by Chris DeRose
In light of events during Madison’s election for the House of Representatives, which would take place in just over six months, his next argument is worth noting. “Is a bill of rights a security for religion?” he asked. “Would the bill of rights of this state exempt people from paying for the support of one particular sect, if such sect were exclusively established by law?” Madison argued that true religious freedom came from a multiplicity of sects, where no denomination could form a majority to “oppress and persecute the rest.” He believed that the diverse patchwork of religious denominations across the American states was a better guarantee of religious freedom than any explicit constitutional language would be. Madison then reverted to his enumerated powers argument, saying, “There is not a shadow of right in the general government to intermeddle with religion. Its least interference with it would be a most flagrant usurpation.” Madison held up his “uniform conduct on this subject” as a champion of freedom of religion as proof that he argued against the need for a constitutional guarantee as a true friend of religious liberty, not an enemy.
On June 13, Patrick Henry reverted to bold and unpredictable maneuvers. He called on anyone with personal knowledge to disclose what he knew about the issue of the Mississippi in Congress. Henry Lee argued that Jay had never been directed to give up the Mississippi and that the Confederation Congress had “earnestly wished to adopt the best possible plan of securing it.”
This inaccuracy prompted Monroe to answer Henry’s call. “There was a time, it is true, Sir, when even this state, in some measure, abandoned the object, by authorizing its cession to the Court of Spain.” At that time, however, the South had been in the hands of the enemy. South Carolina and Georgia had been defeated, and North Carolina was offering feeble resistance to the British. Virginia was invaded, and the enemy moved freely and caused much carnage throughout the commonwealth. But after the peace, Monroe recalled, Gardoqui was sent to treat on the issue of the river, and Jay was instructed to enter into no treaty that did not acknowledge America’s rights to the Mississippi. Monroe then brought the convention up to speed on what had happened when seven Northern states had voted to repeal Jay’s instructions.
Madison announced that he was reluctant to engage on the subject, veering as it did from the question at hand. But Monroe’s argument was so thin that Madison could not fail to respond. Madison pointed out that under the new Constitution, the president and two-thirds of senators present would have to agree on every treaty. The Anti-Federalist argument was that the president and two-thirds of the Senate could give the river away more easily than nine states in the Confederation Congress. Madison asked the obvious question: Couldn’t the Northern senators be absent just as easily as those from the South? The root of the problem of the Mississippi, Madison argued, was that the present system of government in the United States was weak. American weakness induced countries like Spain to make extraordinary demands. A strong system, like the one for which he was advocating, would deter this and future threats.
Grayson doubled down on the argument that American rights to the river would be more vulnerable under the Constitution, pointing out that the new Senate would have at most twenty-six members. A quorum would be fourteen, and two-thirds of a quorum would be ten. That meant that ten senators could ratify a treaty to give away the Mississippi.
George Nicholas had heard enough of this argument. He jabbed at Henry, pointing out that the Mississippi was already almost given away, and “By whom?—by Congress, under the existing system, the worthy member’s favorite confederation.” Nicholas pointed out what would need to happen for the Anti-Federalists’ proposed scenario to play out: “First, that on the important occasion of treaties, ten Senators will neglect to attend; and in the next place, that the Senators whose states are most interested in being fully represented, will be those who fail to attend.”
Even as they met there, Nicholas pointed out, Congress was preparing a bill for Kentucky statehood. This would mean two new senators in favor of keeping the Mississippi, as well as an increase in the number needed for a two-thirds majority. He also explained a glaring problem with the current system: under the Articles, nine states were needed to make a treaty. Therefore, even if the Congress of the Confederation grew from thirteen states to one hundred states, the number needed to ratify treaties would still be nine, unless the states unanimously agreed to amend it.
Randolph was also aghast. “I have seen so many attempts made,” he said, “and so many wrong inducements offered, to influence the delegation from Kentucky, I must, from a regard to justice and truth, give my opinion on the subject.” He argued that the new government had no power to give away the territory of a state. He appealed to the statesmanship of the Kentucky delegates, “Let me entreat those gentlemen, whose votes will be scuffled for, to consider in what character they are here. For what have they come hither? To deliberate on a Constitution, which some have said will secure the liberty and happiness of America... Will they, as honest men, not disdain all applications made to them from local interests? Have they not far more valuable rights to secure?”
As the storm of words raged inside the New Academy, a rainstorm raged outside, growing in intensity until the Convention had to be adjourned for the day.
Back in his room, Madison was more pessimistic than ever. The delegates from the Kentucky district were unlikely to look past the river issue. For what would it profit a man to gain the best new government in the world, only to lose his property, watch his friends and family lose theirs, or see the economy of his homeland decimated? With the rain pounding the walls and windows of his room, Madison wrote to Rufus King, who had served with him at the Constitutional Convention, “The issue of it is more doubtful than was apprehended when I last wrote . . . the vote of Kentucky will turn the scale, and there is perhaps more to fear than to hope from that quarter. The majority on either side will be very small and at present the event [result] is as ticklish as can be conceived.”2 It is worth noting that King, as a congressman from Massachusetts, was the chief proponent of Jay bargaining away the Mississippi. It is interesting to consider whether King regretted this, especially in light of how his actions now jeopardized the Constitution that he so strongly supported.
The following day, as the storm outside abated, the tempest in the New Academy proceeded apace. The debate from here on out would be more focused on the Constitution itself. The third section of Article I, which concerns the powers of the Senate, was read aloud. As delegates leveled a trickle of minor criticisms, we can almost see Madison throwing his hands up. He pointed out that “it was not possible to form any system to which objections might not be made.” By the time Article I, Sections 4 and 5 were read, the Convention had considered only the preamble and five sections of one article in the eleven days since they first met. On day twelve, the pace picked up, and delegates began to move quickly through the rest of the Constitution. But Madison’s frustration with trifling objections from the Anti-Federalists, including his former ally Monroe, was still palpable.
Monroe challenged Madison on state control of the time, place, and manner of elections. Under the new Constitution, elections for Congress would be regulated by the state legislatures, but Congress had power to alter their regulations. Madison responded, “The power appears to me satisfactory, and as unlikely to be abused as any part of the Constitution.” The states, Madison explained, would have the opportunity to conduct elections, but if that power were abused, the federal government could step in. (He gave the case of Charleston, South Carolina, which had thirty representatives in the state legislature, far out of proportion to its share of the population, as an example of the kind of abuse that would justify federal intervention.) Monroe pressed further, asking for an explanation of why the House or Senate could not adjourn for more than three days without the consent of the other. Couldn’t this increase the influence of one body over the other? Madison wondered how this clause could possibly “meet with a shadow of objection.”
>
Clauses 6 and 7 of Article I were reviewed in a similar fashion, with the Anti-Federalists attempting to raise whatever objections they could. During the debate over Clause 8, Madison and Henry engaged in an interesting dialogue that reveals the increasing tension in the room.
“From the first moment that my mind was capable of contemplating political subjects,” Madison said, “I never, till this moment, ceased wishing success to a well regulated republican government. The establishment of such in America was my most ardent desire.”
Henry responded, “Loving his country as he does, he would not surely wish to trust its happiness to an experiment, from which much harm, but no good may result.”
Madison answered, “The honorable member expresses surprise that I wished to see an experiment made of a republican government, or, that I would risk the happiness of my country on an experiment. What is the situation of this country at this moment? Is it not rapidly approaching to anarchy? Are not the bands of the union so absolutely relaxed as almost to amount to a dissolution?” Madison was convinced that the flaws in the current federal government were so fundamental that it was failing. The only realistic hope that republican government could succeed was the new Constitution.
The delegates adjourned until Monday at 9:00 a.m., a new and earlier start time that would stand throughout the Convention. They had covered a lot of ground, and a lot of ground was still left to be covered.
“The necessity of a bill of rights,” Henry argued, “appears to me to be greater in this government, than ever it was in any government before.” Unless a bill of rights was attached to the Constitution, “Excisemen may come in multitudes . . . go into your cellars and rooms, and search, ransack, and measure, every thing you eat, drink, and wear.”
As Section 9 was read and debate began over titles of nobility and habeas corpus, Madison began to believe a deliberate strategy was under way to delay Virginia’s decision until New York had the chance to reject. Delaying the vote would prevent a favorable outcome in Virginia from influencing New York to ratify, and if news of rejection in New York reached Richmond in time, it would dramatically undercut the argument for union and likely spell defeat for the Federalists.
The remainder of Article I was quickly debated, and Article II, which lays out the executive powers, was on deck. Monroe announced his opposition to the Electoral College. The president, he believed, “ought to depend on the people of America for his appointment and continuance in offices.” Monroe was concerned that small states would conspire to deadlock the Electoral College in order to force the race into the House. When the House decides the presidency, each state has a single vote. Monroe argued for presidential term limits, believing that the powers of the office would guarantee the holder life tenure, if he so desired. He would not be the last to complain that the “Vice President is an unnecessary office.” Monroe also argued that the vice president’s tie-breaking vote in the Senate gave one state three votes in that body.
The Electoral College had been the subject of extensive debate in Philadelphia and was the product of hard work and compromise. Madison stood up, frustrated that nobody had “pointed out the right mode of election.” It was easy for Anti-Federalists to criticize what the delegates to the Constitutional Convention had drafted; in most cases, they had not proposed alternatives.
By the following day, the Convention was debating Article III, which deals with the judiciary. During the second day of debate on this Article, Madison argued for one Supreme Court to create uniformity in the law. He believed, “This power cannot be abused, without raising the indignation of all the people of the states.” Madison also believed that good government without virtuous people “is a chimerical idea. If there be sufficient virtue and intelligence in the community, it will be exercised in the selection of these men.”
Monroe’s old schoolmate John Marshall joined the debate on the Federalist side, asking what makes us trust our judges, and then answering his own question: “their independence in office, and manner of appointment.” If Congress “were to make a law not warranted by any of the powers enumerated, it would be considered by the judges as an infringement of the Constitution which they are to guard.... They would declare it void.” Marshall, who would be the first Supreme Court Justice to use judicial review to invalidate an unconstitutional law,f asked, “To what quarter will you look for protection from an infringement on the Constitution, if you will not give the power to the judiciary?” Madison added that the lack of impartial courts has “prevented many wealthy gentlemen from trading or residing among us,” as well as permitting many debtors to avoid payment.
Article IV was quickly read and considered, and the remainder of the Constitution was read through on June 23. The Convention was hurtling toward a vote.
With the Constitution now thoroughly debated and examined, each side advanced closing arguments.
George Wythe argued that while some amendments might be necessary, nobody could deny how excellent much of the Constitution was, nor how important the union, nor how weak the Confederation. He urged ratification with recommendation of amendments.
Patrick Henry presented a list of amendments and rights he wanted forwarded to the other states prior to ratification. He argued that “previous amendments”—that is, amendments that would have to be added to the Constitution before Virginia would ratify—would provide “union, firm and solid.”
Governor Randolph reviewed all of the rights Henry proposed enumerating, explaining either where they were already guaranteed in the Constitution, or where Congress had no power to trample them. Randolph claimed that if he could “bring [his] mind to believe that there were peace and tranquility in this land, and that there was no storm gathering which would burst, and that previous amendments could be obtained, I would concur.... For nothing but the fear of inevitable destruction would lead me to vote for the Constitution in spite of the objections I have to it.” He was willing to vote for an imperfect Constitution only because the alternative was worse.
Madison then made his closing argument in favor of the document whose principle author he was: “Nothing has excited more admiration in the world, than the manner in which free governments have been established in America. For it was the first instance from the creation of the world to the American Revolution, that free inhabitants have been seen deliberating on a form of government, and selecting such of their citizens as possessed their confidence, to determine upon, and give effect to it.” Every state could never be totally happy, Madison explained. How much less could every individual be satisfied? “It has never been denied by the friends of the paper on the table, that it has defects.” It would later be argued by Anti-Federalists that Madison said in Convention that not a letter of the Constitution could be spared. But he was not claiming it was perfect. He conceded that it had been a product of “mutual deference and concession.” The Constitution was not perfect, but it was the best that would be drafted. It had been conceived before the creation of parties, when “men’s minds were calm and dispassionate.” “Everyone has their objections,” Madison said, “but if Virginia will agree to ratify this system, I shall look upon it as one of the most fortunate events that ever happened, for human nature.”
Henry, among the greatest courtroom lawyers of his generation, began his own closing argument with a storm gathering outside the hall. Where Madison saw the blessings of the proposed government, Henry saw the threat:I see the awful immensity of the dangers with which it is pregnant. I see it—I feel it. I see beings of a higher order, anxious concerning our decision. When I see beyond the horizon that binds human eyes, and look at the final consummation of all human things, and see those intelligent beings which inhabit the 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 on one side or the other, will depend on what we now decide. Our own happiness alone is not affe
cted by the event—all nations are interested in the determination. 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.
With lighting flashing outside and casting a light into the chamber, and rain and thunder drowning out his words, Henry was forced to stop.
On June 25, George Nicholas made a motion to ratify the Constitution.
Monroe spoke in opposition. He “could not conceive that previous amendments would endanger the union. Adopt it now unconditionally and it will never be amended, not even when experience shall have proved its defects.” And “What are the amendments brought forth by my friends? Do they not contemplate the great interests of the people, and of the union at large?” Monroe believed that by holding out, Virginia could dictate more favorable terms at a second convention, or pressure those states that had ratified to meet again and adopt changes.
At the Convention’s close, a number of first-time speakers rose, men who had previously been content to let others carry the debate but now wanted to explain their decision—the most important most of them would ever make in public life. Randolph was clearly mindful of his place in history as he delivered his last remarks:The suffrage which I shall give in favor of the Constitution, will be ascribed by malice to motives unknown to my breast. But although for every other act of my life, I shall seek refuge in the mercy of God—for this I request his justice only. Lest however some future analyst should in the spirit of party vengeance deign to mention my name, let him recite these truths; that I went to the Federal convention with the strongest affection for the union; that I acted there in full conformity with this affection; that I refused to subscribe; because I had, as I still have, objections to the Constitution and wish a free inquiry into its merits; and that the accession of eight states reduced our deliberations to the single question of union or no union.