• Daniel Ethan Finneran

Supremacy's Price

October 2018

Supremacy, apparently, isn’t so lofty a perch. You’d think that after having climbed society’s great ladder, you’d be comfortable with the view. Sitting up above so high, surely you’d be made free of all the base intrigues and creeping scurrilities nibbling at your heels below. But, as it turns out, a high station in life doesn’t always succeed in putting you above reproach.

Just ask the Supreme Court’s first and latest justices. The latter, I assume, you already know too intimately and well. I refer, of course, to the now associate justice of the U.S. Supreme Court, Brett Kavanaugh.

Kavanaugh is a man whose name (deservedly or not) will forevermore serve as a synonym for controversy—much in the way Epicurus’s does for appetite, Napoleon’s for height, and Midas’s for greed. Like those philosophers and kings and sages past, Kavanaugh’s name will be for all students of history a slightly dirty word. How eventually we will come to receive it and, by extension, him depends largely upon the remainder of his natural life as a member of that high and undemocratic court. As it is, his name has been besmirched—perhaps irreparably so—and the hope ever of its being cleansed in the public mind is slim.

Yet, for all he’s endured, Kavanaugh isn’t the first Supreme Court justice to have been attacked so vituperatively and unrelentingly from the media and the masses below. To find such a first justice, we must travel back to the first justice.

That is what John Jay was in the literal sense. Of course, as can be said of any Founding Father living at that time, Jay was many things more than just a mere jurist. We Americans living in the present day, so specialized in our narrow crafts and our shrunken scopes, hardly grasp the polymathic natures of men like Jay from whose genius we spring. Too often, we fail to celebrate the variety and the breadth of their skills—the lot of which were mastered, mind you, in the darkness of a pre-YouTube age. We also fail to notice, let alone question the self-imposed restraints we’ve placed upon our own ambitions. But let us not lament our own shortcomings when we have in our midst a Father to praise.

Unlike the average American, the multi-faceted Jay played many roles. He was an essayist, polemicist, jurist, emissary, patriot, and diplomat. He was a local politician who’d later win international renown. This side of the Atlantic, he was best-known and lauded as Governor and Constitutional delegate of New York, President of the Continental Congress, and, perhaps most memorably of all, Chief Justice of the now fledgling, now Supreme Court. Abroad, he was better known to be a sometimes shrewd, often indulgent negotiator of treaties and pacts. He served as an ambassador to both Great Britain and Spain, a Secretary of State, and a signatory to the Treaty of Paris which ended America’s colonial life. Always, the circumstances under which his agreements were hashed out were at their most fraught and at their highest pitch. He dealt with equal sangfroid in the face of angry imperialists in London or feisty Iberians on the peninsula beneath.

Yet for all of his professional and political successes, as well as the high positions he’d consequently earned, Jay was met with opprobrium once he returned from his missions to the states.

The first instance of this occurred when he set sail from Madrid back to Philadelphia with an odd-sounding treaty in his pocket. At long last and at great cost, the war for America’s independence was over, but the real work for this newest of new worlds had only just begun. Decades of questions—be they commercial, political, or martial or all of the above—now laid ahead and none knew how best to chart them. Some issues (such as debts to creditors and expectant claims on land in the Caribbean and the west) appeared unnavigable, but had they gone unaddressed, a hasty sequel to America’s first war might’ve been the result.

It was Jay’s job to allay the disquiet suffered by our foreign partners-in-crime. Included among said partners were most notably France, and to a lesser extent, Spain. Both were headed by extravagant and gaudy Bourbons (proving once again that prodigality, like hemophilia, is a disease transmitted through regal blood), and without their joint intervention, America would’ve been lost before ever she’d been won. The Franco-American alliance, signed after our gallant victory at Saratoga in 1778, remained strong and wouldn’t be challenged until France’s own revolution took a Napoleonic turn.

Relations standing as they did with France, Jay was tasked with bettering our position with the Spaniards. More than anything, those mercantilists of Madrid wanted a buffer between our now liberated, westward-gazing nation and their Mexican, Peruvian, and Colombian mines of silver and gold. They also wanted absolute dominion over the coterminous Floridas (at that time divided into East and West) and control of the Mississippi River. While Americans could accept the concept of a Florida under the aegis of Spain, a Mississippi not of their own keeping was contrary to good reason.

For the southern and burgeoning western states, the Mississippi was to be the very artery of American life. It was to be the pulsation by which the nation regained its step and leaped into the modern, commercial age. Along its patient south-bound currents, all varieties of trade were expected to flow, and to do so at a great profit. Commodities from newly-established Tennessee and Kentucky, as well as the older dominions of Virginia, Georgia, and the Carolinas would be shipped and emptied into the gulf, whence they’d find a thousand Caribbean and European ports. Indigo, cotton, rice, tobacco—all would sell to hungry importers as never they had before.

More than that, though, the importance of the Mississippi was not only financial, it was geo-political as well; it was by meeting and then crossing that great river that the west was to be won and America, from Atlantic to Pacific, made complete.

It’s understandable, then, to see why Jay’s proposed treaty with Spain was met with such scrutiny and, as it turned out, hostility back at home. Having tried earnestly to barter with Spain’s secretary of foreign affairs, the exotically named Don Diego Gardoqui, Jay was forced to weaken his hand. That said, to the benefit of the U.S., Jay was able to acquire commercial privileges from Spain. These included the long-sought-for access of West Indian ports (including Cuba, Puerto Rico, and the Dominican Republic—all of which still belonged to Spain) and those (like Cádiz and Málaga) on the Continent itself. Americans in the New England and Mid-Atlantic states salivated at the mere thought of such expansive trade, but there was a catch. Should America accept this propitious, and likely profitable invitation from Madrid, a condition must be met: the Mississippi River would be closed to American navigation for at least twenty-five years. For a quarter of a century, all Southern hopes of westward expansion and endless trade would be squashed. A theme that persists to our day, northerners relished the treaty while southerners tore it apart. Ultimately, what would become the Jay-Gardoqui Treaty would die on the Congress floor.

Yet Jay’s name still lives. As any student of history might recall, there are two treaties that bear his name.

The second and later “Jay Treaty” was his exclusively to own; he would share its title with no other man. Thus, all responsibility for its flaws would redound upon him and him alone. Jay’s treaty, presented in 1794, was an attempt to improve relations with the former mother country—Great Britain. Whereas the broken attempt to barter with Spain happened immediately after the war ended in 1783, the attempt to do so with Britain came a full decade later. Then, as before, Jay was ferried off across the Atlantic, this time, of course, to England instead of Spain, where he’d be tasked with trying to set anew the economic relations between a former master and her rambunctious child.

Many lingering questions demanded attention after the war’s end. For instance, henceforth, what were Anglo-American trade relations to be? Would American vessels have the right to fish in the Newfoundland waters, rife as they were with salmon, tuna, and cod? And what of the Northwestern Territory and its innumerable “uncivilized” anglophiles—those whom we continue erroneously to call Indians? Was the territory to be forsaken of its British garrisons and her troops and the anxious Natives quieted under American rule?

Jay, a Federalist and thus always suspected of Anglican sympathies, did what he could to answer these questions and mollify the tempers that were teeming on both sides. Settling months of negotiation, Britain agreed to abandon its Northwestern forts (including those at Detroit and Miami—Ohio and not Florida) and encourage the Indians, once anti-English, now anti-American, to strive toward more peaceful relations with their sprawling white neighbors to the east. His majesty also agreed to allow for American trade to proceed unencumbered in the West Indies and to pay for previously seized merchant ships.

As for the Americans, they were to abstain from throwing their hat into the European ring. France, attempting to establish its own republic in Paris while simultaneously disseminating across the world its revolutionary seed, had just declared war on England. Already, that newest bastion of European liberty and terror was engaged with the continent’s other great powers—Austria and Prussia—in a bloody riff between monarchists and Girondists, apologists for kings and advocates for freedom. Complicating things was the fact that Louis XVI’s head had only just bounced from the guillotine floor a month prior.

Republicans in America bristled at the thought of forsaking an erstwhile friend; the Revolution on our own turf would’ve been lost had it not been for the likes of Rochambeau, Lafayette, and de Grasse. More than that, it was Louis Capet’s coin that kept American prospects afloat. Without his investments in behalf of the American cause, we wouldn’t have been able to wage so long and expensive a war. It’s understandable to see how our flight from France would’ve appeared a base and thankless move.

But Jay’s English interlocutors demanded it, and they weren’t done. Aside from our exclusion from the French Revolutionary War, we were to bestow upon Great Britain the honorific, “most favored nation” for purposes of trade—even if some unfair British tariffs remained in place. Beyond that, we would reconcile all pre-war debts. Those were pills that could be swallowed. Less palatable was Britain’s refusal to liberalize its restrictive contraband list (which adversely affected Franco-American commerce), to continue its impressment of British dissidents on the high seas (whose “jumping of ships” constituted no small part of the American navy), and to refuse restitution to American slave-owners whose “property” had run away. By donning red coats, blacks had acquired a liberty not yet known in their nor their fathers’ lives. Americans, namely in the South, wanted to ensure that this would only be a taste, not a freedom long to be savored.

Ultimately, Jay’s treaty did, unlike its predecessor, make its way through the congress in one piece. That doesn’t mean, however, that its namesake followed behind unscathed. From Philadelphia to New York and Baltimore to Kentucky, Jay was ridiculed, lambasted, and hung in effigy. Seemingly all across the land, his good name was brought into disrepute. No other Founding Father was regarded in such a bilious tone by so many people for so long a time.

Republicans and especially Southerners spit at the very thought of him. They thought he was the very exemplar of crown-doting traitor. He was, in their eyes, a promoter of all the aristocratic nonsense against which the Revolution was fought. Thomas Jefferson, patriarch and thought-leader of both camps—Southern and Republican—called Jay’s effort with the Brits an “infamous act” and waxed on to say that it was an “alliance with the anglomen of this country against the people of the United States”. In other words, it was treason—a charge for which only one sentence might suffice.

Few can recover from a Jeffersonian barb; a philosophic hypocrite, he was able to belittle others while dodging his own flaws. Jay was no exception, and the passage of years has offered scant improvement to the good judge’s reputation. If even considered a Founder by the exacting standards of today, he’s thought of as being somewhat of a minor type—a scintilla of a figure in a grander and nobler constellation of stars. Tossed from his high perch in the heavens up above, Jay’s become a burnt-out and forgotten mortal. The same fate may very well encounter Judge Kavanaugh; a Supreme Court justice fallen from the firmament into disrepute. Like Jay, he’ll be a figure about whom later generations know little, save his levelled reputation. He and Jay, both supreme, will always be thought low.

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