Marbury v. Madison, Part II: Facts & Precedents

            Its larger historical significance aside, Marbury v. Madison was not a particularly revelatory case. Unlike later decisions such as Dredd Scott v. Sanford or Brown v. Board of Education it did not raise questions about civil rights, the nature of American citizenship, or institutionalized discrimination. Indeed, the facts of Marbury v. Madison are quite mundane. They are, nevertheless, worth recounting, for they do provide a degree of insight into how the conflict between two political factions (in this case the Federalists and the Republicans) played itself out during one of the most violently partisan periods in American history. As well, Marshall’s decision made use of legal precedents taken from both British and American jurisprudence. The former provides evidence of the legal heritage of an entire generation of American lawyers, while the latter is proof of the slow but steady establishment of a body of law distinct to the United States. As with the facts of the case itself, the way in which it was argued provide a window into contemporary American political and legal culture; for that reason they too are worth examining.

            The principles in Marbury v. Madison, from whom its name is derived, were William Marbury and James Madison. At the time the case was being heard Marbury was a well-to-do Maryland financier and devotee of the Federalists, while Madison was serving as Secretary of State in the cabinet of fellow Virginia Republican Thomas Jefferson. Their conflict concerned Marbury’s appointment to the office of justice of the peace in the District of Columbia and Madison’s refusal to deliver the appropriate commission of appointment. Marbury had been awarded the post as a consequence of the Judiciary Act of 1801, what has come to be known as the “Midnight Judges Act.” As mentioned previously this statute was an attempt by the outgoing Adams administration to effectively “stack the deck” of the federal judiciary in favor of the Federalists in an effort to stymie the policies of President Jefferson and his Republican allies. Among other things it reduced the number of Supreme Court Justices from six to five, created a number of new district and circuit courts, and established the appropriate vacancies for additional judges and legal officers (included justices of the peace). Marbury was among the forty-two loyal Federalist who were appointed justice of the peace by President Adams as a result, and whose commissions were approved by the outgoing Congress and handed to the Secretary of State (at that point newly-appointed Chief Justice John Marshall was still fulfilling the last of his former duties)  to be delivered. Because there was not enough time for all of these commissions to be distributed before the new administration was sworn in, it fell to Madison as newly-minted head of the State Department to oversee the proper dissemination of the remainder.

            Though Adams assumed that Madison would fulfill his constitutional duty and deliver the commissions, since they’d been signed and approved in the appropriate legal manner, this was not to be. With Jefferson’s approval Madison refused to render the last of the certifications, claiming that they had expired along with the term in office of their issuer (President Adams) and needed to be replaced with fresh nominations. One of the unlucky few whose appointment had been effectively invalidated, Marbury filed a petition with the Supreme Court for a writ of mandamus. An inherited British legal remedy, a mandamus is essentially an order handed down from a superior court that compels a lower court, corporation or public authority to perform or abstain from a specific action in line with established law. A mandamus cannot force a government agency to alter a decision it has already legitimately made, but it can oblige them to make a decision that they are legally required to make but have otherwise avoided altogether. In Marbury’s case, he called for a mandamus in order to compel Secretary of States Madison to deliver the commission to which he asserted he was legally entitled.

            Because the petition was filed in the Supreme Court the case came to revolve around the question, not only of whether Marbury was indeed entitled to his commission but whether the Court was even legally permitted to hear the case and grant the mandamus. This uncertainty was a result of the apparent conflict between the jurisdiction granted to the Supreme Court by the Judiciary Act of 1789 and the United States Constitution, respectively. According to Article III of the latter the Supreme Court possesses original jurisdiction only over cases affecting ambassadors, ministers, and consuls, and in those in which one state is a party (meaning these sorts of cases can only be heard by the Supreme Court). In all other cases the Constitution grants the Court appellate jurisdiction, meaning they must originate in a lower court and be appealed up the ladder of the judicial hierarchy. The Judiciary Act of 1789, Marbury claimed, granted original jurisdiction to the Supreme Court over mandamus petitions, ostensibly contradicting the the Constitution.

            The facts thus established, Chief Justice Marshall and his compatriots on the Court (Justices Chase, Paterson and Washington) gave the case their due consideration, and in accordance with what would become a well-established tradition Marshall rendered the opinion (which at 4-0 was unanimous) himself. As with most Supreme Court decisions it is not brief, and contains numerous references to legal precedents as a means of laying out the framework of its reasoning (in keeping with the traditions of common law). That these references originate in both American and British jurisprudence is telling. By 1803, when the decision in Marbury v. Madison was rendered, the United States had been an independent nation for less than thirty years. Just about every man of substance or authority in government, business or society in general had been born a British subject. Many of the more well-to-do had been educated overseas in British schools, or had otherwise been taught by way of curricula founded on distinctly British ideals. While the Founders certainly made use of a number of traditions of law and government that were distinctly American in origin their collective British past was in some ways inescapable. This was particularly true in matters of law. A great many American lawyers, even in 1803, learned their trade in British schools or by studying the seminal British texts on common law (chief among them Blackstone’s Commentaries). John Marshall was among the latter, and his references in Marbury v. Madison incline heavily in that direction.

            Accordingly, the legal precedents and principles that the Chief Justice chose to invoke in Marbury v. Madison are overwhelmingly of British origins. Lord Blackstone and his Commentaries are referred to no less than five times, with each quotation attempting to established some principle or right fundamental to the British/American understanding of common law. The first, in the section dealing with the proposed claim of Marbury to a legal remedy for his woes, asserts a general rule that wherever there is a guaranteed right there must also be a guaranteed remedy when said right has been violated. The second, immediately following, presses forward the same argument by stating that any case which does not fall within the exclusive jurisdiction of, “either the ecclesiastical, military, or maritime tribunals are, for that very reason, within the cognizance of the common law courts of justice.” To this Blackstone (and Marshall) added that it was an, “invariable principle of the laws of England that every right, when withheld, must have a remedy, and every principle its proper redress.” Further quotations from Blackstone within Marbury v. Madison touch on the liability of officers of the crown to answer for abuses committed in the name of the monarch and the definition of a writ of mandamus within the common law. Worth noting within these excerpts are the numerous uses of words like “King” and “Crown.” Aside from Blackstone, Marshall also quoted Lord Mansfield, Chief Justice of the Kings Bench from 1756 to 1788 and noted common law reformer, as to when a mandamus might be called for and the nature of its essential function.

            For the leader of the highest court in the United States to so unabashedly make reference to “the laws of England,” “the King’s Bench,” and “the Crown” while also paying a degree of homage to some of Britain’s preeminent legal authorities in one of his opinions might now seem rather strange. And certainly among President Jefferson and his cohort of Anglophobes it no doubt raised an eyebrow or two. While certainly a patriot and someone who was sensitive of his role in helping to define American legal practice, Marshall was responding to the case in the way his education had prepared him. Like so many aspiring lawyers before and after him who’d been raised in 18^th century America, Marshall’s first and primary exposure to the basics of common law were the writings of Lord Blackstone. Noting like them existed in the colonies, nor in the states that succeeded them; American jurisprudence was too young, and common law thrives on tradition and precedence. Perhaps, if he had a mind to, Marshall could have scoured the annals of the various federal and state courts that had come into existence since the 1770s for legal standards to invoke, but to what purpose? To satisfy the nationalist leanings of certain of his countrymen? No, Blackstone spoke to the case before him, and British or not there were few sources of greater quantity or quality on the topic of common law in existence. To this should be added Marshall’s longstanding allegiance to the Federalists, who were generally sympathetic (or even affectionate) towards British culture and politics. These facts taken together, the Chief Justice’s choice of precedents becomes somewhat less mysterious.

            That being said, there was doubtless a desire among American legal practitioners of the era to build up a body of law that was distinct to the history, culture and legal principles of the United States. Fortunately the basis of common law, which America had inherited from Britain and which revolved around the notion of precedent, quite easily allowed for this. All that was required was a sufficient amount of time to pass so that a history of judgements could be established. While the thirteen or so years between the adoption of the Constitution and Marshall’s decision in 1803 may seem like a very narrow timeframe in which to allow a process like this to occur, the Chief Justice made sure to bring at least one American precedent to bear along with numerous British ones. Specifically he described an incident dating from 1792/93. Congress, it seemed, had passed a law which directed the Secretary of War to place on a pension list the names of various disabled soldiers and officers that were nominated by the Circuit Courts. The law was subsequently deemed to be unconstitutional, but certain Circuit Court judges continued to nominate veterans in the belief that they could do so as specifically assigned commissioners and not as officers of the federal judiciary. A different nomination system was subsequently established, but the question remained whether or not the men that had been selected by the Circuit Courts in the meantime were still entitled to be placed on the pension roll. After a second piece of legislation directed the Secretary of War to join with the Attorney General in appealing to the Supreme Court for mediation, a mandamus directed at the Secretary was requested by a person who had been selected by a Circuit Court Judge to have his name added to the pension list. Upon considering the issue the Court declared that though a mandamus was not called for in that particular instance, such a writ could be directed, “to the head of a department directing him to perform an act enjoined by law, in the performance of which an individual had a vested interest.”  

            I hope I can be forgiven for delving into the details of a rather arcane piece of American legal history. In fairness I barely understand it myself, but I feel the point that Marshall was trying to make is clear enough. The Court had already ruled, in principle, that it was proper for an individual desiring the performance of a legally defined duty to request a mandamus be directed at the head of the applicable government department. Just as Henry Knox had been the head of the War Department in 1792, James Madison was the head of the State Department in 1803, and so was liable to have writs directed at him in a similar manner. This choice of precedent was ideal. Not only was it a decision that had been ruled upon by the Supreme Court of the United States, but it was one that seemed to deal specifically with at least one of the issues that was before the Court in 1803. Among the various question that Marshall felt Marbury v. Madison asked, one was, did Marbury possess the legal right to a remedy, and specifically a mandamus directed at the head of a government department? Though he chose to first appeal to the expertise of British legal scholars he ultimately landed on a relatively recent American example. This use of a domestic precedent amid various foreign ones is in some ways a testament to the function of common law in post-Revolutionary America, but also to the essential way that common law functions in any context. Cases are judged, decisions are based on past precedent, and new decisions inform future cases. In selecting this particular example Marshall was performing his function as a jurist as it had been defined to him by, among other things, his education (in which Blackstone loomed large), as well as his experience working within the American legal system in the years that followed the Revolution.

Marbury v. Madison, Part I: Context

            As I mentioned in my previous examination of the Kentucky Resolutions of 1798, judicial review was concept that did not fully materialize in the United States until over a decade after the Constitution itself came into effect. And while it was Jefferson who suggested in 1798 that all members of the federal union (i.e. the states) had the right and responsibility to judge for themselves the constitutionality of federal statutes, the legal decision that enshrined judicial review in the common law of the United States was actually written in opposition to Jefferson’s administration as President in 1803. The man who wrote the majority opinion for that decision, Chief Justice of the Supreme Court John Marshall, is perhaps one of the most important jurists in American history. Though he did not participate in either the Continental Congress (in any of its sittings between 1774 and 1789) or the Philadelphia Convention of 1787, he more than deserves inclusion among the pantheon of America’s Founding Fathers for the way he almost singlehandedly shaped US jurisprudence for generations to follow. Even barring his over thirty-year tenure as Chief Justice, his decision in the 1803 case Marbury v. Madison from which he derived the accepted formulation of judicial review stands alone as perhaps the single most influential legal decision in American history. And yet, for all that, he remains a relatively obscure figure outside of legal and historical circles. For that reason, and because I’d like to follow up on some of the ideas I explored connected with the Kentucky Resolutions, this next series of posts will attempt to examine some of the noteworthy aspects of the Marbury v. Madison decision as well as the life and career of its author.

            First and foremost I think it bears discussing who John Marshall was. Born in Germantown in 1755 on the frontier of colonial Virginia, Marshall was not raised in the lap of luxury like so many of his Southern contemporaries. His father Thomas worked as a surveyor and land agent for Lord Fairfax much as George Washington had in his younger days, and though he was able to support his growing family quite ably he would not have been considered a member of the colony’s landed gentry. Accordingly John, oldest of fifteen children, spent the majority of his youth living in relatively modest surroundings, inhabiting a series of log cabins and frame houses of his father’s construction. His education was similarly straightforward. Though for a year at age fourteen he attended an academy in nearby Washington parish, Marshall was mainly homeschooled by either his father Thomas or whatever tutor he had managed to arrange for his children. Fortunately for John and his siblings their father had cultivated an impressive library and successfully requested access for his children to the collections of his employer Lord Fairfax. As a result by age twelve Marshall had become familiar with a number of English philosophers and writers, from Alexander Pope and John Milton to William Shakespeare, as well as works from the Classical canon, like those the Roman historian Livy and poet Horace. Because his father was intent on him pursuing a career in law, Marshall was also encouraged to familiarize himself with the family’s copy of William Blackstone’s Commentaries on the Laws of England, for over a century considered the essential primer for a legal education in the British Empire. Blackstone was perhaps the foremost English jurist of the 18^th century, and his Commentaries attempted to rationalize and catalogue the at-times terrifying complexity of England’s heritage of common law in a way that was explicable to the uninitiated reader.     

            At the outbreak of the Revolutionary War in 1775 Marshall first joined the Culpeper County Minutemen, a local militia regiment, and later served as a Captain in the Eleventh Virginia Continental Regiment between 1776 and 1780. Like many young officers Marshall became well acquainted with Commander-in-Chief of the Continental Army and fellow Virginian George Washington, and served out the brutal winter of 1777-78 under his command at Valley Forge, Pennsylvania. Near the conclusion of hostilities in 1780 he resigned his commission, read the law under famous Virginia lawyer George Wythe (who had previously instructed Thomas Jefferson), passed the bar, and established a private practice in Fauquier County. Shortly thereafter, in 1782, he entered politics by running for and winning a seat in the Virginia House of Delegates. There he served until 1789, during which time he also participated in the Virginia Convention of 1788, tasked with ratifying the proposed constitution that had been drafted in Philadelphia the previous year. An early supporter of strong, centralized government, Marshall was among the most prominent advocates for ratification (along with future President James Madison and future Attorney General Edmund Randolph), and his efforts no doubt contributed at least in part to his faction’s narrow victory (89-79).

            In spite of obviously favoring the creation of a robust federal government in the United States, Marshall showed little initial interest in serving as one of its officers. After declining President Washington’s offers in 1795 for Attorney General and 1796 for Minister to France he finally deigned to serve as part of a three-man diplomatic mission to the government of Revolutionary France in 1797 at the behest of President John Adams. However, upon their arrival he and his compatriots in this effort, Elbridge Gerry and Charles Cotesworth Pinckney, were subsequently refused cooperation with their French opposite numbers unless the United States agreed to pay a series of exorbitant bribes. The resultant XYZ Affair (as it became known, for the redacted names of the officials the bribes were intended for) seriously inflamed anti-French sentiment in America and greatly enhanced Marshall’s reputation upon returning to his home country as one who had directly opposed French corruption. Subsequently he turned down yet another federal appointment in 1798, this time for Associate Justice of the Supreme Court, and was elected to a term in the House as the representative for Virginia’s 13^th District. His term in office was cut short less than a year later when he finally accepted President Adams’ entreaty that he become Secretary of State. There he served out the remainder of the President’s term in office, occupied mainly with directing the negotiations of the Convention of 1800. This treaty settled a number of issues that had arisen between the United States and the French Republic, and nearly brought the two nations to all-out war. For this, Adams developed a high opinion of Marshall’s abilities, and asked him to accept one last appointment in service of his country and the ideological vision that both men shared.

            This was, of course, the office of Chief Justice of the Supreme Court. In point of fact, Marshall was chosen by Adams not only because the President had a great deal of confidence in the capabilities and character of his Secretary of State, but also because Marshall was literally in the same room as Adams when he was writing out the nomination. This was an important factor at the time because the Federalist faction, to which Adams and Marshall both belonged, had been catastrophically defeated in the election of 1800. Having lost control of the presidency and both houses of Congress, Adams was intent on maintaining Federalist control of at least the judicial branch and asked the lame duck House (most of whose members had just lost their jobs) to pass a series of acts that dramatically altered the state of the federal judiciary in an attempt to deny advantage to incoming-President Jefferson. His selection of Marshall was expedient because of the limited time left in Adams’ term and Marshall’s ability to accept the job on the spot, and came after the president’s first choice, John Jay, turned the offer down. To Adams’ great pleasure (indeed he once remarked that "My gift of John Marshall to the people of the United States was the proudest act of my life"), Marshall proved to be an extremely effective jurist and a persistent thorn in the side of Jefferson and his Republican successors. Over the course of his thirty-five year tenure as Chief Justice he effectively redefined the role of the Supreme Court, raising it from a relatively weak and ineffective appendage to a coequal branch of government on par in power and dignity with either the Presidency or Congress.

            In order to better grasp the significance of these efforts, I think it prudent to also briefly examine the history and role of the Supreme Court in the fifteen years of its existence before Marshall came along. Of specific interest in this context is the remarkable difference between the Court as described in the Federalist Papers by Alexander Hamilton and that which actually came into being. Federalist No. 78 actually claimed judicial review as the exclusive province of the Supreme Court as early as 1788, arguing that, among other things, “Whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.” The Congress itself, Hamilton asserted, could not be depended on to judge of its own legislative efforts because its members were directly invested in the outcome. The courts, whose members were appointed and therefore not beholden to any specific constituency, were consequently the only organ of government capable of acting as a nonpartisan intermediary between the people and their representatives. In spite of this robust endorsement of the special role of the federal judiciary, however, Hamilton was also quick to assure his readers that the courts would by no means be capable of dominating either the executive or legislative branches. As a counter to criticisms that the courts would be too independent and that it would be all too easy for federal judges to interpret laws to their own liking rather than in accordance with the Constitution, Hamilton declared in Federalist No. 78 that no officer of the United States government (from any of the three branches) could engage in unconstitutional behavior without being called to answer for it. To this end he further claimed in Federalist No. 79 that the ability of Congress to impeach and subsequently remove judges for misconduct was guarantee enough that the independent judiciary did not represent a threat to good government. Indeed, it was Hamilton’s assertion that the judicial branch would be the weakest of the three described by the Constitution, having, “neither FORCE nor WILL, but merely judgement.”

            While the sole authority of the Supreme Court to conduct judicial review of legislation was neither immediately accepted nor utilized in the first decade or so of its existence, Hamilton’s assertion of its weakness and inability to exert its will proved very much to be the case. Between its first sitting in 1790 and its virtual reinvention under Chief Justice Marshall, the Court enjoyed very little prestige or influence within the federal government. For the first several years it had no permanent home and heard a very small number of cases; of the thirteen that appeared on the Court’s docket most dealt with issues of procedure and had little lasting impact. The only case that could be said to defy this state of affairs, Chisholm v. Georgia (1793), ended in the decision that states did not possess immunity from being sued in court and reinforced the right of the Supreme Court to hear such suits. Unfortunately for the Supreme Court and its reputation this was promptly undone by the passage and ratification of the Eleventh Amendment in 1795 (at the prompting of several nervous state government), that guaranteed every state’s sovereign immunity and inability to be sued without consent. So inglorious a posting was the Court considered that in eleven years it was overseen by three Chief Justices. The first, John Jay, resigned after five years upon being elected Governor of New York; evidently he considered being chief executive of a single state a superior station to being head of an entire branch of the federal government. His replacement, former South Carolina Governor John Rutledge, was a recess appointment (made temporarily by the president in between sessions of Congress) whose vocal opposition to the government-backed Jay Treaty ensured his rejection by the Senate once it reconvened. The third, Oliver Ellsworth, was chosen after President Washington’s first choice declined to serve; he resigned after only four years leading the Court due to poor health.

            Considering its rather ignominious start, and his apparent aversion to high federal office, it is indeed curious that John Marshall chose to accept the post of Chief Justice of the Supreme Court when it was offered him in 1800. That rarest of birds - a Virginia Federalist - Marshall had shown little interest in federal politics over the course of his career. Though he had strongly supported the ratification of the Constitution in the 1780s he seemed content to pursue his law practice in relative quiet and leave the actual governing to others. However, when thrust into the position of heading the judicial branch Marshall rose to the occasion and proved himself to be a cunning jurist, a forceful personality, and an extremely effective leader. The anemic Court that he inherited was transformed under his watchful eye into the undisputed equal of either Congress or the Presidency. Marbury v. Madison was where that transformation began.

Federalist No. 2, Part IV: Moderation, contd.

Also contained in paragraph ten of Federalist No. 2 is Jay’s insistence that the delegates at Philadelphia, “passed many months in cool, uninterrupted, and daily consultations,” and that these men were unawed by power or, “influenced by any passions except love for their Country.” Two things are worth noting up front, I believe. One is that because the proceedings of the constitutional convention were conducted in secret the debates themselves were not a matter of public record, and thus were not formally recorded or published. Most of what is known of the events of the convention is owed to the efforts of James Madison, who carefully chronicled the discussions as they took place for the sake of posterity, and whose records were published decades after the fact. The second relevant fact is that while Madison was one of the chief architects of the convention itself, attended it as a delegate for the state of Virginia and was present at almost every session, Jay was then serving as Minister of Foreign Affairs and is not recorded as having been in attendance at all.

That being said, Madison’s records contain evidence of numerous heated debates on a variety of subjects, from apportionment, to the nature of the elections of the senate and president, to protections of slavery and federal regulation of commerce. Far from being “cool , uninterrupted,” consultations, the convention sessions saw delegates from small states squaring off against those from large states, fault lines form between pro and anti-slavery factions, accusations levelled of seeking personal political advantage, and as deliberations wore on the shooting down of key proposals by exhausted attendees who simply wanted to adjourn and go home. It’s also worth considering that: only twelve states sent delegates to begin with, Rhode Island having refused to participate; that two of New York’s delegates, in disagreement with most of what transpired, left soon after the convention got under-way and left their state’s business to Alexander Hamilton alone; that of the delegates who were present at the conclusion of the conference three refused to sign the finished document in protest of a Bill of Rights being omitted. Far from being marked by unanimity, the Philadelphia Convention was defined by vociferous debate, frequent disagreement, and at-times dramatic gestures of defiance.

As to the passions that influenced them, I don’t doubt that love of country was on the minds of many of the delegates to the Philadelphia Convention. However it was not the only thing that motivated those in attendance, and at times seemed to have been completely overshadowed by the personal economic considerations of some of the delegates themselves. The issue of slavery in particular, and the role of the proposed federal government to regulate or even abolish it, brought to the surface a great deal of partisan rancour that split the delegates along a previously unseen North/South axis. Though, in 1787, African slaves made up nearly 1/5 of the total population of the states and twenty-five of the convention’s fifty-five delegates personally owned them, ninety percent of slaves lived in the South. Indeed, in states like South Carolina and Virginia, between 1 in 3 and 1 in 2 families owned at least one slave, and the basis of the Southern plantation economy was rooted in the wage-free labour that chattel-slaver provided. As a result the debates surrounding its potential limitation or elimination aroused fierce resistance from those whose livelihood depended on its perpetuation.

Even after it became clear that abolition was out of the question, once several Southern delegations refused to continue their participation otherwise, the issue of regulation continued to be a subject of tension and disagreement. On two separate occasions the convention attendees agreed to postpone the discussion on limiting American participation in the international slave trade because no compromise was forthcoming. So attached were certain delegates to federal protection of slavery that, when agreement finally arrived it saw them cede greater authority to the federal government in the realm of taxation and trade regulation (which they had strongly opposed previously) in exchange for a twenty-year moratorium on government interference in the slave trade. Slavery was among the issues that exerted the strongest effect on the convention delegates in Philadelphia, not only because it touched on deeply held moral and philosophical principles but because it was foundational to the economic reality of fully half of the purported Union. Far from simply love of country, money also helped shape one of the most influential debates of the entire convention and the United States Constitution for generations to come.

It is at least possible that Jay was not aware of the content or character of the convention debates any more that most of the American public would have been in 1787/88. In such case, his writings on the subject could be considered the product of simple ignorance. Given only a partial impression, perhaps by friends or acquaintances that were in attendance, he conceived of the Philadelphia Convention in the best possible light, for want of evidence to the contrary. Having said that, I have little doubt that John Jay was aware of what actually transpired. Though he had not personally been in attendance at Philadelphia he was well-acquainted with many who were, and the fact of his collaboration with Hamilton and Madison on the Federalist Papers would seem to suggest that the trio were more or less on the same page. More to the point he was well versed in the political conflicts of the day that existed between the various states, or even within them. As a state legislator he knew what divided New Yorkers; as a diplomat he knew the foreign threats that America faced; as an officer of Congress he knew what the states had to argue about; and as an anti-slavery activist he knew how volatile an issue that could be. In a proposed gathering of delegates from twelve of thirteen states, John Jay would not have need it explained what conflicts would have arisen. Consequently his attempt to portray the convention in a self-consciously optimistic light must be taken as a purposeful, if well-intentioned, attempt to mislead.

This should hardly come as any kind of surprise. Hamilton and Jefferson alike were not averse to taking advantage of what they knew and their audience didn't in order to favourably shift the terms of the debates they were engaged in. They omitted certain details, glossed over others, exaggerated this element and downplayed that one; all with the aim of more effectively getting their point across. Schooled in the same kind of rhetoric as his more celebrated contemporaries, John Jay was no different. He summarised the Philadelphia Convention in the most hopeful sense, partially because the debates themselves were not the subject under discussion, but mainly with the intent of fostering an environment among his readers more conducive to compromise. If the men that had been chosen to represent the various states in Philadelphia, considered among the best minds of their generation, were portrayed as selfless, conciliatory and patient, perhaps their countrymen could be persuaded to follow suit. As Jay pointed out in paragraphs twelve and thirteen, in spite of their inexperience with national government Americans had come to trust the Continental Congress and the men that comprised it to direct the course of their affairs in war and in peace. That being the case,

“Greater reason have they now to respect the judgement 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.”

The sum of these arguments is something like an equation. The American people came to trust the members of the Continental Congress to conduct the affairs of the nation; the delegates to the Philadelphia Convention were principally former members of that Congress; their trust and confidence should logically carry over to the second body of men and the all-important document that they collectively drafted. That these same erstwhile public servants could be said to have conducted themselves with patience, even tempers and sound reasoning might too induce those whose respect they enjoy to follow their example.

            Of course Jay knew that this was not a done thing. In paragraph eleven he admitted at length that cooler heads do not always prevail, even when the matters under consideration are of considerable gravity. The proposed plan of government was, after all, a recommendation, and one whose legitimacy would ultimately derive from neither, “blind approbation, nor […] blind reprobation,” but from, “that sedate and candid consideration, which the magnitude and importance of the subject demand.” This was, however, more to be hoped than expected. Even the illustrious Congress of 1774, Jay remarked, was not immune from criticism or capable of uniting all Americans behind a common sentiment. Though the Revolution was ultimately successful and the leadership of Congress validated, debate was an unavoidable part of the process. The ratification of the Constitution was to be no different. While, as Jay pointed out, apparent enemies of progress may be motivated by personal interests or simple misunderstandings, their input should be welcomed so that they might approach the truth on their own terms and thereby develop a more sincere appreciation of their errors. These too are Enlightenment ideals; that debate is the soul of reason, and that truth is great and will always prevail.

            Jay ended Federalist No. 2 with a warning of sorts. As stated previously, in spite of what he perceived as the widespread validation of a union of the various American states, there were those in the 1780s that argued in favour of a division of said union into a number of smaller confederacies. “I am persuaded in my own mind,” Jay wrote, “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.” Allowing, however, that the Constitution might be defeated Jay hoped, “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.’” This is a rather theatrical way of characterizing the circumstances, but it’s not entirely without precedent. Indeed, it rather calls upon the notion of American exceptionalism; that the United States is destined for greatness, and that in 1787 it stood at a crossroads between its rightful place of triumph and fame and an inglorious exile to the sidelines of history.

            In the history of what would become the United States this kind of sentiment was far from uncommon. The Puritans who first migrated to Massachusetts Bay in the 17^th century did so with at least the partial understanding that they would be forming a community in the New World that would not have been possible in the Old. As noted Puritan leader John Winthrop preached, they were setting about creating a “City on a Hill” that would serve as a moral and social model for the rest of the world. The Quakers of Pennsylvania, though lacking the millennial perspective of their colonial neighbours, seemed to nurture a similar basic understanding of their purpose in America. John Penn had intended to forge a more perfect society than existed in the England of his birth; America, unspoiled and fertile, afforded him exactly that opportunity. In Maryland too, and in Georgia, men of vision saw a land where the impossible could be realized; where English Catholics could live and work without fear of persecution, or where those sunk in debt could remake themselves as prosperous, hard-working, moral individuals. While none of these visions were ever truly realized, or in some cases even came close, the underlying sentiment, that America was an exceptional place whose people were destined for more than the average, proved highly influential. It would not have been unusual, then, for John Jay to portray the ratification of the Constitution as being directly tied to that distinctive sense of American destiny. But, as he conceived it, greatness was not inevitable; a proponent of reasoned debate, free will, and truth, Jay believed that his countrymen must choose for themselves, all or nothing. Rhetoric it may be, but powerful all the same.

    But please, judge for yourselves: https://en.wikisource.org/wiki/The_Federalist_Papers/No._2

Federalist No. 2, Part III: Moderation

             A dedicated devotee of the philosophical Enlightenment, John Jay was also a political moderate as Federalist No. 2 attests. He was certainly not alone in this; during the Revolution many of Jay’s fellow New Yorkers, whose namesake metropolis was particularly vulnerable to British naval attack, were similarly mindful of the need to move the Congressional political process forward at a cautious and carefully considered pace. For that matter he was also joined by prominent men from other states, like South Carolina’s John Rutledge or Pennsylvania’s John Dickinson, in occupying what might be called the moderate nationalist position. Though it would be an oversimplification to say that all who fitted this label thought a certain way, they were certain common positions which they tended to share. Generally the moderates supported tried and true methods over untested proposals; while not opposed to innovation they gravitated towards whatever they felt would afford the best chance of success over what strictly aligned with their principles. They also tended to be realists, not believing that humans were completely virtuous or completely depraved but that strong, reasoned argument had the ability to move people if properly presented. As Federalist No. 2 makes clear Jay could, and did, stray into idealistic or pessimistic arguments from time to time, but at heart he was a conciliator and a diplomat and most often approached from the middle way.

             This gravitational attraction towards temperance can be seen as early as paragraph three, in which Jay began what appeared at first to be a rather idealistic, or at least one-sided, argument before shifting into a more cautious tone. Specifically, Jay asserted that until recently (as of 1787) it was, “a received and uncontradicted opinion” that America’s prosperity depended on the continuation of the Union, and that all of the foremost characters of society were inclined toward the goal of its perpetuation. Advocates for the dissolution of the Union, to the contrary, had only recently emerged, and though their position was “extraordinary” they were not without their adherents. This, in itself, is a rather troubling statement. Considering once again that during the Revolution approximately 1/3 of the population of the various states were supporters of independence, 1/3 sided with the crown and the last 1/3 were more or less indifferent it would seem a strange claim to make in 1787 that sentiments in favour of union were until recently “uncontrodicted.” Taking into account as well the numerous disputes that emerged in the 1780s between the states over trade, borders, and land claims in the West I would ask to what era in the short history of the United States was Jay tacitly referring to, when opinions were so clearly united behind the object of continued unity?

            Regardless of his otherwise questionable claim, Jay managed to quite skillfully dovetail into a call for caution and debate. Whatever it was that had by 1787 supposedly convinced certain individuals in America that unity among the states was no longer in their best interests, Jay wrote, “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.” Here is the moderate position; a realisation of clear disagreement between two sides, a tacit admission that one opinion is correct and the other incorrect, and an endorsement of sound argument as the best way to separate one from the other. There is not only Hamiltonian manipulation here or Jeffersonian radicalism, but a middle way that emphasises utility, debate, and the pursuit of truth.

            Paragraph eight is more obviously judicious in tone. In it, Jay admitted that though the Articles of Confederation were symbolic of the desire that existed as early as the 1770s for a Union of the states, the government they created was fundamentally flawed. In point of fact, he claimed their deficiency was due to the reality of their being drafted, “at a time when [the states’] 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.” Among advocates and critics alike of the newly drafted Constitution rendering a verdict on the Articles of Confederation and the government they laid out was a common tactic, and so Jay was treading a well-worn path. Some, like Alexander Hamilton, dismissed the Articles out of hand as a poorly conceived experiment; others, like Anti-Federalists Patrick Henry or George Mason believed that the Articles were sound in principle and preferable to a government that concentrated too much power in the hands of too few people. As was his wont, Jay adopted a more nuanced perspective than either of these extremes would admit. He believed that Americans were attached to the idea of union, and that the Articles of Confederation were an expression of that attachment. Unfortunately, and through little fault of their own, their enthusiasm, inexperience and unenviable circumstances had prevented them from formulating a government that was capable of living up to their sincerest intentions. In this sense the proposed Constitution was not a replacement for a failed system, but the culmination of an ideal that the Articles had (imperfectly) set in motion.

Jay continued this narrative of continuity and renewal in the ninth and tenth paragraphs of Federalist No. 2, though in a somewhat more idealistic attitude. Indeed, Jay’s rather sunny characterisation of the events surrounding the drafting of the Constitution of the United States seem at times to directly contradict what we now understand to have been a highly contentious process. For example, he stated in paragraph nine that, “This intelligent people perceived and regretted,” the defects inherent in the Articles of Confederation, and, “with one voice, convened the late Convention at Philadelphia, to take that important subject under consideration.” As Alexander Hamilton had pointed out in Federalist No. 1, there were a number of people of the United States who perceived no defects in the political status quo of the 1780s, and would have preferred that the Articles of Confederation stay in place precisely because they stood to benefit from the relative autonomy enjoyed by the respective states. Considering that Jay and Hamilton were, in the realm of the Federalist Papers, collaborators intent on speaking with a single voice, it stands to reason that they would have agreed on most topics touching on the constitution they had mutually set out to champion. That Jay would have so casually contradicted Federalist No. 1, and in the essay that immediately followed it, seems quite a strange way indeed to present a cohesive argument.

Similarly, Jay stated in paragraph ten that the Philadelphia Convention was, “composed of men who possessed the confidence of the people.” While not wholly untrue, this too is something of a misrepresentation of the facts. The various delegates to the Philadelphia Convention of 1787 were invited to participate with the understanding that the task before them was only the amendment of the existing Articles of Confederation. It was only after the state delegations were assembled and a quorum was achieved (which took some time) that those present agreed that attempting to modify the Articles would only be a stopgap solution and that an entirely new governing charter was called for. They proceeded on their task in secret, with the intention of presenting their proposed plan for government upon its completion. Thus, while the men who assumed their stations in Philadelphia in 1787 did enjoy the confidence of their respective state governments, their actions far exceeded that trust in a way that many back home in Virginia, New York and Massachusetts ultimately objected to.

Federalist No. 2, Part II: The Enlightened

As noted, John Jay was not alone in the fledgling United States in his attachment to the principles of the Enlightenment. If he was not born into it, by the end of his life every one of the Founding Fathers was a member of a socio-economic class that placed great value on education. They were all products of a post-Glorious-Revolution British culture that had been greatly shaped by Enlightenment philosophy, and were taught to venerate the classics (Latin and Greek texts by figures like Cicero, Tacitus, Pliny, Ovid, Aristotle, Socrates and Plato), respect reason, and cultivate a degree of rational scepticism in all their affairs. As the Enlightenment was distinctly European in origin, the Founders also developed a sense of belonging to a larger philosophical movement that crossed the Atlantic Ocean, connecting their efforts to those of scholars and reformers in places like France, the Netherlands, Italy and Scotland. This distinct sense of time and place, of belonging to an intellectual class that transcended geography, greatly influenced the American founding and the debates that spun out of it. It was why men like Thomas Jefferson and James Madison felt comfortable quoting French philosophes, why John Adams encouraged others to familiarize themselves with British republican theory, and why George Washington’s favorite play, which he had performed for his troops during their stay at Valley Forge, was an English drama about a figure from Roman history.

These men knew that their intended audience would recognize the texts they were referring to and more than likely sympathize with the messages contained therein because Montesquieu, John Locke and Joseph Addison’s Cato were all a part of their shared intellectual framework. John Jay was a part of this framework as well, and because he was not much of an innovator, or a philosopher in his own right, he might be said to represent the proto-typical 18^th-century enlightened gentleman to a greater degree than his more famous contemporaries. For that reason, and because Federalist No. 2 contains certain phrases or ideas that are absolute hallmarks of Enlightenment thought, it might be taken as a kind of philosophical primer. Consequently, identifying the concepts that Jay made use of in Federalist No. 2, what they meant, and where they came from can go a long way toward understanding what the Enlightenment meant to Americans of the founding generation, and which of its principles they held most dear.

One of the first explicitly Enlightenment-derived concepts that Jay invoked in Federalist No. 2, in the second paragraph, was the social contract theory popularized in the 17^th century by English philosopher John Locke. As mentioned in a previous set of posts Locke worked and wrote during a time of political and social upheaval, and many of the concepts that he attempted to illustrate in his Two Treatises on Government were intended to explain or justify the changes to the status quo that were underway in late-1680s Britain. The social contract, he argued, constituted an agreement (either tacit or explicit) between a people and their government wherein the mass of the citizenry agreed to delegate a portion of their sovereignty to a widely recognized ruling party. In exchange for this, the ruler(s) was supposed to provide the people with a degree of security and stability that would not have otherwise been possible for them to achieve on their own. Locke’s articulation of this theory, published in 1689, came at a time when the underpinnings of British statehood and citizenship were being re-examined and they were subsequently quite influential, both in Britain itself and in certain of its colonial possessions. But it bears remembering the Locke was not the sole creator of the theory of a social contract.

Thomas Hobbes, an English political theorist and polymath who was working and writing a generation before Locke, first put forward the concept of the social contract in his 1651 work entitled Leviathan. Like Locke, Hobbes worked during a time of turmoil, in his case the English Civil War, and through his writing attempted to explain the need for a strong, mutually-recognized authority to regulate, control, and punish as needed the at-times conflicting social and political forces that exist within all complex states. Unlike Locke, however, Hobbes was a monarchist. He supported the ideal of absolutism, that the ruler of a state should possess authority over all aspects of that state unchecked by anything more than morality or custom. As he conceived of the social contract, a life of obedience to a monarch or aristocrat was preferable to one lived in anarchy and bare subsistence. Furthermore, he argued, whatever errors were committed by a sovereign against his people was the fault of the latter, for by seeking their monarch’s protection they tacitly sanctioned his actions.

It was Locke who sought to fuse with social contract theory the concept of natural rights, and whose writings went on to influence an entire generation of scholars and statesmen in the colonies of British America. Where Hobbes was inclined to see the delegation of sovereignty from the people to their ruler as essentially unconditional, Locke asserted that certain fundamental rights remained with the citizenry. The legitimacy of a ruler was incumbent upon their not infringing on these rights, and mutually agreed upon violations could justifiably result in full-scale revolution. This was the version of the social contract that Jay invoked in Federalist No. 2 when he wrote, “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.” Not only did Jay judge government to be an “indispensable necessity,” but the rights that he determined were to be delegated to it were “natural rights.”

This is the Lockean language more than it is Hobbesian, perhaps because by the time of Jay’s upbringing and education, absolutism was no longer a political value that enjoyed wide acceptance in the Anglo-British cultural sphere. It had been defeated, first by the Parliamentarians during the Civil War and then by the supporters of the Glorious Revolution of 1688 and the subsequent Bill of Rights, and a very rights-conscious British political culture had taken its place. It was this common conception of natural rights that was very much in favor among a certain class of British intellectual, and was a particular fixation of the American founding fathers. Jay’s employment of the notion, not emphatically but first and foremost, is telling of how ingrained Lockean social contract theory had become among a significant portion of the late-18^th century Anglo-American political and scholarly elite.

Among the somewhat more abstract Enlightenment values that Jay employed in Federalist No. 2 was that of universalism. Less a single principle and more a related set, Enlightenment universalism was really a reaction to the perceived narrow-mindedness and sectarianism of the previous two centuries of European history. For large portions of the 16^th and 17^th centuries wars had raged across the continent along mainly religious and dynastic lines. Conflicts that pitted Protestants against Catholics, or even different sects of Protestants against each other, supporters of this royal family against that one, or any number of other divisions based in faith or feudal allegiance played themselves out across the bloody decades with little sign of stopping. The scholars who brought the Enlightenment about did so in part as an attempt to alleviate this cycle of bloodshed by bringing logic and reason to bear in the realm of human relationships. The philosophies that they authored and promoted possessed a Universalist outlook because they all tended to embrace a loose set of basic principles.

These included, at their heart: a belief that there was but one world whose nature is the subject of structured laws that are discoverable by the human intellect, and that these law operate on all things uniformly (be they rocks, trees, animals or people); that an understanding of these laws could become the basis for stable, just, self-perpetuating human societies; that all humans are fundamentally the same in all times and places, and possess an equal capacity for self-improvement and virtue; that certain human aspirations, like happiness or freedom, are universal, and that if the search for them is guided by logic and reason their attainment will bring about peace and progress. Guided by these principles the purpose of the Enlightenment was always to promote peace and cooperation, and cultivate an understanding of humanity as united in its aspirations, flaws and potential. If knowledge was universally attainable, its supporters argued, how could any single church claim a monopoly on revelation? If all people were guided by the same fundamental goals, what was the purpose of war but to impede their achievement?

This seemed to be the tone with which Jay approached Federalist No. 2, particularly in paragraphs five and seven. In the former, he described Americans as, “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.” While America was, in the 1780s when this was written, far less ethnically and religiously diverse than it is now, Jay’s statement on the matter is still technically inaccurate. Admittedly dominated culturally, politically and economically by people of British descent, the United States of 1787 also contained sizeable populations of German, French and Dutch settlers, merchants, artisans and farmers. Most of them spoke at least some English, but a great many conversed exclusively in their mother tongues, and would continue to do so into the mid-19^th century. As to their religion the majority were Protestants but belonged to any number of sects, including among their numbers Anglicans, Presbyterians, Baptists, Methodists, Lutherans, Dutch Reformed, Congregationalists, Quakers, and Moravians. In addition, there were also sizeable numbers of Catholics and Jews, as well as assorted transient populations of Muslims, Hindus and others (mainly travelling merchants or sailors). Their attachment to the “same principles of government” is another matter again. It’s worth keeping in mind the well-worn statistic that during the time of the Revolution in the 1770s approximately a third of the population remained sympathetic to the crown. Because these people didn’t just evaporate when peace was declared in 1783, it stands to reason that a decent portion of the population of the United States in the 1780s were either ambivalent or actively hostile towards the republican status quo that seemed to have settled over their homeland. Bearing these facts in mind, and that Jay himself was of exclusively French and Dutch stock, it would seem a rather strange thing for him to insist that Americans were a totally united people in 1787.

Paragraph seven, however, perhaps sheds some light on from where Jay’s conception of the American people was derived. In it, he wrote that, “To all general purposes we have uniformly been one people; each individual citizen everywhere enjoying the same national rights, privileges, and protection. 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.” Where before he invoked ethnicity and religion, signs of overt difference between communities, here he touched on matters more ephemeral. Rights, privileges, shared experience; these were what bound Americans together and signified their membership in a common nationality. Americans were the same, Jay seemed to be saying, because they enjoyed the same legal rights, and because they acted in concert towards common goals. They fought together, tasted victory together, and made peace together; in their fundamental essence this made them one people. This seems much more in keeping with the Universalist vision of the Enlightenment, whereby emphasis was placed more on the way people acted than the language they spoke or the faith they belonged to. Keeping this in mind, Jay’s comments in paragraph five might be interpreted in a less literal fashion. Most Americans in the 1780s were of British descent, spoke English, were Christians of some stripe, and were in favour of republican government. That this was true across such a large expanse of territory, relative to Europe, must no doubt have seemed extraordinarily fortuitous. Whatever differences did exist, and which John Jay was certainly aware of, could be smoothed over by the binding experience of the Revolution, and years of experience in united government.

The last element of Federalist No.2 of overtly Enlightenment derivation that I’d like to draw attention to is Jay’s rhetorical use of the word “Providence.” Because Enlightenment thinkers fixed on reason and logic as the basis for most of their discussions of politics, education, statecraft and philosophy many of them tended to avoid using orthodox religious language. They generally didn't ascribe events to the will of God, and if they discussed the divine at all did so in a very measured way. Providence, in this context, acted almost like a euphemism. Whereas invoking God might have seemed to some to be endorsing a religious principle that was rooted in illogic, Providence, as a sort of vague, non-personified will or force, was abstract enough to pass muster. In Federalist No. 2 Jay used the word Providence in this sense on three occasions: in paragraph four, describing how the American people had been blessed by a wide expanse of fertile land; in paragraph five, being the reason why Americans were so similar in their qualities and manners; and in paragraph six, guiding them towards a united political future. This is classic Enlightenment phraseology, and more to the point was typical of the political and social class to which Jay belonged. To take the first three presidents as examples, George Washington mentioned Providence in his army resignation speech in 1783, and in three of his eight State of the Union Addresses. John Adams used the word in both of his Inaugural Addresses and in three of his four State of the Unions, while Jefferson invoked it in the Declaration of Independence, one of his Inaugurals and three out of eight State of the Unions. By comparison, in none of these documents was the word God used even once. This is telling, not only of late-18^th century American religiosity, but of the common philosophical bona fides that permeated the founding generation.