Speech to the Virginia Ratifying Convention, Part II: “Its Oppressive Operation”

            In many ways the Virginia Ratifying Convention (June 2^nd – 27^th, 1787) represented the ideal political environment for someone like Patrick Henry. Though ostensibly structured like a legislative body, its members were free to approach the topics at hand – i.e. whether to approve or reject the proposed national constitution – by whatever means they saw fit. There were no set procedures, no precedents that demanded to be observed, and no outcome required beyond either a negative vote or a positive vote. Henry, whose effectiveness as a political actor tended to suffer whenever he was forced to contend with institutional constraints, was accordingly unburdened within the context of the Convention from the need to obey almost any form of restriction save his own sense of propriety and the patience of his colleagues. So long as he had the floor, he could turn the debate towards any subject that crossed his mind, to the point, even – as had been the case during the final stage of the Parson’s Cause in 1763 – of altering the terms of the discussion in order to suit his rhetorical ends. Doubtless he had some sense of the degree to which his countrymen would indulge him, and so would not have ventured to push his luck to the breaking point. But the fact that the indulgence of his fellow Virginians was all he need have concerned himself with was most definitely a point in Henry’s favor. So long as they allowed him to talk, he would talk. And so long as he was talking, he was in his element. The people of Virginia had long shown themselves eminently susceptible to his rhetorical charms, and though over a decade had elapsed since “Give me Liberty or Give me Death” was on the lips of Americans from Oxford, Maine to Augusta, Georgia, neither his tongue nor his wit had lost their keen edge.

            Then again, in many ways the Virginia Ratifying Convention represented the absolute worst political environment for Patrick Henry in particular. Yes, his abilities as an orator had not dulled much since the height of his popularity in the 1770s. And yes, the lack of established procedure within the Convention most definitely favored his free-form approach to debate. But a great many things had occurred between the early 1760s and 1787. He reputation among the general population of Virginia may not have lost its luster in all that time, but his fellow statesmen had come to understand and account for what they perceived to be his strengths and his flaws, and were comparatively less likely to be moved by his words in relation to the proposed constitution than they had been when he first sought to address the mounting conflict between Great Britain and the Thirteen Colonies. Indeed, so unaffected had his countrymen become that they more than once took steps during the latter half of the 1770s to sideline Henry by offering him posts that were abundant in prestige and severely deficient in authority. His oratorical abilities, to be sure, never ceased to be the object of universal acclamation. But at some point Henry’s colleagues among the Old Dominion’s political elite had decided that stirring speeches were about all they really wanted from him. The fact that the Ratifying Convention represented the rare instance in which the right speech could exert a dramatic effect upon public policy therefore likely gave cause to many of delegates elected to the same to look upon whatever Henry said therein with an abundance of skepticism. Granted, certain of the younger members – like John Marshall (1755-1835), his cousin Humphrey Marshall (1760-1841), and James Madison (1751-1836) – had come of age during the height of Henry’s popularity in the 1770s, and were perhaps less likely than some of their colleagues to call into question the wisdom of whatever it was Henry had to say. For the elder statesmen among them, however – the likes of Benjamin Harrison (1726-1791), Edmund Pendleton (1721-1803), and George Mason (1725-1792) – Henry was too well-known for them to be easily swayed by his arguments.

            Bearing this all in mind, it stands to reason that the favorite son of Hanover County must have known going into the Convention that his position was something of a precarious one. Though he was freer, now, to speak with the expectation of shaping policy than at almost any point since 1775, he was also going to be surrounded by people who in large part knew him well enough to see his rhetoric for what it was. The likely result was that Henry was forced to choose his words with exceptional care. Rather than charge ahead with whatever argument he really wanted to make and expect the sheer force and dynamism of his rhetoric to carry the weight of actually convincing those who weren’t otherwise of like mind, he would have to build momentum by addressing certain points of political philosophy to which he was sure his audience would respond. Rhetoric, of course, had its place here – not that Henry could likely help himself from now and then giving way to flights of oratorical fancy – but the occasion called for something a bit more substantial in the main than a well-phrased call to action or the precisely-timed repetition of words like “liberty” and “tyrant.” The result would appear to be a more layered approach than was usually the norm for a Patrick Henry oration. At times the assertions he sought to make likely did reflect a sincere belief on his part. At others they were more probably the result of a need he felt to appeal to an audience more apt than most to question his judgment. And on yet another set of occasions – during which he notably held forth with affirmations that bore only a tangential relationship to reality – he likely only intended to win the argument at hand. Regardless of which of these categories a given assertions falls into, of course, each is in itself highly revealing of some aspect of Henry’s style as an orator, his beliefs as a statesman, or his perception of the issues that most concerned his fellow Virginians.

            Consider, to that end, the degree to which Henry devoted certain portions of his speech to an exploration of some of the worst-case scenarios that could possibly have resulted from the adoption by the American states of the proposed national constitution. In some of these cases it seems likely that Henry was speaking from a place of legitimate concern. In others, however, it is not so clear whether he was expressing a fear of his own or attempting to pander to an audience perhaps more sensitive than he was to some of the implications of a consolidated union of states. An example of the former involves the degree of cooperation Henry foresaw taking place between the various branches of the proposed national government at the expense of the both the states and the inhabitants thereof. Referring to what he perceived to be the obvious implications of two clauses from Article I, Section 8 – which between them state that Congress possesses the power, “To lay and collect Taxes, Duties, Imposts and Excises” and “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested […] in the Government of the United States” – and the substance of Article VI – which avows 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” – Henry bitterly concluded that,

This Constitution can counteract and suspend any of our laws that contravene its oppressive operation; for they have the power of direct taxation, which suspends out bill of rights; and it is expressly provided that they can make all laws necessary for carrying their powers into execution; and it is declared paramount to the laws and constitutions of the states.

The reason that a government so empowered might attempt to exploit these provisions was evidently a rather simple one. “Besides the expenses of maintaining the Senate and other house in as much splendor as they please,” Henry avowed, “There is to be a great and mighty President, with very extensive powers—the powers of a king. He is to be supported in extravagant magnificence; so that the whole of our property may be taken by this American government, by laying what taxes they please [.]”

            In point of fact, Henry was not incorrect in his assessment of the powers which the proposed constitution sought to bestow upon a consolidated American government. Congress was indeed intended to possess an absolute – if not exclusive – right of taxation far in excess of anything which the Articles of Confederation had seen fit to bestow. Likewise, whereas the powers possessed by Congress under the auspices of the Articles were both limited and very strictly defined, the “Necessary and Proper Clause” opened the door for a potentially generous interpretation of federal authority whose lack of formal delineation rendered it inherently vulnerable to potential abuse. And then there was the “Supremacy Clause,” the purpose of which was unmistakably to ensure that the national government would always possess the final say as to what was and was not permissible under the laws of the United States of America. At no point did the Constitution, the Framers, or the Federalist Papers affirm that these powers would be used, or even could be used, in combination as Henry described to systematically strip the American people of all they possessed for the purpose of propping up a kind of republican aristocracy, of course. On the contrary, there were perfectly logical reasons behind the inclusion of each of these clauses within the final text of the proposed constitution.

The expansion of the power of Congress to lay and collect taxes was a response to the persistent inability of that same body to maintain anything like a consistent revenue stream under the authority of the Articles of Confederation. Entitled only to “requisition” the states without being able to either deploy its own revenue agents or punish non-compliance, Congress consequently struggled to fulfill the various financial obligations it had taken on during the Revolutionary War – such as paying off the debts it had accrued or fulfilling the back pay of Continental Army veterans – to the detriment of the American republic’s reputation both at home and aboard. Likewise, in light of the manifest deficiencies of the limited and anemic government framed by the Articles, the Framers designed the Necessary and Proper Clause to give the resulting consolidated administration the necessary flexibility to confront whatever unanticipated challenges might at some point stand in the way of its successfully promoting the welfare of the American people. The creation of the Supremacy Clause followed exactly on this kind of proactive and pragmatic reasoning. Whereas Congress under the Articles had been completely incapable of enforcing the terms of a given commercial or diplomatic agreement upon the various states, or of preventing individual states from negotiating agreements on their own – once again resulting in a loss of respect for the American government among potential diplomatic or financial partners – the relevant clause of Article VI was intended to remove any doubt as to the ability of the government of the United States to speak and act confidently on behalf of its many and various constituents.

None of this is to say, however, that the scenario which Henry described was wholly outside the realm of possibility. If, under the auspices of the proposed constitution, Congress and the President decided between them to transform the government of the United States into a lavish, pseudo-monarchical court, they could attempt to fund the resulting pomp and ceremony by way of the taxing power of the House of Representatives. Provided that the Supreme Court successfully identified the authority invoked to justify the relevant allocations with some power or responsibility bestowed upon Congress by the Constitution, suits brought by the states in protest could be defeated and a uniform order whereby the ability of the federal government to appropriate whatever it wanted for whatever purpose it desired could be enforced. Granted, this would seem to represent a spectacularly unlikely outcome. Given the popularly-elected nature of both the House of Representatives and the Presidency, demagoguery – whereby candidates for office seek to use some combination of patronage and populism to secure and maintain their hold on power – would seem a far more likely source of corruption than the emergence of a conspiratorial cabal. Rather than suffer for being too much separated from the American people, these institutions would accordingly seem more inclined to suffer from being too close. Supposing that this inherent quality which they both possessed failed to stop the House and the President from conspiring to enrich themselves at the expense of the American people, however, the presence of the Senate – the members of which were to be chosen by the various state legislatures – would appear to provide the requisite check upon such tyrannical ambitions.

For any bill – including those levying taxes – to achieve the force of law under the authority of the government framed by the United States Constitution, the positive affirmation of the House of Representatives, the Senate, and the President are required. To Henry’s thinking, as expressed during the Virginia Ratifying Convention, the fact that each of these three bodies was independently responsible to the American people was a relatively trivial barrier to their conspiratorial cooperation. Notwithstanding the fact that Representatives and the President were both subject to relatively frequent election – thereby seeming to offer a substantial incentive to undertake behavior approved by the majority of the electorate – it was possible that these offices could have been filled by individuals adept at presenting the image of integrity while secretly pursuing personal enrichment. Furthermore, having identified in each other a shared motivation to seek wealth and power through the manipulation of popular sentiment, it was also possible for a given set of Representatives and a given President to forge an alliance for the purpose of mutual gain. Provided that some portion of the wealth gathered to the House by the levying of taxes was siphoned off to the President in question, said President might very easily and very logically conclude that it was in their own best interest to sign whatever allocations were placed in front of them by Congress. As aforementioned, however, this only represents a portion of the elements necessary to defraud the American people as Henry affirmed would be the case under the proposed constitution. The membership of the Senate would also need to affirm the passage of the relevant allocations, and would thus also need to identify their interests with those of the House and the President.

This, too, was distinctly possible. Senators were bound to be as human as anyone, as susceptible to greed and ambition as any seeker after public office. But unlike either the elected Representatives serving in the House or the President of the United States, Senators were to be chosen by the legislatures of the various states rather than by the people at large. Granting that this would mean each Senator was directly responsible to far fewer people than each member of the House of Representatives – i.e. an absolute majority of state legislators as opposed to the majority of at least thirty thousand voters – it would still have almost certainly appeared to most observers in 1787 that the Senate appointment process constituted a form of election that was comparatively secure from potential corruption. Bribing the majority of the members of a state assembly – fifty-one people out of one hundred, say – may well have represented a much simpler task than attempting to influence the decision-making of fifteen thousand and one potentially scattered voters, but most of the constitutions that had been adopted by the states to that point at least tacitly affirmed that serving legislators were either trustworthy enough or knowledgeable enough to exercise any number of responsibilities not otherwise allocated to the general electorate.

In Henry’s own home state of Virginia, for example, the offices of Governor, Councilor, Supreme Court of Appeals Justice, General Court Justice, Chancery Justice, Admiralty Justice, Secretary of State, and Attorney-General were all subject to appointment by a joint ballot of the General Assembly. While the reasoning behind this decision was not expatiated within the text of the document in question, it would nonetheless seem reasonable to conclude that the framers of Virginia’s first republican charter believed that the lawmakers to be chosen by the people of Virginia would be better qualified to fill certain offices than would those selfsame voters. Granting that the Framers of the proposed national constitution had slightly different reasons for placing the responsibility of appointing Senators in the hands of the various state assemblies – eager as they were to wrought a compromise between advocates of a consolidated government and a confederal one – this same basic assumption would nonetheless seem to apply just as well to the national government as to the state governments. And just as state legislators were exceedingly unlikely to appoint a governor whose policy positions clashed with their own, or whom they believed they would not be able to control, so it would seem to hold true that these same bodies would not choose to appoint Senators likely to vote against the interests of the relevant states. Far from taking solace in this dual protection, however, Patrick Henry indicted the Senate along with the House of Representatives and the President. In spite of the fact that he had himself been elected to five terms as Governor of Virginia by that state’s General Assembly, he evidently did not trust that same body – composed in the immediate of men he knew very well and had worked alongside for years – to appoint Senators whose loyalty would remain with the government of that state. To his thinking, it seemed, once a person became an officer of the federal government – no matter how they became an officer of the federal government – their priorities and their motivations could no longer be trusted.   

As paranoid as this undoubtedly makes Patrick Henry sound, it’s really not that difficult to imagine why he might legitimately have feared the emergence of a “federal interest” antagonistic to the needs of the individual states. Recall, to that end, the reason Henry chose not to attend the Philadelphia Convention and that quite probably conditioned his response to the end product of the same. Though in the 1770s he had been a staunch supporter of unity among the states and increased cooperation in Congress, certain events in the 1780s had done much to cast doubt upon his conviction that the nascent American republic had more to gain from a closer association than from continuing as a decentralized confederation. The abortive passage of the Jay-Gardoqui Treaty (1786) was undoubtedly the most alarming of these incidents, touching as it did upon the ongoing economic survival of the predominantly agrarian southern states.

While the Mississippi River was at the extreme edge of the sparsely-populated western land claims of Virginia, North Carolina, and Georgia, the end of the Revolutionary War in 1783 and the accompanying cession of a vast swath of territory in the North American interior to the nascent United States meant that the free navigation of this inland waterway would very shortly prove vital to the growth and prosperity of any communities that had begun to settle in its vicinity. Spain’s closure of the port of New Orleans at the mouth of the Mississippi to American traffic in 1784 made this fact powerfully apparent; no longer able to move their produce downriver to the Gulf of Mexico and then on to markets in Europe, farmers in the increasingly productive Trans-Appalachian West faced the immanent destruction of their way of life unless some kind of action was taken. Though John Jay (1745-1829), then serving as United States Secretary of Foreign Affairs, was accordingly dispatched to Spain by Congress for the purpose of negotiating the resumption of American commercial traffic through Spanish Louisiana, the agreement he returned with entirely failed to address the issue in question. Having traded a twenty-five year moratorium on American travel along the Mississippi for access to Spain’s Caribbean colonies, Jay (a New Yorker) had evidently determined that the continued viability of the western communities claimed by the likes of Virginia and North Carolina were less important than the ability of Northeastern merchants to purchase from and sell to the Spanish West Indies. Though the agreement was subsequently defeated when put to a vote in Congress – thus leaving off the settlement of the New Orleans question until the passage of the Treaty of San Lorenzo in 1795 – southern statesmen like Patrick Henry were nonetheless abashed by the evident willingness of one portion of the American union to prejudice its interests over those of another.

Bearing this in mind, Henry’s evident fear in 1788 that the proposed federal government was likely to become a self-enriching cabal wholly impervious to the interests of the individual states is perhaps more clearly understood as a suspicion on his part – not without basis in fact – that, in the event they succeeded in attaining positions of influence within the federal government, certain elements within the states were likely to direct federal power towards fulfilling their own narrow desires rather seeking the prosperity of the United States as a whole. Consider, to that end, the possibility that the more populous northern states – wherein the majority of the American republic’s burgeoning commercial interests could be found – were almost certain to dominate both the House of Representatives and the Senate upon the election of the first Congress under the proposed constitution. Provided that the second or third President – George Washington almost universally considered the only choice for the inaugural chief executive – was himself a native of a northern state, what could possibly have stopped the federal government from pursuing any number of policies that exclusively benefited the commercial North at the expense of the agrarian South? The Southern states need not have been disenfranchised to accomplish this; they would still be able to elect Representatives and Senators, to submit their votes for President, and take part in debates in Congress. But so long as the Northern states enjoyed the advantage of population, and so long as the men they sent to Congress were content to ignore the interests of their Southern colleagues, the continued observation of these kinds of formal privileges would make no difference to the policies that the federal government ultimately pursued. In this sense, notwithstanding Henry’s evident tendency to characterize the proposed federal government as being likely to act with hostility towards the states and the American people as a whole, the sense of distrust he expressed during the Virginia Ratifying Convention was not without an entirely legitimate and self-evident cause.