Patrick Henry’s Warning on “Implied Authority”

By: TJ Martinell

Patrick Henry’s impassioned remarks during the final days of the Virginia Ratifying Convention were the culmination of week-long arguments between skeptics of the proposed Constitution and its supporters, such as James Madison.

In modern context, it is easy at first glance to find much of what Henry said to be, unfortunately, pro-slavery. In fact, many modern scholars focus completely on what they might call pro-slavery scare tactics.  But this surface understanding of his statements misses the bigger issue at stake for opponents of ratification – whether the new Constitution opened the door for a federal government to invent new authority and subvert state sovereignty.

The convention was closely divided on its support for the Constitution. Henry had hoped the state legislature convening would force the convention to adjourn. Instead, the legislature accommodated, allowing the convention to go on.

After the convention’s presiding officer George Wythe moved to ratify the Constitution, Henry leapt up in protest, adamantly insisting, as he had many times during the debates, that the document required amendments addressing numerous concerns. Chief among them was his fear that the Constitution gave the federal government “implied” powers not specifically stated.

Among other things, Henry demanded that its limited scope of power be specifically stated in the form of an amendment (bold emphasis added):

“With respect to that part of the proposal which says that every power not granted remains with the people, it must be previous to adoption, or it will involve this country in inevitable destruction. To talk of it as a thing subsequent, not as one of your unalienable rights, is leaving it to the casual opinion of the Congress who shall take up the consideration of that matter. They will not reason with you about the effect of this Constitution. They will not take the opinion of this committee concerning its operation. They will construe it as they please.”

He also reiterated his sentiment that the Articles of Confederation was an acceptable government and need not be changed:

“We now act under a happy system, which says that a majority may alter the government when necessary. But by the paper proposed, a majority will forever endeavor in vain to alter it. Three fourths may. Is not this the most promising time for securing the necessary alteration? Will you go into that government, where it is a principle that a contemptible minority may prevent an alteration?”

Further, there was no risk either to undermining what was already included in the Constitution or threatening full ratification by other states due to opposition (bold emphasis added);

“It would be in vain for me to show that there is no danger to prevent our obtaining those amendment, if you are not convinced already. If the other states will not agree to them, it is not an inducement to union. The language of this paper is not dictatorial, but merely a proposition for amendments. The proposition of Virginia met with a favorable reception before. We proposed that convention which met at Annapolis. It was not called dictatorial. We proposed that at Philadelphia. Was Virginia thought dictatorial? But Virginia is now to lose her preminence. Those rights of equality to which the meanest individual in the community is entitled, are to bring us down infinitely below the Delaware people. Have we not a right to say, Hear our propositions!”

The reason Henry devoted so much attention to the issue of “implied powers” is because it was the fundamental issue. If the federal government possessed implied powers, then it could (and would) interpret itself to have the authority to undermine or violate other rights.

Henry’s contention was that the new Constitution did not adequately clarify this, contrary to what the Federalists said.

Henry and other opponents of ratification strongly believed that if the Constitution was adopted without amendments, the ramifications were many and varied. One Henry specifically mentioned was the question of slavery. Under the Articles of Confederation, it was left to the states to decide whether to retain or abolish slavery. However, Henry believed the Constitution would bestow this power to Congress via “implied powers.”

One way would be to call slaves to arms for national defense and offer them their freedom for their participation, as the British had offered American slaves during the War of Independence.

Henry said (bold emphasis added):

“That power which is said to be intended for security and safety may be rendered detestable and oppressive. If they give power to the general government to provide for the general defence, the means must be commensurate to the end. All the means in the possession of the people must be given to the government which is intrusted with the public defence.

“In this state there are two hundred and thirty-six thousand blacks, and there are many in several other states. But there are few or none in the Northern States; and yet, if the Northern States shall be of opinion that our slaves are numberless, they may call forth every national resource. May Congress not say, that every black man must fight? Did we not see a little of this last war? We were not so hard pushed as to make emancipation general; but acts of Assembly passed that every slave who would go to the army should be free.”

Or, if northern states composed a majority in Congress they could simply vote to abolish slavery on the auspices of having the “implied authority,” Henry said. When others at the convention objected to this, he pointed out that the federal government would have the power of granting passports – something specifically prohibited in the Articles of Confederation – even though it doesn’t specifically grant that authority.

“They can exercise power by implication in one instance, as well as in another. Thus, by the gentleman’s own argument, they can exercise the power, though it be not delegated.”

It’s easy to argue that Henry was simply trying to preserve slavery. But his position requires nuance. We don’t have to defend Henry’s comments to place them in the context of the broader constitutional debate.

While saying slavery is “detested,” he added “is it practicable, by any human means, to liberate them without producing the most dreadful and ruinous consequences?”

As he viewed it, the institution of slavery was a Southern issue, and how it was dealt with affected Southerners. His fear was that the matter would be dealt with nationally by people far removed the situation and fundamentally unconcerned with the consequences.

“Every other property of the people of Virginia, is in jeopardy, and put in the hands of those who have no similarity of situation with us,” he said. “This is a local matter, and I can see no propriety in subjecting it to Congress.”

There are a couple of points to consider.

One is that Henry did not advocate for slavery, although he opposed abolition. The institution had been brought in more than a century prior, and by the time of Henry’s birth it had become an indispensable part of the region’s economy. There were also perceived problems with ending the institution that even southern abolitionists acknowledged. Henry referred to this as slavery’s “fatal effects.”

For Henry, it was really about local control. His view was that those directly impacted by slavery – the people in the Southern states – should decide how to deal with the institution. He didn’t want people who had no stake in the issue and little real knowledge of the situation in the southern states to make decisions on their behalf.

Lastly, Henry had this attitude regarding every issue, not just slavery. If it was a local matter, it needed to be handled locally. The peculiarity of slavery’s presence in debates over freedom and individual rights doesn’t undermine Henry’s perspective.

We see this in Henry’s final statement during the convention, which drew such rancor that he was forced to sit down.

“I see the awful immensity of the dangers with which it is pregnant. I see it. I feel it. I see beings of a higher order anxious concerning our decision. When I see beyond the horizon that bounds human eyes, and look at the final consummation of all human things, and see those intelligent beings which inhabit the ethereal mansions reviewing the political decisions and revolutions which, in the progress of time, will happen in America, and the consequent happiness or misery of mankind, I am led to believe that much of the account, on one side or the other, will depend on what we now decide. Our own happiness alone is not affected by the event. All nations are interested in the determination. We have it in our power to secure the happiness of one half of the human race. Its adoption may involve the misery of the other hemisphere.”

Despite his intense rhetoric, James Madison shortly after got up to say he agreed with Henry on the amendments: he favored their inclusion and saw nothing in them that would undercut powers already included in the Constitution.

The convention would ultimately ratify the Constitution, with the inclusion of recommended amendments that eventually lead to the creation of the Bill of Rights.

Considering what transpired just years after, history has vindicated Henry’s worst fears over implied powers.

To give one example, the federal government would soon debate what “necessary and proper” meant in the Constitution and whether that authorized Congress to charter a national bank. Even with the Tenth Amendment making it clear implied powers did not exist, the Supreme Court would aid the Federalists in effectively redefining words to circumnavigate constitutional limitations.