The most important election . . . that no one knows about

By Peter H. Luke

Stiles, for the convenience of churchgoers who arrived by horse or carriage, still stand outside the Hebron Lutheran Church in Madison County, which played a part in one of the most important elections in American history.

The Hebron Lutheran Church, still standing in Madison County, served as the background for one of the most important (and largely forgotten) elections in American history.courtesy photo
The Hebron Lutheran Church, still standing in Madison County, served as the background for one of the most important (and largely forgotten) elections in American history.

This church was already 49 years old when two future presidents stood on its steps on a cold and snowy January night in 1789 to debate the fate of the newly adopted Constitution of the United States. In 1789, what are now Rappahannock and Madison counties were part of Culpeper County, the most populous of the eight counties composing the new Fifth Congressional District.

It was in this district where James Madison, later to become the fourth president of the United States, and James Monroe, the future fifth president, squared off in an election to decide which of them would be among the first elected members of the House of Representatives.

The two Virginians were friends, so how did they end up on opposite sides in this election? Not by accident but thanks to Patrick Henry.

Patrick Henry’s problem

We will recall from our history lessons that in 1788 the newly adopted Constitution called for the selection of U.S. senators by the state legislators, not by popular election. When Madison, a Federalist, who in June of 1788 had led the successful effort in the Virginia General Assembly to ratify the Constitution, sought a Senate seat from Virginia, his defeat was orchestrated by Patrick Henry, governor of Virginia and then a strident Anti-Federalist who had opposed ratification of the Constitution.

When Madison announced for the House of Representatives, Henry sought a candidate more to his liking who could defeat Madison and advance the Anti-Federalist agenda in Congress. His problem was how to accomplish this.

Henry’s choice as candidate was revolutionary war hero Col. James Monroe, who had joined the Anti-Federalists and voted in the Virginia General Assembly against ratification of the Constitution, citing among its deficiencies that it did not contain a Bill of Rights protecting citizens from the federal government.

With his candidate in mind, Henry had gerrymandered (even though that term had not yet been invented) the fifth district to include both Madison’s home county of Orange and Spotsylvania County, a known Anti-Federalist county and home of Monroe, plus sufficient other Anti-Federalist counties to allow Monroe to defeat Madison.

But Henry took another step to ensure that Madison would not be elected. Even though Article 1, Section 2, Clause 2 of the Constitution does not require that a candidate for the House of Representatives actually reside in the district in which they are running, Henry got the Virginia General Assembly to pass a law requiring a candidate to have been a resident of that district for 12 months preceding the election.

This law prevented Madison from running in a district favorably inclined toward a Federalist candidate. He was forced to run in the fifth district, as it was designed by Henry, because it included his home county of Orange.

The ability of the States to supplement the Constitution with additional requirements for members of Congress, as Virginia had done with its 12-month residence requirement, was declared unconstitutional by the Supreme Court in 1995, albeit by a vote of 5-4.

The ingenuity of Henry’s plan cannot be overstated. Not only had he fenced Madison into an Anti-Federalist district that included Henry’s hand-picked candidate, the popular Monroe, but Monroe brought with him the Anti-Federalist electorate of Spotsylvania County.

It was no secret that the Anti-Federalists, while supporting a Bill of Rights, sought amendments to the Constitution that would eviscerate federal power and supremacy, and they had considerable political support.

The Constitution had been ratified by the Virginia General Assembly, the tenth state to do so, but only by a vote of 89-79. Had but six votes of the majority been cast the other way, there might not have been a federal government — or at least one that contained Virginia, then the richest, most populous and largest state, extending all the way to the Ohio river, and as it turned out, the birthplace of four of the first five presidents.

Had Virginia not ratified, it would have geographically separated the northern states from Georgia and South Carolina, which had already ratified. North Carolina was still trying to make up its mind in 1788 and did not do so until November 1789 after it knew of Virginia’s ratification.

After ratification by New Hampshire on June 21, 1788 (by a vote of 57-47), the requisite nine states’ ratification placed the Constitution into effect. However, there remained great consternation in the ratifying states — that the federal government would usurp the rights retained by the states and the citizens.

This issue festered and became central to the first congressional elections in 1789, and both candidates in the fifth district strove to point out how they would address this concern by amending the Constitution to include a Bill of Rights, though Madison came to this position later than Monroe (and some would say only out of political expediency in order to secure the votes necessary to ratify the Constitution in the Virginia General Assembly).

Thus, by the winter of 1788 the stage had been set for Madison and Monroe, as adversaries, to carry to the people the question of what was to become of the new Constitution, and by extension the new federal government.

The election

Culpeper County was seen as pivotal in the 1789 election because of its large population (13,879 per the census of 1790) and the projected split of Federalist and Anti-Federalist counties within the fifth district. (This split was estimated based on whether the county representatives had voted for or against ratification of the Constitution.)

To carry Culpeper County, both candidates thought it important to win over the “nest of Dutchmen” who had settled in Culpeper County’s Hebron Valley, now in Madison County, as early as 1725, and who, it was believed, would likely vote as a block.

Facing a Feb. 2 election day, Madison and Monroe, who often campaigned together (imagine that!), came to the Hebron Lutheran church in late January 1789.

The relationship between church and state was a sore subject to the Lutherans because, during colonial times, they, and others, had been taxed to support the Church of England, and as non-Anglicans they were denied the ability to hold public office.

From 1784 to 1786 there was a movement afoot in Richmond, supported by Henry, to impose a tax “for the support of Christian teachers.” But Madison would have none of that. He mobilized opposition to the proposed tax, publishing his “A Memorial and Remonstrance” in 1785, arguing that each citizen had a natural right to freedom of religion, and that government’s aid to religion had only served to harm it.

Then, in January of 1786 he drove a stake through the heart of state-supported religion in Virginia by shepherding Thomas Jefferson’s Act for Religious Freedom through the Virginia General Assembly, which remains in the Code of Virginia to this day.

Madison succeeded in large measure because the prior relationship between Virginia and the Church of England had made other sects suspicious of any involvement of the state in religious affairs; that well had been poisoned.

While some feared the influence religion might have on government, others feared the influence political institutions might have upon religion. Baptists, who had been especially ill treated during the reign of the Anglican Church, firmly believed that state support of religion corrupted it. No doubt their opposite positions on the issue of state support for religion further motivated Henry to seek Madison’s defeat in 1789.

It is unlikely Madison, well known for his views on religion and the state, could have found a more receptive audience than those who stood outside the Hebron Church that January night to hear the candidates.

Some have questioned why this debate took place outside in the cold when it just as easily could have been held inside, where Madison and Monroe had earlier attended a service replete with fiddles. It has been suggested that Madison did not want to bring politics inside a church; while direct factual support for that suggestion is lacking, it has a certain appeal.

The election of Feb. 2, 1789 was held with temperatures well below freezing; 10 inches of snow fell either on the day of the election, or two days before, depending on whose account you believe. The only polling place for Culpeper County, then comprising 983 square miles — for comparison, Rappahannock County is 267 square miles — was the county seat, then called Fairfax, or Culpeper Courthouse, and now called the Town of Culpeper.

This would have required many voters to traverse the notoriously poor roads and fords of that time in miserable weather in order to vote. But Madison carried Culpeper County, where he had been projected to lose, 256 to 103, and carried the fifth district 1,308 to 972.

In his book, “James Madison and the Struggle for the Bill of Rights,” author Richard Labunski estimates there were 5,189 eligible voters — white male freeholders at least 21 years old — in the congressional district, and 932 in Culpeper County in 1789. With 359 votes cast, the voter turnout was about 39 percent. (How many of those votes were cast by voters from the portion of Culpeper that became Rappahannock County in 1833 is not known.)

Ironically, members of churches that would have received state tax money under Henry’s plan most likely supported Madison, the candidate who had made sure their churches would receive nothing.

After the debate of 1789, Madison mounted his horse and rode the 12 miles from Hebron Church back to his home in Orange County, suffering frostbite of his nose along the way.  Perhaps he reflected upon how he, one of the foremost critics of the entanglement of church and state, had come to the steps of a church to win election to Congress.

A promise made, a promise kept

Once elected, Madison followed through on his campaign promise to propose amendments to the Constitution protecting religious and individual rights against federal encroachment. He is credited with being the chief architect of the Bill of Rights, the first 10 amendments to the Constitution, which were certified in March 1792.

Some historians have speculated we would not have a Bill of Rights had Monroe won the election. To say this, though, ignores that Monroe had also campaigned on the need for such a bill. What can be said, however, is that if Monroe had won, we would not now have a Bill of Rights reflecting the beliefs of James Madison.

But after his election to Congress, Madison proposed, depending on how you count, as many as 39 changes to the Constitution, not just the 10 amendments finally adopted. Of these 39 proposals, only 12 were crafted into amendments and sent to the states for ratification, and of these 12, the 10 that became the Bill of Rights were ratified in December, 1791.

So what happened to amendments 11 and 12, which were originally proposed as the First and Second Amendments?

The First Amendment established a formula to determine the number of members in the House of Representatives that would have resulted in the House’s membership exceeding 5,000 today. It, like the “Second Amendment,” carried with it no date by which it had to be ratified. It fell one vote short in 1791 when there were but 14 states, and is now 27 votes short — and therefore likely, and rightly, condemned to perpetual limbo.

The Second Amendment, proposed by Madison in June of 1789, wandered for 203 years among the ever-increasing number of state legislatures like a ghost flitting through the night in search of its body. It finally became embodied in the 27th Amendment in 1992, and prohibits Congress from giving itself a pay raise that becomes effective before the next election of members of the House of Representatives. Although proposed by Madison, it just as much owes its existence to Gregory D. Watson.

While searching for a topic for a government paper, Watson, a student at the University of Texas-Austin in 1982, noted that Madison’s proposed Second Amendment might still have some life left in it because it did not contain a time limit by which it had to be ratified by the states.

Unfazed by the opinions of law professors who pronounced the Second Amendment a lifeless relic of the past, Watson pursued a letter-writing campaign to various state legislatures where he had no trouble finding people who thought Congress was already overpaid.

After a decade, he and his allies had accumulated 41 state ratifications; only 38 were needed. On May 18, 1992, the Archivist of the United States declared the 27th Amendment ratified. Virginia, always ahead of the pack, had ratified in December 1791.

Watson received a C on his government paper, his professor opining the Second Amendment was dead and would never be a part of the Constitution.

NOTES

After he was elected president in 1808, Madison selected Monroe as his secretary of state and secretary of war. Monroe served Madison from 1811 until he became president himself in 1817.

Later in life Patrick Henry switched sides, and in 1799 was elected to the Virginia House of Delegates as a Federalist.

Anyone interested in learning more about the candidates and this election should read “Founding Rivals: Madison vs. Monroe,” by Chris DeRose, or the Labunski book referenced above.

The story of the 27th Amendment is thoroughly explored in Richard B. Bernstein’s “The Sleeper Wakes: The History and Legacy of the Twenty-Seventh Amendment.”

Thanks to J.C.A. Stagg, now editor of the “The Papers of James Madison,” for meeting with me. Material covering the election of 1788-1789 is found in those Papers at “Congressional Series, Vol. 11.” Derived from those papers is “Madison’s Election to the First Federal Congress.”

Another account written closer in time to the actual events is William C. Rives’ “The Life and Times of James Madison, Vol. II.”

For Henry’s version of events, read Henry Mayer’s “A Son of Thunder,” and Norine Dickson Campbell’s “Patrick Henry: Patriot and Statesman.”

As to who was eligible to vote in the 1789 Congressional elections, and the elaborate definition of a “freeholder,” refer to Hening’s “Statutes at Large, Vol. 12.” Not only were “free negroes” prohibited but also “mulattoes.”

As for my simile of the ghost in search of its body, I have to give credit to Professor Hardy Dillard, who during a lecture on the law of contracts at the University of Virginia School of Law in 1970 thus described a right in search of a remedy.

In “U.S. Term Limits, Inc. v. Thornton,” the U.S. Supreme Court declared that the Constitution sets the requirements to be a member of Congress, and these may not be altered by the states. The requirements for members of the House of Representatives are that they be 25 years old, seven years a citizen of the U.S. and an inhabitant of the state from which they are elected; there is no 12-month residency requirement as imposed by Virginia. As with virtually every other provision of the Constitution, there is ample debate over the meaning of this one, and the reader is directed to “The Constitution of the United States of America, Analysis and Interpretation, Centennial Edition” (gpo.gov/constitutionannotated) for everything they could care to read about it.

There was some confusion as to how many states needed to ratify the 12 amendments proposed by Congress in 1789 in order to achieve the required three-fourths. When proposed in September 1789, there were but 13 states, thereby requiring 10 ratifications. But Vermont became the 14th state on March 14, 1791. (Did you know Vermont had to pay New York $30,000 before it could become a State?) Were there now 10 or 11 states required to ratify?

Thomas Jefferson, secretary of state, kept the tally, and his handwritten notes are in the Library of Congress. They show he counted using the 13 states that existed at the time the 12 proposed amendments were sent to the states.  This meant that, by Jefferson’s calculations, Virginia’s ratification on Dec. 15, 1791, being the 10th state to ratify, put those 10 into effect; these are the Bill of Rights.

But what about Vermont? Actually, Vermont voted to ratify all 12 amendments on Nov. 3, 1791, before Virginia, making it the 10th state to ratify the Bill of Rights. But if we count Vermont’s ratification, it means we also have to count it as a state, meaning there were then 14 states, and therefore 11 ratifications needed. Virginia would have provided that 11th ratification in December of 1791. So no matter how you look at it, Virginia was the state that put the Bill of Rights over the top.

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