John Jay: Man of Order, Jus­tice, Free­dom

John Jay: Found­ing Fa­ther by Wal­ter Stahr

John Jay ar­guably is the least known of the most sig­nif­i­cant Found­ing Fa­thers. Yet at one time, he was con­sid­ered by many to be the log­i­cal suc­ces­sor to Wash­ing­ton as chief ex­ec­u­tive of the new coun­try. His résumé is the most im­pres­sive of those who did not serve as president. Among the po­si­tions he held were: pres­i­dent of the Con­ti­nen­tal Con­gress, min­is­ter plenipotentiary to Spain, mem­ber of the peace com­mis­sion which ne­go­ti­ated the 1783 Treaty of Paris, sec­re­tary of for­eign af­fairs, co-au­thor of The Federal­ist, first chief jus­tice of the United States Supreme Court, and two term gov­er­nor of New York. In re­tire­ment, he was pres­i­dent of the Amer­i­can Bible So­ci­ety. Al­ways, he demon­strated in­tegrity and abil­ity.

With this book, his first, Wal­ter Stahr has filled a void in Amer­i­can his­tor­i­cal writ­ing and has surged into the ranks of sig­nif­i­cant Amer­i­can his­to­ri­ans. Not since Frank Mon­aghan’s study of Jay came out in 1935 has there been pub­lished a com­plete bi­og­ra­phy of this great but too lit­tle known mem­ber of our found­ing gen­er­a­tion. Stahr spec­u­lates on the dearth of Jay studies, suggesting that his being the most con­ser­v­a­tive of the major founders could have been a fac­tor. He also came to sup­port in­de­pen­dence later than most other key leaders. Fur­ther, al­though a firm sup­porter of lib­erty and free elec­tions, he was sus­pi­cious of too much democ­racy. Fi­nally, he was a de­vout Chris­t­ian. All these points are ac­cu­rate, but the ne­glect of Jay may be more at­trib­ut­able to his not being a mil­i­tary leader, a president, or a col­or­ful char­ac­ter about whom juicy scan­dals could be re­lated.

Stahr dis­cusses Jay’s slow evo­lu­tion to sup­port of in­de­pen­dence. He was a con­ser­v­a­tive who be­lieved, as Rus­sell Kirk later set forth, that a civ­i­lized so­ci­ety must have order, justice, and free­dom. The se­quence is es­sen­tial. With­out order, noth­ing can func­tion. Once order is es­tab­lished, jus­tice can come into being and once order and jus­tice pre­vail, freedom can arise and flour­ish. Jay was con­cerned lest war come be­fore other op­tions had been ex­hausted and that mob rule could re­sult from the poli­cies and ac­tions of some advocates of in­de­pen­dence. When he be­came con­vinced that noth­ing else would secure freedom for the colonists, he be­came a fer­vent sup­porter of the war. Dur­ing the con­flict, he served hon­or­ably and ef­fec­tively in the Con­ti­nen­tal Con­gress, cul­mi­nat­ing in the presidency of that body, as a key counter-in­tel­li­gence leader, and as a diplo­mat.

It was as a mem­ber of the Amer­i­can team which ne­go­ti­ated the 1783 Treaty of Paris which se­cured Amer­i­can in­de­pen­dence and ended the war, that Jay shone with par­tic­u­lar brightness. Five men were cho­sen by Con­gress. Thomas Jef­fer­son de­clined to cross the Atlantic then. Henry Lau­rens was cap­tured on the high seas by the British and im­pris­oned, only being re­leased near the end of the talks. Ben­jamin Franklin al­ready was in Paris. John Adams was rep­re­sent­ing the United States in the Nether­lands. For a time after ar­riv­ing from Spain, Jay was the only ac­tive del­e­gate, Franklin being ill and Adams de­layed in the Nether­lands. Jay in­sisted that the United States be rec­og­nized by Britain as an independent coun­try from the be­gin­ning rather than hav­ing recog­ni­tion be part of the treaty. Stahr re­garded this as ex­ces­sive on Jay’s part, that he was being stub­bornly legalistic. “On bal­ance, al­though one can ad­mire Jay’s pa­tri­o­tism in want­ing to see early recog­ni­tion of Amer­ica’s sta­tus, one has to ques­tion his judg­ment in in­sist­ing that this be dealt with as a pre­con­di­tion.” Since the British ended up ac­cept­ing Jay’s de­mand, even though ne­go­ti­a­tions were de­layed for two months, it is hard to fault Jay for his stal­wart defense of this coun­try’s sta­tus.

Jay, along with Alexan­der Hamil­ton and James Madi­son, au­thored The Fed­er­al­ist, arguably the most sig­nif­i­cant work of po­lit­i­cal thought in Amer­i­can his­tory and among the most im­por­tant in the adap­ta­tion of the core con­cepts of West­ern po­lit­i­cal thought—order, justice, and free­dom—to the United States. In par­tic­u­lar, The Fed­er­al­ist was vital in bringing about the rat­i­fi­ca­tion of the Con­sti­tu­tion.

Stahr also dis­cusses well Jay’s tenure as the first chief jus­tice of the United States Supreme Court. Stahr, though, does not rank Jay among the great­est chief jus­tices. Granted his record suf­fers in com­par­i­son with John Mar­shall, but Jay does de­serve rank­ing in the upper ech­e­lons of those who held this of­fice. He in­sisted on the in­de­pen­dence of the judiciary, doing much to so­lid­ify the sep­a­ra­tion of pow­ers. Prece­dents were es­tab­lished, such as the right of fed­eral courts to rule on the con­sti­tu­tion­al­ity of laws and their hav­ing jurisdiction over the ac­tiv­i­ties of for­eign gov­ern­ments on U.S. ter­ri­tory. He re­jected Hamilton’s call that he join him in at­tack­ing the Vir­ginia res­o­lu­tions op­pos­ing the assumption of state debts by the na­tional gov­ern­ment. As a Fed­er­al­ist, he agreed with Hamil­ton on the mat­ter, but did not be­lieve that Supreme Court jus­tices should be involved in pol­i­tics. Dur­ing his four years as chief jus­tice, Jay’s in­tegrity, ded­i­ca­tion to the Con­sti­tu­tion, knowl­edge of the law, and abil­ity es­tab­lished con­fi­dence in the Supreme Court and in the other fed­eral courts.

While serv­ing as chief jus­tice, Jay rep­re­sented the United States in ne­go­ti­a­tions with Britain over a num­ber of is­sues so con­tentious that an­other war was by no means inconceivable. Con­sid­er­ing the weak hand he had to play, U.S. armed forces hav­ing been sub­stan­tially re­duced, Jay did well to avoid war with Britain, se­cure the evac­u­a­tion of fortified posts they still oc­cu­pied on Amer­i­can soil, and to gain some ex­pan­sion of our trade with British ter­ri­tory. Stahr con­curs with most his­to­ri­ans that Jay did as well as anyone could have under the cir­cum­stances.

Jay was a de­vout Chris­t­ian, be­liev­ing firmly in the Bible as Di­vine rev­e­la­tion, and Stahr gives the depth of Jay’s faith its ap­pro­pri­ate place. Al­though Jay prac­ticed his Chris­tian­ity by being faith­ful to his wife and by in­tegrity in of­fice, he did not es­pouse, at least pub­licly, the na­tional recog­ni­tion of Chris­tian­ity—of God as sov­er­eign and of His rev­e­la­tion as norma­tive for all areas in­clud­ing gov­ern­ment. Still, though, he clearly ap­pears to have been a gen­uine be­liever in the fun­da­men­tals of Chris­tian­ity.

What, though, of the other lead­ers of the found­ing gen­er­a­tion? A con­vinc­ing case can be made that this was the great­est gen­er­a­tion of po­lit­i­cal lead­ers in the his­tory of West­ern Civ­i­liza­tion. A Chris­t­ian world­view was evinced by the writ­ers of the U.S. Con­sti­tu­tion, but how deep and how ex­ten­sive was their Chris­t­ian be­lief? Schol­ars dif­fer. For ex­am­ple, Russell Kirk and John Ei­dsmoe be­lieved that the over­whelm­ing ma­jor­ity of the fifty-five del­e­gates to the Con­sti­tu­tional Con­ven­tion ad­hered to or­tho­dox Chris­t­ian doc­trine whereas Mark Noll and Harold O. J. Brown were far more skep­ti­cal about the sound­ness of their be­liefs. Cer­tainly there were men who were deeply Chris­t­ian and those who were not in the Chris­t­ian camp. All had been in­flu­enced in vary­ing de­grees by the clash­ing forces of Christianity, es­pe­cially the First Great Awak­en­ing, and by the dis­be­lief of the Enlightenment.

What is sig­nif­i­cant in the con­sid­er­a­tion of their Chris­tian­ity is that there is no men­tion of God in the Con­sti­tu­tion, no state­ment of a covenant re­la­tion­ship be­tween God and government as is found in colo­nial doc­u­ments such as the First Char­ter of Vir­ginia, the Mayflower Com­pact, the Fun­da­men­tal or­ders of Con­necti­cut, the Mass­a­chu­setts Body of Lib­er­ties, and the Ar­ti­cles of Con­fed­er­a­tion of the New Eng­land Con­fed­er­a­tion. Those who established these gov­ern­ments be­lieved that God re­vealed His will to guide not just the church, the fam­ily, and the in­di­vid­ual, but also civil gov­ern­ment, that all should acknowledge the lord­ship of Christ. They be­lieved that peo­ple are truly free only within the frame­work of an or­dered so­ci­ety based on Chris­t­ian prin­ci­ples. Fur­ther­ing the spread of Chris­tian­ity, ob­vi­ously not by force, is a key re­spon­si­bil­ity of gov­ern­ment.

By the time the Con­sti­tu­tion was writ­ten, though, this doc­trine had been eroded by Enlightenment sec­u­lar­ism to the ex­tent that the Pre­am­ble to this doc­u­ment at­trib­uted the found­ing au­thor­ity to “We the Peo­ple of the United States,” a far cry from the Mayflower Com­pact recog­ni­tion of pur­pose: “Hav­ing un­der­taken, for the Glory of God and advancement of the Chris­t­ian Faith . . . .” Popular sov­er­eignty now re­placed that of God.

Some, such as Pat Robert­son and Clarence Car­son do not re­gard the omis­sion as significant, that it was not ap­pro­pri­ate or necessary to do so. This think­ing is to­tally different from that of those who wrote the colonial doc­u­ments al­luded to pre­vi­ously. Rousas Rush­doony wrote in This In­de­pen­dent Re­pub­lic: Stud­ies in the Na­ture and Meaning of Amer­i­can His­tory that:

When ref­er­ence is made to the Chris­t­ian na­ture of the United States, the ob­jec­tion im­me­di­ately raised is the ab­sence of ref­er­ence to Chris­tian­ity. The Constitu­tion would never have been rat­i­fied had such a ref­er­ence been made . . . .

His point was that op­po­si­tion to a na­tional state church mo­ti­vated this con­vic­tion. Maybe so, but it is more likely that a weak­en­ing of Chris­t­ian con­vic­tions was the cul­prit.

Still, all things con­sid­ered, the United States Con­sti­tu­tion is a re­mark­able po­lit­i­cal achievement, wor­thy of re­spect and em­u­la­tion. There re­mains, though, the glar­ing ab­sence of any acknowledgment of God and of Chris­tian­ity as the basis of pub­lic order. A state church would not be ad­vis­able, or in­deed pos­si­ble, since we have a mul­ti­tude of denominations in this coun­try. A re­vival of Chris­tian­ity, though, could lead to a renewed understanding of Chris­t­ian foun­da­tions of our na­tional gov­ern­ment (with free­dom for dissenters), cor­rect­ing the omis­sion of 1787, and re­assert­ing the prin­ci­ple of Chris­t­ian govern­ment.

In sum­ma­tion, Wal­ter Stahr’s bi­og­ra­phy is well worth buy­ing and read­ing. We long have needed a thor­ough study of this out­stand­ing leader from what was our great­est gen­er­a­tion of lead­ers.

This essay is published here with the gracious permission of the University Bookman. It was originally published in the University Bookman, (Vol­ume 44, Num­ber 1 Fall 2005). 

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