Chapter XIX: The After-Fight for Amendments

Thus, on the question of adopting the new Constitution, the fight was over; but on the question of amending that Constitution, now that it had been adopted, the fight, of course, was only just begun.

For how could this new Constitution be amended? A way was provided,--but an extremely strait and narrow way. No amendment whatsoever could become valid until it had been accepted by three fourths of the States; and no amendment could be submitted to the States for their consideration until it had first been approved, either by two thirds of both houses of Congress, or else by a majority of a convention specially called by Congress at the request of two thirds of the States.

Clearly, the framers of the Constitution intended that the supreme law of the land, when once agreed to, should have within it a principle of fixedness almost invincible. At any rate, the process by which alone alterations can be made, involves so wide an area of territory, so many distinct groups of population, and is withal, in itself, so manifold and complex, so slow, and so liable to entire stoppage, that any proposition looking toward change must inevitably perish long before reaching the far-away goal of final endorsement, unless that proposition be really impelled by a public demand not only very energetic and persistent, but well-nigh universal. Indeed, the constitutional provision for amendments seemed, at that time, to many, to be almost a constitutional prohibition of amendments.

It was, in part, for this very reason that Patrick Henry had urged that those amendments of the Constitution which, in his opinion, were absolutely necessary, should be secured before its adoption, and not be left to the doubtful chance of their being obtained afterward, as the result of a process ingeniously contrived, as it were, to prevent their being obtained at all. But at the close of that June day on which he and his seventy-eight associates walked away from the convention wherein, on this very proposition, they had just been voted down, how did the case stand? The Constitution, now become the supreme law of the land, was a Constitution which, unless amended, would, as they sincerely believed, effect the political ruin of the American people. As good citizens, as good men, what was left for them to do? They had fought hard to get the Constitution amended before adoption. They had failed. They must now fight hard to get it amended after adoption. Disastrous would it be, to assume that the needed amendments would now be carried at any rate. True, the Virginia convention, like the conventions of several other States, had voted to recommend amendments. But the hostility to amendments, as Patrick Henry believed, was too deeply rooted to yield to mere recommendations. The necessary amendments would not find their way through all the hoppers and tubes and valves of the enormous mill erected within the Constitution, unless forced onward by popular agitation,--and by popular agitation widespread, determined, vehement, even alarming. The powerful enemies of amendments must be convinced that, until amendments were carried through that mill, there would be no true peace or content among the surrounding inhabitants.

This gives us the clew to the policy steadily and firmly pursued by Patrick Henry as a party leader, from June, 1788, until after the ratification of the first ten amendments, on the 15th of December, 1791. It was simply a strategic policy dictated by his honest view of the situation; a bold, manly, patriotic policy; a policy, however, which was greatly misunderstood, and grossly misrepresented, at the time; a policy, too, which grieved the heart of Washington, and for several years raised between him and his ancient friend the one cloud of distrust that ever cast a shadow upon their intercourse.

In fact, at the very opening of the Virginia convention, and in view of the possible defeat of his demand for amendments, Patrick Henry had formed a clear outline of this policy, even to the extent of organizing throughout the State local societies for stirring up, and for keeping up, the needed agitation. All this is made evident by an important letter written by him to General John Lamb of New York, and dated at Richmond, June 9, 1788,--when the convention had been in session just one week. In this letter, after some preliminary words, he says:--

It is matter of great consolation to find that the
sentiments of a vast majority of Virginians are in unison
with those of our Northern friends. I am satisfied four
fifths of our inhabitants are opposed to the new scheme of
government. Indeed, in the part of this country lying south
of James River, I am confident, nine tenths are opposed to
it. And yet, strange as it may seem, the numbers in
convention appear equal on both sides: so that the majority,
which way soever it goes, will be small. The friends and
seekers of power have, with their usual subtilty, wriggled
themselves into the choice of the people, by assuming shapes
as various as the faces of the men they address on such
occasions.

If they shall carry their point, and preclude previous
amendments, which we have ready to offer, it will become
highly necessary to form the society you mention. Indeed, it
appears the only chance for securing a remnant of those
invaluable rights which are yielded by the new plan. Colonel
George Mason has agreed to act as chairman of our republican
society. His character I need not describe. He is every way
fit; and we have concluded to send you by Colonel Oswald a
copy of the Bill of Rights, and of the particular amendments
we intend to propose in our convention. The fate of them is
altogether uncertain; but of that you will be informed. To
assimilate our views on this great subject is of the last
moment; and our opponents expect much from our dissension.
As we see the danger, I think it is easily avoided.

I can assure you that North Carolina is more decidedly
opposed to the new government than Virginia. The people
there seem rife for hazarding all, before they submit.
Perhaps the organization of our system may be so contrived
as to include lesser associations dispersed throughout the
State. This will remedy in some degree the inconvenience
arising from our dispersed situation. Colonel Oswald's short
stay here prevents my saying as much on the subject as I
could otherwise have done. And after assuring you of my
ardent wishes for the happiness of our common country, and
the best interests of humanity, I beg leave to subscribe
myself, with great respect and regard,

Sir, your obedient, humble servant,
P. HENRY.[398]

On the 27th of June, within a few hours, very likely, after the final adjournment of the convention, Madison hastened to report to Washington the great and exhilarating result, but with this anxious and really unjust surmise respecting the course then to be pursued by Patrick Henry:--

"Mr. H----y declared, previous to the final question, that
although he should submit as a quiet citizen, he should
seize the first moment that offered for shaking off the yoke
in a constitutional way. I suspect the plan will be to
encourage two thirds of the legislatures in the task of
undoing the work; or to get a Congress appointed in the
first instance that will commit suicide on their own
authority."[399]

At the same sitting, probably, Madison sent off to Hamilton, at New York, another report, in which his conjecture as to Patrick Henry's intended policy is thus stated:--

"I am so uncharitable as to suspect that the ill-will to the
Constitution will produce every peaceable effort to disgrace
and destroy it. Mr. Henry declared ... that he should wait
with impatience for the favorable moment of regaining, in a
constitutional way, the lost liberties of his country."[400]

Two days afterward, by which time, doubtless, Madison's letter had reached Mount Vernon, Washington wrote to Benjamin Lincoln of Massachusetts, respecting the result of the convention:--

"Our accounts from Richmond are that ... the final decision
exhibited a solemn scene, and that there is every reason to
expect a perfect acquiescence therein by the minority. Mr.
Henry, the great leader of it, has signified that, though he
can never be reconciled to the Constitution in its present
form, and shall give it every constitutional opposition in
his power, yet he will submit to it peaceably."[401]

Thus, about the end of June, 1788, there came down upon the fierce political strife in Virginia a lull, which lasted until the 20th of October, at which time the legislature assembled for its autumnal session. Meantime, however, the convention of New York had adopted the Constitution, but after a most bitter fight, and by a majority of only three votes, and only in consequence of the pledge that every possible effort should be made to obtain speedily those great amendments that were at last called for by a determined public demand. One of the efforts contemplated by the New York convention took the form of a circular letter to the governors of the several States, urging almost pathetically that "effectual measures be immediately taken for calling a convention" to propose those amendments which are necessary for allaying "the apprehensions and discontents" then so prevalent.[402]

This circular letter "rekindled," as Madison then wrote to Jefferson, "an ardor among the opponents of the federal Constitution for an immediate revision of it by another general convention, ... Mr. Henry and his friends in Virginia enter with great zeal into the scheme."[403] In a letter written by Washington, nearly a month before the meeting of the legislature, it is plainly indicated that his mind was then grievously burdened by the anxieties of the situation, and that he was disposed to put the very worst construction upon the expected conduct of Patrick Henry and his party in the approaching session:--

"Their expedient will now probably be an attempt to procure
the election of so many of their own junto under the new
government, as, by the introduction of local and
embarrassing disputes, to impede or frustrate its
operation.... I assure you I am under painful apprehensions
from the single circumstance of Mr. H. having the whole game
to play in the Assembly of this State; and the effect it may
have in others should be counteracted if possible."[404]

No sooner had the Assembly met, than Patrick Henry's ascendency became apparent. His sway over that body was such that it was described as "omnipotent." And by the time the session had been in progress not quite a month, Washington informed Madison that "the accounts from Richmond" were "very unpropitious to federal measures." "In one word," he added, "it is said that the edicts of Mr. H. are enregistered with less opposition in the Virginia Assembly than those of the grand monarch by his parliaments. He has only to say, Let this be law, and it is law."[405] Within ten days from the opening of the session, the House showed its sensitive response to Patrick Henry's leadership by adopting a series of resolutions, the chief purpose of which was to ask Congress to call immediately a national convention for proposing to the States the required amendments. In the debate on the subject, he is said to have declared "that he should oppose every measure tending to the organization of the government, unless accompanied with measures for the amendment of the Constitution."[406]

Some phrases in one of his resolutions were most offensive to those members of the House who had "befriended the new Constitution," and who, by implication at least, were held forth as "betrayers of the dearest rights of the people." "If Mr. Henry pleases," so wrote a correspondent of Washington, "he will carry the resolution in its present terms, than which none, in my opinion, can be more exceptionable or inflammatory; though, as he is sometimes kind and condescending, he may perhaps be induced to alter it."[407]

In accordance with these resolutions, a formal application to Congress for a national convention was prepared by Patrick Henry, and adopted by the House on the 14th of November. Every word of that document deserves now to be read, as his own account of the spirit and purpose of a measure then and since then so profoundly and so cruelly misinterpreted:--

"The good people of this commonwealth, in convention
assembled, having ratified the Constitution submitted to
their consideration, this legislature has, in conformity to
that act, and the resolutions of the United States in
Congress assembled to them transmitted, thought proper to
make the arrangements that were _necessary_ for carrying it
into effect. Having thus shown themselves obedient to the
voice of their constituents, all America will find that, so
far as it depends on them, that plan of government will be
carried into immediate operation.

"But the sense of the people of Virginia would be but in
part complied with, and but little regarded, if we went no
further. In the very moment of adoption, and coeval with the
ratification of the new plan of government, the general
voice of the convention of this State pointed to objects no
less interesting to the people we represent, and equally
entitled to your attention. At the same time that, from
motives of affection for our sister States, the convention
yielded their assent to the ratification, they gave the most
unequivocal proofs that they dreaded its operation under the
present form.

"In acceding to a government under this impression, painful
must have been the prospect, had they not derived
consolation from a full expectation of its imperfections
being speedily amended. In this resource, therefore, they
placed their confidence,--a confidence that will continue to
support them whilst they have reason to believe they have
not calculated upon it in vain.

"In making known to you the objections of the people of this
Commonwealth to the new plan of government, we deem it
unnecessary to enter into a particular detail of its
defects, which they consider as involving all the great and
unalienable rights of freemen: for their sense on this
subject, we refer you to the proceedings of their late
convention, and the sense of this General Assembly, as
expressed in their resolutions of the day of .

"We think proper, however, to declare that in our opinion,
as those objections were not founded in speculative theory,
but deduced from principles which have been established by
the melancholy example of other nations, in different ages,
so they will never be removed until the cause itself shall
cease to exist. The sooner, therefore, the public
apprehensions are quieted, and the government is possessed
of the confidence of the people, the more salutary will be
its operations, and the longer its duration.

"The cause of amendments we consider as a common cause; and
since concessions have been made from political motives,
which we conceive may endanger the republic, we trust that a
commendable zeal will be shown for obtaining those
provisions which, experience has taught us, are necessary to
secure from danger the unalienable rights of human nature.

"The anxiety with which our countrymen press for the
accomplishment of this important end, will ill admit of
delay. The slow forms of congressional discussion and
recommendation, if indeed they should ever agree to any
change, would, we fear, be less certain of success. Happily
for their wishes, the Constitution hath presented an
alternative, by admitting the submission to a convention of
the States. To this, therefore, we resort, as the source
from whence they are to derive relief from their present
apprehensions. We do, therefore, in behalf of our
constituents, in the most earnest and solemn manner, make
this application to Congress, that a convention be
immediately called, of deputies from the several States,
with full power to take into their consideration the defects
of this Constitution, that have been suggested by the state
conventions, and report such amendments thereto, as they
shall find best suited to promote our common interests, and
secure to ourselves and our latest posterity the great and
unalienable rights of mankind."[408]

Such was the purpose, such was the temper, of Virginia's appeal, addressed to Congress, and written by Patrick Henry, on behalf of immediate measures for curing the supposed defects of the Constitution. Was it not likely that this appeal would be granted? One grave doubt haunted the mind of Patrick Henry. If, in the elections for senators and representatives then about to occur in the several States, very great care was not taken, it might easily happen that a majority of the members of Congress would be composed of men who would obstruct, and perhaps entirely defeat, the desired amendments. With the view of doing his part towards the prevention of such a result, he determined that both the senators from Virginia, and as many as possible of its representatives, should be persons who could be trusted to help, and not to hinder, the great project.

Accordingly, when the day came for the election of senators by the Assembly of Virginia, he just stood up in his place and named "Richard Henry Lee and William Grayson, Esquires," as the two men who ought to be elected as senators; and, furthermore, he named James Madison as the one man who ought not to be elected as senator. Whereupon the vote was taken; "and after some time," as the journal expresses it, the committee to examine the ballot-boxes "returned into the House, and reported that they had ... found a majority of votes in favor of Richard Henry Lee and William Grayson, Esquires."[409] On the 8th of December, 1788, just one month afterward, Madison himself, in a letter to Jefferson, thus alluded to the incident: "They made me a candidate for the Senate, for which I had not allotted my pretensions. The attempt was defeated by Mr. Henry, who is omnipotent in the present legislature, and who added to the expedients common on such occasions a public philippic against my federal principles."[410]

Virginia's delegation in the Senate was thus made secure. How about her delegation in the lower house? That, also, was an affair to be sharply looked to. Above all things, James Madison, as the supposed foe of amendments, was to be prevented, if possible, from winning an election. Therefore the committee of the House of Delegates, which was appointed for the very purpose, among other things, of dividing the State into its ten congressional districts, so carved out those districts as to promote the election of the friends of the good cause, and especially to secure, as was hoped, the defeat of its great enemy. Of this committee Patrick Henry was not a member; but as a majority of its members were known to be his devoted followers, very naturally upon him, at the time, was laid the burden of the blame for practising this ignoble device in politics,--a device which, when introduced into Massachusetts several years afterward, also by a Revolutionary father, came to be christened with the satiric name of "gerrymandering." Surely it was a rare bit of luck, in the case of Patrick Henry, that the wits of Virginia did not anticipate the wits of Massachusetts by describing this trick as "henrymandering;" and that he thus narrowly escaped the ugly immortality of having his name handed down from age to age in the coinage of a base word which should designate a base thing,--one of the favorite, shabby manoeuvres of less scrupulous American politicians.[411]

Thus, however, within four weeks from the opening of the session, he had succeeded in pressing through the legislature, in the exact form he wished, all these measures for giving effect to Virginia's demand upon Congress for amendments. This being accomplished, he withdrew from the service of the House for the remainder of the session, probably on account of the great urgency of his professional engagements at that time. The journal of the House affords us no trace of his presence there after the 18th of November; and although the legislature continued in session until the 13th of December, its business did not digress beyond local topics. To all these facts, rather bitter allusion is made in a letter to the governor of New Hampshire, written from Mount Vernon, on the 31st of January, 1789, by the private secretary of Washington, Tobias Lear, who thus reflected, no doubt, the mood of his chief:--

"Mr. Henry, the leader of the opposition in this State,
finding himself beaten off the ground by fair argument in
the state convention, and outnumbered upon the important
question, collected his whole strength, and pointed his
whole force against the government, in the Assembly. He here
met with but a feeble opposition.... He led on his almost
unresisted phalanx, and planted the standard of hostility
upon the very battlements of federalism. In plain English,
he ruled a majority of the Assembly; and his edicts were
registered by that body with less opposition than those of
the Grand Monarque have met with from his parliaments. He
chose the two senators.... He divided the State into
districts, ... taking care to arrange matters so as to have
the county, of which Mr. Madison is an inhabitant, thrown
into a district of which a majority were supposed to be
unfriendly to the government, and by that means exclude him
from the representative body in Congress. He wrote the
answer to Governor Clinton's letter, and likewise the
circular letter to the executives of the several States....
And after he had settled everything relative to the
government wholly, I suppose, to his satisfaction, he
mounted his horse and rode home, leaving the little business
of the State to be done by anybody who chose to give
themselves the trouble of attending to it."[412]

How great was the effect of these strategic measures, forced by Patrick Henry through the legislature of Virginia in the autumn of 1788, was not apparent, of course, until after the organization of the first Congress of the United States, in the spring of 1789. Not until the 5th of May could time be found by that body for paying the least attention to the subject of amendments. On that day Theodoric Bland, from Virginia, presented to the House of Representatives the solemn application of his State for a new convention; and, after some discussion, this document was entered on the journals of the House.[413] The subject was then dropped until the 8th of June, when Madison, who had been elected to Congress in spite of Patrick Henry, and who had good reason to know how dangerous it would be for Congress to trifle with the popular demand for amendments, succeeded, against much opposition, in getting the House to devote that day to a preliminary discussion of the business. It was again laid aside for nearly six weeks, and again got a slight hearing on the 21st of July. On the 13th of August it was once more brought to the reluctant attention of the House, and then proved the occasion of a debate which lasted until the 24th of that month, when the House finished its work on the subject, and sent up to the Senate seventeen articles of amendment. Only twelve of these articles succeeded in passing the Senate; and of these twelve, only ten received from the States that approval which was necessary to their ratification. This was obtained on the 15th of December, 1791.

The course thus taken by Congress, in itself proposing amendments, was not at the time pleasing to the chiefs of that party which, in the several States, had been clamorous for amendments.[414] These men, desiring more radical changes in the Constitution than could be expected from Congress, had set their hearts on a new convention,--which, undoubtedly, had it been called, would have reconstructed, from top to bottom, the work done by the convention of 1787. Yet it should be noticed that the ten amendments, thus obtained under the initiative of Congress, embodied "nearly every material change suggested by Virginia;"[415] and that it was distinctly due, in no small degree, to the bitter and implacable urgency of the popular feeling in Virginia, under the stimulus of Patrick Henry's leadership, that Congress was induced by Madison to pay any attention to the subject. In the matter of amendments, therefore, Patrick Henry and his party did not get all that they demanded, nor in the way that they demanded; but even so much as they did get, they would not then have got at all, had they not demanded more, and demanded more, also, through the channel of a new convention, the dread of which, it is evident, drove Madison and his brethren in Congress into the prompt concession of amendments which they themselves did not care for. Those amendments were really a tub to the whale; but then that tub would not have been thrown overboard at all, had not the whale been there, and very angry, and altogether too troublesome with his foam-compelling tail, and with that huge head of his which could batter as well as spout.

FOOTNOTES:

[398] Leake, _Life of Gen. John Lamb_, 307-308.

[399] Madison, _Letters_, etc. i. 402.

[400] _Works of Hamilton_, i. 463.

[401] _Writings of Washington_, ix. 392.

[402] Elliot, _Debates_, ii. 414.

[403] Madison, _Letters_, etc. i. 418.

[404] _Writings of Washington_, ix. 433.

[405] Bancroft, _Hist. Const._ ii. 483.

[406] _Corr. Rev._ iv. 240-241.

[407] _Ibid._ iv. 241.

[408] _Jour. Va. House Del._ 42-43.

[409] _Jour. Va. House Del._ 32.

[410] Madison, _Letters_, etc., i. 443-444.

[411] For contemporary allusions to this first example of gerrymandering, see _Writings of Washington_, ix. 446-447; _Writings of Jefferson_, ii. 574; Rives, _Life of Madison_, ii. 653-655; Bancroft, _Hist. Const._ ii. 485.

[412] Bancroft, _Hist. Const._ ii. 488-489.

[413] Gales, _Debates_, i. 258-261.

[414] Marshall, _Life of Washington_, v. 209-210; Story, _Const._ i. 211.

[415] Howison, _Hist. Va._ ii. 333.