The Constitution of the United States owes its form, appearance and much of its eloquence to five good men who, instead of taking a vacation in late July and early August along with other delegates to the Constitutional Convention of 1787, devoted themselves to the tedious task of rewriting the document.
It was not an easy job: nine weeks into the convention, the constitution was a hodgepodge of whereases, therefores and resolveds, a jumble of two dozen vague propositions that had been patched together in a flurry of hectic debate.
The mission of these five men, selected by the convention on July 26 and given the unglamorous title of the "Committee of Detail," was to make sense of it all, filling in the many blank spaces, rearranging the whole so that it had a logic and an order.
They were to do all this in just 10 days, so that the convention could begin the line-by-line marathon that all understood would be the most difficult task of the summer and get it done by September.
The convention chose the committee members well. There was James Wilson, the brilliant theorist of government from Pennsylvania; John Rutledge, the South Carolina oligarch who had studied law at the Middle Temple in London; Nathaniel Gorham, an agile parliamentarian who had served as speaker of the Massachusetts assembly and president of the Confederation Congress; Oliver Ellsworth, the practical-minded Connecticut lawyer, and Edmund Randolph, the young governor and former attorney general of Virginia.
While the other delegates took a break, the committee went to work.
According to the working notes left behind by the Committee of Detail, it immediately made two crucial and fundamental decisions to guide its labor.
First, it decided that the Constitution would contain "essential principles only; lest the operations of government should be clogged by rendering those provisions permanent and unalterable which ought to be accommodated to times and events."
Second, the committee vowed to use "simple and precise language" and "general propositions," rather than intricate detail of the sort found in law books.
The committee first prepared an outline, consolidating all the convention's decisions by category: the legislative, the executive, the judiciary. In each category, it specified the decisions that needed to be made: from nomenclature to listing of powers and qualifications for office.
Borrowing liberally from the Articles of Confederation, from the constitutions of the states, from the commentaries of the great Blackstone, the committee then proceeded to fill in the blanks, translating the informal language of the resolutions into the formal language appropriate to a constitution.
It rushed its product to a trusted printer, ordering 60 copies to be struck off in strictest secrecy.
When the others returned on Aug. 6, the committee presented them with the first draft of the Constitution of the United States.
For the first time, there was a preamble: "We the People of the States of New Hampshire, Massachusetts, Rhode Island . . . , " it said listing all the states, "do ordain, declare and establish the following Constitution for the Government of Ourselves and Our Posterity."
The institutions of government, previously referred to generically, suddenly had names: the Congress, the Supreme Court, The President of the United States of America. ("His title shall be, 'His Excellency,' " the document declared.)
Most importantly, the committee listed the specific powers of each branch, which had not been done before, not only to define them, but to carefully separate the functions of one institution from another.
For example, borrowing language from the New York constitution's section on powers of the governor, the committee set the tone for the presidency that still exists today. The president, the committee proposed, "shall from time to time, give information to the Legislature, of the state of the Union . . . . He shall take care that the laws of the United States be duly and faithfully executed . . . . He shall be commander in chief of the Army and Navy of the United States and of the Militia of the Several States . . . . "
The resolutions on the legislative branch that the convention had turned over to the committee were vague and general. The national legislature, they declared, had the power "to legislate in all cases for the general interests of the union . . . . "
The committee eliminated this murky language and enumerated 17 powers for the Congress, from the power to tax to the power to regulate commerce and to "make war." It added a crucial 18th catchall power: "to make all laws that shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the government of the United States."
The five draftsmen also gave new force. The original resolution on the executive branch, for example, resolved meekly that "a national executive be instituted." When the committee completed this section, it declared boldly that "The Executive Power of the United States shall be vested in a single person."
The same for the other branches. The "national judiciary to consist of one supreme tribunal," in the original resolution, was transformed to say: "The Judicial Power of the United States shall be vested in one Supreme Court . . . . "
Such phrasing served to fence off the functions of each branch, declaring that the particular power specified belongs to that branch and that branch only.
The other great achievement of the Committee of Detail was to plug loopholes, few of which had been larger than that contained in the provision subordinating acts of the state legislatures to the Constitution and laws of the United States.
This resolution had originally been proposed by none other than Luther Martin, the states' rights advocate from Maryland. Martin, of course, had no intention of allowing the laws of the national government to override those of the states, but recognizing that the convention felt the need for some such provision, he proposed one he thought would be harmless.
It made the acts of Congress superior to the acts of the states, but intentionally omitted language making them superior to the constitutions of the states. Thus a state could do as it pleased, regardless of the laws of Congress or the Constitution, simply by amending its constitution. The convention approved Martin's wording without debate in mid-July, and sent it along with the other resolutions to the Committee of Detail. One of the committee members (it is not known who) spotted the omission and with a stroke of the quill, corrected it.
Martin's language had made federal law supreme to "anything in the laws of any state to the contrary notwithstanding." The Committee of Detail added two words -- "anything in the Constitution or laws of any state to the contrary notwithstanding."
Thus was born the Supremacy Clause of the Constitution, which permits the Supreme Court to strike down state laws that conflict with the Constitution or laws of the United States.NEXT MONDAY: Conflict over slavery