The Case of the Adapted Anecdote

Today is Constitution Day, declared to commemorate the date on which the delegates at the Constitutional Convention signed off on their work.

Not the day on which that proposed constitution for the new U.S. of A. was ratified by a supermajority of the people’s representatives, nor the day on which it went into effect. But that’s another story.

Speaking of stories, I’m continuing to investigate the anecdote that James McHenry wrote and then rewrote about Benjamin Franklin telling Elizabeth Powel that the convention provided for a “a republic—if you can keep it.”

Two Supreme Court justices have written books using that phrase as their title. The more recent is by Neil Gorsuch, who alluded to the story only in passing.

The earlier was by Earl Warren in 1972, after he had retired from the bench. It offers this page at the start:

After a detailed description of Franklin encountering a woman outside the meeting hall, Warren cited the “Notes of Dr. James McHenry, one of the delegates,” adding, “Adapted from Documents Illustrative of the Formation of the Union of the American States, Government Printing Office, 1927.”

When I looked up that government publication, however, I found only the transcription of what McHenry wrote at the end of his convention notes, as published in Max Farrand’s The Records of the Federal Convention of 1787 in 1911.

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.

The lady here aluded to was Mrs. Powel of Philada.

Warren accurately quoted Elizabeth Powel’s question about “a republic or a monarchy.” He didn’t insert the word “Madam” into Franklin’s response as some authors did.

However, none of the emotional detail in Warren’s anecdote—how the “delegates trudged out,” the “anxious woman in the crowd waiting at the entrance”—came from the source he cited. The phrase “Adapted from” shows that Warren must have realized how his telling differed from the original. Most likely, he had been influenced by other detailed retellings and imagined the scene that way.

American authors had been setting this exchange on the street for at least thirty years by then. (McHenry wrote that it happened indoors, and Powel insisted that it had happened in her salon if it had happened at all.)

Previous writers had described the questioner as “eager,” “concerned,” and “inquisitive.” This is the earliest version that I’ve found using the word “anxious,” an adjective repeated in reviews of this book and in later narrations. (Powel would have hated that characterization.)

This version of the anecdote appeared in a book by a former Chief Justice of the United States, with what appears to be a citation to a highly authoritative source. But tracing back that citation shows how many details of this tale were spun out of nothing.