Fondly, Pennsylvania

What constitutes a draft of the U.S. Constitution?

Friday, 2/5/10

Posted on behalf of Lee Arnold, HSP Library Director

What constitutes a draft of the U.S. Constitution?  This sounds like a rather simple question, but it is actually very complex.  The Historical Society of Pennsylvania (HSP) is home to millions of documents.  Of these, we have considered six of them Constitutions.  HSP has what we call the First and Second Drafts (both in James Wilson’s hand),  Edmund Randolph’s copy of the First Printed Draft, Jacob Broom’s copy of the Second Printed Draft, one of the “official” copies printed for the Constitutional Convention, and the Pennsylvania Packet printing of the Constitution (the first public printing of this document).

[caption id="attachment_1010" align="aligncenter" width="300" caption="The first page of the first draft of the United States Constitution"][/caption]

[caption id="attachment_1012" align="aligncenter" width="300" caption="The first page of the second draft of the United States Constitution"][/caption]

Recently a researcher, examining the second volume of the James Wilson Papers, came across a document (we’ll call it Mystery Page 63) which she believes is not only part of a Constitutional draft, but is actually a page two of a third draft of the Constitution. Here is where it gets tricky.  On the backside of the second sheet of Wilson’s First Draft, there are three upside down paragraphs with the opening wording “We the People…”  Scholars have always been aware of this “upside down” text. They have also known about page 63. The text has been published and used by scholars for a century, since Max Farrand published a transcript of this document, and even linked it with the “upside down” text in 1911. Generally, scholars have described this document as more notes from the Committee of Detail than as an actual draft.

[caption id="attachment_1013" align="aligncenter" width="300" caption="The "upside down" paragraphs on the back of the second sheet of Wilson's first draft"][/caption]

The researcher who called our attention to Page 63 of the Wilson Papers believes that the “upside down” text is really the first page of another Constitutional Draft (and Page 63 being the second).  What do you think?

[caption id="attachment_1016" align="aligncenter" width="127" caption="Front view of page 63"]Front view of page 63[/caption]

[caption id="attachment_1014" align="aligncenter" width="120" caption="Back view of page 63"][/caption]

We have provided links to several of these documents as well as soliciting Constitutional scholars for their thoughts.   Whether folks believe this is a new found draft or simply notes from the Constitutional Convention, there is one point both sides can agree on.  HSP’s collection of Constitutional documents allow researchers to study the entire process of the making of this great document: from Wilson’s first pass at pen to paper all the way to the first public printing in the Pennsylvania Packet newspaper.    The role of the staff at the Historical Society is to keep these documents in a safe, archivally secure environment and to facilitate research.  We have been doing so since 1824.  Your support of HSP allows us to continue to do so for another 186 years.

We welcome your thoughts.

Read the 2004 article "Treasures from the Founding of the Nation" covering different versions of the U.S. Constitution held at the Historical Society of Pennsylvania.

Transcription of page 63:

from The records of the Federal convention of 1787, Issue 2  By United States. Constitutional Convention, Max Farrand, pg 151from The records of the Federal convention of 1787, Issue 2  By United States. Constitutional Convention, Max Farrand, pg 152


As a student of James Wilson

As a student of James Wilson (my first book was The Political and Legal Philosophy of James Wilson, 1742-1798, and a few years ago I co-edited the Collected Works of James Wilson), I was accosted Tuesday morning by kind people forwarding me copies of a Philadelphia Inquirer story about the discover of a new draft of the Constitution written in Wilson's hand. It was not clear from the newspaper what exactly had been found, so when a HSP staff member offered to send me digital images of the newly discovered documents to me, I was thrilled. I must say I was disappointed to find that these documents had long been known to scholars. They were published in the same order suggested by Ms. Toler by Max Farrand in 1911 (The Records of the Federal Convention of 1787, 2: 150-153). It seems a stretch to call these notes a "draft" of the Constitution, and labeling them as such adds little to our knowledge of Wilson or the Constitutional Convention. It is fine that Ms. Toler found the misfiled documents, and I applaud her work with the Constitutional Sources Project, but media accounts of the significance of her discovery were, it seems me, exaggerated.

As Dr. Hall notes, this

As Dr. Hall notes, this document has long been known. Ms. Toler is right that HSP staff have not identified this document as a draft of the Constitution. For that reason, in part, this document has been left in place in volume 2 of James Wilson's papers, as they were presented to HSP over a century ago. This page 63 is not misfiled in the sense that it is in the wrong box or file. Indeed it is exactly where you would expect to find it, after p. 62 and before p. 64. Archivists have not separated it from the Wilson Papers as they did HSP's First and Second Drafts. As is best practices in the archival profession, they elected to maintain the order that the compiler of these volumes believed to be the best arrangement.

Like Mark David Hall, I have

Like Mark David Hall, I have found that my email inbox has been deluged with queries about Lorianne Toler's "discovery" of missing constitutional documents written by James Wilson. I can well understand her excitement at finding the documents mentioned in both the Philadelphia Inquirer article and on the Con Source website. James Wilson was a critically important player at the Convention, and, indeed, my own work on the Convention (Plain, Honest Men: Random House, 2009) places Wilson front and center in the constitutional drama. And his participation, along with that of John Rutledge and Edmund Randolph, in the preparation of the Committee of Detail Report during the period July 26-August 4 was a particularly important step toward creating a "rough draft" of a constitution.

It is the case, however, that Max Farrand, in his 1911 edition of The Records of the Federal Convention of 1787, reprinted all of the documents discovered by Ms. Toler, and in exactly the order in which they appear in the manuscripts she discovered in the HSP archives. It is also the case that the location of those documents is not at all obvious, so Ms. Toler should be given credit for diligent searching and sleuthing. But the lion's share of the credit truly does belong to Max Farrand, who long ago not only discovered the documents, but also recognized them for what they were---important contributions by Wilson to the Committee of Detail Report. While that report was a critically important step in creating a final draft of the U.S. Constitution, it was only a step, and it is a bit of a stretch to conclude that the Wilson documents discovered and printed by Farrand and then re-discovered by Ms. Toler amount to a third draft of the Constitution. They are better understood as "notes"--very detailed notes--for the eventual report from the Committee on Detail.

I think it is important to clear up one other misconception. The Con Source website, in trumpeting Ms. Toler's discovery, leaves the impression that the Wilson documents re-discovered by Ms. Toler are somehow the first such documents to use the phrase "We the People" The phrase was in fact in fairly common usage, and, more important, the full text of the Wilson notes for the Committee of Detail report reads "We the People of the states of New Hampshire, Massachusetts, etc. etc. " The final, indeed, revolutionary, draft of the preamble to the Constitution, written by Gouverneur Morris in his role as Chairman of the Committee of Style, reads "We the People of the United States." The connection of "We the People" to the "United States," as opposed to individually named" states, was a critically important step in creating a government that acted in the name of all of the people of America, and the credit for that stylistic, but also substantive, change belongs to Gouverneur Morris, not Wilson.

All of that said, I take my hat off to Ms. Toler, who has, both in her role as founder of Con Source and in her continuing research into the documents of the Convention, is making a real contribution to our knowledge of America's constitutional past.

Richard R. Beeman

Professor of History

University of Pennsylvania

I teach at James Wilson's

I teach at James Wilson's home institution, the University of Pennsylvania Law School, and have long been interested in his contributions to the Constitution. So I was excited to read of the discovery of a new "third draft" of the Constitution in the Wilson papers -- excited, and also surprised.

The Wilson drafts are extremely well-known. They were first systematically studied at the end of the nineteenth century by Franklin Jameson, whose monograph appeared in 1902. Jameson did much of the work of piecing together the various drafts of the Constitution. His work was supplemented by Max Farrand, whose magisterial *Records of the Constitutional Convention,* published in 1911, carefully assembled all the known documents. Jameson and Farrand were renowned scholars; and given the intensity of scholarly work on the Constitution, it would be a great discovery indeed if even a minor text had somehow been overlooked in an archive they both knew intimately.

This morning I inspected the original document. I fear it is not new. It is in fact printed in Volume 2 of Farrand's Records, at p. 151. And it is to be found, properly catalogued, in the Wilson collection, exactly as Farrand reported a century ago.

What could have caused the confusion? The original sheet in question was long in private hands, and was clearly at some point bound in a scrapbook with other Wilson papers. When the papers were later donated to the Archive and unbound, the archivists preserved the original ordering of the bound pages. That is of course exactly what archivists are supposed to do. But it has the consequence that this particular scrap of paper is physically separated from the other drafts from the Convention. A researcher inexperienced in archival research might well have been surprised by its location. Max Farrand above all deserves the credit for having worked out its relationship to the other manuscripts, and for having assigned it its place in the sequence of drafts.

Although it is disappointing that we do not have a "new" draft of the Constitution to celebrate, this incident is not without its redeeming features. At the least, it should make us grateful for the careful work of Jameson and Farrand. These were scrupulous and meticulous scholars; and it was they who first pieced together the successive drafts of our nation's Constitution -- including this one.

Wednesday morning February

Wednesday morning February 4th The HSP staff was kind enough to invite me to view the Wilson document that has so excited Ms. Toler and to compare it with the drafts of the Constitution in the Society's possession. Happily, given how thorough and scrupulous the comments of the above scholars are, I don't need to add anything. Ms. Toler's efforts remind us how critical James Wilson was to the Constitutional Convention. But now that the documents can be viewed by everyone, I think those who do so will understand my skepticism of her more sensational claims.

Andrew Shankman

Associate Professor of History

Rutgers University, Camden

It is wonderful to see

It is wonderful to see write-ups here by such notable Wilson scholars, and I am grateful to the HSP for facilitating this discussion.

The forum media provides is often not conducive to the subtleties and complexities of academic work. In this case, it complicates matters that I am in Oxford and unable to respond in the same time and space. As those privy to the development of this story knew, including Lee Arnold, Ed Colimore, and John Kaminski, I have agreed with what has been said here all along. Max Farrand transcribed everything I found, and pieced it together the way that I have. I said as much in my article submitted to all of them and which is currently under scholarly review for publication. I was told, however that such information qualified as "insider baseball," and was cut from the story and thereafter subsequent stories by reporters who couldn't or didn't try to reach me here in England.

What is new, however, is that Farrand doesn't explain how the two pieces of this draft (more on this later) are widely different. He doesn't even provide a footnote explaining that the two pieces are on different documents (one of which provides much more of a draft) that are different sizes, in varied handwriting, and even repeats numbering items over from "1."

Yet Farrand pieces them together, something he does not do for the somewhat halting collection of documents currently labeled as "Draft 1" by HSP. Why is this? Because, I believe, the two pieces logically flow in parallel with the structure of our current Constitution. The second piece "continues" the other, as the title indicates. It may be that Wilson started, stopped, gathered his thoughts, and continued on a separate piece of paper, in outline rather than prose form. It is also possible that the two pieces were side-by-side in the original folio received by HSP. (This, however, we will never know.)

I side with Farrand in piecing the two very different documents together. I side with Farrand in putting them with the other Committee of Detail documents, and with the same kind of title and prominence he gives to the other drafts. I am, however, currently alone in calling these two disparate pieces a "draft." I am not aware of any commonly-accepted historical or legal definition for labeling something a "draft." I guess it depends on whether you characterize a bit of prose and a bit of outline as a draft or not. Jameson certainly called the document outlining resolutions as discussed by the Committee of Detail in Randolph's hand a "draft," even though it similarly contained portions of prose and outline. Perhaps we should be comparing the pieces in Wilson's hand to that in Randolph's? In any event, I define a draft as a logically-connected set of papers which evidences the thought processes of an individual in preparing a more final product, prose or not.

May I also gently remind HSP that they asked me to tell them where to find this document. It was unknown to them, and uncatalogued.

I don't, however, believe that criticism here is in order. Whatever lack of filing (or misfiling) may have occurred, it happened long ago, sometime between 1911-1970. What HSP needs is funding, not criticism. From what I understand, 75% of their documents, and yes, I will continue to call them national treasures, are uncatalogued. This "find," or, as I have categorized it, "(re)discovery" brings to light that much more funding is needed to unearth the many documents in their collections. Who knows what else we might find?

[...] comments section on the

[...] comments section on the document’s significance or lack thereof and he pointed to the Historical Society of Pennsylvania’s website posting on the matter. Other distinguished experts chimed in and gave their opinions in the comments section [...]

The documents contained in

The documents contained in HSP's "First Draft" folios contain many more documents than what Farrand or even Jameson considers the first draft. They include the 23 resolutions referred to the Committee of Detail from the Committee of the Whole (Farrand v. 2, p. 129-33), Wilson's outline of the Pinckney Plan (Farrand v. 2, p. 134-37), and "An Appeal for the Correction of all Errors both in Law and Fact" (Farrand, v. 2, p. 157-59).

The document, "The Continuation of the Scheme" which I found was once considered part of the Committee of Detail documents (Farrand, v. 2, p. 151-52) and, as I indicate below, also considered the "continuation" of the first "We the People" document, identified as document "V" by Farrand.

That it is currently not with the other Committee of Detail documents included in the folios labeled "First Draft" is passing strange: if you look at the facsimile copies of the drafts in your storage vaults, you'll note the pencil marks indicating the originals were also once part of "Vol. 2." Thus, the documents--resolutions, Wilson notes, and drafts--included in the folios now labeled "Drafts"--were all once part of the same "Vol. 2" in which I found "The Continuation of the Scheme" and other important Wilson documents. Farrand probably saw these documents when they were all together in "Vol. 2". Thereafter, those documents noted above must have been removed and placed in the folios without "The Continuation of the Scheme" sometime after Farrand transcribed them and before 1970, according to Lee Arnold.

Regardless of whether you agree with Farrand and myself, "The Continuation of the Scheme" are notes if not a draft from Wilson's Committee of Detail work (as it outlines the Constitution to a degree of specificity not before reached in the debates of the Convention), and, like his notes on the Pinckney Plan, should be included with the other, non-draft documents currently called "drafts."

I was glad to be helpful to HSP in finding these documents, and to hear that all of the documents in Vol. 2 have now been catalogued so others might view them without difficulty.

The "re-discovery" of a "new

The "re-discovery" of a "new draft" of the Constitution has set off a historiographic firestorm of sorts. The Philadelphia Inquirer published the "re-discovery" story and since that time a number of historians have tried to make sense of this rather humble sheet of paper in James Wilson's handwriting in Wilson's Papers at the Historical Society of Pennsylvania.

I have little to add to what Richard Beeman has written in his statement in this blog. I largely agree with his analysis. I would, however, like to make two points. The document in question should be described as Wilson's outline for the remainder of the Committee of Detail's draft constitution. Wilson regularly used outlines when preparing a speech, an essay, or a lecture. He began the actual draft of the Constitution and then on a separate sheet of paper he outlined five points that would flesh out the legislative branch in the draft Constitution. Wilson's outline continued with point six--"To treat of the Executive" followed by point seven calling for a description of the judiciary.

Wilson then listed in his outline some "Miscellaneous Resolutions" that the delegates had already approved and that Wilson was stating should follow the first three articles of the draft Constitution. On the back of this sheet of paper, Wilson listed four other items that needed "To be added" to the draft Constitution.

In essence, this sheet of paper is an outline of what Wilson thought should go into the draft Constitition. The HSP staff that segregated Wilson's draft constitutions from his other papers did not believe that this one sheet of paper reached the threshold of a draft constitution. Therefore it was left among Wilson's other miscellaneous legal papers.

The second point I'd like to make is that Richard Beeman was absolutely correct in stating that the revolutionary aspect of "We the People" occurred in the Committee of Style when Gouverneur Morris dropped the list of states after "We the People of New Hampshire. . . . " Richard, however, inadvertently indicated that Morris was the chair of the Committee of Style in his blog statement. Although Morris did the bulk of the work, William Samuel Johnson is recognized as the chair of the Committee of Style. Morris was listed first in the appointment of the committee and he delivered the committee's report to the Convention--two attributes of the chair. Richard got it correct in his outstanding book when he refers to Johnson as the "nominal chair" of the Committee.

A few questions remain

A few questions remain unanswered with these very thoughtful comments, as follows:

1) Why did Farrand piece these documents together?

2) Why do you disagree with Farrand's arrangement?

3) If "The Continuation of the Scheme" does not continue the first We the People start, what does it continue?

4) If "Continuation of the Scheme" does continue the We the People start, does that make it a draft?

5) What is the definition of a draft? According to that definition, are the Committee of Detail notes in Randolph's hand a draft?

6) There are other Committee of Detail documents (the 23 resolutions from the Committee of the Whole and Wilson's Pinckney Plan notes, if not one other document) currently classified by HSP as "Draft One" (and not catalogued elsewhere). If these non-drafts are included in "Draft One," shouldn't work product which more clearly reflects the thinking of the Committee of Detail, such as "The Continuation of the Scheme" also be included with these important documents?

7) If the distinction of "draft" was not the qualifying standard for including documents in the "Draft One" and "Draft Two" folios, what was, and, according to that standard, why was "The Continuation of the Scheme" left out?

I would appreciate a response by any of the above scholars.

In her February 6th comment

In her February 6th comment on this blog thread, Ms. Toler states, “May I also gently remind HSP that they asked me to tell them where to find this document [Wilson Papers Page 63]. It was unknown to them, and uncatalogued.”

This is misleading. Whenever someone tells HSP staff that they have found something exceptional in our holdings, we ask them to tell us exactly where they found it. As others have noted, the document was not missing or misplaced or out of order. It was exactly where it was supposed to be in the collection. It was “unknown” to HSP staff only in the sense that we were not aware that anyone would consider it part of a third draft of the U.S. Constitution.

In the following paragraph Ms. Toler adds, “From what I understand, 75% of [HSP’s] documents, and yes, I will continue to call them national treasures, are uncatalogued.”

While I appreciate Ms. Toler’s kind words about the quality of our holdings, this second reference to uncatalogued documents demands a clarification. In keeping with modern archival practice, HSP catalogs whole collections, not individual documents. Slightly more than half of our archival collections have at least a basic description in our online catalog or elsewhere on our website. Slightly over 30 percent of our archival holdings, by linear footage, have an online finding aid or collection guide that provides more in-depth description, including an inventory, usually to either the box or folder level. Over the next few years, we hope to double both of these figures.

Once upon a time, HSP staff used to catalog individual manuscripts, but we stopped doing that in 1973. With an estimated 21 million items in our holdings, we have no plans to resume the practice. Like the other items in the James Wilson Papers, Page 63 is exceptionally well described, but as an individual document it is, and will remain, uncatalogued.

Matthew Lyons

Director of Archives

Historical Society of Pennsylvania

I am wondering if anyone else

I am wondering if anyone else is struck by the irony of James Wilson once more being at the center of the fray. In life, he was in the middle of controversy on a number of occasions; from his initial refusal to vote for independence, to his defense of loyalist in their sedition trials and the subsequent attack on Fort Wilson, moving on to his vigorous support of Constitutional ratification that led to his burning in effigy in his former residence of Carlisle, and finally, to his ignoble death suffered while on the lam from creditors—at the time still ostensibly a sitting Supreme Court Justice. Perhaps because of his controversial life, historians too have argued about Wilson’s contribution and legacy to the founding. In light of these skirmishes, and the foregoing intense discussion involving many prominent scholars, it seems evident that discord and disagreement will be Wilson’s eternal lot.

Without being too controversial myself (I hope), I would like to add a few wide-ranging comments and observations to the discussion. In the interest of full disclosure, I will say at the outset that, having recently completed a master’s thesis on James Wilson’s vision for republican citizenship, I am a huge fan of our Scottish founding father. Also, I should mention that I volunteered at the Historical Society of Pennsylvania from June 2008 to July 2009, assisting mainly with the Chew Family Papers processing (by the way, Wilson aficionados may be interested to know that there are a number of documents within the Chew collection that reference Wilson, particularly in regard to his land speculation activities).

My first comment is in regard to what might have created some confusion for Ms. Toler in the availability of the “mystery page 63—The Continuation of the Scheme.” I think it is important to point out that HSP actually has two sets of the Wilson papers—the original set that is rarely circulated to patrons and a presumably duplicate set photocopied from the original that most get to see. Having studied the duplicate set on a number of occasions going back to 2005, and having recently viewed the original set that Ms. Toler had access to, I can assure you that both sets contain the same page 63. This means the assertion Ms. Toler’s makes on a couple of occasions that this page was somehow unavailable to scholars for many years is just not true. While doing research for my thesis, I saw the document and like most that have looked at these papers, I viewed page 63 as more a note than draft.

On a somewhat different matter, in partial defense of Ms. Toler and in partial opposition to Profs. Beeman and Kaminsky (all three of whom know more about American history and the founding than I will ever know), I want to put in a plug for Wilson and his inclusion of the phrase “We the People.” Whether the words were common to the time or not, the first evidence we have associating that phrase with the Constitution is the draft of the document in Wilson’s hand. Additionally, as far as I know, none of the many state constitutions created before the Federal Convention of 1787 included the phrase. While it is true that Gouverneur Morris is given credit for making the crucial change from a mention of each individual state to the inclusion of the words “United State,” I maintain that Wilson (and perhaps other members of the Committee of Detail), made the equally crucial first insertion of the phrase that has become American creed. Indeed, the phrase is, in the present day, much more crucial than the idea of a united country, which we now take for granted. It is also worth mentioning that the phrase goes hand-in-hand with Wilson’s continually stated support for popular sovereignty (some suggest that Wilson supported this concept more than any other founder).

Finally, while I question Ms. Toler’s premise that page 63 constitutes a part of a third draft (as well as her motivation in presenting this premise to the Philadelphia Inquirer), I look forward to reading her published paper explaining why her “third draft” thesis matters. All things considered, Ms. Toler must be given credit for bringing to the fore a rather under-appreciated founding father and correspondingly, the critical need for the James Wilson’s papers to be reprocessed. The confusion associated with these pages leaves no doubt in my mind that reprocessing, with the creation of a full-scale finding aid, will allow easier access to papers of an individual critical to our nation’s birth.

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