Patrick Henry (28 page)

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.
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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.”
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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.”
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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.
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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.
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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.
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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.
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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.”
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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 vote 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.
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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.
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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.
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Writing to Washington shortly after the convention, Madison predicted his opponent's next steps. “Mr. Henry declared previous to the final question that although he should submit as a quiet citizen, he should seize the first moment that offered for shaking off the yoke in a
constitutional way.
I suspect the plan will be to engage two-thirds of the legislatures in the task of undoing the work; or to get a Congress appointed in the first instance that will commit suicide on their own authority.” Madison was correct, as Henry planned to push for a second national convention to secure amendments, and to unite Virginians against the Constitution until adequate amendments were adopted.
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During the fall meeting of the Virginia House of Delegates, Henry attacked Madison and helped prevent his election by the legislature to the U.S. Senate. A correspondent told Madison that “Mr. Henry on the floor exclaimed against your political character and pronounced you unworthy of the confidence of the people in the station of Senator. That your election would terminate in producing
rivulets of blood throughout the land.” Regardless of whether this account was exaggerated, Henry's verbal assault on Madison had its intended effect: Madison came in third in the Senate election, behind two anti-federalists. Henry also passed a plan recommending a second constitutional convention. In its message to the Confederation Congress, the Virginia legislature reminded the friends of the Constitution that their objections to the new government were “deduced from principles which have been established by the melancholy example of other nations.” They would not be satisfied until major changes were made to the document.
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Washington and Madison remained deeply concerned about Henry's influence. Washington still thought Henry's sway in the legislature was “unpropitious to federal measures.” Henry might have been the great enemy of kings, but to Washington, his power in Virginia seemed monarchical. “He has only to say let this be Law—and it is Law,” Washington lamented to Madison.
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Despite his successes, Henry remained pessimistic. His mood was captured in a November 1788 letter to Richard Henry Lee, one of the Virginians chosen as senator over Madison. Although he believed that a majority of Virginians supported the proposed amendments, Henry did not know what fate they might meet in Congress. “I firmly believe the American union depends on the success of amendments,” he told Lee. Henry hinted that if the amendments failed, he might move to North Carolina, which had refused to ratify the Constitution, a defeat probably influenced by Henry. For the time being, North Carolina remained outside the new union. That state's resistance might herald the advent of a southern confederacy, separate from the northern-dominated nation.
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Federalist anger at Henry surged in late 1788, when Henry faced a scathing series of editorials against him in the
Virginia Independent Chronicle
. The author, “Decius,” accused Henry of all manner of chicanery, most of it centered on charges that in decrying
the Constitution he had pursued a personal financial agenda cloaked in the language of republican liberty. In all his dealings, Henry's “first and fixed determination was to get money,” Decius wrote, highlighting Henry's engagement in land speculation; he argued that the end of state sovereignty would also mean the end of sweetheart land deals for Henry. Decius warned Virginians not to subject themselves to this “little tyrant's despotism.” As we have seen, there may have been substance to Decius's charges with regard to Henry's land speculations as governor: his motives did not always seem entirely pure. Extending that argument to his motives for opposing the Constitution was dubious, however.
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