Moderate Confederalists

You are one of several delegates to the Constitutional Convention who describe themselves as
Moderate Confederalists. You are not the majority; but in concert with hardline Confederalists, you
represent a sizable voting bloc, strong enough perhaps to prevent the convention from agreeing on
any constitution. Alternately, if you were to side with the Moderate Nationalists, and they with you,
a constitution to the liking of moderates could possibly be achieved.

FACTION BELIEFS

The moderate middle is best understood by comparison with the extremes—Confederalists and
Nationalists. The Confederalists subscribe to Country-republican theory. They see government, and
especially distant government, as an oppressor power in need of close watching and jealous
suspicion, lest it trample on the liberties of the people and rob them of their property. Small
republics are where that supervision can most effectively occur; small republics, therefore, are the
true home of liberty. Montesquieu says as much, and history, the Confederalists contend, backs
him up (e.g., Greece, Rome). America’s equivalent of small republics are the thirteen states, whose
preservation, it follows, is a requirement of liberty. If too much power was granted to the states
under the Articles of Confederation (the country’s first constitution, ratified in 1781), the proper
response is to amend the Articles. The Confederalists have in mind a set of sensible amendments
that would invest more power in the legislature (originally called the Continental Congress, but
now usually just Congress) and better define the executive and judicial branches. What the Articles
basically got correct, however, and what the new constitution must carry forward, is the dependent
relationship that obtains between congressional delegates and state legislatures: who elect these
delegates (in many cases), recall them (if dissatisfied with their performances), instruct them how
to vote (if the issue is significant and time permits), and pay them their salaries. Moreover, the term
of office is only one year, and no delegate is allowed to serve more than three terms in any span of
six years. The other means by which states assert power are the supermajority and unanimous-
consent requirements for passing important legislation, in the first instance, and for amending the
Articles, in the second. It may be that these provisions are overly restrictive and need changing.
But if they go, something kindred must replace them. Perhaps the use of state legislatures as the
electing bodies for national offices will do.

The Nationalists are Court republicans. As a rule, Nationalists are less suspicious of power, now
that power has been made accountable to the people (e.g., elections). They imagine benefits arising
from power, whereas Confederalists obsess over its associated dangers. Nationalists want the
federal government invigorated and the state governments brought to heel. They despair of fixing
the Articles of Confederation because confederation, they say, is a fatally flawed form of union.
When the contracting parties are semi-sovereign states, the enforcement of law is a matter of
invasion and war, not arrest and trial. Law, therefore, is never enforced. A more integrated union
is what they envision, perhaps even a consolidated union (i.e., one people, one government). Some
Nationalists go so far as to propose the elimination of the states; most though would be content to
impose on them a subordinate status. Of primary importance is the independence of the federal
government, this to be established by denying states any say in national affairs. Thus using the state
legislatures as the electorate for national offices is out of the question. Also, steps should be taken
to mitigate the dependence of elected officials on their constituents back home, because officers of
the federal government are responsible for considering the national interest, a common good more
encompassing than the parochial concerns of the states.

Moderate Confederalists 85
 And where exactly do you Moderate Confederalists stand? Your support for states’ rights is pretty
solid. You can’t let go of the conviction that the states are small republics and that small republics
are liberty’s best guardian. But you are open to curtailing some powers of the states. After all, their
record of governance during the Confederation period has been less than inspiring. Many state
legislatures, for example, have passed paper-emission bills that have wrecked investment and credit.
A stronger federal government would not be a bad thing. But it should confine its actions to matters
national in character: currency, commerce, defense, and treaties. The police powers of the states it
should leave alone (i.e., the power to regulate behavior for the health, safety, and prosperity of all).
And its strengthening can probably come about by amendments to the Articles of Confederation—
which, as it happens, is all that the Congress has authorized the convention to do.

FACTION RESPONSIBILITIES

It is not your charge to write a complete constitution using the Virginia Plan as your base. That
would take more time than what the game allows. Rather your charge is to discuss and resolve three
institutional issues and one socioeconomic issue taken from the Constitutional Convention (and
from the Ratification period), each subdivided into parts, making for nine issues in all. These are
as follows:

House of Representatives
1. The character of the representative
2. The size of the lower house

Senate
3. The mode of electing senators
4. The suffrage of states in the upper house

Presidency
5. The president’s term of office
6. The president’s eligibility for reelection
7. The mode of electing the president

Slavery
8. The importation of slaves
9. The inclusion of slaves in the population counted for representation and taxation

Respecting all of these issues, the faction’s position must be advanced and defended. In very small
classes, that could mean each faction member taking responsibility for multiple issues. (Grade-wise,
it is in your interest to speak often at the podium.) Although personalized role sheets specify writing
assignments, these assignments may in some cases need to be adjusted for the sake of
accomplishing full issue coverage. The faction leader, Roger Sherman for the Moderate
Confederalists, will perform this organizational work, perhaps with guidance from the Gamemaster.
The leader’s role, along with all other named roles in use, are given out by the Gamemaster.

Your main identity derives from the faction to which you belong. As such you are undifferentiated
Moderate Confederalists working to construct an abbreviated constitution that reflects Moderate
Confederalist principles (a blend of Country and Court republicanism). But your second identity is
that of a historical character, who may have objectives that conflict with those of the group. On two
issues in particular (but not these two only) is the group at risk of defections: (1) suffrage in the
Senate, where the large-state—small-state distinction comes into play; and (2) slavery in the South,

Moderate Confederalists 86
 where the North-South distinction comes into play. In these cases some delegates will decide
individually how to proceed, whether to seek the points awarded for group success or to seek the
points awarded for individual success (see “Victory Objectives” at the end of the personalized role
sheets). Again, the size of the class may matter. The larger the class, the more precise will be the
differentiation of characters and the division of labor.

In the course of your research, you very likely will discover discrepancies between the positions
adopted by your game character and those adopted by the historical original. In such instances you
are to follow what your game character is told to say and do. Some liberties have been taken with
the history to suit game needs, causing these discrepancies to occur. It is generally the case that the
arguments of any Moderate Confederalist at the convention are available for use by any Moderate
Confederalist in the game, not just those arguments that an individual’s character actually
articulated. Unless otherwise instructed, you are to work with your faction to achieve its group
objectives. Where neither a group objective nor an individual objective is provided, you are
required to find your own way, and always you are free to negotiate with others.

FACTION OBJECTIVES

You have two tasks to perform. One is to draft a constitution as pertains to the issues of the game.
The other is to secure passage of the constitution by the convention. At the start of the final game
session, the Gamemaster will score the constitution as drafted. No constitution can reflect the
wishes of just one faction; partnerships are required. These are:

Nationalist/Moderate Nationalist (N/MN)

Moderate Nationalist/Moderate Confederalist (MN/MC)
Moderate Confederalist/Confederalist (MC/C)

When these partnerships are unequal, because of unequal agenda points won, the dominant partner
receives a plus—e.g., N/MN+. Numerous constitutions are therefore possible. Faction points,
known only to the Gamemaster, attach to each of these possibilities.

After the Gamemaster’s scoring, the convention will have one final opportunity to make
adjustments before it votes to accept or reject the constitution. The game concludes with this vote.

In most cases Moderate Confederalists have more faction points to gain than to lose by passing the
constitution; so be careful not to overplay your hand, using the threat of rejection to extort every
possible concession from the Nationalists and Moderate Nationalists.

Moderate Confederalists can proceed in any of three ways: ally with Confederalists, ally with
Moderate Nationalists, or ally with both, albeit at different times.

RESOURCES

Source material, in most cases, comes from:

Philip B. Kurland and Ralph Lerner, eds., The Founders’ Constitution, 5 vols. (University of Chicago
Press/Liberty Fund, 1987); abbreviated FC; on reserve (vols. 1-3) and accessible online at:
http://press-pubs.uchicago.edu/founders/
When using the online version, click on the link and then click on Contents, found above and
below the picture. A table-of-contents page will appear. The site divides material into Major

Moderate Confederalists 87
 Themes, volume 1, and The Constitution, volumes 2-5; it does not, however, show volume
number or page numbers. Major Themes is organized by chapters, separately titled; the
Constitution is organized by articles, sections, and clauses of the Constitution. When searching
for material in Major Themes, click on the relevant chapter title, e.g., “Popular Basis of Political
Authority”; when searching for material in The Constitution, click on the relevant article, section,
and clause of the Constitution (abbreviated A, S, and C in the following bibliographies). A title
page will appear listing and numbering the documents included. Click on the relevant document
according to number. In cases of multi-page documents, students using the print volumes on
reserve may have the advantage of a more precise citation.

Jonathan Elliot, ed., The Debates of the Several State Conventions on the Adoption of the Federal Constitution,
2nd ed., vol. 2 (Lippincott, 1896); abbreviated Debates; accessible online at:
https://oll.libertyfund.org/titles/elliot-the-debates-in-the-several-state-conventions-vol-2.
Under Table of Contents, select Debates in the Convention of the State of New York. Page
numbers are provided, though they often occur inside the text and may be hard to locate.

Max Farrand, Records of the Federal Convention of 1787, 4 volumes (Yale University Press., 1966, 1987);
accessible online at:
http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=1785
Click on the appropriate volume. Scroll past the Table of Contents. Page numbers are provided
in the right margin in brackets.

ADVISORIES

Appendix C of the game book provides brief histories of the thirteen colonies/states, plus many
specifics of their respective constitutions, given in table form. Use of these histories can help
explain the interests (or prejudices) of particular states, and antecedents found in the state
constitutions can help bolster arguments for why similar provisions ought to be included in the
national constitution.

Care must be taken when using post-convention writings (e.g., The Federalist Papers) because
most of these are commenting on a completed constitution, which does not exist at the time of the
game. Arguments of enduring import are available for use, but not arguments about constitutional
provisions yet to be decided or about historical developments yet to occur. Podium speeches and
floor remarks should not identify these future writings, though they should be cited in the footnotes
of papers. Pre-convention writings are a different matter, however; they may, and often should, be
identified, because their authors are often respected authorities whose reputations will lend weight
to the opinions you are advancing.

The following descriptive paragraphs are for use as talking points by all faction members, who can
and should be active in all sessions of the convention, whether or not they have speeches to give.
The source material is for use by faction members with papers to write on particular issues.

ISSUES AND SOURCES

HOUSE OF REPRESENTATIVES

1. Character of the representative

Experience at the state level has taught Moderate Confederalists to question the capacity of ordinary
citizens for self-rule. Too often these citizens have returned to office crude demagogues promising

Moderate Confederalists 88
the moon. Thus the Confederalist claim that representatives should reflect the opinions, passions,
and interests of the electorate does not fully convince you. Confederalists think of representatives
as the bound agent of the people they represent (agent theory of representation). Nationalists, on
the other hand, prefer representatives who come from the social elite (“elite,” or trustee theory of
representation), sometimes called the “natural aristocracy.” But you worry that natural aristocrats
will turn out to be conventional aristocrats, persons whose prominence rests less on talent, learning,
and service than on birth, wealth, and connections. Given the alternatives, Moderate Confederalists
incline more toward agent representation, though not all of you agree.

Recommended sources are:

“Country Republicanism” (game book)
James Burgh, Political Disquisitions (FC, vol. 1, p. 392-94; under “Representation,” #8)
Edmund Burke, “Thoughts on the Cause of the Present Discontents” (FC, vol. 1, p. 391; under
“Representation,” #6)
Letter from a Gentleman from Massachusetts, October 17, 1787 (FC, vol. 2, p. 114; under A 1, S
2, C 3, #3)
Gordon Wood, The Creation of the American Republic, 1776-1787 (University of North Carolina Press,
1969), pp. 488-92, 513-16
Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (Knopf, 1996), pp.
228-34

No vote will be taken on the qualities and obligations of a republican representative. Instead, the
convention will vote on the size of the lower house—with a vote for a larger house indicating
sympathy for the agent theory of representation, and a vote for a smaller house indicating sympathy
for the trustee theory.

2. Size of the lower house

While the lower house is traditionally understood to be the people’s house, having more members
than the upper house, the pertinent question is how many members. Nationalists propose 65
representatives to start, with future increases not to exceed 1 representative per 40,000 inhabitants
(the ratio is pegged to a maximum number instead of to a minimum in order to prevent the house
from becoming too large over time; were it the other way around—no less than 1 per 40,000—the
House of Representatives today would have 7,500 members). Confederalists want more than 65 at
the outset, and they want a ratio closer to 1 per 20,000. They aim for a house that represents all of
the interests and occupations contained in the country and for an officialdom that replicates the
populace? Being a moderate you are disposed to splitting the difference; and being a Moderate
Confederalist you are disposed to a split that favors slightly the Confederalist side: 110
representatives for now (a rounded-up mean between the 65 wanted by Nationalists and the 150
wanted by Confederalists), though maybe more; and a ratio of 1 per 30,000 or 1 per 25,000.
However, you may not all agree.

Recommended sources are:

New York State Ratifying Convention, speeches by Smith (June 20, 21, pp. 229-30, 244-51, 259),
Clinton (June 21, pp. 261-62) (in Debates, vol. 2; excerpts in FC, vol. 1, pp. 410-11; under
“Representation,” #37)
Federal Farmer, II, VII, VIII, IX (excerpts in FC, vol. 1, p. 401-05; under “Representation,” #20,
#22, #23, #24)
Cato, V, Fall 1787 (FC, vol. 2, p. 115; under A 1, S 2, C 3, #6)
Gordon Wood, The Creation of the American Republic, 1776-1787 (University of North Carolina Press,
1969), pp. 488-92, 513-16

Moderate Confederalists 89
 Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (Knopf, 1996), pp.
228-34

N.B.: Not addressed for the lower house are the two issues pertaining to the upper house and
coming next—namely, the mode of election and the mode of suffrage or representation. In the case
of the lower house, it is simply assumed that representatives are popularly elected and that the
suffrages of states are in proportion to their populations. The debated ratios of 1 per 40,000, 30,000
etc. are population based.

SENATE

3. Election of the upper house

There are only so many ways to elect members of the upper house: (1) by the lower house of the
national legislature (preferred by Nationalists); (2) by the people, either directly or indirectly; (3)
by state legislatures (preferred by Confederalists); or (4) by state executives. Moderate
Confederalists stand with their Confederalist brethren in preferring method #3. More distinguished
characters, you believe, are likely to be chosen by this method than by any other (an elitist argument
that might appeal to Nationalists), and this method allows the states to exert some influence over
the national government. The theory of separated powers mandates that each branch of government
be constructed to guard against encroachments by the others. Because America has, in addition to
branches of a single government, two levels of government—national and state—use of state
legislatures as electoral bodies for the upper house is but a logical extension of the principle of self-
defense. As for popular election, it will replicate only the results that occur at the state level, which
results will replicate only the performances that occur in the state legislatures. Had these
performances been even adequate, less cause would have existed for convening this Constitutional
Convention. And state governors would become too important, both locally and nationally, if given
the power to appoint senators.

Recommended sources are:

“Country Republicanism” (game book)
Convention speeches by Sherman (May 31, p. 185), Sherman (June 7, p. 185), Gerry (June 7, p. 186),
Mason (June 25, p. 190) (all in FC, vol. 2; under A 1, S 3, C 1 and 2, #3)

4. Suffrage of states within the upper house

For Moderate Confederalists, many of whom come from small states, equal representation in the
Senate is the convention’s primary issue. It is primary as well for many of the state legislatures,
which in some instances have instructed their delegates to bolt the convention if the decision goes
against them. The small states demand an equal voice in the national legislature in accordance with
past practices and confederal theory, where the contracting parties are states, each an equal
regardless of population or wealth. Because the lower house is organized on the principle of
proportionality, it is imperative that the organization of the upper house reflect the equality of the
states. Otherwise a coterie of large states will set policy for the remainder. Confederalists are likely
to support you, including those from large states, because they too respect confederal theory.

A winning argument for you might be the size of the upper house if proportional representation is
adopted, because the upper house must have eighty or more senators in order for the least populous
state to be entitled to just one. But the Nationalists want a small upper house to serve as an
aristocratic check on the democratic lower house. How can the Nationalists have their aristocratic
Senate if proportional representation inflates its size?

Moderate Confederalists 90
 Recommended sources are.
Continental Congress, Taxation and Representation, July 12, 1776 (FC, vol. 2, pp. 88-9; under A 1,
S 2, C 3, #1)
Convention speeches by Mason (June 7, p. 187), Ellsworth (June 29, p. 193), Ellsworth (June 30, p.
195), Paterson (July 7, p. 202), Sherman (July 14, p. 203) (all in FC vol. 2; under A 1, S 3, C 1
and 2, #3)
Farrand, vol. 3, #158 [CLVIII], “Genuine Information,” pp. 181-91
Joseph Story, Commentaries on the Constitution (FC, vol. 2, p. 237, §701-702; under A 1, S 3, C 1 and
2, #19)

PRESIDENCY

In a republic, where the people are sovereign, the branch nearest to the people—the legislative
branch—is supreme. The executive branch is subordinate, even if it enjoys a measure of
independence. While it may be that the national executive needs strengthening in comparison with
state executives, the greater danger lies in creating an executive that contains the seeds of monarchy.
Thus care must be taken when determining term of office, eligibility for reelection, and mode of
election.

5. Term of office
A lengthy term of office is six years or more; a short term of office is three years or less. Some
Nationalists would fix the term at “good behavior” (effectively appointment for life); some
Confederalists would set the term at one year, citing the authority of Montesquieu: “Where annual
elections end, tyranny begins.” Of course, Montesquieu is describing the British constitution, which
has a hereditary monarch for its executive. It is not then clear whether Montesquieu would seek to
weaken or strengthen a republican executive. Uncertain where to stand, you go for a position in the
middle: four to five years. You could go lower, if Confederalists make it worth your while. Bear in
mind that term of office is closely related to re-eligibility. Defections are possible.

6. Re-eligibility
Moderate Confederalists tend to oppose re-eligibility, especially if the term of office is long. If the
term is short, then maybe, but only if rotation, or term limits, is part of the package (e.g., mandatory
removal after a specified time in office and re-eligibility only after a specified time away). The
arguments for re-eligibility are two: continued use of experience gained; and reward for services
performed. But the country has many capable leaders, and what sort of president is it who will only
do his duty on the promise of keeping his job? It is no dishonor to become a citizen again after
having been for a time a magistrate. (Is not public office called service, and are not the people
called sovereign?) Indeed, the realization that office must one day be surrendered should have a
chastening and salutary effect upon the incumbent.

Because of the integrated nature of term of office and re-eligibility, recommended sources for these
issues are given together:
John Locke, Second Treatise of Government, §143-50 (game book)
Montesquieu, Spirit of the Laws, XI.6 (paragraphs 1-7, 30-31—game book)
Convention speeches by Sherman (June 1, p. 491), Mason (July 17, pp. 495-96), Randolph (July 19,
p. 497), Gerry (July 19, p. 498) (all in FC, vol. 3; under A 2, S 1, C 1, #4)
An Old Whig, V, Fall 1787 (FC, vol. 3, pp. 500-01; under A 2, S 1, C 1, #7)
Federal Farmer, XIV, January 17, 1788 (FC, vol. 3, pp. 504-05; under A 2, S 1, C 1, #10)

Moderate Confederalists 91
 Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (Knopf, 1996), pp.
256-68

7. Mode of election
Nationalists say that they want an independent executive. They also say that they want the executive
elected by the national legislature. Is there a better way to destroy executive independence than by
this mode of election? The remedy seems obvious: election by the national legislature, to a term of
office of moderate length, without the option of reelection. The occupant, unable to run again, is
independent of the persons who put him in office, and the time in office is long enough for
experience to be gained. The main drawback is that large states might benefit by this arrangement,
having more members in the national legislature. The alternative is to hand the election over to the
states, either to their legislatures or to their executives.

Recommended sources are:

Convention speeches by Sherman (June 1, p. 536), Gerry, (June 9, pp. 536-37), Randolph (June 9,
p. 537), Sherman (July 17, p. 537), Mason (July 17, p. 538), Gerry (July 24, p. 540), Gerry (July
25, p. 542), Mason (July 26, pp. 542-43), Report of the Committee of Eleven (September 4, pp.
544-45), Committee of Style (September 7, p. 550) (all in FC, vol. 3; under A 2, S 1, C 2 and 3,
#2)
Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (Knopf, 1996), pp.
256-68

SLAVERY

Moderate Confederalists may be better situated to deal with slavery than the other factions, since
northerners and southerners within your ranks are near the center and prone to compromise. Few
of you take a strong moral stand against slavery, and few of you are determined to protect slavery
in all its aspects. Your northern members realize that the plantation economy of the South, geared
toward the production and export of tobacco, rice, and indigo, cannot survive without slave labor;
and your southern members come from states that no longer import slaves.

IMPORTANT: Slavery was defended at the Philadelphia Convention on economic grounds

exclusively. Thus you can—and should—when speaking of slavery, stick to economic arguments
and related matters of practicality, for by doing so you remain faithful to the historical record, while
also avoiding racial remarks that might make you and your classmates uncomfortable.

8. Importation of slaves
Others will fight over the right of states to import slaves indefinitely or the right of the country to
ban the practice constitutionally. You occupy the middle ground: a legislated ban not to occur inside
of twenty years of ratification. You may though have to compromise for the sake of a larger bargain.
Expect defections, however.

Recommended sources are:

Thomas Jefferson, Notes on the State of Virginia, Query 18, 14 (game book)
Convention speeches of July 23, August 21, August 22, August 25 (FC, vol. 3, pp. 279-82; under A
1, S 9, C 1, #3)
Virginia State Ratifying Convention, speech by Mason, June 15, 1788 (FC, vol. 3, p. 292; under A
1, S 9, C 1, #14)
A Federal Republican, October 23, 1787 (FC, vol. 3, pp. 282-83; under A 1, S 9, C 1, #5)

Moderate Confederalists 92
 Massachusetts State Ratifying Convention, speeches by Dawes and Neal, January 18, 25, 1788 (FC,
vol. 3, p. 288; under A 1, S 9, C 1, #11)
North Carolina State Ratifying Convention, speech by Galloway, July 26, 1788 (FC, vol. 3, p. 295;
under A 1, S 9, C 1, #15)

9. Representation and taxation

The problem with cutting off the slave supply line, whether abruptly or gradually, is that slavery is
tied up with representation. Southerners will have every incentive to increase the number of slaves
coming into the South if slaves are in any proportion counted in the represented population; on the
other hand, if slaves are not counted, the wealth of the South (currently exceeding that of the North)
will not be properly represented. (All delegates agree that wealth should be represented; many
though believe that it is represented by the representation of numbers, since the number of persons
laboring, in a manual-labor economy, roughly determines the amount of wealth.)

The southern position is to count slaves fully for the purpose of representation. Perhaps some of
you Moderate Confederalists can support that objective. But a more realistic objective is a
compromise in which taxation is tied to representation—that is, a per-capita tax, (paid collectively,
not individually) that requires the southern states to pay for the slaves they have represented in the
legislature. Three sorts of compromise are possible, all of them consisting of pairs of proportions.
They are, in the order of your preference: (1) representation set higher than taxation; (2)
representation set at the same rate as taxation; and (3) representation set lower than taxation. Work
with all parties to hammer out a deal.

Recommended sources are:

Continental Congress, Taxation and Representation, July 12, 1776 (FC, vol. 2, pp. 87-88; A 1, S 2,
C 3, #1)
Convention speeches by Butler (July 11, p. 103), Mason (July 11, pp. 103-04), Rutledge (July 11, p.
104), Pinckney (July 12, p. 107) (all in FC, vol.2; under A 1, S 2, C 3, #2)
Paul Finkelman, Slavery and the Founders: Race and Liberty in the Age of Jefferson, 2nd ed. (M.E. Sharpe,
2001), pp. 10-21

Moderate Confederalists 93
 David Brearley
Delegate from New Jersey
(Moderate Confederalist)

BIOGRAPHY

Your English ancestors arrived in the late seventeenth

century from Yorkshire, England, settling in the area
around Trenton, New Jersey. You are the son of David
and Mary Clark Brearley, born in 1745. You attended
Princeton, called then the College of New Jersey, but
you never graduated. Instead you took up the study of
law, with admittance to the bar and a legal practice of
your own coming in 1770. Allentown, New Jersey, was
where you then lived. After the outbreak of hostilities,
in 1776, you joined the New Jersey militia, staying in
service until 1779 and rising to the rank of colonel. You
saw action at Brandywine, Germantown, and
Monmouth (1777, 1778).

Retirement from the military was followed by

appointment to the New Jersey supreme court—chief
justice no less (those half dozen years of early practice
must have been something special indeed!). One year
on the bench and you had established the principle of
judicial review in American law (Holmes v. Walton). The New Jersey legislature unanimously
elected you a delegate to the Constitutional Convention.

RESPONSIBILITIES

Election
Put your name forward for election to the post of convention secretary and president pro tempore.
The secretary keeps tallies of the votes cast, and the president pro tempore steps in as president in
the event of General Washington’s absence.

Hamilton’s Duel
You are a member of the Society of the Cincinnati, a fraternal organization of former Revolutionary
War officers. Alexander Hamilton is another member, and General George Washington is the
society’s president. If Hamilton, because of his involvement in the Cincinnati, is insulted by another
delegate, and if in response he challenges the miscreant to a duel; you are to speak in Hamilton’s
defense and come to his aid as a second—that is, step in should his courage fail him and attend to
his wounds should he lose, perhaps repeating the duel against his opponent’s second. Say nothing
to anyone about this (Hamilton excepted); surprise is imperative.

Faction Defection
You come from a small state where politics is local and where elected officials are expected to
reflect the opinions and interests of the people they represent. Such dependency is best achieved if

Moderate Confederalists: David Brearley 117

 the lower house is enlarged (about 150 members at the start), with each member representing about
20,000 constituents. These are the numbers proposed by the Confederalists, and though a Moderate
Confederalist yourself, you are to vote with them on Issue #2. Speaking with them on Issue #1—
theories of representation—is easy because both factions endorse agent representation.

WRITING ASSIGNMENTS

You have one paper to write for the game, but there is a small chance that a second paper would be
required of you. Your faction leader, Roger Sherman, would make the assignment and choose the
topic, though in consultation with you. The Gamemaster may be called in to assist.

PAPER 1
In your one, certain paper, argue the Moderate Confederalist case for a moderately strong and
independent executive, as pertains to term of office, eligibility for reelection, and mode of election
(Issues 5-7).

VICTORY OBJECTIVES

In addition to your faction’s objective of passing a constitution acceptable to Moderate Nationalists,

for which points are won if successful, you have four personal objectives also earning you points.
Victory requires that you achieve a majority of the points assigned both to your faction and to your
role. It is possible for you to win even if your faction loses or to lose even if your faction wins.
Personal objectives once achieved, including those involving constitutional provisions, are retained
as victories no matter the final vote on the constitution.

1 Election to the post of convention secretary and president pro tempore

2 Convention acceptance of a 150-member house and a ratio not to exceed 1 representative per
20,000 inhabitants

3 Convention acceptance of equal state representation in the Senate

4 Successful support provided to Hamilton in the dispute over the Society of the Cincinnati

Moderate Confederalists: David Brearley 118