Patrick Henry

by Thomas S. Kidd

  TO HENRY, THE PROBLEMS within the Constitution did not simply require the addition of a Bill of Rights but a tangible weakening of the proposed national government. The office of president particularly worried Henry. The Articles of Confederation provided no executive office, and the Revolution had ostensibly rejected the principle of monarchy. Yet in the Constitution, Americans were asked to accept a strong executive office that, to Henry, smacked of a kingship. “The Constitution is said to have beautiful features,” he proclaimed, “but when I come to examine these features, sir, they appear to me horribly frightful: among other deformities, it has an awful squinting; it squints towards monarchy: and does not this raise indignation in the breast of every true American? Your President may easily become King.”30

  Alexander Hamilton and the Federalists sneered at this kind of accusation. “Calculating upon the aversion of the people to monarchy,” Hamilton wrote in The Federalist, “they have endeavoured to enlist all their jealousies and apprehensions in opposition to the intended president of the United States; not merely as the embryo, but as the full grown progeny of that detested parent.” Hamilton reminded opponents that the president was fundamentally unlike a king in his accountability to the people and to the other branches of government. Kings were not elected to four-year terms, and they did not face the threat of impeachment for criminal behavior. The president could veto legislation, but Congress could override his vetoes. His senior appointments required the approval of the Senate. He could not dominate the government or neglect the wishes of the people, the Federalists argued.31

  Henry did not trust these assurances. His primary concern was the president’s command of the armed forces. Inevitably, a person elected president would use the military to run roughshod over the republic. “The President, in the field, at the head of his army, can prescribe the terms on which he shall reign master, so far that it will puzzle any American ever to get his neck from under the galling yoke.” (At this point, the stenographer apparently began struggling to keep up with Henry’s torrent of criticism against the president, finally noting in parenthesis that “Mr. Henry strongly and pathetically expatiated on the probability of the President’s enslaving America.”) Henry could not fathom why Americans, having just rejected the British king, would replace him with a president, a king in everything but name.32

  The Federalists saw the Constitution as the only way to save the American Union, but Henry saw it as the primary threat to that union. He went so far as to suggest that since the majority of American states had already accepted the Constitution, secession might be Virginia’s only remaining option. Not that he opposed a union of the states: Henry recognized the advantages of a properly confederated country. But a unified nation was not his top priority. “The first thing I have at heart is American liberty; the second thing is American Union.” So Henry flatly declared that unless the Constitution was radically amended, Virginians should never accept it, and they should consider leaving the Union unless their concerns were addressed.33

  Henry was not alone among Americans in considering secession from the Union an option in the face of a tyrannical government, either in the Revolutionary era or in the future. (The patriots had, after all, just seceded from the British Empire because they believed that the king and Parliament had become oppressive.) He raised the prospect of secession even before the Constitution’s adoption. Seven decades later, acting on similar anxieties, the leaders of the South would follow through on this long-standing principle.

  AS THE CONVENTION WORE ON, Henry became rambling and slightly desperate. Henry probably knew he was fighting a losing battle, at least on the question of ratification. He was also personally distracted. Reportedly he received news in the middle of a long address that Dorothea had given birth to Alexander, their sixth child together. In a rare glimpse of his personal feelings during the summer of 1788, Henry wrote to his daughter Elizabeth Aylett on June 11, telling her that personal and political matters were filling him with turmoil. The birth of his child and the proceedings at the convention deprived him of “any peace of mind ’til I can get home.” Another mouth to feed! thought the fifty-two-year-old Henry. Yet here he was battling again in the legislative arena, instead of making money and taking care of his family.34

  Although the sentiment at the convention was clearly turning toward ratification, the Federalists remained alarmed by Henry’s vehement and eloquent opposition. A letter published in northern newspapers claimed that Henry was only trying to “move the passions of the ignorant.” Governor Randolph complained that if the convention allowed Henry’s loquacious speeches to continue, it would take six months to decide the question instead of six weeks. As the supporters of the Constitution sought to counter Henry’s arguments, Randolph played an essential role; for even though he had refused to sign the Constitution at the convention, he now believed that Virginia had no choice but to ratify it and trust that the Congress would amend it. Refusing to ratify would mean disunion, according to Randolph, a price that he—unlike Henry—was not willing to pay.35

  James Madison listened to Henry and seethed. This plan of government, so carefully wrought in Philadelphia, did not deserve these kinds of gratuitous attacks, he thought. But Madison found that he could not say much more than what he had already said in The Federalist , especially because he was quite ill. What he called a “bilious attack” rendered him weak and mostly silent. He did occasionally reply directly to Henry’s fulminations, as on June 6, when he lamented to the delegates that Henry was only appealing to fear: “We ought not to address our arguments to the feelings and passions, but to those understandings and judgments which were selected by the people of this country, to decide this great question, by a calm and rational investigation.” Madison also challenged Henry’s contention that there was no crisis under the Articles of Confederation; the calling of the Constitutional Convention reflected a consensus that major modifications were needed in the national government.36

  Henry was not persuaded. He asserted that the Constitution represented a betrayal of the people of Virginia. He bristled at Edmund Randolph, who in an earlier speech had spoken of the common people as a “herd,” not capable of ruling themselves, rebuking Randolph for his incautious statement denigrating the citizens whom Henry believed he championed. Randolph did not try to defend himself, saying instead that he used the term “herd” only to describe the very multitude of people in the state. His was a common use of the term at the time, but to Henry, its disrespectful tone spoke of the dangers of this Constitution, which he feared would reduce common Virginians “from respectable independent citizens, to abject, dependent subjects or slaves.” Once again, Henry clamored only for the freedom and independence of white citizens, making no public association between the enslavement he feared for his fellow free Virginians and the slavery they practiced; he intimately knew but did not mention the awful realities of the slavery already in Virginia’s midst.37

  Once again he raised the question of the Mississippi River, saying that a breakup of the Union would not happen “unless a Constitution be adopted which will enable the government to plant enemies on our backs.” Approving the Constitution would mean losing the Mississippi, because a majority of northern states would be willing to cede control of the river to the Spanish. He firmly believed that the northern states would not protect the navigation rights of southerners, to whom it mattered most. (On this point, Henry was soon proven wrong, as the national Congress passed resolutions in September repudiating Jay’s Mississippi treaty and asserting America’s right to navigate the river. This was part of Congress’s effort to garner support for the Constitution from southerners.) He cited the Mississippi debate as a prime example of the danger of trusting in the benevolence of politicians. “Did we not know of the fallibility of human nature, we might rely on the present structure of this government” to protect the interests of the southern states, he warned. “But the depraved nature of man is well known.”38

  Henry also
warned that the government would become more and more bloated, wasteful, and extravagant over time. “The splendid maintenance of the President and of the members of both Houses; and the salaries and fees of the swarm of officers and dependents on the government will cost this continent immense sums.” Under the Confederation, the states could hold the national government in check because they gave financial support in response to requests from the national legislature, but no such protection would exist under the Constitution, and nothing would keep taxes and federal expenditures from skyrocketing.39

  From the potential abuse of the southern states to the wasteful taxing and spending by the new government, all of Henry’s concerns were ultimately rooted in his Christian republican ideals and his preference for limited, local government. In Christian theology, sin required salvation through Christ, but in political theory, the best kind of government accounted for sin by pitting people’s desires for gain, survival, and self-protection against one another. “The real rock of political salvation is self-love perpetuated from age to age in every human breast, and manifested in every action,” Henry declared. It was not good enough to hope for benevolent leaders. “Virtue will slumber. The wicked will be continually watching: Consequently you will be undone.”40

  Henry’s views on virtue and national power were more morally complex than he admitted: he was also concerned that the expanded national power under the Constitution might be used to attack southern slavery. He feared the taxing authority of the Congress partly because he suspected northern congressmen might eventually concoct a tax on slaves so onerous that it would force slave masters to emancipate them. Northern politicians, he feared, would not heed the violent effects of abolition and could potentially impose a rash program of emancipation. Madison (like Henry, a slave owner) denied that the Constitution gave Congress any such option, assuring the convention that with regard to government-forced abolition, “I believe such an idea never entered into any American breast, nor do I believe it ever will.”41

  Like many Virginia politicians and slave masters, Henry’s views on slavery remained in conflict. He professed revulsion against slavery but said at the convention that “as much as I deplore slavery, I see that prudence forbids its abolition. I deny that the General Government ought to set them free, because a decided majority of the states have not the ties of sympathy and fellow-feeling for those whose interest would be affected by their emancipation. The majority of Congress is to the North, and the slaves are to the South. In this situation, I see a great deal of the property of the people of Virginia in jeopardy, and their peace and tranquility gone away.” As much as he might like to see the slaves freed, Henry declared, the reality of abolition would unleash destruction—a race war between whites and blacks—and there was no practical or safe way for the government to mandate emancipation.42

  Thanks partly to the assertions and rebuttals between Henry and the Constitution’s defenders, the ratification convention dragged on, with many speeches repeating essentially the same points. Inevitably the long meetings became tense. George Nicholas, formerly Henry’s ally against Jefferson, rose on June 23 to say that Henry apparently opposed every part of the proposed Constitution and went on to imply that certain delegates had a vested interest in restricting the power of the federal courts, because they might rule unfavorably on suspicious land deals made in Kentucky. Atypically, Henry interrupted Nicholas and demanded to know if he was attacking him personally. Nicholas bluntly replied, “I mean what I say, Sir.” Both men backed off, however, when the chair asked that they refrain from any personal comments during the debate.43

  Recognizing that his arguments likely would not persuade a majority of delegates to vote his way, Henry decided that if the anti-federalists could not defeat the Constitution outright, they might be able to amend the worst features of it. Indeed, the anti-federalists would win their greatest victory in the fight for amendments. Initially, the Federalists thought that constitutional amendments, which ultimately would take form in the Bill of Rights, were an unnecessary distraction to the business of ratification. Madison also argued that a Bill of Rights would imply that the national government had powers beyond those enumerated in the text of the Constitution. For example, an amendment forbidding the government from violating freedom of speech might suggest that it had the power to do so unless the Constitution expressly prohibited it. It would be much simpler, Madison thought, just to agree that the national government had only the powers enumerated in the Constitution and no others. But the anti-federalists did not accept Madison’s assurances about the national government’s limited authority. Their relentless pressure at the states’ ratifying conventions helped ensure the adoption of those ten amendments that now form the basis for Americans’ most treasured rights under the law. Without Henry and the anti-federalists’ strident opposition, the Federalists would never have included provisions protecting freedom of religion, speech, the press, the right to bear arms, trial by jury, and other essential liberties. These amendments explicitly limited the power of the national government. Henry demanded that the Constitution clarify that all powers not expressly given to the national government were retained by the states, because otherwise, the national government would absorb powers by default. Henry noted that the Constitution did limit certain powers of Congress, such as its ability to suspend the writ of habeas corpus (the right of relief from unlawful detention). What about Americans’ other rights? Was the national government restricted with regard to those? “The fair implication is, that they can do everything they are not forbidden to do,” Henry concluded.44

  As the convention debate drew to a close, Henry and his fellow anti-federalists attempted to introduce amendments to the Constitution prior to ratification. Again, Madison and the Federalists vehemently opposed this idea. How could the states consider amendments proposed by other states, when eight states had already ratified without amendments? When George Wythe moved that the convention ratify the Constitution and then recommend amendments, Henry offered a declaration of rights and a slate of structural amendments that he called on the delegates to consider before they voted on ratification. These included an amendment, designed with Jay’s Mississippi treaty in mind, that would have required a three-fourths majority vote of the House and Senate to approve any treaty that ceded American territory, or navigation rights to American rivers. A majority at the convention approved Henry’s amendments and called on the new Congress and the other states to consider them, but he could not convince a majority to delay ratification until the amendments received national consideration.45

  In a final attempt to postpone ratification, Henry gave a speech that would secure his legendary reputation as a speaker. Madison, he said, “tells you of important blessings which he imagines will result to us and mankind in general, from the adoption of this system.” Henry, however, saw not blessings but curses at hand. Heaven, he proclaimed, was watching: “I see the awful immensity of the dangers with which it is pregnant.—I see it—I feel it.—I see beings of a higher order, anxious concerning our decision. When I see beyond the horizon that binds human eyes, and look at the final consummation of all human things, and see those intelligent beings which inhabit aetherial mansions, reviewing the political decisions and revolutions which in the progress of time will happen in America, and consequent happiness or misery of mankind—I am led to believe that much of the account on one side or the other, will depend on what we now decide.” As Henry spoke, a terrible storm rose outside the hall. Fierce winds and roaring thunder forced him to conclude his speech. Frightened members scurried to take cover. For Henry’s biographer William Wirt, the “spirits whom he had called, seemed to have come at his bidding.”46

  Angels or not, Henry failed to stop ratification. The convention voted the next day to approve the Constitution, 89–79. One Federalist wrote that “notwithstanding Mr. Henry’s declamatory powers,” he was “vastly overpowered by the deep reasoning of our glorious little Madison.” Just before the v
ote began, Henry began to adopt a conciliatory tone. He saw himself as “being overpowered in a good cause. Yet I will be a peaceable citizen! . . . I wish not to go to violence, but will wait with hopes that the spirit which predominated in the revolution, is not yet gone.” He had raised the stakes of ratification to their highest level, yet when he began to realize that he would lose, he moderated his approach to retain influence under the ratified Constitution. 47

  Henry took some comfort in the fact that the convention recommended forty amendments that essentially reflected the changes he had called for earlier. The first half of the amendments composed a declaration of rights, in which the convention called for explicit affirmation of rights such as trial by jury, freedom of speech and religion, and bearing arms. The second half enumerated additions and modifications they wished to be included in the Constitution. Most important, the convention demanded a clause that stated “that each state in the Union shall respectively retain every power, jurisdiction and right, which is not by this Constitution delegated” to the national government. This restriction, so fervently promoted by Henry, eventually took form in the Tenth Amendment.48

  Defeated except for the hope of amending a Constitution that had now gone into effect (New Hampshire had actually upstaged Virginia, becoming the ninth and deciding state to ratify on June 21), the anti-federalists met in the Virginia Senate chambers on June 27 to discuss strategy. George Mason supposedly drafted a “fiery, irritating manifesto” that would have roused opposition to the Constitution among Virginians. Most of the anti-federalist leaders were unwilling to fight on, however. One account written a few years later recalled that Henry steered the group toward reconciliation, stating that “he had done his duty strenuously, in opposing the Constitution, in the proper place,—and with all the powers he possessed. The question had been fully discussed and settled, and, that as true and faithful republicans, they had all better go home!” Despite Henry’s rumblings about disunion at the convention, he vowed to cooperate with the new government. He knew he had lost in an open political process at the ratifying convention. He had made his argument, but his fellow representatives disagreed with him. From then on, Henry accepted the basic legitimacy of the Constitution. But he had not yet given up hope for amendments.49