The First Dissenters

George Mason swore he would rather "chop off his right hand" than sign the Constitution.

HUMANITIES, November/December 2010, Volume 31, Number 6

George Mason was not a dissident by nature. A builder, not a naysayer, he was the man who drafted Virginia’s first state constitution, and the powerfully influential Declaration of Rights Virginia enacted in early June of 1776, whose affirmation that “all men are born equally free and independent” found its way, with some variations, into several other state bills of rights as well as the Declaration of Independence. Left to his own devices, the sixty-two-year-old planter—seven years the senior of his neighbor George Washington—would have happily stayed at his elegant home, Gunston Hall, near the Potomac in northern Virginia, a few miles from Mount Vernon. But when provoked, as he was by what he called “the precipitate, & intemperate, not to say indecent Manner” in which the constitutional convention acted during its last week, he became a fearsome fighter. He left Philadelphia, Madison reported, “in an exceeding ill humour indeed” and went home “with a fixed disposition to prevent the adoption of the plan if possible.”

Mason’s political involvement before 1787 is best described as irregular. He served briefly in Virginia’s House of Burgesses in 1758–60, then skipped several sessions and did not seek reelection. He supported resistance to British taxation and drafted the powerful Fairfax Resolves of 1774, which called for the collection of provisions to relieve Boston, a boycott of the East India Company, and the appointment of a Continental Congress “to concert a general and uniform Plan for the Defence and Preservation of our common Rights.” He also participated in Virginia’s Revolutionary conventions—extralegal legislatures—in 1775 and again in 1776, where his work on Virginia’s Constitution and Declaration of Rights earned him a fame that he, unlike other members of his generation, did not crave. He once described himself as a man who seldom meddled in public affairs, “content with the Blessings of a private Station” without regard for “the Smiles & Frowns of the Great.”

Public service was an obligation of class for wealthy eighteenth-century Virginians, but time and again Mason fought off the call of his country, particularly when public service would take him away from home. He refused election to the Continental Congress in 1775 and again in 1777, and he served much of his term on the state’s Committee of Safety—an appointment he tried to avoid without success—in absentia. (He claimed, however, that he corresponded regularly with the committee, considering it every man’s duty to “contribute his Mite to the public Service.”) Mason sat in the House of Delegates during 1777–81 but refused to return three years later. He would regard any attempt to elect him, he wrote the sheriff of Fairfax County, “in no other light than an oppressive & unjust invasion of my personal Liberty.” If elected, he would “certainly refuse to act, be the Consequences what they will.”

Mason had strong reasons for refusing public offices. His first wife, who died in 1773, bore him twelve children, of whom nine lived to adulthood, and he thought that his large family and the demands of managing his plantation had first claim on his time. Beginning in his thirties, moreover, Mason suffered from chronic illnesses that made attendance at meetings difficult. Intermittent attacks of gout, which affected his hands, feet, and stomach, with aftereffects that lasted for weeks, often kept him at home or, as in 1779, left him weak and exhausted. Fatigue no doubt caused or reinforced Mason’s equally chronic impatience with inflated oratory, political maneuvering, and colleagues who acted with less intelligence and incisiveness than he did.

The best-known portrait of Mason, painted in the 1750s when he was in his twenties, shows a chubby man with a cherubic face. Except for the set mouth and intense eyes, it probably gives a false impression of his appearance (some observers said he was tall and muscular) and certainly of his personality. Mason was known not for his geniality but for his intelligence and also his knowledge, despite the fact that, unlike many influential men of his time, he never attended college. The oldest son of a wealthy planter, who drowned when George was only nine, he was taught by private tutors and then he read extensively in the library of his uncle, John Mercer. There he absorbed the natural rights philosophy of English Whigs such as John Locke and became so learned in the law that people often assumed he had been trained as a lawyer. Mason never seemed to suffer the discomfort that Washington, who also lacked a formal education, sometimes felt in the company of educated men. Mason more than held his own in that crowd. When appointed to the committee charged with drafting a state constitution along with James Madison, Edmund Randolph, Richard Bland, and Thomas Ludwell Lee, Mason commented that the committee was, “according to custom, over-charged with useless Members.”

Washington, by contrast, commanded Mason’s highest regard. The two men had much in common: They both owned and managed large plantations in northern Virginia (Mason had over five thousand acres), and both put a high value on their private lives. They also shared a thirst for lands in the west and a commitment to developing the Potomac River. Washington and Mason worked together as Truro Parish vestrymen, as arbiters in local disputes, and in defending American rights against Britain during the 1760s and 1770s. Washington asked for Mason’s counsel on both private and public affairs, and Mason sent Washington dozens of fruit tree grafts—which should have sealed their friendship. Washington, however, never seems to have returned Mason’s affection in equal measure. They clashed on some issues in local politics, and Washington perhaps suspected Mason of im¬propriety, or at least of an ardor that strained the limits of propriety, in defending his personal financial interests. Or was he simply upset by Mason’s refusal and that of other “Men of abilities” to leave their vines and fig trees when the country desperately needed their services?

And yet in 1787, when the country needed him again, Mason responded. He accepted his appointment as a Virginia delegate to the Philadelphia Convention, although it took him farther from home than he had ever gone before. He arrived on May 17, a few days after Washington, along with his son, John, and a couple of slaves. Like several other delegates, Mason moved into the Indian Queen Tavern on Chestnut and Fourth streets, near the Pennsylvania State House, where the Convention would meet. He had never been to a major American city before, and he soon complained about the “etiquette and nonsense so fashionable” in Philadelphia. But he showed up at the Convention day after day, served on major committees, and became one of the most active participants in its debates. His health seemed unusually good: William Pierce, a delegate from Georgia who wrote some short, perceptive descriptions of Convention members, said Mason had “a fine strong constitution.” To his delight, Mason discovered that his fellow delegates included “many Gentlemen of the most respectable Abilities; and, so far as I can yet discover, of the purest Intentions.” Their company seemed to energize him: No longer did he have to endure the mediocrity that added to his misery in the Virginia assembly. “America has certainly, on this occasion, drawn forth her first Characters,” he wrote his son and namesake in early June. Mason was finally in his element, among his intellectual peers.

The apparent transformation of his politics was no less amazing. Mason had been no friend of efforts to give the Confederation Congress power to regulate trade or to collect an impost on imports. He said that giving an independent source of revenue to a central government that possessed military power would pose a danger to American liberty. In short, Mason had what another Virginian, James Monroe, called “Antifederal Prejudices.” By the beginning of the Convention, however, Mason recognized the magnitude of the crisis facing the United States and the importance of establishing “a wise & just Government” that would affect “the Happiness or Misery of Millions yet unborn.” The challenge was so great, he wrote, that it “absorbs, & in a Manner suspends the operation of human Understanding.” The eyes of the people were turned toward the Convention, “& their Expectations raised to a very anxious Degree. May God grant we may be able to gratify them.”

At first Mason acted hand in hand with delegates who wanted to create a substantially stronger central government. He apparently supported the plan of government the Virginia delegation proposed in the opening days of the Convention, a plan that closely resembled Madison’s pre-Convention ideas and included a congressional veto on state laws. He was ready to tear up the Confederation and start over. When a New York delegate said the Convention had authority only to propose amendments to the Articles of Confederation, Mason answered him: There were, he said, crises when “all the ordinary cautions yielded to public necessity.” The Convention would submit its proposals to the people for ratification, and the sovereign people had power to do what-ever they chose to do, including accept or reject whatever the Convention proposed. Moreover, once the powers of the central government were no longer placed in one body, the Confederation Congress, but were divided among various branches of government, Mason was willing to strengthen the central government. He understood that the United States needed what he was ready to call a “national government,” one whose power came from the people and that could enforce its powers on individuals.

Mason wanted to preserve the states, and not just as administrative units of the nation, but he was willing to free the national government from state influence on one point after another. He favored letting the people—not the state legislatures—elect members of the lower house of Congress, and he thought congressmen should be paid by the national government, not the states. He served on the committee that proposed the Great Compromise on representation, which kept the Convention from dissolving, and then probably used his influence at a caucus of large-state delegates to reconcile his colleagues to the loss of proportional representation in the Senate. In short, Mason contrib¬uted more than his share to the design of a national government with “exten¬sive powers,” although, like any son of the Revolution, he wanted safeguards against the abuse of those powers. William Pierce described him as a man “of remarkable strong powers” with a “clear and copious understanding,” who was “able and convincing in debate, steady and firm in his principles, and undoubtedly one of the best politicians in America.”

Mason continued to support a strong and active government in August, after the Committee of Detail presented a draft constitution based on resolutions the Convention had approved. He disagreed with delegates who thought Congress might not have to meet every year. Such men underesti¬mated how important Congress would be, he said, because “the extent of the Country will supply business”; in addition, Congress would have not just legislative but “inquisitorial powers” that could “not safely be long kept in . . . suspension.” Mason was responsible for giving Congress the power to “declare”—not “make”—war, which he saw as a way of “facilitating peace,” and supplied the phrase about giving the country’s enemies “aid and comfort” in the constitutional definition of treason.

Mason wanted to require a two-thirds vote of Congress for all laws regu¬lating trade to protect the interests of the exporting South against a North¬ern congressional majority. But he defended that provision from a nationalist, not a sectional, perspective. For the new government to be “lasting,” he said, it had to be so constructed that it could command “the confidence & affections of the people,” which required protecting minorities against abuses by the majority. He thought that requiring a supermajority on trade laws, which were sensitive, given sectional economic differences, would help accomplish that. Mason also passionately condemned not only the slave trade but slavery itself as an institution that retarded industry, discredited labor, and fostered tyrannical habits in owners. Slavery was a moral evil, and “providence punishes national sins,” he predicted, “by national calamities.” He lost on the issue of the slave trade because, he charged, delegates from South Carolina and Georgia agreed to let trade laws pass by simple majorities in return for a provision precluding the abolition of the slave trade until 1808.

Then suddenly, on August 31, Mason told the Convention he would “sooner chop off his right hand than put it to the Constitution as it now stands.” He wanted certain points decided before he voted on ratification procedures—or he might want to bring the “whole subject” before another convention. The same day he scribbled a list of “objections” to the constitution for the Maryland delegates, hoping to enlist their support in fixing what was broken. Once that was done, he said, “the system would be unexceptionable.” Mason thought the “aristocratic” Senate had too much power, but he could not get the Convention to give some of its advisory functions to a council of state in the executive branch (although Franklin, Madison, and James Wilson seemed sympathetic). Nor could he keep the vice president from becoming ex officio president of the Senate. He considered that provi¬sion “an encroachment on the rights of the Senate,” which should be free to choose its own presiding officer. He did, however, see to it that the House, not the Senate, would choose the president in the event that no candidate won a clear majority of electoral votes. And he contributed the phrase “high crimes and misdemeanors” to the clause on impeachment of the president. For an impatient man, Mason invested enormous attention in details. He knew they were important. They would determine whether the government would be a blessing or a scourge to future generations.

Edmund Randolph also developed reservations about the Convention’s proposal. Several of Randolph’s objections coincided with Mason’s: He too thought the Senate was too powerful, Congress’s power too broad, and also that the federal judiciary would pose a threat to state courts. Randolph suggested letting state ratifying conventions propose amendments to the constitution, which could be put into effect or rejected by a second general convention. Franklin seconded the motion, but Mason managed to have it set aside until the Convention could see the polished form of the constitution being prepared by the Committee of Style. The Committee of Style did not, however, solve the problems Randolph raised, nor those that Mason listed on the back of its report.

Nor did the Convention. Between September 12 and 17, the delegates went over the revised version of the constitution one last time, considering a mass of changes, accepting some but turning down most. Twice they rejected efforts to increase representation in the first House of Representatives. When North Carolina’s Hugh Williamson noted that the constitution included no provision for jury trials in civil cases, another delegate observed that jury trials were not proper in all civil cases. Maritime cases, for example, were generally decided by judges specially trained in admiralty law. Mason saw the problem: A general principle would be enough, he said, and he thought that if a bill of rights that supported the right to a jury trial along with other civil rights were added to the constitution, “it would give great quiet to the people.” A draft could be prepared in a few hours using state bills of rights as models, he said. Elbridge Gerry of Massachusetts moved to create a committee for that purpose; Mason seconded the motion. Connecticut’s Roger Sherman said the existing state declarations of rights were sufficient protection; Mason answered that the laws of the United States would be paramount to the state bills of rights. He might have added—as the delegates well knew—that not all states had bills of rights. Still, not one state supported Gerry’s motion. Later the delegates rejected motions to protect freedom of the press, to include a phrase protecting the people’s liberty against standing armies in time of peace, and, again, to guarantee jury trials in civil cases. Those additions were unnecessary, they said. They could endure no more delays; they wanted to go home.

Randolph, who had done so much to bring the Convention together, found himself in a painful position. He worried about the “indefinite and dangerous power” the constitution gave Congress, but he did not want to differ from the majority after so long and arduous a labor. To save him from that embarrassment, he formally moved that state conventions be allowed to propose amendments to the constitution, and that a second general convention convene to accept or reject those amendments before the constitution went into effect. Again, Mason seconded the motion. The constitution, he said, had been written in secret, “without the knowledge or idea of the people.” After a broad public debate, a second convention would “know more of the sense of the people, and be able to provide a system more consonant to it. It was improper to say to the people, take this or nothing.” He had suf¬ficient reservations about the constitution as it then stood that he could neither sign it nor support its ratification in Virginia. But “with the expedient of another Convention as proposed, he could sign.”

Charles Pinckney of South Carolina called the idea of a second convention a prescription for disaster. He too disliked parts of the constitution, but only “confusion and contrariety” could result from letting the states recom¬mend amendments to the constitution. They would all propose different things, and the delegates to the general convention would be too shackled by instructions from their home states to agree on anything. That “general confusion,” he feared, would finally be concluded “by the Sword.” Elbridge Gerry, however, endorsed the project—then “supported” the motion with a speech that effectively snuffed out whatever hope it had. He too had objec¬tions to the constitution, which he proceeded to list. As Gerry criticized the allocation of three-fifths representation for slaves, the length of senators’ terms, and Congress’s power to tax, to regulate commerce, and to raise an army, delegates no doubt saw the real possibility that all their hard-won compromises would dissolve into nothing.

Or were they more concerned with Gerry’s charge that Massachusetts would not have enough representatives in the first federal Congress? If the states fought over their particular interests in that way, what chance was there that the constitution would be improved by the process that Randolph, Mason, and Gerry supported? Gerry, in short, seemed to prove Pinckney’s point. Not one state delegation voted in favor of Randolph’s motion. The Convention then approved the constitution with the handful of changes it had made. But even Franklin’s eloquent speech, calling on his fellow delegates to doubt their infallibility and support the constitution, could not persuade Randolph, Mason, and Gerry to put their names to the document.

Mason’s objections

Soon the list of objections Mason wrote on the back of the Committee of Style report became something of a platform for critics of the constitution. The document, he said, did not include a bill of rights, or a “declaration of any kind” for preserving liberty of the press, trial by jury in civil cases, or against “the danger of standing armies in time of peace.” Mason (like Washington and Madison) objected to the small size of the first House of Representatives, which gave the people “the Shadow only of Representation” (although he later noted that the problem was reduced by the Convention’s decision on its final day to change the provision, so there could be one representative for every thirty thousand rather than one for every forty thousand people).

Senators had too much power, he said, given that they were to be chosen by the state legislatures and therefore were “not the representatives of the people or amenable to them.” The Senate could alter money bills and propose appropriations of money, including the salaries of officers it appointed; it had power over the appointment of ambassadors and other public offices, the enactment of treaties, and impeachments. Its close connection with the president, the senators’ long terms of office, and the fact that the Senate would be “almost continually sitting” would destroy the government’s balance and allow it to usurp “the rights and liberties of the people.” Since treaties would be the supreme law of the land, Mason thought the House of Representatives should have to consent to them, not just the Senate.

He continued to think that letting Congress pass “navigation acts”—laws regulating trade—by simple majorities put the five Southern states, which grew products such as tobacco and rice for export, at the mercy of the eight other states. He feared that Congress would pass laws that allowed merchants of the Northern states to demand exorbitant freight costs and to monopolize the purchase of commodities, paying prices that served their interest “to the great injury of the landed interest” and the “impoverishment of the people.” Requiring a two-thirds vote would instead produce “moderation, promote the general interest,” and remove an “insuperable objection” to ratification of the constitution in its current form.

Mason also feared that Congress would abuse the “necessary and proper” clause, using it to create monopolies, to define new crimes and “inflict unusual and severe punishments,” and in general to extend its authority so far as to threaten the powers retained by the states and rights retained by the people. On the other hand, he opposed Congress’s constitutional incapacity to interfere with the slave trade for twenty years. Further importations of slaves, he said, “render the United States weaker, more vulnerable, and less capable of defence.”

He objected to the fact that states could no longer levy export duties on their own produce (as Virginia had long done on tobacco) or pass ex post facto laws, which he claimed legislatures always had and always would pass “when necessity and public safety require them,” so the provision would be honored in the breach, inviting other infractions of the constitution.

Because the president had no “Constitutional Council,” Mason said, he would turn to “minions and favorites,” become a tool of the Senate, or receive advice from a council composed of executive department heads, who would readily agree to oppressive measures to avoid inquiry into their own misconduct in office. Mason proposed a council composed of two men from the Northern states, two from the mid-Atlantic states, and two from the South, all appointed by the House of Representatives, with each state having one vote, for six-year terms of office, with two of the six councilors coming up for reelection every two years. When necessary, the council’s president could act as vice president. Then the “unnecessary” office of vice president could be eliminated from the constitution: Because the vice president had nothing else to do while the president survived, the constitution made him president of the Senate, which violated the separation of powers and gave his home state “an unnecessary and unjust preeminence.” Mason also objected to giving the president power to grant pardons for treason, which would allow him to shield from punishment persons he had instigated to commit crimes and prevent discovery of his own wrongdoing.

Mason’s fears were a lot like Randolph’s. Mason thought the government under the constitution would begin as “a moderate aristocracy” and then, over time, become a monarchy or “a corrupt, tyrannical aristocracy.” Randolph predicted that the Convention’s plan of government would “end in Tyranny.” Mason and Randolph were not like the New York delegates Robert Yates and John Lansing, Jr., or Maryland’s Luther Martin, all of whom left the Convention early because they had no taste for anything except amendments to the Confederation. Randolph’s continental vision was well known, not least to Washington. No one, Washington wrote Randolph in November 1786, after the latter’s election as governor of Virginia, was more aware of the crisis in American affairs and the urgent need to take steps to avoid ruin than Randolph, and so nobody was better qualified to hold the “reins of Government.” Without Randolph’s skillful negotiations, Washington’s name might never have appeared as a member of the Virginia delegation to the federal Convention, encouraging the participation of other states. Randolph had also presented to the Convention the Virginia delegates’ plan for a powerful new government.

Mason’s support for a strong central government was of a more recent vintage, but his record at the Convention showed that his conversion was total. He believed in a national government whose authority came from the people and could be enforced on individuals. He was willing to invest substantial power in the central government—far more than the Confederation held—so long as the government included structural checks on the misuse of that power. Mason also insisted on provisions to protect minority interests and the people’s rights.

Although the Convention’s constitution failed to satisfy him, he did not question the need for fundamental change. He wanted to perfect the Convention’s proposal, not abandon it. That was why he and Randolph stayed to the end of the Convention. In October, when Mason sent Washington a revised list of his objections, he said they were “not numerous” and could easily have been removed by “a little Moderation & Temper, in the latter End of the Convention.” Later that month, Mason expressed hope that the state conventions would all meet at about the same time. If, after consulting each other, they agreed on “a few necessary amendments” while “determining to join heartily in the System so amended, they might, without Danger of public Convulsion or Confusion, procure a general Adoption of the new Government.” There he would be disappointed: Thanks to differences in state politics and legislative schedules, the ratifying conventions would be spread over a long period of time, from November of 1787 through the fol-lowing summer. As Mason anticipated, that complicated the task of amend¬ing the constitution by common consent of the states.

It would, in truth, have required a significant recasting of the Constitu¬tion to meet some of Mason’s and Randolph’s objections: their unhappiness with an imperfect separation of powers, for example, and what they considered the overly intimate relationship of the Senate and the executive. But neither Mason nor Randolph asked that everything they wanted be accepted. The sovereign people, or their representatives in the state ratifying conventions, would decide what changes should be made, and then another national convention would sort through the various state proposals, enacting some, perhaps with modifications, and rejecting others. Mason and Randolph insisted, however, that the people and their chosen representatives should be able to adjust the Constitution to their wishes before it went into effect. What right did the Convention have to tell the sovereign people to “take this or nothing”?

Although Washington acknowledged that the “imperfect” Constitution might need to be amended, he argued that amendments could be enacted after it was ratified, using the process described in Article V. Randolph thought it was better to repair the Constitution earlier, when he assumed that amendments could be adopted by a simple majority of states, not the three-quarters required to amend the Constitution after it was ratified. Once ratified, moreover, any constitution should be changed as little as possible in the interest of stability. More important, if the people were allowed only to accept the Constitution as written or to reject it, Randolph feared they would reject it. If its rejection brought, as Washington predicted, the onset of anarchy or the “general confusion” that Pinckney thought could only be ended by “the Sword,” the consequence of forcing the people to “take this or nothing” could be disastrous.

Although Randolph did not sign the Constitution, he kept his options for the future open. He was only thirty-four, a generation younger than Mason, and still had political ambitions he did not want to hazard. He had not decided what position he would take on ratification in Virginia, he told the Convention, but he did not want to deprive himself of the freedom to oppose it if “that course should be prescribed by his final judgment.” Mason, however, had no ambition for public office and he was not a man to hedge his bets. Without the prospect of a second convention, he declared, he would neither sign the document nor support it in Virginia. Like Washington, he was anxious to go home. Not, however, before winning some allies. He was, after all, “one of the best politicians in America.”