Road to Ratification: Virginia

How Patrick Henry, redefined the soul of the United States.

The summer of 1788 promised to be a hot one in Virginia. June 2nd was the day the Virginia legislature had set for the special ratifying convention to meet and debate what would come to be known as the Constitution of the United States.

It had been nearly a year since the Constitutional Convention had produced the Constitution and sent it out to the former thirteen colonies for ratification. In that time, eight states had held their own conventions and approved the Constitution, one short of the required nine votes required to declare the Constitution operable. Virginia had been an early supporter of the Constitutional Convention, hoping to help drive a solution to the troubles that plagued the Confederation. Now Virginia was poised to give the final vote needed to deliver salvation.

That at least, is how supporters of the Constitution, Federalists, saw and framed the convention. But critics of the Constitution, later grouped and labelled together as Anti-Federalists, saw the opposite. To them, Virginia was the last hope of, if not outright defeating the Constitution wholesale, at least blocking ratification until powerful amendments could be integrated.

It was hoped that if Virginia refused ratification, then the remaining four states in the Confederation, New Hampshire, New York, North Carolina and Rhode Island would join in Virginia’s dissent, killing the new government before it could even be born. From there, the five dissenting states could join together with Massachusetts and South Carolina, states that had ratified the Constitution under the proviso that the first Congress press for several amendments to the Constitution under Article V, along with the defeated minorities in the remaining six states to propose a slate of amendments to patch over the Constitution’s largest problems.

That was the hope at least.

It was a long hope, but the first step, defeating the Constitution in Virginia was well within the realm of possibility. The Spirit of the Revolution was still strong in Virginia. Like in many other states, particularly in Massachusetts and South Carolina, the back country was heavily suspicious of the new centralized (the term used then was consolidated) government being espoused by the Constitution. What allowed Federalists in Massachusetts and South Carolina to successfully get the Constitution ratified in the face of majority on the ground opposition was their superior understanding and control of legislative procedure and process mixed with eloquent oratory and reasoning. The intellectual advantage had been with the Federalists.

This would not be the case in Virginia. Nowhere else in the thirteen states could it be said that the intellectual capabilities between supporters and critics of the Constitution so balanced. Even more remarkably, the strength which the opponents of the Constitution drew from came largely from one man: Patrick Henry.

Patrick Henry was an experienced legislator and impressively gifted orator. In the prelude to the Revolution, it was Henry’s oration that inspired many in Virginia to take up arms against Great Britain and support independence. It was he who bequeathed subsequent American generations with the phrase: Give me Liberty or Give me Death. Now Henry turned his powers towards preventing ratification of the Constitution.

Throughout the Virginia state convention, which lasted from June 2nd to June 27th, Patrick would launch broadside after broadside against the Constitution, declaring the document an instrument of tyranny. His (and his allies) most potent and historically influential arguments centered around the document’s failure to establish a Bill of Rights and the sweeping powers of the federal judiciary established in Article III.

In other conventions the issue of a Bill of Rights had come up, but were effectively parried by Federalist arguments. Federalists argued that all powers not granted in the Constitution were de facto retained by the states making a Bill of Rights irrelevant. Patrick Henry countered by pointing out Article I, Section 9, being composed of purely of restrictions, on Congress, defeated this argument. If, as the Constitution’s supporters argued, “everything is retained which is not given up,” why have any restrictions at all? Not only that, but why make the restrictions on the new federal Congress, “so feeble and few?” The Constitution preserving habeaus corpus, banning passage of ex post facto laws, and denying Congress levying export duties was well and good, but why not add in restrictions to Congressional power over the press? Limits on issuing warrants? Protections for Jury trials? For Henry, without explicit limitations to Congressional authority, “dearest privileges [would] depend on the consent of Congress.”

Supporters of the Constitution attempted to assuage Henry of his fears by making the novel point that the restrictions in Article I, Section 9 were all limits placed on Congress’s enumerated powers. They were exceptions to particular authority granted, rather than to broad general powers. Others pointed out that a little less that half the states in the Confederation lacked a Bill of Rights. Were those states any less free than states like Virginia which did have them?

Henry would not budge on the issue. Virginians were proud of their Bill of Rights and he knew that concerns over the Constitution’s lack of one loomed large in the Convention. If adding a Bill of Rights was pointless, then why leave one out? Why refuse so ardently about adding one into the text before ratification?

Protections for liberty were dear to Henry and his allies and for that same reason they would spend a great deal of time attacking nearly the whole of Article III, the federal judiciary, of the Constitution. Previous conventions had discussed the judiciary only in passing and none had discussed it with such an array of prominent jurists. Critics of the Constitution’s most salient arguments were the document’s lack protection for jury trials. Because Article III, Section 2 gave the Supreme Court, a body composed only of judges, “appellate Jurisdiction, both as to Law and Fact,” it de facto meant the facts, i.e., the guilt or innocence of a party, could be retried in front of a panel of judges instead of a jury. Supporters of the Constitution would place heavy emphasis on the following phrase “with such Exceptions, and under such Regulations as Congress shall make,” stating the Congress would simply pass laws ensuring that jury trials would be secured on matters of fact.

Henry scoffed at the idea that Congress could simply regulate away the Supreme Court’s authority over cases of Fact. To do so, Henry claimed, would be tantamount to rewriting the Constitution. Presaging Marbury v Madison, he would declare that any such law “in opposition to the Constitution, would be void.” How could Virginians trust their right to trial by jury to a such an uncertain future?

Worse than the Supreme Courts appellate jurisdiction in cases of fact, however, was the plain absence of explicit jury protections in civil cases. The Constitution granted protections for jury trials in criminal cases, why not provide them explicitly in civil cases?

Henry and his allies would not back down, arguing for nearly a week. To them, trial by jury was the first and last defense of a free people. If the people lost their right to a trial by jury, then all their others would follow.

To Patrick Henry and his fellow critics, Article III and large swathes of the remainder of the Constitution served as a Trojan Horse. By promising blessings of economic revival and restored international standing, it would smuggle in a new despotism. Their concerns would not be easily quieted. Federalists would have to grant substantial amendments in order to have chance of a winning vote.

On June 25th, the Federalists would offer a bargain before the convention. Should the convention ratify the Constitution, they would simultaneously move to allow the Convention to recommend whatever amendments it deemed fit to implement via Article V in the 1st Congress. Henry and his base supporters found this proposal unserious. He had throughout the convention argued that the only logical choice for amending the Constitution was to do so before implementation rather than after. But for the lukewarm critics, the Federalist offer might have tipped the scale. The path Henry wanted to take, to essentially create a second Constitutional Convention to go over amendments, was fraught with failure. What the Federalists offered now was the hope of remedy for a mostly good form of government. And some undoubtedly took it.

In the final tally, Patrick Henry would lose out: 89 for and 79 against. A margin of 10 votes. But in the days following June 25th, the Federalists would find that they would bleed tremendous ground. The Convention would approve a Bill of Rights and twenty other amendments for the Virginia delegation to advocate for during the 1st Congress of the United States.

The Bill of Rights approved by the convention was a modified version of the Virginia declaration of rights, granting protections to a free press, jury trials, unreasonable search and seizure and host of other prized Virginia liberties. These Virginia liberties, along with a selection of the additional 20 amendments (such as limiting Federal appellate jurisdiction to matters of law only and the explicit preservation of all state powers, jurisdictions and rights not ceded to Congress in the Constitution) would form the basis for most of the first 10 amendments to the Constitution: The Bill of Rights.

Patrick Henry and his fellow critics lost the battle. But despite what they might have thought, they probably won the war. The Bill of Rights would grow long legs in the centuries since is adoption. It would come to embody the very spirit of the nation. The United States legacy of near unlimited toleration of speech, its love of jury trials in nearly all court cases: civil or criminal, even the Fifth Amendment Right to Remain Silent, all descend from the slate of amendments advocated and pushed forward by Patrick Henry.

He did not attend the Constitutional Convention in 1787, but in a twist of historical irony, Henry became one of it’s greatest architects.