Saturday, December 12, 2020

This Day in Constitutional History (Birth of John Jay, Conservative Revolutionary)

Dec. 12, 1745— John Jay, who came late to the cause of American independence but then assured its security by negotiating its key early treaties, advocating for a strong central government, and serving as the first Chief Justice of the Supreme Court, was born in New York City.

The son of a New York aristocrat of Huguenot descent and successful lawyer in his own right, Jay exerted significant influence in the Continental Congress and in the period between the end of the American Revolution and the establishment of the federal government. But he was not in Philadelphia for the two early events that marked the founding of the nation: the Declaration of Independence and the Constitution.

That factor meant that his birthday would not be celebrated by schoolchildren or that he would become the subject of a musical, in the way that Washington, Jefferson, Franklin, and Hamilton have entered the inner circle of best-remembered Americans of the Revolutionary period.

For instance, before I started researching this post, what I knew about Jay could be boiled down to a few bullet points:

*his years of birth and date;

*his education at King’s College (later Columbia University, where a residence hall is named after him);

*his service as governor of New York State;

*his short stint as the first Chief Justice of the U.S. Supreme Court;

*his negotiation of an extremely controversial treaty with Great Britain named after him.

In my opinion, few Patriots were held in higher regard among their peers—or have been as neglected by the general public today—as Jay. He deserves far better than this, though, and I hope with this post to raise consciousness, at least among my readers, of his achievements.

A Scottish visitor to the United States, Henrietta Liston, described him in this way at the height of his career in 1796: “his appearance is rather singular; in dress and manners strikingly like a Quaker; –His eye penetrating, his conversation sensible and intelligent.” That was the same impression he made on those he encountered in the law, government and diplomacy.

As a member of the Continental Congress, Jay had helped create the “Olive Branch Petition,” a last-ditch attempt at reconciliation with England. But with independence declared, he cast his lot irrevocably with the Patriots. He was held in such high regard by other delegates at the Congress that he was chosen to lead it in 1778.

The four figures carved into Mount Rushmore were meant, according to sculptor Gutzon Borglum, to commemorate “the founding, growth, preservation, and development to the United States of America.” But if a non-President could be added to the group, Jay would deserve serious consideration.

His triumph in negotiating the 1783 Treaty of Paris ending the Revolutionary War lay not merely in securing American independence, but also the country’s right to all the territory east of the Mississippi, south of Canada and north of Florida. That immediately made the new nation geographically larger—richer in resources—than Britain, France and Spain.

And Jay did this under challenging circumstances. The other American treaty diplomats were not there at first to join him (Henry Laurens had been captured at sea by the British, John Adams was negotiating a loan with the Dutch, and Franklin came down with a bad case of gout), and Congress had instructed him to do nothing without involving America’s French ally. But Jay succeeded in making Spain (France’s other ally) and Britain, go along with his non-negotiable demand for the area east of the Mississippi.

The best compressed depiction I know of for Jay comes from historian Joseph J. Ellis’ The Quartet: Orchestrating the Second American Revolution, 1783-1789, which praised his “massive probity” and “persistent geniality.” Even a crankier appraisal, in Forrest McDonald’s The Formation of the American Republic, 1776-1790, before calling him (with little to no substantiation) “pompous and pathetically vain,” also referred to him as “a brilliant and almost pathologically honest New York aristocrat, [and] a dedicated nationalist.”

Jay’s well-known nationalism led to him being frozen out of the New York delegation at the Constitutional Convention by Gov. George Clinton, the closest figure at that time to what we consider a political boss. But he could not be taken out of the fight for long.

Sickness prevented Jay from writing more than five of the eventual 85 essays in the key pro-Constitution documents, The Federalist Papers, but—as the politician who had spent the longest time in the public eye and the senior member of the trio—he was more crucial in lending prestige to the early stages of the ratification struggle than the younger contributors to the project, James Madison and Hamilton. He and Hamilton then proved shrewd in delaying New York’s vote until a positive vote by Virginia persuaded delegates at New York’s convention in Poughkeepsie that they should not be isolated from the new nation.

With ratification secured, George Washington offered Jay any position he wanted in the new government. The former Chief Justice of New York’s Supreme Court took the similar position at the national level.

Due to circumstances largely beyond Jay’s control, that choice proved frustrating. During Jay’s five years on the court, he and the associate justices ruled on only four cases. Not only were justices expected to “ride circuit”—i.e., hold hearings twice a year in one of three judicial districts—but some (e.g., James Wilson) missed attendance because of land speculations and the resulting need to avoid debt collectors.

The issues that Jay faced in his quarter-century career continue, in one way or another, to figure in American political dialogue:

*A strong, united federal government. Jay’s anxiety in watching the young nation flounder under the Articles of Confederation led him to press for a stronger form of government, in what eventually became the Constitution. He warned, in Federalist No. 3, against the nation fracturing into “three or four independent and probably discordant republics or confederacies.” He looked to the trans-Allegheny territory just won at the negotiating table as a means of binding the nation together further through commerce. When he lost his first race for governor of New York in 1792 because of questionable vote counting, he urged his supporters to accept the results with grace. All of this stands in marked contrast to the current post-election atmosphere in which Presidential vote counts are endlessly litigated and Rush Limbaugh has talked loosely about secession.

*The proper government response to health emergencies. As New York Governor, Jay faced a stark challenge during the yellow fever epidemics of the mid-1790s. In a blog post in March of this year, Robb Haberman, associate editor of The Papers of John Jay, analyzed how Jay transitioned state health policy from private philanthropy to government action, through measures instituting a quarantine and better sanitation.

*Race relations. Jay had inherited slaves from his father, but by the mid-1780s he had publicly turned against the practice, becoming the first president of the New York Manumission Society. As governor of the state, he finally won passage, after five tries, in 1799 of a law calling for emancipation in the state to take effect in 20 years.

*Congressional opposition to treaties negotiated by Presidential envoys. The Iranian nuclear deal, concluded by Barack Obama and abandoned by Donald Trump, does not come remotely close to engendering the same level of controversy as the Jay Treaty. Jay accepted Washington’s request to negotiate with Great Britain reluctantly, and only because he believed it would be the only way to avert war only a decade after the American Revolution had ended. The outcome of the negotiations— requiring Britain to stop “impressing” or capturing sailors, but granting “most favored nation” status as trading partners—formed one of the wedge issues spurring the rise of Thomas Jefferson’s more Gallic-oriented faction, the Democratic-Republican Party.

As he left office in 1801, John Adams appointed Jay to return as Chief Justice. But Jay declined, citing his poor health and the lack of the “the energy, weight, and dignity” needed to support the court. That opened the door for John Marshall to take the post.

Jay lived another 28 years, but was deeply saddened that shortly after his retirement from public life he lost his beloved wife Sarah. Yet now he was content to enjoy, untrammeled, private life as a gentleman farmer.

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