by Chris DeRose
Pendleton answered Henry from the floor. “Although those gentlemen were only directed to consider the defects of the old system, and not devise a new one,” Pendleton argued, “if they found it so thoroughly defective as not to admit a revision, and submitted a new system to our consideration, which the people have deputed us to investigate, I cannot find any degree of propriety in reading those papers.” After all, Congress had transmitted the Constitution to the legislatures, the people had elected delegates to conventions, and eight state conventions had already voted for ratification.
Henry backed down; picking a public fight with the well-respected Pendleton was not in his interest. Besides, undecided members who were eager to get to work might not have appreciated wasting time sitting through readings of old resolutions. So the Convention proceeded to debate the Constitution line by line, beginning with the preamble and the first two clauses of Article I.
One can imagine the otherwise silent room, with many of the greatest men in American history present, as those now familiar introductory words to our Constitution were read aloud by the clerk:We the people of the United States, in order to form a more perfect Union, establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
Henry would contest every inch of the battlefield. Not even the flowery preamble would be considered without his condemnation. “I consider myself as the servant of the people of this Commonwealth,” he announced, “as a sentinel over their rights, liberty, and happiness.” He believed the people were opposed to the Constitution, and that he was there to speak on their behalf. He argued that the delegates at Philadelphia had needlessly divided a country where all had been well. “I conceive our Republic to be in extreme danger,” he said, and “If a wrong step be now made, the Republic may be lost forever.” “What right had [the delegates] . . . to say, ‘we the people?’” Henry wondered, “ . . . instead of ‘we, the states?’ The people gave them no power to use their name. That they exceeded their power is perfectly clear.”6
Then Randolph rose to speak. Federalists and Anti-Federalists alike waited anxiously to hear what he would say. Randolph’s vote was the most important variable of the Convention. As governor, he had enormous influence. It was well known that Randolph had refused to sign the Constitution in Philadelphia. If he opposed it in Richmond, he would likely end its chances of ratification in Virginia. “I refused to sign, and if the same were to return, again I would refuse,” he said. But Randolph, who had introduced the Virginia Plan in Philadelphia, believed in “a firm, energetic government,” and declared that he would never “assent to any scheme that will operate a dissolution of the Union, or any measure which may lead to it.” Because eight other states had already ratified the Constitution (and only nine were required to put it into effect), rejecting the Constitution would likely cut Virginia off from the new union of the states under that Constitution’s authority.
One gambit by Anti-Federalist legislators had backfired. In October of 1787 they had called for such a late convention in the hope that rejection by other states would slow momentum for ratification in Virginia and possibly create an opening for a new try at amending the Articles. But the delay had inadvertently created a party of delegates who were willing to vote for the Constitution despite their reservations. There were both supporters and opponents of the Constitution in the Convention, but there was now also a third party, who had serious reservations, but—with eight other states already on board—would vote to ratify for the sake of union. That faction would be led by none other than Governor Randolph. If the Anti-Federalists had scheduled an early convention, Madison might not have been able to attend, or might not have appreciated the danger that necessitated his return. And Randolph, opposed to the Constitution and desirous of a second convention, would almost certainly have voted to reject, not to ratify.
But by the June Convention, Randolph was willing to argue for ratification for the sake of union. He took on Henry directly, mocking the Confederation, calling it Henry’s “favorite system.”7
George Mason, who like Randolph had withheld his signature in Philadelphia, continued to oppose the Constitution because it lacked guarantees of “the great essential rights of the people.” However, Mason said, he would be willing to sign the document if his concerns about the people’s rights could be dealt with in due fashion. He claimed that if a set of amendments to ensure basic rights could be added to the Constitution, he would “most gladly put [his] hand to it.”
Madison tried to rein in the speakers and keep their focus on the clause-by-clause discussion. After all, the only part of the document yet under consideration was the preamble and the first two clauses.
But as the day ended and another began, it was clear that neither side would adhere to the rules. Clause-by-clause consideration of the Constitution would give way to wide-ranging debate. Pendleton began by condemning the “totally inadequate” Articles, whose weaknesses had resulted in “our commerce decayed, our finances deranged, public and private credit destroyed.” He simply could not accept Henry’s vision of a bountiful America at peace, safe in the arms of the magnificent Articles of Confederation. If the public mind was at ease, Pendleton said, it was not from a clear understanding of the real state of affairs, rather “it must have been an inactive unaccountable stupor.”
Pendleton was also incensed by Henry’s assertion that the Articles of Confederation had won the Revolution: “Union and unanimity, and not that insignificant paper, carried us through that dangerous war. ‘United, we stand—divided, we fail,’ echoed and re-echoed through America, from Congress to the drunken carpenter....The moment of peace showed the imbecility of the Federal Government.”8
Henry oscillated between extolling the Articles and the America they governed and attacking the Constitution: “The rights of conscience, trial by jury, liberty of the press, all your immunities and franchises, all pretensions to human rights and privileges, are rendered insecure.” Was abandoning these rights essential for liberty? Henry next returned to the theme of his most famous speech, “Give me liberty, or give me death”: “Liberty, the greatest of all earthly blessings—give us that precious jewel, and you may take every thing else: but I am fearful I have lived long enough to become an old fashioned fellow: perhaps an invincible attachment to the dearest rights of man, may, in these refined enlightened days, be deemed old fashioned: if so, I am contented to be so.”
Henry defended the Articles, which “rendered us victorious in that bloody conflict with a powerful nation . . . secured us a territory greater than any European Monarch.... [S]hall a government which has been this strong and vigorous, be accused of imbecility and abandoned for want of energy?”9
Henry rejected the possibility of improving the Constitution with amendments : “A trifling minority may reject the most salutary amendments,” he argued. Two-thirds of Congress and three-fourths of the states would never agree to anything. He believed that even if the union were in the balance, liberty was still to be preferred. Henry claimed that government under the Constitution would be “replete with such insupportable evils” that he would rather be ruled by “a King, Lords, and Commons.”
But Henry was not ready to concede that disunion would necessarily be the price of rejection. If nine other states formed a government without us, “May not they still continue in friendship and union with her [Virginia]?” The disunion argument, advanced by Randolph and others, “’Tis a bugbear, Sir.”
Henry concluded his epic speech against the Constitution by saying, “No matter whether a people be great, splendid, and powerful, if they enjoy freedom.... I speak as one poor individual—but when I speak, I speak the language of thousands.”10
On June 6, Madison followed Henry’s grand exposition with one of his own. He spoke so quietly that the stenographer would sometimes fail to r
ecord his words. But Madison was not Henry. What his arguments lacked in drama, force, and bombast, they compensated for with a steady drip of well-informed logic.
Madison asked for the Constitution to be examined on its merits, “whether it will promote the public happiness.” He asked the delegates to rely not on “feelings and passions,” but to undertake “a calm and rational investigation.”
Opponents to the Constitution were relying on “general assertions” about its supposed “dangers.” If the new Congress would have dangerous powers, “let them be plainly demonstrated,” Madison said. “Since the general civilization of mankind, I believe there are more instances of the abridgment of the freedom of the people, by gradual and silent encroachments of those in power, than by violent and sudden usurpations.”
Addressing Henry’s arguments head on, he confessed “I have not been able to find his usual consistency.... He informs us that the people of this country are in perfect repose; that every man enjoys the fruits of his labor, peaceably and securely, and that every thing is in perfect tranquility and safety. I wish sincerely, sir, this were true.” If America was secure, why did the states convene in Philadelphia, and why were the delegates here today?
Madison knew that ratification conditioned on specific amendments to the Constitution would be worse than a rejection: “If one state demands amendments, other states will do the same. Some will be different than others, and many will be contradictory.” Madison believed that the enumerated powers of the Constitution sufficiently protected the rights of the people. The Federal Government, he said, “can only operate in certain cases: it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction.”
Madison closed his speech by addressing the issue of taxation, which was a matter of great concern to Anti-Federalists and skeptics of the Constitution. “It can be of little advantage to those in power to raise money in a manner oppressive to the people,” he argued. And the next morning, Madison picked up where he had left off the day before. He said that the power to lay and collect taxes was “indispensible and essential to the existence of any efficient, or well organized system of government.” The system of requisitions had proven itself unreliable.
With that, Henry retook the floor, to turn on its head the argument that Virginia must stay in the union. If Virginia joined the eight states that had moved to ratify, he asked, would it disassociate from the other four as a result? He also revived the issue of the Mississippi River. Ironically, Henry argued that the Constitution would make it easier to cede the river to Spain—despite the fact that a slim majority in the Confederation Congress had nearly succeeded in abandoning the Mississippi. His argument about the Mississippi was utterly specious, but Henry rode it hard and to great effect.
Henry refused to concede the failures of the Confederation. He defended even the disastrous mechanism for funding the federal government with requisitions from the states: “I never will give up that darling word ‘requisitions’—my country may give it up—a majority may wrest it from me, but I will never give it up till my grave.”
On Sunday the delegates, increasingly divided, attended church together, praying to the same God with equal fervor for the opposite results that each side respectively believed necessary to avert disaster.
Meanwhile, Hamilton realized that the elections for delegates to New York’s convention on ratification—scheduled for even later than Virginia’s—were even worse than he had initially realized. At least two-thirds of the delegates, he found “beyond expectation, favorable to the Anti-Federal party.” Hamilton had succeeded in winning a resolution similar to the one in Virginia, so that the Constitution would also be debated clause by clause in New York—buying Hamilton desperately needed time. If the New York delegates voted before Virginia ratified, they would almost certainly reject the Constitution. “God grant that Virginia may accede,” he wrote Madison.11 If New York, a populous state and important commercial center, rejected the Constitution, the new national government could be doomed. Both Virginia and New York had to ratify to guarantee the success of the Constitution, and there was no hope in New York without a prompt and favorable result in Virginia.
If Madison had been well enough to attend the ratification convention on Monday, June 9, he would have seen Henry produce a new and surprising argument against ratification. No less an “illustrious citizen” than Thomas Jefferson, Henry told the delegates, “advises you to reject this government, till it be amended.”12
His source was a February 7, 1788, letter from Jefferson to Alexander Donald. It was a private letter, not intended for publication, but Henry was using it in this very public debate. The letter itself was confusing; in it, Jefferson said he wanted the first nine states to ratify, with the other five holding out until a bill of rights was adopted. This was an obvious numerical error on Jefferson’s part, the equivalent of a typo. There were thirteen states in all, not fourteen. And Jefferson later made his intention clear; he had meant to say that he desired nine states to ratify, and the remaining four to hold out until a bill of rights was passed. In June, with eight states having ratified, this would have been an argument for Virginia to ratify and become the ninth state.
But in any case Jefferson had changed his mind since he wrote the February letter. Jefferson had already repudiated his earlier thoughts in a May 27 letter to Edward Carrington. He now supported the model used by the Massachusetts Convention, which had unconditionally ratified the Constitution but recommended amendments for the first Congress to consider. Jefferson believed that Virginia, as well as all the remaining states, should do the same—ratifying unconditionally, but recommending a bill of rights, as well as term limits for the Senate and the presidency.
But here was Henry, arguing that Jefferson wanted Virginia to reject the Constitution. Jefferson, far away in Paris, had no idea how his name was being used and could not appear to explain his true feelings about the Constitution.
Henry used scattershot tactics, raising every conceivable argument against ratification. He came very close to accusing Edmund Randolph of dishonesty. Henry asked Randolph where the dangers he had recognized when he refused to sign the Constitution were: “The internal difference between right and wrong does not fluctuate. It is immutable.” Henry also argued that the president would become a dictator, that the government would cost too much, and that no government could reign over so large a territory as the United States. He believed that the new government could do nothing to raise revenue, and that in any case the financial straits of the government were due to a lack of “thrift and industry.” Incredibly, Henry charged that the proposed government lacked checks and balances. In fact, it was the dominance of Virginia government by the House of Delegates over the impotent Senate, governor, and judiciary, and the dominance of that House by one man—Patrick Henry—that had convinced Madison of the need for the separation of powers and the strong checks and balances that he had written into the Constitution.
Henry argued that any amendments to the Constitution to alleviate his concerns could never be hoped for from the new government. “Does it not insult your judgments to tell you—adopt first, and then amend? [I shall] take that man to be a lunatic, who should tell me to run into the adoption of a government, avowedly defective, in hopes of having it amended afterwards.”
A tense moment followed during which Randolph, who had likely seethed with growing anger through the previous speech, stood up to address Henry’s attack on his consistency. Henry also stood up, saying that he had not meant offense, but that he was entitled to his opinion. But for this concession, Randolph claimed, “he would have made some men’s hair stand on end, by the disclosure of certain facts.” Henry said that if Randolph had something to say, he ought to say it. Randolph produced a letter that he had written to his constituents prior to his election as a delegate to the Ratification Convention, explaining his opposition to the Constitution but declaring his intention to ratify it for the sake o
f union. He placed the letter on the clerk’s table, “for the inspection of the curious and the malicious.” Randolph then pointed out that six or seven states had no bill of rights, and pledged to “join any man in endeavoring to get amendments,” but only after the original document had been ratified.
From his sickbed, Madison, suffering from the hot weather and one of his frequent bilious attacks, wrote, “[T]he chance at present seems to be in our favor. But it is possible things may take another turn.” He was concerned to learn that Eleazer Oswald, the Anti-Federalist leader from Philadelphia, was in Richmond working with the opposition.13
James Monroe had hitherto been quiet on the question of ratification in the Convention. On Tuesday, June 10, his silence would end. Early that day, he arose from his seat and declared himself an Anti-Federalist. Monroe began with measured language very different from Henry’s emotional rhetoric: “For my own part, sir, I come forward here not as the partisan of this or that side of the question; to commend where the subject appears to me to deserve commendation; to suggest my doubts where I have any—to hear with candor the explication of others; and in the ultimate result, to act as shall appear for the best advantage of our common country.”
There is nothing to record how Madison first learned about Monroe’s opposition to the Constitution. Madison may have been aware of Monroe’s “Observations.” And surely the two friends would have had time to talk prior to the speech of June 10. It seems likely that Madison must by this point have known his friend’s sentiments. The news came no doubt as a disappointment in light of all that they had worked on together. But by what means it came, what was said, and how the two reacted, remains between Madison and Monroe.
