During the Virginia ratifying convention on June 20, 1789, Patrick Henry warned that the power bestowed to the Supreme Court would undermine the right to trial by jury.

Henry was a strong opponent of ratification throughout the convention. He was deeply wary of the many new powers delegated to the general government and what he saw as the potential or certain loss of individual rights and liberties.

One area of concern was the proposed powers delegated to the U.S. Supreme Court under Article 3 of the proposed Constitution.

I consider the Virginian Judiciary as one of the best barriers against strides of power—against that power which we are told by the Honorable Gentleman, has threatened the destruction of liberty. Pardon me for expressing my extreme regret, that it is in their power to take away that barrier. Gentlemen will not say, that any danger can be expected from the State Legislatures. So small are the barriers against the encroachments and usurpations of Congress, that when I see this last barrier, the independency of the Judges impaired, I am persuaded I see the prostration of all our rights.” [Emphasis added]

As Henry saw it, granting the federal Supreme Court jurisdiction over the types of cases listed in the Constitution would “in its operation destroy the trial by jury. The verdict of an impartial jury will be reversed by Judges unacquainted with the circumstances.”

In fact, he called status of trial by jury in the Constitution ambiguous. 

I see one thing in this Constitution—I made the observation before, and I am still of the same opinion—that everything with respect to privileges is so involved in darkness, it makes me suspicious—not of those Gentlemen who formed it, but of its operation in its present form. Could not precise terms have been used? You find by the observations of the Gentleman last up [James Madison], that when there is a plenitude of power, there is no difficulty: But when you come to a plain thing, understood by all America, there are contradictions, ambiguities, difficulties, and what not.” [Emphasis Added]

Given the ambiguity, Henry said it would be better to remove trial by jury altogether to prevent any confusion.

“Trial by jury is attended, it seems, with insuperable difficulties, and therefore omit[t]ed altogether in civil cases. But an idea is held out, that it is secured in criminal cases. I had rather it had been left out altogether, than have it so vaguely and equivocally provided for. Poor people do not understand technical terms—Their rights ought to be secured in language of which they know the meaning. As they do not know the meaning of such terms, they may be injured with impunity. If they dare oppose the hands of tyrannical power, you will see what has been practised elsewhere. They may be tried by the most partial jurors—by their most implacable enemies, and be sentenced and put to death, with all the forms of a fair trial. I would rather be left to the Judges.” [Emphasis added]

Henry also believed that giving the court jurisdiction over disputes between the states and Congress would make it impossible for the Court to be independent, since the Court itself would be part of the same federal government.

“The laws of Congress being paramount to those of the States, and to their Constitutions also, whenever they come in competition, the Judges must decide in favor of the former. This, instead of relieving or aiding me, deprives me of my only comfort—the independency of the Judges.—The Judiciary are the sole protection against a tyrannical execution of laws. But if by this system we lose our Judiciary, and they cannot help us, we must sit down quietly, and be oppressed.” [Emphasis added]

Henry concluded by extolling others in attendance at the convention to “recollect what they are about to do, and consider that they are going to give up this last and best privilege – trial by jury.

When it comes to his fears over SCOTUS siding with Congress against the states, Henry was accurate in his prediction, as he was on many other issues. The high court has favored the feds through its history 75 percent of the time. Still, many believe suing in court is the best way to preserve liberty.

During the debates, Henry also expressed doubts that any problem with the judiciary could be rectified by Congress. There too he was correct, but it was not appropriate either way to expect either branch of the federal government to restrain themselves or each other. 

As Henry pointed out in his speech of June 5, 1788: “Show me that age and country where the rights and liberties of the people were placed on the sole chance of their rulers being good men, without a consequent loss of liberty! I say that the loss of that dearest privilege has ever followed, with absolute certainty, every such mad attempt.”

TJ Martinell

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