Legal Features

Thank Virginia For Nation's Rights

By Judith Williams Jagdmann
From The Freelance Star

In 2007, Virginia and the nation will celebrate the 400th anniversary of the English landing at Jamestown. As we commemorate that arrival, it is important to note that our nation would not exist today were it not for the courage and willingness of early Virginians to stand on principle.

The Virginia experience has been defined by people of the highest character, whose worthy actions have assured the blessings of liberty to all Americans. It is appropriate that we turn to the Virginia origins of the Bill of Rights as we begin a series of commentaries on this extraordinary document.

Simply stated, Americans' foundation of individual liberty rests on the Virginia Declaration of Rights and its successor, the federal Bill of Rights.

Not that we should be bound forever to 1791, but a reference to history is essential to understanding our tradition of fundamental rights. That tradition remains the standard of individual liberties guiding the world today.

The typical textbook version of the early Republic goes something like this: We won the Revolutionary War the Articles of Confederation proved unsatisfactory all the great Founders gathered in Philadelphia and created a bold new government except for a few dissenters, the people thought it was wonderful, except that it needed a Bill of Rights, which James Madison helped produce and we all lived happily ever after.

But it is because of Patrick Henry and George Mason's insistence on a Bill of Rights that this most revered document exists.

Henry was the first governor of the commonwealth of Virginia. He dominated the political landscape of his time through his mastery of the spoken word. As for Mason, Edmund Randolph once described him as possessed of "that philosophical spirit which despised the adultered means of cultivating happiness. He was behind none of the sons of Virginia in knowledge of her history or interest. At a glance he saw to the bottom of every proposition which affected her."

The team of Henry and Mason was formidable.

The Constitutional Convention of 1787 (which met in secret) was originally called to revise the Articles of Confederation. Instead, a radically different form of government-consolidating power at the national level - came under discussion. Henry refused to attend the convention because he "smelt a rat." Mason attended, but was one of just three delegates who refused to sign the completed document because it contained no guarantee of fundamental rights.

Unlike Henry, Mason was not irrevocably opposed to a new form of government, but was concerned that we would trade the tyranny of George III for the tyranny of Philadelphia.

A 'UNION' DOOMED?

The Virginia Convention met in June 1788 with eight of the required nine states having ratified the new United States Constitution. A significant exception was Virginia, which, extending from the Atlantic Ocean to the Mississippi River, bisected the nation. Consequently, any attempt to form a "more perfect union" was doomed without Virginia's participation.

The State Convention assembled one of the greatest collections of luminaries ever gathered. Besides Henry and Mason, participants included John Marshall, George Wythe, James Madison, James Monroe, John Tyler, Edmund Randolph, Benjamin Harrison, Henry Lee, Bushrod Washington, and Edmond Pendleton. George Washington exerted a powerful influence in the background. Presumably, he wished to stay above the fray, having served as president of the Constitutional Convention that drafted the document.

The debates featured Henry and Mason on one side, with James Madison and Edmund Randolph on the other as chief proponents of the Constitution. These debates were transcribed and published. Henry set the tone by stating that "You are not to inquire how your trade may be increased, not 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."

Madison argued that a bill of rights was not necessary because as "the powers granted by the Constitution are the gift of the people, and may be resumed by them when perverted to their oppression, and every power not granted thereby remains with the people."

He suggested further that the Virginia bill of rights provided fundamental guarantees and that the people did not forfeit these rights by entering the Union. Because the "powers of the general government relate to external objects, and are but a few," he contended, no rights were lost.

BEWARING BEHEMOTH

Henry and Mason maintained their objection to the absence of a bill of rights in the Constitution. Focusing on the provision stating that federal law would be supreme, Henry declared the absurdity of having bills "to defend you against the state government, which is bereaved of all power" without a similar guarantee against the power of the federal government.

Mason echoed Henry's sentiments in stating that "the questions then will be, whether a consolidated government can preserve the freedom and secure the rights of the people."

Mason noted that Virginia, in 1776, had first adopted the Declaration of Rights followed by the Virginia Constitution. To Mason and Henry, forming a government before guaranteeing the rights of the people was simply backwards. Mason added, "The liberty or misery of millions yet unborn are deeply concerned in our decision. We wish only our rights to be secured. We must have such amendment as will secure the liberties and happiness of the people, on a plain and simple construction, not on a doubtful ground but in its present form we never can accede to it. Our duty to God and to our posterity forbids it."

Proponents of the Constitution realized that quick action was needed before the opposition could coalesce. Due to objections that had surfaced throughout the United States, any delay in ratification by Virginia would likely cause support for the Constitution to unravel.

Thus, Madison made what history has proved a brilliant tactical move. He agreed that, if the state convention would ratify the Constitution, he would immediately seek amendments guaranteeing fundamental rights. Based on this assurance, delegates narrowly-by a vote of 89-79-ratified the Constitution.

James Madison, true to his word, introduced the Bill of Rights in the first Congress, basing the bill on the Virginia Declaration of Rights. The first 10 amendments to the Constitution-the Bill of Rights-won adoption by the states in 1791.

Madison's prediction that the amendments "will have a salutary tendency" has echoed through the centuries. It is because of the contributions made by Patrick Henry and George Mason that the United States Constitution includes its Bill of Rights.

Today, we often take our constitutional rights for granted, especially those contained in its first 10 amendments. As Virginians, it is important that we remember the legacy of individual rights bequeathed us by the Founders. Furthermore, it is our duty to defend those rights: They are nothing less than the backbone of our liberty.

Jadgmann is attorney general of Virginia.