Ask any student of American law or history, and he or she will tell you that James Madison was the architect of the U.S. Constitution. As the author of the most comprehensive notes of the 1787 Constitutional Convention in Philadelphia and one of only two delegates to attend its every session, Madison has rightly earned this title. But if Madison was the Constitution’s architect, Edward Larson argued last week at a lecture sponsored by the Supreme Court Historical Society, then George Washington – the other delegate with perfect attendance – was its general contractor. And, as Larson quipped, a finished building looks a lot more like what the general contractor wanted than whatever the architect had envisioned.

As president of the convention, George Washington did not speak publicly in the hall about his wishes for the new government. To unearth Washington’s hidden role in forming and drafting the Constitution, Larson cited a wealth of written correspondence and other circumstances surrounding the convention. That story of Washington’s behind-the-scenes influence begins well before the convention’s start in May 1787.

In 1783, the victorious commander-in-chief of the Continental Army circulated a letter to the states. Intending to retire from public service, Washington expressed his vision for a single republic uniting the thirteen colonies, a government that would promote liberty, protect property, and preserve independence. Only three years later, all three seemed in jeopardy. As Washington wrote to New York’s John Jay, who would become the nation’s first Chief Justice, “liberty itself is at issue.” In 1786, Massachusetts suffered a debtors’ insurrection, and outright rebellion occurred in Vermont. Rhode Island levied taxes on other states, which began to issue their own currencies. Without authority to raise revenue, the national government left unpaid wartime debts to troops and international creditors. The confederation government, a “league of friendship” between the thirteen states, in Larson’s description, lacked the ability to deal with these crises. As Washington wrote to his fellow commander from the war, Gilbert du Motier (better known by his title, the Marquis de Lafayette), such disorders reflected defective government.

Though retired at his estate in Virginia, Washington maintained a regular correspondence with Madison, Jay, and Henry Knox of Massachusetts, then the nation’s Secretary of War. They all wanted Washington to leave retirement to lead the cause of constitutional reform. “Favor your country with your counsels,” Jay beseeched Washington. Claim the honorific of “father of the country,” not once, but twice, urged Knox. Washington demurred. He was wary of initiating a project for reform before the people and – more perniciously, in his view – state leaders were ready. As Washington wrote to Madison, he only wanted to get involved if the nation needed and was willing to accept “radical cures.”

All the same, Washington began his preparations. He wrote to his three advisers, Madison, Knox, and Jay, requesting their ideas for a new government. Their three proposals shared common aspects. Unlike the current government (a single-house legislature), the new government should have three branches – executive, legislative (with upper and lower houses), and judicial. Knox and Jay focused on the role of the executive. Madison emphasized the importance of national courts. All three wanted to rein in the states and give the new national government supremacy over them. Washington fashioned his own plan from these three. Of primary importance to him was that the new national government be able to act directly on the people, not only through the states.

As plans for a new convention took shape, Washington began to see participation in it as his civic duty. At long last (at least from the perspective of his advisers), Washington felt ready. He was now convinced that a new constitution represented, as he wrote, the “last peaceable mode of saving the union,” and he accepted a position as one of Virginia’s five delegates to the convention. As Larson noted, newspaper headlines from around the nation reported that Washington would attend. Washington’s very presence changed the public perception of the convention, which had been proposed merely to amend – not overhaul entirely – the existing government.

On the first day of the convention, Washington arrived with Madison and the local delegates from Philadelphia to find that every other out-of-town delegate was late. It would be ten more days before a quorum was present, but Washington and Madison (along with another Virginia delegate, William Randolph) used this time to ready what would become known as the Virginia Plan.

Unanimously elected president of the convention, Washington had the authority to pick speakers, and he used this power to shape the convention’s drafting. Washington’s very first selection of speaker is telling: William Randolph, who promptly announced the Virginia Plan he had worked on with Washington and Madison. Randolph, who held the floor for much of the first day of official business and whom Washington did not allow to be interrupted, spoke about the need for a strong national government with a two-house legislature, a strong executive, and a judiciary with a superior and inferior courts. The delegates would vote to adopt this plan as their draft for the remainder of the convention.

Washington wrote a letter to Thomas Jefferson, then in Paris as ambassador to France, that closely mirrored Randolph’s speech. Was Washington echoing Randolph or, as Larson wryly suggested, had the influence actually gone in the other direction? Indeed, although Washington remained silent that day, the Virginia Plan as Randolph outlined it included every enumerated power Washington had publicly endorsed elsewhere. Larson reminded the audience that Washington’s aforementioned circular to the states, although less well known today, at the time represented the most recognized document on American governance aside from the Declaration of Independence. The delegates to the Convention would have already understood what Washington thought about these matters and that Randolph’s plan represented them.

Larson spoke more in depth about Washington’s influence on the role of the executive. Washington, “the very personification of nationalism in the country,” dominated all discussions on the role of the executive through his presence – even though, as with other issues, he said nothing officially. When it came time to discuss the executive, the hall sat silent. Ben Franklin finally broke the silence; even if “the first man is a good one,” preparation must be made for subsequent presidents who might not hold the same virtues, he argued. Some delegates, including Virginia’s George Mason, argued that the executive should function as a triumvirate lest too much power be given to one individual. Other delegates defended a single executive with thinly veiled analogies to Washington – would an army in the field be led by three commanders at once? As Pierce Butler from South Carolina summarized the general feeling, the “powers would likely not have been so grand” had Washington not been the presumptive first president.

Eventually the convention settled on a final document. They chose to have Washington send the proposal to the existing legislature, which still did not know how broadly the convention delegates had interpreted their task to “amend” the Articles of Confederation, with a cover letter signed only by Washington. Larson emphasized that this strategic move commanded attention and lent credibility to the effort. Similarly, the public campaign for the states to now ratify the document opened with Washington’s sole signature, even though the letter had actually been written by Gouverneur Morris of New York.

Signing the Constitution, Ben Franklin remarked, “I take it with all its faults,” “with confidence it will be well administered for several years.” As Knox had originally encouraged Washington, and as Larson recalled last week (his historian hat aside, he clearly has affection for the man), Washington had again become the father of his country.

[Correction: An earlier version of this post called Madison the secretary of the Convention. William Jackson served as secretary.]

Posted in Corrections, Supreme Court history

Recommended Citation: Andrew Hamm, Edward Larson on the Constitution’s “general contractor,” George Washington, SCOTUSblog (May. 6, 2016, 1:01 PM), http://www.scotusblog.com/2016/05/edward-larson-on-the-constitutions-general-contractor-george-washington/