The Political Thought of Richard Henry Lee
By Holly Eileen Munchoff Kendig

CHAPTER II
GENERAL CONSIDERATIONS ON THE CONSTITUTION

Elected again to Congress for a one-year term in June, 1784, Lee became president of the Congress on November 30. Even this soon after the definitive peace treaty, a lack of interest in the Congress was apparent from the poor attendance,[note 71] and Lee was receptive to the increasing demand for a change in government. On November 26, 1784, he wrote James Madison regarding the clamor for a stronger union, asking Madison’s opinion on the advisability of calling a convention.[note 72] Yet Lee was still quite cautious regarding any extension of power or authority. In a letter to Samuel Adams of March 14, 1785, Lee observed:

I think Sir that the first maxim of a man who loves liberty should be, never to grant to Rulers an atom of power that is not most clearly & indispensably necessary for the safety and well being of Society. . . . The fact is, that power poisons the mind of its possessor and aids him to remove the shackles that restrain itself.

Specifically, he urged caution with regard to hasty efforts to change the Confederation. He admitted that “all things human must partake of human infirmity, and therefore the Confederation should not be presumptuously called an infallible system for all times and all stations—but tho’ this is true, yet as it is a great and fundamental system of Union & Security, no change should be admitted until proved to be necessary by the fairest fullest & most mature experience.”[note 73] In essence, he was open to considerations of a new government, provided nothing was done rashly.

Although Lee was reelected to Congress in November, 1785, poor health kept him away the entire term. When he returned in July, 1787, the Congress was an empty shell, far overshadowed by the expectancies of the Constitutional Convention. During the spring and summer of 1787, Lee grew more amenable to stronger central government and recognized that a simple change would not be a satisfactory solution. In the following observations, he tried to impart his conception of the problem facing government to George Mason, one of Virginia’s delegates to the Constitutional Convention:

I fear it is more in vicious manners, than mistakes in form, that we must seek for the causes of the present discontent. The present causes of complaint seem to be, that Congress cannot command the money necessary for the just purposes of paying debts, or for supporting the federal government; and that they cannot make treaties of commerce, unless power unlimited, or regulating trade be given. The confederation now gives the right to name the sums necessary, and to apportion the quotas by a rule established. This rule is unfortunately, very difficult of execution, and, therefore, the recommendations of Congress on this subject, have not been made in a federal mode; so that states have thought themselves justified in non-compliance.

Clearly Lee felt, the problems of the Confederation centered on a lack of sufficient federal authority with the result that the states did not necessarily comply with quotas. He continued:

If the rule were plain and easy and refusal were then to follow demand, I see clearly, that no form of government whatever, short of force, will answer; for the same want of principle that produces neglect now will do so under any change not supported by power compulsory; the difficulty certainly is, how to give this power in such a manner that it may only be used to good, and not abused to bad, purposes.[note 74]

Apparently, he had come to realize that a substantial increase of power was the only viable alternative, yet even that depended on the cooperation of the states for effectiveness.

In the same letter to George Mason, Lee made a specific suggestion for a stronger central government. He proposed that under the new system, any state legislation which opposed or interfered with the legislation or the rights of Congress be null and void.[note 75] Thus, at the time of the Constitutional Convention, Lee assumed a new system would be established and recognized the need for a more complex government to the extent that he was willing to sacrifice state powers. He pointed out other weaknesses in the Confederation, too. He noted that “whoever has served long in Congress, knows, that the restraint of making the consent of nine states necessary, is feeble and incompetent,”[note 76] implying that this requirement should be altered in the forthcoming system.

Lee’s growing conviction that a stronger government was necessary is also illustrated in his changed attitude toward the proposed impost. “The states have been so unpardonably remiss, in furnishing their federal quotas,” Lee argued in 1787, “as to make the impost necessary. . . .” This was a marked reversal of Lee’s earlier opposition to the impost in any form and a development which signified his gradual acceptance of major changes in governmental authority. At the same time, however, he distinguished between the right of making commercial treaties and the actual legislative power, claiming that the central government could be delegated the right of concluding such agreements without the states giving up their legislative authority.[note 77] Consequently, Lee showed once again his reluctance to turn over large powers to the federal government, while realizing its necessity in some instances.

By August, Lee admitted that “the present federal system . . . has been found quite inefficient and ineffectual.” He even went so far as to support a basic change in the delegation of governmental authority, maintaining that

The government must be both legislative and Executive, with the former paramount to the State Legislatures in certain essentials to federal purposes.

Lee further announced his expectation of a “triple balance” which he defined as a “compound of the simple forms acting independently, but forming a joint determination”—in other words, a mixed government. He also foresaw that the executive would have “more duration and power enlarged beyond the present.”[note 78] In a letter to his brother Francis Lightfoot Lee, he had earlier speculated that the forthcoming Constitution would be similar to the British Constitution, with an executive and two legislative branches. He approved wholeheartedly of this possibility, saying that “this departure from Simple Democracy seems indispensably necessary, if any government at all is to exist in N. America.”[note 79]

Additional evidence of Lee’s inclination towards stronger government can be round in his attitude towards the new plan for governing the western territory. The original plans for government of western lands were drawn up by Thomas Jefferson in 1784 and provided for complete self-government at every stage. But the Ordinance of 1787 included a period when the territory was under control of three judges and a governor appointed by Congress. When the territory had 5,000 adult males it could send a non-voting representative to Congress and elect a legislature, but the governor had full power of veto and could dissolve the legislature at any time. The territory could become a state when it reached 60,000 inhabitants and Congress approved its constitution. The Ordinance of 1787 was made more restrictive because Congress had been angered by squatters on western lands. Lee supported the stronger ordinance in a letter to General Washington, saying,

It seemed necessary, for the security of property among uninformed, and perhaps licentious people, as the greater part who go there are, that a strong toned government should exist, and the rights of property be clearly defined.[note 80]

Lee apparently felt that the nature of western settlers required a particularly strong government, and admitted that the western government was “much more tonic than our democratic forms on the Atlantic are.”[note 81]

Clearly then, Lee was growing more and more receptive to strong government by the time of the Constitutional Convention. Yet he was still quite cautious and apprehensive about tendencies toward “rash impatience” on the part of many of his countrymen, a trait which he believed might lead to a loss of liberty. “Whence this immense change of sentiment in a few years?” Lee bemoaned, “for now the cry is power, give Congress power.” Although he feared impetuousness on the part of many of his fellow Americans, he had a great deal of confidence in the delegates to the Convention, taking confort in that “so many gentlemen, of competent years, are sent to the convention.”[note 82] Having made this remark to George Mason, a delegate to the Convention, Lee’s statement might be written off as mere flattery had he not made similar comments to others, including Edmund Randolph, then governor of Virginia.[note 83]

Lee was apparently committed to a change in government, yet when the results of the Convention were made public in the fall of 1787, he was less than pleased. In fact, the proposed Constitution seemed to spur Lee to reconsider his position and resulted in his opposing several aspects of the new government. Lee’s criticisms were not indiscriminate, however, and he frequently made reasonable suggestions for amending aspects of the proposed plan which represented safeguards and did not change the basic tenor of the new government.

In the days after Lee learned about the Constitution, he wrote several letters making his objections more clear. Yet he was not satisfied with merely writing to personal friends. In a series of
letters published in a pamphlet, he made a more thorough-going
critique.[note 84] The pamphlet was quite popular and sold several thousand copies. His initial success inspired him to write a second series of letters, dated from December 25, to January 25, 1788, but this pamphlet was not as successful.[note 85]

Despite his frequently expressed doubts, questions, and criticism for the Constitution, Lee accepted the plan as a solid foundation for the new government. From his first letter questioning the Convention’s proposal, through his published pamphlets, he granted that “this Constitution has a great many excellent regulations in it, and if it could be reasonably amended would be a fine system.”[note 86] Lee recognized the need for a “federal system,” and asserted that the proposed system would be “a tolerable good one” with alterations.[note 87] Yet Lee felt the amendments were so important that the establishment of the new government without them would either lead to “tyranny” or “civil war.”[note 88]

By December, 1787, he termed the Constitutional system “a better basis to build upon than the Confederation.”[note 89] Thus, Lee had several good things to say about the proposed government. His remarks indicate his ultimate confidence in the Constitutional system, provided certain amendments were obtained. He recognized that there could be no going back:

I know our situation is critical, and it behooves us to make the best of it. A federal government of some sort is necessary. We have suffered the present to languish; and whether the confederation was capable or not originally of answering any valuable purposes, it is now but of little importance.[note 90]

Because of his criticisms and reluctance to approve the Constitution without amendments, Lee is often classified as an Antifederalist unalterably opposed to the proposal. He clearly did not fit that stereotype, however. In fact, he experienced mixed emotions about the question of government, if we can believe his own testimony.

My uniform federal attachments, and the interest I have in protection of property, and a steady execution of the laws, will convince you, that, if I am under any bias at all, it is in favor of any general system which shall promise those advantages. The instability of our laws increases my wishes for firm and steady government; but then, I can consent to no government, which, in my opinion, is not calculated equally to preserve the rights of all orders of men in the community.[note 91]

Consequently, it is apparent that Lee shared with the framers of the Constitution a preference for a federal government with a firm commitment to protecting property and keeping the law.

Even more than this, however, he was drawn by a feeling of American nationality. “I feel an aversion to the disunion of the states, and to separate confederacies,” he said. “The states have fought and bled in a common cause, and great dangers too may attend these confederacies.”[note 92] The underlying potential in the proposed system, along with the appeal of national advantages, convinced him the Constitution was worth amending.

There was a limit to the advantages of national government in Lee’s eyes, however. He favored a federal government, but feared the new system would in actuality result in a consolidated government.[note 93]

A plan may be federal or not as to its organization; each state may retain its vote or not; the sovereignty of the state may be represented, or the people of it. A plan may be federal or
not as to its operations—federal when it requires men and monies of the states, and the states as
such make the laws for raising the men and monies—Not federal when it leaves the state governments out of the question, and operates immediately upon the persons and property of the citizens. The first is the case with the confederation, the second with the new plan: in the first the state governments may be check, in the last none at all.

His worry for the lack of federal characteristics was intensified because he felt the state governments would be “principally in the hands of the democracy,” whereas the central government would be controlled by the natural aristocracy. Consequently, it was very important that state governments act as a check upon the central governmert. Feeling that the state governments were weakened in the Constitution, Lee saw federalism threatened.

Does the constitution provide a single check for a single measure, by which the state governments can constitutionally and regularly check the arbitrary measures of congress? Congress may raise immediately fifty thousand men, and twenty millions of dollars in taxes, build a navy, model the militia, &c. and all this constitutionally. Congress may arm on every point, and the state governments can do no more than an individual, by petition to congress, suggest their measures are alarming and not right.[note 94]

The solution he proposed was to return some powers to the states, such as those over internal police, internal taxes, the militia, and the power of the states to hold their judicial decisions upon their own laws final. Were no corrections made, Lee felt the state governments would eventually be “annihilated,” or “continue to exist for no purpose.”[note 95] The Federalists, on the contrary, foresaw a greater tendency for the state governments to encroach upon the national government.[note 96]

Above all, Lee did not want ratification hurried through. As early as the first presentation of the Constitution to the Continental Congress, he was disturbed by the pressure to accept the plan unreservedly. He described the tenor of that session to George Mason as follows:

It was with us, as with you, this or nothing; and this urged with a most extreme intemperance.[note 97]

Refusing to be intimidated, he and some other members of Congress at first had questioned whether that body was even qualified to consider such a drastic change, but the majority determined that the proposed Constitution might be considered. Then Lee proposed several amendments[note 98] to the Constitution, which action in his words, “greatly alarmed the majority and vexed them extremely; for the plan is to push the business on with great dispatch, and with as little opposition as possible, that it may be adopted before it has stood the test of reflection and due examination.[note 99] On the contrary, he felt the establishment of a new

government called for the cautions attention and careful consideration of Americans, and he countered those who urged a hasty ratification, saying:

If it be found right, after mature deliberatien, adopt it; if wrong, amend it at all events: for to say that a bad government must be established for fear of anarchy, is really saying that we should kill ourselves for fear of dying!

Rejecting the argument that there would be too many problems and disagreerrents if another convention were called to approve amendments, Lee pointed out that the past convention had not been so difficult to assemble, and that the country was not faced with problems of external war or internal discord, which might obstruct the calling of another convention.[note 100]

Although he admitted there could be danger in delaying acceptance of the Constitution, Lee likewise felt there was danger in adopting the system in its original form. He perceived the danger in both cases as posed by “two very unprincipled parties.” One Party he described as composed of men in debt, “who want no law, and who want a share of the property of others, . . . called levellers, Shayites, etc.” The other party Lee felt was more dangerous, that of aristocrats, who “avariciously grasp at all power and property” and showed “an evident dislike to free and equal government.” Lee made it clear, however, that he did not intend to suggest that “either of these parties, and the real friends of the proposed constitution,” were the same men,[note 101] evidence that he held the framers of the Constitution in higher esteem than either of these groups.

On the other hand, Lee criticized some members of the Convention for instigating action toward the adoption of the system they helped develop. He felt it was time for them to step back and allow the people to express their sentiments. In his mind, the Convention should have been merely the first step in an extensive process of evaluation and development of the new government. The second step entailed an examination of the Constitution by the state conventions, for in them “the solid sense and the real political character of the country” would be embodied.[note 102]

Possible public apathy was another reason Lee advanced for securing amendments before adopting the Constitution. He feared that people might be inattentive to amendments after the system had been adopted, whereas they were then alert and vigilant, an attitude which constituted strong guards against abuses of power. In his view, however, this “vigilance of the people” was not constant enough to be depended upon.[note 103] Furthermore, he felt that although the body of the people realized the proposed system was “wrong and disadvantageous to them,” they tended to be less articulate in conveying their ideas. They also required more time to “distinguish clearly where the fallacy lies,” yet the pressure for adoption by more literate advocates inclined them to consent reluctantly.[note 104] Consequently, Lee not only felt amendments were needed to provide a greater assurance of democracy in practice, but he also wanted the Constitution to be subjected to an amendment process in the various states in order to iron out defects and obtain the best possible product.

Good government did not come easily, from his point of view, and creating good government was a complex and delicate task:

Good government is not the work of short time, or of sudden thought. From Moses to Montesquieu the greatest geniuses have been employed on this difficult subject, and yet experience has shown capital defects in the systems produced for the government of mankind. But since it is neither prudent nor easy to make frequent changes in government, and as bad governments have been generally found the most fixed, so it becomes of the last importance to frame the first establishment upon grounds the most unexceptionable, and such as the best theories with experience justify; not trusting, as our new constitution does, and as many approve of doing, to time and future events to correct errors that both reason and experience, in similar cases, now prove to exist in the new system.[note 105]

It is quite possible that Lee might not have seen the Constitution as hastily contrived had he struggled to arrive at an acceptable plan alone, with the other delegates to the Convention. However, his point was well taken, since it would seem the exception rather than the rule that good and enduring government could evolve without a longer process of evaluation and selective adoption.

In order to accelerate the ratification, some supporters of the Constitution tried to point to the defects in the Confederation, much to Richard Henry Lee’s dismay. While he admitted that there were deficiencies in the Confederation, he also maintained that the Confederation was made to bear more than its share of blame for the post-war problems. Specifically, he said, “We impute to the defects in our governments many evils and embarrassments which are clearly the result of the late war.”[note 106] Americans had expected too much from the return of peace, in Lee’s opinion, and were consequently quite disappointed. He conceded that irresponsible fiscal policies of state governments had given just cause of uneasiness to creditors,[note 107] but felt that the economic system was showing a definite recovery under the Confederation:

We are hardly recovered from a long and distressing war: The farmers, fishmen, etc. have not yet fully repaired the waste made by it. Industry and frugality are again assuming their proper station. Private debts are lessened, and public debts incurred by the war have been, by various ways, disminished; and the public lands have now become a productive source for diminishing them much more.[note 108]

Lee computed that the waste of labor and property from the Revolutionary War amounted to three hundred million dollars and blamed the war, not the Confederation, for problems of commerce, paper money and credit. “Our people are like a man just recovering from a severe fit of sickness . . . ,” he said, but added that Americans had done more toward reconstruction and recovery than any other people in a comparative time.[note 109] Lee obviously felt that progress was being made under the
Confederation to solve these problems, and in this respect substantiates the view of Merrill Jensen that under the Confederation the new nation made some progress.[note 110]

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