The Non-Signers

THE FINAL MOMENT CAME ON MONDAY MORNING, September 17,1787. The heat of summer had given way to a hint of autumn crispness. A weekend rain had cleared the air in Philadelphia and left the city fresh. In Independence Hall a newly engrossed copy of the finished Constitution—written in a fine hand on four large pieces of parchment—lay on the green baize of the presiding officer’s table. There would be a few ceremonial speeches, and then the delegates would line up to put their signatures to the document that would shape their new country for the next two centuries and more. Who could resist being overwhelmed by a wave of sentiment at the thought of participating in such a momentous occasion? Certainly not Ben Franklin, who—so it is said—wept as he put his signature to the Constitution.

But as it turned out, there were three men in the room who refused to endorse the summer’s work. Despite the momentousness, despite the pressure and even the pleading of their peers, despite the opportunity to be remembered among that small number of America’s Founding Fathers who composed and offered the Constitution to their countrymen, three men obstinately held out: Edmund Randolph and George Mason of Virginia and Elbridge Gerry of Massachusetts. Each for his own reasons detested the Constitution.

Forty-three-year-old Elbridge Gerry was a slight, dapper man, a merchant from Marblehead, a friend of the radical democrat Sam Adams, a man who spoke excitedly, with a stutter, about the virtues of liberty and of how those virtues were best protected by local government. As a political theorist and as a businessman, he feared a powerful central government that might meddle with free enterprise. At the same time, he understood the worth of the special privileges that a government might grant a business. On the one hand, he could see that those grants of privilege could be more easily controlled through one’s own state legislature; on the other hand, a federal legislature—if dominated by such large states as Massachusetts8212;might grant even larger favors. All summer long Gerry had fluctuated frantically back and forth between his instincts as a businessman and his genuine love of genuine liberty. On the last day of the convention he was still frantic.

Edmund Randolph came from the old Virginia stock that was devoted to fox hunting, horse racing, social dancing, and long visits at one another’s plantations. By virtue of their standing in the community, there were perhaps no more than a hundred families that were accustomed to running things, and the Randolphs were one of those families. His father, uncle, and grandfather all had been king’s attorneys before the Revolution. He himself had been Virginia’s first attorney general and was, in 1787, at the age of thirty-four, Virginia’s governor. He had an affection for Virginia and for the pleasures of local customs and usages that made him an instinctive States’ Rights man, unable to give much power to a central government.

George Mason, who at sixty-two suffered from gout, stomach trouble, a hatred of political gatherings, and general irritability, believed in government that was close to home, where politicians were known to their neighbors and could be watched by their neighbors. The trip to Philadelphia was the farthest he had ever traveled from home. Before the Revolution he had consented to serve less than a year in Virginia’s House of Burgesses (he could not stand the “babblers,” he said), although he was often available to serve on local boards and committees. He detested the notion of professional politicians; he thought citizens should serve the public good from time to time but be forced to return repeatedly to private life. He was also the author of Virginia’s Bill of Rights, which was to become the basis for the Constitution’s first ten amendments. Mason hated the idea of a strong central government.

Before the other delegates signed the Constitution, they had to listen to Gerry and Randolph and Mason voice their dissents. Gerry listed a number of objections, but the greatest reservation to the Constitution in his mind was the power given Congress to make whatever laws it “may please to call necessary and proper.” With such powers given Congress, Gerry could not put his name to the document.

To Randolph’s way of thinking, “indefinite and dangerous power” had been given to the central government. He thought that the states ought to be allowed to amend the document in their ratifying conventions. This suggestion of his had been turned down, so he could not sign the Constitution.

As for Mason, he was dumbfounded that the Constitution contained no declaration of rights. He had offered to draw up one, based on the Bill of Rights he had written for Virginia, and he had been turned down. On that issue alone he was constrained to withhold his signature. But he had other objections as well. There were to be so few members in the House of Representatives—the democratic house of the Congress, the repository of the voice and will of the people—that “there is not the substance but the shadow only of representation...the laws will therefore be generally made by men little concerned in, and unacquainted with their effects and consequences.”

Altogether, said Mason, the Constitution was not a democratic instrument at all; it set up a government of the few to rule over the many and left the many with almost no means to alter the government. “This government will set out a moderate aristocracy: it is impossible at present to foresee whether it will, in its operation, produce a monarchy, or a corrupt, tyrannical aristocracy; it will most probably vibrate some years between the two, and then terminate in the one or the other.” Mason could not give his approval to this prospect.

Thus Gerry and Randolph and Mason earned for themselves a unique appellation in American history: they are the “non-signers,” the ones who didn’t go along, the ones who lost the chance to have their names on one of the great documents of human history.

But of course they did not entirely escape being Founding Fathers. Whether they signed or not, their arguments were picked up by others not long after the convention adjourned. The state ratifying conventions took up George Mason’s cry for the Bill of Rights, and the states finally prevailed where Mason had not. Several years later, when it appeared that the balance in the government was shifting too greatly toward a central government, Jefferson and Madison took up the argument for local government. We hear the same arguments today—sometimes made dishonestly for the sake of some selfish privilege but often made out of a real understanding and love of liberty and democracy. The debate on the Constitution did not end in 1787. And the non-signers remain models for us in these continuing debates, exemplars of crusty, unassimilable individualism, of the right to pursue one’s own, individual way, to expect to have and enjoy the right of free, unfettered dissent.