Jay’s correspondence and public papers as secretary for foreign affairs reflected his concern about the impotence of the Confederation government to shape foreign policy and the need for a central government which could act with energy and authority. As he observed to Jefferson in the summer of 1786, “Until our Affairs shall be more perfectly arranged We shall treat under Disadvantages, and therefore I am not surprised that our Negociations with Britain & Barbary are unpromising. To be respectable abroad it is necessary to be so at Home, and that will not be the Case until our public Faith acquires more Confidence, & our Governt more Strength.”1

Nevertheless Jay was hopeful that constructive results would ensue from seemingly negative circumstances. To Lafayette he adopted a cheerful tone in reporting the growing resentment among American merchants of European restraints on American trade: “good will come out of Evil—These Discontents nourish fœderal ideas—” Jay remarked.2 Even the Algerian episode was viewed optimistically. That conflict, he wrote President of Congress Richard Henry Lee, “does not strike me as a great Evil—The more we are treated ill abroad, the more we shall unite and consolidate at home.” Jay, as a strong advocate of military preparedness, initially anticipated a war with the Barbary pirates might provide “a Nursery for seamen” and lay “the Foundation for a respectable Navy”3, but his awareness of American financial weakness soon made him more cautious. Jay had long been expressing his views in correspondence with other nationalists like Robert Morris, Gouverneur Morris, John Adams, and Alexander Hamilton, and carried on a regular correspondence with Washington, enlisting his active support for constitutional reform.4

Jay’s conviction about the need for a stronger union was bolstered not only by the weak posture of America in foreign affairs but by the instability and impotence he saw at home—paper money agitation, boundary conflicts between the states, the failure of the states to expunge from their books laws preventing full compliance with the treaty with Great Britain, and the chronic problem of raising adequate federal revenue by requisition. A sense of political malaise was transformed into a recognition of crisis by the outbreak of Shays’s Rebellion in the late summer and fall of 1786. What were needed were “federal measures,” Jay reiterated in letters to his correspondents.5

The rebellion in Massachusetts aroused Jay, as it did Washington. Conciliatory measures were unlikely to produce tranquility, he predicted to Edward Rutledge on 12 December 1786, addding “Justice must have a Sword as well as a Balance.”6 On the same day he addressed a lengthier letter to Jacob Read, lamenting the price that had to be paid to bring order out of confusion, “especially when a little virtue and good Sense would procure it for us on very reasonable Terms.”7 Three weeks later, he informed William Carmichael that, although the “Commotions” in Massachusetts had not yet subsided, the “Government has manifested great Moderation, and condescended to hear the Complaints of the malcontents with much Respect.” The issue of the disturbances was still “far from certain,” he noted, while the “Inefficiency of the fœderal Government” became increasingly manifest. To amend the system of government now engaged the “serious attention of the best people in all the States,” but it was still uncertain whether the states would support efforts to form a convention.8

A sense of crisis and a burgeoning nationalism combined to shape Jay’s constitutional thinking in the months before the convening of the federal convention. With Gouverneur Morris he concurred in the view that a “national Spirit is the natural Result of National Existence.”9 To Lord Lansdowne Jay averred that “I cannot persuade myself that Providence has created such a nation, in such a Country, to remain like Dust in the Ballance of others.”10

Jay believed that through constitutional reformation America’s standing in the world could be enhanced. His strong views on centralization and the subordination of the states were shared by Hamilton, perhaps alone among the Founding Fathers. In 1785 he wrote John Lowell: “It is my first wish to see the United States assume and merit the character of one Great Nation, whose Territory is divided into different States merely for more convenient Government and the more easy and prompt Administration of Justice. just as our several States are divided into Counties and Townships for the like purposes.”11 The following year he expressed to Adams his gratification over the recent marriages of Elbridge Gerry and Rufus King to women from states other than their own. These “Intermarriages,” as he called them, “tend to assimilate the States and to promote one of the first wishes of my Heart, vizt., to see the People of America become one Nation in every Respect; for, as to the separate [state] Legislatures, I would have them considered with relation to the Confederacy in the same Light in which Counties stand to the State of which they are parts—vizt, merely as Districts to facilitate the purposes of domestic order and good Governt.—” Jay, in recognizing the depth of particularist tendencies, was more discreet than Hamilton about publicizing his views, and usually confined them to private correspondence. Nevertheless, his centralizing views would be evident in his later Supreme Court decisions, notably in Chisholm v. Georgia.12

Secondly, although Jay had been one of the earliest and most consistent advocates of augmenting the powers of Congress in the areas of taxation and the regulation of commerce, he was concerned that an omnipotent Congress might be established. To prevent such a possibility he advocated the separation of powers and checks and balances. “I have long thought,” he wrote Jefferson in 1786, “and become daily more convinced that the Construction of our fœderal Govt. is fundamentally wrong. To vest legislative judicial & executive powers in one & the same Body of Men, & that too in a Body daily changing its Members, can never be wise—In my opinion those three great Departments of Sovereignty should be forever seperated, and so distributed as to serve as checks on each other.”13 In 1787 he wrote Washington, “Let congress legislate, let others execute, let others judge.” To the executive Jay would give a veto power over the acts passed by a dual-chambered legislature.14

Thirdly, while Jay advocated a strong executive, he was not prepared to settle for a king “while other Expedients remain untried.” This commitment to republicanism was consistent with his support for popular sovereignty, which at this time manifested itself in his advocacy of a true constituent or plenipotentiary convention to be chosen by the people through state conventions and not by the state legislatures. Referring to the proposed Annapolis Convention, Jay advised Washington, “no alteration in the Government should I think be made, nor if attempted will easily take place, unless deduceable from the only Source of just authority—the People.”15 If the Constitutional Convention of 1787 did not pursue the procedural steps he outlined in this letter, the means adopted for ratifying the Constitution reflected his own principles about the locus of sovereignty.

Finally, the supremacy clause of the Constitution drew authority from the circular letter to the states adopted by Congress in April 1787 as drafted by Jay. In that resolution, printed below, the point was made that a treaty “constitutionally made, ratified and published” by Congress was immediately “binding on the whole nation” and superseded the laws of the land. No state could abridge its obligations.16