The Jay Treaty, Part II: Context

            In addition to the specific issues or grievances that the Treaty of Paris (1783) had failed to address, there were – as previously discussed – a number of disputes that had arisen between the ratification of that document and the middle of the 1790s that further served to poison relations between the United States of America and Great Britain. Mainly diplomatic and commercial in nature, these various conflicts almost all stemmed from the same central cause – to wit, the French Revolution (1789-1799). Triggered by the summoning of the Estates-General – the equivalent of a parliament – for the first time in one hundred and seventy-three years, the Revolution witnessed the collapse of the Kingdom of France and the emergence of a radical republic in its place in 1792/93. This in turn set in motion a series of devastating wars that would rage across Europe for the better part of twenty years. Neighboring European powers like Great Britain, the Holy Roman Empire, and Spain saw much to fear in the social and ideological forces that the French Revolutionaries had violently unleashed, and sought to preserve the reigning political order and prevent their own potential collapse by taking up arms against the nascent French Republic. The subsequent War of the First Coalition (1792-1797) pitted France against a cabal of reactionary kingdoms and states, witnessed the overthrow of several, and concluded with a largely unexpected French victory. 

      

            On the far side of the Atlantic, Americans observed this revolutionary turmoil with a mixture of jubilation and unease. While many citizens of the United States heralded the collapse of the French monarchy as the beginning of the end of the “ancient tyrannies of Europe,” others were not quite so sanguine. On one hand, a number of prominent figures within the French Revolutionary movement – notably including the Marquis de Lafayette (1757-1834), George Washington’s former aide-de-camp – pointed to the experience of the United States as inspiration. On the other, the relationships that the American republic had respectively nurtured in the 1780s with Great Britain and with France placed them in a somewhat awkward position once war was declared between the two. French army and naval officers had shed blood for the cause of American independence, and France had been the first nation in the world to recognize the sovereignty of the United States of America. In addition, the fact that the French Revolution was an ostensibly republican one caused many Americans to emotionally and philosophically identify the overthrow of Louis XVI (1754-1793) with their own experience of violently casting off the rule of George III. At the same time, however, Great Britain represented the USA’s single largest trading partner, its neighbor in North America, and a nation with whom many American citizens still maintained strong personal and business connections. In short, it seemed that the United States of America was torn – perhaps fatally – between ideology and ambition; principle and pragmatism.

Though in large part cognizant of the competing motivations acting upon contemporary American foreign policy, British authorities during the early 1790s nonetheless wasted little time in placing their country on a firm wartime footing. To that end, the British Navy began to very aggressively pursue and capture French merchant vessels in an attempt to cut off their enemy from access to trade goods and military supplies. This focus on attacking French commerce resulted in several significant outcomes within the sphere of Anglo-American relations. First, it created a tremendous opportunity for American ship-masters and merchants to drastically expand their area of influence. As the risk of putting to sea for the French merchant fleet increased, vessels flying the flag of an ostensibly neutral nation like the United States were able to absorb the trade routes that their European counterparts were forced to abandon. The immediate result was a period of heightened demand and rising profits for American shipbuilders, merchants, and sailors alike. Between 1792 and 1796, American ship-masters managed to increase their average revenues by a factor of three, while carpenters and laborers in port cities like Philadelphia in some cases saw their wages double during this same period. By 1794, the United States was the dominant trading nation in the West Indies, and its shipping industry was generating hundreds of thousands to several million dollars every year. Unfortunately, this unprecedented shipping boom – referred to at the time as the “carrying trade” – was frustrated in the long term by two further consequences of the British Navy’s focus on attacking the commerce of its enemies.

In sudden and dire need of a steady stream of manpower to keep its increasingly active fleet fully staffed, the Royal Navy began an aggressive campaign to seek out and apprehend deserters and impress – i.e. kidnap – as many able-bodied men as ship captains deemed necessary. While no one considered to be the subject of a foreign nation or sovereign was theoretically subject to such coerced service, American citizens represented something of an exception. In spite of Britain’s ratification of the Treaty of Paris and its formal recognition of American independence, British law failed to acknowledge the existence of naturalised American citizenship. In practical terms, this meant that the contemporary British government considered those of its subjects who had settled in the United States of America after 1783 and attained citizenship to in fact still be subjects of the British Crown. In addition, there existed no information infrastructure – passports, sophisticated record keeping, etc. – that would have otherwise prevented actual British Navy deserters from simply claiming American citizenship in order to avoid re-capture. In consequence, and despite repeated petitions by the government of the United States, British “press gangs” captured and forced into service several thousand sailors over the course of the 1790s who claimed – truthfully or otherwise – to be American citizens.

            At the same time, Britain’s interdiction of enemy sea-bound trade and the resulting expansion of American shipping into markets formerly dominated by the French also had the effect of making American merchant vessels an increasingly common target of Royal Navy aggression. In spite of American protestations that “free ships make free goods” – i.e. that in time of war, the cargo of a neutral vessel, even if it was bound for a belligerent nation, should be safe from seizure – British authorities subscribed to the theory that any goods bound for the ports of their enemies was fair game for capture. The logic of this position doubtless appeared particularly obvious in the case of American vessels carrying sugar from French colonies in the West Indies to French ports. As far as contemporary British naval and political authorities were concerned, this was simply French trade being conducted under an American flag. Such vessels, they argued, were thus legitimate targets for confiscation. And while Britain did not follow through on this interpretation of diplomatic norms for the first several years of its war with France – perhaps out of consideration for its economic relationship with the United States – it was only a matter of time before circumstances forced their hand.

Granting that the commercial and naval policies cited above do seem to present the British government as the chief instigator of diplomatic tensions within the Anglo-American relationship in the mid-1790s, it bears acknowledging that contemporary events in the United States had done much to cast suspicion on American intentions. On April 8^th, 1793, the first ambassador from the French Republic to the United States of American arrived in Charleston, South Carolina. Edmond Charles Genêt (1763-1834), who took to styling himself “Citizen Genêt,” subsequently behaved in a manner very unlike the courtly dignitary that his office customarily called for, and quickly found himself alternately embraced and held at arm’s length by the American people and their government. Brash, charming, and bombastic, Genêt carried with him both a series of requests to be formally presented to the Washington Administration and a series of clandestine instructions in case an affirmative response was slow in coming. Under the former heading, he asked that the United States government extend a sizable loan to the French Republic and agree to provide ample produce and military supplies to the same. And under the latter category, he was authorized to recruit armed expeditions for the purpose of striking British and Spanish possessions in North America and carried with him the necessary paperwork to commission the captains of private merchant vessels as privateers in service of the French Republic. These duly-authorized vessels would then proceed to target British shipping while at the same time seeking shelter in the ostensibly neutral ports along the American coast.  

Over the course of the next several months – April to August of 1793 – the United States of America was subsequently wracked by a series of partisan convulsions, became entangled in its first major crisis of foreign policy, and began the long and difficult process of defining its role in the international order. Perhaps the single defining cause of all of these occurrences was a fairly simple piece of news that had accompanied Ambassador Genêt across the Atlantic. War had broken out between Great Britain and the French Republic, and it remained for the Washington Administration to determine how best to position the United States of America vis-à-vis the European belligerents. The subsequent cabinet meetings – held between April 8^th and May 16^th, 1793 – produced agreement on the need for American neutrality, though the specifics thereof were argued at length by Secretary of State Jefferson and Secretary of the Treasury Hamilton. While noted Francophile Jefferson argued in favor of leveraging a formal declaration of neutrality in order to extract favors from the concerned parties in Europe, Hamilton meanwhile urged his cabinet colleagues that American foreign policy should be based on sound principles rather than the whims of whichever foreign power was willing to offer the best deal in exchange. President Washington – ever a man of prudence and steady temperament – ultimately agree with his former aid-de-camp, adding further that any delay in declaring American neutrality would only increase the risk of the fragile young republic being drawn into the struggle against the will and the best interests of its citizens.

In consequence, President Washington issued a proclamation under his own hand on April 22^nd, 1793 that made it abundantly clear where the United States of American stood in relation to the armed conflict then raging in Europe. Owing to the ongoing state of war between various nations on the European continent, it read, “The duty and interest of the United States require that they should with sincerity and good faith adopt and pursue a conduct friendly and impartial toward the belligerent powers [.] This impartiality encompassed both official policy – i.e. the actions of the federal and state governments and any officers thereof – as well as the activities of private citizens. To that end, Washington specifically declared that,   

Whosoever of the citizens of the United States shall render himself liable to punishment or forfeiture under the law of nations by committing, aiding, or abetting hostilities against any of the said powers […] will not receive the protection of the United States against such punishment or forfeiture; and further, that I have given instructions to those officers to whom it belongs to cause prosecutions to be instituted against all persons who shall […] violate the law of nations with respect to the powers at war, or any of them.

Jefferson and his allies were understandably crestfallen – by the increasing influence that Hamilton and his partisan seemed to exert over the Washington Administration and by the harm that they believed such an unequivocal policy statement would do to their ideological compatriots in France. Hamilton was conversely triumphant, though only in part. While he had managed to secure a formal, unconditional proclamation of neutrality, and had successfully argued that the 1778 Treaty of Amity and Commerce between the United States and the Kingdom of France had been nullified by the execution of Louis XVI, the Treasury Secretary nonetheless failed to convince his cabinet colleagues or President Washington that the latter ought to refuse to receive and accredit the newly named French ambassador.

If Hamilton`s rationale for rebuffing Genêt failed to carry the day in cabinet in April, 1793, it soon became apparent exactly what he had wished to avoid upon the latter`s arrival in Philadelphia. While the envoy’s more outwardly alarming efforts amounted to very little in the long run – his planned expedition to conquer the Spanish colony of Louisiana failed to materialize, and his efforts to enlist American sailors as privateers in French service produced only minimal injury to British shipping – his disregard for protocol and his revolutionary rhetoric sparked any number of controversies that the Washington Administration then hastened to quench. Feted upon his arrival on May 16^th, 1793 – toasted, hosted, and made the centre of attention at numerous receptions and banquets – Genêt did not hesitate to bring this public confidence to bear against Washington’s newly declared policy of non-interference. At times this subversive behavior took the form of enlisting prominent American statesmen to the cause of the French Republic – Thomas Jefferson notably provided Genêt with letters of introduction during the latter’s failed excursion against Spanish Louisiana, and Pennsylvania Governor Thomas Mifflin (1744-1800) was at one point heard to offer a public toast in Genêt’s honor to, “The ruling powers in France. May the United States of America, in alliance with them, declare war against England.” Worse yet, however, was Genêt’s uncanny ability to elicit mass demonstrations of revolutionary enthusiasm from among the general population. During his stay in the nation`s capital, French and American flags waved side-by-side across the city and verses of the revolutionary anthem La Marseillaise echoed in the streets. Meanwhile in the cities and towns that he visited since his arrival, political societies sprang to life that claimed to promote the shared values of the French and American Revolutions.

 These ad-hoc societies – dubbed either “Democratic” or “Republican” – appeared particularly sinister to American proponents of non-interference. While their members claimed that a defeat for the French Republic would allow the newly-empowered monarchies of Europe to extend their reactionary campaign across the Atlantic, opponents perceived in them far too many similarities to the political clubs that had fueled the most destructive aspects of the ongoing revolution in France. Secretary of State Hamilton in particular saw in their rhetoric and their structure a distressing potential for insurrection, and endeavored to monitor their activities for any hint of treasonous behavior. Meanwhile, resulting from the emergence of these proto-party organizations, Genêt’s patronage thereof, and the tensions arising from the enforcement of Washington’s declaration of neutrality, the political press began churning out editorials, essays, broadsides, and polemics, alternately in favor of or opposed to Britain, France, President Washington, the French Ambassador, or the federal government in general. Pro-administration publications like The Gazette of the United States and The American Daily Advertiser were countered by the likes of the anti-administration National Gazette, each with its stable of statesmen disguised by pseudonyms – Hamilton, for instance, wrote a series of essays under the name “Pacificus,” while Congressman James Madison (1751-1836) contributed a run of responses as “Helvidius.” Each side regularly accused the other of treason, conspiracy, and betraying the principles of ’76 while leaving little room in their stated positions for compromise, conciliation, or complexity.

By July of 1793, public opinion in the United States was arguably as inflamed as it had ever been during the years leading up to the American Revolution. Citizen Genêt continued to brazenly flaunt the admonitions of the Washington Administration, and the political press daily churned out editorials viciously denouncing the President, or the Democratic/Republican societies, or the supporters of either. Jefferson, doubtless still smarting from his defeat in the debate over American neutrality, actively provided cover from within the federal government for Genêt’s more indiscreet declarations to members thereof. Hamilton, meanwhile, took pains to preserve the policy of non-interference that he had lobbied so successfully for while at the same time quietly providing assurances to certain foreign dignitaries who had reason to doubt American intentions. George Hammond (1763-1853), British minister to the United States of America, was chief among these interested parties. Faced with Washington’s proclamation on one hand and the public popularity of Ambassador Genêt on the other, Hammond had every reason to be confused. Was the President merely playing the statesman in public while simultaneously giving private assurances that Americans found to be offering material aid to France would not face formal prosecution? Hamilton, for his part, endeavored to convince the British ambassador that he would do all that was in his power to counter the efforts of both Genêt and his American supporters. While Hammond expressed his faith in Hamilton’s pledge in dispatches to his superiors, it nonetheless remained an open question in British ministerial circles whether or not the heartfelt promises of one man would be enough to stem the tide of pro-French sentiment sweeping across the American republic in that turbulent summer of 1793.

While Genêt’s continued intemperance soon resulted in a request to the government of the French Republic for his immediate recall, the departure of the renegade ambassador from the domestic political scene provided the beleaguered Washington Administration with only a brief reprieve. The government of Prime Minister William Pitt, whose ambassador to the United States had, as aforementioned, witnessed the full extent of the “Genêt Affair,” remained unconvinced either by substance of Washington’s June 22^nd proclamation of neutrality or by the ability of the United States government to enforce its terms. As Genêt’s efforts had made quite clear, countless American citizens were willing and able to defy the authority of the President and evade the various resources at his disposal. American-crewed privateers in French service had seized a number of British merchant vessels, and public support for the French Republic – in the form of newspaper editorials, pamphlets, and the growth of pro-revolutionary political societies – showed little sign of abating. Some manner of response was called for, in order to both arrest the ability of France to continue benefiting from American neutral shipping as well as to make clear that Great Britain would not tolerate duplicity in its diplomatic relations. To that end, the government of Prime Minister Pitt accordingly decreed in an order in council dated to November, 1793, that the Royal Navy would henceforth,

Stop and detain all ships laden with goods the produce of any colony belonging to France, or carrying provisions or other supplies for the use of any such colony, and shall bring the same, with their cargoes, to legal adjudication in our Courts of Admiralty.

Two hundred and fifty captured American merchant ships later, the supporters of Hamilton – increasingly known as “Federalists” – and the devotees of Jefferson – often referred to as “Republicans” – found themselves in a shared state of shock and outrage. While both factions responded in January of 1794 by promoting – unsuccessfully – some form of commercial reprisal against British trade, it was the Federalist proposal to send an envoy to Britain that was ultimately set in motion. Though concerns abounded as to whom Washington would commission for the task – Jefferson suspected Hamilton would seize the opportunity to personally establish stronger ties with British officialdom, and several Republicans echoed his objection in letters to the President – Chief Justice John Jay was ultimately selected in April, 1794. As head of the judicial branch of the federal government, Jay enjoyed a position of authority and trust that was relatively untouched by the roiling partisanship then plaguing American public life. He was also widely known to be a man of honor, integrity, and restraint. While not quite the Republicans’ preferred choice – some regarded him as a Federalist at heart – he nevertheless secured the approval of the United States Senate and made ready to depart on May 12, 1794. He carried with him to London the confidence – though in some cases only nominal – of both major factions in contemporary American politics, a series of instructions from his government, and the ardent hopes of his fellow countrymen.

The Jay Treaty, Part I: Context

            Now, as is my custom from time to time, I’d like to try something a little different.

            I’ve lately had cause to think a little about some of the issues that had served to define particular political eras in the history of the United States of America. Slavery – to seize upon what is undoubtedly the most obvious and far-reaching example – was the core social, ideological, and economic concern for an entire generation of Americans. Between the 1830s and the 1860s, no other single issue consumed as much energy or occupied as much attention in the national consciousness. In consequence, the shape of the United States as we know it was moulded through attempting to confront exactly what role the so-called “peculiar institution” was to play in the nation’s future or alternately by taking pains to avoid any such reckoning. And while no other single question of policy ever exerted quite the same gravitational pull, there have been a number of other such pressure points across the history of the American republic that effectively served as moments of national self-reflection, crisis, and renewal. The end of the 19^th century and the beginning of what became known as the Progressive Era, for instance, was most certainly one of those key moments. Forced to confront the apparent contradictions between the American national credo – “all men are created equal” – and the increasingly inequitable effects of laissez-faire capitalism, prominent reformers transformed and realigned the political culture of the United States in a way that better reflected the technological and social changes wrought by the Civil War (1861-1865) and its aftermath. The era of the Vietnam War (1964-1973) reflects another such crisis point, during which the nation engaged in an often chaotic process of introspection and assumptions about the role of government and civil society were challenged and redefined.

Moments like these litter the timeline of American history, and studying them can yield tremendous insight into the way that Americans have understood the meaning of their nationality as well as provide valuable context for a great many of the assumptions ingrained into American culture. America at its worst, one might therefore cynically remark, has historically also been America at its most American. Bearing all of this in mind, and nurturing a personal interest in exploring one of these defining moments alongside my faithful readers, I have determined to take the next several weeks to examine just such a crisis point that falls quite neatly within the era of American history that I long ago staked out as my own to master. Thus, I introduce to you the Jay Treaty, the First Party System, and one of the first great era-defining public debates of the post-constitutional United States.     

            What, I inexplicably hear you ask, is the Jay Treaty? In short, it was a bilateral international agreement negotiated and ratified by the United States of America and the Kingdom of Great Britain in the middle years of the 1790s. Formally titled the Treaty of Amity, Commerce, and Navigation, Between His Britannic Majesty; and the United States of America, by Their President, with the advice and consent of Their Senate, its purpose was to settle a number of grievances between the relevant parties that had either persisted since the conclusion of the Revolutionary War in 1783 or arisen since then. It was drafted and signed in London on November 19^th, 1794 by John Jay (1745-1829), on a break from his duties as Chief Justice of the Supreme Court, and William Grenville (1759-1834), 1^st Baron Grenville and Secretary of State for Foreign Affairs. Without going into more detail than that – there will be time for that later – it will for the moment suffice to add that said treaty, upon the arrival of the completed text in the United States of America in the summer of 1795, touched off nothing short of a firestorm of controversy and partisan tension. Heralded by some as a pragmatic compromise between economic necessity and ideological conviction, it was simultaneously decried by others as symbolic of a rank capitulation to monarchist Britain and an abhorrent betrayal of republican principle. Its foes pledged themselves to defeat its ratification by the United States Senate, and even its supporters frequently expressed dissatisfaction and disdain for certain of its provisions.

Leaked to the public in July, 1795 – President Washington had earlier decreed that the text be distributed only to officers of the federal government – their response was no less extreme. An avalanche of pamphlets for and against flooded the country, raucous public demonstrations erupted in towns and cities, and the inexorable crystallization of a two-party political alignment – which had been simmering since the ratification of the Constitution six years prior – was finally and fully realized. And yet, in spite of everything that was said against it, the aspersions cast upon its author, the President of the United States, and its supporters in the press, and the far from inconsiderable efforts of Thomas Jefferson and James Madison in particular to see it well and truly defeated, the Jay Treaty did ultimately become law. The Senate ratified it, twenty votes to ten, on June 24^th, 1795, and Washington signed it into law that August. Its provisions requiring funding were thereafter backed by the House of Representatives, and it finally took effect on February 29, 1796. Those of you still following along might at this point fairly have cause to wonder how this was possible – how it was, in spite of the controversy and chaos that it spawned, that the Jay Treaty managed to become the law of the land. This line of thought is most certainly worth pursuing. Understanding how the Jay Treaty came to pass and the passions that it aroused may yet reveal a great deal about the United States of America as it existed in the end of the 18^th century, the domestic and foreign policy priorities of its citizens and statesman, and the vision(s) that they collectively nurtured of its future.

To that end, what follows will be an exploration of  the text of the Jay Treaty, the various ways that it served either to benefit or to harm certain aspects of economy, security, and national reputation of the United States of America, the contemporary responses of its supporters and critics, and the political significance of its eventual ratification. Before delving into any of that, however, there must first commence a discussion of the conditions on the ground that made the negotiation of a treaty necessary to begin with and which conditioned how the resulting draft document was finally received.  

While it is usually customary at this point to offer some insight into the background of the author of whichever document is under examination, the following paragraphs will, for reasons shortly to be explained, forego any such assessment. First, the life, career, and inclinations of John Jay have been discussed at length already in this series; to repeat them here would therefore appear largely unnecessary. Second, there is little of interest to say about William Grenville – at least not as of 1794/95. He was still fairly new to the political scene, having first entered the House of Common in 1782, and in short order had become a close ally of his first cousin, Prime Minister William Pitt (1759-1806). He was well-educated, had served in the government since 1784, and acted as Home Secretary (1789-1791) prior to being assigned to the Foreign Affairs portfolio. By all indications he was a typical government minister of his era, and promoted the agenda of his party and his nation to a high degree of competency. The third reason for saying little more about Grenville or Jay than that has to do with the nature of the document itself – an international treaty touching upon a number of high-level and potentially sensitive subjects – which more or less demanded that its authors adhere to the linguistic and structural norms of contemporary diplomacy. There was, in short, little latitude for either man to express or insert any aspect of their individual political or philosophical proclivities. Knowing full well that the language they ultimately arrived at would need to be scrutinized and approved before it could come into force, Jay and Grenville therefore doubtless understood that a distinctly measured, non-partisan tone was the most likely to meet with mutual acceptance.   

           

Having thus acknowledged that Jay and Grenville will not be the stars of this particular show, it thus remains to devote the majority of the discussion that follows to an explanation of the specific political and economic conditions that gave rise to the Jay Treaty. And boy howdy – as the saying goes – is there a hell of a lot to talk about.  

Although the immediate aftermath of the ratification of the Treaty of Paris (1783) witnessed a general return to peaceful and mutually profitable relations between the Kingdom of Great Britain and the newly-independent United States of America, a number of key issues were – as aforementioned – either left unaddressed by the terms thereof or arose in the interim to sow animosity between the parties involved. Examples of the former generally touched upon matters of territory or property and spoke to the effects of lingering animosity, pride, and arrogance on both sides of the Atlantic. Article Two of the Treaty of Paris, for example, while intended to settle the territorial boundaries between the nascent United States and Britain’s remaining possessions in North America, proved particularly difficult to implement. The actual text of the article in question was somewhat vaguely worded – describing a line running from the westernmost point of Lake of the Woods to the Mississippi River as the international border – and left uncertain exactly where American sovereignty ended and Britain’s began. The result was an area in the far west of the American republic’s declared territory that potentially overlapped with British claims in the Province of Quebec. As neither party was particularly willing to concede to the other – Britain, still smarting over the loss of the Thirteen Colonies, wished to maintain a check on American expansion in the Great Lakes region, while the United States was eager to press it claims to the same territory and the resources it contained – disputes over resources, settlement, and the application of domestic law were more or less inevitable.

            The most visible manifestation of this overlapping sovereignty took the form of a series of forts on the western frontier of what the Treaty of Paris had fairly clearly acknowledged to be American territory. Most of these permanent garrisons – including but not limited to Fort Detroit and Fort Mackinac in what became the Northwest Territory, and Fort Niagara and Fort Ontario in New York State – had been built by the British during the Seven Years War (1754-1763), had remained in British hands throughout the late Revolutionary War (1775-1783), and had been officially ceded to American control by the terms of the peace in 1783. Article 7 of the accordant treaty specifically stated that George III (1738-1820), on behalf of his government, agreed to remove, “All his armies, garrisons, and fleets from the said United States, and from every post, place, and harbor within the same [.]” In spite of this written assurance, however, British military personnel retained control of these selfsame fortifications, and the hinterlands surrounding them, well into the 1790s. Not only that, but British military authorities also ordered the construction of a further garrison, Forth Miami, in the Maumee River valley in 1794 –  in territory that fell well within the American claim and long after the Treaty of Paris had been signed and ratified.

Britain’s rationale, for continuing to occupy these existing garrisons, and for constructing a new one, was essentially twofold. First, it gave British authorities the ability to apply pressure to the United States government as a means of compelling the latter to fulfil what Britain claimed were its own largely unheeded obligations under the Treaty of Paris – namely, the restoration or restitution of Loyalist property and the repayment of debts owed to British subjects. Second, it allowed Britain to maintain commercial and political relations with the Native inhabitants of the Great Lakes region. Actively servicing these bonds – established over the course of the 17^th and 18^th centuries through trade, military cooperation, and diplomatic exchange – provided Britain with access to trade goods, information, and the ability to generally frustrate or slow the expansion of American settlement into what are now the states of Ohio, Michigan, Illinois, and Indiana. The indigenous peoples of these disputed territories – the Wyandot, the Shawnee, the Lenape, and the Miami, among others – meanwhile took ample advantage of Britain’s evident intention to stymie the growth of its former colonial subject by seeking to bend their European ally’s North American strategy towards the promotion and preservation of their own particular interests. On the ground, this relationship and its outcomes took the form of terror-inspiring Native raids on American settlements, occasional British military aide during engagements with the United States armed forces – such as their ultimately futile participation in the Battle of Fallen Timbers in August, 1794 – and the overall umbrella of protection offered by the continued physical presence of British soldiers, traders, and administrators in ostensibly American territory.

            A further inadequacy of the Treaty of Paris – from the American perspective, at least – also lay in its failure to provide financial restitution for thousands of slaves who fled their American masters and received freedom and transportation from British authorities during the late Revolutionary War. These runaways had responded to the efforts of British officials like Virginia’s Royal Governor John Murray, 4^th Earl of Dunmore (1730-1809), to stymie the American war effort by bleeding away the labor supply of the rebellious provinces. A number of these former slaves subsequently served in specially-formed regiments of the British army in combat and non-combat roles alike. In return for their service, and for abandoning their masters, upwards of six thousand newly-freed men, women, and children were transported from what had been formally recognized as the United States of America to British territories in Nova Scotia, Florida, the Caribbean, and even Britain proper. While this truthfully represented a small percentage of the overall slave population of the former Thirteen Colonies, the Revolutionary governments of the various Southern states in particular – whose economic wellbeing depended on access to slave labor – fully expected that the terms of the peace between the nascent American republic and Great Britain would include a clause that mandated the return or restitution of what they considered to be seized Patriot property. That the Treaty of Paris entirely failed to achieve this goal while at the same time requesting American compensation for seized Loyalist property and estates struck a portion of the political classes in the United States as manifestly unjust, and consequently remained a sticking point within the diplomatic realm of the Anglo-American relationship.

Federalist No. 78, Part VIII: Implication, contd.

            In addition to hinting at the tactical significance of the state ratifying conventions within the broader debate over the proposed constitution, certain passages of Federalist No. 78 also seem to draw attention to an element of the judicial review process with which its author, Alexander Hamilton, appeared at least mildly uncomfortable. Specifically, by addressing the role to be played by federal courts in assessing the conformity of statute with the text of the Constitution, comments rendered in paragraphs eleven, thirteen, and fourteen arguably indicate a degree of unease or an effort on Hamilton’s part to avoid discussing the interpretive aspect of judicial review – likely because he felt it would ultimately do harm to his argument in its favor. Whereas it cannot be denied that federal justices, in the course of their duties, must at times seek to interpret the meaning of certain passages of the Constitution whose significance or application are not otherwise clear, the relevant sections of No. 78 seemed to describe this same process in broadly simplistic and unambiguous terms. Reflecting upon the controversy which has long since attended certain Supreme Court rulings, and the recurrent questions which have arisen in public discussion over the seemingly outsized role individual justices seem to play in shaping the laws of the United States, Hamilton’s evident sense of discretion might be forgiven (or at least understood). That being said, it remains noteworthy that anxiety over this interpretive aspect of judicial review has evidently been an element of American public discourse since the inception of the Constitution. It is also rather striking that Hamilton, in attempting to argue in favor of even the concept of judicial review, was evidently able to foresee the clamour that would arise and took steps to avoid stoking it. 

            Returning to specifics for the moment, consider the passage from the eleventh paragraph of Federalist No. 78 which asserted that, “The interpretation of the laws is the proper and peculiar province of the Courts. A Constitution is, in fact, and must be regarded by the Judges, as a fundamental law. It therefore belongs to them to ascertain it meaning [.]” This plain declaration would seem to gloss over certain complicating elements of the process it described. If, as Hamilton here seemed to assert, it was set to form a key part of the duties of the federal courts to ascertain the meaning of the Constitution, at least two significant implications would seem to arise. First, Hamilton’s admission that the Constitution would at times be in need of clarification or interpretation would appear to indicate that the plain text of it was not necessarily clear enough or comprehensive enough to function purely as written. In fairness, it would indeed be unrealistic to expect any codified governing document to be wide-ranging enough to confront every possible eventuality without its officers occasionally resorting to some degree of re-articulation. Nevertheless, contemporary critics of political centralization – i.e. the Anti-Federalists – would doubtless have seized upon an admission of the same as evidence of their opponents’ desire to seed the proposed constitution with enough vagaries and loopholes so as to afford a re-configured national government the ability to grant itself whatever powers its proponents desired. Without making any claims as to precisely what Hamilton himself desired on this score, he at least appeared conscious that support for the Constitution would best be drummed up by avoiding undue discussion of such substantive ambiguities.

            The second implication that would seem to arise from the cited passage of the eleventh paragraph of Federalist No. 78 – and which appeared to be echoed and reinforced by sections of paragraphs thirteen and fourteen – concerns the particular role to be played by the various officers of the federal courts. If, as Hamilton stated, federal judges would be solely responsible among the judiciary of the United States for declaring the definitive meaning of a given section or clause of the Constitution, it would seem to follow that the legal significance and practical application of said document would depend in large part upon the individual perspective of the judges in question. In addition to professional experience and knowledge of the law, therefore, the particular ideology, philosophy, education, or even personality of a federal justice would all seem set to weigh on how certain passages of the Constitution were read and the manner in which they were applied. It would, once again, be impossible to deny that this is in fact the case. In the history of the United States Supreme Court, there have been liberal Justices and conservative Justices, and within these broad categories strict constructionists, loose constructionists, originalists, and purposivists. Indeed, contrary to what any one of these schools of thought would claim, there has never been any single legitimate lens through which to view the Constitution. And while public discontent can and does arise in response to particular readings or verdicts, the authority of the Supreme Court to interpret said document – by whatever means its individual members determine – has never been substantially challenged.

            That being said, and once again perhaps in fear of the furor he believed would arise if he openly acknowledged the role individual personality had to play in the operation of the proposed constitution, Hamilton seemed determined in the text of No. 78 to characterize the interpretive role of the federal courts in very broad terms. In the event that two statutes, he accordingly explained in paragraph thirteen, each possessing the force of law were found in any way to conflict or negate one another,

It is the province of the Courts to liquidate and fix their meanings and operation; so far as they can, by any fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done; where this is impracticable, it becomes a matter of necessity to give effect to one, in exclusion of the other.

Hamilton’s purpose in citing this legal principle was quite clearly to draw a comparison between the customary role of the judicial establishment within the Anglo-American tradition and the expanded role he envisioned for them under the proposed constitution. As, in the normal course of events, it fell to the courts to reconcile conflicting statutes, so would it fall to the federal judiciary to reconcile a given statute with the text of the Constitution when the two appeared to be at odds. Once again, however, Hamilton’s evident attempt to put a straightforward gloss on the inherent complexity of judicial review arguably raised more questions than it settled. What, for instance, did he mean by the term “fair construction?” Surely he must have been aware that what seemed a fair reconciliation of a given law with the Constitution to one group of observers would appear manifestly unfair to another. And how is it that “reason and law” can conspire to dictate that such and such a thing should be done? People reason differently, and perceive the purpose and significance of law differently. Granting that the Constitution was intended to operate as an ideologically neutral and non-partisan governing framework, it would seem the height of either naiveté or short-sightedness to imagine that a clear consensus would ever exist as to how and why its various sections and clauses ought to operate.

            It further seems worth questioning what Hamilton meant when he wrote that the reconciliation of conflicting statutes – and of a statute that conflicted with the proposed constitution – would sometimes be impracticable, and that in such instances it was “a matter of necessity” that one give way to the other. Who, for want of any indication on that score, would decide in this context what was impracticable and what was necessary? By what measure would these determinations be made? As with his invocation of “reason and law,” Hamilton here seemed determined to strip his characterization of the role of the judiciary of any hint of individual discretion. Rather than admit that a judge – a frail, flawed human being whose legal expertise arguably could not be separated from their personal inclinations – would be responsible for deciding what was possible, what was necessary, what law and reason dictated, and what constituted a fair construction, he instead took rhetorical refuge in inactive phrases which seemed to treat the process of judicial review as though it involved little more than acknowledging the primacy of some objective truth.

An additional passage from No. 78 would seem to confirm this. Having discussed in paragraph thirteen the supposedly self-evident logic in newer statutes taking precedence over older statutes when the two were to be found in conflict, Hamilton countered in paragraph fourteen by stating that the relationship between ordinary law and the proposed constitution would by necessity function in the opposite manner. Whereas newer statutes would presumably represent the most accurate and up-to-date summation of the popular will, the supreme governing document under whose auspices said statutes were issued would always remain superior in its claim to the approbation of the people and the support of their institutions. To that end, Hamilton wrote that, “The nature and reason of the thing indicate the converse of that rule as proper to be followed.” As with the passage cited above, this outwardly simply clause seems to deny the complexity of the relationship it endeavored to describe. Not only did it fail to explain precisely what “the nature and reason” of a potential conflict between a given statute and the proposed constitution was meant to refer to, but it also neglected to mention to whom such matters would ultimately be indicated. Thus phrased, however, Hamilton could conceivably avoid having to delve into what was perhaps the most frightening aspect of judicial review: individual discretion. Justices, after all, would be responsible for determining whether the terms of a statute warranted review, and would furthermore decide precisely what said review would entail.

In fairness to Alexander Hamilton, and to the members of his audience whose sensibilities he was presumably endeavoring not to offend, the power that the practice of judicial review has bestowed upon Supreme Court Justices is in concept more than slightly alarming. The ideological inclinations of certain members of the court have, over the centuries, led to readings of the Constitution, and of statutes under consideration, which have variously resulted in African-Americans being denied the right to citizenship (1857), the disestablishment of racially-segregated public education (1954), the increased ability of corporations to donate large sums of money to political parties or individual candidates (2010), and the nationwide legalisation of same-sex marriage (2015). While some of the verdicts in these cases were acclaimed by a majority of the sitting members of the Court, others were carried by a much slimmer margin – Obergefell v. Hodges (2015), in fact, saw the plaintiff’s case confirmed by a single vote. However one feels, emotionally or ideologically, about any of these cited decisions, it would seem fair to characterize the ability of a single person within an institution of the United States government to uphold or overturn state or federal law as at least appearing to be somewhat at odds with the core principles of representative democracy. If the will of “the People” is the only true font of legitimacy within the political and legal framework of the United States of America, then presumably the will of any single person ought never to be capable of setting a binding standard of practice not otherwise alterable. Hamilton, in short, may be forgiven for his reticence, if indeed this was an outcome he possessed foresight enough to recognize.        

            And yet, Hamilton’s possibly justified anxiety notwithstanding, the right of individual members of the federal judiciary to interpret the Constitution by whatever means they deem appropriate or necessary has since become an accepted aspect of judicial review in the United States. Granting that nearly every major decision handed down by the federal courts, and in particular those with margins as close as Obergefell v. Hodges, meets with some degree of hemming and hawing from the discontented, the American people have largely come to trust the judges appointed by their public servants to exercise tact, prudence, and integrity when performing their duties. This quality of public confidence – and with it a tacit acceptance that personality is an unavoidable element of any example of public decision making – has effectively sustained the authority of the judicial branch in spite of widespread opposition to certain controversial verdicts, and fully normalized its role as the sole legitimate arbiter of the United States Constitution. Rather than fatally and finally recoil at the audacity of the claimed right of unelected jurists to dismiss legislation that was drafted and approved by their own elected representatives, the American people have evidently come to acknowledge that disagreement with a given verdict handed down by the federal courts does not necessarily entail rejecting the discretionary right of the same. That is to say, however much some citizens of the United States might disagree with the substance or implications of a Supreme Court ruling, very, very few of them would honestly argue that the authority of the Court itself is invalid.

            In spite of Hamilton’s evident fear of public distress over the interpretive aspects of judicial review – if his rather mechanistic portrayal of the same in No. 78 is any indication – he nonetheless appeared to understand on some level that widespread acceptance of federal court decisions would be a likely consequence of that same institution’s particular weakness. As discussed in a previous entry in this series, this weakness was one of the reasons Hamilton believed that the judicial branch of the proposed federal government posed no real threat to either its legislative or executive counterparts. “The Judiciary” he wrote to that effect in paragraph six, “has no influence over either the sword or the purse; no direction over the strength or the wealth of the society; and can take no active resolution whatever.” In subsequent sections of No. 78 – while occasionally, as noted, appearing to work at cross-purposes – he went on to explain that this manifest lack of agency would permit the federal courts to play its co-equal counterparts against one another, buttress the system of checks and balances built into the structure of the Constitution, and generally help promote a sense of equilibrium and balance within the newly-reconstituted national government. What Hamilton conversely did not say, but what was substantially implied, is that this highly dynamic relationship may also have had the potential to secure the acceptance of the federal judiciary far more effectively than if it could take what he described as “active resolution.”

            Consider, to that end, a federal judiciary which combined the power of judgement with the power of enforcement – say, by allowing the courts to wield some form of policing. Because this would render the federal courts an authority unto themselves, their substantially – but necessarily – undemocratic nature would doubtless be highlighted every time they handed down a ruling that met with wide-ranging public discontent. Unable to point to the cooperation of either houses of Congress, the Presidency, or the various states – and indeed very likely to be opposed by the same – this theoretically assertive federal judiciary would likely find itself widely distrusted, under constant attack, or rendered moot by means of constitutional amendment. As discussed above, the discretion possessed by individual justices – combined with their status as appointed officials – rendered their authority all too easy to call into question. Turning reasoned judgement into judicial fiat would likely have pushed the envelope of public acceptance just far enough to make plain what Hamilton seemed to fear; that is, a federal judiciary whose members were seen as aloof, dictatorial, and – shudder – perhaps even aristocratic.   

            Forcing the federal courts to rely on the legislative and executive branches of the national government comparatively offered the judicial branch the chance to effectively build its legitimacy upon a platform of association. Whereas a judiciary with law enforcement authority might very easily alienate itself by claiming a mandate from the Constitution rather than from “the People” or their elected representatives, a weak judiciary that, as Hamilton wrote in paragraph six of No. 78, “Must ultimately rely upon the aid of the Executive arm even for the efficacy of its judgements [,]” would comparatively find great advantage in allowing its every judgement to become an opportunity for institutional cooperation. On occasions when Congress opposed a particular verdict, this would mean relying upon the Presidency and the various institutions within the executive branch to enforce the terms thereof. Conversely, whenever the federal executive chose to set itself against a given ruling, the judiciary would be forced to depend on the aid of Congress and the numerous mechanisms at its disposal. In either case, while building stronger bonds with one institution or another, the end result for the federal courts would presumably be the same: every judgement it handed down would carry with it the approbation and material support of a more democratic branch of government.

            What this means in a practical sense is that every Supreme Court ruling that had been rendered throughout the history of that body represents, in its effects and its lasting significance, a collaborative effort on the part of any number of state and federal institutions. The Court has always needed the cooperation of the Department of Justice, or Congress, or state police agencies, or state courts to ensure that its verdicts are carried out, and in the process has attained a degree of public acceptance that seems to belie the controversy its activities can often generate. And while presidents, congressional majorities, and state governments have not always agreed with the letter or spirit of every Brown v. Board of Education or Roe v. Wade, the default position of all of these institutions has become one of at least formal acceptance. Rather than attempt to dismiss out of hand verdicts deemed undesirable or invalid, critics – individual or institutional – instead resolve to seek recourse through the judiciary itself. This “wait and see” approach is arguably a viable one because, as Hamilton asserted in No. 78, the federal courts are not a force unto themselves. The American people elect a President and a Senate who nominate and confirm judicial candidates, respectively, and who cooperate with other state and federal institutions in ensuring that the verdicts handed down by the courts are respected and enforced. Critics, therefore, are poorly equipped to decry what they perceive as the arbitrary nature of federal court rulings because every Supreme Court ruling represents a communal effort. Whether a single justice cast the deciding vote or the decision was unanimous, the overall process is by design shaped, guided, and conditioned by any number of institutional expressions of the popular will.    

            Think of it like this. A person might celebrate a Supreme Court ruling one day because it aligns with their personal ideology or moral code, and disagree with a verdict laid down by the same body a week later for the same basic reasons. They are, of course, entitled to react however they care to, however their perspective and personality inclines them to, and to make known their displeasure or support by whatever legal means at their disposal. What they should not do, however, if they don’t want to call into question the legitimacy of verdicts they approve of, is attack the integrity the Court or of specific justices simply because a ruling has been handed down that they find to be offensive. The fundamentally cooperative nature of Supreme Court verdicts – every single one of them – grinds against any such “pick and choose” approach. Either one accepts the legitimacy of the federal courts or one does not. And while the former may fundamentally amount to a strategic consideration – people respect rulings they disagree with because they want their opponents to follow suit – the Court and the American people have stood to benefit all the same. Supreme Court rulings thus possess the power of constitutional law because they are supported by other institutions of government, and because the citizens of the United States accept that they do. While the emergence of this status quo doubtless seemed uncertain at the time Hamilton penned Federalist No. 78 at the tail end of the 18^th century, certain aspects of the text therein do appear to suggest that such was indeed his unexpressed hope.   

            Anyway, that’ll do me. Check it out for yourself, why not? 

Federalist No. 78, Part VII: Implication

Before concluding this essay series on Federalist No. 78, it remains to explore just a few more points of discussion. While these forthcoming topics don’t necessarily fit into any of the themes that have been covered thus far – context, pragmatism, or precedent – they are, I feel, too interesting or too significant to simply gloss over. As a result – and as ever I beg the indulgence of my dear, precious readers – what comes next will most definitely lack the structural consistency which I flatter myself in thinking that I normally maintain. Call this section a “one more thing” if you like. Indeed, perhaps I should have.

Anyway, let’s get on with it.

At a point around the middle of No. 78 – in paragraphs ten, eleven, and twelve, to be exact – Hamilton deployed a justification for subordinating Congress to the terms of the proposed constitution which in itself potentially reveals an attempt on his part to provide ideological justification for a distinctly strategic choice made by the Framers. What in God’s name is that supposed to mean, I hear you ask? Well, before I fully explain, I ask you to please consider the following. In the first instance (paragraph ten), Hamilton argued that to deny the superiority of the Constitution to a mere Act of Congress would in effect affirm, “That the Representatives of the People are superior to the People themselves [.]” In the second (paragraph eleven), he declared that in all cases, “The Constitution ought to be preferred to the statute; the intention of the People to the intention of their agents.” And in the third (paragraph twelve) he affirmed, “That where the will of the Legislature, declared in its statutes, stands in opposition to that of the People, declared in the Constitution, the Judges ought to be governed by the latter rather than the former.” In each of these cases, it should be noted, Hamilton clearly sought to establish a strong rhetorical relationship between the proposed constitution and “the People” of the United States of America. At the same time, he also seemed intent on erecting a kind of conceptual barrier between the general population and their representatives in Congress. A given congressional statute, Hamilton seemed willing to admit, could fairly be said to embody the aggregate will of “the People” at a particular moment in time, but not in the same way that he seemed determined to ascribe to the Constitution.

In short, this position boils down to the perception of a difference in quality or legitimacy between everyday laws that are passed by men chosen by their constituents for that purpose and a superseding fundamental law that was approved by the voters themselves. The act of delegation inherent in allowing Representatives and Senators to draft and approve laws in the place of their constituents, by Hamilton’s evident reckoning, made all the difference. Figuratively speaking, the hands of “the People” had touched the supreme governing document – i.e. the Constitution – in a way that could not be said of an act of Congress. This proximity lent greater legitimacy – not unlike rules of inheritance that prioritize closeness of relation to a shared ancestor – and thus made the Constitution the legally superior authority. In deference to Hamilton, it was almost certainly a very wise choice on his part to pursue this particular line of argument. “The People,” in the context of the American Revolution and its immediate aftermath, was an exceptionally powerful socio-political concept. As the sole inalienable source of authority in both the British parliamentary and 18^th century republican models of government, the explicit will of the general population could theoretically authorize or reject any action, and erect or tear down any administrative institution. By unambiguously harnessing “the People” to the proposed Constitution, therefore, Hamilton made it that much harder for his opponents to decry those aspects of the document with which they found fault. No one could claim, however valid or well-reasoned their complaints, that their particular sense of discretion was superior to the will of “the People,” and the Constitution was that embodied.

Sort of…

As with so many topics that have been discussed over the course of this series, the gloss that Hamilton put on the relationship between the American people and the Constitution – a characterization upon which he based no small portion of his argument in Federalist No. 78 – was more complicated than he made it seem. Recall, for instance, that in spite of Hamilton’s insistence that the will of “the People” was “declared in the Constitution,” the document itself was in fact drafted by a relatively small number of delegates (fifty-five) dispatched to Philadelphia from twelve of the thirteen extant states. Some, like Pennsylvania or Virginia, sent fairly large contingents – eight and seven, respectively – while others like New Hampshire (two) and New York (three) were comparatively underrepresented. It is also worth noting that none of these selfsame delegates were elected by the general population of their state – rather, they were selected and commissioned by the legislatures of the same. Consider, as well, that none of the states submitted the proposed constitution for public consideration in the form of a popular referendum. Instead, in keeping with the Framers’ express recommendation, the document was considered and adopted by delegates elected to a series of state conventions called specifically for that purpose. As with the delegations originally sent to Philadelphia, some of these state conventions were fairly small – Delaware, for example, elected only thirty men to the task, while Georgia sufficed with twenty-six – while others were substantially larger – the people of South Carolina elected two hundred and seventy-one delegates, but still less than the three hundred and fifty-five of Massachusetts – than the existing Continental Congress.

Taking these facts in hand, Hamilton’s assertion that the fully-ratified and accepted Constitution would in effect represent the express will of the American people would seem to be something of an oversimplification. On the basis of distance from “the hand of the people” – as a measure of fundamental legitimacy discussed above – the United States Constitution would seem to possess no greater legitimacy than any Act of Congress. The general population had about as much to do with one as the other, and in both cases delegated their sovereign authority to elected representatives. Indeed, when one takes into account the manner by which the states originally sent delegates to Philadelphia in 1787, the figurative distance between “the People” and the Constitution is even greater than between the former and any statute passed by Congress. Federal laws were to be drafted in part by Representatives that the voters of a given district chose themselves; the Constitution was drafted by delegates that were commissioned by state legislators, which were in turn elected by the voting public of the relevant jurisdiction. That the former included an extra step or filter between the American people and the final draft of the Constitution – i.e. the state legislatures – would seem to give the lie to Hamilton’s stated understanding that said document more closely embodied the popular will than an everyday Congressional statute.

Of course Hamilton was aware of these facts. To be otherwise wold have required a degree of wilful ignorance on his part. Having labored along with his fellow delegates for four months in the heat of a sweltering Philadelphia summer in 1787, he need only have cast his gaze around the interior of the Pennsylvania State House to know for certain that “the People” were hardly in evidence. And yet, his position in Federalist No. 78 – that the Constitution better represented the will of the general population than a given law passed by Congress – was not wholly without merit. Having possessed some knowledge of the basic dimensions of the proposed federal government, Hamilton would have been aware that the first meeting of the newly-reconstituted United States Congress would have been host to something less than one hundred total members. Within that number, though every state would be entitled to two Senators, some possessed population enough for only a single Representative (like Delaware or Rhode Island) while others stood to elect as many as six (New York and Maryland), eight (Pennsylvania and Massachusetts), or ten (Virginia). In consequence, a statute passed by Congress would require the approval of fourteen Senators and between twenty-nine and thirty-three Representatives – forty-three to forty-seven men, all told – in order to become law.

By comparison, from the selection of delegates to the final vote for ratification, the drafting and approval of the Constitution involved in some fashion or other the discretion or input of every state legislature – easily several hundred men, if not over one thousand – the knowledge and expertise of the fifty-five delegates in attendance at Philadelphia, the approval of the members of the contemporary Continental Congress, and the consideration of the combined attendees – all one thousand six hundred and forty-eight of them – of every state convention. Therefore, though he absolutely did not have access to all of these figures, Hamilton was nevertheless correct in his assertion that the approved Constitution would enjoy the effective sanction – or at least reflect in some way the input – of a far greater number of American citizens than any Act of Congress. This was true in the details as well as the broad strokes. More Delawareans – by a margin of thirty-five to three – would have a hand in the Constitution than in a given Congressional statute; more Georgians, as well, and New Yorkers, and Virginians. Not only was this an accurate assessment in 1788, when Hamilton originally made his case, but it remains true in 2017. The current membership of Congress, at five hundred and thirty-five, is still easily outstripped by the upwards of two thousand people who in some way gave their approval to and facilitated the adoption of the United States Constitution. While admitting once more that the truth was somewhat more complicated than he made it out to be, it would nonetheless seem fair to credit Hamilton for correctly describing the soon-to-be supreme governing document of the United States as better reflecting the will of “the People” than any law to be passed by Congress.       

All that being said, the logic behind Hamilton’s rhetorical association of the proposed constitution with “the People” was almost certainly of a more cynical nature, and as noted above likely reflected a strategic choice on the part of the Framers. Consider, as evidence that the authors of the Constitution were not solely concerned with their creation receiving the widest sanction possible, that they did not request that the various states submit the document to a popular referendum. While an uncommon practice in the 18^th century United States – mainly for logistical reasons – such a direct resort to the general population was not wholly unheard of. Rhode Island, for instance, submitted the finished draft of the proposed federal constitution to the people of the Ocean State – who promptly rejected it – rather than move straight to a ratifying convention in the early months of 1788. And several years earlier, Massachusetts had likewise submitted its proposed 1778 constitution – which failed to pass muster – and a revised attempt in 1780 – which succeeded – to the consideration of its citizens. Therefore, though it would have entailed a significant outlay of time, resources, and manpower, the notion of scheduling a series of state referenda on the merits of the proposed constitution would not have been beyond the realm of possibility. While the results may not have been swiftly calculated, there could seemingly be no question that they would represent the unequivocal opinion of the American people. 

That the Framers instead recommended the calling of a series of ratifying conventions would thus seem to speak to a less obvious motivation than a desire for their work to be widely considered and (hopefully) widely approved. Taking into consideration the experiences and writings of men like Hamilton, James Madison, James Wilson, and even George Washington – Framers, all – in the 1770s and 1780s, two conclusions would seem to suggest themselves on that score. First, it seems likely that the majority of the Framers did not trust the state legislatures to approve the proposed constitution on their own. To do so would surely have been the simplest method of reviewing said document, and may in fact have acted as something of a salve to the various state governments whose members surely did not relish the thought of transferring some portion of their authority to a strong central government. That being said, where jealous state functionaries didn’t reject out of hand the loss of autonomy embodied by the proposed constitution, any discussion of the relative merits of thereof might easily have devolved into yet another chapter in the ongoing partisan warfare all too common to the various American states in the post-independence 1780s.

Madison, Wilson, and Hamilton had all borne witness to the factional acrimony that often plagued the legislative process during their service in the state assemblies of Virginia, Pennsylvania, and New York, respectively, and were doubtless eager to avoid having their proposal for a more effective national government become entangled in the same. Washington, meanwhile, had seen for himself how destructive partisan conflict within individual states could become to the broader national interest during his time as Commander-in-Chief of the Continental Army from 1776 to 1783. More than once, with the assistance of his aide-de-camp Alexander Hamilton, he had been forced to wrangle for supplies, arms, and manpower with governors and state assemblies who seemed more concerned with their own internal disagreements than their responsibilities to the broader campaign for American independence. Doubtless Washington – in the late 1780s by far the single most popular man in America – was similarly keen to avoid involving the state governments in the question of whether or not to approve the proposed constitution. Thus, it seemed, having selected delegates to attend the Philadelphia Convention in the spring of 1787, the role of the state legislatures in the process of drafting and approving the Constitution had substantively come to a close.

The second conclusion that comes to mind as to why the Framers preferred to submit the proposed constitution to a series of state conventions rather than to the people at large or to the state legislatures is rather more insidious than the first, though no less likely. Whereas the majority of the contemporary state constitutions had been drafted and approved by the relevant legislature, thus making them alterable by said legislature on the same terms as any normal act of law, assembling a special convention in every state for the purpose of approving the proposed constitution effectively placed the resulting document beyond the reach of any existing institutions. Unlike the New York General Assembly or the Massachusetts General Court, which were perpetual bodies, the ratifying conventions were entirely contingent. As per the instructions submitted by the Framers to the Continental Congress in 1787, their members were to be elected, to assemble, to consider the proposed constitution, to vote on it, and then to disperse. Delegates were to be chosen by rules determined by the individual states – many chose to relax their franchise restrictions so that more than just property owners could vote and stand for election – and once dispersed were never expected to meet again. Indeed, no mechanism existed that would allow them to do so – neither the Constitution nor the various state governments recognized their existence, and doubtless the supporters of ratification would have cried foul if their opponents attempted to re-assemble the conventions for the purpose of offering revisions or amendments.

By enforcing these terms upon the various states – ratification through one-off conventions – the Framers effectively created what every political strategist at some point or another dreams of: a temporary constituency. Unlike the general public – whose memory was either too long or too short for comfort – or the state legislatures – whose priorities were very much their own – the state conventions would have no institutional history, no set agenda, and no ability to second guess or revoke their decisions once they had been made. While it was unavoidable that some of their members would come from among the existing political classes – many state lawmakers, current and former members of the Continental Congress, and state jurists were elected to the various state conventions – they were more likely to be non-partisan affairs than the existing state assemblies, and more likely to count politically inexperienced farmers, merchants, and small business owners among their numbers. Such a varied composition made these ad-hoc assemblies more likely to consider the proposed constitution on its own merits and less likely to become bogged down by discussions that were of sole significance to local political circles. Most important of all, however, was their temporary nature.

Once the conventions had rendered their collective verdict on the proposed constitution and voted to adjourn, there existed no formal means by which they might be resurrected. As per the directions formulated by the Framers, these contingent entities could only vote for their Constitution or against it. Having recorded their vote, they effectively ceased to exist, and in a legal sense ceased to possess any further authority or legitimacy. This was true whether the requisite nine states chose to ratify the draft document or not, and in the event of the former left no opportunity for any further input into the disposition of the newly-reconstituted national government. Having been approved, the text of the Constitution itself – Article V, to be precise – provided the only means by which the American people could seek to alter their supreme governing document. The state conventions, as it happened, were to play no part in the process that was laid out therein, and were thereby to be entirely cast aside once their purpose had been fulfilled. This, more than the size or the political sensibilities of their membership, was doubtless what the Framers most favoured about the ratifying conventions. They were, by their nature, ephemeral. They were also mildly extralegal, possessing no further authorization than the instructions sent to the Continental Congress and to the states by the Philadelphia Convention. They existed to suit the exigency of the moment and were thereafter of no consequence.

For Alexander Hamilton and his fellow advocates of the proposed constitution, this fact presented a tremendous advantage. Provided that the majority of the state conventions voted to approve, further alterations to said document could only come via the aforementioned mechanism spelled out therein. The result was like some sort of political magic trick. Before ratification, the state conventions possessed the collective authority to create to dismiss a tremendously powerful central government. After ratification – with a puff of smoke and a muttered incantation – the conventions were rendered meaningless. Not only would they cease to exist, but even the means by which they were summoned into existence would cease to be valid. Thus freed from having to continually appease or thwart the evolving concerns of a collection of thirteen elected bodies – a freedom which could not have been claimed had the state legislatures been allowed the privilege of reviewing the Constitution – the proponents of the new national government had only to contend with the codified amending formula that many of them had personally helped draft. In addition to representing an exceedingly shrewd and effective form of legal bait-and-switch – i.e. the Framers created a set of rules that favored their goals and then convinced their fellow countrymen to play by them – this outcome arguably permitted people like Hamilton to freely indulge in the rhetorical association of the Constitution and “the People.”    

Of course, in the aftermath of the approval of the proposed constitution, the members of the various state ratifying conventions would know who they were. More than likely their neighbors would know as well, having recently voted for them, and barring any unforeseen accidents it was likely that most of them would live for a number of years beyond their brief terms of service. All this being true, however, did not make it possible for the conventions to be reconvened. Their task having been completed, the delegates therein would be once more subsumed into the general population. In consequence, and because neither state law nor the Constitution recognized their office, there was no more exact way to refer to the ratifying conventions in perpetuity than by acclaiming them as “the People” of the United States. Thus, without making any claims that were wholly or explicitly false, Hamilton could define the Constitution in Federalist No. 78 as “the will of the People,” “the intention of the People,” and the legal embodiment of “the People themselves.” This, too, suited Hamilton’s momentary goal of setting the document in question against the authority of the proposed federal legislature – and thereby carving out a space for the judiciary in the federal balance of power. That being said, it also indisputably belied the far more complex relationship that existed – and would come to exist – between the American people, the states, and the federal government.