The Jay Papers Ii: The Forging Of The Nation

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Jay begins letter No. 64 by pointing out that the making of treaties is entrusted by the Constitution to the President, with the concurrence of two thirds of the Senate present, and that precautions are taken to guarantee that the men chosen for the respective elective posts are “the best qualified for the purpose.” He feels that the choice of the President by the Electoral College and the selection of senators by state legislatures would ensure these results. In retrospect we may dispute Jay on both these points, for the Electoral College has proved a cumbersome and even fallible device, and the nation through the Seventeenth Amendment has long since stripped state legislatures of the power of designating United States senators .

What gives special pertinence to No. 64 is its comment on the need for secrecy and timing in treatymaking, and its stress—echoed ever more loudly in our subsequent history—on the key role of the President to negotiate a treaty with dispatch .

… They who have turned their attention to the affairs of men, must have perceived that there are tides in them. Tides, very irregular in their duration, strength and direction, and seldom found to run twice exactly in the same manner or measure. To discern and to profit by these tides in national affairs, is the business of those who preside over them; and they who have had much experience on this head inform us, that there frequently are occasions when days, nay even when hours are precious. The loss of a battle, the death of a Prince, the removal of a minister, or other circumstances intervening to change the present posture and aspect of affairs, may turn the most favorable tide into a course opposite to our wishes. As in the field, so in the cabinet, there are moments to be seized as they pass, and they who preside in either, should be left in capacity to improve them. So often and so essentially have we heretofore suffered from the want of secrecy and dispatch, that the Constitution would have been inexcusably defective if no attention had been paid to those objects. Those matters which in negociations usually require the most secrecy and the most dispatch, are those preparatory and auxiliary measures which are no[t] otherwise important in a national view, than as they tend to facilitate the attainment of the objects of the negociation. For these the president will find no difficulty to provide, and should any circumstance occur which requires the advice and consent of the senate, he may at any time convene them. Thus we see that the constitution provides that our negociations for treaties shall have every advantage which can be derived from talents, information, integrity, and deliberate investigations on the one hand, and from secrecy and dispatch on the other. …

Fateful for the success of the great experiment was the fight to win New York over to the pro-Constitution camp, and in that fight Jay played a leading role. New York was sharply divided into pro- and anti-Federalist camps. At the very end of May, Jay drafted a letter to Washington in which he expressed regret that the election of delegates to the state’s ratifying convention had not been delayed, because as things stood, the majority of the convention would be “composed of anti-foederal characters.” As Jay saw it, and probably correctly, the tide of public opinion was running in favor of the Constitution. To him, all that was needed to counter the propaganda of the antis was the passage of time.

Jay’s forebodings were borne out. When the ratifying convention met at Poughkeepsie on June 17 the Antifederalist delegates were the overwhelming majority. Jay shrewdly distinguished between Antifederalists like Governor George Clinton, who hoped for a quick vote rejecting the Constitution with “as little debate and as much speed as may be,” and “their followers,” many of whom he considered more disinterested.

Jay, along with Hamilton and Robert R. Livingston, the undisputed leaders of the pro-Constitution faction, quickly saw the advantage in driving a wedge between the Antifederalist leaders and their followers. As early as May 30 he let word drop to Washington that the notion was being bruited about that, should the Antifederalists prove obdurate, the southern part of the state would separate and adhere to the Union, leaving the upstate fragment a landlocked republic.

On July 4, Jay reported to Washington that the issue had boiled down to whether the Constitution would be ratified in New York with prior or with subsequent amendments. As yet the antis were not agreed among themselves on the formula. It was Jay who cut the Gordian knot. On July 11 he moved both the unconditional ratification of the Constitution and the recommendation of such amendments as might be deemed expedient: “Let us agree and be unanimous. … We will have our Constitution; you will have your Amendments.” It was largely through Jay’s efforts that the convention, by a close vote (30 to 27), ratified the Constitution. The convention adopted a compromise plan, resolving unanimously to prepare a circular letter to the state legislature recommending a general convention to consider amendments. The first ten amendments (the Bill of Rights) were proposed by Congress and ratified by the states, making such a general convention unnecessary. Up to now, no such general convention has ever assembled, although there is much agitation for one at the present time.