Speech to the Virginia Ratifying Convention, Part IV: “An Unlimited and Unbounded Power”

            Another theme which seems to recur throughout the relevant oration delivered by Patrick Henry to the Virginia Ratifying Convention in the summer of 1788 is that of trust and its relationship to power. While not always explicitly identified as such, trust has been a primary component of republican political theory almost as long as republican government has existed in practice. Since classical antiquity, and in particular since the golden age of the Roman Republic (240-60 BC), political theorists and statesmen have alike pondered the extent to which the individuals qualified to hold office could be trusted to wield the associated authority in a responsible, sustainable, and selfless manner. Whereas the existence of a monarchy might render such inquiries moot in practice, the fact that republics permit both frequent changes in government and frequent changes of government – which is to say, rotation in office as well as modification of fundamental law – makes it both possible and imperative that those most likely to be affected by the institutions of power in a republic pay heed to the manner in which said power is distributed.

While the results of such ruminations have often tended towards the practical and expedient – many offices within the aforementioned Roman Republic were bound by age qualifications and term limits as a means of countering inexperience and corruption, while the executive committee of the Dutch Republic featured a rotating chair and term limited appointments for much the same purpose – the reasoning behind such measures has often ventured into the realm of the metaphysical. The desired outcome on the part of citizens and statesmen alike has almost always been the promotion of more stable, effective, and mutually prosperous governments, of course. But discussions of term limitations, age limitations, vetoes, checks, and balances at base beg certain questions about the essential nature of the human animal. Can people be trusted with power, and to what extent? Is selflessness a characteristic that often accompanies ambition? Is it sensible to give people who seek and hold authority the benefit of the doubt, or should it be assumed that they will always do wrong if they can enrich themselves in the process? Patrick Henry, for one, had very definite answers to inquiries such as these. Notwithstanding his tendency to rhetorically lionize his fellow countrymen, he made it abundantly clear during his membership in the Virginia Ratifying Convention that suspicion was by far the healthiest attitude a person could adopt when thinking about the apportionment and application of political power.

Henry was not alone in this conviction, of course. All of the states, upon realizing their independence from Great Britain in 1776 and adopting republican constitutions, had been bestowed by the relevant convention or committee with a statement, or a declaration, or a bill of rights intended to protect the newly unfettered population from having their essential liberties once more violated, constrained, or abused. In the case of Henry’s home state, this took the form of the Virginia Declaration of Rights, authored principally by the aforementioned George Mason (1725-1792). Though most certainly influenced by the earlier English Bill of Rights (1689) – the central purpose of which was to guard Parliament against potential abuse by the prerogatives of the Crown – Mason focused much greater attention on individual liberties than political ones, and made no concessions for the existence of hereditary, economic, or legal classes. The resulting delineation of rights included, among others, guarantees that,

All power is vested in, and consequently derived from, the people […] That elections of members to serve as representatives of the people, in assembly ought to be free […] That all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights and ought not to be exercised […]That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments [and] That all men are equally entitled to the free exercise of religion, according to the dictates of conscience [.]

That these and similar statements were ultimately adopted by the membership of the Fifth Virginia Convention as the preamble to that state’s first republic constitution would seem a strong indication that distrust of authority was a very common response among the political elite of Virginia to the late machinations of successive British governments. No longer content that the conventions of Parliament would serve to protect them, they instead opted to enshrine those liberties which they held most dear explicitly and directly in the charter which they intended to become the supreme law of the land.

            The fact that the proposed national constitution produced by the Philadelphia Convention (1787) included no such codified individual protections was accordingly of great concern to the likes of Patrick Henry, if not indeed to all those in the state Virginia who took comfort in the existence of the aforementioned Declaration of Rights. Speaking to precisely this attitude, Henry noted near the beginning of the relevant oration that by adopting the proposed 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, if not lost, by this change, so loudly talked of by some, and inconsiderately by others.” Henry’s evident discomfort was far from misplaced. Though the Virginia Declaration would continue to protect the inhabitants of that state from potential abuses of power by the relevant governor, general assembly, and courts, the national government to be erected upon the ultimate approval of the Constitution would be under no obligation to observe any such limitations upon its practical authority. Such was the nature of the “dual-sovereignty” model which the Framers constructed, whereby an individual was at once a citizen of a given state and of the United States and could be acted upon by one, the other, or both at any time. A federal prohibition against, say, the printing of malicious libel therefore could not technically be said to have violated a state guarantee of freedom of the press. While the Framers affirmed that this had to be the case – that neither state governments nor state constitutions could be permitted to bind the national government from pursuing a particular course of action – it was perfectly understandable that someone as dedicated to the principle of state sovereignty as Patrick Henry should have been given significant cause for concern.

Consider, by way of an extended example, the principle of taxation within the Anglo-American socio-cultural context. The aforementioned English Bill of Rights had affirmed in 1689 – in the aftermath of the Glorious Revolution – that, “Levying money for or to the use of the Crown by pretense of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal [.]” Since Parliament was intended to function as the elected representation of the people it claimed to govern, it accordingly followed as a basic principle of the breed of English constitutionalism which emerged at the beginning of the 18^th century that people who lacked a voice in the legislative process were not bound to fulfill its allocations. Contemporary political philosopher John Locke (1632-1704) elaborated upon and strengthened this idea by harnessing political sovereignty to the sanctity of private property. Holding that nothing could legitimately separate a person from that which they owned but their express consent, Locke declared that taxation could only follow upon the affirmation either of those being taxed or of their expressly designated representatives. If, conversely, the authorities in given state took whatever they pleased from whomever they pleased without justification or consent – thus effectively violating the essential purpose of government as a form of collective security – functional anarchy could be the only outcome. Holding the Crown to be the greatest threat to private property and communal tranquility that Britain was likely to experience – as the preceding century had indeed shown it to be – the majority of the political elite in late 17^th century England accordingly embraced this construction of state power and the privileged place it afforded to the role of Parliament as the authority of last resort. Westminster was the sole legitimate representative of the English people, they affirmed, and Westminster thereby alone could exercise the power of taxation.

Unsurprisingly, the political elite then active in the various colonies of which British America was comprised received this doctrine warmly and easily. Not only did it promise the individual colonial legislatures protection for the domestic autonomy that they had long since come to expect, but it aligned quite neatly with their shared sense of proto-constitutional government. Most of the colonies, after all, were governed by the explicit text of a charter issued under the hand of the Crown. While successive monarchs often attempted to abrogate the terms of these documents, to the point of occasionally repealing them altogether, popular opinion in British America had come to characterize them as political compacts which could not be dissolved but by the consent of both contracting parties. So prevalent was this perspective on the relationship between the Crown and the colonial governments that even in colonies which did not possess charters – like Virginia after 1624 – the common understanding was much the same as in those that did. As between the monarchy and Parliament in Britain proper, the dynamic between the colonial legislatures and the Crown in British America was based on a mixture of consent and precedent. The British sovereign was also the sovereign of Virginia, and Massachusetts, and New York, and could exercise in those dominions – often through the medium of its appointed representative – many of the same powers that it traditionally reserved to itself in England, Scotland, and Ireland. Likewise, as Parliament maintained that there were limitations upon what the Crown could accomplish without the consent of the Lords and the Commons, so did the colonial governments affirm that certain powers could not be exercised absent the cooperation of the various colonial legislatures. According to the logic of this arrangement, therefore, while the reigning monarch could appoint colonial justices and magistrates and the colonial militias, they could not seize private property or levy an excise solely upon their own authority. 

Sturdy though this system was in general, it ran into something of a gray area whenever Parliament attempted to make law for the colonies. The Bill of Rights, it bears remembering, was intended to protect Parliament from the abusive implementation of the prerogatives of the Crown. As Parliament was held by contemporary observers to be the repository of the will and the sovereignty of the British people, this was accordingly held to offer sufficient protection from institutional tyranny. This is to say, there did not appear to be any need to enact such provisions as would have protected the British people from the authority of Parliament. Representation within that selfsame body doubtless seemed guarantee enough for most that their interests would be heard and that their consent would be sought. But the inhabitants of British America were not represented in Parliament – for logistical rather than philosophical reasons – and Parliament did at times need to make such laws as would serve to regulate the economy of Britain’s burgeoning global empire. While most of the resulting statues – i.e. the Navigation Acts (1651, 1663, 1673, and 1696), the Molasses Act (1733), the Iron Act (1750), etc. – were at least tacitly accepted in British America because of their focus on trade adjustment rather than domestic revenue, restraint was all that kept the legislators in Parliament from attempting to pursue the latter, and generosity all that kept the inhabitants of the Thirteen Colonies from affirming that their liberties were being infringed.

It was perhaps inevitable that this tenuous status quo should at some point have given way to a full-blown constitutional crisis. That it did and how it did is two well-trod a subject to repeat here in much detail, save to say that Parliament’s attempts in the 1760s and 1770s to abandon its customary restraint and levy taxes directly upon the Crown’s subjects in America had a drastic effect on the political culture and the political consciousness of the American people. Having witnessed what could come of simply trusting the institutions and officers of government to behave in a responsible manner rather than describing explicitly what was in their power to accomplish and what would remain beyond it, revolutionary assemblies in state after newly-independent state determined to enact concrete protections for the individual rights of the people residing therein. The aforementioned Virginia Declaration of Rights was one such set of explicit protections, and it bears noting that one of the provisions it contained stated clearly that the citizens of that state, “Have the right of suffrage and cannot be taxed or deprived of their property for public uses without their own consent or that of their representatives so elected [.]” While almost certainly intended in the main to prevent, say, a renegade governor intent on overthrowing the Virginia General Assembly from attempting to levy the funds necessary to pay the militia directly from the people, this measure also had the effect of ostensibly closing off the prospect that the state of Virginia would ever again recognize any authority above that of its own government.

No doubt holding this to be an essential conviction, Patrick Henry accordingly questioned the propriety of a consolidated national government levying taxes directly upon the people of Virginia. Having cited the same passage of the Declaration of Rights as repeated above, he accordingly asked of his fellow delegates at the Virginia Ratifying Convention, “But what does this Constitution say? The clause under consideration gives an unlimited and unbounded power of taxation.” The clause to which Henry referred, located in Article I, Section 8, stated, among other things, that, “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises [.]” Granting that the terms “unlimited” and “unbounded” were nowhere in evidence, thus leaving open the possibility for some kind of constraints to be placed upon the taxing powers of Congress, there remained ample cause for distress on the part of the citizens of Virginia in the event that the Old Dominion opted to accede to a the consolidated union of American states. “Suppose every delegate from Virginia opposes laying a tax [,]” Henry ventured accordingly, “What will it avail? They are opposed by a majority […] so that, in direct opposition to the spirit and express language of your declaration of rights, you are taxed, not by your own consent, but by people who have no connection with you.” This was far from a fanciful scenario, and one which raised certain troubling questions as to the nature of the compact that Virginia was then being asked to join.

On one hand, there was the issue of sovereignty. The constitution of almost every state in the former Thirteen Colonies as of 1788 recognized the possibility of institutional corruption by enshrining alongside its various provisions and clauses some kind of codified guarantee that taxes could not be levied upon the relevant population absent either their direct consent or the consent of their elected representatives. The events of the 1760s and 1770s had made the need for such explicit stipulations abundantly clear; under no circumstances were the inhabitants of an American state willing simply to trust any government to act in a responsible and/or morally justifiable manner. The people of Virginia were no different in this respect than the majority of their fellow Americans, and the Declaration of Rights served for their response. But the proposed constitution embodied something which the framers of the various state constitutions seemingly did not account for. Whereas the Articles of Confederation had created a union of states whose acquiescence was required for the national government to undertake just about anything more substantial than ordering new stationary, the Constitution aimed to create a union of peoples merely organized along the lines of the existing states. The resulting federal government would thus function effectively above or outside of the state governments without necessarily affecting their existence. The people of Virginia would thus still enjoy the protections enshrined in their Declaration of Rights, and would accordingly have no cause to fear being taxed by any state authority in which they were not represented.

But these people would at the same time also be citizens of the United States of America, and thus subject to the laws and bound by the excises of a government functionally unconnected to that of their home state. From the prospective of those who supported the ratification of the proposed constitution, this was not an issue. Electing members of the House of Delegates or the Senate of Virginia – or being elected to either of those bodies – did not preclude someone from exercising the same rights within the context of the proposed national government because the two operated in parallel rather than in opposition. The interests of the Old Dominion were essentially subsumed within the interests of the American republic as a whole, with Virginia’s powers reserved mostly to local and domestic matters and the federal government’s mostly to national ones. Convincing though this explanation was to many Americans in the late months of 1787 and the early months of 1788, it nevertheless failed to address the issue of taxation to the satisfaction of men like Patrick Henry. Because the federal government would possess the power to levy taxes, not upon the states – as had been the case under the aforementioned Articles – but upon the American people directly. Granted, the individuals in question were to be represented within the body whose responsibility it was to devise and collect these taxes, thus outwardly satisfying the essential axiom of taxation by consent. But what of the situation that Henry described? What if a tax was approved by Congress in spite of the entire Virginia delegation voting against it?

Supporters of the proposed constitution would doubtless have affirmed that being outvoted did not represent an injustice. So long as the members of the Virginia delegation were given the chance to take part in debates and to vote, they could not legitimately have complained if things didn’t go their way. But what of the Virginia Declaration of Rights? Did it not say, explicitly, that the inhabitants of that state, “Cannot be taxed or deprived of their property for public uses without their own consent or that of their representatives so elected [?]” While the state of Virginia would indeed be represented in the process leading to the hypothetical tax, it is nevertheless doubtful that George Mason and his collaborators wrote the cited provision with the intention that it would ever be construed in such a ways as to allow an excise to be laid upon the inhabitants of the Old Dominion in spite of every one of their elected officials voting against the same. The issue, once again, was that the Declaration of Rights did not account for the existence of a government that could act upon the inhabitants of Virginia above or outside of the formal authority of that state, any more than the Constitution – or at the very least the relevant clause of Article I, Section 8 –acknowledged the existence of a layer of sovereignty between the United States of America and the citizens thereof.

As far as the constitution of Virginia was concerned, there existed no higher authority than the government of that state. And as far as the proposed national constitution was concerned, the people it was claiming the right to tax only happened to live in, and were only incidentally citizens of, Pennsylvania, or New York, or Massachusetts, or Virginia. While neither the Framers nor the supporters of their work appeared to take issue with this characterization, Patrick Henry most certainly did. Having invested a great deal of time and energy into promoting the notion that the people of Virginia were sovereign and possessed of certain inalienable rights, he could not easily accept that the constitutional protections they had taken steps to enact might at some point be rendered functionally impotent by their membership in a community within which they constituted a comparatively small minority. What purpose did the Declaration of Rights really serve if it could be so easily swept aside? What was the point of affirming the sovereignty of the state and people of Virginia if they proceeded to join a political community that could ignore them at its leisure? Pride no doubt played a part in shaping Henry’s answers here, as well. His attempt to portray Virginia as potentially weak and impotent within the union of states – i.e. as being unable to either to defeat or ignore a tax it found undesirable – as opposed to powerful and decisive outside of it was therefore almost certainly as sincere as it was tactical. Henry wanted his fellow delegates to fear the weakness which he believed was bound to accompany Virginia’s ratification of the proposed constitution – to the extent that he was willing to exaggerate the likelihood of a particular scenario taking place – at the same time he was himself legitimately given pause by the notion.