The Jay Papers: Federalist 2-5
John Jay is the neglected author of The Federalist. He only wrote five of the papers, but four of them are among the first five. Perhaps best known to posterity as the first Chief Justice of the Supreme Court, at a time when that job was coveted by very few, Jay had also served as the President of the Second Continental Congress and had negotiated with Great Britain the eponymous treaty with Great Britain, which he accomplished, interestingly enough, while Chief Justice.
Taking up Hamilton’s challenge at the end of Federalist 1 (discussed in our last essay), Jay begins by drawing attention to a fundamental fact of political life: it always involves trade-offs. Deciding between good and bad is a fairly straightforward task, but when having to choose between competing goods things can get very complicated very quickly. In many ways, the most fundamental distinction in politics is that between freedom and order. Too much freedom leads to anarchy and too much order to tyranny. We are always vacillating between these two poles. Whatever else politics is, it involves the ordering of things (peoples, space, resources, and so forth), but the human desire for freedom is planted more deeply in the human breast. Our paeans are to freedom, not order: no one pines for "a new birth of order" or proclaims the inalienable right to "life, order, and the pursuit of happiness" or declares "give me order or give me death!"
Government, Jay reminds us, is a necessity. In part this results from the irascibility of human nature, but also because once human beings get together they have to organize their affairs. Traffic lights don’t exist only because human beings are sinful, they arise from the common sense need to regulate traffic patterns, even if every driver were a saint. Jay, in line with most political thinkers, argues that the need for government and its ordering power requires that “the people must cede to it some of their natural rights in order to vest it with requisite powers.” This trade-off of liberty for order is baked into the political system; but how to get the balance right is a bedeviling problem.
This bargain, built into the nature of liberal societies such as ours, has proved a menace to the cause of liberty and personal freedom. While the bargain can’t be bypassed, the proponents of “order” or “good government” will often, in their cause, happily whittle away at personal freedoms. The USA PATRIOT (United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorists) Act, in the name of security, purchased that by paying a high cost in liberty. Because the bargain is necessary the strengthening of government power will be described as necessary as well, forgetting that while order might be the first demand of politics, liberty is its desideratum. The costs of order accrue and the accounts are seldom rebalanced, except by force. The critics of the Constitution believed, and made the argument in great detail, that the proposed government was tilting the bargain away from “securing the blessings of liberty.”
Indeed, Jay argued in #3 that the most important object of interest for the states was “providing for their safety.” Given the threats presented (and, according to the Anti-Federalists, the nature of the threat greatly exaggerated) by France and England and Spain, a fully United America, Jay argued, would be less likely to engage in war than would a disunited one. A strong central government, he argued, would be a guarantee against the constant agitations and wars of smaller republics, and this became in some sense the central argument around the Constitution, for the Anti-Federalists foresaw the rise of the centralized war machine that would lead to America’s constant meddling in other’s affairs and perpetual war.
Whatever worries Jay had about placing the demands for security in the central government were mitigated by his conviction that the Constitution had been written by men “highly distinguished by their patriotism, virtue and wisdom” who, “without having been awed by power, or influenced by any passions except love for their country … presented and recommended to the people the plan produced by their joint and very unanimous councils” that represented “the true interests of their country.” Publius, nodding at intellectual humility and hermeneutical charity, nonetheless surrendered to the temptation to place great confidence in his own virtue and disinterestedness, while disparaging that of his opponents. Yet its observation in the breach shouldn’t dissuade us from the truth of the principle, nor should the truth of the principle prevent us from making our arguments forcibly.
Note, within its historical context, how Jay proceeds in argument. Within weeks of the Constitution’s release, Anti-Federalist writers began writing against both its illegitimacy (the Philadelphia Convention have been convened for the purpose of amending, not replacing, the Articles of Confederation), the Constitutional system’s incoherent view of dual sovereignty, and specific provisions, such as the “necessary and proper” clause, that would threaten liberty. Publius responded by raising the specter of war and defense, for it is always the case that those who seek to strengthen power will use “defense” as its excuse.
To be fair, Publius’ conviction that increased power will be well used resulted in part from his conviction that it would be placed in the hands of the “best and the brightest” (David Halberstam’s ironic title for this book examining how American leaders got Vietnam so horribly wrong). This confidence came from Publius's belief that it had solved one of the most complex problems of political society: the problem of representation, with its inherent difficulties involving the principal-agent relationship (whereby the appointed agent might substitute its own interests for that of the principal actor). Regarding that, Jay wrote:
Because when once an efficient national government is established, the best men in the country will not only consent to serve, but also will generally be appointed to manage it; for, although town or country, or other contracted influence, may place men in State assemblies, or senates, or courts of justice, or executive departments, yet more general and extensive reputation for talents and other qualifications will be necessary to recommend men to offices under the national government,--especially as it will have the widest field for choice, and never experience that want of proper persons which is not uncommon in some of the States. Hence, it will result that the administration, the political counsels, and the judicial decisions of the national government will be more wise, systematical, and judicious than those of individual States, and consequently more satisfactory with respect to other nations, as well as more SAFE with respect to us.
Given the potential strength of America, both militarily and commercially, other nations, Jay feared, would soon set their sights on us. The “jealousies and uneasiness” of other nations with regard to our “Providential” strength would make us a target -- especially a preemptive one, before we could emerge into the full possession of mature power. Foreign nations, Jay claimed, would react to us exactly as they see us: strong and united, they would tend to leave us alone; weak and divided, they would constantly prey upon us. “Weakness and divisions at home,” he wrote, “would invite dangers from abroad.” In both keeping with and establishing Publius’ argumentative method of providing contemporary and historical comparisons, Jay offered example after example of what might happen should the states not form themselves into a more energetic league. But note: many of the Anti-Federalists did not oppose the idea of strengthening the union, they argued instead that the Constitution overdid it. Jay’s rhetorical strategy, however, was not to engage the argument on its own merits but rather to exaggerate his opponent’s claims. Still, one can’t help but acknowledge the wisdom in the claim that we could unite now, as he argued, when circumstances were most propitious to our defense and produced in a time of deliberative calm, or be forced to unite later, under dire circumstances not conducive to reasoned reflection. This example of political prudence needed to be held in relief against the degree to which the proposed government itself reflected pure prudence or some other principle.
Jay’s essays deal mainly with the problem of defense, which, as we have argued above, is one of the essential tasks of government. A government that cannot provide for the defense of its citizens is no government at all. The danger is that the power justified by that consideration easily expands itself, especially when government can use the metaphor of war to justify the expansion of a whole range of powers. Woodrow Wilson, the great advocate for presidential power, sought to place the American government and the American economy on a permanent war footing (which necessarily requires an increase in presidential authority over legislative).
FDR, in his first inaugural address when contemplating the employment crisis, argued that “Our greatest primary task is to put people to work. This is no unsolvable problem if we face it wisely and courageously. It can be accomplished in part by direct recruiting by the Government itself, treating the task as we would treat the emergency of a war, but at the same time, through this employment, accomplishing greatly needed projects to stimulate and reorganize the use of our natural resources.” [emphasis added] He continued: “I shall ask the Congress for the one remaining instrument to meet the crisis--broad Executive power to wage a war against the emergency, as great as the power that would be given to me if we were in fact invaded by a foreign foe.” Johnson’s war on poverty or Reagan’s war on drugs or Nixon’s war on crime or Bush’s war on terror further consolidated and expanded the gains of centralized power against the liberties previously enjoyed by Americans. (One will note that the metaphor is aggressively applied by members of both political parties.)
Jimmy Carter even declared “the moral equivalent of war” on energy consumption. The metaphor has significant consequences, for it moves us away from calm deliberation over the details of policy and the inevitable trade-offs it requires, to immediate action predicated on the expectation of victory. War divides the world into winners and losers, and this zero-sum thinking becomes extremely dangerous in a free republic when applied to the policy process, in no small part because it bypasses the demands of compromise that are otherwise an essential element of good politics. War is also expensive. The use of the war metaphor has always led to an enormous spending of the public’s money and the formation of new government agencies and offices – and given that governments are typically bad at war, usually to negligible effect. If truth is the first casualty of war, freedom is the second.
Returning to Jay, his argument for a strengthening of America’s defenses results in part from his conviction that “America” was in many ways already a fully formed entity. While Anti-federalists such as Brutus argued that the states were too disparate in habit, custom, religion, economies, social structures, and so forth to be fully united (how, for example, might a slave state unite or see itself as already united to a free one?), Jay argued that:
It has often given me pleasure to observe that independent America was not composed of detached and distant territories, but that one connected, fertile, widespreading country was the portion of our western sons of liberty. Providence has in a particular manner blessed it with a variety of soils and productions, and watered it with innumerable streams, for the delight and accommodation of its inhabitants. A succession of navigable waters forms a kind of chain round its borders, as if to bind it together; while the most noble rivers in the world, running at convenient distances, present them with highways for the easy communication of friendly aids, and the mutual transportation and exchange of their various commodities.
With equal pleasure I have as often taken notice that Providence has been pleased to give this one connected country to one united people--a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs, and who, by their joint counsels, arms, and efforts, fighting side by side throughout a long and bloody war, have nobly established general liberty and independence.
What unites a “people”? Clearly one impulse toward union had been battling against a mutual enemy in the American Revolution (remember that individual states had issued their own declarations of independence prior to that of the Continental Congress on July 4th, 1776). But it would not be unusual for the strength of such confederations to dissolve with the end of hostilities. The US and the Soviet Union, for example, did not maintain the relationship required in their mutual battle against the Germans. Knowing that confederated interests were dissolvable, Jay resorted to a different argument: that a common ancestry of manners, customs, and religion had already united Americans into one people, and they required a government that reflected such union. Whether this claim was true was one of the great debates of the day, a debate that took on special meaning some 70 years later for Abraham Lincoln as he faced the nation’s next great crisis of union.
Director of the Ford Leadership Forum, Gerald R. Ford Presidential Foundation
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