Tuesday, July 7, 2009

John Jay: Thinking about the American Revolution

“…That portion of them who individually mean well never was, nor until the millennium will be, considerable. Pure democracy, like pure rum, easily produces intoxication and with it a thousand pranks and fooleries. I do not expect mankind will, before the millennium, be what they ought to be and therefore, in my opinion, every political theory which does not regard them as being what they are, will prove abortive. Yet I wish to see all unjust and unnecessary discriminations everywhere abolished, and that the time may come when all our inhabitants of every color and discrimination shall be free and equal partakers of our political liberties.”
— John Jay

John Jay was an American politician, diplomat, statesman, revolutionary, and one of the founding fathers of this United States. He served his new country as the President of the Continental Congress from 1778 to 1779, a negotiator of treatises with the British, a minister to Spain, and, between 1789 and 1795, he became the first Chief Justice of the United States Supreme Court. In all these ways, he was a dedicated public servant who supported a strong central, federal government and a supporter of the Federalist Party of Alexander Hamilton. Along with Hamilton and Madison, he wrote the Federalist Papers in support of the ratification of the Constitution. From his experience with the government under the Articles of Confederation, he say the need for a more assertive federal power which had the right to levy taxes, raise armies, and accomplished this through a balance of legislative, executive, and judicial branches.

“The Congress under the Articles of Confederation] may make war, but are not empowered to raise men or money to carry it on—they may make peace, but without power to see the terms of it observed—they may form alliances, but without ability to comply with the stipulations on their part—they may enter into treaties of commerce, but without power to [e]nforce them at home or abroad...—In short, they may consult, and deliberate, and recommend, and make requisitions, and they who please may regard them.”

— John Jay

Jay’s religious upbringing in the Anglican Church provided him with the ethical orientation to become an outstanding jurist. His diplomatic service, especially in negotiating with the Spanish, British, and French during the first years of our new country gave him a view of how to mediate between different parties involved with in a conflict, again a skill that served him well in the judiciary. While still Chief Justice of the Supreme Court, he negotiated the ‘Jay Treaty’ with the British to provide ‘free trade’ with the former colonies and avoid a new war with the British military. He was loved by the Federalist Party, but reviled by the Democratic-Republican Party throughout his service. But he was a man of integrity and worked to apply the law of this new land as equitably as he knew how.

"The constitution of the United States is to receive a reasonable interpretation of its language, and its powers, keeping in view the objects and purposes, for which those powers were conferred. By a reasonable interpretation, we mean, that in case the words are susceptible of two different senses, the one strict, the other more enlarged, that should be adopted, which is most consonant with the apparent objects and intent of the Constitution."
— Joseph Story on John Jay, in Commentaries on the Constitution, 1833

So, with this introduction, let’s take a closer look at some of the specifics, with an emphasis on his diplomatic and judicial contributions…

John Jay (1745 – 1829)

“[T]he people are the sovereign of this country, and consequently that fellow citizens and joint sovereigns cannot be degraded by appearing with each other in their own courts to have their controversies determined. The people have reason to prize and rejoice in such valuable privileges, and they ought not to forget that nothing but the free course of constitutional law and government can ensure the continuance and enjoyment of them. For the reasons before given, I am clearly of opinion that a State is suable by citizens of another State.”
— John Jay in the Court Opinion of Chisholm v. Georgia

John Jay was the ‘man of the hour’ as far as the new judiciary was concerned. The founding fathers conceived a federal government that was built on a separation of powers within the federal government. This meant that the Congress was assigned the task of passing the laws to govern the land while the executive branch, embodied in the President, was to see that those laws were enforced with equity and fairness. What if one of these branches was to become ‘too powerful’? The judiciary, especially in the institution of the Supreme Court, had to decide between these other two branches. The court, likewise, was nominated by the executive branch and confirmed by the legislative branch. This set of checks and balances was unique in governance and an American innovation from the philosophers of the Enlightenment. Hard decisions had to be made.

"...you [jurors] have ...a right to take upon yourselves to ...determine the law as well as the fact in controversy."

— John Jay

The Jay court made a number of important decisions during its deliberations. These included Chisholm v. Georgia settled the important issue of whether a state was subject to the judicial review by the Supreme Court and the Federal government; the answer was ‘YES’! It also addressed the important issue of how jury instructions were to be given; in Georgia v. Brailsford the standard was set to tell juries that they were to decide the ‘facts’ of the case while the courts were responsible for determining the ‘law’ involved. Above all, Jay set the basic operating procedures for judicial review of the law and the protection of the peoples’ rights to their property. This was a journey down through unexplored territory.

"No power on earth has a right to take our property from us without our consent."

— John Jay

In addition to being the Chief Justice of the Supreme Court, Jay also became the 2nd Secretary of Foreign Affairs (State). In this role, he helped our new government to assert its international rights, especially related to the ongoing conflicts between England and France. He negotiated the ‘Jay Treaty’ of 1795 that avoided a new war with England. He had previous experience as minister to Spain during the Revolutionary War and with the group, including John Adams and Benjamin Franklin, who negotiated the ‘Treaty of Paris’ in 1783 to end that war. Thus, he brought considerable experience to his task in the State Department and set the general operating parameters for the diplomatic corps in much the same way as he had with the Supreme Court. Again, he served his country well.

"Nothing is more certain than that a general profligacy and corruption of manners make a people ripe for destruction. A good form of government may hold the rotten materials together for some time, but beyond a certain pitch, even the best constitution will be ineffectual, and slavery must ensue."

— John Witherspoon on John Jay (1776), in The Dominion of Providence Over the Passions of Men

Upon retiring, he went back to a small farm in New York where he spent his final years. He had served his country well. He had helped to define the form of this new governmental model: a democratic republic. He was an early opponent of slavery and worked for most of his public life to see the slaves freed; for this he is to be recommended.

"No people will tamely surrender their Liberties, nor can any be easily subdued, when knowledge is diffused and Virtue is preserved. On the Contrary, when People are universally ignorant, and debauched in their Manners, they will sink under their own weight without the Aid of foreign Invaders."

— Samuel Adams on John Jay, in a letter to James Warren, November 4, 1775

Our new government had an active legislative branch that was up and running in little time and an executive branch with a President and his advisors, but getting a federal judiciary was much harder. It took a man such as John Jay, who had experience in both the legislative sphere and executive (diplomatic) sphere, to mold the Supreme Court into an effective counter force to both of the other branches in the federal government and determine the relative spheres of influence between the states and the federal government. THANK YOU for your skills, John Jay, in accomplishing this task.

Next Time: We continue to examine the founding fathers and their contributions to the American Revolution with an examination of Samuel Adams’ role. Join us for that adventure…

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