“I shall retain my infidelity on that subject till I see our liberties secured in a manner perfectly satisfactory to my understanding.”

In 1788, Virginian patriot Patrick Henry was a strong anti-Federalist who opposed the ratification of the new, controversial US Constitution on the grounds that it granted too much power to the federal government without sufficient protections for the states or their citizens. Elected to the state-level ratification convention that met in June of that year, Henry was a highly vocal opponent of ratification, believing that approving the Constitution would return those who fought for liberty from the perceived abuses of the British Crown a decade before to rule by an overly powerful centralized government. Henry spoke out against a number of failings he saw in the proposed Constitution, including the lack of a bill of rights and the concentration of a great deal of power over the states in the hands of the national legislature. For Henry, opposing the Constitution was his duty as a true American patriot.

At its inception, the young American nation was governed not by the US Constitution, but by the short-lived Articles of Confederation, written shortly after the nation declared its independence and formally agreed upon in 1781. The problems of the Confederation quickly showed themselves, however. The national government lacked the true power and the funds to operate nationally. The challenges of getting all thirteen states to agree on national issues were great. Soon, the nation’s political leaders decided to hold a convention for the purpose of revising the articles. When they met in Philadelphia during the spring and summer of 1787, however, the group decided to throw out the articles altogether and create a new plan for the American government—the US Constitution.

Yet the success of the new Constitution was far from certain. Of the original thirteen states, a solid majority of nine needed to vote for ratification in order for the plan to take effect. Delaware became the first state to ratify in the Constitution in December 1787, and before long other states followed suit. Some, such as Massachusetts, did so only after great debate and called for the immediate inclusion of a series of amendments to limit the new government and protect individual liberties. Other states were even less open to the idea of ratification. In the spring of 1788, Rhode Island rejected a measure to hold a ratifying convention and simply denied ratification through a popular referendum. When Virginia—a large, wealthy state with a population of some 750,000—held its own ratification convention during the early summer of that year, the delegates had mixed feelings about the Constitution. Some, like James Madison, had been instrumental in writing the plan and supported it fervently. Others, including Patrick Henry, were anti-Federalists who believed the document stripped the states of vital powers in favor an overly strong central government.

The timing of Virginia’s ratification convention made its decision a particularly important one. Eight of the requisite nine states had already signed on in support of the Constitution. Virginian ratification could thus be the deciding factor in the full acceptance of the new government. As a result, the debate over ratification was a particularly heated one fraught with the possibility of significant consequences for the nation. For anti-Federalists such as Henry, the prospect of a new, potentially abusive central government was one worthy of a strong fight. Although New Hampshire became the ninth state to ratify the Constitution later that June, at the time of Henry’s speech before the Virginia Convention the fate of the Constitution seemed to lie in the balance.

A native Virginian, Patrick Henry (1738–99) spent most of his adult career as a lawyer and influential statesman. As early as 1763, he used the doctrine of natural rights—one of the political ideas underlying the later American Revolution—as the basis for a legal argument against an action of the British Crown. Henry first won election to the Virginia House of Burgesses in 1765, where he soon made a name for himself speaking out for colonial self-government amidst the crisis surrounding the passage of the hated Stamp Act. He became a leading opponent of the British government, famously uttering “Give me liberty or me death!” in the period leading up to armed conflict. Although Henry only briefly commanded militia in the Revolution, he remained a respected figure, serving as governor of Virginia three times during the conflict and twice thereafter. He refused to attend the Constitutional Convention in Philadelphia but was later elected as a delegate to the state-level ratification convention.

Henry was among the most vocal anti-Federalists at the Virginia Convention. While some other opponents, including sitting Virginia governor Edmund Randolph, reversed their stand on the Constitution to show support for the fledging union of states, Henry—along with George Mason—refused to back down from his principles. Believing the Constitution to have created a government likely to overstep its proper role, particularly with respect to individual rights, taxation, military power, and national legislation, Henry argued stridently against Virginia’s ratification.

Although the anti-Federalists ultimately lost the battle at the convention, Henry continued to wage a war against the new Constitution for a time. He worked to prevent leading Constitution writer James Madison from winning a seat in Congress and called for a new statewide convention to reject or at least heavily amend the Constitution. Such an event never came to pass, and Henry spent much of the 1790s in private life, rejecting several offers of high-ranking federal office and declining to run for the state legislature. In the late 1790s, he began a return to politics that was cut short by his death in June 1799.

Early US leaders widely believed that Patrick Henry, elected as a delegate to the Virginia ratification convention by Prince Edward County, arrived at the event in Richmond determined to ensure that the recently written US Constitution did not move forward. Like other anti-Federalists, Henry believed that the document as written created a government too centralized and too powerful; unlike those anti-Federalists who wished to amend the Constitution to correct its shortcomings, however, Henry did not want the document to take effect in any form. Rumors had even circulated that Henry was willing to propose that Virginia separate from the rest of the states to form its own sovereign nation. Further, he believed that most Virginians shared his opposition to the proposed plan of US government. Unwilling to accept the Constitution and dismissive of the concept of an organized government in general as “a choice among evils,” Henry turned his considerable oratorical prowess to dissuading the Convention from ratifying the document.

He begins this speech by announcing his belief that ratification of the Constitution must rest upon “a full investigation of the actual situation of America” to determine whether the proposed government—the mere existence of which gave Henry pause—was in fact the best means by which to oversee the running of the nascent United States. Although Henry states that if the Constitution were found to be but a “trifling evil” he would happily accept its adoption, his opinion that the document instead seemed sure to “entail misery” for the nation’s citizens is clear. He proclaims that he needs to be convinced that the latter case is not the most likely in order to grant his own support to the Constitution because of his firm adherence to the protection of the liberties for which—as Henry, barely five years removed from the Treaty of Paris ending the American Revolution, well remembered—the United States had fought a bitter war with Great Britain to attain for its people.

Henry then introduces the argument that certain maxims, or principles, organized the behaviors of all “wise and enlightened people.” Chief among them were those political principles that supported the spread of liberty among a citizenry, particularly those supporting the institution of a republican government like that toward which the young United States was striving. Henry nods to the influence of republican ideals abroad—by this time, the revolution was fomenting in France—and pronounced the enduring value of those ideals across time. He caps this introduction with the proclamation affirming the inherent freedom of all people that they are obligated to protect.

In doing so, Henry recalls both the concept of natural rights that had so deeply influenced the patriots in their decision to seek independence and that of the social contract, or the belief that people willingly enter into an agreement with political leaders to form a government and thus have the right to sever those ties should a government become repressive. Popularized by English philosopher John Locke during the seventeenth century, natural rights were considered all those granted to human beings simply by the virtue of their existence; according to Locke, natural rights include the rights to life, liberty, and property, all concepts closely echoed in the 1776 Declaration of Independence that had formally announced the American Revolution. Henry had long been a strong supporter of the spread of natural rights in the face of government authority. The pursuit of these rights had encouraged him to become one of the strongest opponents of the British colonial regime. Now, he saw, these same rights were being threatened by the creation of a new, strong central US government.

With this core guiding principle established, Henry next sets about rebutting the arguments put forth earlier in the week by Virginia governor Edmund Randolph. Randolph had been one of Henry’s strongest allies in opposing the new Constitution but had shocked Henry by declaring his support for the document after arriving at the ratification convention. According to Randolph, the failings of the Constitution were outweighed by the need for the nation to remain together as a union, and thus the plan must be adopted. Henry sharply reprimands the governor for his change of heart, noting that it is “very strange and unaccountable” to him that Randolph should decide to support a plan that he had previously criticized simply because it was too late in the process to try to develop a better system. Henry condemns this argument, stating that he does not believe that Virginia should accept a plan he found faulty just because eight other states have already done so. He then notes other states’ calls for a series of amendments—the typical moderate anti-Federalist solution to the perceived failings of the Constitution—but suggests that he does not believe that those who promised to add the amendments would necessarily do so. Thus, he continues to build his argument that ratification of the present plan was a mistake.

Henry further opposes ratification because of the risk of losing rights that Americans already had under the weak system established by the Articles of Confederation. He calls for the convention to reject the Constitution in order to keep those “liberties and privileges” intact, stating baldly that the acquisition of a bill of rights is a “mere possibility” and “absolute uncertainty” not worthy of risking the freedoms that the states have won. Henry again challenges Randolph’s claim that approving the Constitution would ensure the continued union of the states by pointing out that although eight states have ratified the document, five states have not. Along with Rhode Island’s flat denial of the Constitution, New York, North Carolina, and New Hampshire had yet to approve the document. Ratification, Henry argues, would thus divide Virginia from this group of states, potentially isolating those with very reasonable objections from the country that they had helped build through the American Revolution. The current system, he suggests, is thus preferable to the potentially divisive and unstable new one.

In fact, Henry argues, the existing Confederation government is working perfectly well. He refutes the idea that the nation’s problems have grown so great that a stronger national government as outlined by the Constitution is necessary, arguing that the unrest, economic troubles, and various other perceived problems of the nation have been greatly overblown. In Virginia, Henry indicates, he has seen no evidence of these troubles. Certainly, Henry believed that the Confederation government represented a vast improvement over the colonial government that Virginia and its fellow states had been under within his own recent memory. Contemporary American leaders performed their work with at least the same competence as the old royal administrators, and Henry saw the possible desertion of the wealthy to more attractive shores to be an insufficient reason to completely renovate American government. Henry himself was not a particularly rich man—financial pressures resulting from raising a large family had been one of the reasons he chose to return to private life after his governorship—and thus would have perceived no real benefit in setting up a government to protect the monied class. He equally believed that the existing government adequately enforced national laws. No American, Henry argues, exists in a state of lawlessness. Laws protected citizens from personal and property damage to at least as great a degree as had those of the colonial period and in other nations of the world. Virginians, he argues, enjoy full protection of the law, and thus replacing the Confederation government on those grounds is useless.

Henry’s refusal to acknowledge the Confederation’s shortcomings set him at odds with the vast majority of other leaders of his era, as well as with the opinion of history. With a weak executive and a congress reliant on the agreement of states with very different interests, the central government lacked the authority needed to oversee the administration of a growing nation. Shays’s Rebellion, an uprising in western Massachusetts in 1786–87, had clearly indicated the inability of a fiscally constrained national government to maintain order through a military force, for example.

Henry’s frustration about the very existence of the Constitution is clear in the next section. In late 1786, Randolph—having replaced Henry as governor—had written to Henry inviting him to serve as a delegate to what became the Constitutional Convention. By that time, however, events had turned Henry against the idea of a strong national government. As the secretary of foreign affairs under the articles, New Yorker John Jay had proposed negotiations to relinquish American rights to the Mississippi River to Spain for two to three decades in exchange for trade benefits. Executing this treaty would have helped northern commercial interests but damaged southern agricultural trade. An enraged Henry worked to defeat the ultimately fruitless plan, but the circumstances soured him on increasing the power to the national government. As a result, he declined to attend the meetings in Philadelphia, reputedly suspecting that the revisions would grant increased power to the national government.

Because he sat out the proceedings, Henry was in a solid position to condemn their outcome. He argues here that Virginia’s delegates to the Convention have done the state a disservice by creating the Constitution rather than revising the existing articles, and further, that this event itself is proof of the power-grabbing likely to take place under the proposed government. After all, Henry demands, would Virginia’s congressional representatives protect its interests any better than those delegates had done in Philadelphia? His own answer is a firm no.

Henry continues this theme by refuting more of Randolph’s points, stating that he agreed with the governor’s underlying goal promoting national unity. Yet, Henry argues, the end goal of union does not justify the means of creating a powerful centralized government. One of the overriding problems the Confederation government faced was the inability to enforce taxation on the states, leaving the nation with debts to both its own military veterans and to other countries. Henry argues that the mere existence of these debts does not warrant the granting of such expanded powers to the national government, but rather that the nation’s existing “political wisdom and economy” could offer alternative solutions. Further, Henry disagrees with Randolph over the fiscal benefits that Virginia could receive from joining the United States under the Constitution; he proclaims that doing so would in fact “endanger our riches, our liberty, our all.” Instead, Henry was confident that requiring a series of amendments clearly designed to rectify the flaws on the Constitution would not risk Virginia’s place in a unified national government because those eight states that had already approved the Constitution needed Virginia to be tied into the nation as much as Virginia itself would benefit from joining with them.

Henry’s next jab at Randolph’s suppositions recalls the debacle of Jay’s Mississippi treaty. An easier route to laying claim to American resources than war, he argues, is simply to “corrupt your senators” through bribery. Unspoken but certainly implied is the suggestion that other representatives would be willing, as Jay had been, to risk Virginia’s interests in order to secure an advantage for themselves or their own states. Henry subtly reminds his listeners of the Mississippi crisis by using a treaty as an example of how this corruption could wend its way through the national government. He rhetorically questions whether Randolph feared that all other nations of the world would undertake all efforts to prevent Americans from economic advances, reinforcing the idea that the flawed Constitution was not the correct solution to this seemingly unlikely problem. Government corruption cannot be prevented by a document, Henry argues, and certainly not by one as unlimited as the proposed Constitution.

Henry next rails against the unspecified rights and limitations of the Constitution, complaining that the use of “implication” requires citizens to be too trusting a government that, by refusing to directly lay out those citizens’ freedoms and its own restrictions, has already shown itself untrustworthy. Suspicious of the use of implication as a power grab by the new government, Henry notes that the national government “can also use implication against us. We are giving power; they are getting power; judge, then, on which side the implication will be used!” While this statement may be seen as somewhat cynical, Henry—and his audience—had personally experienced the heavy hand of an imperial government. The speaker and at least some of the members of the Convention were understandably wary of the prospect of handing poorly limited power to the new government. With the Bill of Rights not yet part of the document, no provision existed in the Constitution for even basic legal rights that Americans had enjoyed under British rule such as trial by jury. Henry reflects the leading anti-Federalist objection to the Constitution—the absence of a bill of rights—but carries it to the next step, suggesting that the government is setting itself up to claim greater powers than the Constitution seemed to allow through the usage of implication. By making this argument, Henry actually presaged one of the leading interpretative debates of the Constitution during the late eighteenth and early nineteenth centuries. The question of the constitutionality of implied powers arose as early as the Washington administration when Alexander Hamilton proposed the formation of a national bank.

Henry then condemns the use of implied powers and rights by reminding his audience of the turmoil in England during the period surrounding English Civil War. This conflict, which took place during the mid-seventeenth century, came after a time when the monarch refused to summon Parliament and persecuted members of religious fringe groups; among these groups were the Separatists who became New England’s Pilgrim founders. The English Bill of Rights was inaugurated in 1689 and, like the bill of rights that Henry and other anti-Federalists wished to add to the US Constitution, laid out certain liberties for British subjects that the government could not contravene. Henry again reminds his listeners of the struggle over power that had incited the American Revolution, reinforcing his argument that creating a strong new American government violated the principles for which the nation had fought short years before. The “possibility of construction and implication,” Henry suggests, was one of the very ideas that the Revolution had aimed to end in the English colonies. Without a formalized bill of rights in the new Constitution, he argues, citizens risked leaving these hard-won rights to the same demons of implication and argument.

Henry concludes with call for a bill of rights along with firm limitations on the growth of national governmental power and the rejection of the usage of implied powers. Henry then adjourns his remarks for continuation when the Convention resumed work. Although Henry continued to argue against ratification for the duration of the convention, his oratorical efforts ultimately failed to secure him his goal: The Virginia Convention, buoyed by promises by Madison to add a bill of rights to the Constitution during the first possible session of the US Congress, voted eighty-nine to seventy-nine in favor of ratification.

Although Henry’s arguments failed to win the day in the face of Madison’s pledge to secure a formal bill of rights—a promise that was indeed fulfilled in 1789 and completely ratified in 1791, a relatively small lapse—the anti-Federalist leader and others of his persuasion set forth arguments that shaped the practice of US government throughout the centuries. Without calls such as Henry’s for a firmly delineated bill of rights, it seems unlikely that Federalist leaders would have considered the addition of these amendments necessary. The Bill of Rights establishes many liberties that US citizens consider fundamental to their national identity and political system. Perceived government infringement upon these basic freedoms generated public outcry as early as the Alien and Sedition Acts of 1798; they also informed more contemporary landmark Supreme Court decisions, such as Miranda v. Arizona (1966) and New York Times v. United States (1971). In contrast, those rights that are only implied in the Constitution have generated highly contentious government decisions. The Supreme Court decision legalizing abortion in Roe v. Wade (1971), for example, was based on the constitutionally implied right to privacy. Yet the undefined nature of that right allows the issue to be heavily debated decades after that case left the bench.

Henry’s call for protections for states’ rights also continues to resonate across time. Henry declaimed against the ability of a narrow majority of states’ representatives in Congress to legislate for the entire nation as outlined in the Constitution. This principle led to massive political turmoil during the first half of the nineteenth century as Southern slaveholding states sought to maintain sufficient representation in the national legislature to prevent Northern free states from abolishing slavery. These political tensions informed the order in which states were admitted to the growing United States—even whether a state was permitted to enter at all—and contributed to the rise of political compromises that ultimately failed to keep the Union together. Although Henry was personally opposed to slavery, his arguments for states’ rights over those of the central government certainly informed the ideas of Southern secessionists in later decades. This conflict remains a driving factor in US political debate.

Henry’s distrust of a large, powerful central government has been another ongoing source of political division. In the early nineteenth century, for example, the perceived legality of the federal government to fund interstate transportation projects led to intermittent funding for the National Road. As president, Andrew Jackson famously rejected the power of the federal government to operate a national bank. These same tensions continue to drive political dispute between those who see the government’s involvement in social welfare or economic programs as an excess of power and those who see such efforts as natural and necessary for the nation’s well-being.

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