The Founders and the Constitution, Part 7: John Rutledge

A painting of John Rutledge by Robert Hinckley (after John Trumbull), circa 1888. Oyez.org, Public Domain

Commentary

Let’s get the bad news out of the way first: John Rutledge owned slaves. Moreover, during the Constitutional Convention, he informed his fellow delegates that the three southernmost states would not join the Union if the Constitution immediately abolished the slave trade.

Discerning people, however, judge whether a historical figure is great, not by the faults that figure shared with others in his generation, but by how far he or she rose above his or her peers in other ways. By that measure, John Rutledge was a great man.

Rutledge was born in or near Charles Town (now Charleston), South Carolina, in September 1739. Neither the place nor the date is certain. He was about seven years younger than George Washington and John Dickinson and 12 years older than James Madison.

He was educated at home by his father and by a tutor who taught him the Greco-Roman classics. Electing a career in the law, he clerked in a leading Charleston law firm, and then traveled to England to study at the Middle Temple. This was the same institution that trained John Dickinson, Rutledge’s brother Edward, and several other prominent American Founders.

He returned home in 1760, and the following year—while only 21 years old—was elected to the lower house of the South Carolina colonial Legislature. In 1765, the Legislature sent him to the convention of colonies known to history as the “Stamp Act Congress.” He chaired the committee that petitioned the British House of Lords for a redress of grievances.

Rutledge likewise served in the First Continental Congress (1774) and, during its early weeks, in the Second (1775). However, he returned to South Carolina late in 1775.

Once back home, he chaired the committee that wrote the first state constitution. In the initial elections under that constitution, he was elected state president. He served in that capacity for two years. In the initial elections under a second state constitution, he was elected governor (1779).

In 1780, South Carolina was hammered by an overwhelming British invasion. The Legislature granted Rutledge dictatorial powers, earning him the nickname “Dictator John.” He coordinated guerrilla war against the British until hostilities ended the following year.

After his term as governor was over, he served again in the state Legislature, and next as chief judge of South Carolina’s court of chancery—the tribunal that administered the Anglo-American body of law called “equity.” He was in that position when chosen for the Constitutional Convention.

The Constitutional Convention

Rutledge headed the four-man South Carolina delegation and attended all the convention’s sessions. On the political spectrum of the time—described in the first essay in this series—he’s best classified as a “centrist.”

One indication of the respect his colleagues had for him is that they elected him again and again to serve on committees formed to broker compromises or resolve deadlocks. They also elected him to chair the Committee of Detail, which was charged with preparing the Constitution’s first draft. On that committee, Edmund Randolph of Virginia prepared the preliminary outline, but the principal editing is in Rutledge’s handwriting. His notations include the forerunner to the Necessary and Proper Clause (Article I, Section 8, Clause 18) and the provision allowing two-thirds of the state legislatures to force an amendments convention.

When convention proceedings stalled, it often was Rutledge who got them moving again. It was on his motion that the group adopted firm working hours. And when it looked like the larger states might walk out because the convention had voted to give smaller states equal representation in the Senate, Rutledge counseled perseverance. Madison’s notes report Rutledge as saying, “For his part he conceived that altho’ we could not do what we thought best ... we ought to do something.”

Some modern authors have marginalized Rutledge, favoring the flashiness of Gouverneur Morris or the democratic instincts of James Wilson. But the finished Constitution contained far more of Rutledge than of Wilson, and probably as much as of Morris.

True, Rutledge didn’t get everything he wanted. He wanted the House of Representatives to be elected by the state legislatures, and the convention chose popular election. He favored allocating representatives according to each state’s wealth or tax contributions, but the convention chose population. He argued in vain for congressional election of the president and unsuccessfully opposed the Origination Clause, which granted the House of Representatives the exclusive right to initiate tax bills (Article I, Section 7, Clause 1).

Yet it’s also true that an astonishing number of Rutledge’s ideas ended up in the final Constitution. Following are some of the positions he advocated successfully. Quite a few of these were inserted on his motion:

• federal powers are specifically listed (enumerated), rather than granted in general terms;
• the executive branch is headed by a single president, who may not unilaterally declare war or establish peace;
• the members of the House of Representatives have two-year terms;
• treaties negotiated by the president are subject to approval by two-thirds of the Senate;
• there’s no property requirement in federal elections;
• there’s no “council of revision” to review congressional laws;
• members of Congress are paid from the national treasury rather than by the states;
• trial by jury is guaranteed in criminal cases;
• ex post facto laws and bills of attainder are banned;
• treason and bribery are grounds for impeachment;
• state and federal officeholders must take an oath prior to assuming office;
• the president may not pardon a person who is impeached by the House and convicted by the Senate;
• the Constitution and constitutional federal laws and treaties are “the supreme Law of the Land;” and
• the president is barred from accepting “emoluments” from the United States or from any state in addition to his legal compensation (Article II, Section 1, Clause 7).

Few, if any, other delegates could surpass Rutledge’s record for identity between his own ideas and the finished document.

Later Life

In 1789, President George Washington appointed Rutledge as an associate justice of the Supreme Court, but he soon resigned to become chief justice of South Carolina. When John Jay, the first chief justice of the United States, resigned in 1795, Washington nominated Rutledge to replace him. For political reasons, however—coupled with rumors about Rutledge’s growing mental instability—the Senate never approved the nomination. Rutledge’s actual service as chief justice was limited to five months as a recess appointment (pdf).

Rutledge’s last years were marked by tragedies. These included the humiliating rejection of his bid to be chief justice, a subsequent attempt to commit suicide, and the loss of his wife, Elizabeth. The final straw was the death of his famous and beloved younger brother Edward, on Jan. 23, 1800. John passed only a few months later: on July 18.

Rutledge’s granite monument stands at St. Michael’s Episcopal Church in Charleston. For a monument to him that’s more lasting, look around you.

Read prior installments here: first, second, third, fourth, fifth, sixth.

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.