAND, I, 242.
43. Scholars recognize that the Virginia Plan thus performed an "agenda-setting" function. See Lansky, note 24 supra, at 282.
44. FARRAND, I, 244-45. For specific links to the supremacy clause, see Robert H. Birkby, Politics of Accommodation: The Origins of the Supremacy Clause, 19 WESTERN POLITICAL QUAR.. 123-25(1966).
45. FARRAND, I, 313.
46. FARRAND, II, 196.
47. FARRAND, II, 193.
48. Even this distinction was not particularly meaningful since rules pennitted the Convention to revote on issues. See FARRAND, I, 17.
49. FARRAND, I, 37.
50. Much of the dispute between the colonies and England had stemmed from the colonists' belief that they were entitled to "actual" representation in Parliament and the British belief that they were "virtually" represented there. See especially, CHARLES A. KROMKOWSKI, RECREATING THE AMERICAN REPUBLIC: RULES OF APPORTIONMENT, CONSTITUTIONAL CHANGE, AND AMERICAN POLITICAL DEVELOPMENT, 1700-1870 (2002) and ROSEMARIE ZAGARRI THE POLITICS OF SIZE: REPRESENTATION IN THE UNITED STATES, 1776-1850 (1987).
51. FARRAND, I, 492.
52. FARRAND, I, 450-52. Contrary to many reports, the delegates appear ultimately to have rejected the idea out of tear that it would lead to speculation by outside observers and because it had no funds to employ a chaplain for this purpose. The Constitution's failure to mention God has long been a subject of controversy, which has stimulated many proposals to add such a reference. See Steward O. Jacoby, The Religious Amendment Movement: God, People and Nation in the Guilded Age, 2 vols. (1984) (unpublished Ph.D. dissertation, University of Michigan). Also see JOHN R. VILE, ENCYCLOPEDIA OF CONSTITUTIONAL AMENDMENTS, PROPOSED AMENDMENTS, AND AMENDING ISSUES, 1789-2002, 2nd ed. 64-66 (2003).
53. FARRAND, I. 510.
54. FARRAND, I, 511.
55. FARRAND, I, 10-11. See material tied to note 19 supra. Also see Lansky at 332-33.
56. FARRAND, I, 511.
57. FARRAND, I, 196, indicates that Sherman had proposed on June 11 "that the proportion of suffrage in the 1st branch should be according to the respective numbers of free inhabitants; and that in the second branch or Senate, each State should have one vote and no more. David B. Robertson has recently highlighted Sherman's important role at the Convention in Madison's Opponents and Constitutional Design, 99 AMER. POLITICAL SCIENCE R 225 (2005). He has elaborated further on this theme in THE CONSTITUTION AND AMERICA'S DESTINY (2005).
58. FARRAND, I, 511-14.
59. FARRAND, I, 514.
60. FARRAND, I, 515.
61. FARRAND, I, 515.
62. FARRAND, I, 515.
63. FARRAND, I, 515.
64. FARRAND, I, 515.
65. FARRAND, I, 515.
66. FARRAND, I, 515.
67. FARRAND, I, 516. Of these Gerry and Mason stayed to the last day of the Convention and refused to sign the document. Robert Yates and Luther Martin left the Convention early because of their opposition. Thus, a third of the committee consisted of individuals who later identified themselves as Antifederalists. Delegates on committees consisting of one delegate from each state are listed in this paper, as in convention records, from North to South. This is the same manner in which the constitution was signed.
68. Thus, on June 30, Franklin had observed that "When a broad table is to be made, and the edges [of planks do not fit] the artist takes a little from both, and makes a good joint. In like manner here both sides must part with some of their demands, in order that they may join in some accommodating proposition." FARRAND, I, 488. For Franklin's more general role, see WILLIAM G. CARR, THE OLDEST DELEGATE: FRANKLIN IN THE CONSTITUTIONAL CONVENTION, 1990.
69. FARRAND, I, 522.
70. Calvin Jillson and Thorton Anderson, Voting Bloc Analysis in the Constitutional Convention: Implications for an Interpretation of the Connecticut Compromise. 31 WESTERN POLITICAL QUAR. 547 (1978).
71. FARRAND, I. 526. Madison further observed that the Committee had rejected an arguably promising motion by Roger Sherman that would have provided "that each State should have an equal vote in the 2d branch; provided that no decision therein should prevail unless the majority of States concurring should also comprise a majority of the inhabitants of the U. States."
72. FARRAND, I, 233.
73. FARRAND, I, 526.
74. FARRAND, III, 190.
75. FARRAND, III, 190. Underlining in original.
76. FARRAND, I, 527.
77. FARRAND, I, 540.
78. FARRAND, I, 542.
79. FARRAND, I, 542. Delegates are listed according to Convention records (although Madison originally had Gorham's name prior to Morris's). It seems likely that members are thereby listed according to the number of votes they received-speculation strengthened by the likelihood that the person making the motion for the committee might be considered the most suitable for serving on it.
80. FARRAND, I, 543.
81. FARRAND, I; 559.
82. Toward the end of the Convention, the delegates decided to allocate one representative for every 30,000 inhabitants rather than one for every 40,000. In part because of this, the composition of the House of Representatives changed significantly after the first census of 1790, rising from 65 to 106 members. The addition of Kentucky and Vermont (each with two representatives) added four seats. Other gains were as follows: Connecticut representation jumped from 5 to 7; Maryland's from 6 to 8; that of Massachusetts from 8 to 14; New Hampshire's from 3 to 4; New Jersey's from 4 to 5; New York's from 6 to 10; North Carolina's from 5 to 10; Pennsylvania's from 8 to 13; Rhode Island's from 1 to 2; South Carolina's from 5 to 6; and Virginia's from 10 to 19. Georgia dropped from 3 representatives to 2, and Delaware retained its single representative. See GUIDE TO CONGRESS, at 741.
83. FARRAND, I. 560.
84. FARRAND, I, 560.
85. FARRAND, I, 561.
86. FARRAND, I, 563.
87. FARRAND, I, 601.
88. FARRAND, II, 15.
89. John E. O'CONNOR, WILLIAM PATERSON: LAWYER AND STATESMAN, 1745-1806 157 (1979).
90. FARRAND, II, 18, Randolph thus said that: "For these reasons he wished the Convention might adjourn, that the large States might consider the steps proper to be taken in the present solemn crisis of the business, and that the small States might also deliberate on the means of conciliation" Paterson responded, also at 18, that" it was high time for the Convention to adjourn that the rule of secrecy ought to be rescinded and that our Constituents should be consulted." After inquiry by Charles Cotesworth Pinckney, Randolph responded that he "had never entertained an idea of an adjournment sine die; & was sorry that his meaning had been so readily & strangely misinterpreted. He had in view merely an adjournment till tomorrow in order that some conciliatory experiment might if possible be devised, and that in the smaller States should continue to hold back, the larger might then take such measures, he would not say what, as might be necessary."
91. FARRAND, II, 20.
92. FARRAND, II, 20.
93. FARRAND, II, 95.
94. FARRAND, II, 95-96.
95. FARRAND, II. 97.
96. MARGOT C. MABIE, THE CONSTITUTION: REFLECTION OF A CHANGING NATION, 31-32 (1987).
97. CHARLES C. THACH, THE CREATION OF THE PRESIDENCY, 1776-1789: STUDY IN CONSTITUTIONAL HISTORY (1922).
98. FARRAND, II, 137.
99. Scholars have generally attributed the durability of the U.S. Constitution to its parsimony. See, for example, Akhil Reed Amar, Architexture +. 77 IND.. L. J. 671-700 (2002). For a recent critique of this view, see Christopher W. Hammons, Was James Madison Wrong? Rethinking the American Preference for Short, Framework-Oriented Constitutions"
100. AMER. POLITICAL SCIENCE REM. 837-49 (1999).
101. The Committee had two articles labeled VI. The analysis here is based on corrected numbering.
102. FARRAND, II, 177. This preamble does not list the other purposes that today's preamble lists, although it does include the words "ordain, declare, and establish the following Constitution for the Government of Ourselves and our Posterity."
103. FARRAND, II, 177-89.
104. John C. Heuston. Altering the Course of the Constitutional Convention: The Role of the Committee of Detail in Establishing the Balance of State and Federal Powers. 100 YALE L. J. 766 (1990).
105. Id. at 770.
106. As John Marshall observed in McCulloch v. Maryland, 4 Wheat. (17 U.S.) 316 (1819), unlike the corresponding Article in the Articles of Confederation (article II), the U.S. Constitution, Amendment 10, omits the word "expressly."
107. FARRAND, 14, 182. See last provision of Sect. 1 of Article VII.
108. See, especially, McCulloch v. Maryland, 4 Wheat (17 U.S.) (1819). It should be observed, however, that the clause received relatively little attention at the Convention, and that, when Antifederalists pointed to fears that it would be used as the basis of expanded national powers, Federalists largely dismissed such concerns as in Federalist No. 33 where Alexander Hamilton observed that "it may be affirmed with perfect confidence that the constitutional operation of the intended government would be precisely the same if these clauses were entirely obliterated as if they were repeated in every article." See ALEXANDER HAMILTON, JAMES MADISON, AND JOHN JAY, THE FEDERALIST PAPERS (Clinton Rossiter, ed) 202 (1961).
109. THACH, 116.
110. FARRAND, II, 324-25
111. FARRAND, II, 324-25.
112. FARRAND, II, 341-42.
113. FARRAND, II, 342-43.
114. FARRAND, II, 385-86.
115. FARRAND, II, 322.
116. FARRAND, II, 323.
117. FARRAND, II, 355-56.
118. RICHARD B. BERNSTEIN WITH JEROME AGEL, AMENDING AMERICA: IF WE LOVE THE CONSTITUTION SO MUCH, WHY TO WE KEEP TRYING TO CHANGE IT? 144-45 (1993).
119. FARRAND, II, 356.
120. FARRAND, II, 384-89.
121. FARRAND, II, 221-23.
122. FARRAND, II, 374.
123. FARRAND, II, 374-75.
124. FARRAND, II, 375.
125. Albert Saye has argued in "Georgia: Security through Union," in PATRICK T. CONLEY AND JOHN P. KAMINSKI, eds. THE CONSTITUTION AND THE STATES: THE ROLE OF THE ORIGINAL THIRTEEN IN THE FRAMING AND ADOPTION OF THE FEDERAL CONSTITUTION(1988), 85, that Baldwin had previously purposely split his state's vote on representation in the Senate (voting with those who favored equality in that body) in order to keep the Convention from dissolving.
126. FARRAND, II, 400.
127. FARRAND, II, 418.
128. FARRAND, II, 434.
129. FARRAND, II, 434.
130. FARRAND, II, 47.
131. FARRAND, II, 448. Especially in cases where committees consist of a member from each state, committee members are listed from North to South. This author surmises, but does not know for sure, that the members here are listed according to the respective votes that they received. If so, this would be further confirmation that the Convention placed special faith in the earlier work of the Committee of Detail, which Rutledge had headed.
132. FFARRAND, II, 484-85.
133. FARRAND, II, 488-89.
134. Peter J. Coleman, Bankruptcy and Insolvency Legislation" in THE OXFORD COMPANION TO THE SUPREME COURT OF THE UNITED STATES (Kermit Hall, ed.) (1982).
135. FARRAND, II, 481.
136. FARRAND, II, 484.
137. FARRAND, II, 497.
138. FARRAND, II, 497-99.
139. The author resists the temptation to cite the numerous analyses of the 2000 presidential election, many of which burden his own shelves, in part because so many of the authors found it difficult to extract the strengths and weaknesses of the mechanism from the results of the particular election that they were analyzing. The best critique of the mechanism is found in GEORGE C. EDWARDS III, WHY THE ELECTORAL COLLEGE IS BAD FOR AMERICA (2004).
140. See Shlomo Slonin, The Electoral College at Philadelphia: The Evolution of an Ad Hoc Congress for the Selection of a President, 73 J. OF AMER. HIST. 73 35-58 (1986). Also see John P. Roche, The Founding Fathers: A Reform Caucus in Action," 55 AMER. POLITICAL SCIENCE R. 799-816 (1961).
141. North Carolina's Hugh Williamson thus observed that "such an officer as vice-President was not wanted. He was introduced ouly for the sake of a valuable mode of election which required two to be chosen at the same time." Farrand, II, 537.
142. FARRAND, II, 500. The Committee on Postponed Matters had proposed that the U.S. Senate would settle cases in which no candidate got a majority of the votes, arguably a sop to the small states. Somewhat later, the Convention changed this so that the House would make this choice, but that each state would (as in the Senate) cast a single vote. See Calvin C. Jillson and Cecil L. Eubanks, The Political Structure of Constitution Making: The Federal Convention of 1787," 28 AMER. J. OF POLITICAL SCIENCE 453-54 (1984).
143. FARRAND, II, 500.
144. FARRAND, II, 496.
145. FARRAND, II, 506.
146. FARRAND, II, 553. Although convention notes do not specifically say so, it again seems reasonable to assume that the delegates were listed in the order of votes they received. Johnson was president of King's College (today's Columbia), Hamilton had been known for his pamphlets during the Revolutionary War, and the other three delegates were all known for their ability as draftsmen, so they may have been elected as much for their perceived expertise as on the basis of their personal popularity at the convention. Significantly, the committee included at least one delegate from each of the three major regions of the country.
147. FARRAND, III, 420. James Madison, a fellow committee member, confirmed Morris's contribution at FARRAND, III, 499: The finish given to the style and arrangement of the Constitution fairly belongs to the pen of Mr. Morris; the task having, probably, been handed over to him by the chairman of the Committee, himself a highly respectable member, and with the ready concurrence of the others. A better choice could not have been made, as the performance of the task proved. It is true, that the state of the materials, consisting of a reported draft in detail, and subsequent resolutions accurately penned, and falling easily into their proper places, was a good preparation for the symmetry and phraseology of the instrument but there was sufficient room for the talents and taste stamped by the author on the face of it. The alterations made by the Committee are not recollected. They were not such, as to impair the merit of the composition. Those, verbal and others made in the Convention may be gathered from the Journal, and will be found also to leave that merit altogether unimpaired.
148. RICHARD BROOKHISER, GENTLEMAN REVOLUTIONARY: GOUVERNEUR MORRIS - THE RAKE WHO WROTE THE CONSTITUTION (2003).
149. Id. at 90.
150. A variant of this problem emerged in 2004 when it was discovered that key lawmakers on the House and Senate Appropriations Committees had been given authority, in a massive spending bill of some 3000 pages, to examine individual tax returns. Committee members claimed the provision was a mistake and blamed it on congressional staffers. See Alan Fram, Democrats will block quick House repeal of tax return provisi on, AP. November 23. 2004. Accessed through Lexis Nexis on 3/11/2005.
151. FARRAND, II, 585.
152. For an analysis of this letter and its implications for federalism, see Daniel A. Farber, The Constitution's Forgotten Cover Letter: An Essay on the New Federalism and the Original understanding, 94 MICH. L. REV. (1995).
153. RALPH KETCHAM, JAMES MADISON: A BIOGRAPHY 230 (1971).
154. FARRAND, II, 344.
155. FARRAND, II, 606.
156. For the theory behind such legislation, see Peter Goodrich, Signs Taken for Wonders: Community Identify, and a History of Sumptuary Laws." 23 LAW & SOCIAL INQUIRY 707-25 (1998).
157. This was, however, arguably no more ironic than the fact that Mason, an owner of many slaves, gave one of the most impassioned speeches against this institution at the convention. See FARRAND, II, 370. After Mason remarked that "every master of slaves is born a petty tyrant," Connecticut's Oliver Ellsworth, who may have resented Mason's condemnation of northern merchants who had participated in the slave trade, observed, with apparent sarcasm, that "As he had never owned a slave [he] could not judge of the effects of slavery on character." FARRAND, 370-71.
158. FARRAND, II, 607.
159. FARRAND, II, 622-23.
160. FARRAND, II, 196 indicates that a similar concern had deterred the Convention from reconstituting itself into a Committee of Detail on August 7.
161. FARRAND, II, 623.
162. FARRAND, II, 623.
163. PAUL S. CLARKSON AND R. SAMUEL JETT, LUTHER MARTIN OF MARYLAND 133 Quoting Maryland Journal, 21 March 1788 390-91. It seems unusual that George Mason, who proposed a committee on sumptuary legislation, did not take such an initiative himself.
164. Hueston's analysis, note 101 supra, at 780, n. 116 and 117, although more thorough than most, is not completely accurate. He omits the Committee of Detail and the Committee on the Original Apportionment of Congress, adds a committee to determine apportionment on the House that never existed, and sometimes equates the assignment of an issue to an existing committee with the creation of a new one.
165. Lansky, note 24 supra at 337.
166. Id., at 328. Also see Hueston at 780.