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Tuesday, March 23, 2021

Apocryphal Stories About the Constitution

For a project that I'm considering, I'm trying to think of the most famous apocryphal stories in constitutional law. Here are examples.

  1. "John Marshall has made his decision. Now let him enforce it." Andrew Jackson never said this. The story was first told after the Civil War (apparently by Horace Greeley, though I'm not certain whether it was him.)
  2. George Washington telling Madison that the Senate was like a saucer that cooled decisions from the House. He never said that either. The story was first told after the Civil War.
  3. There was no official Supreme Court portrait one year because Justice McReynolds refused to stand or sit next to Justice Brandeis. False--a recent article in the Supreme Court Historical Society thoroughly debunked this. The story was apparently invented by a scholar in the 1940s.

I would be grateful for other examples.


Here is one more--Benjamin Franklin telling Eliza Powel: "A Republic Madam, if you can keep it" after the Constitutional Convention. 

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Posted by: shabd yadav | Jun 14, 2021 1:47:26 PM

The addendum seems dubious if he very well might have said it but probably (sometimes people's memories are not reliable so it is not totally clear if we should rely on her statement) not to that person.

The comment is the main point, right?

Posted by: Joe | Mar 25, 2021 11:10:36 AM

Someone better alert Gorsuch J. in case he needs to change his book title. I actually haven’t read the book, so maybe it already covered the issue.

Posted by: hardreaders | Mar 24, 2021 1:15:15 PM

Eliza Powel features prominently in my Bushrod Washington book. When asked about the Franklin quote, she said she had no recollection of him saying that to her. Of course, he could have said it to someone else.

Posted by: Gerard | Mar 24, 2021 12:54:06 PM

Not sure how "apocryphal" the Powel quote really is, if by apocryphal we mean doubtful authenticity. Apparently there was a contemporaneous witness and 1787 diary entry by James McHenry (delegate from MD).

"The first record of the anecdote appears in a 1787 journal kept by one of the delegates to the convention, James McHenry of Maryland. He wrote: 'A lady asked Dr. Franklin Well Doctor what have we got a republic or a monarchy. A republic replied the Doctor if you can keep it.' McHenry added a footnote to the text: 'The lady here alluded to was Mrs. Powel of Philad[elphi]a.'" https://www.washingtonpost.com/outlook/2019/10/29/what-we-get-wrong-about-ben-franklins-republic-if-you-can-keep-it/

Posted by: anon | Mar 24, 2021 12:48:36 PM

The structure of the legislative branch, or maybe the electoral college, is based on the unwritten constitution of the Iroquois Confederacy.

The age limits for House, Senate, and President were inspired by a close reading of Plato's Republic.

Posted by: arthur | Mar 24, 2021 9:29:23 AM


That restriction is yugely unfair to all the unborn Americans out there. Why can’t a fetus be president too? It’s discrimination pure and simple.

Posted by: hardreaders | Mar 23, 2021 10:15:11 PM

The "natural born citizen" restriction on the presidency is just asking for some apocryphal tales.

It was intended to prevent Alexander Hamilton from being President.

No, it was intended to prevent the eight sons of George III who weren't first born from becoming President.

No, it was intended to prevent the new nation from falling prey to a new Caesar, so it makes ineligible anyone born by Cesarian section.

Posted by: arthur | Mar 23, 2021 9:20:06 PM

@Prof. Horwitz

Thanks for following up on that point. I do realize that each poster can have separate commenting preferences. But my question was about something a little different. (In fairness to you, I can see now that it was worded in a fairly vague way.) Specifically, I saw that some of Prof. Wasserman's more recent posts disabled comments. That seemed abrupt and I couldn't find any explanation for it. So I was just wondering if it was random or marks the start of some new trend. But given what you said, that's obviously more a question for him than for you.


That's an excellent story and it's also category-appropriate. It reminds me of the story—also claimed to be apocryphal—involving Bill Gates and RAM capacity in the 80s.

Posted by: hardreaders | Mar 23, 2021 5:31:30 PM

A big concern at the Constitutional Convention was the danger of a standing army. Supposedly, one delegate proposed the Constitution limit such an army to 2500 men. Washington, who presided over the convention rarely spoke but was to have said that he would support that only if the Constitution also limited the size of invading armies to 2500 men as well. I've seen no evidence that this in fact occurred.

Posted by: PaulB | Mar 23, 2021 4:57:27 PM

Commenting policies are by author and post rather than universal. It's not so much random as according to individual posters' preferences; we all have our individual reasons. I don't think there's been any recent discussion of that, so you haven't missed anything.

Posted by: Paul Horwitz | Mar 23, 2021 3:59:48 PM

I'm not sure the title (stories about the "constitution") or the intro sentence (stories about "constitutional law") is that accurate. None of the 3 stories is really about either the constitution or constitutional law in particular.

(1) at least involves a con law case, but the actual story doesn't seem to have much connection (con-nection?) to the legal issue decided in the case.

(2) doesn't even concern the Court, let alone a particular con law case. I suppose it's tenuously connected to the Constitution because that document of course established the House and Senate, but the specific idea of bicameralism discussed in the story was preexisting. (Also, someone ought to tell whomever maintains www.senate.gov about the story's apocryphal nature. Right now, they have a page mentioning the story without any indication that it's not authentic. See https://www.senate.gov/artandhistory/history/minute/Senate_Created.htm.)

(3) has absolutely nothing to do with law or the Constitution writ large. It's just about anti-Semitism and bigotry, where the context happens to be interactions between SCOTUS Justices.

Not that there's anything wrong with collecting random apocryphal stories, but the descriptions given don't seem that accurate. Conversely, I'd welcome the chance to read about any stories actually involving the Constitution and/or con law if they do in fact exist.

[PS: Is the ability to comment on posts just going to be enabled at random from now on? Apologies if there was an explanation posted somewhere and I missed it.]

Posted by: hardreaders | Mar 23, 2021 3:45:47 PM

Check out this one, titled:

"Cherry Tree Myth"

Although not really constitutional, but, you may find down the road there, further stories and sources.


Posted by: El roam | Mar 23, 2021 12:14:12 PM

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