3
The Virginia Convention:
Compromising for the Constitution
Richmond, Virginia
State House
Fourteenth and Cary Streets
June 2, 1788
Patrick Henry smelled a rat.
And his nostrils had been twitching for quite some time.
Henry, the popular former governor of Virginia, drummed his fingers on the side of his heavy oak chair as he listened to crusty old judge Edmund Pendleton cough and wheeze. The air was heavy with anticipation as they waited for the Virginia convention, called to ratify the new federal Constitution, to finally begin.
Henry sensed that everything was now hurtling down to the wire. America had won the Revolution, but it seemed that she was losing the peace. The Articles of Confederation had bound the rebellious colonies together for the last seven years, but it had created something more akin to a social club than a nation—and a poorly run club at that.
Under the Articles, the Second Continental Congress had very limited powers, and directly taxing citizens was not one of them. As a result, it could hardly pay the interest on its debts. Hat in hand, Congress was forced to beg individual states for money like a club treasurer harassing deadbeat members for back dues.
Money wasn’t the only issue. An “every state for itself” mentality meant that the country as a whole could barely field an army, but eleven different states boasted their own navies. A violent uprising—“Shays’ Rebellion”—had torn apart western Massachusetts just a year earlier without any national military to quell it. Many people worried that Massachusetts was just the beginning.
With the American experiment now hanging in the balance, many leaders argued that the Articles should be changed to allow for a stronger federal government before it all fell apart. A convention met at Independence Hall in Philadelphia to work out the details, but the delegates had quickly determined that the Articles couldn’t be fixed. They were broken beyond repair. Some delegates, led by Virginia’s James Madison, went rogue and drafted an entirely new document with a new set of rules that established a very different relationship between American citizens and their government.
They called it “the Constitution.”
These delegates, the “Federalists,” believed they had no other choice. Patrick Henry, on the other hand, thought otherwise. The man who had challenged Britain, and, indeed, the entire universe, to give him liberty or death thirteen years earlier believed the greatest crisis currently haunting America was the possible ratification of this new Constitution. He had avoided the convention in Philadelphia where the monstrosity had been born, but now it had come to him in Virginia and he could ignore it no longer.
Henry knew that the next month might very well decide everything. The Constitution had made a lot of progress since Philadelphia. Delaware, Pennsylvania, New Jersey, Georgia, Connecticut, Massachusetts, and Maryland had already ratified the document. South Carolina might do so at any moment. Only a single additional state’s ratification was necessary for the two-thirds majority needed for the Constitution to take effect—a much lower bar than the Articles had been held to; they had required unanimous approval.
The Constitution’s success seemed so near, but in reality, its very survival still hung in the balance. A Union without Virginia would hardly last longer than the Articles of Confederation had endured with Virginia on board.
That left men like Patrick Henry in the lurch. He did not want to see the Union fall apart, but he also believed that this new document was an invitation to tyranny, which he had fought before. In 1765 he’d made a passionate speech to Virginia’s House of Burgesses: “Caesar had his Brutus,” he’d thundered, “Charles the First his Cromwell; and George the Third, may he profit by their example. If this be treason, make the most of it!”
Now, more than twenty years later, he believed the rat he smelled in Philadelphia was pushing them steadily toward monarchy. He was resolved to do everything in his power to stop that march dead in its tracks.
Henry’s fingers drummed even faster now. His eyes narrowed. He could hardly wait for the fun to begin.
Patrick Henry was ready to go in for the kill.
Richmond, Virginia
Theatre Square (“The New Academy”)
Broad Street, between Twelfth and Fourteenth Streets
June 4, 1788
The kill would not be so easy.
Patrick Henry estimated that 80 percent of all Virginians stood opposed to this new Constitution, but he knew that his opponents, the Federalists, had done their homework. They had worked hard to get the right delegates in place, and now it was becoming clear that the final vote in the ratifying convention teetered on a knife’s edge. Only a handful of votes would decide the issue and potentially the fate of the entire nation.
The nearly 170 delegates formed a large crowd, but all around them, and in the gallery high above, partisans from both sides—along with the merely curious—filled the hall to its brim. Though it was only early June, the sheer mass of humanity made the room too hot and stuffy for comfort.
Patrick Henry stood tall and gaunt, six feet high and just 160 pounds, his weight and strength reduced from persistent bouts of malaria, and his posture stooped. Some thought his spare appearance only increased his power. He reminded some of an avenging angel. Less friendly observers thought he resembled “a scarecrow with a wig.”
Henry’s deep blue eyes peered through his spectacles, surveying his fellow delegates. He felt fortunate that the great George Washington, who presided over the convention in Philadelphia that had delivered this constitutional monstrosity, had decided to sit this one out. Henry was a great orator, maybe even the greatest on the continent—even his hated rival Thomas Jefferson reluctantly conceded that. Oratory, however, had its limits when it collided with George Washington’s mighty reputation. That was the thing about Washington, Henry thought: He knew when and where to fight and, perhaps more important, when to duck a battle.
Henry fixed his sight upon his fellow delegates. Not far away sat Virginia’s current governor, Edmund Randolph. If ever there was a reed blowing in the wind, it was the tall, handsome Randolph. In fact, the wind seemed to be optional; oftentimes a slight breeze would do the trick. Randolph, Henry recalled, had traveled to Philadelphia and presented his “Virginia Plan” to junk the Articles in favor of a new Constitution. Then, when the Constitution was drafted, he came out against it because it lacked a “Bill of Rights.”
Young Randolph might be a reed blown by political winds, but, at least, thought Henry, he was now our reed. If Randolph could not be entirely trusted to do the right thing, at least he could be trusted to do what his heavily anti-Federalist Henrico County constituents wanted him to do.
Henry continued his look around the hall until he sighted the one man who truly worried him: James Madison—all five feet, four inches of him. It wasn’t Madison’s oratorical skills that concerned Henry; “Jemmy” didn’t really have any. Half the time people couldn’t even hear the gentleman speak. But, if anyone, anywhere, knew more about this Constitution or about the arguments for and against it than did the thirty-seven-year-old Madison, Patrick Henry had never heard of them.
? ? ?
The moment the Constitution was formally read into the official record, Patrick Henry bolted out of his seat. His plan was to attack, attack, and then attack once more. He would concede nothing. He would even skewer the very first words of the document: “We the People . . .” How dare the men at Philadelphia claim to speak for all the people, he exclaimed, pointing an accusatory finger at James Madison. “The people gave them no power to use their name.”
As Henry ranted, he saw that Edmund Randolph was listening intently. Henry smiled in his direction. Acquiring the wavering Randolph for the anti-Federalist team would give them a big boost. But Randolph did not smile back.
When Henry finished, Randolph stood and slowly walked to the floor to speak. As he did, he offered a barely perceptible nod to James Madison.
Patrick Henry’s heart sank. This was going to be much, much harder than he thought.
? ? ?
Edmund Randolph spoke not to praise Patrick Henry, but to bury him. His voice shook with rage as he refuted point after point made by his anti-Federalist predecessor. “The government is for the people,” he thundered. “And the misfortune was that the people had no say in the government before.”
Henry’s face reddened with anger. He couldn’t believe it; Randolph had switched positions again! “I am,” Randolph continued, drawing out his every syllable and speaking in almost musical tones, “a friend of the Union.”
Patrick Henry’s mood turned as black as the suit he wore. He wanted to find the highest steeple in town and yell to everyone that their governor was the damnable crowned prince of chameleons. Instead, he sat stoically, refusing to give Randolph the satisfaction of seeing his anger and sense of betrayal.
Across the room, a disheartened George Mason, Henry’s greatest ally in the hall, could not even bear to look at Randolph. A young Benedict Arnold, he thought, a young Arnold. The sixty-year-old Mason roused himself from his gloom to take the floor. Struggling to gather his thoughts, he ran his bony fingers through his long white hair.
Mason was truly angry at Randolph, but he knew that personal attacks would get them nowhere right now. Instead, he aimed his fire on one of the Constitution’s more controversial new powers: the ability of the federal government to directly tax the people. “This power of laying direct taxes entirely changes the confederation into a consolidated government,” he said slowly and with near perfect enunciation. “Converting a confederation into a consolidated government is totally subversive of every principle which has heretofore governed us. It annihilates the state governments. Will the people submit to taxation by two different and distinct powers? The one will destroy the other: the states must give way to the general government.”
Mason conceded that the Constitution had many fine points, but he told his fellow delegates that it required fine tuning—a Declaration of Rights, very much like the one Mason had authored for Virginia itself in June 1776. He felt these amendments were essential to the Constitution and he wanted them adopted before Virginia ratified, even if it meant risking the whole process being sent back to square one.
Freedom, thought Mason, was worth spending the time to get right.
Richmond, Virginia
The Swan
North side of Broad Street
Evening of June 4, 1788
James Madison had barely spoken during the day’s session, but the excitement had left him exhausted anyway. We are winning; that much was clear to him. Getting Randolph as an ally—even if he was in favor for amendments after ratification—was a huge coup for the Federalists.
Madison retreated to his lodgings at the Swan, one of little Richmond’s better hostelries. Quarters were close so he had to be careful. The walls had ears, and worse, so did his fellow delegates.
Some daylight remained as Madison picked up a quill pen and began drafting a letter to George Washington at Mount Vernon. He’d promised Washington that he would keep him updated on the proceedings. After a great first day, Madison was excited to relay the news. “Randolph has thrown himself fully into our scale,” he wrote. “Mason and Henry take different and awkward ground, and we are in the best spirits.”
James Madison went to bed that night a very tired and very happy little man.
Richmond, Virginia
Theatre Square (“The New Academy”)
Broad Street, between Twelfth and Fourteenth Streets
June 5, 1788
Patrick Henry did not know about Madison’s exuberant letter to Washington. If he had, he probably would have smiled, knowing that overconfidence and bravado were the anti-Federalists’ best friends. Henry, to paraphrase a phrase not yet uttered, had only just begun to fight.
For now, however, it was still the Federalists’ turn. Judge Pendleton, the convention’s unanimously elected chairman, roused himself onto his crutches and made his way to the floor. Despite his judge’s wig, Pendleton didn’t look like much. Fast approaching sixty-seven, he coughed and gasped for air. But Pendleton was smart and respected, and Henry knew he was a worthy adversary.
That opinion, however, did not appear to be mutual. Pendleton, his voice dripping with sarcasm, began by addressing Henry as his “worthy friend,” before curtly informing him that no natural enmity existed between constitutional government and liberty. “The former is the shield and protector of the latter,” Pendleton lectured Henry and the other anti-Federalists. “The war is between government and licentiousness, faction, turbulence, and other violations of the rules of society, to preserve Liberty.”
Other Federalists followed Pendleton, all making similar points, all virtually jeering at Patrick Henry.
But it is a dangerous thing to taunt a lion.
Later that morning, the lion rose from his chair and surveyed his fellow delegates. Moving slowly for effect, he looked skyward and perused the throng in the gallery above. A profound, awesome silence enveloped the crowd. Love him or hate him, audiences hung on Henry’s every word.
The Federalists had spent a great deal of time emphasizing the financial stability that they claimed a central government would bring. Henry, however, thought finances were inconsequential compared to the issue that revolutionary patriots had shed their precious blood for: liberty. He intended to hammer this point home as fiercely and relentlessly as possible.
“Don’t ask how trade may be increased or how to become a great and powerful people,” he bellowed. “Ask how your liberties can be secured.” His hands were clenched into fists as though he were ready to wage battle against the idea of tyranny. “For liberty ought to be the direct end of your government. Is the end of trial by jury and the liberty of the press necessary for your liberty? Will abandoning your most sacred rights secure your liberty? Liberty, the greatest of all earthly blessings—give us that precious jewel, and you may take everything else!”
The barren landscape of vanished liberties that Henry sketched was having an effect. An onlooker in the gallery turned to Robert Morris. He wanted to speak but he could not find the words. A scream welled up deep inside him as he felt the cold and hard iron fetters of a devilishly new form of tyranny already pressing upon his flesh.
Henry saw the faces of those in the gallery and knew his warnings were hitting their mark. He sensed a power welling up within him. He would lacerate every argument proposed for this new Constitution—and many that had not even been considered yet.
James Madison sat uneasily in his chair as he listened to Henry dismantle the Federalists’ arguments, point by point. He slowly brought his hands together, almost as if in silent prayer. Yes, he thought, in silent answer to Henry’s latest argument against the need for a national army, an adequate military and this Constitution are necessary to protect freedom.
After watching the faces of his fellow delegates as Henry spoke, he was no longer so sure that a majority felt the same way.
Richmond, Virginia
Theatre Square (“The New Academy”)
Broad Street, between Twelfth and Fourteenth Streets
June 9, 1788
Tempers ran high. Civility ran on empty. The time for arguing over articles and amendments, taxation and treaties, term limits and war powers, was passing fast.
The time for arguing personalities had arrived with a great roar.
Patrick Henry, refreshed by a good night’s rest, took the floor again and skewered the Federalists’ boasting of the “checks and balances” in their new system. “What are the checks of exposing accounts?” Henry baited them, pacing about the floor with great energy, “Can you search your President’s closet? Is this a real check?”
At just the right moment, Henry tossed another major bombshell into the proceedings. He had somehow secured a copy of a letter his hated opponent Thomas Jefferson had written four months earlier to an old friend. In it, the principal author of the Declaration of Independence and former governor of Virginia had cast doubts on the wisdom of the new Constitution.
Spreading his arms before him, like an eagle about to swoop down on its prey, Henry added to the drama by slowly introducing the letter to the gallery. “We have information that comes from an illustrious citizen of Virginia, who is now in Paris, which disproves the suggestions of such dangers as Madison and company have alleged,” he announced.
“I might say,” Henry continued, oozing with pleasure at the opportunity to summon his archrival Jefferson as a surprise witness, “not from public authority, but good information, that his opinion is that you reject this government!”
The crowd stirred and Henry paused to let the murmuring die down before continuing. “This illustrious citizen advises you to reject this government till it be amended! His sentiments coincide entirely with ours! Let us follow the sage advice of this common friend of our happiness.”
An uproar came from the gallery: Huzzahs from one faction; harrumphs and catcalls from the other. Henry simply smiled. There were not many people you’d rather have on your team, personal feelings aside, than Thomas Jefferson.
Henry continued, flitting from one topic to another, attacking each and every thing about the Constitution. When he finally finished, a raging Governor Randolph again took the floor. On Saturday, Henry had slyly puzzled over Randolph’s sudden support for adopting the Constitution without amending it first, broadly hinting that Randolph might have been bribed to support the document. He’d even suspected George Washington himself of offering the prize.
For two days, Randolph had fumed over Henry’s insinuations, barely able to restrain himself from physically confronting the older man. Now, standing in the hall, Randolph had everyone’s attention and he was not about to let the moment pass without taking direct aim at Henry’s allegations. “I find myself attacked in the most illiberal manner by the honorable gentleman,” he sputtered. “If our friendship must fall, let it fall, like Lucifer, never to rise again!”
The crowd gasped. Those were fighting words in Virginia.
The chair gaveled furiously to silence the murmuring. Henry, visibly shaken, rose to respond and solemnly avowed that he had no intention of offending anyone, particularly the “honorable gentleman”—but that hardly calmed Randolph. If anything, he grew even more inflamed, rising to tell the gallery that, if not for Henry’s apology, he’d been prepared to reveal certain unpleasant facts about Henry that would have made some men’s hair stand on end.
Henry did not take the threat well. “I beg the honorable gentleman to pardon me,” Henry said, his voice rising with every word, “for reminding him that his historical references and quotations are not accurate. If he errs so much with respect to his facts, as he has done in history, we cannot depend on his information or assertions.”
The gallery seemed to be in shock. Two of the greatest patriots in the history of the commonwealth stood at the precipice. Another insult, real or perceived, could quite possibly put them, and perhaps the entire convention, over the edge.
Fortunately, reason, and a good night’s rest, finally took command. The battle for the Constitution would continue to be waged with words—hot, vitriolic, and passionate words—instead of fists or pistols at twenty paces.
The Swan
North side of Broad Street
Richmond, Virginia
Evening of June 13, 1788
The Federalists had given it their best, but were worried that it wouldn’t be enough to counter the brilliance of Patrick Henry. He was not, after all, simply an orator; he was a force of nature.
James Madison thought long and hard about the events of the last week. His initial euphoria had long since vanished. Tonight, he again took pen to hand and reported to George Washington. But this time, his letter was much more dour, reporting that the Federalists’ chances for success were growing less favorable each day. He did not enjoy writing those words.
“Our progress is low,” he wrote. “The business is in the most ticklish state that can be imagined. The majority will certainly be small, on whatever side it may finally lie; and I dare not encourage much expectation that it will be on the favorable side.”
James Madison sealed the letter and collapsed into bed. He was exhausted, but sleep came only in fits and starts. When he did drift away, he dreamt only of defeat.
Theatre Square (“The New Academy”)
Broad Street, between Twelfth and Fourteenth Streets
Richmond, Virginia
June 24, 1788
A thousand sweating, jostling spectators crammed the galleries. One way or another they would soon witness history being made. The time for talk was drawing to a close; the time for voting was drawing near.
First, however, Patrick Henry was about to drop another bombshell onto the convention. He rose and surprised everyone by presenting a series of amendments. He’d gone from opposing the entire Constitution and arguing against nearly every facet of it in great detail, to now suddenly accepting George Mason’s position: ratification, but with amendments and a Bill of Rights. Some delegates wondered if that had, in fact, been Henry’s position all along. Had he and Mason merely been playing a clever, protracted game of “Good Constable, Bad Constable”?
James Madison, who had been oddly quiet for the last few days, now rose in an effort to reframe their duty as one of world-changing significance. “Nothing has excited more admiration in the world,” he began, “than the manner in which free governments have been established in America.” But there was more work to be done. State governments were one thing, but if America could craft a well-functioning federal system then they would turn even more heads.
Turning to the debate at hand—the issue of amending the Constitution before or after ratification—Madison appealed to both common sense and fear. He explained that if the anti-Federalists were to win, the other nine states that had already ratified would have to reopen their conventions to address the new amendments. Anything could happen at those new conventions—from new amendments proposed to votes being changed. The entire process, Madison told them, could be derailed by Virginia’s stubbornness.
Then, perhaps playing a game of “Good Constable, Bad Constable” himself, Madison offered an olive branch to Patrick Henry. “His proposed amendments could be subsequently recommended,” he told the crowd, “not because they are necessary, but because they can produce no possible danger, and may gratify some Gentlemen’s wishes. But I can never consent to his previous amendments because they are pregnant with awful dangers.”
Henry fumed. These amendments aren’t necessary? he thought, his face crimson with rage. Freedom of religion is not necessary? Trial by jury is not necessary? The right to bear arms is not necessary? If a Declaration of Rights is necessary in enlightened Virginia, how much more vital is it in the mighty consolidated government these Federalists have cooked up for us?
“Madison,” he bellowed, his voice drawing out the name into three very distinct syllables, “tells you of the important blessings which he imagines will result to us and to mankind from this system. I see the awful immensity of the dangers with which it is pregnant. I see it. I feel it.” Henry’s voice rose higher and higher. “I see beings of a higher order anxious concerning our decision. We have it in our power to secure the happiness of one half of the human race. Its adoption may involve the misery of the other hemisphere.”
And, suddenly, those “higher beings” seemed to personally invade the debate. A distant thunder drew near, and then cracked close by. The skies grew black, then bright white as lightning streaked through overhead. The storm seemed to want to sever the building’s roof from its walls. Heavy oak doors slammed shut from the force of the mighty winds. Lead windows rattled and seemed ready to crack and explode into a thousand violent shards.
Patrick Henry stood silent and passive, a calm eye at the center of a great tempest. The chair furiously banged his gavel for adjournment. There was no way anyone could proceed in the midst of this chaos.
Those in the balcony simply stared and marveled at Patrick Henry, the man who could seemingly call down the heavens as his witness.
Theatre Square (“The New Academy”)
Broad Street, between Twelfth and Fourteenth Streets
Richmond, Virginia
June 25, 1788
Patrick Henry sensed trouble was brewing.
The roll call commenced on the series of prior amendments Henry had proposed to ensure American rights. This vote was everything. If the delegates decided to shoot down the idea of ratifying with amendments, then Henry knew he would lose the larger battle as well.
He watched intently as the votes began to come in. Delegates from Virginia’s first four counties all voted “no”—against the prior amendments, and against Henry. Back and forth it went.
James Madison rose from his chair to gain a better vantage point of what votes remained. A glare from Chairman Pendleton quickly forced him down. With 160 votes counted, the vote stood even. George Mason slumped. He knew that many committed Federalists were still left to vote. If the anti-Federalists were to win, it would have to be on a final flat-footed tie. One by one, the remaining delegates voted, solidly and firmly: “No.”
There would be no prior amendments.
Henry and Mason knew that the final vote on ratification of the Constitution itself was now a foregone conclusion. The tight margin, 89–79, belied the anticlimactic nature of the roll call. With Virginia on board, the Constitution and a new nation built around a far stronger federal government would now move forward.
No cheers greeted the final tally. The vote had been too close for that. There had been too many good patriots on either side. And there still remained much work to do. There might be no “previous” amendments, but, in the end, Patrick Henry and George Mason would win their fight for “subsequent” amendments and the badly needed Bill of Rights.
EPILOGUE
James Madison and Edmund Randolph rose from their seats and walked out toward the street. Nobody spoke, but James Madison heard a voice in his head. It was Patrick Henry’s, and the words that came to him were the same ones Henry had spoken over the previous two weeks.
“Virtue will slumber,” Henry had warned. The Constitution could not hold it up. “The wicked will be continually watching,” he cried to the heavens. “Consequently you will be undone.”
The words repeated themselves, over and over again, faster and faster, in James Madison’s mind. Virtue will slumber. The wicked will be continually watching. Consequently you will be undone.
He tried to vanquish the thoughts from his head but instead the warnings grew louder and faster. What if, Madison thought, factions did arise, taxation did become oppressive, or the government did become consolidated? What if the states became impotent in the face of an ever-growing central government? What if foreign treaties endangered our freedoms and crushed our sovereignty? What if this new government eventually moved so far away from the principles they’d all agreed on that it could not even pay the interest on its legal debts? What if privacy was no longer respected? What if the press was not independent and instead an instrument of the state?
Virtue will slumber. The wicked will be continually watching. Consequently you will be undone.
And then Madison heard the words of anti-Federalist James Monroe: “There are no limits pointed out. They are not restrained or controlled from making any law, however oppressive.” These words melded with Henry’s, creating a great, pounding prophetic cacophony of trepidation, as disturbing as any storm of thunder and lightning.
Madison shook his head and took a deep breath. No, he thought, these things could never happen. The Constitution—and, certainly this Bill of Rights they’ve insisted on—would hold such tyranny at bay. Not even in three hundred years could these iron bulwarks we have erected fail to protect our hard-fought liberty.
But Patrick Henry, unable to rise from his chair inside the hall, silent and speechless for once in his life, feared otherwise.