Friday, September 13, 2019

Speech to the Virginia Ratifying Convention, Part XVII: Necessary and Proper

Patrick Henry’s broader intentions notwithstanding – i.e. the stoking of regional suspicions for the purpose of achieving a particular political end – it bears recalling that the specifics of his argument against the imposition of a federal tax regime in the United States of America were also largely moot. As aforementioned, the text of the proposed constitution made no mention whatsoever of any federal office under the name of “sheriff.” Indeed, the word itself does not appear once across the entire length of the relevant text. Sheriffs, of course, were very common at the state level, fulfilling a number of functions on a per-county basis from law enforcement to electoral certification. The most sensitive of these duties was undoubtedly the collection of taxes. Owing to the nature of the dispute which ultimately gave way to the American Revolution, taxation was a concept which most late 18th century Americans were apt to associate with tyranny, particularly when non-payment was linked to severe punishment or when the collection of the same was submitted to the arbitrary oversight of the assigned collectors. As Henry pointedly affirmed, tax collection in Virginia rather distressingly fitted this model. By the terms of the Old Dominion’s 1776 constitution, sheriffs were nominated by the relevant County Courts and appointed by the Governor, nominally positioning them as agents of both the judicial and executive branches of the state government. But the taxes which they were responsible for collecting were exclusively levied by Virginia’s General Assembly, and that same body was the only entity in the state capable of making such laws as could limit the authority of the sheriffs within the context of their tax collecting duties.  The result was that the assigned sheriffs operated in a kind of limbo between the three branches of the state government, permitting them significant autonomy of action and combining judicial, executive, and legislative directives.

Threatened with executive censure, a Virginia sheriff might thus have claimed a legislative mandate for their actions and described executive interference as a violation of the autonomy of the most representative branch of government. Similarly pressured with increased legislative oversight, this same sheriff might then have affirmed their status as an officer of the courts whose activities fell well outside the jurisdiction of the General Assembly. And in the event that the relevant County Court attempted to reign in its nominal subordinate? The sheriff in question might have changed tacks once again, claiming now to be an executive appointee whose actions could only be checked by executive fiat. While the relevant authorities worked to sort which of these claims, if any, were accurate, much mischief could have been achieved by the aforementioned officers. In light of the authority assigned to Congress by the proposed constitution to lay and collect such taxes as the majority of its members deemed necessary, “To pay the Debts and provide for the common Defence and general Welfare of the United States [,]” Henry doubtless envisioned a similar situation taking shape on the national level, with the overlapping jurisdictions of the various branches of government providing cover for the exploitative behavior of a class of federal sheriffs. Possessing judicial as well as financial authority, and armed with the power granted them by text of Article VI – the second clause of which declared that, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof […] shall be the supreme Law of the Land” – these agents of United States government would be free to collect taxes anywhere, apply penalties for non-compliance anywhere, and violate whatever state laws or regulations threatened to obstruct them.

The only issue with this scenario was – it once more bears repeating – that the proposed constitution established no such office as a federal sheriff. The text of Article I, Section 8, as cited above, did affirm that Congress would have the authority to both lay taxes and collect them, thereby implying the creation of some kind of mechanism for the purpose of physically transferring the claimed funds from private possession to public possession. And the final clause of the aforementioned Section 8 did also grant to Congress the authority, “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof [,]” thereby seeming to create substantial room for interpretation in terms of how and by whom the levied taxes were collected. But the proposed constitution went no further than this in describing the means by which the government it outlined would seek to secure funding. Henry’s previously-cited assertion that there would be a federal sheriff – and that they would be a source of misery and oppression to the people of the United States – therefore represented nothing more than conjecture on his part. It would most definitely have been possible, upon the formal adoption of the proposed constitution, for Congress to create an office which precisely paralleled that which existed under the name of sheriff in states like Virginia. It would also hardly have been a stretch to imagine that the assembled Congressmen and Senators might seek to simply replicate the system of tax collection with which they were familiar from their respective home states. Notwithstanding the actual probability of such an outcome actually coming to pass, however, it was most definitely not the fait accompli that Henry sought to describe.

Once again, the issue at hand was one of rhetoric. As often as he seemed to be genuinely interested in discussing the moral or philosophical implications of this or that aspect of the proposed constitution with his fellow delegates to the Virginia Ratifying Convention, Patrick Henry appeared especially intent on winning whatever argument he believed he could successfully frame. While sometimes these arguments had comparatively little to do with the subject at hand – as when he sought to affirm that the contemporary British House of Commons, rotten boroughs and all, was set to be a better guardian of liberty than the Congress described by the proposed constitution – others did at least appear to address some of the specific issues raised by the prospect of inaugurating a consolidated national government in America. Henry’s exploration of the prospect of federal tax collection was most definitely one of the latter, inasmuch as it sought to raise the very valid point that the submission of the states to federal power – and the implications of certain clauses of the proposed constitution – might conceivably have certain uncomfortable, inconvenient, or even distressing consequences. That being said, the manner in which Henry structured said argument was not particularly conducive to transparent, nuanced discussion. He introduced the subject of taxation, after all, by making a wholly unverifiable claim. Congress, he declared, absolutely would create a class of federal sheriffs in parallel to that which existed on the state level. However else he elaborated upon this premise, whatever perfectly reasonable points he managed to raise, the foundation of his argument was fundamentally impossible either to confirm or deny. Perhaps Congress would enact such legislation – under the authority of the aforementioned Necessary and Proper Clause – as would serve to create a corps of federal sheriffs whose responsibility for collecting taxes would be joined with the authority to lay charges and make arrests. And then again, perhaps they wouldn’t, and the collection of federal taxes would be given over to the recognizance of the governments of the various states. There was, truly, no way of knowing.

Henry did not acknowledge this, of course, because it would not have served his purpose to do so. Setting off a discussion about the practical limitations of sovereignty, the relative value of stability versus liberty, and the existence of a greater public good may very well have proven exceptionally fruitful to all those in attendance at the Virginia Ratifying Convention, but such was most definitely not what the Old Dominion’s former Governor had in mind. Henry – most assuredly with the best intentions in mind – wanted to win. He wanted to walk into the Richmond Theatre – where the Convention was held from the 2nd to the 27th of June, 1788 – say whatever he needed to say to get his countrymen to agree with him, and walk out knowing that he had succeeded in denying the proposed constitution at least the affirmation of his home state of Virginia. Subtly did not form any part of this plan; nor did complexity, or nuance, or a general willingness to air out the relevant issues to the fullest. To succeed, as Henry wished to, one rather needed to be bold, declarative, broad, and confrontational. And cunning, of course – one also needed to be cunning, and manipulative, and blessed with greater insight into the human heart than most people could ever aspire to possess. Henry was all of these things, or he could be. Consider, once again, the structure of the argument he deployed during his aforementioned discussion of federal taxation.

By beginning with a false premise – i.e. that Congress, in order to collect the taxes which the proposed constitution gave it the power to lay, would create a class of federal sheriffs possessed of the same powers and prone to the same abusive behaviors as their counterparts in the states – and thereafter elaborating upon the nature and degree of his objections, Henry effectively presented his potential opponents with a number of mutually undesirable avenues of approach. To begin to argue the specifics of Henry’s assertion – by claiming, say, that the state sheriffs were not nearly as cruel and relentless as Henry described them, or that the courts would indeed serve as an adequate constraint upon the actions of their federal equivalents – would have been to tacitly grant the justice of his premise. Having thus ceded the advantage, those who were of a tendency to vote in favor of the proposed constitution would have accordingly been forced to argue over the indefinites that Henry was comfortable with acknowledging – i.e. the relative likelihood of Congress passing such laws as would adequately restrain the federal sheriffs – rather than that which he desired to gloss over entirely. To conversely deny the basic premise as offered, by asserting that there would never be such thing as a federal sheriff in the United States of America, would also almost certainly have played to Henry’s advantage. The issue, recall, was not that there would or wouldn’t be the federal equivalent of state sheriffs, but rather that no one could say for certain one way or the other. Faced with a blanket denial, Henry might easily have turned the uncertainly he had initially sought to obscure instantly to his advantage. “Are you sure they’re won’t be federal sheriffs?” he might conceivably have asked. “How can you know? Can you show me the clause of the proposed constitution that denies the possibility of their existence?” Engaging with questions like these would likewise surely have played to Henry’s advantage, just as a continued and absolute denial would have given him free reign to spin such scenarios as would almost certainly have further roused the anxieties of his otherwise undecided countrymen.

Even the most accurate response – that which granted the possibility of a federal sheriff’s existence while denying the probability of the same – would likely have fallen prey to Henry’s rhetorical dexterity. Either the individual in question would have been made to look as though they were not quite sure what it was they meant to say – perhaps upon repeated badgering with the question, “Will there be federal sheriffs or won’t there?” – or the conversation would have been made to devolve into one of passion and volume rather than reason and fact. The possibility of Congress creating a corps of federal sheriffs having been mutually agreed, it would have been left to Henry and his opponent to debate whether they thought the thing likely or unlikely. Since neither could count on being conclusively in the right, he whose assertions were most convincing would doubtless have enjoyed greater success. In this realm Henry would be at a distinct advantage, the man having built a career on convincing others that his own opinions were worth adopting. Not only was he especially adept at appealing to the fears and desires, hopes and horrors of his audience, but as the present discussion has sought to demonstrate, his ability to shape the assertions he put forward so as to effectively foreclose on the possibility of a successful counter was truly masterful.             

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