Shaping the Constitution: People and Documents Guide to Resources from the Library of Virginia
–by John P. Kaminski
The North American English colonies occupied an ambiguous place within the British Empire. For most of the colonies' existence, the imperial British government interfered little with the American colonies' government or constitutional development. This changed drastically with the end of the French and Indian War in 1763 when Parliament implemented an intrusive imperial policy that included stationing army regiments in some American cities and levying taxes intended to raise revenue to pay for the huge wartime debt and the salaries of colonial officials. Americans viewed these actions as despotic, unconstitutional, and a threat to their liberties and property.
Colonial opposition to the new imperial policy was widespread. The severe British reaction in Massachusetts evoked sympathetic responses from other colonies, particularly from Virginia, the oldest, largest, wealthiest, and most populous of the American colonies.
In July 1774 a committee in Alexandria, Virginia, led by George Mason drafted resolutions critical of the British policy. Expanded in deliberations with George Washington, the Fairfax Resolves did not seek independence but condemned the violation of the colonists' "Ancestral rights" as Englishmen. The royal governor of Virginia, John Murray, earl of Dunmore, dissolved the House of Burgesses on May 26, 1774, whereupon the Burgesses met in a series of five Revolutionary Conventions that vied with the governor for control of the colony. The first of the conventions appointed delegates to the First Continental Congress and adopted non-importation measures against Britain. Fighting broke out between British troops and the Virginia militia led by Patrick Henry. On June 19, 1775, the Continental Congress commissioned George Washington as commander in chief of the American forces.
Governor Dunmore continued military actions and also issued a proclamation in November 1775 urging slaves to leave their masters and join the British in exchange for their freedom. The Second Continental Congress condemned Dunmore's actions as the equivalent of "tearing up the foundations of civil authority and government" and urged Virginians to establish a new form of government that would "produce the happiness of the people, and most effectually secure peace and good order in the colony, during the continuance of the present dispute between Great Britain and these colonies." The fifth Revolutionary Convention on May 15, 1776, unanimously resolved to instruct its congressional delegates to propose independence, seek foreign alliances, and form a confederation among the colonies. On June 7, 1776, Richard Henry Lee submitted Virginia's resolution to Congress, which appointed three committees to address Virginia's proposals. Thomas Jefferson, on a five-man committee appointed to write a declaration of independence, drafted the document that Congress adopted on July 4, 1776, two days after Congress had voted to declare independence.
In Virginia the fifth convention unanimously resolved "that a Committee ought to prepare a Declaration of Rights and such a plan of government as will be most likely to maintain peace and order in this colony and secure substantial and equal liberty to the people." President Edmund Pendleton appointed a thirty-six-man committee, led by George Mason, that submitted a draft declaration of rights on May 27, 1776. The convention debated and amended the draft and on June 12 unanimously adopted the Declaration of Rights.
On June 24 the convention's committee reported a draft constitution, also largely the work of George Mason. Adding a preface written by Thomas Jefferson, the draft constitution was debated for three days and then unanimously adopted on June 29, 1776. The convention chose Patrick Henry governor, appointed a council of state, and provided for the legislative elections.
Throughout its colonial history, Virginia officially recognized the Anglican Church as its established church. Dissenter ministers were sometimes imprisoned for preaching without a license. Various petitions to the legislature asked for religious freedom. George Mason's draft of the Virginia Declaration of Rights declared that "all men should enjoy the fullest Toleration in the Exercise of Religion according to the Dictates of Conscience," but a young James Madison successfully argued for an amendment that "all men are equally entitled to the free exercise of religion, according to the dictates of conscience."
When in 1784 Patrick Henry supported a bill to pay Protestant ministers with public tax revenue, James Madison staunchly opposed the measure in the Virginia House of Delegates. Madison's brilliant Memorial and Remonstrance against Religious Assessments, a petition in favor of the complete separation of church and state, was signed by more than 10,000 Virginians. Madison reintroduced the bill for religious freedom, written by Thomas Jefferson in 1779 as part of a recodification of all of Virginia's laws. After the legislature adopted the Act for Religious Freedom on January 16, 1786, Madison ecstatically wrote Jefferson, then serving as United States minister to France, that they had "extinguished for ever the ambitious hope of making laws for the human mind."
In November 1777 the Second Continental Congress sent the states its final version of the Articles of Confederation, the governing document for the new United States. All the state legislatures had to ratify before the Articles went into effect. On December 15, 1777, the Virginia House of Delegates unanimously approved the Articles. The state Senate approved the next day. On June 25, 1778, Virginia's five delegates to Congress, led by Richard Henry Lee, signed the Articles.
The Articles served well enough to bind the American states together as long as the fear of British domination remained. When American independence was achieved in 1783, a brief period of prosperity was followed by a harsh economic depression with severe social and political conflicts. Debtors demanded relief measures from their state assemblies; when they were not enacted, violence occurred. The Confederation Congress seemed incapable of adequately addressing the enormous problems facing the country. Amendments to the Articles were proposed but, because of the requirement of the unanimous ratification by the state legislatures, none were adopted. Finally a general convention of the states was called to propose amendments to the Articles.
Virginia took the lead in appointing delegates to the federal convention to meet in Philadelphia in May 1787. George Washington, George Mason, James Madison, Governor Edmund Randolph, Patrick Henry, and Richard Henry Lee were among those appointed. Henry and Lee refused their appointments. Madison prepared studiously for the convention, and led in and took extensive notes of the convention debates. Washington served as the convention's president. After meeting for four months from May 25 through September 17, 1787, the delegates approved not amendments to the Articles, but instead an entirely new Constitution. Only three of the delegates in attendance at the end of the Convention refused to sign the new Constitution-Elbridge Gerry of Massachusetts and Virginia's George Mason and Edmund Randolph.
It took ten months to ratify the new Constitution in specially elected state conventions. An intense debate over the Constitution took place in Congress, in the public arena, and in the state conventions. Federalists supported ratification; Antifederalists opposed. James Madison was probably the single most important person in this debate. He served as a clearinghouse of Federalist information in New York City, wrote many of The Federalist Papers with Alexander Hamilton and John Jay (both from New York), and, with the help of George Wythe, Edmund Pendleton, and Edmund Randolph, defeated the opposition of Patrick Henry, George Mason, William Grayson, and James Monroe in the Virginia convention that ratified the Constitution on June 25, 1788, by a vote of 89 to 79.
The Antifederalists' most serious objection to the Constitution was that it did not contain a bill of rights. Federalists led by James Madison, James Wilson of Pennsylvania, and Alexander Hamilton argued that the Constitution created a government of delegated powers that would have no authority to violate rights. In order to ratify the Constitution, Federalists promised that they would support a bill of rights and other amendments to the Constitution that would be proposed by the first federal Congress. Madison, who had defended the omission of a bill of rights during the ratification debate, now supported such amendments during his election campaign for the U.S. House of Representatives in which he defeated James Monroe. In June 1789 Madison stood almost alone in Congress supporting a bill of rights. With assistance from President George Washington, Madison got the necessary two-thirds vote in the House of Representatives. The amendments were altered by the Senate and then reconciled in a conference committee late in September 1789. Two years later on December 15, 1791, Virginia became the eleventh state to ratify ten amendments to the Constitution, thus satisfying the requirement in Article V of the Constitution that three-fourths of the states vote for amendments in order for them to become part of the Constitution.
Remarkably the new Constitution created a much stronger central government while at the same time providing more protection for individual rights. But, unfortunately the Constitution did nothing to eliminate slavery or provide for woman's suffrage. Not until after the Civil War with the adoption of the Thirteenth Amendment to the Constitution (1865) was slavery prohibited in the United States or any of its territories. Three years later the Fourteenth Amendment (1868) defined an American citizen as anyone born in the United States or naturalized. The Fifteenth Amendment (1870) then provided that a citizen's right to vote could "not be denied or abridged by the United States or any state on account of race, color, or previous condition of servitude." The right to vote was expanded further to include women in the Nineteenth Amendment (1920) and to citizens eighteen years of age or older by the Twenty-sixth Amendment (1971). The Twenty-fourth Amendment (1964) provided that no citizen could be deprived of the right to vote "by reason of failure to pay any poll tax or other tax."
The U.S. Bill of Rights was determined by John Marshall in the case of Baron v. Baltimore (1833) to apply only to the federal government. In 1868 the Fourteenth Amendment provided that no state could "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." In the twentieth century the Supreme Court interpreted this provision to mean that various protections of U.S. Bill of Rights were to extend over the states as well as the federal government and were to apply to any person living in the United States, not merely to citizens. The shaping of the Constitution has thus been greatly expanded over the many years since its adoption.