After a 1787 convention in Philadelphia, it seemed clear that codifying it was causing some problems. Who should retain sovereignty? Where should power lie so as to prevent the wicked bonds of tyranny? How shall inviolable rights appear on a page? These questions had to be answered.

In 1788, delegates in Hanover County selected Patrick Henry to answer those questions. In retirement from his long service as Virginia’s governor, he had gained widespread acclaim as an orator. In his most famous speech which was delivered in 1775, Henry advocated arming Virginia against the British by asking his fellow Virginias to free themselves of tyranny: "Give me liberty," Henry told the anxious crowd, " … or give me death!"

But after the smoke had cleared from the American Revolution, financial turmoil and domestic insurrection were plaguing the land. It was in this setting that the fierce ratification debate raged. And Patrick Henry’s role in that debate was crucial not just to Virginia, but to the ratification debate as a whole.

The United States Constitution, shrouded in a myth of its own, has grown to occupy almost a religious status in American society. Indeed, many Americans would find it hard to believe that the same man who uttered "Give me liberty or give me death!" also opposed the inclusion of the phrase "We the people" in the U.S. Constitution. How did Patrick Henry come to oppose the Constitution? On what grounds did his dissent lie? On what assumptions were his thoughts based? These were the questions I had in mind when I set out on this project.

The work that follows is an inquiry into Patrick Henry’s dissent from the prevailing Federalist attitudes in the Virginia Ratifying Convention of 1788. In that convention, Henry argued against adoption of the Constitution by the state of Virginia. His dissent was based on fears of consolidation and a belief in the importance of ensuring individual liberties.

The enduring academic legacy of Anti-Federalist interpretation belongs to historian Cecelia Kenyon. In a 1955 essay written for William and Mary Quarterly, Kenyon was one of a generation of "new intellectual historians" who challenged Charles Beard’s Progressive interpretation of the Constitutional process. In 1913, Beard’s An Economic Interpretation of the Constitution used Treasury records to show that most of the men who were involved in the drafting of the Constitution held public securities. Their motivation, Beard felt, was strictly economic and the key to his study was a person-by-person examination of the economic holdings and status of the framers of the Constitution. This led him to conclude that "the movement for the Constitution of the United States was originated and carried through principally by four groups of personalty interests which had been adversely affected under the Articles of Confederation: money, public securities, manufacturers, and trade and shipping." (i)

But by the mid-1950s, the new intellectual historians were offering a serious challenge to Beard’s Progressive interpretation. Taking the ideas of the founding fathers seriously, historians like Kenyon rejected Beard’s emphasis on economic considerations and the Progressives’ assumption that ideas were mere rhetoric used to mask the desire for materialistic self-interests. In its wake, intellectual historians like Bernard Bailyn, Gordon Wood, Douglas Adair and Cecelia Kenyon proposed ideological interpretations.

Kenyon took issue with Beard’s view of the debate between the Federalists, who supported the Constitution, and the Anti-Federalists, who opposed it. Entitled "Men of Little Faith," Kenyon’s essay examined the differences between the two groups in terms of their ideas. Her argument claimed that the Anti-Federalists were not the democratic majoritarians Beard had painted them to be. Her interpretation, rather, was that the men who opposed the Constitution in 1787 and 1788 were as much antimajoritarians as the Federalists. To Kenyon, the Anti-Federalists and Federalists shared a common Whig mistrust of government power — legislative as well as executive. She concluded that Anti-Federalists were distinguished from Federalists by a lack of faith in the ability of Americans to create and sustain a republic of continental size.

Although Kenyon does seem to recognize the importance of Patrick Henry's Anti-Federalist public statements, she does not seem to give a full recognition to their impact. The showdown between James Madison and Patrick Henry at the ratifying convention -- a man who would eventually write the Bill of Rights and a man who spent the summer of 1788 arguing for it.

Patrick Henry may have been skeptical, but he was not a man of little faith. Rather, his principled dissent used natural rights philosophy and social contract theory to encourage states’ rights through a conservative advocacy of the rights and privileges of all Virginians (and, ultimately, Americans).

Henry was a conservative in the sense that throughout the course of his career, he fought for the existing rights of Englishmen as he viewed them. It is wrong to view Henry’s championship of the Revolutionary cause as radical because the revolution was essentially a conservative movement in the sense that those who championed it were arguing for the continuance of long-standing ideals of liberty and freedom. (ii) His objections to the Constitution can certainly be seen as conservative because his most virulent objection was to the radical new idea of federal sovereignty. Here, Henry’s arguments for the status quo of the power relationship that existed during the Articles of Confederation firmly place him as a conservative. Henry was not a Burkian conservative, due to his belief in actual representation and a belief that societal ills such as corruption should be corrected rather than appreciated as part of human nature, as Burke did.

Henry gave rise to one of the first extended states’ rights theories during the course of debate at the Virginia Ratifying Convention. His thoughts on state sovereignty were very influential in a crucial part of American political history. The principles of state sovereignty Henry laid out in the Virginia Ratifying Convention can be seen throughout the 19th century (and somewhat in the 20th century).

A advocate for the poorer classes, his own relatively modest social status and his belief in the social importance of the common man caused Henry to oppose measures such as the "public loan office" during the Imperial Crisis, which was designed to help the elite at the expense of the common man. His sense of democratic liberalism influenced a belief in the constituent capacity of the citizen. He represented a new kind of Virginia politician without social refinement or broad economic power.

Henry’s natural rights philosophy took a libertarian tone. Like all classical liberals, he believed that governmental coercion must minimize the power of the state and maximize the liberty of the individual. His strong belief in the sanctity of natural rights motivated his objection to the Constitution because he saw very little guarantee that the new government would be restrained from abridging the natural rights of its citizens upon will.

A championship of social contract theory can be seen in his comments to the Virginia Ratifying Convention in reference to the importance of democratic consent in the process of instituting a new form of government.

There is no doubt that Henry felt profound personal animosity for many of his compatriots in Virginia politics. For example, his disdain for James Madison led Henry to use his considerable influence to deny a seat in the first Senate to the man who had a central role in planning it the year before. Henry even attempted, unsuccessfully, to prevent Madison from being elected to a House seat in the First Congress. But with a matter of such gravity and importance as the ratification debate, Henry understood that the animosities he felt were trivial. Regardless of how Henry may have personally felt about James Madison or Edmund Randolph, he was acutely aware of the weight of the moment.

The unfolding events of the 18th century had placed Americans in an unusual position that was unprecedented in the history of the world. For the first time in the course of human events, a people was given the opportunity to come out of a virtual state of nature and create a new government of their own accord, under their own stipulations and within their own framework. Designing that framework -- a process which began with the Articles of Confederation and culminated in the adoption of the Bill of Rights -- occupied the minds of many men in the late 18th century. And the importance of their distinct opportunity in human history was not lost on Patrick Henry.

For Henry, a major component of that unusual position was the opportunity to winnow away elite power. Henry’s career is characterized by a constant bucking of the Virginia elite. Accusations of "artful intent," "traitor" or "demagogue" were not enough to prevent him from expressing his views in a way which tended to dumbfound his audience.

As to his role in the Virginia Ratifying Convention, Patrick Henry’s was one of dissent. The Federalists had written the Constitution. In Richmond, they were destined to ensure Virginia’s ratification. But in the debate, many finer points arose about the nature of the republic and the direction that it was to take. The ratification debate was perhaps the most important debate of all. If a new frame of government was to be acceptable, on what terms would that acceptance lay? That was the question on the minds of the men who assembled in Richmond on that hot June month in 1788.

The more fundamental points of 18th-century contemporary thought revealed themselves to Henry not through a careful study of Hume’s essays or Locke’s treatises, but through debates, pamphlets, newspapers and conversation. Although Henry may not have been as widely read as some of his contemporaries, it is clear that he had fundamental beliefs around which his principles revolved and was able to articulate these beliefs in a way that was fresh, new and inspiring.

But the victors and losers of political battles are sometimes difficult to distinguish and the good guys didn’t always wear white hats. On one level, the case could be made that the battle for consolidation was ultimately lost to the Federalists. While the Bill of Rights did include the 10th Amendment reserving the rights not delegated to the federal government to the states, the inclusion proved to be a merely symbolic one.

To date, the 10th Amendment has never been successfully invoked by the United States Supreme Court. But even as late as the end of the 20th century, presidential candidate Bob Dole carried its text around in his right shirt pocket during the campaign and would often dislodge it from its place close to his heart, brandish it about adoringly and sing of its praises. Is that victory? Perhaps.

But one thing that was very clear to Patrick Henry was that if the new government had the power to act directly upon individuals, it should be subject to certain limitations. His speeches against the Constitution struck a chord of freedom and liberty that continue to resonate within the American conscience.

The work that follows begins with a brief biographical sketch of Patrick Henry. That is followed by a historiography of Henry’s life and, particularly, Henry’s role in the Virginia Ratifying Convention. Henry’s principled dissent from the Constitution is then described by its three dominating features: his conservatism, his championship of states’ rights and his belief in the democratic maxim of constituent capacity.

Patrick Henry spoke with a silver tongue. Unfortunately, that very eloquence may have played a role in obscuring the message. It is my intention in the following pages to work toward a better understanding of exactly what that message was and, hopefully, fit the events of the Richmond convention into a larger picture of the unfolding events and ideas of the 18th century.

notes:

i. Charles A. Beard, An Economic Interpretation of the Constitution of the United States. (Free Press, New York) 1986, p. 324.

ii. This interpretation is usually associated with historian Merrill Jenkins.