First Founding Father

by Harlow Giles Unger

  And to Virginia governor Edmund Randolph, who also favored a bill of rights, he explained, “The human race is too apt to rush from one extreme to another.… For now, the cry is power; give Congress power, without reflecting that every free nation that hath ever existed has lost its liberty by the same rash impatience and want of necessary caution.”

  Lee admitted that the states had been “unpardonably remiss in furnishing their federal quotas” during the Revolutionary War and that federal taxation had become essential to repaying the public debt. But, taking aim at Washington’s argument for ratification, Lee added, “To say that a bad government must be established for fear of anarchy is really saying that we should kill ourselves for fear of dying!

  If with infinite ease, a convention was obtained to prepare a system, why may not another convention with equal ease be obtained to make proper and necessary amendments?… Bad governments have been generally found the most fixed, so it becomes of… importance to frame the first establishment upon grounds the most unexceptionable… not trusting to time and future events to correct errors that… exist in the present system.2

  Lee again pointed out the dangerous overlapping powers of executive and legislative branches, allowing the President and Senate to share responsibilities over treaty ratification and, even more dangerous, the appointment of all civil and military officers. “This new constitution is in its first principles, most highly and dangerously oligarchic, and it is agreed that a government of the few is, of all governments, the worst.”3

  Lee repeated his criticism of the constitution for its failure to guarantee individual rights, citing British jurist Sir William Blackstone’s volume on individual rights in his Commentaries on the Laws of England. “The most transcendent privilege which any subject can enjoy or wish for,” Blackstone had written, “is that he cannot be affected either in his property, his liberty, or his person but by the unanimous consent of twelve of his neighbors and equals.

  The impartial administration of justice is the great end of society, but if that is entirely entrusted to… a select body of men… selected by the prince or such as enjoy the highest offices of the state [his italics], their decisions, in spite of their own natural integrity, will have frequently an involuntary bias towards those of their own rank and dignity. It is not to be expected from human nature that the few should be always attentive to the many.4

  After the Virginia Gazette published Lee’s letter to Governor Randolph, George Washington bristled, fearing Lee’s remarks would have a “bad influence” in Virginia. But Lee was not alone among American leaders who condemned the constitution as written. New York governor George Clinton, a Revolutionary War hero, warned the citizens of his state in an article for the New York Journal “to recollect that the wisest and best of men [a reference to Washington] may err, and their errors, if adopted, may be fatal to the community.”5

  And after Patrick Henry called the constitution an “extreme danger to… rights, liberty, and happiness,” he wrote to Washington, “I cannot bring my mind in accord with the proposed constitution. The concern I feel on this account is greater than I can express.”6

  Instead of producing a groundswell of opposition to ratification, however, Lee’s campaign for amendments produced a storm of attacks by Federalists, who tarred him with epithets as an enemy of Washington and the nation. At first Lee countered, pointing out that only constitutional amendments could prevent violations of human rights over an extended period. Laws that are passed one year, he argued, can be repealed the next.

  Lee also appealed to George Washington, now titular leader of American Federalists: “In consequence of long reflection upon the nature of man and government,” Lee explained to his old friend, “I am led to fear the danger that will ensue to civil liberty from the adoption of the new system in its present form.” Although he said he agreed to the need for changes in the Articles of Confederation, he insisted that the new constitution gave the federal government too much power. He called a bill of rights essential to secure individual liberties, along with a clause reserving to the states all powers not expressly delegated to the federal government. He called it essential to impose these restrictions before ratification rather than after, by which time a new government may well have assumed dictatorial powers.

  Eager not to undermine his long relationship with Washington, Lee made a special trip to Mount Vernon to ensure that Washington did not take Lee’s criticisms as a personal affront, but he found Washington abrupt and irascible: “The constitution… is not free from imperfections,” the former general admitted, “but there are few radical defects in it… considering the diversity of interests that are to be attended to. As a constitutional door is opened for future amendments… I think it would be wise to accept what is offered.”7

  Other Federalists favoring ratification joined Washington in criticizing Lee, with many leveling vicious personal attacks: “Nothing… can equal the meanness of the Antifederalist junto in America but the low arts of our enemies during the war,” Massachusetts educator Noah Webster opined. “Like them, the Antifederal men are circulating hand bills fraught with sophistry, declamation, and falsehoods to delude the people and excite jealousies.”8 Connecticut Federalist Jeremiah Wadsworth echoed Webster, charging that “a pamphlet is circulating here… written with art and… calculated to do much harm. It came from New York undercover.”9

  The “pamphlet” was, in fact, the first of two that, together, contained eighteen Letters from the Federal Farmer to the Republican (five in the first pamphlet, thirteen in the second). In writing “Farmer’s Letters,” Richard Henry Lee* hoped to have as much of an impact provoking opposition to the Constitution as John Dickinson’s Letters from a Farmer in Pennsylvania had had provoking opposition to British rule.

  Lee’s eighteen letters preceded by three weeks—and, indeed, may have helped provoke—the series of eighty-five essays called, collectively, The Federalist, which Alexander Hamilton, James Madison, and John Jay would write under the pseudonym “Publius”—a reference to Publius Valerius Publicola, a Roman consul from 509 to 507 BC. Some reference works credit Publius with having implemented popular, antimonarchical measures in the early Roman Republic. Hamilton used the pseudonym to avoid accusations of violating the Constitutional Convention’s rule of secrecy.10

  As important as Hamilton’s Federalist in the state-by-state debates over ratification of the Constitution, Lee’s Letters from the Federal Farmer might well have been called The Antifederalist. Together the Letters reiterated and expanded upon his long presentation to Edmund Randolph, adding principles from Blackstone’s Commentaries and Baron de Montesquieu’s De L’Esprit des Lois (The Spirit of the Laws) as well as his own thoughts. The Letters appeared from October 8, 1787, through January 23, 1788, and began with his admission that “our federal system is defective and that some of the state governments are not well administered.”

  Declaring that “a federal government of some sort is necessary,” Lee nonetheless vowed he could not consent to a government “which is not calculated equally to preserve the rights of all orders of men in the community.” In reiterating his deep opposition to slavery, Lee added his objections to election laws that limited voting to men of property and allowed appointed electors to override the popular majority in the selection of a president and vice president.11 Indeed, southerners at the Constitutional Convention had insisted on adding the votes of each US Senator to the electoral college votes for each state. The added votes would give the least populated rural states—at the time, the southern slave states—an advantage in presidential elections over heavily populated urban free states of the north. Indeed, five southern, slave-owning presidents from rural states would win elections for two terms each in ten of the first twelve presidential elections.* In addition, the inequities of the Electoral College would subsequently allow five American presidents into the White House despite their having lost the popular vote: John Quincy Adams (1824); Rutherford B. Hayes (1876)
; Benjamin Harrison (1888); George W. Bush (2000); and Donald J. Trump (2016).

  The Farmer’s individual letters had no titles. Beginning with only the salutation, “DEAR SIR,” Lee’s letters discussed eleven broad topics, sometimes using as many as four letters to elucidate his views on a particularly important topic such as the ratio of representatives to constituents. His other letters discussed what he considered the essentials of free government, the organization of elections, the need for a bill of rights, the division of powers between federal and state governments, and the dangers of a consolidated government. He wrote two letters describing the debates over ratification and two letters each on the powers granted to the executive, legislative, and judiciary branches.

  In the end Lee laid particular stress on the need to be more specific in stating federal government powers, its means of enforcing those powers, and the safeguards against its use of the military. Its powers to tax, he pointed out, mirrored the taxing powers of Parliament that ignited the Revolutionary War. “Congress,” he warned, “will have taxing powers and the people no check.… A power to lay and collect taxes at its discretion is in itself of very great importance. By means of taxes, the government may command the whole or any part of the subject’s property.”12

  Lee also objected to Article 1, Section 8, which gave Congress powers “to make all laws which shall be necessary and proper for carrying into execution… all other powers vested by this constitution in the government of the United States or in any department or officer thereof.”13 It was, he warned, an invitation to tyranny. “In fact, the constitution provides for the states no check… upon the measures of Congress. Congress can immediately enlist soldiers and apply to the pockets of the people.”14

  Lee admitted that “a wise and prudent congress will pay respect to the opinions of a free people” but worried that “a congress of a different character will not be bound… to pay respect to those principles.”15 As for the President, he warned that the constitution created a chief executive who will have “a strong tendency to aristocracy, or the government of the few.

  The executive is, in fact, the president and the senate in all transactions of any importance.… He may always act with the Senate.… We may have for the first president… a great and good man, governed by superior motives, but these are not events to be calculated upon in the present state of human nature.16

  Lee argued that the most likely candidates for high office fall into three categories: the “natural aristocracy” with the time and wealth to assume office, “the substantial and respectable part of the democracy who discern and judge well… [but] are often overlooked,” and the “popular demagogues [who] often have some abilities, [are] without principle, and rise into notice by their noise and arts.”17

  Lee urged that a president be limited to one term in office, saying that a president rendered ineligible for a second term “will be governed by very different considerations.”18

  Lee condemned the constitution’s “strong tendency to aristocracy” and “accumulation of powers especially as to the internal police of the country.” He said the nature of government would limit representatives to “men of the elevated classes” and that “the great body of the people, the middle and lower classes” will seldom be elected to the federal government. Men from the military, he said, presented an especially great danger to the republic if elected to the legislature or the presidency. “A few men may unite to enact laws,” he warned, “and all this may be done constitutionally.”

  Under the proposed constitution, he explained, the Senate would have twenty-six members, with only fourteen required for a quorum. Thus, a mere eight senators from four states with the smallest voting populations—Delaware, Georgia, Kentucky, and Rhode Island, with 56,000 popular votes—could enact laws affecting 4 million Americans and leave the nation with “very little democracy.”19 He predicted that tiny Delaware, a northern slave state, might combine with one other small northern state and with a handful of plantation owners who controlled votes in the South to pass outrageous laws affecting the vast majority of Americans, including indefinite perpetuation of slavery. Only seven of the original thirteen states—three of them among the most heavily populated—were free states: Connecticut, Massachusetts, Rhode Island, New Hampshire, New Jersey, New York, and Pennsylvania. Together, however, they did not command the 60 percent majority required to control Senate voting.

  Nor did the House of Representatives—the so-called People’s House—provide a remedy, Lee argued. With but one representative for every 30,000 eligible voters, “there can be but little personal knowledge, or but few communications, between him and the people at large.… Mixing only with the respectable men, he will get the best information and ideas from them; he will also receive impressions favorable to their purposes particularly.20

  “This proves,” he declared, “that we cannot form one general government on equal and just principles—and proves that we ought not to lodge in it such extensive powers before we are convinced of the practicality of organizing it on just and equal principles.

  We are not like the people of England, one people compactly settled on a small island, with a great city filled with frugal merchants, serving as a common center of liberty and union. We are dispersed, and it is impracticable for any but the few to assemble in one place. The few must be watched, checked, and often resisted. Tyranny has ever shown a predilection to be in close amity with them.… Laws which were to be equal to all are soon warped into the private interests of the administrators and made to defend the usurpations of a few.21

  Lee argued that the constitution as written might well serve a small republic such as Connecticut, where voters could choose enough representatives familiar with the entire state able to weigh the interests of the state against the interests of any particular community. But a representative from central Georgia could hardly act in the best interests of the people of Connecticut—or Boston, for that matter, or Lancaster, Pennsylvania.

  “A man that is known among a few thousand people may be quite unknown among thirty or forty thousand,” he explained. “When we call on thirty or forty thousand… to unite in giving their votes for one man, it will be uniformly impracticable to unite in any men except those few who have become eminent for their civil or military rank… the men who form the natural aristocracy… [or] popular demagogues.”22 He equated the power to tax with the power to confiscate private property and the power to muster the army as the power to oppress. Lee called the constitution, as written, a radical departure from republican principles and all but certain to produce rule by oligarchs—if not a single monarch.

  Congress will have taxing powers and the people no check.… The constitution provides for the states no check.… The House of representatives in fifty or a hundred years will consist of several hundred members.… They and their friends will find it for their interests to keep up large armies, navies, salaries, & c., and in laying adequate taxes.… We ought, therefore, on every principle now to fix government on proper principles.23

  Lee called on the states to postpone consideration of the constitution and convene a second convention to improve on it or write an entirely new document that would divide governing responsibilities more equitably between state governments and a strengthened confederation congress.

  “It is natural for men who wish to hasten the adoption of a measure,” he declared, “to tell us now is the crisis—now is the critical moment which must be seized or all is lost.… This has been the custom of tyrants and their dependents in all ages.” Scoffing at such arguments, he insisted over and again that what had been written in four months could most certainly be rewritten and improved in another four months. With the nation at peace, facing no threats from beyond its borders, there was no reason not to reconsider the constitution as written. The authors of the constitution had met originally, he argued, to amend the Articles of Confederation. “Not a word was said about destroying the old constitution and making a new one.�
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  “He was not a lawyer by profession,” the future Attorney General William Wirt said of Richard Henry Lee, “but he understood thoroughly the Constitution, both of the mother country and of her colonies; and the elements also of civil and municipal law.”

  Lee, of course, had been as frustrated as Washington by Congress’s inability to raise money, troops, arms, ammunition, and supplies for the common cause during the Revolution. Clearly he and other members of the Continental Congress had erred in the design of government under the Articles of Confederation. But in granting the central government more powers, he declared, the Constitutional Convention had made a flagrant error in failing to protect individual liberties. With the publication of his Federal Farmer, therefore, Richard Henry Lee became the First of the Founding Fathers to demand incorporation of a comprehensive Bill of Rights in any new constitution. To compensate for what he called “a government where the purse and sword and all important powers are proposed to be lodged,” he called for the following guarantees for all citizens:

  The right to trial by jury in civil as well as criminal cases;

  Security against ex post facto laws;

  The benefits of habeas corpus;

  The freedom of the press is a fundamental right and ought not to be restrained by any taxes, duties or in any manner whatever.

  No man shall be held to answer to any offense till the same be fully described to him, nor to furnish evidence against himself.