Lion of Liberty (30 page)

What followed were seven Articles, with the first three defining the shape and powers of the national legislature, the executive, and the judiciary, and the methods of selection and qualifications for serving (and removal) in each. It gave Congress, inter alia, powers to raise taxes and levy duties, borrow money, regulate foreign and interstate commerce, maintain a standing army and navy, and declare war. The president was to be commander in chief of the military and have diplomatic powers to send and receive ambassadors and make treaties. It stripped the states of rights to deal with foreign powers. Article IV forced the states to recognize each other's laws and to give all citizens the rights of citizenship in every state. The same Article also provided for admission of new states and guaranteed “a republican form of government” in every state. Article V provided for amending the Constitution, and Article VI ranked laws by category. The Constitution and U.S. laws and treaties ranked highest as “the supreme law of the land,” and local laws ranked lowest, with little or no consequence for the rest of the nation. Article VII required approval by ratification conventions in nine states for the Constitution to take effect in those states and create a new national government.

As president of the convention, Washington was first to sign—only to have Virginia Governor Randolph disrupt proceedings by calling the document a “fetus of monarchy” and saying it was “impossible . . . to put my name to the instrument.” George Washington's neighbor, planter George Mason, was more dramatic: “I would sooner chop off my right hand,” said the normally soft-spoken Virginian, “than put it to the Constitution as it now stands.” Echoing his political ally Patrick Henry, Mason criticized “the dangerous power and structure of the government” under the Constitution
and predicted it would end “either in monarchy or a tyrannical aristocracy. . . . This Constitution has been formed without the knowledge or idea of the people. . . . It is improper to say to the people, ‘Take this or nothing. '” Mason had maintained contact with Henry during the convention and cited Henry's repeated demands for another, second convention “to know more of the sense of the people and . . . provide a system more consonant to it. As the Constitution now stands I can neither support it or give it my vote in Virginia, and I cannot sign here what I cannot support there.”
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Although Patrick Henry had not set foot in Philadelphia, the lion of liberty's roar against governmental tyranny echoed across the land.

Chapter 13

On September 17, 1787, thirty-nine of the forty-two delegates signed the Constitution, but Gouverneur Morris's brilliant language skills altered the last paragraph of the document to ignore the less-than-unanimous delegate vote with the misleading phrase, “Done in Convention by the unanimous consent of the states present.” Less than two weeks later, the document reached the Confederation Congress, where at Patrick Henry's urging, Virginia delegate Richard Henry Lee objected to taxation by a national government without the consent of the states. After conferring with Henry, he also demanded that the Constitution “be bottomed upon a . . . Bill of Rights guaranteeing freedom of religion, freedom of the press, the right to trial by jury in criminal and civil cases, the right to free assembly, protection against unreasonable search and seizures.”
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Congress rejected his motion, saying it had no authority to change the Constitution—only to transmit it to the states, with or without a recommendation. It chose the latter, sending a copy to each state legislature for submission “to a convention of delegates chosen in each state by the people thereof.” Richard Henry Lee warned Patrick Henry that “the most essential danger” of the Constitution was “its tendency to a consolidated government instead of a union of confederated states. The history of the world and reason concur
in proving that so extensive a territory as the United States . . . never was or can be governed in freedom under the former idea ...”
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With Patrick Henry, George Mason, Richard Henry Lee, and Edmund Randolph opposed to ratification, there seemed little hope that Virginia would ratify, and without Virginia there would be no effective union even with all twelve of the other states. For Washington, the failure to win ratification in his home state would be particularly humiliating, and, from the moment he arrived home in Mount Vernon he set to work against that eventuality.

“In the first moments after my return,” he wrote to Patrick Henry and three other former Virginia governors, “I take the liberty of sending you a copy of the Constitution which the Federal Convention has submitted to the people of these states. ...”

Hoping to build support for the Constitution in his home state, Washington sent the same letter to former Virginia governor Benjamin Harrison and to Thomas Jefferson, whom Congress had appointed American minister in Paris.

Henry was in a foul mood when he received Washington's letter. Indeed, while Washington and the others had been in Philadelphia, Henry's deteriorating finances had forced him to sell more land to pay for costly improvements at the plantation he bought in Prince Edward County. When he and Dolly arrived, they had found the house in decay, with but one fireplace and, worse, without a “necessary,” or outhouse. He was in no mood to study a constitution, let alone one that created a powerful national government. After reading it, he did his best to contain his rage as he scribbled his reply to Washington:

In fact, Henry had so many objections that he had neither the time nor the patience to enumerate them—nor the will to enter into a fruitless debate that risked alienating a man whom he admired deeply. Henry's objections, however, were legion. Predicting tyranny as inevitable, he railed at the failure of the Constitution to limit national government powers. “Congress,” he predicted, “will have an unlimited, unbounded command over the soul of this commonwealth,” with powers to pass any laws it deemed “necessary and proper,” as stated in Article 1, Section 8. The president would have all but free rein to exercise whatever he defined as “executive power.” The Constitution offered no specifics. And, Henry concluded, the judiciary had all but supreme power over every court in the land and could hear cases without juries—a right guaranteed in the English-speaking world since 1215, when King John had signed the Magna Carta.

Nor did the Constitution provide term limits for the president, members of Congress, or the judiciary. All could serve indefinitely and collude to create a tyranny. Henry feared the president and senate could collude with foreign governments to sell American territory or territorial rights as Congress had almost done with Spain during the Jay-Gardoqui negotiations. Henry also objected to granting the national government powers to maintain a standing army, to impose taxes without the consent of the states, to “negative” state laws, and to enforce federal laws with troops. Calling “the sword and the purse” the two greatest powers of government, he raged that “the junction of these without limitation in the same hands is . . . despotism,” and demanded that the federal government share these powers with the states.

Among his other objections: the Constitution stripped states of their sovereignty and failed to protect individual rights to freedom of speech,
freedom of religion, freedom of the press, trial by jury in civil cases, redress of grievances, and freedom of assembly to protest government actions. Virginia's Declaration of Rights guaranteed them all, he declared, but the Constitution would give the new national government the power to “negative” the state's guarantees of liberty. Henry argued that the Constitution would establish a national government with powers to impose the very tyranny from which Americans had freed themselves in their revolution against Britain. With these and so many more objections, Henry thought it useless to respond to Washington with anything but the short—and honest—note he actually sent. His objections were indeed “really greater than I am able to express.”
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With poor prospects for a profitable crop, Henry set out to rebuild his law practice, riding the seven-odd miles to the Prince Edward County Courthouse each day to find prospective clients—and trumpet his objections to the proposed Constitution to everyone he met. As he extended the reach of his practice to other counties, one of his political opponents denigrated him by describing his clients as:

Henry had little choice in selecting clients, however. On the relatively lawless frontier, the sale of a horse easily provoked disputes and such disputes just as easily provoked musket fire. In any event, criminal law gave Henry the opportunity to win or lose by ignoring fine points of law and appealing to jury emotions. “As a criminal lawyer,” his son-in-law Judge Spencer Roane explained,

Roane cited one case of an unsavory defendant on trial for what was a clear-cut case of murder. Henry, however, turned the attention of the jury from the defendant to the defendant's elderly parents.

It was only after the judge chastised them and reminded them that they could bring in a verdict other than the death penalty that they modified their verdict to one of manslaughter.

While Henry struggled to restore his family's financial health, he remained the most popular figure among his neighbors, who were struggling as much as he and obviously admired his willingness to travel far and wide to defend the helpless. Asked to serve as their delegate in the Assembly, he agreed and won election unopposed.

In Henry's absence, Richard Henry Lee had taken the lead in organizing the nation's anticonstitutionalists, or “Antifederalists,” as they came to be called. He published a widely read series of
Letters of the Federal Farmer to the Republican
, warning that the new federal government “may command the whole or any part of the subjects' property . . . by means of taxes.”
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Although Federalists despised taxation as much as Antifederalists, most Federalist leaders were wealthy merchants and planters for whom the economic benefits of normalized international and interstate trade under a strong national government would more than offset the cost of added taxes.
Antifederalists, on the other hand, represented owners of small farms that yielded too little to survive any added taxes. Fearing that a federal tax would combine with state taxes to force thousands of families off their lands, Lee proposed amending the Constitution to make federal taxes subject to approval by state legislatures. Lee also demanded passage of Henry's bill of rights “to restrain and regulate the great powers given to rulers: