32. The Battle for Virginia

The Virginia contest was definitely close. For once, here was a state where ability, wealth, influence, and leadership were evenly distributed on both sides. Thus, James Madison ruefully learned that most of the judges and the bar opposed the Constitution. More important was the fact that the Antifederal forces were led by men of immense prestige and ability: Patrick Henry, George Mason, Richard Henry Lee, Benjamin Harrison, and Governor Edmund Randolph. On the Federal side were James Madison, Edmund Pendleton, George Wythe, Henry Lee, and above all the enormously prestigious George Washington. For Washington, the stakes were high because without Virginia’s ratification, there was no chance that he could become the nation’s first president. In France, Thomas Jefferson dithered and wavered in the middle, but formally came out for the Constitution when the Massachusetts Federalists adopted the program of supplementing amendments along with ratification.

The Antifederalists, although strong in the state legislature, decided not to block the Constitution, and a convention was called for the designedly late date of June 2 to allow time to organize opposition. Moreover, Henry and Mason managed to include with the call a recommendation for a second federal convention to consider amendments. In the storm of the public debate and organization preceding the convention, the immensely popular and formidable Patrick Henry assumed the leadership of the Antifederalist forces, ably seconded by the great George Mason, whose Objections to the Constitution received wide circulation throughout the state. The best known Antifederal pamphlet of the ratification period was the Letters from the Federal Farmer, published as five letters in October 1787, and then as a pamphlet that earned wide distribution throughout the country. Protesting his devotion to the “protection of property,” Richard Henry Lee added that he could “consent to no government, which … is not calculated equally to preserve the rights of all orders of men in the community.” He attacked the Constitution as establishing “one consolidated government,” granting Congress undiluted powers “over the purse and the sword” and lacking a bill of rights for individual liberty. However, the writer revealed himself as a moderate who was ready to scrap the Articles of Confederation and accept a system of “partial consolidation.”19

A particularly astute article was published by a brilliant young Antifederalist lawyer Spencer Roane. Roane detected ambivalence and ambiguities in Edmund Randolph’s published objections to the Constitution. To Roane the whole piece sounded like a defense. In calling for a bill of rights, Roane also coined a telling phrase about the Constitution: “A Constitution ought to be like Caesar’s wife, not only good, but unsuspected, since it is the highest compact which men are capable of forming, and involves the dearest rights of life, liberty and property.”

Patrick Henry was much fierier than Lee and hinted at disunion rather than to subscribe to the Constitution. Between them, Henry, Mason, and Lee championed Antifederalist opinion throughout the state in defiance of the nine states that had ratified. Furthermore, the New York Antifederalists had organized a Federal Republican Committee in New York City, from which the doughty old radical and Son of Liberty General John Lamb was able to connect with Antifederals in New Hampshire and Virginia. But in the meanwhile, Governor Randolph, while claiming to be Antifederalist, had secretly begun his course of betrayal and sellout of a cause which he himself had helped launch by refusing to sign the Constitution. When Governor Clinton of New York, the great leader of Antifederalism in his state, wrote in early May to Randolph to propose coordination of strategy to insist on a bill-of-rights amendment prior to ratification, Randolph suppressed the letter at the Virginia convention, and this killed chances of cooperation between the liberals of the two great states. It was an act properly and trenchantly denounced by George Mason as “duplicity.” One can suspect that the reason for Randolph’s defection was as simple as the reason of Governor Hancock for his: whereas the Federalists promised Hancock the presidency or vice-presidency, they lured Randolph with some prominent position in the new government. The only difference, of course, is that in the case of Randolph they followed through, and President Washington rewarded his old friend with the position of Attorney General.

The Federalists, for their part, were beginning to realize with great reluctance that there would be no chance of ratifying without the corollary adoption—as in Massachusetts, but far more solemnly—of a set of bill-of-rights amendments to the Constitution. There was, of course, a vast gulf between such a concession to the Antifederalists strategy of insisting on a bill of rights prior to any ratification. The Federalists, however, did seem to realize initially the zeal of many leading Antifederalists for broad and total opposition to the Constitution.20

The key to the voting in Virginia was the geographical-economic structure of Virginia society. Virginia’s sectional division was not, as in the case of such other states as Massachusetts or South Carolina, a simple case of the coastal east versus the western interior. Instead, its navigational area comprised not only the seacoast but also the peninsula and valleys formed by the Potomac, Rappahannock, York, and James Rivers. It was along these river valleys, navigable a long way inland, that the great slave-owning plantations—the great Virginia oligarchy—were formed. This condition was particularly intense in the Northern Neck, where a large and long-lasting monopoly land-grant system had imposed a quasi-feudal community of particularly large plantations with tenants and slaves. It has, furthermore, been a great mistake of historians to regard the great southern planters as non- or anti-commerce. While it is true that there were no great urban ports in the states, the southern planters were very conscious of their dependency on the export staple of tobacco and their intimate tie-in with the southern trade. Furthermore, the navigable rivers permitted boats to dock directly at the planters’ wharves. 

A contrasting sector was the large area south of the James River and back of the actual coast, “Southside Virginia.” Not located near navigable streams, the Southside was a prosperous area of small middling-sized farmers with a small number of slaves apiece, rather than of vast plantations. Removed from navigation and commerce, the Southside also had far more equality in distribution of land, slaves, and property.

As in the other states of the Union, the commercial sections tended to be Federalist and conservative, and the non-commercial Antifederalist and liberal. In Virginia, these two sections tended to offset each other east of the Blue Ridge Mountains, generally giving the western areas a balance of power. The West, for its part, comprised three basic sectors: the Shenandoah Valley, the “Alleghany” region further west constituting modern-day West Virginia, and the Kentucky settlements in the southwest. The Valley consisted of a wide distribution of smaller farmers than the Southlands, but on the other hand, its farmers shipped a large agricultural supply down the Potomac to Alexandria and across land to Maryland, and were thus tied strongly into the commercial world. Kentucky was preoccupied with the problem of the Mississippi and the Alleghany country, now West Virginia, with the problem of the Northwest frontier. 

In the Virginia election, the Federalists predictably swept the river valleys, and the Antifederalists, the Southside by about roughly the same overwhelming majorities. Typical of the great sentiment against the Constitution, in the Southside was the roughly 23:1 majority in Amherst County. In contrast, the Northern Neck elected nineteen Federal delegates to five opposed. The other river-valley counties largely supported the Constitution as well, with some exceptions, especially among inland counties. Altogether, the Antifederalists had east of the Blue Ridge by over a dozen delegates.

The tale would be told in the West. Kentucky, bitterly opposed to the North’s attempt in the Jay-Gardoqui Treaty to abandon the Mississippi River to Spain, and still intriguing with Spain, voted almost solidly for the Antifederalists (ten delegates out of twelve). The Federalists, however, swept the Shenandoah Valley, its interests tied into the Potomac River, by at least as great a margin as in the river-valley strongholds, capturing every single delegate from the Shenandoah. How tied in they were may be gauged by the fact that many of the Valley delegates were active in projects for imposing navigation on the Potomac River.

This left the odds about even, with the balance ready to be tipped by the frontier settlements of the seven counties of the Allegheny area. In the past, this land of small non-commercial slave-less farmers had overwhelmingly supported the Southside liberals on Virginia and Confederate issues. In a sense, this remarkable turnaround of the Allegheny counties was the main factor that tipped the scale in this tight contest over the Constitution, for the thirteen Allegheny delegates ended by voting almost unanimously for the Constitution. What, then, was the factor that overrode the natural tendency of the western Virginians to support liberalism and Antifederalism? The reason was their frontier concern over the British retention of the Northwest forts along their western border, and it was their desire to see a strong national government adopt an aggressive foreign political and economic policy that would drive the British out of the Northwest that led the Alleghenians to succumb to Federalism.

There was little class difference, in the case of Virginia, between the Federal and Antifederal delegates. Not only were the current leaders of the state rather equally divided, but the wealth advantage of the eastern river counties was offset by the particularly modest means of the Federal delegates from the West. As in the other states, the Antifederal counties tended understandably and proudly to pick as delegates the wealthiest and most prominent members of their locality who could often match the Federalists. However, it is significant to note that more of the delegates who owned at least fifty slaves were Federal (twenty-six out of forty-one), more Federalists held state and federal securities (twice as many), and Federalists were roughly two-thirds of the state’s richest men. Overall though, the split in Virginia was sectional (commercial versus non-commercial) rather than economic class in the conventional sense.

The delegates probably entered the Virginia convention about equally divided, with perhaps a very slight Federal majority, but in such a close contest there were a handful of waverers from the West and elsewhere who could tip the balance either way. Yet, despite this equality at the convention, it is generally conceded that a comfortable majority of Virginians, even of eligible Virginia voters, opposed the Constitution. The proportion has been estimated as 60 percent or more Antifederal. The overrepresentation of eastern counties, of course, helped outweigh the popular majority, but the Virginia legislature with the same representation would still remain Antifederal throughout 1787 and 1788. The main differential, then, came from Antifederal counties whose delegates deserted the wishes of their constituents and voted to support the Constitution. Two processes were partially at work here: Antifederal voters who choose eminent local dignitaries even though they were Federalist, and delegates chosen as Antifederalist who betrayed their trust. But even in the former case, the delegates who persisted in voting contrary to the wishes of their electorate were, in a profound sense, betraying the democratic process. They were, in effect, choosing oligarchy (doing things by their own will over the voters’ will), instead of democracy (representing the voters as best they could).

On the final vote, delegates from at least four Antifederal counties chose to vote against the views of their principals at home. They were the brilliant young Federalist lawyer John Marshall from Henrico County, at least two direct cases of treachery by delegates elected as Antifederalists who then shifted at the convention (Humphrey Marshall from Kentucky and William Ronald of Powhatan in the Southside), and above all, Governor Randolph of Heinrico County, who had acted to betray his supposed Antifederal allies as well as his constituency. Since a shift of four or five votes would have defeated the Constitution, the defections were particularly decisive.

Another factor influencing delegates for the Constitution was not so much important in itself as in foreshadowing an ugly blackmail threat that was to prove decisive in the conventional adoption of the Constitution. Early in the ratification struggle, news circulated that Northern Neck would secede from the state if Virginia refused to ratify—presumably into the new Union on its own. In the last analysis it becomes all too apparent that one of the major factors that tipped the scale to the Federalists—throughout the Union—was superior gall, greater intensity of belief, and a greater willingness to take extreme measures to have their way. This is not of course surprising, since the Antifederalists were generally more moderate and passive men defending the status quo, or half-hearted compromise measures, while the Federalists were the ideological “aggressors” in the struggle and were thus more interested in bringing about their veritable counterrevolution.21

The Virginia convention opened on June 2 at Richmond and was filled with visitors from the entire nation. Almost on cue, it opened on a note of high perfidy as Governor Randolph suddenly revealed himself as a Federalist and reversed his previous stand. Randolph’s betrayal undoubtedly influenced many uncertain delegates. Of the top leadership, all were there except Lee, who would not attend but continued to exert an influence, and Washington, who preferred to exert pressure from the outside.

The debates at the convention were lengthy and celebrated, with the Constitution being assessed in detail at the behest of the opposition. As usual, however, the convention reporter was a Federalist who might well have suppressed news and disturbed some of the Antifederal voting. Patrick Henry, taking the lead of the Antifederal forces, was a host unto himself: tireless, fiery, ideological, hard-hitting, and superbly eloquent. Moreover, he was a gifted orator, and the Federalists knew it. It was the Patrick Henry, the revolutionary born again. Of the Antifederal movement, Patrick Henry was one of the few leaders who did not suffer from the enfeeblement of moderation and who had the fire and the spirit and the conviction to dare to be an “extremist.” To Henry, it was immaterial that other states had ratified: “I declare,” he thundered, “that if twelve states and a half had adopted it, I would with manly firmness, and in spite of an erring world, reject it.” Again, in the course of arguing for a guarantee of trial by jury, Henry warned: “Old as I am, it is probable I may yet have the appellation of rebel,” and he prophetically called for the menace of “congressional oppression” to be “crushed in embryo.”

Henry centered his attack, as did the other Antifederalists, on the grave absence of a bill of rights. A consolidated national government lacking such guarantees, he charged, was a betrayal of the spirit of the American Revolution. The Federalists often scoffed at the old libertarian ideals of the Revolution as old fashioned, good for their time, but outdated in the progressive days of 1788. Henry was not afraid to be scoffed at:

But I am fearful I have lived long enough to become an old-fashioned fellow. Perhaps an invincible attachment to the dearest rights of man may, in these refined, enlightened days, be deemed old-fashioned; if so, I am contented to be so.

Henry keenly recognized that what they were facing was “a revolution as radical as that which separated us from Great Britain.” Here was a plan, concocted in secret, for a consolidated government infringing on American liberty. Henry warned:

Twenty-three years ago was I supposed a traitor to my country? I was then said to be the bane of sedition, because I supported the rights of my country. I may be thought suspicious when I say our privileges and rights are in danger. … Guard with jealous attention the public liberty. Suspect every one who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are inevitably ruined. … Consider what you are about to do before you part with the government. Take longer time in reckoning things; revolutions like this have happened in almost every country in Europe; similar examples are to be found in ancient Greece and ancient Rome—instances of the people losing their liberty by their own carelessness and the ambition of a few.

Henry also brilliantly perceived that the essence of the great epochal struggle between the two camps was between Liberty and Power, or, more specifically, between liberty and national empire:

You are not to inquire how your trade may be increased, nor how you are to become a great and powerful people, but how your liberties can be secured; for liberty ought to be the direct end of your government. … Will the abandonment of your most sacred rights [e.g., trial by jury, freedom of the press] tend to the security of your liberty? Liberty, the greatest of all earthly blessings—give us that precious jewel, and you may take every thing else! …
    Shall we imitate the example of those nations who have gone from a simple to a splendid government? Are those nations more worthy of our imitation? What can make an adequate satisfaction to them for the loss they have suffered in attaining such a government—for the loss of their liberty? If we admit this consolidated government, it will be because we like a great, splendid one. Some way or other we must be a great and mighty empire; we must have an army, and a navy … When the American spirit was in its youth, the language of America was different: liberty, sir, was then the primary object. … But now, sir, the American spirit, assisted by the ropes and chains of consolidation, is about to convert this country into a powerful and mighty empire. … Such a government is incompatible with the genius of republicanism. There will be no checks, no real balances, in this government. What can avail your specious, imaginary balances, your rope-dancing, chain-rattling, ridiculous ideal checks and contrivances? But, sir, we are not feared by foreigners; we do not make nations tremble. Would this constitute happiness, or secure liberty?22

The field marshal of the Federalist forces at the convention was James Madison, and he, as well as Washington, were the staunchest opponents of including a bill of rights. Madison adopted the specious Wilson argument about the dangers of a bill of rights and said that they could be left unenumerated but still retained by the people. Indeed, the leading young Federalist John Marshall inadvertently revealed the sophistry and insincerity of the Federalists’ presumed concern for “rights.” Marshall, in attacking the idea of a bill of rights, observed that the Virginia Bill of Rights doesn’t mean very much; it is “merely recommendatory.” If it were otherwise, many expedient laws would clearly be unconstitutional. This exultation in the state’s bill of explicit rights hardly showed the Federalists to be truly concerned about the unenumerated rights of the people! More interesting was Madison’s rejection of the idea that the gravest danger to liberty has always been the accretion of power by the rulers of government. Instead, Madison, using the conservative trick of argument-by-paradox, tried to shift the blame of government despotism from the government itself to the people being governed—specifically, the people daring to have a difference of opinion. Thus:

When the gentleman [Patrick Henry] called our recollection to the usual effects of the concession of powers, and imputed the loss of liberty generally to open tyranny, I wish he had gone on farther. Upon his review of history he would have found that the loss of liberty very often resulted from factions and divisions; from local considerations, which eternally lead to quarrels; he would have found internal dissensions to have more frequently demolished civil liberty, than a tenacious disposition in rulers to retain any stipulated powers.

In short, liberty is lost through its very exercise! Self-interested local governance is the source of oppression, and to counter this, the people should instead put their faith in one large centralized government (clearly without such self-interest) remote from their control.

Less candid than James Wilson or the Massachusetts ultras, Madison and the other Federalists adopted the lie that the proposed government was not really national or consolidated, but a new sort of tangled mixture, with no real locus of supremacy. 

As the debate proceeded, even the reluctant Madison finally realized that the Federalists would have to agree to a bill-of-rights amendment, but not, of course, as a condition of ratification—only as a corollary recommendation. Finally, the dramatic vote arrived when Patrick Henry moved that the convention refer a bill of rights and other amendments to the other states as a requirement prior to ratification. He also assured the delegates that whatever the result, he would “be a peaceful citizen” and work for constitutional, non-violent change of the new system. The next day, June 25, Henry’s motion came to a vote and lost by the slim margin of 88-80; immediately following, the motion to ratify the Constitution passed by 89-79. A mere shift of five votes would have defeated the Constitution.

But at least the Federalists had been forced by opposition pressure to agree to appoint a committee immediately to recommend amendments, otherwise they could not have won ratification. The committee, including Henry and Mason, adopted a bill of rights patterned after the Virginia Declaration of Rights, as well as a score of other comprehensive amendments restricting federal power. These justly proposed amendments were adopted by the convention, which also instructed the Virginia delegation to the new Congress to do their utmost to attain their ratification. For the benefit of the pseudo-Wilsonian argument, the amendments included a clause reserving to the states every power or right not expressly delegated to the federal government in the Constitution. The amendments also included, in addition to a bill of rights and restrictions on taxation, the provision that any navigation law, law regulating commerce, or maintenance of a standing army, required two-thirds approval of each house of Congress. The Federalists, for their part, could quietly scoff at the whole proceeding; after all, was it not a facade that was binding on no one?

The ratification left tempers and conflict in Virginia sharpened rather than rendered. Mason and Henry talked bitterly of issuing an Antifederalist manifesto similar to the Address of the Pennsylvania minority. Mason denounced Randolph as a young Benedict Arnold, and relatives shared part of the breaking point between Mason and Washington, between Henry and Washington, and between Madison and Henry. The Virginia legislature remained in Antifederal control, and the Antifederalists were determined never to relax the pressure until the victors, humored by them as “Non-Emendo-Tories,” were forced to fulfill their agreement for a bill of rights. They especially wanted to secure these amendments at a second constitution convention to undo the centralizing damage of the first.

Then, led by Patrick Henry, the Antifederalists determined to advance their program and crush James Madison. They furthered both goals during 1788 by electing two of their leaders, Richard Henry Lee and William Grayson, to the U.S. Senate over the bid of Madison. Then, Madison eked out a victory in the race for Congress over a brilliant young Antifederalist leader James Monroe, who had voted against ratification at the convention.23

And so, Virginia too had ratified; at this point, ten states were in the new Union. Of the crucial states, only New York, the great bastion of Antifederalism, stood alone and isolated. Rhode Island and possibly North Carolina were not important enough to give the Empire State much aid and comfort. To the Antifederal party struggling at the convention at Poughkeepsie in New York, the news of the double defection of New Hampshire and Virginia came as a grave blow.

• 19[Editor’s footnote] Beginning in the 1970s, some historians have argued that Letters from the Federal Farmer was written by Melancton Smith of New York. The true authorship is uncertain.
• 20[Editor’s footnote] McDonald, E Pluribus Unum, pp. 339–40; Malone, Jefferson and the Rights of Man, p. 172; Elliot, The Debates in the Several State Conventions, vol. 3, pp. 279, 282, 287, 291; Spaulding, New York in the Critical Period, pp. 221, 258, 261; Essays on the Constitution of the United States, ed. Paul Leicester Ford (Brooklyn, NY: Historical Printing Club, 1892), p. 392; Robert Allen Rutland, George Mason: Reluctant Statesman (New York: Holt, Rinehart and Winston, 1961), pp. 93–103; Irving Brant, James Madison: Father of the Constitution, 1787–1800 (New York: The Bobbs-Merrill Company, 1950), p. 163. 
• 21[Editor’s footnote] Main, The Antifederalists, pp. 28–31, 221–33, 285–86; McDonald, We the People, pp. 255–58.
• 22In Maryland, Antifederalist leader Luther Martin emphasized a similar theme; Martin attacked the Constitution as a design for “one great and extensive empire, calculated to aggrandize and elevate its rulers and chief officers far above the common herd of mankind, to enrich them with wealth, encircle them with honors and glory.” William Appleman Williams, The Contours of American History (Cleveland, OH: World Publishing Company, 1961), p. 161.
       [Editor’s remarks] For Henry’s remarks, see Elliot, The Debates in the Several State Conventions, vol. 3, pp. 44–46, 53–54, 546. Rothbard was an enormous fan of Patrick Henry and later wrote a neglected review of a Henry biography. Murray Rothbard, “Patriot Henry, Noble Rhetorician,” Reason (January 1987): 53–54.
• 23[Editor’s footnote] Rutland, George Mason, pp. 100–05.