by John R. Vile. Lanham, MD: Scarecrow Press, 2013. 484pp. Cloth $60.00. ISBN 978-0-8108-8864-7.
Reviewed by Scott Douglas Gerber, Ohio Northern University Pettit College of Law. Email: s-gerber [at] onu.edu
Different books pose different challenges for readers and reviewers. Most straightforward are single author, sustained arguments. More challenging are edited collections: One of the first book reviews I wrote was of an edited volume, Gary C. Bryner and A.D. Sorensen, eds., THE BILL OF RIGHTS: A BICENTENNIAL ASSESSMENT (1994) (Gerber 1995). It was a difficult review to write. Although it was a good book, the problem was that it’s not easy to say much in a short space about a collection of chapters written by a variety of scholars. After reading John R. Vile’s THE MEN WHO MADE THE CONSTITUTION: LIVES OF THE DELEGATES TO THE CONSTITUTIONAL CONVENTION, I have concluded that it is even more difficult to write a review of a reference book – a difficulty borne in part from the challenge of writing such a work: what to include? what to leave out? how to synthesize ever-changing scholarship?
John Vile is professor of political science and dean of the University Honors College at Middle Tennessee State University. He has compiled a myriad of reference-style books on the U.S. Constitution and related matters. THE MEN WHO MADE THE CONSTITUTION is Vile’s most recent contribution to this important body of work, and it draws on some of his earlier efforts, most notably THE CONSTITUTIONAL CONVENTION OF 1787: A COMPREHENSIVE ENCYCLOPEDIA OF AMERICA’S FOUNDING and THE WRITING AND RATIFICATION OF THE U.S. CONSTITUTION: PRACTICAL VIRTUE IN ACTION (Vile 2005; Vile 2012). Vile states about the latter book: “While writing that book I came to have even greater appreciation not only of the Constitution that the delegates produced, but also of the delegates themselves. This book is thus designed to highlight their role” (p.x).
The book’s Introduction provides a concise discourse on the events that led to the founding of the United States of America. It then offers a helpful overview of the Constitutional Convention of 1787: the rule-making process, the significance of James Madison’s notes, and the principal plans of government that were proffered during the meeting. The Introduction also explains the various compromises that were reached, who signed the finished product, and the ratification debates that followed. Next comes a state-by-state summary of the delegates to the Constitutional Convention and a quick discussion of which delegates are regarded as the most significant. The bulk of the book is comprised of biographical summaries, arranged alphabetically, of the fifty-five men who attended the Convention. The most important part of the biographical summaries, and by far the most detailed, addresses the contributions that a particular delegate made at the [*239] Convention. Vile also describes in each entry what a particular delegate did before the Convention, and what he did after it.
If I tried to assess Vile’s summary of these fifty-five men, this book review might run to a length of fifty-five pages or more. Obviously, I can’t do that. What I can do, though, is offer some thoughts on Vile’s treatment of a sample of the fifty-five delegates. In light of the fact that I previously have worked on projects myself that involved some of these men, I think it best to concentrate on those I know the most about. Those delegates are, in alphabetical order, John Blair Jr., Oliver Ellsworth, William Paterson, John Rutledge, Roger Sherman, and James Wilson. Blair, Ellsworth, Paterson, Rutledge, and Wilson each served on the pre-Marshall U.S. Supreme Court and my prior experience with them was my edited book, SERIATIM: THE SUPREME COURT BEFORE JOHN MARSHALL (Gerber 1998). I wrote an article years ago about Sherman (Gerber 1996). (Vile kindly cites both of these works in THE MEN WHO MADE THE CONSTITUTION.) I also have discussed in some detail in my book A DISTINCT JUDICIAL POWER: THE ORIGINS OF AN INDEPENDENT JUDICIARY, 1606-1787 John Dickinson, Alexander Hamilton, James Madison Jr., George Mason, Gouverneur Morris, Charles Cotesworth Pinckney, Richard Dobbs Spaight, and George Wythe (Gerber 2011). I likewise have mentioned in other works, albeit in passing, Elbridge Gerry, Luther Martin, George Washington, and Robert Yates (see, e.g., Gerber 1995). The only one of these other men that I couldn’t reasonably exclude from this review of the delegates to the Constitutional Convention is Madison.
Vile’s entry about Virginia’s John Blair Jr. (1732-1800) is only two pages long (pp.12-14), in large part because there is no record of Blair speaking at the Constitutional Convention, although he did sign the finished product and argued in favor of ratification during the Virginia ratifying debates. Vile points out that President Washington appointed Blair to the first U.S. Supreme Court, where he served from 1789-1796. Vile mentions that Blair was aptly characterized in Wythe Holt’s chapter in SERIATIM as “a safe and conscientious judge” (Holt 1998, pp.155-97) and that Blair joined the majority in CHISHOLM V. GEORGIA, a decision that was quickly reversed by the Eleventh Amendment. Vile does not think as highly of Blair as Holt does.
Vile’s discussion of Connecticut’s Oliver Ellsworth (1745-1807) runs a robust fourteen pages (pp. 60-74). The entry opens with the interesting tidbit that Ellsworth met William Paterson during their student days at Princeton. The two would later serve together at the Constitutional Convention, in the U.S. Senate – where they co-authored the landmark Judiciary Act of 1789 – and on the Supreme Court. Ellsworth arrived at the Convention on May 28, 1787, and did not stay to the end, but he worked closely with Roger Sherman on “the great compromise” between large and small states on representation in Congress. Vile devotes eleven-and-a-half insightful pages to Ellsworth’s work at the Convention. I was particularly intrigued by the description of Ellsworth’s support for the proposed participation of federal judges on the so-called council of revision. Ellsworth – already an experienced judge at this [*240] point – said about the matter:
The aid of the Judges will give more wisdom & firmness to the Executive. They will possess a systematic and accurate knowledge of the Laws, which the Executive can not be expected always to possess. The law of Nations also will frequently come into question. Of this the Judge alone will have competent information (as quoted, p.71).
Unfortunately, all that Vile says about Ellsworth’s tenure as chief justice of the United States is that Ellsworth “often expressed admiration for the English common law” and that the Court “issued few landmark cases” during his four years at the helm. As William R. Casto’s chapter in SERIATIM makes clear, there is more to say about Ellsworth’s chief justiceship than that: Ellsworth was deeply involved in the national politics of the 1790s and viewed himself not so much as a judge but, rather, as an active participant in public life who happened to be a judge (see Casto 1998, pp.292-321).
Ellsworth’s Princeton schoolmate William Paterson (1745-1806) of New Jersey is best known for introducing the New Jersey Plan at the Constitutional Convention, which favored the small states. Paterson insisted that the plan “was in closer accord both with the commission of the convention and the sentiments of the people” (p.250). As mentioned above, Paterson subsequently co-wrote the Judiciary Act of 1789 with Oliver Ellsworth and served with Ellsworth on the Supreme Court. Vile approvingly quotes Daniel Degnan’s chapter about Paterson for SERIATIM when explaining Paterson’s famous discourse about constitutional theory in Vanhorne’s LESSEE (pp.252-53, quoting Degnan 1998). As Father Degnan demonstrated in SERIATIM, Paterson was an early proponent of judicial review.
Vile devotes ten pages (pp.297-307) to South Carolina’s John Rutledge (1739-1800). Rutledge is one of the most fascinating figures from the early days of the American republic. His talent for oration rivaled that of Patrick Henry and he was so committed to state sovereignty that he named one of his children “States Rutledge.” He seconded at the Constitutional Convention the motion nominating George Washington as president of the meeting and he chaired the influential committee of detail. He strongly opposed the idea of a congressional veto over state laws and vigorously defended the institution of slavery. He said about the latter:
Religion & humanity had nothing to do with this question – Interest alone is the governing principle with Nations – The true question at present is whether the Southn. States shall or shall not be parties to the Union. If the Northern States consult their interest, they will not oppose the increase of Slaves which will increase the commodities of which they will become the carriers (as quoted, p.305).
Rutledge opposed the creation of lower federal courts because he thought they were unnecessary and would encroach on state power, and he “struck a blow for judicial independence” when he opposed John Dickinson’s motion to incorporate the English practice of removal by [*241] address into the proposed Constitution (p.304; see generally, Gerber 2011). However, Rutledge’s own service on the U.S. Supreme Court was problematic. He served briefly as an associate justice of the nation’s highest court before resigning to become chief justice of the South Carolina Court of Common Pleas. President Washington then appointed him in 1795 as interim chief justice of the United States, but Rutledge was rejected by the Senate for a life term after speaking out against the Jay Treaty. Vile approvingly cites James Haw’s fine chapter for SERIATIM about Rutledge (see Haw 1998, pp.70-96).
THE MEN WHO MADE THE CONSTITUTION was published prior to Mark David Hall’s (2013) splendid biography of Roger Sherman (1721-1793) of Connecticut. Vile’s discussion of Sherman’s contributions to the Constitutional Convention is nevertheless first-rate. Vile demonstrates in twelve-and-a-half jam-packed pages why “Sherman was one of the more influential members of the U.S. Constitutional Convention, often successfully battling James Madison and helping to craft compromises between the large and small states and between the North and South” (p.308). Sherman was particularly influential in championing the previously mentioned “great compromise” about representation in Congress. The Convention’s second oldest delegate stated about equal representation in the Senate that it was not so much “a security for the small States, as for the State Govts. which could not be preserved unless they were represented & had a negative in the Genl. Government” (as quoted, p.310). Sherman spoke about many other matters at the Convention too, including in support of John Dickinson’s unsuccessful proposal for removal of federal judges by address and in opposition to Elbridge Gerry’s and George Mason’s unsuccessful motions for a bill of rights.
As the author of an article entitled “Roger Sherman and the Bill of Rights” (Gerber, 1996), it should come as no surprise that I wish that Vile had discussed Sherman’s views on the subject in more detail than he does. (Vile does cite my article.) Moreover, after reading Hall’s book about Sherman, I found Vile’s entry about the Connecticut cobbler a bit thin on the influence of Puritan theology on Sherman’s public service. That said, Vile has penned a strong entry on an underappreciated American statesman.
James Wilson (1742-1798) of Pennsylvania is widely regarded as second only to James Madison as far as contributions to the Constitutional Convention are concerned. Vile’s entry about Wilson spans fourteen pages (pp.348-61) and it nicely chronicles Wilson’s strong preference for popular election of both members of Congress and the presidency and for a single executive. Wilson likewise supported the proposal that federal judges should join with the executive in a council of revision and he expressed the nascent view that courts possessed the power of judicial review. He opposed removal of federal judges by address as inconsistent with judicial independence: “The Judges would be in a bad situation if made to depend on every gust of faction which might prevail in the two branches of our Govt.” (as quoted, p.357). Vile’s discussion of Wilson’s life after the Convention is longer than similar [*242] sections about most of the other delegates described in the book. But it is nevertheless too short, especially given how significant Wilson was to early American jurisprudence. Readers interested in Wilson’s contributions to jurisprudence would be well served by consulting Mark David Hall’s excellent work on Wilson (see, e.g., Hall 1997; Hall 1998). Vile cites Hall’s work, but he doesn’t quite grasp the insight it provides as to why Wilson took the positions he did at the Convention. According to Hall, Wilson was the foremost advocate among the Founders of a strong and democratic government that also protects minority rights.
I would be remiss if I didn’t conclude the present review of Vile’s book about the delegates to the Constitutional Convention with a few words about Vile’s treatment of the so-called father of the Constitution, Virginia’s James Madison Jr. (1751-1836). The most recent review I wrote for the LAW AND POLITICS BOOK REVIEW was about Kevin R.C. Gutzman’s JAMES MADISON AND THE MAKING OF AMERICA (see Gerber 2012; see generally Gutzman 2012). Vile cites Gutzman’s book, and many others, about Madison. Not surprisingly, Vile’s entry about Madison is the longest in the book (pp.166-86). He correctly points out that Madison was well prepared for the Convention, that he took detailed notes during the meeting, and that he was the principal author of the Virginia Plan. Vile is also right to highlight Madison’s groundbreaking call for an extended republic so as to better control factions, an idea that Madison shortly thereafter discussed in Federalist No. 10 – almost certainly the most important essay ever written about American political theory. Vile’s discussion of Madison’s life after the Convention is the strongest of any in the book. Vile clearly understands, as other scholars have before and since, how much Madison contributed to the history of the United States, and how modest Madison was about it. Gutzman made these points particularly well in his recent book about Madison:
One finds at Madison’s grave that here, as in so much else, he differed markedly from his great friend [Thomas Jefferson] who now lies buried twenty miles away. There is no stone inscribed with Madison’s preferred titles from among the long list he had earned, including Co-Author of the Constitution, Author of the Bill of Rights, Co-Author of THE FEDERALIST, Co-Author of the Virginia Declaration of Rights, Founder of the Republican Party, Author of the Virginia Resolutions of 1798 and Report of 1800, Rector of the University of Virginia, President of the American Colonization Society, and Sponsor of the Virginia Statute for Religious Freedom – not to mention all the political offices he held, mostly to great effect (Gutzman 2012, p.362).
The back cover description of THE MEN WHO MADE THE CONSTITUTION advises that “Each biography records the delegate’s birth, education, previous positions or public-service roles, homes, family life, life after the Convention, death, and resting place.” Although Vile’s book promises more than it delivers on some of these matters – especially each delegate’s life after the Convention – it succeeds nicely in its principal charge: what the fifty-five men who attended the [*243] Constitutional Convention contributed to the most important meeting in American history. THE MEN WHO MADE THE CONSTITUTION is a welcome addition to any bookshelf about the Constitution of the United States.
Bryner, Gary C. & A.D. Sorensen, eds. 1994. THE BILL OF RIGHTS: A BICENTENNIAL ASSESSMENT. Albany: State University of New York Press.
Casto, William R. 1998. “Oliver Ellsworth: ‘I have sought the felicity and glory of your administration’”. In SERIATIM: THE SUPREME COURT BEFORE JOHN MARSHALL, edited by Scott Douglas Gerber, 292-321. New York: New York University Press.
Degnan, Daniel A. 1998. “William Paterson: Small States’ Nationalist.” In SERIATIM: THE SUPREME COURT BEFORE JOHN MARSHALL, edited by Scott Douglas Gerber, 231-59. New York: New York University Press.
Gerber, Scott Douglas. 2011. A DISTINCT JUDICIAL POWER: THE ORIGINS OF AN INDEPENDENT JUDICIARY, 1606-1787. New York and London: Oxford University Press.
Gerber, Scott Douglas. 1995. Book Review of Gary C. Bryner & A.D. Sorensen, eds., THE BILL OF RIGHTS: A BICENTENNIAL ASSESSMENT. SOCIAL SCIENCE QUARTERLY 76: 929.
Gerber, Scott Douglas. 2012. Book Review of Kevin R.C. Gutzman. JAMES MADISON AND THE MAKING OF AMERICA. LAW AND POLITICS BOOK REVIEW 22: 335-38.
Gerber, Scott Douglas. 1996. “Roger Sherman and the Bill of Rights.” POLITY 28: 521-40.
Gerber, Scott Douglas. 1995. TO SECURE THESE RIGHTS: THE DECLARATION OF INDEPENDENCE AND CONSTITUTIONAL INTERPRETATION. New York: New York University Press.
Gerber, Scott Douglas, editor. 1998. SERIATIM: THE SUPREME COURT BEFORE JOHN MARSHALL. New York: New York University Press.
Hall, Mark David. 1998. “James Wilson: Democratic Theorist and Supreme Court Justice.” In SERIATIM: THE SUPREME COURT BEFORE JOHN MARSHALL, edited by Scott Douglas Gerber, 126-54. New York: New York University Press.
Hall, Mark David. 2013. ROGER SHERMAN AND THE CREATION OF THE AMERICAN REPUBLIC. New York and London: Oxford University Press.
Hall, Mark David. 1997. THE POLITICAL AND LEGAL PHILOSOPHY OF JAMES WILSON, 1742-1798. Columbia: University of Missouri Press.
Haw, James. 1998. “John Rutledge: Distinction and Declention.” In SERIATIM: THE SUPREME COURT BEFORE JOHN MARSHALL, edited by Scott Douglas Gerber, 70-96. New York: New York University Press.
Holt, Wythe. 1998. “John Blair: ‘A Safe and Conscientious Judge’”. In SERIATIM: THE SUPREME COURT BEFORE JOHN MARSHALL, edited by Scott Douglas Gerber, 70-96. New York: [*244] New York University Press.
Vile, John R. 2005. THE CONSTITUTIONAL CONVENTION OF 1787: A COMPREHENSIVE ENCYCLOPEDIA OF AMERICA’S FOUNDING, 2 vols. Santa Barbara, CA: ABC-CLI0.
Vile, John R. 2012. THE WRITING AND RATIFICATION OF THE U.S. CONSTITUTION, 2 vols. Lanham, MD: Rowman & Littlefield.
Copyright 2014 by the Author, Scott Douglas Gerber.