Speech to the Virginia Ratifying Convention, Part V: Intolerable Despotism

Taking the thrust of Patrick Henry’s 1788 commentary to heart, one imagines that he would have raised far fewer objections to the prospect of Virginia taking its place in a consolidated union of states if the proposed constitution had included some of the kinds of protections which he glowingly cited from his home state’s Declaration of Rights. The framers of Virginia’s first constitution, he was exceptionally keen to point out, had been prudent enough not to take it for granted that the legislators chosen by the people of that state to makes such laws as were deemed necessary and proper could ever be trusted to exercise their responsibilities without at some point succumbing to avarice or ambition. Certain fundamental rights therefore needed to be protected, not in practice or in principle, but plainly and in print. In this, Henry seemed to take a certain amount of pride; and from this, he seemed to extract a certain amount of disdain. The people of Virginia, he doubtless would have agreed, had been wise enough not to trust even their own government with unchecked power. That the Framers had thought to pass off a national government possessed of as much power over the American people as that of any state government over its constituents wholly absent even a token set of restrictions on that power was accordingly either exceptionally naïve or unpardonably arrogant. Naturally, the supporters of the proposed constitution would have disagreed with this assessment, and offered a number of arguments against it. Those which Henry in his turn cited were sound enough in theory, though he gave them but short shrift in response.

For one, he affirmed, “We are told that we need not fear; because those in power, being our own representatives, will not abuse the powers we put in their hands.” Representatives in the lower house of Congress, it was true, would be elected directly by the American people on a district by district basis. And Senators and the President would each hold office at the discretion of some body of officials – be it the state legislatures or the Electoral College – that was in turn beholden to the population of the states. While this would in consequence seem a fairly solid guarantee that the individuals in question would not abuse the rights of the general population – the prospect of electoral defeat being a relatively reliable corrective – Henry was of the decided opinion that such things wanted a great deal more firmness. Free peoples, to his thinking, did not give way to tyranny by too aggressively guarding their sovereign rights. Rather, they were rewarded for their laxness by having their liberties abrogated by those whose intentions they should have conditioned themselves to regard with the utmost suspicion. “Happy will you be,” he thus exclaimed, “If you miss the fate of those nations, who, omitting to resist their oppressors, or negligently suffering their liberty to be wrested from them, have groaned under intolerable despotism!” While one might reasonably condense this argument into something along the lines of “better safe than sorry,” the core contention which Henry seemed to be addressing was nowhere near so facile.

Consider, to that end, another of the claims which Henry attributed to the supporters of the proposed constitution. “It is urged by some gentlemen,” he declared, “That this new plan will bring us an acquisition of strength—an army, and the militia of the states.” Though he did not elaborate any further than that, Henry’s intention would seem to have been to imply that his opponents were willing to contemplate a kind of philosophical trade. Granting that the proposed constitution was neither flawless nor foolproof, this faction was supposedly willing to ratify it anyway because it promised to confer upon the United States a quality of strength and prestige which would otherwise remain wholly beyond the reach of either the individual states or the national government as it existed under the Articles of Confederation. To this argument, Henry answered plainly and directly. “This is an idea extremely ridiculous [,]” he said. “Gentlemen cannot be in earnest. This acquisition will trample on our fallen liberty. Let my beloved Americans guard against that fatal lethargy that has pervaded the universe.” Notwithstanding the fact that Henry could not perceive any reason for the union of American states to require a sudden concentration of martial strength – “Is there a disposition in the people of this country to revolt against the dominion of laws?” he asked. “Has there been a single tumult in Virginia?” – the very idea of knowingly creating a government that was at once powerful and flawed struck him as being tantamount to a kind of spiritual suicide. “Most of the human race are now in this deplorable condition [,]” he thus cautioned, “And those nations who have gone in search of grandeur, power, and splendor, have also fallen a sacrifice, and been the victims of their own folly. While they acquired those visionary blessings, they lost their freedom.” The rationale which Henry held fast to – in this instance and in that which concerned the likelihood of unchecked authority to be abused – was that human beings simply could not be trusted with power.

            And what it was that the supporters of the proposed constitution were in actual fact endorsing? Lacking the kinds of explicit civil protections which were the norm for most of the state constitutions then in force, the national charter devised by the Framers in Philadelphia in the spring and summer of 1787 would have permitted the resulting consolidated government to exercise its authority in a number of areas which most contemporary Americans would otherwise have affirmed were beyond the scope of any institution to affect. The text of the aforementioned state constitutions serves quite effectively to demonstrate the extent to which this was in fact the case. The constitution of Virginia, for example, declared that, 

General warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive and ought not to be granted.

Pennsylvania’s constitution meanwhile asserted that,

In all prosecutions for criminal offences, a man hath a right to be heard by himself and his council, to demand the cause and nature of his accusation, to be confronted with the witnesses, to call for evidence in his favour, and a speedy public trial, by an impartial jury of the country [.]

For its own part, the contemporary constitution of the state of Maryland affirmed that, “Retrospective laws, punishing facts committed before the existence of such laws, and by them only declared criminal, are oppressive, unjust, and incompatible with liberty; wherefore no ex post facto law ought to be made.” At the same time, Georgia’s constitution decreed that, “All persons whatever shall have the free exercise of their religion; provided it be not repugnant to the peace and safety of the State; and shall not, unless by consent, support any teacher or teachers except those of their own profession.”

Clearly, in spite of the fact that the values inherent in these kinds of declaration – i.e. the sacrosanctity of the writ of habeas corpus, trial by jury, and freedom of conscience, and the fundamental illegitimacy of ex post facto laws and general warrants – might fairly have been assumed to possess universal favor within contemporary Anglo-American culture, the framers of the state constitutions herein cited nonetheless felt the need to explicitly codify their devotion to the same. Notwithstanding the fact that they themselves stood a reasonable chance of thereafter serving in the offices that their efforts had described – or that at the very least they would be helping to elect those who did serve – this heterogeneous group of men, working at different times and in difference places, almost all came to the common conclusion that the protection of certain basic civil liberties could not simply be left at the mercy of convention. In spite of the evident uniformity of this conviction, however, the proposed national constitution included no such provisions within any part of its text. What this would mean in fact was that the consolidated national government of the United State of America, once confirmed and established, would be under no formal obligation to observe any of the rights and protections which the majority of its citizens had already affirmed were too valuable not to be explicitly defined. Congress could accordingly pass ex post facto laws, the President could declare Hinduism to be the national religion, and the federal courts could speedily and summarily try defendants at the bar without the benefit of counsel or jury. Doubtless the American people would have revolted if all of these measures were enacted at once, or in any one of them were taken so far as to represent a clear and unambiguous gesture towards tyranny. But in the event that the Constitution remained absent a declaration of rights, the national government would yet be within its rights to attempt each of these acts, or all of them, or yet more of equal severity.

The Framers would no doubt have responded to this kind of accusation by reproaching their opponent(s) for engaging in hysterics. The men who drafted the proposed constitution were not foreigners who were attempting to impose a despotic regime upon a people and a culture with which they possessed only a passing familiarity. On the contrary, they were American statesmen, and farmers, and lawyers, and merchants who were themselves citizens of Virginia, and Pennsylvania, and Maryland, and Georgia. A number of them had in fact helped to draft the constitutions that had been adopted by their homes states, and an even larger number had served in the resulting state governments. In short, they were arguably among the last people whose intentions ought to have been called into doubt. They demonstrably valued the same things as their fellow countrymen, and there was accordingly no cause to suspect them of grasping at powers which they had already shown themselves to abhor. The basis of this argument might also have been applied to the character of the national government going forward. Just as the Constitution would affect Americans and had been drafted by Americans, it would likewise be in the hands of Americans once its various offices were filled. It could accordingly be taken as a given that the men who would eventually serve as Representatives, Senators, Justices, and Presidents would hold fast to the same values as those who elected them and who would feel the effects of their authority.

Intuitive though this kind of argument might seem, it still fails to address the larger issue presented by the absence of a declaration of rights in the text of the proposed constitution. Regardless of the fact that the officers of the consolidated national government were unlikely to infringe upon the rights of their constituents because they, too, were Americans who valued the same things as those they nominally served, they would still possess the legal right and the practical power to do exactly that. Representatives and Senators might agree that it would represent an unforgivable abuse of their authority to pass such laws as would retroactively punish those guilty of violating their provisions, but they would remain empowered to do so. Federal justices might affirm the inviolability of habeas corpus, and explicitly guarantee that every trial conducted in their courts would take place before a duly-appointed jury, but they would nevertheless remain free to abrogate the writ and the right as they believed it to be either necessary or desirable. And Presidents, though they would no doubt avow it as their duty to protect the civil rights of their countrymen from encroachments originating in any quarter, could still violate a number of those rights without in any way overstepping their explicit constitutional authority. So long as all of the officers in question adhered to the conventions embedded in the various states constitutions, this arrangement should not have proven in the least bit problematic. This would seem to be what the Framers believed would occur. But in the event that even one individual – one Representative, one Justice, one President – determined to seize the power that was their latent possession, convention would be the only force holding back the worst kinds of abuses that the absence of a federal declaration of rights might allow.

It need not even have be a particularly serious seizure of power for the rights of millions of Americans to be cast into doubt. Indeed, it might even be accompanied by public approbation. Consider, as a case in point, the sense of suspicion and the nationalist fervor that often accompanies a time of war. Suppose, in such an environment, that Congress determines, as a means of more effectively securing the domestic peace and security of the United States of America against the intrigues of saboteurs and spies, to pass a law which allows for the issuing of general warrants, the arrest of individuals without pressing specific charges, and the speedy trial of said individuals without the benefit of a jury. Consumed by that species of fear and apprehension which so often accompany sustained conflicts between nations, the American people might conceivably see their way clear to agreeing that such measures had become necessary, even to the point of celebrating the imprisonment and trial of supposed intriguers. In the moment, no doubt, there would seem to be little for the citizens of the American republic to fear from such an outcome. They’d not be the ones summarily arrested and tried, and national security in the meantime must surely be worth the abuse of a few ill-intentioned infiltrators. But even once the conflict in question was concluded, and the law in question allowed to fall into abeyance, the precedent would remain. At some point, for some reason, Americans will have allowed individuals to be searched by general warrant, arrested without being informed of their crimes, and tried absent the presence of a jury of their peers. In time, amidst changing circumstances and the vicissitudes of public opinion, what else might become permissible? Having previously directed federal power against foreign spies, why not shift the focus to similarly dangerous domestic criminals? If peace and security were important enough to violate the rights of a few during wartime, why should some misplaced sense of delicacy prevent a few more from suffering the same fate during peacetime? Nothing in the text of the Constitution need have changed to permit such things to occur. The power could be found exactly where the Framers had left it.

The Framers, of course, had never intended their efforts to give rise to these sorts of questions. Granted, contemporary records of the proceedings of the Philadelphia Convention show them approaching the issue of a national enumeration of right with what might now appear to be alarming brusqueness. Virginia delegate George Mason – principal author, it bears repeating of the Virginia Declaration of Rights – and Massachusetts delegate Elbridge Gerry (1744-1814) both suggested the addition of exactly those kinds of codified guarantees to the working text of the proposed constitution near the end of the relevant proceedings on September 12^th, 1787. The resulting motion was defeated after only a brief debate, the substance of which was that the protections embedded in the states constitutions would remain in force – and thus would remain effective – regardless of the absence of a federal equivalent. James Madison (1751-1836) – then an opponent of a national bill of rights – added that the state declarations were in reality only “parchment barriers” that provided little more than the illusion of security – as compared, one assumes, to the system of checks and balances embodied by the proposed constitution – while Pennsylvania delegate James Wilson (1742-1798) also cautioned that an explicit enumeration of rights would inevitably lead to those liberties not specifically described being thought of as effectively non-existent. This kind of reasoning notwithstanding, the Framers could hardly have been described as eager to erect a government capable of sweeping aside the rights of their fellow Americans. Indeed, they clearly understood their efforts to be imperfect and likely transitory. The existence of an amending formula within the text of the proposed constitution arguably speaks to this conviction. Earnest though many of them were that the draft constitution represented the best possible cure to what they perceived to be a fatal strain of weakness in the existing national government, they simultaneously acknowledged that alterations would almost certainly become either necessary or desirable in time. As such alterations may well have included the addition of a national bill of rights, the objections cited above would hardly seem to have been – or were intended to be – wholly definitive.