Speech to the Virginia Ratifying Convention, Part III: “A Most Fearful Situation”

The other worst-case scenario which Patrick Henry attempted to describe to his colleagues during the events of the Virginia Ratifying Convention in the summer of 1788 was arguably about as unlikely as the first to actually transpire while additionally embodying a fear which it is substantially harder to imagine Henry actually had cause to harbor himself. As discussed in the previous installment in this series, the abortive Jay-Gardoqui Treaty (1796) had done much to convince him that the commercial interests which dominated the Northern states were perfectly willing to sacrifice the prosperity of the agrarian South and West if it meant gaining access to new markets for their burgeoning merchant firms. That the North was also more populous than the South, and would thus have been entitled to a greater number of seats in the House of Representatives and a greater number of votes in the Electoral College, accordingly gave Henry much cause to fear the creation of a consolidated government dominated by self-interested shopkeepers and avaricious wholesalers. Within this same context, however, there would seem to have been little reason for the favorite son of Hanover County to be very much concerned by the emergence of a theoretical alliance of small states intent on blocking potential amendments to the projected federal charter. The small state vs. large state conflict, it bears recalling, had indeed been one of the fulcrums upon which the efforts of the Framers had pivoted during the events of the Philadelphia Convention. The need to forge a compromise between these competing interests was in fact what caused the assembled delegates to settle on a bicameral structure for the United States Congress, and to assign different means of election to the upper and lower houses thereof. But absent the framework of an assembly intended to draft a plan of government for a set of political entities whose priorities and resources were not all that alike, it would be very difficult to imagine any scenario which would have thrown the small states together into even a temporary alliance of mutual interest and intention.

There was no “there” there, in essence, in spite of Henry’s strenuous insistence to the contrary. And yet, however unlikely the scenario he described really was, and how little cause he had to fear it himself, the flaw which he cited in the amendment process embedded in the proposed constitution was arguably as problematic in practice as he affirmed it to be. The process in question was to function by way of a multi-part division of responsibility and affirmation. As described in Article V of the proposed constitution, 

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which […] shall be valid to all intents and purposes […] when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof […] provided that […] no state, without its consent, shall be deprived of its equal suffrage in the Senate.

Taking this arrangement under consideration, Henry remarked to his colleagues in the Virginia Ratifying Convention with wholly unguarded condescension that though the Framers claimed, “There is a plain, easy way of getting amendments,” it was his considered opinion that this was manifestly not the case. “When I come to contemplate this part,” he declared accordingly, “I suppose that I am mad, or that my countrymen are so. The way to amendment is, in my conception, shut.” The root of Henry’s concern, it seemed, lay in the aforementioned requirement that two-thirds of the state legislatures concur before an amendment could be accepted.

            Granted, Henry also took issue with the means by which amendments were to be proposed. Supposing it likely that some portion of either the membership of Congress or of the various state legislatures – i.e. the two bodies authorizes under the proposed constitution to initiate the process of drafting and ratifying alterations to the same – was bound to be composed of men whose success was the product of intrigue and corruption rather than industry and integrity, he though it unlikely that such, “Unworthy hands [,]” would, “Relinquish powers already in their possession” by agreeing to modify the source of those powers. The portion, he affirmed, need not have been large; only slightly more than a third of those so empowered need have maintained their opposition to a given amendment for the project to effectively be strangled in its crib. Notwithstanding the validity of this complaint, however, it was the next step of the process that seemed most to raise his hackles. The major problem that Henry identified within the amending formula was that three-fourths of the state legislatures needed to ratify an amendment before it could be adopted. Citing the aforementioned likelihood that, “In such numerous bodies, there must necessarily be some designing, bad men [,]” he went on to break down the numbers involved in successfully frustrating the passage of a proposed amendment once it had been sent to the states for consideration. “Four of the smallest states,” he began,

That do not collectively contain one tenth part of the population of the United States, may obstruct the most salutary and necessary amendments. Nay, in these four states, six tenths of the people may reject these amendments […] A bare majority in these four small states may [thus] hinder the adoption of amendments; so that we may fairly and justly conclude that one twentieth part of the American people may prevent the removal of the most grievous inconveniences and oppression, by refusing to accede to amendments.

Laying aside, for the moment, the likelihood of something like this actually taking place, it would seem prudent to first briefly evaluate the accuracy of Henry’s arithmetic.

            At the time that the oration being here considered was delivered in June, 1788, the United States of America was as yet comprised of only the former Thirteen Colonies. Vermont did exist as a distinct political entity, with a government and a constitution very much paralleling those of the thirteen American states, but it would not become the fourteenth state until New York gave up its objections to the same in 1791. It therefore follows accordingly that in order for an amendment to be successfully adopted would have required the affirmation of the legislatures of at least ten states, three fourths of thirteen being nine and three quarters. Henry’s affirmation that the opposition of only four states could successfully thwart the passage of a proposed amendment was therefore nominally accurate. Turning, then, to the question of population, the first census conducted by the United States Government as required by Article I, Section 2 of the Constitution recorded that in 1790 there were just short of four million people – 3,929,214 to be exact – living in the various American states. Of those, the four states with the smallest populations were Delaware (59,096), Rhode Island (68,825), Georgia (82,548), and New Hampshire (141,885). By way of comparison, Virginia (691,937) had the largest population, followed by Pennsylvania (434,373). Adding the populations of the four small states together, they collectively accounted for 352,354 people, or, as Henry indeed declared, less than an tenth of the total population of the United States of America.

On the subject of the state legislatures themselves, it may be said with a fair degree of confidence that Henry’s figures once again add up with remarkable precision. In Delaware, seven of nine councilors and sixteen of twenty-one assemblymen (representing about 45,000 people) could have defeated a constitution amendment. In Rhode Island, the ratio would have been thirty-four of sixty-six representatives, or about 35,000 people. In Georgia, the numbers add up to six of eleven senators and of eighteen of thirty-four representatives, representing approximately 44,000 people. And in New Hampshire, seven of twelve senators (accounting for about 83,000 people) would have come to the right total. Added together, this critical mass of elected representatives could be said to stand for about 207,000 people, which would have amounted to about 5% (or slightly less than one twentieth) of the population of the United States of America in 1790. Thus, without the aid of such resources and technologies as modern demographers take entirely for granted, Patrick Henry accurately calculated in 1788 that, under the auspices of the proposed constitution, the representatives of something like 5% of the American population could have defeated an amendment otherwise approved by the representatives of the remaining 95%. In truth, this represents no small feat on Henry’s part – indeed, one wonders how he could possibly have accomplished such a thing. And it is frankly stunning to learn that so small a portion of a community should have been able to prevent a majority of the whole from seeing its desired objective accomplished. All the same, neither of these revelations would seem to do very much to buttress Henry’s core contention.

In spite of the fact that Henry was absolutely correct in claiming that less than a twentieth of the US population in 1788 could have effectively prevented the passage of an amendment approved by the remaining inhabitants, the likelihood of this actually taking place remained exceedingly low. The four smallest states which he pointed to as being able to collectively accomplish this feat – again, that’s Delaware, Rhode Island, Georgia, and New Hampshire – had hardly anything in common between them. In 1788, Delaware and Georgia both continued to recognize the institution of slavery while New Hampshire and Rhode Island had abolished it. Delaware was a tiny state on the Chesapeake whose history and political culture were closely tied to Pennsylvania. Georgia was the southernmost state in the American union, bordered on Spanish Florida, and possessed territorial claims extending as far west as the Mississippi River. Rhode Island and New Hampshire were both small New England states heavily involved in Atlantic commerce. The latter was enclosed on two sides by Massachusetts and Connecticut while the former shared a frontier with British Quebec. Notwithstanding the occasional axis of interest which might have connected any two of these states at the time that Henry was speaking, it would be very hard to imagine that a proposed amendment likely to affect all four in such a way as to influence them towards rejection – without also inducing the same reaction in any other state – would ever find its way through Congress. The things that would have caused Rhode Island and New Hampshire to reject an amendment to the Constitution would almost certainly have caused Massachusetts to react in exactly the same way. Just so, it would be hard to imagine in 1788 that the government of Georgia could have found fault with something that Virginia or the Carolinas did not also have cause to abhor. Whatever alliance small states like those here named might have made during the events of the Philadelphia Convention, the adjournment of that body had served to return them to their traditional alignments and rendered further cooperation between them a practical impossibility.

            The truth, of course, is that Henry almost certainly did not fear that the four smallest states in the American union in 1788 would for some reason find common cause to thereafter prevent the adoption of a given amendment to the proposed constitution. It would have been a foolish thing to be afraid of, and Henry’s career had yet to demonstrate that foolishness was a quality he notably possessed. What actually caused him anxiety – as his reaction to the Jay-Gardoqui Treaty made clear – was the thought that the people of some other state(s) could adopt a set of provisions for their own purposes and on their own initiative that would nevertheless bind the people of Virginia in turn. In part, this was likely a matter of principle. While Henry had showed himself to be an early and enthusiastic supporter of the concept of a union of American states, his belief in political cooperation was seemingly contingent on the selfless behavior of the participants thereof. So long as the representatives of Virginia, and Massachusetts, and New York, and Pennsylvania all agreed to think and act in concert, and thus to partake only in initiatives which would serve to benefit all involved, then Henry would doubtless continue to count himself a firm and appreciative nationalist. But in the event that a bare majority of the states represented in Congress endeavored to enact a measure which would have profited their number while impoverishing the minority, he would no doubt just as swiftly repudiate the very concept of American unity as a but a new gloss upon the principle of tyranny. As per the convictions he had been expressing since his public career began in the 1760s – in court during the Parson’s Cause in 1763, in the House of Burgesses during the Stamp Act Crisis in 1765, and in the Second Virginia Convention following the passage of the Intolerable Acts in 1775 – a sovereign people could not rightly be made to accede to the authority of any law but that which flowed from their own choices and desires. The point at which the proposed constitution countermanded this basic principle was accordingly the point at which Patrick Henry began to voice his opposition.

Granted, under the terms of the Constitution Virginia stood to possess representation in Congress proportionate to its population, and would thus have held greater sway over the initial passage of amendments than most other states seat in Congress. But the fact that its expressed will could still have been defeated by an alliance of states representing far few people was surely still a galling reality for the citizens of that state to have to face. It is at this point that one is given to wonder whether pride did not also enter into Patrick Henry’s thinking. Virginia, in 1788, was a very large and very powerful state – indeed, the largest and most powerful in America – and its inhabitants had doubtless become accustomed to the thought that their collective strength was theirs to wield as they saw fit. Little time had passed since the Old Dominion counted itself among the most loyal of Britain’s American colonies, of course, but it had passed all the same, and the authority of Congress had been so lightly felt in the interim that Virginians were well within their rights to believe that submission to any authority but that of their own government was no longer acceptable either morally or practically. Far from being any longer dictated to, it was now Virginia’s time to dictate to others. The creation of a larger, more powerful government which Virginia would in turn be bound to obey therefore surely struck many of the inhabitants and statesmen thereof as cause for no undue amount of concern. They might have seen their way clear to approving of it, however, provided they could be assured that their prestige and their power would permit them certain advantages.

The allocation of seats in the House of Representatives most certainly qualified as just such an advantage, as did the addition of three fifths of all slaves to the official count of the free population. But the amending formula was a definitely a worry, and one which did not seem to have an easy solution. If Virginia was going to willingly join this consolidated union of states, the ability to alter the nature of that union would need to be easily accessible. More to the point, it would need to be at the disposal of that union’s most powerful constituency. Doubtless this seemed only logical to men like Henry – after all, what was the point of being the dominant state in a federation if said state could not reliably dominate the others? – but it was most certainly not what the relevant clause of the Constitution augured. While it may have been the case that the representatives of Virginia on the state and federal level thereafter consistently succeeded in securing the adoption of such amendments at they believed would benefit their constituents, it was also possible that none of the advantages that the Old Dominion was due to enjoy would be enough to force through the constitutional modifications that its inhabitants desired. Indeed, as Henry very accurately enumerated, it was possible that a collection of states whose combined population was less than half that of Virginia’s could have frozen the proposed constitution in place by offering their steadfast resistance to any alterations. Granted, this would also have meant that the balance of power between the state governments and the federal government as described in the proposed constitution was unlikely to change for the worse. If four small states could stand in the way of the passage of potentially useful amendments, Virginia could certainly have found allies enough to stand in the way of the adoption of potentially detrimental ones. But in the meantime, a government which more than a few people in more than a few states were already somewhat uncertain about would very possibly remain as it was, flaws and all, dangers and all, notwithstanding what the majority of its inhabitants desired or attempted.

Taking all of the above under consideration, the “doomsday scenario” which Henry offered in his speech to the Virginia Ratifying Convention in 1788 – whereby the four smallest American states might successfully stand in the way of amendments favored by the remaining nine – was almost certainly intended to be something of a feint. The figures that he quoted were most definitely accurate, and the flaw that he exposed was almost exactly as he described it. But the concept was itself more fear-inducing than likely that the four states indicated should ever actually find cause to act in the way that Henry described. As it would be difficult to imagine that Henry was not aware of this fact, the likeliest conclusion would seem to be that his intention was to cause anxiety as much as it was to alert his countrymen to a legitimate danger. It wasn’t that Virginia, upon ratification, would be forever bound to a government that was as imperfect as it was powerful, and forever incapable of seeing through the necessary reforms. It was that Virginia, powerful, prosperous, and at long last master of its own destiny, might not be able to exert its will within a consolidated American government with as much facility as its citizens believed it ought to. Indeed, it might even have been possible that Virginians would end up bound to the will of peoples they far outnumbered. Imagine that, Henry seemed keen to ask his countrymen; imagine that, unlikely as it may be, and ask yourselves if you can stomach even the slightest chance of it coming to pass.

The statistical probability, then, is not what Patrick Henry feared, or even the mathematical possibility that the terms of Article V made manifest. Rather, it was what the existence of such a possibility implied; that by agreeing to ratify the proposed constitution, Virginia would be forced to simultaneously acknowledge that its destiny was not necessarily its own to determine and that its hard-won sovereignty in fact had limits. This could not have been an easy thing to confront, of course, and it would be fair to say that Henry did not react easily to it. All the same, his core contention was a valid one. The states did stand to lose some portion of their sovereignty upon agreeing to adopt the proposed constitution, and the amending formula did make it possible for an alarmingly small portion of the American population to defeat amendments approved by the overwhelming majority of the same. Henry may have exaggerated the effect of these aspects to a degree which would now seem difficult to justify, but the questions which he ultimately posed definitely needed to be asked.