The Genius of America (11 page)

The odyssey of Patrick Henry from a supporter of a stronger national government to an opponent of the Constitution illustrates how events of the day influenced the views of many Americans on the question of ratification. Henry, the first and many-time governor of the State of Virginia, member of the Continental Congress and Virginia legislature, had, in early 1787, been chosen as a delegate to the Constitutional Convention but had refused his appointment. Although he had long favored a stronger national government, he was now in opposition. He “smelt a rat.” That rat was, in his mind, a “cabal” of northern states intent on dominating the South and denying southerners their freedom to pursue their own self-interests.

The cabal for Henry had been exposed through a prospective treaty giving Spain control of the Mississippi, negotiated on behalf of the Continental Congress by John Jay of New York. As Madison worriedly wrote to Washington in December of 1786, “Mr. Henry, who has been hitherto the Champion of the federal cause, has become a cold advocate, and, in the event of actual sacrifice of the Mississippi by Congress, will unquestionably go over to the opposite side.”

The problem was that Jay, America's minister of foreign affairs, had, in violation of his instructions, negotiated the treaty with Spain. In return for favorable trade terms, desired by east coast, mostly northern, merchants, the treaty agreed to close American access to the Mississippi River for at least twenty-five years. Virginia and the southern states were depending upon lands west of the Appalachian Mountains and navigation rights on the Mississippi River for their growth. The treaty would end any such efforts. Indeed the Jay affair had even shaken the indomitable nationalist Madison, who warned Jefferson that the treaty could justifiably lead to a dismemberment of the new country. In fact, James Monroe reported to Henry that such a split was the goal of certain northern legislators who were considering the formation of a northern confederation.

The treaty, in the end, was not approved, but Patrick Henry still changed sides. On October 19, he rebuffed even George Washington's plea for his support. “I have to lament that I cannot bring my mind to accord with the proposed Constitution.” And later to the Virginia delegates he would say:

Here is a resolution as radical as that which separated us from Great Britain. It is radical in this transition; our rights and privileges are endangered, and the sovereignty of the states will be relinquished . . . : It is said eight states have adopted this plan. [Henry was unaware that New Hampshire, the ninth state, had ratified it on June 21.] I declare that if twelve states and a half had adopted it, I would, with manly firmness, and in spite of an erring world, reject it. You are not to inquire how your trade may be increased, nor how you are to become a great and powerful people, but how your liberties can be secured; for liberty ought to be the direct end of your government.

T
HE
P
EOPLE IN
C
ONVENTION

It was clear from the beginning that supporters of the new Constitution had a fight on their hands. But the strategy for winning that fight evolved in the test of ideas and wills that developed after the Philadelphia convention sent the Constitution to the states for ratification on September 28, 1787.

The Pennsylvania legislature had been in session on September 28, and the very next day Pennsylvania became the first state to call a ratification convention. But like much in Pennsylvania politics, the path to this decision was not pretty. Pennsylvanians were deeply divided over a number of social, economic and religious issues, and much of this division had been etched more deeply by the fight over its constitution of 1776. That state constitution was the antithesis of this new federal Constitution. It was the model of simple government. A one house legislature, for example, and no independent executive. The opponents of that constitution, like James Wilson, the second most influential delegate to the Constitutional Convention, were the leaders of the fight to ratify the new federal Constitution. On September 29, the Anti-Federalist members of the Pennsylvania Assembly intentionally absented themselves from the state house to prevent a quorum on a vote to call the ratification convention. Their goal was to slow down consideration of the Constitution. A mob of Federalists found some of the absent members at their Philadelphia lodgings and dragged them to the Pennsylvania state house. There they were forced to sit until the assembly acted favorably on the convention call. After that show of force, the ratification debate settled into a more traditional clash of ideas.

James Wilson dominated the Pennsylvania convention. No one could have been more suited for leading the debate on ratification. Wilson, a Scottish immigrant, had arrived in America in 1765, moved to Philadelphia, where he was hired to serve as a tutor at the College of Philadelphia (after 1779, the University of Pennsylvania). Now he was one of America's most eminent lawyers, scholars and politicians. At the Constitutional Convention, many judged him near to Madison in his vision, mastery of history and political acuity. He was one of only six men to have signed both the Declaration of Independence and the new Constitution and one of a fewer number who had also been elected as a delegate to his state's ratification convention.

Again and again he rose at the ratification convention to explain the Constitution's virtues and defend against the multitude of defects the Anti-Federalists identified. Wilson's message was that we needed the new Constitution to grow, in every sense, strong as a new nation. Like most of the Federalists, at least early in the national debate, he argued against a bill of rights, finding it unnecessary, given the proposed new government's limited powers. Why, he asked, would there be, for example, a need for a provision protecting freedom of the press if Congress had not been given power to enact legislation affecting the press.

At the heart of Wilson's case for the Constitution was a proclamation of the new public virtue of compromise that had emerged from the convention debates. In October of 1787, he gained national attention by the publication throughout much of the country of his “State House Yard Speech,” called by one historian “the single most influential and most frequently cited document in the entire ratification debate.” Wilson echoed Madison, Washington and, particularly, his fellow Pennsylvanian Franklin as he said of the Constitution:

When I reflect how widely men differ in their opinions, and that every man (and observation applies likewise to every State) has an equal pretension to assert his own, I am satisfied that anything nearer to perfection could not have been accomplished. If there are errors, it should be remembered, that the seeds of reformation are sown in the work itself, and the concurrence of two thirds of the Congress may at any time introduce alterations and amendments. Regarding it then, in every point of view, with a candid and disinterested mind, I am bold to assert, that it is the best form of government which has been offered to the world.

Wilson's speech reflected the initial strategy of the framers. This was the government the country needed, not perfect but the best that could be achieved. And it could be made better through amendment if that turned out to be necessary. It quickly became clear, however, that more was needed than the possibility of amendment. The Federalists' vague reassurance that the Constitution could be amended would transform into a promise that it would be, and fast.

On December 12, Pennsylvania, by a vote of 46–23, became the second state to ratify the Constitution, following only Delaware, which had unanimously ratified it on December 7. But the Pennsylvania Anti-Federalists did not concede. Nine states were needed to ratify, and they knew that if they could stop the Constitution anywhere, particularly in New York or Virginia, they could keep it from going into effect.

Wilson and the Federalists had won the ratification vote in Pennsylvania, but they had not persuaded the Anti-Federalists in Pennsylvania or elsewhere to a take a chance on the new government. Opponents remained livid over “that violence and outrage” by which the Pennsylvania Assembly, controlled by Federalists, had prematurely forced a vote in the legislature to convene the ratification convention, as well as the subsequent speed of the ratification process. At a ratification celebration in Harrisburg in December of 1787, a mob of Anti-Federalists reportedly attacked Wilson. Elbridge Gerry of Massachusetts, signer of the Declaration of Independence, delegate to the Constitutional Convention and Anti-Federalist, warned the nation that Pennsylvania had “adopted the system, and seen some of its authors burnt in effigy—their town thrown into riot and confusion, and the minds of the people agitated by apprehension and discord.” Those twenty-one Anti-Federalist delegates published their dissent in the
Pennsylvania Packet and Daily Advertiser
on December 18, 1787. This dissent would frame the terms for the debate that would continue elsewhere through the ratification process.

The framers realized the fight was not going well. They feared they were losing the debate and that ratification was in the balance. “The Public here continues to be much agitated by the proposed federal Constitution and to be attentive to little else,” Madison wrote to Jefferson on February 19, 1788. In Massachusetts Oliver Ellsworth judged it “doubtful” that “the Constitution will be adopted at the first trial in the conventions of nine states.”

Madison pleaded with Americans to set aside their fears and embrace the new plan: “Hearken not to the voice which petulantly tells you that the form of government recommended for your adoption is a novelty in the political world . . . Is it not the glory of the people of America, that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience?”

But it was becoming clear that all the fine words about how this was the best possible government might not be enough to win the day. Supporters needed a new strategy. To win votes for ratification, they offered to support something they had originally thought was unnecessary: a bill of rights.

T
HE
B
ILL OF
R
IGHTS

In retrospect, it seems odd that the framers ignored a bill of rights, which in the minds of most Americans is the Constitution's most important protection of liberty. There seemed no principled or pragmatic reason for its exclusion. The idea of a bill of rights was entirely consistent with the American experience with Britain and the framers' skeptical view of human nature. It would have added another layer of protection against what most Americans thought was “the experience of all mankind . . . , the prevalence of a disposition to use power wantonly.” In fact the proposed Constitution already contained protections for some of the most fundamental individual rights, namely protections against arbitrary imprisonment (habeas corpus), against legislative trial and imposition of penalty (bill of attainder), and against the enforcement of ex post facto criminal laws. Madison at one point in 1788 claimed that his “own opinion has always been in favor of a bill of rights,” although it was an opinion not recorded at the convention.

In fact, the topic received little discussion at the Constitutional Convention, and then only late into its proceedings. Charles Pinckney first recommended the Committee on Detail consider freedom of press and several other rights on August 20, 1787, but this went nowhere. On September 12, Elbridge Gerry of Massachusetts urged a guarantee of trial by jury, which was unanimously defeated. Two days later a motion on press freedom was defeated.

It is not that the delegates opposed these rights, not even press. No, something more interesting was at work here, and it illustrates why political debate and conflict are so important to producing the best outcomes for the country.

Even great ideas can stand scrutiny and usually can be improved. Moreover, the genius of an idea is not always the same as the comfort people feel with it. In this case, the fundamental reason for not including a bill of rights in the Constitution as it was sent out from Philadelphia was that Madison and his colleagues were really quite enamored of what they had invented. “I have not viewed it in an important light,” Madison acknowledged to Jefferson about a bill of rights. Madison and his colleagues at Philadelphia had believed that the very point of their new design of government was that it did protect rights, in a more fundamental way than just listing them.

A bill of rights was superfluous at best, Madison argued. Enumerating those rights was, Madison said scornfully, creating mere “parchment barriers” that could be violated at any time by “overbearing majorities.” The real protection was their new system of checks and balances, said Madison, and he explained why.

Wherever the real power in a government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of private rights is
chiefly
to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the Constituents. This is a truth of great importance, but not yet sufficiently attended to . . . Wherever there is an interest and power to do wrong, wrong will generally be done, and not less readily by a powerful & interested party than by a powerful and interested prince.

The new Constitution did not need a bill of rights because its system of checks and balances protected the rights of individuals from that most dangerous oppressive force, the will of the majority.

The ratification debate forced the Federalists to reassess this position against a bill of rights. By the time of Patrick Henry's speech to the Virginia ratification convention, the Federalists had already decided they were wrong. A bill of rights was necessary, substantively and most assuredly politically. Substantively it provided appropriate, if perhaps redundant, protection, the Federalists reasoned, and politically it would split the opposition. Those who actually favored a bill of rights could now be won to the Federalists' side, and those for whom favoring a bill of rights was simply a tactic to protect state power by defeating the Constitution would have fewer arguments on which to stand.