Without Precedent

by Joel Richard Paul

  The Constitutional Convention in Philadelphia was originally called in 1787 for the narrow purpose of suggesting amendments to the Articles of Confederation to be considered by the Confederation Congress. Madison, however, ignored these instructions. He arrived in Philadelphia with a draft of a new constitution based not on the principle of state sovereignty but on the principles of federal supremacy and a separation of powers. The delegates in Philadelphia had no legal authority to consider a new constitution, let alone to propose a process of ratification that bypassed the Confederation Congress and went directly to popular conventions chosen in each state. The Articles of Confederation could be amended only by the Confederation Congress with the approval of all the state legislatures. Madison’s proposed constitution provided that it would come into effect if it was approved by nine state conventions—not even nine state legislatures. For these reasons, anti-federalists could argue that Madison’s constitution was literally unconstitutional.

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  “IT IS UNIVERSALLY UNDERSTOOD,” Marshall later wrote, “that the great revolution which established the constitution of the United States, was not effected without immense opposition.”6 At the Virginia Ratifying Convention, it hardly looked like a fair contest: Madison and Marshall did not have the gravitas that men such as Henry or Mason could convey. While Pendleton and Wythe were persuasive speakers, Pendleton was elected president of the convention, and Wythe was chosen as chair of the committee of the whole, so they were both effectively sidelined for much of the convention. If only General Washington were there to defend the Constitution. He was by far the most popular man in Virginia and could have swayed most of the delegates. But Washington’s absence was calculated. Everyone, except perhaps John Adams, assumed that Washington would be the first president of the federal government. He did not want to campaign openly for the Constitution because he did not want to appear to be campaigning for himself. (When asked if he was interested in the presidency, Washington coyly replied that “it has no enticing charms, and no fascinating allurements for me.” But he added, “[I]t might not be decent for me to say I would refuse to accept or even to speak much about an appointment, which may never take place.”7) If Virginia failed to join the union, Washington would not be eligible for the presidency. Without Virginia’s ratification, the federal Constitution did not stand a chance. Washington was quietly working behind the scenes through Hamilton and Madison to coordinate support for the Constitution around the nation.8 Marshall spoke only a few times on the floor of the convention, but he privately lobbied the other delegates with persistence and charm.

  Jefferson, like Washington, was conspicuous by his absence from the Virginia Ratifying Convention. He was then the U.S. envoy to Paris and witnessing the unfolding of the French Revolution. Both sides in the debate invoked Jefferson and claimed that if he were present he would be supporting their argument. Jefferson’s own views on the Constitution were at best ambivalent. He was alternately hostile, neutral, or cryptic.9 His initial response to the Constitution was chilly: “I confess there are things in it which stagger all my dispositions to subscribe to what such an Assembly has proposed.” He thought that all that was needed were three or four simple amendments to the “good, old and venerable fabric” of the Articles of Confederation; there was no need for a whole new constitution.10 In his view, a constitution was as superfluous as “setting up a kite to keep the henhouse in order.”11 Later, Jefferson would claim either that he had no opinion—on the single most important issue of his generation—or that he would have supported the Constitution but that he wanted it amended first to add a bill of rights.12

  It was tempting to think that by adding a bill of rights the proposed Constitution would enjoy broader support. However, there were tactical considerations. Madison and Marshall recognized that in order to amend the Constitution there would have to be another national constitutional convention and then the revised document would have to be resubmitted to the eight states that had ratified before Virginia. This effort could postpone the Constitution indefinitely. Moreover, time was not on their side. By the end of June, the General Assembly would convene in Richmond, and it included more republicans who were hostile to the Constitution.13 For these reasons, Marshall and Madison believed that the Constitution must be ratified first and then a bill of rights could be added later.

  On the second day, the convention, now overflowing the capitol building with nearly 170 delegates, was convened at eleven a.m. in a more spacious building nearby that had been erected by the Chevalier Quesnay de Beaurepaire and modeled after the French Royal Academy of Sciences in Paris. In the Francophile style, it was pretentiously christened l’Académie des États-Unis de l’Amérique and was intended to foster arts and sciences. Here the fiercely independent Virginians debated their national constitution in a building dedicated to importing the ideas of the French Enlightenment at precisely the moment that France was descending into chaos.14

  The air was heavy with the scent of honeysuckle and acrimony. The issue presented to the delegates on the second day was whether delegates could propose amendments to the Constitution before they voted on it. Patrick Henry argued that the Constitution was fatally flawed, that it “squints toward monarchy.”15 Against Henry’s high-flown oratory, Madison, Marshall, and their allies carefully focused on one clause at a time, which played to Marshall’s legal talent.16

  Madison’s intellect was breathtaking, but his speaking style tried the patience of the other delegates. He appeared unprepared and spontaneous when he rose to speak. He nervously shifted his weight back and forth from one foot to the other as he glanced down at a few scribbled notes hidden in the hat he clutched in his left hand. Madison was ill with the “bilious indisposition” that he frequently suffered from during stressful periods. He could barely raise his voice to be heard. But it hardly mattered. Even at the peak of health, Madison could not match the rhetorical heft of Henry. Fortunately, Madison could rely upon others, including Marshall.17

  On the third day of their deliberations, Henry rose to lay out his broad argument against the Constitution as a whole. Virginia’s most famous radical now fiercely defended the status quo. He argued that the people were tired of change. They were not demanding a radical new form of government. “Was the real existence of the country threatened, or was this preceded by a mournful progression of events? This proposal of altering our Federal Government is of a most alarming nature,” he warned his fellow Virginians. “You ought to be extremely cautious, watchful, jealous of your liberty; for instead of securing your rights, you may lose them forever.”18

  When Henry spoke of “liberty,” he was talking about more than a mere abstraction. Just as the federalists argued that a national government would best conserve the rights of landowners and creditors against popular uprisings like those in Rhode Island and Massachusetts, the anti-federalists were also concerned about how best to protect their property rights—in particular, their rights to hold slaves. “Liberty” to Henry included the liberty to enslave others. Though the word “slavery” rarely appeared in any ratification debates, Henry bluntly warned that if the federalists succeed, “[t]hey’ll free your niggers!” Henry’s outburst was discreetly excised from the records of the ratification debate.19 Patrick Henry, the patriot who famously said, “Give me liberty or give me death,” saw no inconsistency in opposing tyranny over white Americans in defense of slavery over others.

  Marshall waited a week before responding to Henry’s bombastic assault. He stood before the delegates in his customary dress, a wrinkled summer suit that hung limply on his tall, narrow frame. His manner of speaking was as casual and offhand as his dress and contrasted sharply with his piercing logic. When he spoke, he often shook one arm awkwardly as if he were scolding his listeners, or he would raise both arms over his head like a preacher calling on the heavens to punish the wicked. Other times he would lean so far forward into his audience that he appea
red to be toppling over and had to grab hold of a chair for support. As his argument reached a crescendo, he would be so transported by his own words that he would screech in a high-pitched voice that jangled people’s nerves. Yet, despite his careless dress, gawky manner, and sometimes shrill voice—much like those of another frontiersman, Abraham Lincoln—Marshall’s eloquence and his dramatic flair transported his audience. Listening to Marshall, people could excuse his unceremonious appearance. He appealed to their intellect with such clarity and respect that even his opponents praised his arguments.20 One of the leading anti-federalists, James Monroe, wrote to Jefferson that Marshall’s “perspicuity and force were greater than ever.”21

  Marshall focused on two principal clauses: the president’s powers as commander in chief under Article II and the authority of the federal courts under Article III. He stressed the need for a strong central government to defend the country. “Protection in time of war is one of its principal objects . . . [A] defenseless country cannot be secure.” He warned the delegates, “The powers of Europe are jealous of us,” and that “[i]f we invite them by our weakness to attack us, will they not do it?” His experiences in the Revolutionary War had proved to Marshall that the national army could not rely upon the states to provide voluntary support. “The inability of Congress, and the failure of the States to comply with the Constitutional requisitions, rendered our resistance less efficient than it might have been.” The delegates gathered in Richmond needed no reminder that only seven years earlier British troops had burned the capital city and chased the General Assembly to Charlottesville.22

  When the anti-federalists charged that Congress could pass laws that infringed on the rights of Virginians, Marshall asserted that if Congress adopted a law contrary to the Constitution a supreme court “would not consider such a law as coming under their jurisdiction. They would declare it void.” Following the Rhode Island court’s decision in Trevett v. Weeden that struck down a law denying a right to a jury trial, Marshall affirmed the principle of judicial review as a central feature of the federal Constitution. Though nowhere in the Constitution did the Framers mention judicial review, Marshall said such powers were implied. In essence, Marshall anticipated his own opinion asserting the power of judicial review in Marbury v. Madison.23

  As the ratification debate dragged on, Marshall entertained many of the delegates in his nearby home with punch and ices. He would sometimes drop in on the delegates after dinner at one of the popular local taverns, usually Formicola’s or the Swan, where a quart of Madeira cost only six shillings. Marshall amused them with his stories as he had amused his comrades at Valley Forge. Marshall understood that building personal relationships was essential to winning people’s confidence. While Madison was the master architect of the Constitution, Marshall was a more effective salesman. Delegates would much prefer sharing a glass of Madeira with the gregarious Marshall than a pint of ale with Madison. Marshall targeted anyone he thought might be persuaded. The delegates from the Kentucky territory, for example, were still on the fence until Marshall convinced them that the Constitution would protect their property rights and open up the frontier for development.24 By the end of June, Marshall’s steady lobbying began to pay off as more and more delegates declared in favor of the draft.

  On June 24, Patrick Henry made one last valiant effort to kill the Constitution. He gave one of the most passionate speeches of his career, opposing the document as an invitation to tyranny. It occurred during a swelling storm that pummeled the meeting place with ferocious gales and booming thunder, which rattled doors and windows and unnerved the delegates. As bolts of lightning illuminated the darkened chambers, Henry concluded his arguments against the Constitution with a dire warning.25

  I see the awful immensity of the dangers with which it is pregnant. I see it. I feel it . . . When I see beyond the horizon that bounds human eyes, and look at the final consummation of all human things, and see those ethereal mansions reviewing the political decisions and revolutions which, in the progress of time, will happen in America, and the consequent happiness or misery of mankind, I am led to believe that much of the account . . . will depend on what we now decide . . . We have it in our power to secure the happiness of one half of the human race. Its adoption may involve the misery of the other hemisphere.26

  Henry’s rant was in vain. The next day, the convention rejected his motion to ratify the Constitution only on the condition that some forty amendments be added to the seven articles that made up the original constitution.

  Two days later, the Constitution was adopted by a razor-thin margin, 89 to 79. Proponents and opponents accepted the outcome with magnanimity and grace. “There was no bonfire illumination &c,” Monroe reported. “[T]he opposition would have not only express’d no dissatisfaction, but have scarcely felt any at it, for they seemed to be governed by principles elevated highly above circumstances so trivial and transitory in their nature.”27

  According to Marshall, a critical number of delegates were persuaded in the end that with General Washington as the presumed chief executive they had nothing to fear. Conversely, if Virginia failed to join her sister states, the union would most likely be led by a northerner, possibly John Adams.28 The vote to ratify the Constitution was, in part, a vote for Washington against Adams. The delegates appointed a committee to draft a list of recommended amendments to guarantee the rights of individuals and states. The committee included both Marshall and Madison. Within the week, Marshall and Madison drafted what became the First, Third, Fourth, Fifth, and Eighth Amendments to the Constitution. Though Marshall was never credited, he was as much the father of our Bill of Rights as Madison.

  Though Madison, Pendleton, Wythe, and Edmund Randolph all deserve enormous credit, Marshall’s role in winning ratification was critical. Not only had Marshall triumphed in these debates, but he had succeeded while maintaining his friendship with Henry and Monroe. He was relatively unknown beyond the narrow confines of Richmond when he entered the convention; he emerged weeks later as one of the national leaders of an inchoate and as yet unnamed political party. If Marshall had quit public life at that point, he would still deserve to be remembered as a champion of the federal Constitution.

  Henry warned the delegates that Marshall was promulgating “a revolution as radical as that which separated us from Great Britain.”29 He was right about that. Marshall’s defense of property rights, federal supremacy, and national self-defense labeled him a conservative, but his conservatism would prove more progressive than Henry’s defense of states’ rights. Henry feared that slaveholding could not survive a federal union, that the power of the states would be supplanted by Congress, and that the federal Supreme Court would always have the final word. Years later, Marshall’s dynamic interpretation of the Constitution would prove that Henry’s fears were well-founded.

  CHAPTER FOUR

  SLAVES AND HYPOCRITES

  After the Constitution’s ratification in 1788, Marshall’s friends and colleagues urged him to run for the new Congress, but he resisted. The newly elected President Washington nominated him to be the U.S. attorney for Virginia, and the Senate approved his nomination even before Marshall was aware of it. But Marshall politely declined the appointment. He had a growing family, a sickly wife, and a burgeoning law practice that included some of the most prominent figures in Virginia. He had no interest in sacrificing his income or moving his family to Williamsburg or Charlottesville, where the federal courts met. Power and fame held no temptation for him. Marshall was content practicing law in a provincial capital like Richmond.1

  In 1792, Hamilton again urged Marshall to run for Congress, and again Marshall declined. Marshall’s popularity worried Jefferson. Though Jefferson was now secretary of state, he viewed Marshall as a rival for power. Jefferson confided to Madison, “I think nothing better could be done than to make [Marshall] a judge.”2 Words that Jefferson would no doubt later regret.

  Marshall’s profes
sional success as a lawyer enabled him to avoid the more common route to wealth and influence in eighteenth-century Virginia as a slaveholding planter.3 Still, slavery was an inescapable fact, and Marshall could not avoid involvement in that institution both personally and professionally. Managing a growing household without modern conveniences required a household staff. Marshall owned between seven and sixteen household slaves at any time, which was slightly more than the average household in Richmond had.4 Nearly half the population of Richmond was black, and more than 90 percent of them were slaves.5

  Virginians of Marshall’s generation saw no contradiction in their fierce advocacy of equality and their dependence on slavery. Slavery made it possible to regard all white males as equal regardless of their social status. Tradesmen saw themselves as the social equals of wealthy plantation owners because they were both white. Unlike Europe, where class identity divided rich and poor and posed a constant threat to the social order, in eighteenth-century Virginia, the underclass was all black and mostly enslaved.6

  The general condition of household slaves in a city such as Richmond was less constrained and less violent than that of most plantation slaves. Though they were still exploited and sold as chattel, urban slaves possessed certain freedoms unknown on plantations. Slaves in Richmond typically were able to enter and leave the master’s property and were not subject to an overseer’s capricious cruelty. Though urban slaves could not marry legally, they often lived together as married couples in their own houses that were no different from the houses that white working-class families lived in. Urban slaves could cultivate small plots of land where they raised vegetables, which they could sell for their own profit with permission from their masters. Slaves in Richmond often worshiped alongside their masters in church. Some slaves were educated to read and write, and some mastered a trade. Masters might permit their slaves to stay out late in the evenings and attend social events such as the theater. However, state law prohibited any blacks, free or enslaved, from visiting taverns, playing cards, gambling, or attending cockfights or horse races. Slaves who violated these prohibitions faced thirty lashes.7 In this perverse way, the law held slaves to a higher moral standard than their masters and mistresses.