By April 1788 it had become abundantly clear that Virginia would be the decisive state. Apart from its own importance and its keen sense of self-importance, the verdict in Virginia now loomed much larger because the early momentum for ratification had stalled when two states, New Hampshire and North Carolina, decided to postpone their conventions, and Maryland threatened to join them in order to await Virginia’s decision. There was an interactive dimension to the ratification process. If Virginia did not ratify, the political momentum would shift dramatically against ratification.
Although Washington had taken a vow of abstinence after the Constitutional Convention—he would play no active role in the debates—he broke that vow, probably under prodding from Madison, by writing to friends in Maryland, urging a vote rather than a postponement. “An adjournment of your convention…will be tantamount to the rejection of the Constitution,” he warned, because it would strengthen the opposition in Virginia, which was already perilously close to a majority. Any request of this sort from Washington was equivalent to a command, and Maryland voted for ratification (63–11) within the week. That meant that the political pressure would build in Virginia to become the ninth state and put ratification over the top. The problem was that the political elite in Virginia was evenly divided, and while both sides felt a keen obligation to lead, they wanted to lead in opposite directions.36
Madison went into his nose-counting mode soon after the delegates were elected to the Virginia convention, scheduled for Richmond in mid-June. After an initial burst of enthusiasm, during which he apprised both Jefferson and Washington that the “Pros” enjoyed a comfortable majority, he gradually became more circumspect. The northern part of the state was firmly “Pro,” but the Tidewater counties, where the planter class was heavily in debt to British creditors whom they preferred to finesse, were firmly “Anti,” with the delegates from the western counties and the Kentucky district holding the balance of power. It was going to be extremely close. Madison immediately began firing off letters to friends in Kentucky, arguing that their concerns about navigation rights on the Mississippi would be best served by joining the union.37
Another, less local way of looking at Virginia’s voting patterns came from John Marshall, a devoted protégé of Washington’s, a Revolutionary War hero, and a future chief justice of the Supreme Court. Marshall believed that a sizable majority of Virginians opposed ratification, “but they have chosen their most trusted local leaders as delegates, who by a small margin support it.” In his judgment the will of the majority would defer to the more informed and trusted men in the Old Dominion. It was still a predemocratic world where that kind of elite analysis required no apology.38
The wild card that confounded any prediction of the outcome in Virginia was Patrick Henry, who was simultaneously the most popular politician in the state and the most famous orator of the age. Henry had boycotted the convention in Philadelphia, as Madison quite caustically put it to Washington, “in order to leave his conduct unfettered on another theatre, where the results of the [Virginia] Convention will receive its destiny from his omnipotence.”39
Madison had been on the receiving end of Henry’s eloquence on several occasions, so he knew what he was up against. Henry on his feet was a force of nature, part actor on the stage, part preacher in the pulpit. He could go on for hours at a time, without notes, often wandering off point, but always casting a spell. If argument was going to make a difference in the Virginia convention, and it was, Henry gave the “Antis” an advantage.
There was also bad blood between Henry and the Jefferson-Madison tandem. It dated from 1781, when Henry had led the effort to impeach Jefferson as governor for his somewhat hasty and headlong retreat from office to avoid capture by the invading British army. Henry had also used his political patronage to block Jefferson’s resolution for religious freedom, which Madison was defending in the Virginia legislature. As Jefferson put it to Madison, there seemed no way to deal with Henry “except to ardently pray for his imminent death.”40
The Virginia convention was destined to become one of the most significant and consequential debates in American history. The Virginia press, sensing the historical implications, had hired stenographers to record the words of all speakers, making it the most fully preserved of all the ratifying conventions. The two sides appeared evenly divided, especially when Edmund Randolph, the sitting governor, came over to the “Pro” side, while George Mason, one of the most respected constitutional thinkers in the state, had become a conspicuous spokesman and strategist for the “Antis.”
Everyone realized, though, that the two titans in the Richmond debates were going to be Henry and Madison. To describe Madison as a “titan” seems incongruous, since he was a diminutive physical presence and on his feet was barely audible, speaking like a stilted professor who kept referring to notes stuffed in his hat, the oratorical opposite of the unscripted, free-floating Henry.
Appearances, however, were deceptive. Madison was accustomed to being the most fully prepared speaker in the room, the kind of frustrating opponent who somehow seemed to understand the implications of your argument better than you did. Unlike Henry, he had been present to hear all the debates in Philadelphia, and he possessed the fullest set of notes on those debates. Then the act of drafting twenty-nine essays as Publius had given his thoughts a final gloss. It was, in fact, an equal contest between a great orator and a great thinker. As Marshall so nicely put it, “Mr. Henry had without doubt the greatest power to persuade, [but] Mr. Madison had the greatest power to convince.”41
Thanks largely to Henry’s bravura performance, plus his instinctive desire to attack the central assumptions of Publius, the debate in the Virginia convention achieved a singular status: it subordinated the local concerns of most delegates to the periphery and focused on the larger national issues at stake. Ironically, scholars have questioned the influence of Publius beyond New York. In Virginia, Publius was front and center but primarily as a target for all that the “Antis” opposed.
In his maiden speech on June 5, Henry fired a full salvo at the core premises of Publius. First, Henry claimed that the Constitutional Convention had itself been an unconstitutional gathering, because the delegates had exceeded their instructions by replacing the Articles rather than amending them. On this issue, he clearly had the historical facts on his side.42
Next, Henry questioned the alarmist presumption that America was on the verge of anarchy, with the Articles about to expire and dissolution into several regional confederacies the likely outcome. As far as Henry could tell, most Virginians were getting on with their lives with conspicuous serenity. The Confederation Congress was never supposed to function as a government, Henry observed, but as a clearinghouse for the political agenda of the states, and it had performed that limited mission quite well: “It carried us through a long and dangerous war. It rendered us victorious in that bloody conflict with a powerful nation. It had secured us a territory greater than any European monarchy possesses. And shall a government that strong and rigorous be accused of imbecility for want of energy?”43
This was revisionist history in a Virginia-writ-large vision of America, and Madison was quick to pounce on it as the kind of incredulous remarks made by someone who’d been living on another planet. Had Henry not noticed that, throughout the war, the states—Virginia included—had failed to meet their quota of money and men? Voluntary state requisitions had become a joke, producing a national debt approaching $70 million with no way to pay it, making American credit worthless among European bankers. All the European governments regarded the very term United States as a laughable irony, since each state made its own foreign policy.44
Madison then unfurled his familiar argument against the systemic weakness of the German, Swiss, and Dutch confederacies: “Does not the history of these confederacies coincide with the lessons drawn from our own experience?” He went on to answer his own rhetorical question: “A Government that relies on thirteen independent s
overeignties for the means of its existence is a solecism in theory, and a mere nullity in practice.”45
These were not arguments familiar to Henry, nor arguments often heard within the precincts of Virginia, which were the only precincts Henry cared about. He was an ardent confederationist who presumed that Virginia would remain the dominant nation-state and that both his own political power base and, as he saw it, the majority of Virginians had more to lose than gain by joining a larger union. In a very real sense, Henry and Madison were talking past each other, for they harbored fundamentally different views of America’s future. The great virtue of the Henry-Madison debate was to make that fundamental difference abundantly clear.
Henry did not believe that there was such a thing as “the American people,” only Virginians, Pennsylvanians, New Englanders, or South Carolinians. And on this score he was, once again, historically correct. He spoke eloquently and passionately for the hallowed conviction that the American Revolution committed the United States to a version of republican government that was proximate and personal. And any larger union of states that made representation distant and impersonal defied the political experience of most Virginians and the core principles of ’76. Again, the facts were on his side.
In retrospect, we can see clearly that Henry spoke for the past and Madison spoke for the future. But Henry deserves full attention for making the case for what we might call the first American Revolution with such clarity. “Have they said, ‘we the states’…this would be a confederation…. The question turns, Sir, on that poor little thing, the expression ‘We, the people,’ instead of the States of America.” Henry was right. That was the core issue.
In an extremely revealing aside, Henry posed the following question: “Suppose every delegate from Virginia in the new government opposed a law levying a tax, but it passes. So you are taxed not by your own consent, but by the people who have no connection with you.” In Henry’s political universe, non-Virginians were not fellow citizens but foreigners, whose interests were not aligned with the values of the Old Dominion. Any wholly national government that attempted to unite the states created a domestic version of Parliament, which was precisely the kind of arbitrary and unrepresentative government that Americans had spent so much blood and treasure to escape.46
The watchword of Henry’s critique of the Constitution was consolidation, a term loaded with ideological and quasi-paranoid implications. It conjured up the image of a political monster devouring the liberties of the citizenry, an inherently tyrannical behemoth with an avaricious appetite that, once in place, could not be controlled or stopped. (Modern-day Tea Partiers share this political legacy, with its deep roots in the hostility to any robust expression of government power at the federal level.) “You make the citizens of this country to become the subjects of one consolidated empire in America,” Henry warned. “When I come to examine those features sir, they appear to me horribly frightful. Among other deformities it has an awful squinting; it squints towards monarchy.”47
In several senses, then, Henry had history on his side in this critique of the Constitution. But there was one elemental difference between the political context in 1776 and that in 1787–88. The American colonists had not been represented in Parliament. Their definition of what constituted representation would have to change, to be sure, but the delegates gathered in Philadelphia did not regard themselves as repudiating so much as expanding the meaning of the American Revolution. And Henry had the misfortune to draw as an opponent the one man in America most articulate in making that argument.
In some better world, Madison would have attacked the central premise of Henry’s argument that there was, as yet, no such thing as “We the people of the United States.” He would have said, “I have seen the future and it works”—in effect, we are a single people who only need time within a common government to discover our collective interest. (This, by the way, was Washington’s opinion.) But Madison was less a political visionary than a practical politician who needed to win the votes in Richmond and put Virginia over the top. For that reason, he chose to attack the flanks of Henry’s argument. Henry had argued that the Constitution created a consolidated federal government that rode roughshod over the power of states. Madison argued that Henry did not know what he was talking about, that the political architecture created in Philadelphia mandated shared sovereignty between the federal government and the states.
“It is, in a manner unprecedented,” Madison observed. “It stands by itself. In some respects it is a government of a federal nature; in others it is of a consolidated nature,” meaning that the Constitution granted enumerated powers to the national government, but left all else to the province of the states. The phrase “We the people” did not refer to “the people composing one great body—but the people composing thirteen separate sovereignties.” The Senate represented the states, and its members would be elected by the state legislatures. The states appointed the electors who chose the president. All constitutional amendments required ratification by a supermajority of the states. This was an enormous concession on Madison’s part, on the one hand a recognition that Henry was right in saying that no national ethos currently existed but, on the other hand, a deft deferral of the ultimate verdict to the future by describing the Constitution as a framework within which some version of state and national sovereignty would continue to coexist.48
All the arguments that Madison made in Richmond on behalf of shared sovereignty represented a repudiation of the arguments he had made in Philadelphia in favor of a clear statement of sovereignty at the federal level. But the political circumstances had changed, and Madison, ever the political animal, had changed with them. If he had to abandon some of his fondest convictions to win ratification in Virginia, he was fully prepared to do so.
Once the boogeyman of “consolidation” had been defanged, Henry realized his only hope was to load up Virginia’s ratification with so many amendments that a second convention would need to be called, which then, he hoped, would end up revising the Articles rather than replacing them. But erosion of support in the western counties and Kentucky meant that he did not have the votes.
While delivering his final speech on June 29, proposing forty new amendments to the Constitution, Henry was interrupted by a violent thunderstorm, suggesting that even the gods favored ratification. The final vote was close but decisive (89–79). A caucus of the defeated “Antis” voted to mount a challenge to the verdict, holding out hope for a second convention. But Henry refused to lend his support to what he realized was a lost cause. He had done his best, he said, they had all done their best, and though they surely had represented Virginia’s political interest, they had lost. And so for now “they had better go home.” For better and for worse, the Constitution was destined to become the law of the land.49
Given the size and commercial significance of New York, it seems both awkward and irreverent to notice that the decision in Virginia made New York a mere epilogue in the ratification story, but it was. Actually, New Hampshire had acted with unexpected vigor to ratify as the ninth state, making Virginia the tenth. Ratification was now assured, altering the political chemistry and leaving New York with a rather somber choice. It could join Rhode Island as a renegade state and attempt to go it alone, a posture that was simultaneously honorable and suicidal, or it could, albeit reluctantly, join the union.50
Before the verdict in Virginia was clear, both Jay and Hamilton, though vastly outnumbered, had done their best to make the case for ratification. Jay had written an essay, widely circulated in the New York press, that actually outdid Publius in making the most comprehensive argument for what was at stake, in language that was, even more than that of Publius, simultaneously accessible and lyrical. It was a new revolutionary moment, as Jay saw it, and Americans needed to come together in 1788 as they had in 1776. The downside was that, if they failed to do so, the outcome would be just as catastrophic as defeat would have been in the war against Great Britain. Jay a
lso won adherents even among his opponents on the floor at Poughkeepsie with a diplomatic demeanor that made him impossible to hate. (“Please, sir, explain your position to me again, since I do so much wish to understand it.”)51
As might be expected, Hamilton was brilliant in a more aggressive mode, impervious to the political odds against which he was arguing; as Jefferson later said, he was “a host unto himself.” But Hamilton’s greatest contribution, at least in practical terms, was to establish a series of riders between Richmond and Poughkeepsie to apprise New York of the verdict in Virginia. Given the numbers in the New York convention, there was no way that Jay and Hamilton could win the debate. Their primary political task was to delay the vote in New York until the Virginia vote had created a fait accompli. They were successful in this task, and New York voted for ratification by the narrowest of margins (30–27), in truth against its will.
Reading Jay’s correspondence during the New York debates again calls attention to his almost preternatural confidence that, against all odds, victory was never in doubt. He apparently believed what he had written to the New York citizenry, that providential forces were at work in the ratification process just as they had been in the war for independence. And given the extraordinarily fortuitous way that history happened in New York, it is difficult to dismiss Jay’s incomparable serenity as anything less than some secular version of divine inspiration.52
If the verdict in New York turned out to be a political epilogue in the ratification story, the incredulity of the Clintonites at losing a battle in which they possessed a clear majority created an epilogue to the epilogue. New York’s endorsement of ratification included a series of recommended amendments to the Constitution, and a statement that ratification had occurred “in full confidence that the necessary amendments would be adopted.” Madison immediately rejected New York’s terms, arguing that they constituted “conditional ratification, that it does not make N. York a member of the New Union, and consequently she should not be received on that plan.” Madison’s point was that states could make recommended amendments, but they could not make ratification conditional upon acceptance of those amendments. New York was attempting to conflate recommendations with conditions. Madison wrote Hamilton, urging him to apprise all the New York delegates that the Constitution must be adopted “in toto, and for ever…and any condition whatsoever must visciate the ratification.”53
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