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Edmund Randolph and Virginia Constitutionalism

  • Kevin R. C. Gutzman

Scholars have long been under the impression that the doctrines enunciated in the Virginia and Kentucky Resolutions of 1798 and 1799 and the Virginia Report of 1800 originated with the authors of those documents, James Madison and Thomas Jefferson. Yet this article demonstrates that it was not either of those two future presidents who concocted what Andrew Jackson would dub “the Virginia Doctrine.” That distinction belongs to Governor Edmund Randolph, a non-signer of the Constitution at the Philadelphia Convention who became a leading voice for ratification in the Virginia Ratification Convention of 1788. The trajectory of Randolph's thinking regarding federalism and the story of his doctrine's effect in 1788 are recounted here. Ironically, the reading of the Constitution that would underpin various outbreaks of sectionalism in the antebellum period and later originated with a Federalist of 1788, not with an opponent of ratification.

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1. Ambler, Charles H., Thomas Ritchie: A Study in Virginia Politics (Richmond: Bell Book Co., 1913),passim.

2. Gutzman, K[evin] R. Constantine, “The Virginia and Kentucky Resolutions Reconsidered: ‘An Appeal to the Real Laws of Our Country,’” The Journal of Southern History 66 (2000): 473–96.

3. Koch, Adrienne and Ammon, Harry, “The Virginia and Kentucky Resolutions: An Episode in Jefferson's and Madison's Defense of Civil Liberties,” William and Mary Quarterly, 3rd ser, 5 (04 1948): 147–76.

4. Gutzman, “The Virginia and Kentucky Resolutions Reconsidered.”

5. One of the most famous explications of the original understanding of American federalism, Powell, H. Jefferson, “The Original Understanding of Original Intent,” in Interpreting the Constitution: The Debate Over Original Intent, ed. Rakove, Jack N. (Boston, MA: Northeastern University Press, 1990), pp. 53115, relies exclusively upon Madison's writings in explaining how Federalists of 1787–88 understood the place of the states in the proposed system. Ibid., p. 63, text at notes 96–102.

6. Malone, Dumas, Jefferson and His Time, vol. 4, Jefferson and the Ordeal of Liberty (Boston: Little, Brown and Co., 1962), pp. 73, 85, 264.

7. McDonald, Forrest, Alexander Hamilton: A Biography (New York: W. W. Norton and Co., 1979), p. 285.

8. Randolph's self-conscious moderation was in the tradition of later American figures such as Henry Clay. Cf. Knupfer, Peter B., The Union as It Is: Constitutional Unionism and Sectional Compromise, 1787–1861 (Chapel Hill: University of North Carolina Press, 1991);former Senate Majority Leader Baker, Howard, Commencement Address, University of Virginia, 05 1999.

9. Reardon, John J., Edmund Randolph: A Biography (New York: Macmillan Publishing Company, Inc., 1974), pp. 220–83.

10. Contrast, e.g., Rakove, Jack N., “The Madisonian Moment,” University of Chicago Law Review 65 (1988): 473–505, especially p. 504.

11. For the colonial Virginia tradition of constitutional disputation, see Gutzman, K[evin] R. Constantine, “Jefferson's Draft Declaration of Independence, Richard Bland, and the Revolutionary Legacy: Giving Credit Where Credit Is Due,” The Journal of the Historical Society 1 (2001): 137–54;Smith, Glenn Curtis, “Pamphleteers and the American Revolution in Virginia, 1752–1776” (Ph.D. dissertation, University of Virginia, 1937); and Gutzman, K[evin] R. Constantine, “Old Dominion, New Republic: Making Virginia Republican, 1776–1840” (Ph.D. dissertation, University of Virginia, 1999), chap. 1; for Randolph's appreciation of Bland, see Randolph, Edmund, History of Virginia, ed. Shaffer, Arthur H. (Charlottesville: University Press of Virginia, 1970), p. 190. The quotation is at p. 177.

12. Reardon, Edmund Randolph, p. 69;Randolph, Edmund to Jefferson, Thomas, 30 January 1784, The Papers of Thomas Jefferson, ed. Boyd, Julian P. et al. (Princeton: Princeton University Press, 1950 - ), 6:513–15. (“Besides Virginia and So. C. are as distinct from one another as France and G. Britain, except in the instances, provided for by the confederation.” [sic]) As John Adams put it, “Congress is not a legislative assembly, nor a representative assembly, but only a diplomatic assembly” (Adams, John, A Defence of the Constitutions of Government of the United States of America [London, 1787], p. 362).

13. The Documentary History of the Ratification of the Constitution, ed. Kaminski, John P. and Saladino, Gaspare J. (Madison, WI: State Historical Society of Wisconsin, 1988), 8:xxxvi. The editors point out that Randolph's rhetoric, both in trying to persuade Washington to participate and in presenting the Virginia Plan to the Philadelphia Convention, was far more apocalyptic. Ibid., p. 274, n. 1.

14. Reardon, , Edmund Randolph, p. 27.

15. Documentary History of the Ratification of the Constitution, 8:xxxvi.

16. Cf. Grigsby, Hugh Blair, The History of the Virginia Federal Convention of 1788, With Some Account of the Eminent Virginians of That Era Who Were Members of the Body, 2 volumes (Richmond: Virginia Historical Society, 1890), I:83.

17. Notes of Debates in the Federal Convention of 1787 Reported by James Madison, ed. Koch, Adrienne (New York: W. W. Norton and Co., 1966), pp. 614–15.

18. Documentary History of the Ratification of the Constitution, 8:11.

19. Notes of Debates in the Federal Convention of 1787 Reported by James Madison, pp. 655–56, 657.

20. Randolph, Edmund to Madison, James, 30 09 1787, Documentary History of the Ratification of the Constitution, 8:2526.

21. Edmund Randolph to James Madison, 29 October 1787, ibid., p. 133; reelection at note, ibid., p. 260.

22. Ibid., 8:19.

23. Carlisle [Pennsylvania] Gazette, October 24, 1787, ibid., 8: n. 1 at 19–20. Both Randolph and George Mason, the other Virginian non-signer, became polarizing figures in the wake of the news of their refusal to sign. Nicholas Gilman to John Langdon, October 23, 1788, ibid., 10:1778.

24. Edmund Randolph to James Madison, September 30, 1787, ibid., 8:25–26; Edmund Randolph to James Madison, c. October 29, 1787, ibid., 8:132–34; Edmund Randolph to James Madison, December 27, 1787, ibid., 8:275–76; Edmund Randolph to James Madison, January 3, 1788, ibid., 8:284. George Washington thought it only natural that all of the non-signers would attempt to justify their behavior before the public by exaggerating the Constitution's faults, but Randolph did not meet his expectations in this regard. George Washington to Henry Knox, October 15, 1787, ibid., pp. 56–57.

25. James Madison to Edmund Randolph, January 10, 1788, ibid., 8:288–91.

26. James Madison to Edmund Randolph, April 10, 1788, ibid., 9:730–31.

27. Edmund Randolph to James Madison, April 17, 1788, ibid., 9:741–42.

28. “The First Attempt at Cooperation between Virginia and New York Antifederalists,” May 8-October 15, 1788, Editors’ Note, ibid., 9:788–90.

29. Meriwether Smith, Charles M. Thruston, John H. Briggs, and Mann Page, Jr., to Governor Edmund Randolph, December 2, 1787, ibid., 8:194–95. The pamphlet is at “Edmund Randolph's Reasons for Not Signing the Constitution,” December 27, 1787, ibid., 8:262–74.

30. Governor Edmund Randolph to Meriwether Smith, Charles M. Thruston, John H. Briggs, and Mann Page, Jr., December 10, 1787, ibid., 8:229.

31. Governor Randolph, Edmund, “Edmund Randolph's Reasons for Not Signing the Constitution,” p. 262.

32. Ibid., p. 263.

33. Ibid., pp. 266–67.

34. Ibid., pp. 267–68.

35. Ibid., p. 270.

36. Ibid., pp. 269–70.

37. Ibid.

38. Ibid., pp. 271–72.

39. Ibid., p. 272.

40. Ibid., p. 273.

41. Ibid.

42. Ibid., p. 274.

43. Edmund Randolph to James Madison, 27 December 1787, ibid., pp. 275–76.

44. Martin Oster to Comte de la Luzerne, February 4, 1788, ibid., 8:343–45.

45. “A Plain Dealer,” Virginia Independent Chronicle, February 13, 1788, ibid., 8:364.

46. Ibid., pp. 364–65.

47. Ibid., p. 366.

48. Ibid.

49. Joseph Jones to James Madison, February 17, 1788, ibid., p. 381.

50. Edmund Randolph to James Madison, February 29, 1788, ibid., 8:436–37.

51. James Madison to Edmund Randolph, 10 April 1788, ibid., 9:731.

52. Speech of Edmund Randolph, 6 June 1788, ibid., 9:976.

53. Speech of Edmund Randolph, 4 June 1788, ibid., 10:931–36. He would refer to this idea again in, for example, Speech of Edmund Randolph, June 17, 1788, ibid., 10:1354.

54. For example, see Speech of Edmund Randolph, June 6, 1788, ibid., 9:971–989; and the convention-closing Speech of Edmund Randolph, June 25, 1788, ibid., 10:1537.

55. We glean an idea of the number of people who read Randolph's pamphlet carefully from the fact that George Mason took to calling Randolph “young Arnold” in light of his supposed switch. Rutland, Robert A., George Mason: Reluctant Statesman (Baton Rouge: Louisiana State University Press, 1961), p. 103;Grayson, William to Dane, Nathan, 4 06 1788, Documentary History of the Ratification of the Constitution, p. 1573.

56. Cf. Speech of Patrick Henry, 5 June 1788, ibid., p. 951.

57. Randolph was hardly alone among the convention's Federalists in making this calculation. Cf. (Convention President) Pendleton, Edmund, “The Danger Not Over,” The Letters and Papers of Edmund Pendleton, 1734–1803, ed. Mays, David John (Charlottesville: University Press of Virginia, 1967), 2:697–98.

58. Speech of Randolph, Edmund, 06 4, 1788, The Documentary History of the Ratification of the Constitution, 9:931.

59. James Duncanson to James Maury, June 7, 13, 1788, ibid., 10:1582.

60. Ibid., 9:932.

61. Ibid.

62. Ibid., 9:933. He repeated this last point in, for example, Speech of Edmund Randolph, June 6, 1788, ibid., 9:973.

63. See, for example, his criticisms of Article III in Speech of Randolph, Edmund, 21 06 1788, Documentary History of the Ratification of the Constitution, 10:1450–56; his disagreement with both sides in Speech of Edmund Randolph, June 16, 1788, ibid., 10:1328; his objection to the vagueness of the Necessary and Proper clause in Speech of Edmund Randolph, June 17, 1788, ibid., 10:1353; and his insistence that he still had severe doubts about the new Constitution's suitability in Speech of Edmund Randolph, June 9, 1788, ibid., 9:1085.

64. Speech of Edmund Randolph, June 6, 1788, ibid., 9:973.

65. Ibid., 9:975–76.

66. Ibid., 9:985–86.

67. Speech of Edmund Randolph, June 7, 1788, ibid., 9:1016.

68. Speech of Patrick Henry, June 9, 1788, ibid., 9:1057–58.

69. Ibid., 9:1066.

70. Speech of Edmund Randolph, June 9, 1788, ibid., 9:1081–82. Henry was not alone in thinking that Randolph's behavior had been inconsistent. James Monroe to Thomas Jefferson, July 12, 1788, ibid., 10:1704.

71. Ibid., 10:1085.

72. Speech of Edmund Randolph, June 10, 1788, ibid., 9:1099–1100 [emphasis added], 1102, 1103.

73. Speech of Patrick Henry, June 17, 1788, ibid., 10:1341; Speech of Edmund Randolph, June 17, 1788, ibid., 10:1347–48 (“it has no power but what is expressly given it” [emphasis added]), at p. 1350 (reference to “the express enumeration of its powers” [emphasis added]), at p. 1352 (no danger to various rights mentioned by Henry absent their “express infringement” [emphasis added]). Randolph makes an extremely forceful argument that the Necessary and Proper clause should be read narrowly at pp. 1348–49.

74. Ibid., 10:1353.

75. Grayson to Nathan Dane, 18 June 1788, ibid., 10:1636; James Madison to Rufus King, 18 June 1788, ibid., 10:1637.

76. So much for the idea that the ratifiers (other than James Madison) did not think that their understanding of what they were ratifying would guide later interpretations. Rakove, Jack N., “The Madisonian Moment,” fn. 73 at p. 503.

77. Speech of Edmund Randolph, 21 June 1788, ibid., 10:1455–56. [emphasis added].

78. Speech of George Nicholas, 24 June 1788, ibid., 10:1507.

79. The Virginia Form of Ratification, 26 June 1788, ibid., 10:1546.

80. Samuel Smith to Tench Coxe, 22 June 1788 (citing a Randolph letter of 18 June), ibid., 10:1666; Thomas Willing to William Bingham, 24 June 1788, ibid., 10.1670. Randolph repeated his insistence that the federal government would have only the powers it was “expressly” granted on June 24, as the convention moved toward its final votes. Speech of Edmund Randolph, June 24, 1788, ibid., 10:1483. In the same speech, he again pooh-poohed the idea that the General Welfare clause represented a catch-all grant of unnamed powers. ibid., at p. 1484.

81. James Madison to Alexander Hamilton, 22 June 1788, ibid., 10:1665.

82. Journal of the House of Delegates, 3 11 1790;Senate Journal, 21 12 1790.

83. Onuf, Peter and Onuf, Nicholas, Federal Union, Modern World: The Law of Nations in an Age of Revolutions, 1776–1814 (Madison, WI: Madison House, 1993), p. 139.

84. The descent of the “Principles of '98” from Randolph's, then Nicholas's, assertions in Richmond is traced in Gutzman, “The Virginia and Kentucky Resolutions Reconsidered.”

85. The locus classicus of this argument is Koch and Ammon, “The Virginia and Kentucky Resolutions.” Contrast Gutzman, “The Virginia and Kentucky Resolutions Reconsidered.”

86. In appraising the alignment of delegates thus, Randolph agreed with Madison. James Madison to Thomas Jefferson, December 9, 1787, ibid., 9:226–28.

87. Briceland, Alan V., “Virginia: The Cement of the Union,” The Constitution and the States: The Role of the Original Thirteen in the Framing and Adoption of the Federal Constitution, ed. Conley, Patrick T. and Kaminski, John P. (Madison, WI: Madison House, 1988), 223.

88. Cornell, Saul, The Other Founders: Anti-Federalism & the Dissenting Tradition in America, 1788–1828 (Chapel Hill: University of North Carolina Press, 1999), 282.

89. Jefferson, Thomas to Gerry, Elbridge, 01 26, 1799,The Writings of Thomas Jefferson, ed. Lipscomb, Andrew A. (Washington, 1905), 10:7677. The identification of the Randolph/Nicholas position with the opponents of ratification was powerfully expounded by ultra-Federalist John Marshall. Writing to his colleague Joseph Story, Marshall classified Virginian opposition to the Supreme Court's decision in McCulloch v. Maryland (in which his court had explicitly and frontally rejected the Randolph interpretation) by saying, “The opinion in the Bank case has brought into operation the whole antifederal spirit of Virginia.” However, Marshall was always a more extreme nationalist than Virginia's leading Federalists of the 1788 convention: Randolph, Nicholas, and James Madison—whose supposed sympathy for Hamiltonianism has recently been exposed as a myth. Banning, Lance, “The Hamiltonian Madison: A Reconsideration,” The Virginia Magazine of History and Biography 92 (1984): 328.

90. Cf. McDonald, Forrest, States′ Rights and the Union: Imperium in Imperio, 1776–1876 (Lawrence, KS: University Press of Kansas, 2000), pp. 2425, where the Randolph position is portrayed as a post-ratification invention of states’-rights supporters’ collective imagination.

91. Cf. Hobson, Charles F., The Great Chief Justice: John Marshall and the Rule of Law (Lawrence, KS: University Press of Kansas, 1996), pp. 114, 123;Brandon, Mark E., Free In the World: American Slavery and Constitutional Failure (Princeton, NJ: Princeton University Press, 1998);Powell, H. Jefferson, “The Complete Jeffersonian: Justice Rehnquist and Federalism,” Yale Law Journal 91 (1982), pp. 1317–70. (Note that Powell is the author of the article cited in note 5, above, as typical of work mistakenly using Madison as representative of all Federalists of 1787–88 on the issue of federalism.) In doing this, they have adopted (or perhaps have been misled by) the disingenuous position of Chief Justice John Marshall, who wrote—despite being one of the five members of the committee to draft an instrument of ratification, along with Randolph and Nicholas—that the Tenth Amendment could not mean what Republicans took it to mean, because it did not include the word “expressly” (McCulloch v. Maryland, 17 U.S. 316 [1819].

92. Cf. Scheiber, Harry N., “Federalism and the Constitution: The Original Understanding,” American Law and the Constitutional Order, ed. Friedman, Lawrence M. and Scheiber, Harry N. (Cambridge, MA: Harvard University Press, 1988), 8598.

93. Lenner, Andrew, “John Taylor and the Origins of American Federalism,” Journal of the Early Republic 17 (1997), pp. 399423.

94. Randolph seems not to have been persuaded by his own argument for long: in his opinion for President George Washington on Hamilton's bank bill, Randolph allowed that a law incorporating a bank would be constitutional if the nature of the federal government implied that Congress could adopt such a law; under this reading, he said, the bank was unconstitutional. He had once again located the mid-point between extremes (the Federalists’ broad construction and the Republicans’ view that only what was expressly authorized was authorized). Reardon, John J., Edmund Randolph, p. 197.

95. Cornell, Saul, “Moving Beyond the Canon of Traditional Constitutional History: Anti-Federalists, the Bill of Rights, and the Promise of Post-Modern Historiography,” Law and History Review 12 (1994): 128.

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