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.

This Day in Constitutional History (Alien and Sedition Acts Omen of Later Freedom Threats)

July 14, 1798—As tensions with France verged toward war, President John Adams (pictured) signed the last of four pieces of legislation passed over the past month by the Federalist Party in Congress to crack down on Gallic immigrants and their Irish Catholic and domestic allies. The Alien and Sedition Acts, the first major federal attempt to curtail immigration and press rights, sparked a furious reaction by the Democratic-Republican Party, led by Vice-President Thomas Jefferson.

If you want to know about the evolution of such current controversies as immigration, states’ rights, voter suppression, the role of the press, and resistance to unpopular federal measures, this early wide-ranging attempt to interfere with the Bill of Rights is a good place to start. 

Actually, the Trump Administration’s heavy-handed attempt to label both Muslims and Mexicans as security threats has thrown an unexpected spotlight on a period of history that Americans have conveniently forgotten—or never really learned. 

For years, the passage of these bills and Adams’ signature “were to be rightly judged by history as the most reprehensible acts of his presidency," according to Adams’ keenly appreciative biographer, David McCullough. 

Yet it would appear that, two hundred and eighteen years later, the principles of the Alien and Sedition Acts “have sprung, with surprising vigor, from their resting place in history,” wrote Jelani Cobb in a “Talk of the Town” piece for The New Yorker right after the last Presidential election. The last few weeks have only made that observation even more relevant.

The question of revolutionary France was the great fault line in the decade following adoption of the Constitution. The Democratic-Republicans regarded the new republic as a natural extension of the American Revolution by a nation that had served as our ally in the war, while the more Anglophile Federalists regarded it first with suspicion, then, as the Reign of Terror took hold, with horror.

The execution of Louis XVI plunged France into war with the Bourbon dynasty’s Continental allies, and, in the case of monarchical England, a newly sympathetic force. The possibility of involvement in that conflict compelled President George Washington to issue a Proclamation of Neutrality.

To be sure, there were plenty of domestic issues—notably, the place of the First National Bank in the new nation—to divide the Federalists from the Democratic-Republicans. 

Yet the quarrel with France ensured that the divisions would be relentlessly rancorous. For the argument about the French Revolution was, at bottom, an argument about ours—about what was the true legacy of that struggle, and about which side was the worthier custodian of its legacy.

Additional tensions arose in the Adams administration over France’s seizure of ships by neutral countries such as the United States. Adams’ attempt at negotiations collapsed when the French government demanded bribes. The resulting X, Y, and Z Affair (christened because of the initials standing for redacted names in the correspondence that Congress insisted the President release related to the incident) led to the abrogation of the 1778 treaty of alliance with France, and fiscal authorization of new frigates.

The Federalists also used the opportunity to smite their Democratic-Republican opponents. through four measures: 

*The Naturalization Act, the most dramatic of the measures, increased the period necessary for immigrants to become citizens from five to 14 years.

*The Alien Friends Act authorized the president to deport foreigners deemed "dangerous to the peace and safety of the United States" during peacetime.

*The Alien Enemies Act allowed the president to arrest, imprison, and deport any foreigner subject to an enemy nation.

*The Sedition Act made it a crime to “write, print, utter or publish…any false, scandalous and malicious writing” against the Federal government, including the Congress and the preside

The four pieces of legislation collectively christened the Alien and Sedition Acts were the Federalists’ attempt to stem the dissent and anarchy they saw all around. In a time of unrelenting demographic and political change, it found favor among those who wanted to calcify current conditions before they changed again.

The immediate cause of the legislation was the Quasi-War that had erupted between the U.S. and France. The French and their Irish Catholic allies newly arrived on U.S. shores seemed to the Federalists like a fifth column, undermining the U.S. from within. 

But limiting immigration was, for the Federalists, not just a matter of national security; it was also an early—and unusual—attempt at voter suppression. 

Once settled, French immigrants had displayed, by Federalist lights, a dismaying tendency to vote Democratic-Republican. 

More alarmingly, the same phenomenon was occurring with Irish immigrants. What began, in the early 1790s, as a primarily Irish Protestant immigration to the U.S. had shifted, by the end of the decade, toward an Irish-Catholic flood that elected Democratic-Republicans in key urban districts of Philadelphia.

By 1798, “The Year of the French,” a French-aided rebellion by the United Irishmen had raised a threat close to England. Such Federalists as Harrison Gray Otis and Roger Griswold made no secret of their contempt for the new arrivals from this now-revolutionary homeland. 

Reflecting the partisan spirit in which the legislation was framed, the Sedition Act stipulated that "opposing or resisting any law of the United States, or any act of the President of the United States" and publishing "any false, scandalous and malicious writing" against the president or the Congress would resist in imprisonment or fines. 

Notice the one official left out among these maligned groups: the Vice-President. As the current occupant of that office was Jefferson, the Federalists had no objection to any criticism lobbed against him. 

Adams had no interest in using the authority handed to him by the Alien Acts to regulate immigration, so he kept Secretary of State Timothy Pickering on a short leash when it came to enforcing that.

But the choleric President was too thin-skinned to ignore insults, and before long journalists and politicians were being locked up or intimidated into silence for running afoul of the Sedition Acts. 

Among those who ran afoul of the new legislation was Benjamin Franklin Bache, editor of Philadelphia's Democrat-Republican Aurora and the grandson of Benjamin Franklin, who died of yellow fever before he could be brought to trial, and Matthew Lyon, a Democratic-Republican representative from Vermont, who had said Adams’ foreign policy proved the President should be confined to a "mad house." 

By itself, a prison term would have been enough to make newspaper editors nervous about criticizing the administration. But the financial penalty of $2,000 may have been even more staggering. The sum would have been difficult-to-impossible to pay, forcing the editors into bankruptcy and debtor’s prison.

The Democratic-Republicans did more than register their disapproval at the polls; they also sought to defy federal power at the state level. Jefferson and protégé James Madison crafted the Virginia and Kentucky Resolutions, passed by those two legislatures not only declaring their opposition to the bills but explaining why they were null and void.

With Jefferson still a member of the federal government, he and Madison had to hide their authorship of the resolutions.(In fact, this would not become known until the 1820s, when both were old men no longer actively involved in electoral politics). 

But the resolutions, by insisting that a single state could nullify federal law, laid the groundwork for the Nullification Crisis 30 years later led by John C. Calhoun. By this time, Madison was insisting that his work and Jefferson’s could not be construed into an implied endorsement of Calhoun’s defiance of federal authority. But the genie had been let loose from the bottle, and Madison and Jefferson were, in effect, the intellectual grandfathers of secession.

Once Jefferson was inaugurated in 1801, the Alien and Sedition Acts became effectively inoperative. The legislation expired the day before he took office, and those jailed under its terms were released. The courts progressively viewed the legislation, as Associate Supreme Court Justice William Brennan noted in Sullivan v. New York Times (1964), and null and void. 

Although the legislation certainly excited and crystallized opposition to the Federalists, it did not by itself ensure their defeat at the polls. Instead, responsibility for their loss in 1800 lay in the feud between Alexander Hamilton, the party’s guiding light, and the Federalist who refused to act on the basis of political faction, Adams.

The President, contemplating the impact of another war on the young republic, authorized peace negotiations in 1799. Hamilton then launched an intemperate attack on Adams, dividing the Federalists and ensuring they would never win another Presidential election.

This Day in Constitutional History (Patrick Henry Demands a Bill of Rights)

June 16, 1788 – With approval of the new Constitution of the United States hanging in the balance, one of its most formidable opponents, Patrick Henry, exercised his considerable oratorical powers in denouncing it at the Virginia Ratification Convention as an assault on the rights of individuals and states. So potent was his criticism that one of his most strenuous objections—to the lack of a “bill of rights” in the Constitution—required immediate redress to secure passage.

At the same time, Henry’s opposition demonstrates one of the enduring factors in American political history: more often than not, it’s personality clashes, not ideological differences, that make for the most poisonous relationships. Think Bobby Kennedy and LBJ, FDR and Al Smith in the 1930s, Hillary Clinton and Barack Obama today.

Henry vs. Jefferson and Madison: The Personal Becomes the Political

Henry’s chief adversary at the Virginia Ratification Convention was James Madison. As the great friend and chief political ally of Thomas Jefferson, Madison caught residual flak that would have normally hit the Sage of Monticello. As it happened, though both Henry and Jefferson voiced words that have been memorized ever since by schoolchildren (“Give me liberty or give me death!” and “All men are created equal”), they fell out during the American Revolution.

The young Jefferson listened enthralled to Henry’s speeches in the Virginia House of Burgesses, echoing comparing his utterances to Homer. The two men’s relationship, however, deteriorated late in the war, when the legislature, at former governor Henry’s strong urging, launched an inquiry into whether Jefferson had adequately prepared Virginia for the British invasion that year. Jefferson survived the inquiry, but his resentment—and Henry’s—lingered.

Three years later, a new cause for argument sprang up between Jefferson and Henry—now back as governor. The religiously devout Henry had called for a general tax assessment on all freeholders to support churches and schools, but Madison convinced the legislature to pass instead Jefferson’s Statute of Religious Freedom.

Nearly a decade later, Jefferson paid a new, younger rival, Alexander Hamilton, the highest of inadvertent compliments by calling him “a host unto himself” who needed to be stopped. Madison paid a similar backhanded compliment by pushing Henry’s candidacy for governor.

You might be thinking this was a particularly kind way of thanking the great American patriot for his service to the cause. No such thing. What Madison was really after was to get Henry kicked upstairs, into an office where he could not sway legislators 24/7, as he used to do.

Henry and the Constitution: “I Smell a Rat”

When it came time for a constitutional convention, Madison could not ignore the state’s most popular vote-getter, so Henry was invited to attend as a delegate. Henry responded tersely, with another utterance that has become part of the American idiom: “I smell a rat.”

The “rat” in this case was the Constitution, designed to replace Articles of Confederation, the form of government used by the rebels after declaring independence. The war revealed its near-fatal weaknesses in multiple ways, and precious few people wanted it left intact. The more radical attendees at the convention wanted it scrapped; others, such as Henry, preferred to mend, rather than end, it.

By the end of May 1788, the Constitution’s proponents, the Federalists, had gained the approval of eight state ratifying conventions. The rest of the going, however, was by no means a sure thing. It took Rhode Island and North Carolina nearly two years to ratify, and even then they only did so after Congress agreed to send 12 amendments to the states for ratification. (Of course, only 10 ended up being approved in this original group.)

The battleground states became New Hampshire, Virginia and New York. Historians’ best guesses are that Federalists and Anti-Federalists were in a dead heat in New Hampshire and Virginia, while in New York the Federalists were outnumbered by more than two to one.

Because of the lack of speed of communication during that time, the Virginia delegates did not realize until several weeks later that New Hampshire had assured passage of the Constitution by the required nine states by voting affirmatively on June 21. I

n another sense, however, it didn’t matter. The new union could certainly survive without Rhode Island and might even make it without North Carolina. Without the two largest states of New York and Virginia, however, the new form of government would be dealt a crushing, maybe fatal, blow.

The Virginia Ratification Convention: Clash of Titans

The Federalists and Anti-Federalists fielded a host of future luminaries on each side. Arguing affirmatively with Madison for the Constitution were future Chief Justice of the U.S. Supreme Court John Marshall and Governor Edmund Randolph, later to become George Washington’s Attorney General and Secretary of State. Lining up behind Henry in opposition were George Mason, author of the Virginia Bill of Rights (who refused to sign the finished Constitution) and future President James Monroe.

Once again, Henry showed why he was a dangerous adversary in political battle. Even before he really got going, he already had the ratification convention in an uproar by refusing to abide by the delegates’ initial agreement to debate the document point by point. No, he insisted, it must be considered in totality.

Then Henry made it personal: Wasn’t Governor Randolph being “inconsistent” by refusing to sign the Constitution when he had the choice to do so in Philadelphia as a delegate?

Randolph’s response was about as effective as John Kerry’s claim, “I actually did vote for the $87 billion before I voted against it.” With eight states ratifying it and the country in crisis, why not close ranks, Randolph pleaded nervously? In the meantime, didn’t he deserve an apology from Henry for his “aspersions and his insinuations”?

The Old Spellbinder Works His Magic Again

Nothing doing. Somewhat stooped at six feet tall, wearing spectacles, Henry could still command attention when his blue eyes came alive. Jefferson might have been the inventor of the democratic engine and Madison its ace mechanic, but Henry was its Richard Petty.

Even before the orator said a word, noted Madison, a simple gesture of his could undo an hour’s work of his opponents. And when that confident voice rose, boomed and fell – well, let’s just say it was a far cry from Madison, who, on more than one occasion, according to an account of the proceedings, “spoke too low to be understood.” (After one particularly strenuous debate, Madison took to his bed for the following three days.)

Henry poured scorn on the Constitution for its centralized government that opened the way to dictatorship. Among other points, he charged that the Constitution:

* lacked adequate checks and balances
* gave the central government the power of direct taxation
* opened the central government to the possibility of tyrants.

In all, Henry spoke on 18 out of the 23 days at the ratification convention, comprising a quarter of all speeches recorded. On June 16 alone, four speeches took on different weaknesses he saw in the Constitution: the Army, the militia, the District of Columbia, and, most consequentially, the perils of a republic without a bill of rights:

“The officers of Congress may come upon you now, fortified with all with all the terrors of paramount federal authority. Excisemen may come in multitudes; for the limitation of their numbers no man knows. They may, unless the general government be restrained by a bill of rights, or some similar restriction, go into your cellars and rooms, and search, ransack, and measure, every thing you eat, drink, and wear.”

Catherine Drinker Bowen’s Miracle at Philadelphia vividly recounts Henry’s impact in a quote from delegate Hugh Grigsby, who noted that one of his fellow listeners “involuntarily felt his wrists to assure himself that the fetters were not already pressing his flesh. The gallery on which he was sitting seemed to become dark as a dudgeon.”

When the final vote came, Henry had lost, but by only an 89-79 margin. I would argue that his loss was the American people’s gain. To swing votes away from Henry, Madison had to agree to introduce a Bill of Rights at the first available opportunity in the new Congress.

Once More Into the Breach

Henry’s call for a second Constitutional Convention, to repair the mistakes made the first time, fell on deaf ears. With his health uncertain and his family obligations increasing, he needed to attend to clients who were willing to pay for his spellbinding oratory before jurors.

For a long time, Henry also saw no necessity to join a government whose form he opposed, so he turned down offers by George Washington to become a justice of the Supreme Court and secretary of state. However, though his sympathy for Federalism didn’t increase markedly, his antipathy for Jefferson and Madison did.

The French Revolution’s growing anti-clericalism (in Henry’s view, its atheistic tendencies) and the Democratic-Republicans’ defense of the regime lured the Virginian out of retirement. In a stance that represented something of a 180-degree turn in his previous thinking, he opposed the Virginia and Kentucky Resolutions (created anonymously by Jefferson and Madison as means to interpose state authority against the Alien and Sedition Acts) as threats to the federal authority he had long feared.

Preceding Washington by more than a decade in his loathing for virtually all things Jeffersonian, Henry now proved amenable to the old general’s appeals to re-enter the political arena by running again for the Virginia state legislature as a Federalist. Henry’s stance alienated that not-inconsiderable portion of his old political base that now belonged to Jefferson and Madison, but he managed to win the election.

Yet the stress of the campaign broke his already fragile health, and like Washington he died in 1799—in this case, reconciled, if only by certain longstanding personal antagonisms, to a form of government on which he had once rained rhetorical thunderbolts. Tim Russert, may he rest in peace, had he been alive at the creation of the republic, would undoubtedly have read one of the Son of Thunder’s old soundbites and asked him to explain his current seeming inconsistency.

Don't Ask, "What Would Patrick Do?"

Patrick Henry’s battle over the Constitution illustrates the truth of the adage often attributed to Mark Twain: “History doesn’t repeat itself—it rhymes.” In other words, certain present and past circumstances may seem similar, but their differences require our scrutiny.

Specifically, the issues raised by Henry about the role of the federal government remain as alive today as in his own time. The Bill of Rights that he advocated has helped immeasurably in protecting the rights of individuals, though it is an open question whether Henry would welcome federal courts’ growing willingness to apply the protections of amendments to the constitution to state as well as federal law.

Nevertheless, it’s dangerous to ask “What would Patrick (or George, or Thomas, or James) do?” Henry’s career vividly illustrates how personal differences can mix with purely ideological arguments, even ones, such as his with Madison and the Federalists, conducted at the highest intellectual levels. Though they prided themselves – and continue to be regarded as such by a grateful posterity—as the most rational of men, the Founding Fathers were also led inevitably, by the forces of pride and resentment, into political battles that neither they nor we could have foreseen by a cold, hard reading of their early speeches and actions.