Virginia`s Great Dissenters

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By June of 1788, eight of the required nine states had ratified the new United States Constitution. Virginia, then the largest and most populous state, held her ratification in the new capital city of Richmond. With Virginia`s boundaries then extending to the Mississippi, cutting the young nation in half, any attempt to form "a more perfect union" without the Old Dominion was doomed to failure. Among those in attendance were two future Presidents, James Madison and James Monroe, future Chief Justice John Marshall; statesman and orator Richard Henry Lee, and many other notables.



The Philadelphia Convention the preceding summer had been called for the purpose of revising the Articles of Confederation. That convention, which met in secret, had instead proposed a radically different form of government that consolidated power at the national level. Rumblings against this new government were heard immediately and the opposition began to coalesce.

Patrick Henry, whose "Liberty or Death" speech had sparked Virginia`s entry into the Revolution 13 years earlier, had also served as her first governor. He had refused to go to the Philadelphia Convention, stating that he "smelt a rat." Henry would muster all of his oratorical skill in an attempt to defeat the proposed Constitution.

George Mason. author of the Virginia Declaration of Rights (which would serve as the model for the federal Bill of Rights), was allied with Henry. Mason had gone to Philadelphia, but he was one of three people who refused to sign the proposed Constitution. His greatest objection was the failure of the Constitution to protect fundamental rights.

Seeking to rise above the fray in his home state, George Washington stayed at Mount Vernon rather than travel to Richmond. It was generally recognized that Washington, who had chaired the Philadelphia Convention, would be the first President. His opinion in favor of ratification was well known, and he exerted a strong influence even in his absence. Mason, who was Washington`s neighbor, had to seek election in another county because his opposition to the Constitution had crossed with Washington.

The Virginia Convention would pit Henry and Mason on one side, the "Anti-Federalists," against James Madison and Edmund Randolph, the "Federalists," on the other. Madison was the primary author of the proposed Constitution and its chief advocate. Randolph, who would become the nation`s first attorney general, had, like Mason, refused to sign the Constitution, but he had changed his mind in the intervening months.

Madison feared Henry most, having written that his refusal "to join in the task of revising the Confederation is ominous." Henry had dominated the political scene in Virginia through his mastery of the spoken word. His great appeal was to that mass of unread Virginians who wore simple homespun or buckskin shirts. These "shirtmen," as they were known, so admired Henry that he was the only person who could rival Washington`s popularity.

Mason, by his own admission no politician, was most admired for his intellectual ability. In addition to the Declaration of Rights, Mason had also been the primary author of Virginia`s Constitution. Thomas Jefferson had described Mason as a "man of the first order of wisdom . . . of expansive mind, profound judgment, cogent in argument, learned in lore." The combination of Henry and Mason would provide a formidable team for the opposition.

The Virginia Convention attracted large crowds and visitors from throughout the United States. One of the witnesses was David Robertson, a practicing attorney from Petersburg, who took shorthand. Robertson, with a clerk, attended daily and transcribed the entire proceedings. As a result of Robertson`s efforts, some of the most stirring debate in our history has been preserved.

As the Virginia Convention opened, the fate of the United States literally hung in the balance. Henry and Mason made a critical tactical blunder at the outset. Madison was worried that they would challenge the authority of the Philadelphia Convention, which had been called merely to reform the Articles of Confederation. Instead, they agreed to a section by section review of the proposed Constitution, which put Madison in the position of responding to criticism.

In what was the greatest performance of his life, Henry was, as the swashbuckling defender of the people, fighting the entire palace guard. He went right to the heart of the matter: "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."

In making his objections to the specific provisions of the Constitution, Henry pleaded, cajoled, ridiculed and appealed to all the passions of a revolutionary era. His was an emotional argument directed to the virtue of liberty and the fear of tyranny. Mason, in tandem with Henry, complimented with arguments directed to the reason and logic of the Convention.

Madison, in the position of defending the Constitution, was able to deflect most of the specific criticisms made by Henry. While Madison did not possess Henry`s speaking skill, his calm and pragmatic responses did much to sway the Convention in his favor. Madison, as proponent of change, held the moral high ground. His message was one of optimism, suggesting that "I choose rather to indulge my hopes than fears." The fact that the new government would be led by George Washington greatly aided Madison`s cause.

The one unavoidable objection to the Constitution propounded by Henry and Mason was the absence of a Bill of Rights. Most of the problems they outlined would be alleviated if the Constitution only had such a guarantee. Madison countered that such a declaration was of no consequence, as the federal government would have limited power. Madison stated that "the powers granted by the proposed Constitution are the gift of the people, and may be resumed by them when perverted to their oppression, and every power not granted thereby remains with the people."

Madison argued further that the states` Bills of Rights provided fundamental guarantees, and the people did not forfeit these rights by entering the Union. As the "powers of the general government relate to external objects, and are but a few," no rights were lost. In any case, a federal guarantee could be dangerous to liberty because any rights not specifically listed might, by implication, be lost.

It was here that Henry focused on the Supremacy Clause of the Constitution, the provision stating that federal law would be the supreme law of the land. He pointed to the absurdity of having bills "to defend you against the state government, which is bereaved of all power" without a similar guarantee against the power of the federal government. By doing so you "arm yourselves against the weak and defenseless, and expose yourselves naked to the armed and powerful."



Mason echoed Henry`s sentiments in stating that "the question then will be, whether a consolidated government can preserve the freedom and secure the rights of the people." Mason asked his fellow Virginians to do what the Philadelphia Convention had refused to do--to create a new government if and only if the rights of the people were guaranteed. Henry added that the "tyranny of Philadelphia may be like the tyranny of George III."

Henry and Mason called upon the Virginia Convention to withhold ratification until such time as a bill of rights could be adopted. They asked, rhetorically, if there was any problem facing the United States that was so great that it could not wait for amendments. Provide those guarantees and they would both support the new government. Mason was direct, "If such amendments be introduced as shall exclude danger, I shall most gladly put my hand on it."

Madison realized he was in trouble. Due to the opposition throughout the United States, any delay in ratification by Virginia would cause support for the Constitution to unravel. Madison also recognized that Henry`s and Mason`s arguments for a Bill of Rights were persuasive. Unless he made concessions, the Constitution would be defeated.

Accordingly, Madison made what proved to be a brilliant tactical move. He agreed that, if the Convention would ratify the Constitution, he would immediately seek amendments guaranteeing fundamental rights. The Convention, based upon Madison`s assurances, narrowly ratified by a vote of 89-79. The Bill of Rights, adopted in 1791, tracks the Declaration of Rights adopted by Virginia in 1776.

Historians are now beginning to fully recognize the significance of the contributions made by Patrick Henry and George Mason. Virginia`s great dissenters, through their dogged opposition, forced the issue of a Bill of Rights. It is only because of their consistent and principled objections to the Constitution, without such a fundamental guarantee, that we celebrated the bicentennial of the Bill of Rights.

Lest we forget the lessons of history, Henry`s admonition in the Convention debate should guide us today: "The voice of tradition, I trust, will inform posterity of our struggles for freedom. If our descendants be worthy the name of Americans, they will preserve, and hand down to their latest posterity, the transactions of the present times."

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The author, born in Fredericksburg, Va., graduated from the Virginia Military Institute. Previously a member of the General Assembly of Virginia, and later in corporate law practice, he has served as Clerk of the Circuit Court of Stafford County since 1991. Previous published works include The Story of Aquia Church (co-author, 1987) and contribution to Patrick Henry Essays (1990). Mr. Moncure is a regular columnist to the Free Lance Star.

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The Patrick Henry Memorial Foundation is a non-profit corporation devoted to education and historic preservation. The Foundation promotes, through educational and research programs the life, character, times, philosophy, and contributions to posterity of Patrick Henry, including maintaining Red Hill, Patrick Henry`s last home and burial place, as an historic site. Red Hill, The Patrick Henry National Memorial, Brookneal, VA 24528.

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Gunston Hall Plantation, the former Potomac River estate of George Mason, is open for tours every day except Thanksgiving, Christmas and New Year`s Day. Gunston Hall sponsors numerous activities year-round including free lectures, Revolutionary War re-enactments and candlelight tours. Gunston Hall Plantation, 10709 Gunston Road, Mason Neck, VA 22079.

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This article first appeared in The American Guardian, March, 1999.