Robert A. Rutland, University of Tulsa
In 1787 George Mason was a political figure to be reckoned with. spoken of in the same breath with Virginians Washington, Jefferson, Madison, Patrick Henry, and Richard Henry Lee. He was, as they said then, "a man of parts"; Jefferson described him as "of the first order of greatness." The chief author of the Virginia Declaration of Rights in 1776, Mason had been either a legislator or a confidant in the Revolutionary councils of the Old Dominion from 1774 onward. Now, from May to September in 1787, Mason was a key member of his state's delegation at the Federal Convention, a frequent and persuasive speaker, and the man who played a vital role in such matters as presidential impeachment and fiscal responsibility.
But Mason did not approve of the outcome of the Constitutional Convention. He made significant last minute motions on the convention floor, and one which his colleagues rejected returned to haunt them: Mason belatedly called for the addition of a bill of rights to the Constitution. Mason's call was shaped into a motion by Elbridge Gerry. They must have witnessed the roll call of states with chagrin as the resolution "to prepare a Bill of Rights" was defeated unanimously.
Then and later the Federalists were short-tempered when the subject of a bill of rights arose. Delegate Robert Sherman was their spokesman when he helped derail Mason's motion. Stating that he too was "for securing the rights of the people where requisite," Sherman continued, that "the State Declarations of Rights are not repealed by this Constitution; and being in force are sufficient." Moreover, Sherman contended, "the Legislature may be safely trusted." James Madison sided with Sherman and five days later, thirty-nine of Mason's col leagues (one by proxy) signed the Constitution. Mason, Gerry, and Edmund Randolph (who also declined to sign), watched the convention approve the Constitution, according to Dr. Franklin's motion, "by the unanimous consent of the States present."
Franklin's tactic placed the trio of naysayers on the defensive, an awkward position for one like Mason who had been so hopeful at the start of the enterprise. Mason had come to Philadelphia that spring convinced that "the Eyes of the United States are turn'd upon this Assembly, & their Expectations raised to a very anxious Degree." "May God grant we may be able to gratify them," Mason prayed in June 1787. Along with James Wilson and James Madison, Mason had engaged articulately in debates on behalf of enlarging participation. Mason's arguments for popular election of the lower house in Congress, his insistence on the right to impeach a corrupt president, and his approval of presidential elections by a direct vote of the citizenry all fitted his philosophical commitment to a broad-based republic. A slave owner and man of means, Mason had also denounced the slave trade.
At the same time, Mason sought to keep the Union from swallowing the states, and thus he supported selection of senators by the state legislatures and vowed "he never would agree to abolish the State governments. or render them absolutely insignificant." Mason also adamantly sought protection for southern shipping interests in the form of a two-thirds majority for commercial legislation. Within his own guidelines, Mason steadily argued for a government that trusted the people over the privileged. Fellow delegate William Pierce said of Mason: "He is able and convincing in debt steady and firm in his principles, and undoubtedly one of the best politicians in America."
After nearly four months of give and take, compromise and bullying, the delegates had survived and so had their Constitution; but in Mason's view the convention still gave too little attention given to citizens' rights. Mason distrusted the final draft as a protector of the individual citizen or of the southern planting economy. During that last week, Mason recorded his misgivings about the Constitution on the back of the printed report of the Committee of Style, beginning simply: "There is no Declaration of Rights." From that preamble, Mason proceeded to list what he called his "Objections to this Constitution of Government."
His original list of objections claimed that the Constitution upset the English common law, made Congress into a kind of oligarchy, allowed the federal courts to destroy state ones, and left the presidency rudderless without a "Constitutional Council." Mason feared that without the latter, a natural cabinet "will grow out of the principal officers of the great departments; the worst and most dangerous of all ingredients for such a Council in a free country." The created office of the Vice President, Mason thought, was disastrous and unnecessary, since the incumbent "for want of other employment is made president of the Senate, thereby dangerously blending the executive and legislative powers."
As for the presidential powers, Mason thought the chief executive might misuse his "unrestrained power of granting pardons for treason" and might "screen from punishment those whom he had secretly instigated to commit the crime, and thereby prevent a discovery of his own guilt." The president's treaty-making powers, combined with senatorial approval, made such pacts the supreme law of the land without any scrutiny by the people's branch of government-the House of Representatives. And by allowing a congressional majority to pass laws restricting American commerce "the five Southern States, whose product and circumstances are totally different from that of the eight Northern and Eastern States, may be ruined."
Mason also lambasted the vague construction of the Constitution and foresaw the "general welfare" clause as a catchall term bound to be abused. Although Mason specifically called for declarations of freedom of the press and trial by jury, he lamented the ban on ex post facto laws in the state legislatures since "there never was nor can be a legislature but must and will make such laws, when necessity and the public safety require them."
Gloomy to the end, Mason predicted that without an immediate ban on slave trading the nation would be "weaker, more vulnerable, and less capable of defense," and under the Constitution would "set out [as] a moderate aristocracy" then degenerate into either a monarchy or "tyrannical aristocracy." "It will," he predicted, "most probably vibrate some years between the two, and then terminate in the one or the other."
First as a handwritten text and then as a printed pamphlet, Mason's "Objections" made the rounds in Philadelphia's political circles during the last two weeks of September. From the opening phrase of his "Objections" to the bill of rights that James Madison offered in Congress two years later, the line is so direct that we can say Mason forced Madison's hand. Federalist supporters of the Constitution could never overcome the protest created by Mason's phrase: "There is no Declaration of Rights." Months later, Hamilton was still trying "to kill that snake" in Federalist No. 84. Oliver Ellsworth's "Landholder" essays in 1787-88, perhaps more influential than the papers of "Publius," also made a frontal. attack on Mason's "Objections," as did Federalist James Iredell in North Carolina in 1788.
But the idea was too powerful. Mason's pamphlet soon circulated along the Atlantic seaboard and by the onset of winter the "Objections" had appeared in newspapers in Virginia and New Jersey. Mason himself paid for a second printing and sent Washington the pamphlet early in October, claiming that "a little Moderation & Temper, in the latter End of the Convention, might have removed" his misgivings.
Mason also mailed one to Jefferson, then at his diplomatic post in Paris, explaining that "These Objections of mine were first printed very incorrectly, without my Approbation, or Privity; which laid me under some kind of Necessity of publishing them afterwards, myself. You will find them conceived in general Terms; as I wished to confine them to a narrow Compass." Mason went on to add to his list objections related to regulating the state militia, to the potential power to abuse the election process, and the power of congressmen to raise their own salaries. "But it would be tedious to enumerate all the Objections," Mason concluded, "and I am sure they cannot escape Mr. Jefferson's Observation." But whatever his other objections, it was the issue of the bill of rights that struck Jefferson. Not long after Mason's pamphlet reached Jefferson's desk in Paris the American minister was writing to friends at home in outspoken terms. Jefferson told Madison he liked the Constitution but was alarmed by "the omission of a bill of rights," and, to John Adams's son-in-law, Jefferson said bluntly: "Were I in America, I would advocate it [the Constitution] warmly till nine states should have adopted, and then as warmly take the other side to convince the remaining four that they ought not to come into it till the declaration of rights is annexed to it."
In a backhanded way, Jefferson's plan became the model. Alarmed by Anti-Federalist strategy that aimed at a second federal convention, friends of the Constitution wanted to derail any scheme for another national gathering. Although Madison was concerned that a bill of rights would offer little real protection and by enumerating some rights put others in jeopardy, if concessions on the bill-of-rights issue could forestall demands for a second convention, Federalists came to realize they must pay that price. Starting at the Massachusetts ratifying convention in February 1788, Federalists in charge of counting votes abandoned their adamant position and began to talk about "recommendatory amendments."
By conceding that a bill of rights ought to be considered by the first Congress, Madison and his coworkers whittled away at the AntiFederalist majority in Virginia. Their concession on a bill of rights made it easier for committed AntiFederalist delegates to swallow the bitter pill of ratification, and in Virginia the Federalists' gesture also gave proponents of the Constitution a way to defend a vote in opposition to Patrick Henry and Mason, who were still not assuaged. As they saw their majority melting away, Henry and Mason wanted their proposed amendments, including a bill of rights, to be a condition for Virginia's ratification. When the convention rejected that tactic and voted instead, as the Massachusetts delegates had done, for "recommendatory" amendments, the game for the staunchest Anti-Federalists was over. The Constitution was quickly ratified.
But James Madison had learned his lesson. A few months later, when he ran for a seat in that first Congress, Madison had to assure constituents that "it is my sincere opinion that the Constitution ought to be revised." What changes would he seek? Nothing less than a bill of rights containing "the most satisfactory provisions for all essential rights, particularly the rights of Conscience in the fullest latitude, the freedom of the press, trials by jury, security against general warrants &c." It seems unlikely that Madison would have made such an aboutface without the storm of protest first raised by Mason's "Objections."
By not signing the Constitution, Mason had gained a principle but lost a friend. Or almost so, for a painful estrangement between Madison and himself did not abate until Madison introduced a bill of rights in Congress in September 1789. Mason quickly praised the provisions in a letter to Congressman Samuel Griffin from Virginia, knowing his letter would be seen by Madison. "I have received much Satisfaction from the Amendments to the federal Constitution, which have lately passed the House of Representatives," Mason wrote, "I hope they will also pass the Senate. With two or three further Amendments . I could cheerfully put my Hand & Heart to the new Government."
One of the most self-effacing men ever to serve the American people, Mason regretted the tensions that grew out of the ratification struggle. Eventually, he welcomed Madison and Jefferson back to his home at Gunston Hall, and their friendship fell into the old grooves. But Mason standing as a "founding father" was long under a cloud, owing chiefly to his stance on the Constitution. His patriotic service in preparing the Fairfax Resolves in 1774, his cardinal role at the Virginia Convention of 1776, his authorship of that state bill of rights, until 1829), and his offering of time, talent, and money to the American cause between 1776 and 1781 became only dim memories, hardly mentioned in the standard histories. By the early twentieth century, however, attention to civil liberties began to increase and scholars came to note the original role Mason played when he insisted on constitutional protection for a free press and other civil rights. By 1988, Mason was beginning to reap some of the acclaim he deserved for his simple warning: "There is no Declaration of Rights."
Copyright 1985 by the American Political Science Association and American Historical Association. This essay may be photocopied if attributed as follows: "Reprinted from this Constitution: A Bicentennial Chronicle, Fall 1985, published by Project '87 of the American Political Science Association and American Historical Association. For further information on APSA copyrights contact APSA at firstname.lastname@example.org, by phone at (202) 483-2512 or Fax (202) 483-2657.
ABOUT THE AUTHOR Robert A. Rutland, is former editor of the Papers of James Madison and is research professor of history at the University of Tulsa.
So Mason said the Constitution conflicted with common law? No doubt it does, in some aspects, which is why we have the legal doctrine that common law is automatically overridden when it comes into conflict with statute law.
It is extremely doubtful that he meant that the mere institution of a constitutional government would by itself immediately invalidate all aspects of the common law, including definitions of legal terms. If it had, all aspects of law would have had to be rewritten by stature, and they just weren’t. US law has gradually veered away from correspondence with English law as both countries pass statutes, but for a long time it was very similar.
In particular, if the Founders meant “natural born citizen” to be something different from that known to common law, the normal and natural meaning in a legal sense at the time, one would expect them to have explained it in more detail.
When legal men use a legal term in a document, one expects them to use it in the normal and standard sense, unless they explain otherwise. If they don’t, we quickly get into “definition of is” territory.
RC, thank you for post # 52. A most enlightening discussion of George Mason’s role in the advocacy of a “Bill of Rights”.
When I ponder the generation of the Founders, and how struggled to create something that had never existed before, I marvel at their work and industry.
I am also keenly aware that without the guidance of God, this nation would have never had the foundation in law it had, nor would the country founded on these principles ever survive.