Founding Rivals

by Chris DeRose

  And there is no evidence that Madison was consulted about the choice of McClurg. Monroe, living in Fredericksburg after his time in Congress, appears to have done nothing to indicate his interest in being selected for the Convention. He was passed over for five people with substantially better credentials than his, and one very esteemed and successful professional who worked with the governor who made the appointments.

  But in July of 1787, as the Constitutional Convention met in Philadelphia, Monroe evinced a belief that Madison had violated their friendship and did not have his best interests at heart. Monroe stewed in Fredericksburg, feeling a new distance from his mentor, political ally, partner, and friend.

  As things stood in Philadelphia, delegates had come to the hard-won decision that the number of representatives in the House would be based on the population of each state while the number of representatives in the Senate would be equal for each state, regardless of population. The delegates moved quickly through the remaining issues.

  On August 15, Madison proposed that all acts, prior to becoming laws, should be submitted to the president and Supreme Court; if either should object, a two-thirds majority in Congress could override the veto, or if both objected, a three-fourths majority would be necessary to override. While a two-thirds legislative override was adopted for presidential vetoes, the override for judicial decisions failed. The idea of such an override is one that deserved more consideration at the time and, in light of the evolution of our national institutions, one that deserves our attention today.13

  Madison had originally wanted Congress to have general powers with specific limitations in only certain areas. But the consensus in Convention was that congressional powers should be clearly enumerated.

  As the delegates neared the end of their labors, Randolph was becoming increasingly dissatisfied with the new constitution that was emerging from the Philadelphia Convention. He cited “features so odious . . . that he doubted whether he should be able to agree to it.” Randolph had originally proposed Madison’s Virginia Plan to the Convention, but he could not accept the final product of the compromise that emerged from that Plan. After months of debate, what did the dissatisfaction of so prominent a member of the Virginia delegation portend for the Constitution’s passage, both in Philadelphia and in the states?

  Chapter Ten

  A RISING OR A SETTING SUN?

  “The political concerns of this country are, in a manner, suspended by a thread.”

  —GEORGE WASHINGTON

  “I am a very incompetent prophet of the Constitution.”

  —JAMES MADISON

  During the last hours of the Philadelphia Convention, things started to fall apart.

  On September 12, 1787, the Committee of Style, on which Madison sat, produced a draft of the new constitution. Here Madison and the other delegates who had worked so long and hard for an energetic national government made a disastrous error that nearly cost them everything.

  George Mason suggested that the Constitution should be prefaced by a bill of rights, which he argued, would “give great quiet to the people.” With the state constitutions as their models, Mason thought, such a bill of rights could be prepared within a few hours. Certain rights were considered inviolate throughout the continent, as was evidenced by their protections in several state constitutions. These rights, he thought, should also be made explicit in the Constitution of the United States. Elbridge Gerry agreed with Mason and moved to form a committee to prepare a bill of rights. But the measure did not receive the sanction of a single state.

  Some of the hesitation to pass the measure should be attributed to the delegates’ eagerness to leave. The Constitutional Convention had started in May, and delegates had met nearly all day for six days a week, with only two short adjournments, during which committee members had met. Delegates to Philadelphia had probably not expected to meet for so great a length of time—participants in the Annapolis Convention had convened only three times over the course of one week.

  A bill of rights was also seen by many as superfluous. The Constitution already restricted governmental incursion on the people’s rights, some argued, by strictly enumerating the government’s powers in the text of the Constitution. Individual rights were thereby implicitly reserved. There was even a possibility that enumerating some rights might mean implicitly ceding others.

  Looking back, it is clear that Mason had real foresight. The absence of a bill of rights would become the rallying point for opponents to the Constitution, while the Federalists in their campaign for ratification would scramble to promise amendments in the new Congress. The whole controversy over a bill of rights—which nearly sunk the Constitution—could easily have been preempted during the Philadelphia Convention.

  Edmund Randolph had serious reservations about the new Constitution. Not only did he object to the lack of a bill of rights; Randolph was also deeply concerned about the consolidated executive power. He argued for two sets of state conventions: one in which states could choose whether to ratify the document, and another in which they could propose potential amendments. He also wanted to “keep himself free, in case he should be honored with a seat at the convention of his state, to act according to the dictates of his conscience.” On Saturday, September 15, Randolph refused to sign the Constitution in Philadelphia, but he remained undecided whether to support its ratification in Virginia.

  George Mason agreed with Randolph, seeing dangerous new powers in a government that would “end either in monarchy, or in a tyrannical aristocracy.”1 He could not sign the Constitution. And he would vote against it in Virginia. Charles Pinckney observed, “These declarations from members so respectable at the close of this important scene, give a peculiar solemnity to the present moment.”

  That present moment brought with it the crucial question: would the Constitution even be sent to the people for ratification?

  The Clerk called the roll: “On the question to agree to the Constitution, as amended. All the States ay.”

  On Monday, September 17, 1787, the Constitution of the United States was read aloud. Benjamin Franklin had written a speech, which James Wilson delivered on his behalf:I confess that there are several parts of the Constitution which I do not at present approve, but I am not sure I shall never approve them. For having lived so long, I have experienced many instances of being obliged by better information or fuller consideration, to change opinions on important subjects, which I once thought right, but found to be otherwise. It is therefore the older I grow, the more apt I am to doubt my own judgment, and to pay more respect to the judgment of others.

  In these sentiments, Sir, I agree to this Constitution with all its faults, if they are such; because I think a general government necessary for us. . . .

  I doubt too whether any other convention we can obtain, may be able to make a better Constitution. For when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an assembly can a perfect production be expected? It therefore astonishes me, Sir, to find this system approaching so near to perfection as it does; and I think it will astonish our enemies, who are waiting with confidence to hear that our councils are confounded....

  After Franklin’s speech, according to Madison, “The members then proceeded to sign the instrument.” He continued: “While the last members were signing it, Franklin looking towards the President’s Chair, at the back of which a rising sun happened to be painted, observed to a few members near him, that painters had found it difficult to distinguish in their art a rising from a setting sun.” Throughout the Philadelphia Convention, Franklin said, he had looked at the sun on the President’s Chair without being able to tell whether it was rising or setting. “But now,” Franklin said, “at length I have the happiness to know that it is a rising and not a setting sun.”

  Franklin, who had signed his name t
o the Declaration of Independence in that same room eleven years earlier, capped off over fifty years of public service by putting his signature on the Constitution. It was his last act on behalf of the people he loved.

  By the end of the Convention, thirty-nine of the fifty-five appointed delegates had signed the Constitution. Only three delegates—Mason, Randolph, and Gerry—refused. Though these three were the only men present to refuse to sign the document, they were not the only ones who disagreed with the measures being taken at Philadelphia. Many delegates had chosen to leave the Convention rather than stay and argue their position. That is not to say, however, that all of those who left were against the Constitution. Oliver Ellsworth, the great conciliator, along with several others, left early to attend to business obligations. A few delegates left early for personal reasons such as their health or that of their spouses.

  William Jackson, the secretary of the Convention, took a copy of the Constitution to the city of New York to be presented to Congress. After months of secrecy, the delegates would finally see the fruit of their labor presented to the anxious public.

  Virginia nervously awaited news from Philadelphia. Newspapers throughout the state, such as the Winchester Gazette and Virginia Independent Chronicle, published the entire Constitution. Many weekly newspapers rushed out special editions to meet the public demand. The Virginia House of Delegates paid for the printing and distribution of five thousand copies.

  Washington sent copies to Patrick Henry, Benjamin Harrison, and Thomas Nelson, three former Virginia governors, offering his belief that “it is the best that could be obtained at this time,” and drawing their attention to the mechanism for obtaining amendments to satisfy whatever objections they might have. Washington made clear that he favored ratification and observed that “the political concerns of this country are, in a manner, suspended by a thread.”

  As the Constitution was unveiled, James Monroe was busy with the proceedings in Lewis v. Dixon, winning an appeal for John Lewis who had lost a case at trial over an uncollected debt.2 While Madison had been caught up in the momentous events in Philadelphia, Monroe had been slogging away at the mundane affairs of his legal practice. At least for a time, he had felt sidelined and betrayed by Madison, his friend and close political ally. But now the Constitution drafted in Philadelphia was public knowledge, and Monroe would be taking a position on whether it should be ratified by the people, or not.

  On September 20, still in Philadelphia, Madison sent a copy of the Constitution to Edmund Pendleton. Madison wrote, “The double object of blending a proper stability and energy in the government with the essential characteristics of the Republican form, and of tracing a proper line of demarcation between national and state authorities, was necessarily found to be as difficult as it was desirable, and to admit of an infinite diversity concerning the means among those who were unanimously agreed concerning the end.”

  On September 23, Virginia Congressman Edward Carrington warned Madison that Richard Henry Lee was already preparing amendments. Indeed, Lee was furiously writing to rally opposition to the Constitution. He hoped to encourage Randolph, whose opposition would be decisive in Virginia, to join his cause. Lee recognized the dangers the Constitution was designed to address but believed that adopting what he saw as a bad form of government to avoid anarchy was like committing suicide to avoid dying.3

  On September 24, Madison returned to Congress in New York and found that the opposition had already been stirred up. “I found,” he wrote Washington, “on my arrival here, that certain ideas, unfavorable to the act of the convention, which had created difficulties in that body, had made their way into Congress.”4 Opponents in Congress attempted to have the report from Philadelphia invalidated, because it had not “amended” the Articles of Confederation, but had instead replaced them.

  Madison pointed out in response that the purpose of the Philadelphia Convention had been to create “a firm, national government.”5 By replacing the Articles with the Constitution, he argued, the delegates at Philadelphia had fulfilled that mandate.

  Monroe’s Spotsylvania County colleague John Dawson wrote Madison that the Constitution was “the subject of general conversation in every part of the town and will be soon in every quarter of the state. . . . Although there are many warm friends to the plan, be assured that the opposition will be powerful.”6

  The champions of the Constitution took the gathering opposition seriously and moved swiftly to meet it. In October of 1787 there began to appear in the newspapers of New York a series of articles under the pen name “Publius,” arguing for the ratification of the Constitution. These would become known as the “Federalist Papers,” a comprehensive exposition of the nature of the proposed government. The eighty-five essays, written principally by Madison or Hamilton, with several written by Jay, would continue to appear until New York ratified the Constitution.

  If Madison was entertaining doubts about the Constitution’s chances for ratification in Virginia, Monroe confirmed them. Former governors Henry, Nelson, and Harrison were all rumored to be opposed. On October 13 Monroe wrote, “This ensures it a powerful opposition, more especially when associated with that of the two dissenting deputies [Randolph and Mason].” Monroe was back in his old role of confidential correspondent to Madison. He seemed to have reconsidered his suspicions that the more experienced politician had played some role in keeping him away from Philadelphia, or perhaps he had decided to overlook the slight. Monroe continued, “The report from Philadelphia has presented an interesting subject to their consideration. It will perhaps agitate the minds of the people of this state, more than any subject they have had in contemplation since the commencement of the late revolution. For there will be a greater division among the people of character than then took place, provided we are well informed as to the sentiments of many of them.”

  Though he did acknowledge some misgivings, Monroe’s first reaction was to support the Constitution: “There are in my opinion some strong objections against the project; which I will not weary you with a detail of. But under the predicament in which the union now stands and this state in particular with respect to this business, they are overbalanced by the arguments in favor.” Monroe wrote a similar letter to Lambert Cadwalader two days later. He ended that letter with a more emphatic statement of support for the Constitution, “My wishes are of course for its success.”

  A town meeting in Fredericksburg, like others being held across the state, discussed the Constitution. The document was read aloud and unanimously approved. Attendees then sent a resolution to their legislators, Monroe and John Dawson, extolling the virtues of the Constitution and recommending an immediate ratification convention .7

  On October 25, the House of Delegates passed a resolution calling for a state convention to consider ratification. Some supporters of the Constitution had feared that hostile legislatures would simply refuse to act. But Monroe had previously told Madison that this was not cause for concern, at least not in Virginia. Those who stood in the way of even holding a ratification convention were likely to lose favor with the public and could face opposition from challengers who favored giving the Constitution a fair hearing.

  On December 6, Monroe resumed his legislative updates to Madison. Henry had introduced a bill to ban imports of alcohol, but it was likely to fail. Nothing would be done respecting the British debt. Monroe’s wife Elizabeth and sister-in-law were with him in Richmond, and he was considering leaving before the end of session.8

  When Monroe returned to Fredericksburg in February of 1788, he informed Madison of the sentiments taking hold in their native state: “The new Constitution still engages the minds of people with some zeal among the partisans on either side. It is impossible to say which preponderates. The northern part of the state is more generally for it than the southern. In this county (except in the town) they are against it I believe universally.”

  Monroe continued, explaining why the legislature had scheduled the convention for Ju
ne: “The object in postponement of the meeting of our convention to so late a day was to furnish an evidence of the disposition of the other states to that body when it should be assembled. If they or many of them were against it our state might mediate between contending parties and lead the way to a union more palatable to all.”9

  Monroe had run to be a delegate for King George County for the forthcoming Virginia ratification convention, but had been defeated by an opponent who had Washington’s support. Monroe would succeed on his second attempt, winning a place at the convention on a snowy Spotsylvania Court Day.

  The arrival of the Constitution in the Commonwealth had awakened a sleeping giant. Patrick Henry had retired to Prince Edward County just over a year before, after a long career in the Burgesses, the House of Delegates, and Congress, as well as five terms as governor.10 But by the third Monday of March, 1788, Henry had been lured out of retirement and was campaigning to be elected Prince Edward County’s delegate to Virginia’s convention to consider ratifying the Constitution. An observer said that Henry, who had never been a man of fashion, looked “like a common planter, who cared very little for his personal appearance.”11 Henry carefully tended his image as a man of the people. On Election Day he climbed the brick steps of the courthouse and addressed perhaps five hundred people, proclaiming the republic to be in a state of “extreme danger.”12

  Henry defended the Confederation under the Articles, indicted the Constitution’s authors for exceeding their mandate, and painted a bleak picture of what the new government—distant and powerful—would mean for his audience.13 Referring to the Constitution as “that paper,” he called it “the most fatal plan that could possibly be conceived to enslave a free people.”14 The Prince Edward County Sheriff, responsible for conducting the election, saw the euphoric crowd and decided that no vote would be necessary. He declared Henry elected by acclamation. 15