By Derek Webb*
Constitutional Law Center Fellow, Stanford Law School
**This is the first installment of a series on civility in public discourse – a joint project of ConSource and the National Constitution Center’s Constitution Daily.
For a while, it looked like things were simply not going to work out. On the evening of July 2, 1787, three prominent members of the Philadelphia Constitutional Convention, George Washington, Gouverneur Morris, and Robert Morris, gathered together to commiserate about what they believed to be the “deplorable state of the Convention.” In their judgment, “Debates had run high, conflicting opinions were obstinately adhered to, animosities were kindling, some of the members were threatening to go home, and, at this alarming crisis, a dissolution of the Convention was hourly to be apprehended.”
Within the previous week alone, the delegates had clashed so fiercely and intemperately that it prompted many to agree with Roger Sherman of Connecticut that “we are now at a full stop.” The delegates argued with one another interminably over big ideas and first principles. Compromise was resisted at every turn. Ad hominem charges and accusations were hurled with increasing frequency. Drunken, rambling tirades from Luther Martin of Maryland (delivered, as Madison wrote, “with much diffuseness and considerable vehemence”) and a hint from Gunning Bedford of Delaware that the smaller states might even ally themselves with foreign nations if they did not get their way did not help matters. All this, compounded by the sweltering heat, poor public sanitation, and stuffy confines of the Assembly Room in Philadelphia made things look grim. As Benjamin Franklin observed, the events of the past week were “melancholy proof of the imperfection of Human Understanding.” The delegates, he said, were doing little more than “groping as it were in the dark to find political truth.”
So how exactly did the delegates get from “groping as it were in the dark” on July 2 to the “Miracle at Philadelphia” by September 17, 1787? While several key factors were involved, (some of which I will explore in a future post) perhaps the most important was the substructure of “civic friendship” that gelled early on among many of the delegates and that helped them work through even severe cases of deadlock and incivility. In a recent New York Times op-ed, Jon Meacham recommended that President Obama imitate Thomas Jefferson, about whom Meacham has written a marvelous new biography, to “use the White House and the president’s personal company to attempt to weave attachments and increase a sense of common purpose in the capital.” Jefferson, according to Meacham, believed that “sociability was essential to republicanism” and accordingly spent considerable time simply socializing with those with whom he did business in Washington.
The delegates in Philadelphia did much the same thing. As Richard Beeman has shown, they were, firstly, all housed together in the same small city for four months, making informal social interaction considerably more likely. Not parachuting in by private jet or Acela train to speak, vote, and then leave, the delegates were around each other a great deal. Walking from the boardinghouses, private homes, and taverns in which they stayed, they reported to the Pennsylvania State House each day, six days a week, from 10 a.m. to approximately 3 or 4 p.m., where their attendance was required under the rules of the convention. Afterwards, they would eat dinner together at various taverns, sprinkled liberally throughout the city. Eventually they formed dinner “clubs” in which eight or more delegates would regularly dine together. Departing from the “silo” or “hot house” culture often seen today in which ideologically oriented groups tend to flock together, these clubs were open to delegates from all the states and their informal membership typically cut across regional and ideological lines. After these dinners, delegates would have an evening tea around 8 or 9 pm. And at several critical moments during the convention, such as just before the convention began and soon after the breakdown in early July, Benjamin Franklin threw open his doors to the delegates for roaring dinner parties with lavish food and his special casks of porter.
In a sense, all of this socializing created something like an Olympic Village for this particular “Assembly of Demigods.” And it turns out that it made a difference. As George Mason put it in a letter to his son, the dinner parties at Franklin’s house allowed these mostly perfect strangers with glowing political resumes from various states to “grow into some acquaintance with each other” and to “form a proper correspondence of sentiments” that would help grease the wheels of the entire operation. By the conclusion of the convention, attitudes had changed and regional prejudices softened as a consequence. Charles Cotesworthy Pinckney of South Carolina, for example, observed that he had undergone a change of heart at the Convention since “He had himself prejudices against the Eastern States before he came here, but would acknowledge that he had found them as liberal and candid as any men whatever.” And it seemed to lay the groundwork for changes in ideas among the delegates as well. Recalling in 1830 the events of the Philadelphia Convention, James Madison observed that “the minds of the members were changing” throughout the convention, in part due to a “yielding and accommodating spirit” that prevailed among the delegates.
All of this explains why, on September 20, 1787, when Congress received the parchment of the proposed new Constitution, accompanying it was a transmittal letter, or what we might call a “cover letter,” signed by George Washington. In that letter the Convention explained that “the Constitution, which we now present, is the result of a spirit of amity, and of that mutual deference and concession which the peculiarity of our political situation rendered indispensable.”
When we consider our founding charters, we rarely consider this document, now somewhat lost to history. Rather, we consider those even more august documents under glass in the National Archives in Washington, D.C. We look to the Declaration of Independence as a statement of our guiding principles. And we look to the Constitution as the intricately enacted legal infrastructure designed to advance those principles. But the Constitution’s cover letter deserves to be ranked at least somewhere among those bedrock texts, for it provides a statement of the guiding spirit in which our constitutional architecture was originally assembled.
Abraham Lincoln once famously observed that the relationship between the philosophical ideals of the Declaration of Independence and the institutional rules of the Constitution was like the relationship between a picture of an Apple of Gold and a frame of silver. The constitutional frame existed, he suggested, in order to better present and promote the Declaration’s ideals. Supplementing Lincoln’s metaphor a bit, we might say in addition that the Constitution’s cover letter statement about the indispensability of “amity, mutual deference, and concession” at the Convention provided the “carpenter’s glue” needed to put the ends of the constitutional frame together and successfully encase the picture. Without this underlying social glue, all the principles and institutional design in the world would have been for naught.
We are, at our best, a republic of reasons, principles, and the rule of law – and the year long debate over the Constitution’s ratification that was kicked off 225 years ago in Philadelphia set the stage for much of our subsequent politics. We are, as Lincoln said, a “propositional country,” a nation conceived in liberty and dedicated to the proposition that all men are created equal. But in addition to our principles, propositions, and arguments, we are also a nation born in a spirit of amity, mutual deference, and concession. We are a nation born over cross-sectional dinner parties and roaring evenings at Benjamin Franklin’s home. As we reflect upon our own current hour of partisan division and incivility, in which we too “grope as it were in the dark” alongside various precarious cliffs, it may be useful to consider this too often overlooked, yet indispensable, dimension of our constitutional legacy.
Derek A. Webb is a fellow in the Constitutional Law Center at Stanford Law School. He recently won the American Inns of Court’s 2012 Warren E. Burger Prize for his essay, “The Original Meaning of Civility: Democratic Deliberation at the Philadelphia Constitutional Convention.”