FReeper Book Club: The Debate over the Constitution, Federalist #2

John Jay had taken a profoundly conservative approach to the relationship with the Mother Country in the events leading up to the Revolution. He was not willing to undertake conflict thoughtlessly and rebuked Patrick Henry for his intemperate rhetoric at the First Continental Congress. Like Franklin, Jay did not want a complete breach with England unless there were no other choice. But when the breach came, Jay was ready, functioning as a judge in a lawless New York split between Patriots, Loyalists and those who swayed daily from one side to the other.

In his masterly essay, “The Education of John Jay,” Myron Magnet lays out the lessons Jay had learned during his presidency of Congress. The Articles of Confederation had contained the words “perpetual union” in its preamble, and Jay took the position that later constitutional interpreters such as Marshall, Webster, Clay and Lincoln were to take – that the Union was permanent and required a strong central government that was sovereign over the states. Jay’s duties in Congress prevented him from attending the Constitutional Convention, but he wrote at the time of his desire to make the United States, “one Great Nation ... divided into different States merely for more convenient Government ... just as our several States are divided into Counties and Townships for the like purposes.” At the time, this idea was known as consolidation.

During his wartime ambassadorial years in Spain, Jay discovered that France, while providing critical help in the form of money, arms and the French Navy, had its own designs on keeping America weak following independence, and Spain was to be France’s tool in this project. Thus Jay joined Franklin in building a peace treaty with England that would preserve a balance of power on the frontier by keeping the infant nation friendly with England and building what was to be known later as the special relationship. What emerged from the treaty was a much larger land base for the new country, one that would permit it in time to become rich.

As successful and highly respected New York lawyers, Hamilton and Jay were close friends, and it should be no surprise that Hamilton would turn to his friend to write the entries on foreign affairs.

² When the people of America reflect that they are now called upon to decide a question which in its consequences must prove one of the most important that ever engaged their attention, the propriety of their taking a very comprehensive, as well as a very serious, view of it will be evident.

³ Nothing is more certain than the indispensable necessity of government, and it is equally undeniable that whenever and however it is instituted, the people must cede to it some of their natural rights in order to vest it with requisite powers.

⁴ It is well worthy of consideration, therefore, whether it would conduce more to the interest of the people of America that they should, to all general purposes, be one nation, under one federal government, or that they should divide themselves into separate confederacies and give to the head of each the same kind of powers which they are advised to place in one national government.

⁵ It has until lately been a received and uncontradicted opinion that the prosperity of the people of America depended on their continuing firmly united, and the wishes, prayers and efforts of our best and wisest citizens have been constantly directed to that object.

⁶ But politicians now appear who insist that this opinion is erroneous, and that instead of looking for safety and happiness in union, we ought to seek it in a division of the states into distinct confederacies or sovereignties.

⁷ However extraordinary this new doctrine may appear, it nevertheless has its advocates, and certain characters who were much opposed to it formerly are at present of the number.

⁸ Whatever may be the arguments or inducements which have wrought this change in the sentiments and declarations of these gentlemen, it certainly would not be wise in the people at large to adopt these new political tenets without being fully convinced that they are founded in truth and sound policy.

⁹ It has often given me pleasure to observe that independent America was not composed of detached and distant territories, but that one connected, fertile, [widespread] country was the portion of our western sons of liberty.

¹⁰ Providence has in a particular manner blessed it with a variety of soils and productions and watered it with innumerable streams for the delight and accommodation of its inhabitants.

¹¹ A succession of navigable waters forms a kind of chain ‘round its borders as if to bind it together, while the most noble rivers in the world, running at convenient distances, present them with highways for the easy communication of friendly aids and the mutual transportation and exchange of their various commodities.

¹² With equal pleasure I have as often taken notice that Providence has been pleased to give this one connected country to one united people – a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs, and who by their joint counsels, arms and efforts, fighting side by side throughout a long and bloody war, have nobly established general liberty and independence.

¹³ This country and this people seem to have been made for each other, and it appears as if it was the design of Providence that an inheritance so proper and convenient for a band of brethren, united to each other by the strongest ties, should never be split into a number of unsocial, jealous and alien sovereignties.

¹⁴ Similar sentiments have hitherto prevailed among all orders and denominations of men among us.

¹⁵ To all general purposes we have uniformly been one people, each individual citizen everywhere enjoying the same national rights, privileges and protection.

¹⁶ As a nation we have made peace and war; as a nation we have vanquished our common enemies; as a nation we have formed alliances and made treaties and entered into various compacts and conventions with foreign states.

¹⁷ A strong sense of the value and blessings of union induced the people, at a very early period, to institute a federal government to preserve and perpetuate it.

¹⁸ They formed it almost as soon as they had a political existence – nay, at a time when their habitations were in flames, when many of their citizens were bleeding, and when the progress of hostility and desolation left little room for those calm and mature inquiries and reflections which must ever precede the formation of a wise and well balanced government for a free people.

¹⁹ It is not to be wondered at, that a government instituted in times so inauspicious, should on experiment be found greatly deficient and inadequate to the purpose it was intended to answer.

²¹ Still continuing no less attached to union than enamored of liberty, they observed the danger which immediately threatened the former, and more remotely the latter, and being persuaded that ample security for both could only be found in a national government more wisely framed, they as with one voice convened the late Convention at Philadelphia to take that important subject under consideration.

²² This Convention composed of men who possessed the confidence of the people, and many of whom had become highly distinguished by their patriotism, virtue and wisdom, in times which tried the minds and hearts of men, undertook the arduous task.

²³ In the mild season of peace, with minds unoccupied by other subjects, they passed many months in cool, uninterrupted and daily consultation, and finally, without having been awed by power or influenced by any passions except love for their country, they presented and recommended to the people the plan produced by their joint and very unanimous councils.

²⁴ Admit, for so is the fact, that this plan is only recommended, not imposed; yet let it be remembered that it is neither recommended to blind approbation, nor to blind reprobation, but to that sedate and candid consideration which the magnitude and importance of the subject demand and which it certainly ought to receive.

²⁵ But this, as was remarked in the foregoing number of this paper, is more to be wished than expected, that it may be so considered and examined.

²⁶ Experience on a former occasion teaches us not to be too sanguine in such hopes.

²⁷ It is not yet forgotten that well grounded apprehensions of imminent danger induced the people of America to form the memorable Congress of 1774.

²⁸ That body recommended certain measures to their constituents, and the event proved their wisdom; yet it is fresh in our memories how soon the press began to teem with pamphlets and weekly papers against those very measures.

²⁹ Not only many of the officers of government who obeyed the dictates of personal interest, but others, from a mistaken estimate of consequences or the undue influence of former attachments or whose ambition aimed at objects which did not correspond with the public good, were indefatigable in their efforts to persuade the people to reject the advice of that patriotic Congress.

³⁰ Many indeed were deceived and deluded, but the great majority of the people reasoned and decided judiciously, and happy they are in reflecting that they did so.

³¹ They considered that the Congress was composed of many wise and experienced men.

³² That being convened from different parts of the country, they brought with them and communicated to each other a variety of useful information.

³³ That in the course of the time they passed together in inquiring into and discussing the true interests of their country, they must have acquired very accurate knowledge on that head.

³⁴ That they were individually interested in the public liberty and prosperity, and therefore that it was not less their inclination than their duty to recommend only such measures as, after the most mature deliberation, they really thought prudent and advisable.

³⁵ These and similar considerations then induced the people to rely greatly on the judgment and integrity of the Congress, and they took their advice, notwithstanding the various arts and endeavors used to deter them from it.

³⁶ But if the people at large had reason to confide in the men of that Congress, few of whom had been fully tried or generally known, still greater reason have they now to respect the judgment and advice of the Convention, for it is well known that some of the most distinguished members of that Congress, who have been since tried and justly approved for patriotism and abilities and who have grown old in acquiring political information, were also members of this Convention and carried into it their accumulated knowledge and experience.

³⁷ It is worthy of remark that not only the first, but every succeeding Congress, as well as the late Convention, have invariably joined with the people in thinking that the prosperity of America depended on its union.

³⁸ To preserve and perpetuate it was the great object of the people in forming that Convention, and it is also the great object of the plan which the Convention has advised them to adopt.

³⁹ With what propriety, therefore, or for what good purposes are attempts at this particular period made by some men to depreciate the importance of the Union?

⁴⁰ Or why is it suggested that three or four confederacies would be better than one?

⁴¹ I am persuaded in my own mind that the people have always thought right on this subject, and that their universal and uniform attachment to the cause of the Union rests on great and weighty reasons which I shall endeavor to develop and explain in some ensuing papers.

⁴² They who promote the idea of substituting a number of distinct confederacies in the room of the plan of the Convention seem clearly to foresee that the rejection of it would put the continuance of the Union in the utmost jeopardy.

⁴³ That certainly would be the case, and I sincerely wish that it may be as clearly foreseen by every good citizen that whenever the dissolution of the Union arrives, America will have reason to exclaim, in the words of the poet: “Farewell! A long farewell to all my greatness.”

A heavyweight enters the arena, something more evident to the readers of 1787 than it is today. This piece and its successors were to be read in the salons and taverns of the time and as hotly debated in the former as in the latter. In order to appreciate why, we must explore who John Jay was and why his opinion mattered.

This is the first of four of Jay’s offerings to the Federalist Papers, and here he addresses two principal themes: the case for union, and the credibility of the men who devised its plan. He takes care to assure the public, in a voice that is already familiar in his Anti-Federalist opponents, that the matter of approving the Constitution is one worthy of deliberation.

He repeats a familiar disclaimer that the Continental Congress proved less than adequate to the new nation's needs.

¹⁸ They formed [the Continental Congress] almost as soon as they had a political existence – nay, at a time when their habitations were in flames, when many of their citizens were bleeding, and when the progress of hostility and desolation left little room for those calm and mature inquiries and reflections which must ever precede the formation of a wise and well balanced government for a free people.

¹⁹ It is not to be wondered at, that a government instituted in times so inauspicious, should on experiment be found greatly deficient and inadequate to the purpose it was intended to answer.

And he provides an assurance of the bona fides of the men making up the Constitutional Convention – these were, in part, past members of the Confederation Congress. Jay could speak to this authoritatively – he had been, after all, the President of the Continental Congress himself through most of 1779.

³¹ [The people] considered that the Congress was composed of many wise and experienced men.

³² That being convened from different parts of the country, they brought with them and communicated to each other a variety of useful information.

This point is evidently intended to counter complaints that the members of the Convention were proceeding from motivations of regional interest and that they were convened in haste and of inferior membership.

In the main case, Jay states that union has been, for some time, the object of politics in the Colonies and alludes to what was then a new enthusiasm for an alternate plan for dividing the nascent United States into regional confederacies.

⁶ But politicians now appear who insist that...we ought to seek it in a division of the states into distinct confederacies or sovereignties.

Jay’s reply to this consists of an insistence that God intended America to be united, that it is united in natural circumstance, and that the Convention that devised the Constitution for a united America was experienced, sober and with broader motivations than the merely regional, and with a sly implication (20) that the proponents of the new conception of regional governments were less so.

Jay’s evidence for the intervention of Providence is, to say the least, circumstantial, poetic more than persuasive. We have (10) a description of Eden, (11) a description of the eastern third of the country through which rivers formed natural lines of communication, and (12) a description of its people that would infuriate a modern academic diversity committee as pure blasphemy.

¹² ...that Providence has been pleased to give this one connected country to one united people – a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs, and who by their joint counsels, arms and efforts, fighting side by side throughout a long and bloody war, have nobly established general liberty and independence.

That may have been true to the people to whom Jay was writing this appeal, but it was historically inaccurate even at the time. This essay was addressed to the people of New York, which was lately New Amsterdam. Washington had developed a reputation as a young officer fighting alongside the Iroquois against the French for the possession of the Ohio territory. One could hear as much Spanish in Florida as English, and the people who would, some 20 years later, help fight the British for the possession of New Orleans would speak French and Creole. We are left with a certain skepticism, therefore, toward this particular asseveration, and yet its relative inaccuracy does not detract from Jay's next point.

This is rather better, and bindings in that sort of blood tend to be more persuasive than the familial sort in any case. It was a nation born in strife, united as much by common enemies as any innate desire for consanguinity, and those enemies were not exclusively British.

Jay’s antecedents gave him a voice of some authority on the matter of the danger the country was facing from foreign powers. France was yet to sell Jefferson the Louisiana Purchase, Spain had designs as well as historical claims to much of the southern portion of the Colonies, and both the French and British had interests in Canada that were yet to find a boundary. Jay had himself already been the Congress’ Secretary of Foreign Affairs for five critical years between 1784 and 1789, during which he penned his contributions to the Federalist Papers.

He had, as well, already acted as that Congress’ Minister to Spain and had been at the side of the senior Franklin in Paris during the war and the negotiations resulting in the Treaty of Paris, which ended it. He would later be the chief negotiator for what became known as the Jay Treaty with Britain, against Jefferson's vigorous objections. Washington would offer him the post of the first Secretary of State, which he would decline, having already been acting Secretary of State for two years. It is obvious why Hamilton decided to lend Jay’s voice and credibility to the foreign policy arena.

Thus we have from Jay the distinct impression that union was the only workable option in the face of a hostile and rapacious Europe.

The reader will watch Jay develop these arguments in his succeeding offerings. But here the battle is joined between brilliant and articulate critics of the Constitution and the equally brilliant proponents who had already done so much to establish the American government, for all its flaws, as a serious player in world affairs. Would the new one be up to the challenge? That was Jay’s principal concern, and his succeeding papers a plea in favor of it for precisely that reason.

[ "Thus we have from Jay the distinct impression that union was the only workable option in the face of a hostile and rapacious Europe." ]

As long as we had a republic, it was true..
State rights(republic) have diminished greatly since then..

Urp is still rapacious and hostile to "us"..
A Constitutional Republic stands opposed to a pure democracy.. then and Now..

The O'bama administration would gleefully morph the U.S. into a democracy..
If that is not Sedition and even Espionage then its Treason..
Democracy is not LIKE Mob Rule.. it IS Mob Rule by mobsters..

The O'bama administration would gleefully morph the U.S. into a democracy.

That morphing happened a long time ago with the election of Andrew Jackson in 1828. Because of the result of the disputed election of 1824, President John Quincy Adams was pretty much forced to sign into law a ban on applying state property qualifications in federal elections. That helped lead to a clear-cut victory for Jackson a few years later.

Jackson, it should be noted, was an avatar of states' rights. Yet in his first State of the Union letter to Congress in 1829 -- it was a letter then, not a speech -- Jackson asked Congress to pass three constitutional amendments to the states for ratification.

An amendment to change the word "republic" to "democracy".
An amendment to abolish the Electoral College and choose the president by direct popular vote.
An amendment to end the practice of state legislatures electing senators and hand that to the people via direct election.

Jackson didn't get any of his amendments, but the last one became the 17th Amendment in 1913. For all practical purposes, we've been a democracy for a long time.

John Jay set out the choices before the American people eloquently and calmly; be united in one nation or divided in confederacies.

After reminding the reader of our common ancestry, religion, language and principles of government he lamented the possibility of splitting into “unsocial, jealous, and alien sovereignties.” From 1607 onward, in fits and starts, the various colonial governments evolved in something of a Lochean state of nature. Most had colonial governor executives responsible to the British Crown; all had legislative and judicial bodies. Upon revolt from Britain, the states were well prepared for sovereign government.

From January 1776 to June 1777 the former colonies set up independent governments in the most prolific constitution writing period in history. The importance of this time cannot be overstated because hardly a clause in the Federal Constitution of 1787 did not appear first in a state Constitution.

The Revolutionary War pressured the newly independent states to at least appear united, and after over a year, the Articles of Confederation were submitted on November 15, 1777 to the states for ratification. Jealousy and fear precluded final ratification until Maryland did so in March 1781, just a few months prior to victory at Yorktown.

After only six years it was clear that the Articles of Confederation were insufficient in war, and worse in peace. As for the men who met in the 1787 Constitutional Convention, Jay says, “In the mild season of peace, with minds unoccupied by other subjects, they passed many months in cool, uninterrupted, and daily consultation; and finally without having been awed by power, or influenced by any passions except love for their country, they presented and recommended to the people the plan produced by their joint and very unanimous councils.”

That they crafted a government of three branches should come as no surprise, for it was a culmination of the unique American experience spread over 180 years of self government.

Near the end of his column, Jay asked readers to remember how they respected the wise men sent to Congress in 1774 and to afford similar consideration of the judgment and advice given by the more experienced members they sent thirteen years later to the Constitutional Convention.

Jay’s introduction and historic overview of the proposed government were superb.

From Myron Magnet's essay on Jay.

Jay’s townsmen pegged this youngest of all the congressional delegates as a conservative; and certainly, when an overwrought Patrick Henry exclaimed at the Congress’s start that “Government is at an End. All distinctions are thrown out. . . . We are in a State of Nature,” Jay mildly retorted, “I cant yet think all Government is at an End. The Measure of Arbitrary power is not full, and I think it must run over, before We undertake to frame a new Constitution.” Let’s not get carried away and think “We came to frame an American constitution, instead of indeavouring to correct the faults in an old one.” A reasonable remonstrance to Britain, Jay hoped, coupled with a determined trade boycott, ought to bring the ministry to its senses. Jay’s conservatism consisted only in this: that he would omit no effort—consistent with the rights of man and of Englishmen—to avoid an irreparable breach.

“Government is at an End. All distinctions are thrown out. . . . We are in a State of Nature,”

How interesting.

This ties together with a phrase in a book by Martin Gross National Suicide: In the circus created by Washington, no one is immune from its deleterious effects, to the point at which politics is replacing philosophy as a way of viewing life, all to the detriment of an intelligent, thoughtful society.

The "government" under the AC was so weak as to be not a government at all; was that Henry's point? Now we are waging a war between government and governors -- the difference being a matter of adherence to written law or the casual and self-serving manipulation of "law" by the authority.

Think about it.

Discussion Topics

•At 18 and 19, Jay acknowledges the stopgap nature of the Articles of Confederation and the fact that they were barely adequate to the times. He believes that they are now totally inadequate to the challenges of governance. His perspective is that of an experienced jurist, a colleague of Robert Yates, who, as “Brutus”, was caustic in his condemnation of the entire enterprise. To what extent was Jay correct versus Yates?

Both men recognized that the Articles of Confederation were the result of reactionary pressures resulting from the Revolution. The people, although widely dispersed by this time did not seek to break ties with each other or the rest of the world for that matter. Some form of order needed to be established and it happened to take the form of the Continental Congress.

Until the writing of the Constitution, necessity was the driving force that was responsible for the articles of confederation .

The Constitution, on the other hand was an instrument to proactively determine the nations future, not to be driven by reactive forces. The assertion by Jay is that the Constitution is the correct solution. Brutus acknowledges the need but isn't convinced of its supremacy to other forms of union.

•At 21, Jay states that the people demanded the Constitutional Convention with one voice, but it was the businessmen and propertied class who demanded it in the aftermath of Shays’ Rebellion. Why does Jay see the need to shade the truth here?

The answer is in the very first line - "To the People". What we now call class warfare was at a peak of volatility and in an effort to quell any further actions we see the fluent use of similar statements designed to unite the readers and also create perceived threats where there were none (42,43), not unlike today's tweaked soundbites.

•At 23, Jay writes of “cool, uninterrupted and daily consultation,” which would have made the men who had been present at the Convention hoot in derision. He glosses over the heat, humidity and rancor of the proceedings, in which that rancor had been suppressed by both an oath of secrecy and the code of gentlemanly conduct of the era. Jay was not even there. To what extent is Jay altering history, and why?

As above, images in the peoples minds were being constructed to the advantage of his argument. A calm cool reasoned debate resulted in the instrument before you, aren't you lucky?

The alteration was intended as a 'talking point' to those who could influence the outcome. The factual comparison you make is interesting in that hindsight reveals underlying intentions of the author.

I don't know. Union vs disunion seems like a straw man to me. I don't think there was serious movement afoot in that direction.

Setting up as you're for the Constitution or your for disunion seems a little disingenuous to me. The states empowered the delegates to amend the Articles of Confederation. Why would they bother if they intended to go their own way?

To be antifederalist( which is to say, to be an actual federalist) was not to be a disunionist. I find a lot more of this ad hominem and straw man stuff coming from the so-called Federalists (the nationalists). The great papers of Brutus attack the plan, not the planners.

PS-There is dispute about whether or not Robert Yates was in fact Brutus. Unless you know of some proof I am not aware of, I don't think it's accurate to represent him as undoubedtly Brutus.

see

http://www.wisconsinhistory.org/ratification/digital/resource/0301.pdf

Jay mildly retorted, “I cant yet think all Government is at an End. The Measure of Arbitrary power is not full, and I think it must run over, before We undertake to frame a new Constitution.” Let’s not get carried away and think “We came to frame an American constitution, instead of indeavouring to correct the faults in an old one.” A reasonable remonstrance to Britain, Jay hoped, coupled with a determined trade boycott, ought to bring the ministry to its senses. Jay’s conservatism consisted only in this: that he would omit no effort—consistent with the rights of man and of Englishmen—to avoid an irreparable breach.

Is consistent with the Declaration of Independence-

Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security.

Assuming that Jay is a conservative influence in the debate, are we to assume that Anti-Federalists are to be other than conservative?

It would be easy for someone just joining our discussion to assume that we are identifying heroes and villains but that would be erroneous. All authors are fighting for the best form of government as they perceive it, their individual experiences and associates influencing their perspective.

It is dangerous to attempt to pigeonhole the Founding Fathers into categories like Liberal, Conservative, Left and Right. Terms such as Left and Right came out of the French Revolution, whose poison still afflicts the world. Terms such as Liberal and Conservative have shifted meaning so many times over the last two centuries that it gains one nothing to attempt to apply the terms to the Framers.

It's best to study that period of American history in itself, without trying to view it exclusively through the prism of today's politics. What can be done is to carry forward those lessons to today.

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