Friday, September 26, 2014

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 18th-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 17th 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-18th 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 16th and 17th 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-19th 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-18th century American religiosity, but of the common philosophical bona fides that permeated the founding generation. 

Friday, September 19, 2014

Federalist No. 2, Part I: Context

Again we return to the Federalist Papers, that source of so many of the philosophical underpinnings of American politics; this time for an examination of another early example of nationalist thinking. I do this partially because I believe Federalist No. 2 contains numerous examples of the kind of political and philosophical thought that was common to the members of the founding generation. But I’d also like to lend it the spotlight because of who wrote it. In many ways something of a forgotten founding father, John Jay’s fame has never equalled those of his contemporaries like Jefferson, Adams, Hamilton or Washington. Jay was a New Yorker, a lawyer by trade, and served in a variety of posts in the early administration of the United States of America, including congressional delegate, state legislator, judge, diplomat, and public official. In spite of his relatively low historical profile, he was present at many crucial events in the nation’s early history (such as the signing of the Treaty of Paris in 1783 which brought the Revolutionary War to a close), served as the First Chief Justice of the Supreme Court and the Second Governor of New York, and was an early advocate for the abolition of slavery. These posts will, I hope, help to shed some light on the man’s accomplishments and his political personality. The best place to start, I suppose, would be with a brief biography.

Born in the Province of New York in 1745, Jay was descended from French Huguenots (Calvinist Protestants) on his father’s side and Dutch merchants on his mother’s, making him one of the very few Founding Fathers who was not of wholly British descent. Like many of his contemporaries he was home-schooled in his early years, and like fellow Federalist Alexander Hamilton he attended Kings College (now Columbia University). Upon graduating in 1764 he read the law as a clerk for prominent New York lawyer Benjamin Kissam, and was admitted to the colonial bar in 1768.  At the dawning of the Revolution in 1774, Jay (now a practising lawyer) was called to serve as one of New York’s delegates to the First Continental Congress and established himself as among that body’s more moderate members. Although he fully acknowledged that the colonies had been the victim of unjust trade and tax policies, Jay was initially inclined to support reconciliation with Parliament and only later came to support independence after the British proved that they willing to settle the American question by force of arms.

At the conclusion of his term in the First Continental Congress Jay returned to New York and became a member of the Provincial Assembly. In 1777, during his tenure as a state legislator, he helped draft his state’s first constitution, and in that same year was also elected to serve as Chief Justice of the New York Supreme Court. Following a two year term leading the court, he returned to Congress and was elected to replace South Carolina’s Henry Laurens as President of that body, serving until September, 1779. Shortly thereafter Jay was sent by the Congress to serve as Minister to Spain, considered a key diplomatic position for a nation hoping to secure European recognition and, all going to plan, financial assistance. As with his colleague in France, John Adams, Jay met with a chilly reception and was unable to secure the formal acknowledgement by the Spanish court of America’s independence. Nevertheless, having received a guarantee of a $170,000 loan, he departed for France so that he might lend his efforts to the ongoing peace negotiations that were taking place there over the course of 1782.

Success in Paris turned into success at home when Jay was appointed to the post of Secretary of Foreign Affairs in 1784 upon his return to the United States. Despite his formal title he also oversaw a number of domestic policy initiatives, and a result gained first-hand experience with a great number of the issues plaguing the United States under the Articles of Confederation. These included, among others, securing diplomatic recognition and financial assistance from foreign powers, establishing a stable national currency, paying off the national debt, settling boundary disputes with European empires and Native Americans alike and mediating disputes between the various states. The weight of these responsibilities, and the inability of the federal government under the Articles to meet them, caused Jay and many of his contemporaries to begin arguing in favour of reform. As defined by the Articles, Jay argued in a pamphlet published in New York in 1788, Congress,

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

Men like Alexander Hamilton and James Madison were of a similar mind in the late 1780s, and though Jay did not attend the Philadelphia Convention of 1787 as they had he was very much in favour of the proposed constitution. For this reason he was asked by Hamilton to lend his pen to the promotional effort that became the Federalist Papers. No. 2 (published October 31, 1787) was the first of his contributions, which went on to include No. 3, 4, 5, and 64. Illness prevented him from adding further entries, and Madison adopted the role of Hamilton’s chief collaborator.

            I feel the need to add, as a means of further shedding light on the man’s character, that Jay was also an early and vocal opponent of the institution of slavery. As early as 1777, though a slave-owner himself, he drafted a bill that would have abolished the practice entirely had it passed. After a second failed effort in 1785 Jay went on to found and lead the New York Manumission Society, an organization that promoted private emancipation by slave-holders, organized boycotts against merchants involved in the slave trade, and provided legal counsel for free Blacks that had been kidnapped or misidentified as escapees. The Society later helped draft the gradual emancipation bill that Jay signed into law during his tenure as Governor, and which resulted in the final and total abolition of slavery in New York by July 4, 1827. Jay’s efforts did not go unnoticed, and sometime earned him the antipathy of those who supported the “peculiar institution.” After narrowly losing the election for Governor of New York in 1792 it was speculated that his anti-slavery activities may have hurt his chances in certain up-state counties that were dominated by Dutch, pro-slavery landowners. Similarly Jay’s willingness during the negotiation of a treaty with Britain in 1794 to abandon an American demand for financial compensation for slaves freed during the Revolutionary War was much resented by southerners, whose economic fortunes had suffered greatly by the loss of labour. Regardless, Jay remained committed throughout his adult life to ending what he felt was a practice unbecoming of a nation founded on the principles of liberty and justice, and which he found personally offensive to his religious and moral sensibilities.

            So in all, though he seemed to keep a rather low profile, there would appear to be certain conclusions to draw about Jay’s character, if nothing else than by comparison with his fellows in the founding cohort. First among them would be his position as a moderate. Neither the vociferous, prodding John Adams, nor the reticent, pacific John Dickinson, John Jay was someone for who negotiation and diplomacy were always the preferred method of settling disputes. He was cautious, measured, but far from immovable, and when his passions were kindled he was capable of devoting all of his energies to seeing a thing done. He was also, if his writing is any indication, a student of the Enlightenment. But where Jefferson was always too much of a radical to adhere very closely to any one school of thought, and where Hamilton was far too pragmatic, Jay seemed to have fully imbibed the principles of the Enlightenment and put them to use regularly in his arguments. He believed, for instance, in the social contract, the notion of utopian universalism, that all men were fundamentally equal in their moral and spiritual quality, and in the work of Providence (a favoured philosophical euphemism for God) in shaping events and guiding men towards their destinies. In this he was perhaps more representative of his socio-economic class than Jefferson, Adams, Hamilton or Madison; a scholar and statesman whose genius lay not in innovation, but in the strength of his convictions. Jay was also, it must be said, a nationalist. He might not have been willing to go quite as far as Jefferson or Hamilton in preserving and promoting a singular vision of American republicanism, but he was certainly convinced that America and its people were uniquely suited to one another, and that their shared destiny was to be unlike any the world had ever seen. All that stood in their way, he argued, was their ability to see beyond their petty differences, appeal to the better angels of their nature, and grasp the opportunity that fate had placed before them.           

Thursday, September 11, 2014

The Kentucky Resolutions of 1798, Part IV: Rhetoric, and its Uses, contd.

In addition to being at times of a somewhat bloody temperament, Jefferson could also be rather less than gracious to his political opponents, or to those who he felt had betrayed their principles. Though again I maintain that he was not someone who sought out conflict, he was often quick to judge the actions of others and would loudly disclaim the crimes he felt they had committed. He could be stubborn and narrow-minded, and was sometimes given to make assumptions based less on fact and more on feeling. But he was also a canny politician, a master of rhetoric and possessed one of the brightest minds of his generation. Among other things, the Kentucky Resolutions provides evidence of both aspects of the 3rd President’s personality; the light and the dark, the narrow and the expansive.

Near the end of the ninth resolve, for instance, Jefferson seemed to have little trouble laying the blame for the Alien and Sedition Acts squarely at the feet of the Federalist Congress and the Adams administration. What’s more, he did it in a way that appeared to transcend partisanship and made abstract ideas like truth and justice the centre of the debate. Specifically, he wrote that,

“The men of our choice have conferred on the President, and the President of our choice has assented to and accepted, over the friendly strangers, to whom the mild spirit of our country and its laws had pledged hospitality and protection; that the men of our choice have more respected the bare suspicions of the President than the solid rights of innocence, the claims of justification, the sacred force of truth, and the forms and substance of law and justice.”

By “men of our choice,” Jefferson was referring rather sardonically to the Federalist-dominated Congress, doubtless intending to draw attention to the contradiction between its status as a body elected by the people and the fact that it was using its authority to restrict their rights. Similarly, Jefferson juxtaposed the “the solid rights of innocence, the claims of justification, the sacred force of truth, and the forms and substance of law and justice,” to the “bare suspicions of the President.” Though the authority of the President of the United States lies mainly in the foreign policy sphere, the Acts had given President Adams a great deal of discretion in identifying, seizing, and potentially deporting those aliens he believed were dangerous. As a result Adams placed himself squarely in Jefferson’s sights, and as the two former colleagues were in the midst of a lengthy period of estrangement Jefferson was apparently more than willing to tar the President with the same brush as his Federalist cohorts in the House and Senate. To that end, Jefferson structured his assertion in a binary way, and opposed truth and justice to one man’s (Adams’) bare suspicions. By this he hoped to invalidate whatever legal claim the President might have had to the authority granted him by the Alien and Sedition Acts. As seemed to be Jefferson’s credo throughout his life, the basis of this, and many of his arguments in the Resolutions, was that law must serve, and not be served; that it was at best a means to achieve something greater, and not an end in itself.

In the final paragraph of the ninth resolve Jefferson made another claim that seems to be based more in rhetoric than in reality, though to what end I’m not entirely certain. Speaking for Kentucky Jefferson claimed with admirable confidence that he had no doubt the governments of the other states, “will concur with this commonwealth in considering the said acts as so palpably against the Constitution as to amount to an undisguised declaration that the compact is not meant to be the measure of the powers of the general government, but that it will proceed in the exercise over these states of all powers whatsoever.” I think it rather strange for Jefferson to have truly believed, in November, 1798, that all or even most of the states would have been in agreement with his position. As mentioned previously the 5th United States Congress, which served from March 4th, 1797 to March 4th, 1799, was dominated by the Federalists. They controlled 22 out of the 31 seats in the Senate and 60 of the 106 in the House, including almost all of the sitting members from New England, large portions of the New York and Pennsylvania delegations, and a fair number from certain states in the Upper South. They were, in short, the dominant organised political force in America, and they had been behind the Alien and Sedition Acts to begin with. For Jefferson to claim that more than a handful of states were of his opinion would seem to serve one of two purposes. It’s possible that he believed, perhaps naively, that the Acts were approved in a fervour, that their true insidiousness was not yet known, and that once it became clear how damaging they truly were the stubborn Federalists would realise the gross error they had committed and set about having them repealed.

Then again it seems equally likely that Jefferson was bluffing, prevailing upon his reader’s guilt, or attempting to portray the ultimate rejection of the Acts as a foregone conclusion in an effort to sway those that were otherwise undecided. Perhaps if he could convince enough of them that they were on the losing side of the argument, and that the Acts were soon to be swept away in a tide of widespread popular indignation, they might be persuaded to change their opinion as well. Which of these it was I cannot say, but I would not rule either of them out. Jefferson was in many ways a manipulative idealist; at times he seemed to be untethered from reality, and at others was all too conscious of it. In 1798 he had reason to be both.

This duality is present again in the seemingly contradictory instructions that Jefferson put forward in the Resolutions. On the one hand, as discussed previously, he appeared to endorse a policy of rejection and resistance. Laws that were found to contradict the Constitution were “void, and of no force,” and every state had the right, nay the duty, to resist their enforcement, perhaps even to the point of spilling blood. While it would be an exaggeration to think of the Kentucky Resolutions as a declaration of rebellion, Jefferson certainly seemed intent on laying the groundwork for a potentially violent rejection of federal authority and subsequent re-evaluation of the character of American government. That being said, on two occasions Jefferson explained in far from revolutionary terms what he hoped Kentucky’s sister-states would do with the arguments he had put forth in the Resolutions. The entire eighth resolve is a recommendation that, “the preceding resolutions be transmitted to the senators and representatives in Congress from this commonwealth, who are enjoined to present the same to their respective houses, and to use their best endeavours to procure, at the next session of Congress, a repeal of the aforesaid unconstitutional and obnoxious acts.” This is echoed in the last sentence of the ninth resolve, where of the Alien and Sedition Acts Jefferson asserted that he was sure the various other states, “will concur in declaring these void and of no force, and will each unite with this commonwealth in requesting their repeal at the next session of Congress.” Far from unilateral nullification, here Jefferson seemed intent on securing the repeal of the controversial Acts via the established legal procedure.

There would appear to be something of a contradiction at work. Was Jefferson endorsing radical resistance to federal authority or simply drumming up grassroots support for a formal legislative effort? The answer, I believe, is both. I do think that Jefferson would have preferred if the Alien and Sedition Acts were repealed by Congress, peacefully and legally. It would have, I’m sure, sat well with him to for the people’s representatives to see the error of their ways, thanks in no small part to discussion and debate, and correct a mistake on their part that threatened the liberties of the masses. And I suppose it’s also entirely possible that he wished to ensure, if his authorship of the Resolutions became known, that he was clearly on the record in favour of a legal remedy to the crisis of the day. He may not have held the office of Vice-President in very high regard (as few who occupied the position ever did), but he was no doubt conscious of the fact that it would have been unpardonably indiscreet to be next in line to the highest office in the land while also openly questioning its legitimacy.

But I also believe that Jefferson wished to ensure that it was clear to the opponents of the Federalists what their strategy was to be, should the legislative route fail. By hinting, suggesting, repeating in bold but vague terms the phrase, “void, and of no force,” and predicting bloodshed if matters were not properly attended to, Jefferson perhaps aimed to plant the seeds of resistance among his Republican followers. He was radical enough to say these things, and cunning enough to couch them just so, as to avoid the appearance of out and out instigation while effectively getting his point across. He did not write that the Adams government was illegitimate, or that the Federalist-controlled Congress should be openly defied; he claimed that the Acts were of no force, and left it for others to determine exactly what that meant. He did not say that the revolution was immanent and to rise up when he gave the word; he argued that open conflict was likely if the federal government continued to accumulate power via questionable means. His wording was bold, certainly, and commanding, but always just measured enough. That was Jefferson; too radical for a man of his position, and too guileful for a man of his temperament.

I’d like to end this series with something of a digression.

In the first resolve, Jefferson wrote that, “whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force.” Granted that this is something I’ve already touch on, perhaps ad nauseum, but it’s the use of the phrase “undelegated powers” that caught my eye. Being in 1798 an advocate for the principle of strict construction, Jefferson believed that the Constitution needed to be adhered to as closely as possible. Allowing the federal government the use of powers that had not been expressly delegated to it constituted a slippery slope whereby he predicted the American republic would be transformed year by year into the kind of tyrannical regime it had come into being to try and escape. The Alien and Sedition Acts conferred powers on the office of President that were not mentioned in the Constitution; to seize foreign residents, imprison or deport them. This, Jefferson could not accept, and spoke out accordingly.

However…

During Jefferson’s own tenure as President (1801-1809) he happened upon the opportunity to purchase the territory of Louisiana. Formerly owned by Spain, the vast region had been secretly sold to France in 1800 with the intention of forming the cornerstone of Napoleon’s resurrected French Empire in North America. However, events in Haiti conspired to leave the scheme in tatters and the French eager to sell. Jefferson was initially determined only to purchase the city of New Orleans, a perennial sticking point with Spain as it was the only port American farmers in the West could access in order to ship their produce. Negotiator Robert Livingston was consequently dumbfounded to discover that the French were willing to dispose of the entirety of Louisiana for only $15 million (just a shade over the $10 million that Jefferson had been prepared to pay for New Orleans alone). Jefferson feared a sudden French withdrawal of the offer, potentially resulting in the loss of much-coveted New Orleans, and so agreed to purchase the 828,000 square mile territory, effectively doubling the size of the United States at the stroke of a pen. In spite of his good fortune, however, the annexation of Louisiana presented Jefferson and his Republican cohorts with something of a problem.

Though the United States Constitution and the Northwest Ordinance made allowance for the formation and admission of additional states to the Union, neither set down any procedure for the annexation to the United States of entirely foreign territory. The states that had acceded by 1803, Vermont, Kentucky, Tennessee, and Ohio, were all formed out of land considered to already fall within the borders of the United States as determined by the 1783 Treaty of Paris. Annexing Louisiana would therefore have been unconstitutional, or at least would have constituted an assumption of undelegated powers. This fact understandably gave Jefferson and his cabinet pause, and provided his Federalist opponents all the fodder they needed to oppose an initiative on philosophical grounds which they felt threatened them politically. Eager to preserve his scruples and not appear inconsistent, the president even contemplated introducing a constitutional amendment that would fold his proposed actions into the existing Constitutional framework, allowing him to have his cake and eat it too.  

And then he just said, “To hell with it.”

Convinced by Secretary of State James Madison and Treasury Secretary Albert Gallatin that the article of the Constitution that granted the President sole power to negotiate treaties applied to the situation before them and that annexing territory was not explicitly prohibited by the same document, Jefferson abandoned his proposed amendment (along with his principles, his opponents argued) and signed the Louisiana Purchase into law in October, 1803.What’s important about this incident is that it constituted an assumption of power on Jefferson’s part, indeed the greatest assumption of power in American presidential history up to that point. Faced with uncertainty, he did precisely what he had castigated the Federalists for attempting in 1798, and with a minimum of hand-wringing or equivocation. He was willing to assume that when the Constitution made treaties the President’s purview it was without any kind of restriction as to what they might say. Though it was a different kind of assumption to the one the Federalists had made in 1798, it was still that; an assumption of power by the executive branch of the federal government. That he got away with it had perhaps more to do with how many things had changed in the United States between the late 1790s and the early 1800s than with whether or not Jefferson was right.

 In all, I believe this apparent contradiction on Jefferson’s part demonstrates two things worth noting. First, it reinforces what I regard as Jefferson’s central characteristic as a political actor, his devotion to principle over policy; rights over regulations. He may have regarded himself as a strict constructionist and at numerous points over the course of his career spoke out against the unwarranted growth of federal power, but he also believed that preserving the Union meant preserving the liberties of the people. Without land to settle on and farm, Jefferson was sure that Americans would inevitably gravitate towards large urban areas in search of economic opportunity. Once there they would drift into the orbit of any number of unscrupulous characters, from landlords, to bankers, to gamblers, to stockjobbers, and their political independence would suffer the same fate as their financial independence. Cheap land would ensure that the majority of Americans would be economically independent, and in coming to value their freedom would become politically conscious, vigilant, and active citizens. Jefferson believed that Louisiana provided more than enough land to make this ideal a reality, and so one principle was sacrificed for the sake of another.

Second, it demonstrates yet again how fluid ideology and political power were in the early decades of the American republic. In 1798, Jefferson had argued in the Kentucky Resolutions that it was the right of the states to determine the constitutionality of federal laws. They were all equal partners in the Union, he claimed, and it was only by their agreement that the federal government possessed any authority at all. By 1803 he had become president, and took it upon himself as head of the executive branch to interpret the constitution on his fellow citizens’ behalf. He may have been right in 1798, and he may have been right in 1803; without the last-say authority of judicial review, right and wrong were more a matter of consensus than anything else. In 1798 the majority of Americans were willing to accept the Alien and Sedition Acts as necessary, and in 1803 a similar number chose not to question the president’s ability to annex a vast swath of territory. Time and tide have solidified America, hardening its customs into rules and its theories into policy. But in those first tumultuous decades it was anyone’s game, provided they could argue, and rally the people to their flag.

But that’s just my opinion. The words may tell you something different: https://en.wikisource.org/wiki/Kentucky_Resolutions_of_1798 

Thursday, September 4, 2014

The Kentucky Resolutions of 1798, Part III: Rhetoric, and its Uses

Though for the most part the Kentucky Resolutions represent Thomas Jefferson in a more prosecutorial mode than was his custom, they still contain flashes of the idealist he was often known to be. At times these moments seem to incline toward naiveté, or even intolerance, and at others the sort of high-minded radicalism that Jefferson was so quick to express and quicker to disregard. They are collectively of interest because they depict the man at a moment of intersection in his career. In 1798 he was a former congressman, governor, and diplomat, Vice-President in an administration whose policies he despised, and intellectual leader of a burgeoning political opposition movement. He was on the cusp of becoming President himself, and yet seemed prepared to see the country torn apart if it meant preserving what he regarded as the natural rights of the people. The Resolutions are a snapshot in the life of a great and contradictory man, and the great and contradictory nation he helped to create; in addition to showcasing his sharp political mind they capture his errors, assumptions, and petty accusations.

 Among the many and various statements that Jefferson made in his Resolutions about the nature of American government under the Constitution, or the crisis surrounding the Alien and Sedition Acts, certain of them strike me as slightly erroneous or skewed in some way. Whether this was the result of honest error on Jefferson’s part, or a calculated attempt to mislead, it’s hard to say. Likely they represented what Jefferson believed at that moment; at times a little out of touch with reality, but offered sincerely. Some are relatively minor; an overly simple characterization of the relation between the states and the federal government, or a claim to have knowledge of the true intentions of the Framers of the Constitution. Others seem rather more severe; a veiled promise of revolt, or an entire philosophical premise that he himself later completely ignored. Whatever their size or nature, I find them to be fascinating reflections of both Jefferson, the principled man, and Jefferson, the cunning politician, and are well worth a brief examination.

As quickly as the first resolve Jefferson put forth a rather matter-of-fact statement that arguably elides the rather complex relationship that exists between the state and federal governments. Specifically, he described the United States as a compact that, “each state acceded as a state, and is an integral party.” It is simply put, and true in point of fact, but there is more to the state/federal bond than Jefferson lets on. While it is the case that every state that acceded to the Union did so after first establishing a constitution and a provisional government, and thus their existence as a formal political entity technically pre-dated their admission to the United States, not all of them arrived at statehood in the same fashion. The Thirteen Colonies, which formed the thirteen original states, were all founded at least fifty years prior to the existence of the Union. The federal government that they formed in the 1770s could accordingly be thought of as a pact among thirteen co-equal republics whose sovereignty was based in their respective independent foundings. Vermont, the fourteenth state, also existed as an autonomous republic before being admitted to the Union in 1791, but the states that followed did so by somewhat more complicated routes.

Tennessee, which was admitted in 1796, was formed out of the organized, federally administered Southwest Territory. This political entity was comprised of western land ceded to the federal government by North Carolina in 1790 as payment for outstanding debts. It was overseen, as all organized, incorporated U.S. territories were, by a governor appointed by the President, and whose powers were practically absolute. Though there can be no argument that the residents of the Territory were responsible for creating a provisional government and drafting what would become Tennessee’s first constitution, the Territory’s very existence was owed to actions taken by the federal government. Indeed, I would submit that Tennessee itself would not exist were it not for the federal government claiming North Carolina’s debt, accepting western land as payment, and organizing and administering the Southwest Territory in the interim. Consequently, though Tennessee did accede to the Union as an independent and legally equal state, it was more a creation of the Union itself than any state that had come before.

It’s also worth noting that the formula used to create the Southwest Territory, and that structured the admission of Tennessee and later states, was set out by the United States Congress in 1787 in the Northwest Ordinance. One of the few acts of congress under the Articles of Confederation that had a lasting effect, the Ordinance spun out of the efforts of, among others, Thomas Jefferson and James Madison to compel certain states to abandon their competing land claims on the western frontier and cede the territory to the federal government. The resulting federally-administered region, the Northwest Territory, was to be then subdivided into separate states as the population increased and constitutions were written by the settlers living there. In all, five states were carved out of the land covered by the Northwest Territory, including Ohio, Michigan, Indiana, Illinois, and Wisconsin. All of these states gained admission to the Union after Jefferson’s Resolutions were made public in November 1798, but the process by which they did so was laid down and set in motion over a decade prior.

Jefferson was undeniably aware of this fact, but it would not have served his purpose to acknowledge it. His conception of the United States in 1798 was as a union of sovereign political entities that voluntarily surrendered a portion of their authority to a central government and could take it back if they wished. There are times when this has been an accurate description, but so often America is more than the sum of its parts. When the federal government set out to create new states, and laid down policies and created territories for that purpose, it transcended its origins as an alliance of independent political entities and became a sovereign entity in and of itself. While I would not go so far as to say that Jefferson was wrong in his thinking, it would be fair to say that his characterization of the matter is somewhat misleading.     
    
The aforementioned ninth revolve contains several other noteworthy statements by Jefferson, evidence of the hyperbole to which he so often resorted. First, he claimed while discussing the necessity of opposing the Alien and Sedition Acts that they violated the Constitution, “according to the plain intent and meaning in which it was understood and acceded to by the several parties.” He added no special emphasis to this passage in particular, and moved on to other topics in short order, but it strikes me as a rather odd thing for him to say. For one thing, and as I mentioned previously, he was not present at the Philadelphia Convention when the Constitution was being drafted. Nor was he even in the United States when the approved final draft was being debated and ratified by the various state conventions. It therefore would seem a rather strange claim for Jefferson to make that he knew the “plain intent and meaning” by which the “several parties” understood and voted in favour of the Constitution.

Granted he no doubt exchanged opinions and insights in letters with men like James Madison, who were present, or discussed the issue with colleagues in the various states upon his return to America in 1789. But the ferocity of the ratification debates in some states and the closeness of some of the final convention votes (the New York convention, for instance, voted in favour of ratification, 30-27) demonstrates how far people in the United States were from holding any “plain intent and meaning” in common about their newly minted government. Opinions on the Constitution varied state by state, county by county, according to economic class, occupation, and any number of other social and political distinctions. For Jefferson to tacitly claim that there was a consensus of opinion concerning the Constitution and that the Alien and Sedition Acts ran counter to it would seem to wilfully ignore the complexity of the situation. But then that was Jeffersonian rhetoric; soaring, charismatic, and inspirational, but also often exaggerated and distorted.

Similar embellishments appear further on in the ninth resolve. While detailing all the many and various negative effects that would result from a common acceptance of the Alien and Sedition Acts, Jefferson wrote that, “these and successive acts of the same character, unless arrested on the threshold, may tend to drive these states into revolution and blood, and will furnish new calumnies against republican governments, and new pretexts for those who wish it to be believed that man cannot be governed but by a rod of iron.” It would be difficult to say whether this was intended as a premonition or a promise. It’s possible that Jefferson was honestly trying to forecast what he believed would be the regrettable result of a growing concentration of power in the hands of the federal government. At once it seems equally possible that he was instead attempting to subtly but unmistakably intimate to supporters of the Alien and Sedition Acts that bloodshed would be the inevitable result of their efforts.

Though by all accounts a peaceful man, there were times over the course of his career when Jefferson seemed indifferent to violence, or even encouraged it, provided it served a higher motivation. His support of the French Revolution was just one such occasion; no matter how bloody the streets of Paris became Jefferson maintained that the result, a free, republican France, was worth the turmoil. That he would have adopted a similar attitude toward his own country seems, to me, far from inconceivable. However much the thought of a sitting Vice-President encouraging an anti-government insurrection would seem today to be beyond the pale, revolution was not so far from the minds of Americans in 1798. Revolts over war debt in Massachusetts in 1786 and tax collection in Pennsylvania between 1791 and 1794 proved that in the early decades of the United States armed resistance was still a widely accepted protest tactic.