In praise of spirited debate

Michael W. McConnell on Patrick Henry’s dissent

—By Lori Craig

Patrick Henry, the prominent revolutionary who may or may not have declared, “Give me liberty or give me death,” so vigorously opposed ratifying the U.S. Constitution that his speeches took up more than a quarter of the three-week Virginia ratifying convention.

But Michael W. McConnell, a judge on the U.S. Court of Appeals for the 10th Circuit, says Henry’s greatest legacy stems from his defeat.

The Honorable Michael W. McConnell presents the 2007 Roth Lecture on Oct. 18.

“(Henry) had done his best and he had lost,” McConnell said. “That night Patrick Henry established the first precedent in the U.S. Constitution: He established that in this American republic, our political opposition may be vigorous, it is impassioned, but it is conducted in the proper place.”

McConnell presented the 2007 Justice Lester W. Roth Lecture, “In Praise of Losers: Patrick Henry and the Deepest Principle of the Constitution,” at Town and Gown on Oct. 18.

During the talk, McConnell suggested that Henry’s precedent is slipping, in the U.S. and elsewhere. More often, decisions made in the proper forum are being disregarded or improperly challenged. In another disturbing aspect of today’s American politics, debate doesn’t always center on making proposals for the greater good, but rather is used to make opponents look bad, McConnell said.

In the tradition of Henry, McConnell suggested those on the losing side of a debate work with the system, revise their proposals and try again. Henry wasn’t telling his followers to support the Constitution — “he meant giving it a fair shot,” McConnell said.

Henry was a man who foresaw and feared a militaristic America, with a too-powerful executive, too few civil liberties, excessively high taxes, weak states, and a federal judiciary with too much clout. He also thought the right to bear arms was the most important liberty to protect.

“You will recognize many of the anxieties of 2007 in Henry’s speeches of 1788,” McConnell said.

And Henry, “the great adversary,” seemed to be in the majority among the general population in his home state of Virginia. The approval of nine states was needed to ratify the Constitution. Of the 13 states at the time, two vowed not to sign and New York only signed when approval was apparent, making Virginia the decision-maker. Among the state's general population, McConnell said, an estimated four-fifths of people opposed the Constitution.

“The founding fathers were excruciatingly aware of the fragility of democracy, and Patrick Henry was particularly concerned of the emergence of military dictatorships,” McConnell said. “They had to determine how to construct a country that would be able to defend itself, but at the same time not be subject to takeover from within.”

Henry continued to fight to protect Americans from the new government he believed would threaten their liberties, by way of amending the Constitution. He played a key role in the ratification of the Bill of Rights — “not a bad contribution from a loser,” McConnell said.

McConnell has served on the Court of Appeals since 2002. He also teaches part time as Presidential Professor at the S.J. Quinney College of Law at the University of Utah, and as a visiting professor at Harvard Law School and Stanford Law School.