Dusk Descends

Hummingbird

We put up a hummingbird feeder the other week, and voila! Not flashy by tropical standards, but in northern New Jersey you take what you can get. Click to enlarge.

Richard Henry Lee, George Wythe, and the Constitutionality of Secession

The proposition that a state could ratify the Constitution, subject to the right to withdraw from the Union if desired amendments were not ratified thereafter, would seem to be fundamentally inconsistent with the idea that single-state secession was not permitted.

At least two leading Virginians did not, it seems, grasp this contradiction. Both Richard Henry Lee and George Wythe proposed such a device in order to gain ratification of the Constitution with amendments.

Richard Henry Lee was not a delegate to the Virginia Convention. His proposition came as private advice to anti-federalist delegate George Mason. Recognizing that requiring amendments before ratification would delay enactment of the Constitution at best, and perhaps torpedo it altogether, in early May 1788 Lee

counseled Mason to watch carefully so “the foes of union, order, and good government” did not “prevent our acceptance of the good part of the plan proposed.” After extensive reflection, he proposed that Virginia should ratify the Constitution but demand “such amendments as can be agreed upon” as statements of “their undoubted rights and liberties which they mean not to part with.” The amendments would be proposed and adopted using the procedures under Article V. However, if the amendments still had not been enacted two years after the new government began, Virginia would “be considered as disengaged from this ratification.”

Lee intended and assumed that his proposal would help get the Constitution ratified and that the “friends” of the Constitution (except perhaps those who were dead set against any amendments) would see it as such and favor his scheme:

That “friendly and reasonable” method, Lee said, would allow the new Congress to amend the Constitution “without risking the convulsion of new conventions,” gratify critics of the Constitution and also those Federalists who thought amendments were needed, harmonize the undetermined stated, and quiet the “formidable minorities” in states that had already ratified. Lee recommended his plan for Mason's “serious and patriotic attention.”

Toward the end of the next month, on Tuesday June 24, 1788, George Wythe – 62 years of age, Thomas Jefferson's early mentor (and later Henry Clay's), and one of the leading lawyers and jurists in the state – moved that the Virginia convention, sitting as Committee of the Whole, recommend that the Constitution be adopted. Wythe, too, seems not to have understood that an individual state could never withdraw from the Constitution once ratified, for his motion included a provision for post-adoption withdrawal:

Wythe then moved his main resolution: that, in the opinion of the committee of the whole, the Constitution should be ratified, and that the convention should recommend amendments to the first federal Congress. He perhaps asked that another committee draw up those amendments. According to Patrick Henry, the text of Wythe's motion, - which [David] Robertson did not include in his Debates [and Other Proceedings of the Convention of Virginia] – also said that Virginia's ratification would “cease to be obligatory” if the amendments the convention proposed were not enacted. If so, his motion had some similarity to what Richard Henry Lee had recommended to Mason in early May.

The next day, Wednesday June 25, 1788 – 223 years ago today – the Virginia convention voted to reject Patrick Henry's competing motion that the Constitution not be ratified before proposed amendments were presented to the other states. “It lost be eight votes: 80 delegates voted for it, 88 against. That was the critical vote.” “[B]etween two and three o'clock in the afternoon, the convention turned to the main question, Wythe's resolution that the Constitution 'be ratified.' It passed by ten votes, 89 for and 79 against.”

All quotes are from Pauline Maier's excellent Ratification: The People Debate the Constitution, 1787-1788.