Economic analysis of law applies the tools of microeconomic theory to the analysis of legal rules and institutions. Ronald Coase [1961] and Guido Calabresi [1961] are generally identified as the seminal articles but Commons [1924] and Hale [1952] among others had brought economic thinking to the study of law in the 1910s and 1920s. Moreover, as I will elaborate below, economic analysis of law derives from several different intellectual traditions in economics.

Richard Posner [1973] brought economic analysis of law to the attention of the general legal academy; by the late 1970s, his work had provoked a vigorous controversy within the legal academy. That controversy has usually defined the debate around the philosophical foundations of economic analysis of law. Posner made two claims: (I) Common law legal rules are, in fact, efficient; and (II) Legal rules ought to be efficient. In both claims, “efficient” means maximization of the social willingness-to-pay. In the course of the controversy, two other claims were articulated in Kornhauser [1984, 1985]: (III) Legal processes select for efficient rules; and (IV) individuals respond to legal rules economically. (In this third claim, “efficient” means “Pareto efficient.”) Kornhauser identified this last, behavioral claim as central to the enterprise. A fifth claim is also implicit in the literature: (V) on the best interpretation of law, common law doctrines promote efficiency.^[1] Notice that (V) differs from (I) in important respects. According to (V), an economic interpretation fits a doctrine not because, as asserted in (I), the legal rules in fact induce efficient behavior but because the rule would induce efficient behavior within the view of the world that seems to underlie the judicial decisions. (I) is an empirical claim that requires the analyst to determine whether the actual behavior induced by legal rules is efficient; it requires knowledge of how individuals do, in fact, behave and of which behavior in the real world would, in fact, be efficient. (V) requires only knowledge of the content of judicial opinions; the analyst interprets these opinions to extract an economic model that underlies the decision. (V) might be true even though legal rules induced inefficient behavior in the real world because the announced legal rule might be efficient within the implicit model used by judges.

These five claims do not correspond directly to traditional questions in the philosophy of law. The evaluative claim (II) that legal rules ought to be efficient would, if directed to judges, qualify as a theory of adjudication, one of the central concerns of anglo-american philosophy of law. Central philosophic questions concerning the concept of law, of its normativity, and the obligation to obey the law, however, are not directly addressed. The behavioral claim as well as the evolutionary claim (III) and the positive claim (II), by contrast, concern empirical issues that philosophers of law generally neglect. Nevertheless, the controversy within the legal academy has generally regarded economic analysis of law as providing a comprehensive theory of law that challenges traditional approaches to law. Indeed, an explanation of the vehemence of the controversy should identify differences in fundamental views concerning law.

• 1. Two Strands of Thought within Economic Analysis of Law
• 2. The Concept of Law
  • 2.1 Legal Positivism and Policy Analysis in Economic Analysis of Law
  • 2.2 Towards a Social Scientific Concept of Law?
• 3. The Obligation to Obey the Law
  • 3.1 Equilibrium Selection
  • 3.2 Bounded Rationality and the Conservation of Decision Resources.
• 4. Theories of Adjudication
  • 4.1 Adjudication in Political Economy
  • 4.2 Adjudication in Policy Analysis
• 5. Evaluation of Legal Rules and Institutions
• 6. Concluding Remarks
• Bibliography
• Other Internet Resources
• Related Entries

1. Two Strands of Thought within Economic Analysis of Law 

The vast literature of economic analysis of law is not easily characterized. For purposes of this essay, I identify two distinct strands of thought within economic analysis of law. I shall call one strand policy analysis and the second strand political economy.^[2] These two strands may be differentiated along a number of dimensions.

First, policy analysis generally focuses on analysis of the effects of legal rules and institutions on outcomes. An outcome usually consists of the “objective” effects of the rule or institution on the behavior of “private” individuals. By contrast, political economy generally investigates the operation of political institutions such as courts, legislatures, the executive and administrative agencies; it usually focuses on the behavior of the public officials within those institutions. Ideally, one would trace the effects of different institutional rules and structures through the behavior of public officials to the effects on the behavior of private individuals. In practice, however, tracing effects of changes in institutional rules to final outcomes is too difficult and too uncertain. A change in the structure of legislative institutions, for example, would likely affect the content of the legislative programs enacted in the jurisdiction. To trace effects to final outcomes in terms of the behavior of private individuals would thus require the analyst to predict the set of statutes that would be enacted within various legislative structures.

Second, and related to the first, policy analysis generally assumes that public officials in general and judges in particular, are conscientious. Judges thus enforce the legal rules as they are announced, regardless of the judge’s own view of the desirability of the legal rule or its impact on her personally. Political economy, by contrast, assumes that public officials have the same motivation as private individuals; they are self-interested. In the context of adjudication, as will be elaborated below, the political economist interprets self-interested judicial behavior as decisions that promote the policy preferences of the judge.

Third, policy analysis generally adopts a welfarist stance towards evaluation of legal rules while political economy has evolved from a more contractarian tradition. Policy analysts, when evaluating legal rules ask whether that legal rule induces behavior that satisfies some welfarist criterion, usually either Pareto efficiency or (constrained) social welfare maximization.^[3] Political economy, however, has to a large extent emerged from an economic tradition, exemplified by James Buchanan,^[4] that rejects the maximization of social welfare as a criterion and seeks to evaluate political institutions on grounds of consent or, more generally, within the contractarian tradition.

Fourth, we might understand the distinction between policy analysis and political economy as a difference in the view of the instrumentalism of law. Policy analysis tends to proceed legal rule by legal rule. It asks, for example, how does a change in the standard of care affect the behavior of tortfeasors and tort victims? Or how does contracting behavior differ if the measure of damages shifts from expectation damages to reliance damages? The analyst thus imputes a purpose (usually, but not necessarily, of maximization of social welfare) to the promulgator of the legal rule. The analyst then assumes that the policymaker has chosen the legal rule that best promotes her (imputed) objective. Legal rules are then instrumental to the achievement of the posited goal; call this approach rule instrumentalism.

The political economist, by contrast, generally denies that any purpose can be attributed to the promulgator of a legal rule largely because legal rules are not promulgated by a single individual with power to control unilaterally the content of the rule. Certainly, from the perspective of political economy, legislators have no common purpose and one should not assume or expect that any statute maximizes social welfare. Legislation results from the interplay of interest groups that do not reflect all interests within society. Even if the legislature did reflect all interests within society, each interest does not have an equal (or proportionate) say in the formulation of the statute.^[5] Finally, even if each interest did play a “proportionate” role in the formulation of the statute, Arrow’s General Possibility Theorem teaches that the aggregation of interests might still not yield a coherent purpose. Political economy thus rejects rule instrumentalism.

One might attribute the rejection of rule instrumentalism within political economy to a commitment to an explanatory rather than a normative project. At the level of constitutional political economy, however, the research program usually adopts the perspective of a constitutional designer and this designer arguably has a view of law that includes institutional instrumentalism: i.e., legal institutions, rather than specific legal rules, promote the specific goals of the constitutional designer.^[6] The constitutional designer seeks a political structure that promotes her goals. The project of constitutional political economy is thus normative in nature. Indeed the normative nature of the project dominates any explanatory aim. Many within the project — see Brennan and Buchanan [1981, 1985] — argue that one ought to adopt an economic theory of behavior of public officials and private individuals even if that theory is not the best explanatory theory.

These last two differences suggest that the two strands of economic analysis of law may endorse radically different positive and normative theories of adjudication. These theories are sketched and discussed in section 5 below.

More significantly, for purposes of this entry, however, is the basic similarity between these two strands of economic analysis of law. Both of these strands adopt the standard assumption of neo-classical economics that each individual seeks to maximize her preferences. Moreover, they generally assume that each individual acts in her own self-interest, narrowly defined. This approach presents the single, greatest obstacle to the articulation of a general theory of law that confronts economic analysis: it has no room for the normative aspect of law. It is this denial of the normativity of law that accounts for the vehement resistance that economic analysis provoked within the legal academy.

2. The Concept of Law

Though commentators often characterize economic analysis of law as providing a comprehensive theory of law, its narrower ambitions become apparent when one realizes that economic analysis of law has not explicitly addressed the question “What is law?”. Indeed, economic analyses of law generally presuppose a concept of law in that the law is uncontroversially known to all actors.

As suggested in the next subsection, a straightforward legal positivism fits the concept of law implicit in policy analyses of legal rules. These analyses presume the law is known and investigate its causal consequences. The political economy project, however, suggests but has not yet systematically pursued, a distinct, social scientific approach to the concept of law. I discuss this more radical approach in the second subsection

2.1 Legal Positivism and Policy Analysis in Economic Analysis of Law

The policy analysis strand of economic analysis of law often implicitly adopts some variant of legal positivism as its understanding of the concept of law. Recall that the policy analysis treats the behavior of judges in particular (and sometimes public officials generally) differently from the behavior of those subject to the legal rules.

An economic analysis of the behavioral effects of a legal rule generally begins with the assumption that the legal rule is clearly known not only to judges and other public officials but also to those subject to the legal rule. This knowledge of private citizens might amount simply to the knowledge of what consequences follow from each possible action the agent might take. Actions that provoke a response from public officials generally, or judges in particular, have no special character to them; the citizen in her deliberations treats the consequences of rule-following or rule-breaking as she treats any other price. On Hart’s account of legal positivism, however, a private citizen may adopt this detached attitude towards legal rules. The concept of law inherent in policy analysis is thus consistent with positivism.

The typical model, however, assumes that public officials conscientiously apply the legal rule under study. The public official does not identify the rule that would best promote her own preferences and then apply (or not apply) that rule; rather she “conscientiously” applies the rule that “ought” to govern the event. Conscientious application here simply implies that the official may uncontroversially apply an identified legal rule to the events in question.^[7] This assumption might reflect a “partial equilibrium” approach to the analysis of the problem at hand. If the effects of the legal rule are the central focus of inquiry, the incentives and behavior of public officials who enforce that rule may be of less interest. The analysis of the institutional structures and processes that insure the “conscientious” application of law by public officials are left for later analysis.

Other aspects of the economic analysis of law are consistent with this positivist approach to the law. Economic analysis of social norms, for example, often provides a characterization of social norms that largely coincides with Hart’s own scheme for distinguishing social rules that are legal rules from social rules that are not. Specifically, economic analysts of law point to the decentralized character of the promulgation and enforcement of legal rules as the properties that distinguish social norms from legal rules.

2.2 Towards a Social Scientific Concept of Law?

Two positions dominate philosophical debates over the concept of law. One set of positions, advanced by legal positivists such as Raz [1994] and Coleman [2001] argues that the articulation of a concept of law is an exercise in self-understanding. They pursue their position through conceptual analysis. The second position, advanced, for example, by Dworkin [2004], Murphy [2001], and Perry [2001], contends that we should adopt the concept of law that best advances our political aims.

Though the two positions disagree on the methodology for determining the concept of law, they apparently agree that a concept of law should provide a unitary answer to three distinct questions. Two of these questions are internal to any legal practice but one is not. The first internal question — the professional question — asks: which public, collectively chosen norms ought public officials and citizens use to guide their actions? The second internal question — the adjudicatory question — asks: how ought (or, occasionally, do) judges decide cases? The third, external question — the differentiation question — asks:how does law differ from other social phenomena such as coercion, morality, and politics?

Legal positivists generally and H.L.A. Hart [1961] in particular seek to answer the third, external question. Their answer, however, relies on an answer to the professional question. Positivist identify legal practices in terms of a rule of recognition used by the legal officials to identify the set of norms that governs their (public) actions. This account elides the answer to the first, professional question with the third, differentiation question. Moreover, the answer to the professional question provides at least a partial answer to the second, adjudicatory question. After all, legal adjudication must rely at least in part on legal norms and the rule of recognition clearly demarcates legal norms from other norms and grounds of decision.

Dworkin, by contrast, begins with a theory of adjudication. He provides an account of how judges decide cases. He then generalizes this account to an account of law through the recognition that all citizens, not only judges, must apply law. Each must answer the same questions that confront a judge in resolving a case. Finally, this account distinguishes law from other phenomena because law promotes a distinct political virtue, legality or, as Dworkin terms it, integrity.

Political economy, by contrast, pursues a substantially different project. It seeks to understand the ways in which society structures its political, economic and legal institutions. This project suggests neither a conceptual nor a political concept of law but a social-scientific one that would help us understand the social world in general, the emergence and persistence of social groups over time and the causes and consequences of different governmental structures. Political economy, or a general sociology, then seeks to answer a question similar to the third, external question of differentiation posed by the philosophical discussion of the concept of law. How do we differentiate structures of social governance from other phenomena within a society such as gangs and games? Similarly, to discover cross cultural and intertemporal regularities, the analyst must identify comparable structures within different societies. That is, our criteria for differentiation must work cross culturally and intertemporally.

An understanding of society and social phenomena, of course, may not require anything akin to the concept of law at issue in the philosophical debates. Two different reasons, however, suggest some relation between the philosophical debate and the social-scientific inquiry. One should recall that Hart [1961] characterized, perhaps off-handedly, his project as one in the descriptive sociology of law. Such a sociological project presumably requires a social scientific concept of law. Moreover, once one had articulated a viable and useful set of social scientific concepts one might ask what relation they bear to the issues at the center of the philosophical inquiries of the value of legality and of articulating the criterion that distinguishes legal from other grounds of decision.

Adopting Hart’s discussion as a starting point, I shall in the rest of this subsection, sketch a social-scientific concept of a governance structure and suggest how it might relate both to the project of political economy and to the philosophical debate over the concept of law. (Kornhauser [2004] provides a more extended account.)

One of Hart’s rhetorical devices provides a useful starting point for the development of a social scientific concept. To introduce the concept of a secondary rule, Hart [1961 recounts of a fable concerning the emergence of a legal system in a small community. He suggests that a small, homogeneous, stable and closely knit society requires no differentiated structures of governance. These structures emerge to resolve problems that arise in societies that are large, heterogeneous, or subject to environmental uncertainty. Though Hart identifies only three such problems, I shall identify four distinct functions that might be distributed across societal structures: (1) the characterization of socially acceptable (or unacceptable) behavior, a task the importance of which grows as the rate of change in society increases. (2) Policing of behavior to identify likely instances of deviant behavior; more anonymous societies may require more institutionalized policing; (3) Definitive adjudication of non-conformity to social norms. And (4) Sanctioning of deviant behavior.

Governance within a society requires that the society somehow accomplish each of these four tasks. A society might do so in a number of different ways. A governance structures is the set of institutional structures within a society that address one or more of the four problems of adaptation, detection, application, and sanction that are the central elements of governance. An institutional structure is a decision-making protocol that specifies procedures relevant to the resolution of one or more of the problems of adaptation, detection, application, and sanction. Clear understanding requires a distinction here between institutional structures, realized institutions, and functioning institutions. This distinction parallels the distinction between game forms, games, and plays of a game in the theory of games. As noted before, an institutional structure is simply the basic rules or protocol for governance; a realized institution is an institutional structure situated in a given society and populated by particular individuals; a functioning institution is a realized institution as it operates in a society in actual conditions.

A crude taxonomy of governance structures might distinguish them along two dimensions: the degree of institutional differentiation in the structure and the mechanism of internal, “bureaucratic” control.

A governance structure may be more or less differentiated from other institutions (such as those governing exchange or reproduction) in a society.. Hart considered two extremes: a simple society with no differentiation of governance from other institutions and modern, municipal legal systems that have distinct institutions for adapatation, policing, adjudication, and sanctioning. Indeed, a society such as the United States has multiple legislative, executive and judicial institutions that relate in complex ways.

Hart similarly contrasted two motivations for compliance with law or legal obligations: incentives that rely on the self-interest of individuals and acceptance of rules as guides to action. For Hart, law required that a core set of public officials had to accept the rule of recognition as an authoritative guide to action.

Political economy, by contrast, aims to explain all legal phenomena in terms of the self-interest of agents. On this account, of course, legal rules do not play any role in the explanation of behavior of either private individuals or public officials. An individual faced with a choice considers the costs and benefits that each option presents to her. These costs and benefits will include "legal costs and benefits" but these costs and benefits are not determined by rules; they are the result of the incentives that private and public officials face. Rules are only rules of thumb that express the response of average individuals under normal circumstances to particular events. Which rules of thumb are used, of course, may greatly affect the social equilibrium achieved in a particular jurisdiction.

Political economy thus seeks a concept of governance that relies only on incentives; it consequently denies the existence of legal systems in Hart's sense. It might nonetheless acknowledge a different conception of law. Some political economists, for example, suggest that legality in the sense of an impartial "rule of law" promotes economic growth. The political economist then might identify law or legal systems with governance structures that realize such a rule of law (in given circumstances).

3. The Obligation to Obey the Law

In the previous section, I discussed the role that legal rules played in the practical deliberations of private agents. On that account, the sanctions imposed for non-compliance with the rule provided agents with prudential reasons to conform the legal rule. Independent of those sanctions, however, the agent had no reason to obey the law. I argued further that, within the political economy strand of economic analysis of law, public officials had only prudential reasons for conformity to their public obligations. From the perspective of the last section, then, no one has a general obligation to obey the law.

In this section, I suggest that economic analysis nonetheless offers a structure within which one may articulate prudential accounts for a general obligation to obey the law.

3.1 Equilibrium Selection

Legal positivism grounds law in social practice. Its difficulty in explaining the normativity of law emerges directly from this attention to the social nature of law; social facts themselves, it would seem, cannot give rise to any obligation. Various authors (e.g., Postema [1982]) have tried to resolve this conundrum through an analysis of convention as a coordination game.

In a coordination game, the interests of all players are coincident; each player ranks the possible outcomes of the game identically. The difficulty for the players arises because they do not know which of the multiple equilibria of the game to play. Consider, for example, an island in a pristine legal state-there are no legal rules. The individuals must decide on which side of the road to drive. Formulated as a game, each individual has two strategies: drive on the right (R) and drive on the left (L). Each has an identical evaluation of the outcomes of the strategy choices of everyone. Each ranks the outcomes in which everyone chooses the same side of the road — all R or all L — highest and each ranks the outcome in which half choose R and half choose L worst.^[10] This game has two equilibria: all choose R and all choose L. Unfortunately, knowledge that two equilibria exist does not help agents determine which strategy to adopt, or, alternatively which equilibrium to play.

Announcement of a legal rule in this context can coordinate the players’ actions. It gives each a reason to choose as the rule dictates if it affects the individual’s beliefs concerning which strategy the other agents will adopt. On this account, the social fact that individuals accept the law provides each individual with a reason to act. This reason is independent of any sanction that the law might impose for non-compliance. Moreover, this reason is prudential in that it best promotes the agent’s own welfare and moral, in the sense that it best promotes the well-being of all. This coincidence results from the coincidence of interests of all agents.

Law understood as a coordination device at best provides a partial account of the grounds of normativity. Obviously, many if not most laws concern conduct in which the interests of agents do not coincide. Coordination cannot provide agents with a reason to act in this case. Moreover, it is not clear that the acceptance of a rule of recognition by public officials constitutes a coordination game. Consider a specific judge J. That judge may think rule R is the best rule of recognition. Consistent with that belief she considers a world in which all judges accept R as best. Nothing guarantees that a second judge J′ consider R best. He may think R′ better. J′ will also believe that a world in which all judges accept R′ is best. But it is not obvious that J must consider a world in which all accept R′ as preferable to one in which a majority accept R.

Finally, note that the argument is incomplete. It requires that individuals have sufficiently common knowledge of the law and that others know the law for it to have any plausibility. Even under these circumstances, however, the argument still requires that each infer from this common knowledge that each individual will comply.

3.2 Bounded Rationality and the Conservation of Decision Resources.

In the simplest model in which such an account exists, agents face a cost to deliberation. The more complex the deliberative calculation, the more costs the agent incurs. When the marginal cost of deliberation is sufficiently high, the agent might do better to follow a rule of thumb that quickly, and cheaply, identifies a good but not optimal, action.^[11] If the expected benefit from choosing the optimal action (relative to the good action) is less than the cost, it is prudent for the agent to adopt the rule of thumb. More sophisticated accounts of an economic rationale for rule-following rely on more complex models of bounded rationality.

To complete an economic account of the authority of law requires that one explain why the agent should consider legal rules as the relevant rules to which she should defer. One might argue that those who promulgate legal rules have special expertise that makes it likely that they will enact rules that are better than the rules that the agent herself would formulate. For some legal rules-technical rules concerning health and safety promulgated by administrative agencies-this argument may have merit. After all the decision at issue depends on a mass of technical data that is not easily assimilable or manipulable. For many other legal rules promulgated by legislatures and courts, however, this argument may not apply.

Several other features of this argument merit attention. First, it parallels the argument for authority offered by Joseph Raz.^[12] Moreover, as in Raz’s argument, authority is specific to legal rules rather than to law in general. An agent might believe the law more expert than she with respect to some decisions than to others. In fact agents with different expertise themselves would find different legal rules authoritative.

Second, on this account of authority, the legal rule affects the agent’s deliberation not because of the sanction for non-compliance-as in the view of legal rules as incentives—but because compliance with the legal rule even in the absence of a sanction is in the agent’s interest. This feature of the account of authority conforms to notions, developed further below, of the way in which rules enter the deliberative process. But this feature also limits the applicability of the account to those legal rules that bear on the agent’s immediate interest. Many legal rules direct the agent to adopt actions that raise her own costs; in the absence of a sanction for non-compliance her own interest would dictate non-compliance. So, for example, a rule requiring that an agent adopt due care in certain activities may raise the agent’s costs.^[13]

The prudential account of authority outlined above primarily addresses private individuals. One might ask the parallel question concerning the obligation to obey the law of public officials. In some respects, this question has greater significance than the question concerning private individuals because many acknowledge that the motivation of private individuals to obey the law is usually prudential, the desire to avoid sanction. Moreover, on some jurisprudential accounts, most notably H.L.A. Hart’s version of legal positivism, the attitudes and behavior of public officials determine the existence and nature of law.

The economic account of authority, however, does not provide a compelling explanation of official behavior. Consider how the economic account applies to public officials. The relevant obligations here are the official obligations of the individual: the judicial obligation to decide cases according to the dictates of stare decisis and other obligatory practices; the executive official’s obligation to apply the law. Two difficulties arise immediately. How is compliance with these official obligations in the individual’s interest? Why must the agent follow a rule rather than optimize in each instance? This second difficulty is less troublesome than the first; Ronald Heiner [1986], for example, has offered a prudential account, grounded in bounded rationality, of the judicial obligation to adhere to stare decisis.^[14]

One might attempt to resolve the first difficulty concerning the agent’s interest by arguing that compliance with official obligation is in the individual’s interest because she desires to maintain her employment. But this explanation rests on an incentive argument. The sanction of dismissal induces compliance rather than a normative motivation to comply with one’s obligation; it is another prudential account. The prudential account of authority thus fails to overcome this first difficulty. It is not clear then that the prudential account of authority can ground a positivist conception of law.

4. Theories of Adjudication

4.1 Adjudication in Political Economy

As noted earlier the political economy strand of economic analysis of law itself contains two strands that are in tension with each other. On the one hand, the political economy strand seeks only to explain legal phenomena rather than to prescribe either the structure of legal institutions nor the content of particular legal rules. One might find within this strand of political economy a positive theory of adjudication but not a normative theory. Indeed, the positive theory advanced argues that judges seek to promote their interests. Usually, these interests are defined as policy interests, that is, an interest to promote particular policies.

The second strand of political economy, constitutional political economy, does have normative aims. It assumes that political actors will act in a self-interested fashionwithin existing political institutions but that agents will act more impartially in the design of the political institutions within which they will work.^[15] A normative theory of adjudication does emerge from this strand of political economy but it differs significantly from the normative theory endorsed by the policy analysis strand of economic analysis of law. For constitutional political economy, a normative theory of adjudication must be a structural one; it should describe the structure of adjudication. The theory thus cannot dictate directly judicial motivation because, according to political economy, judges will always act self-interestedly. Adjudicative institutions, however, can be designed to align better the interests of judges with the interests of the designer of the constitution.

In 1975, Landes and Posner offered a justification for the independence of the judiciary that is often understood as a normative theory of adjudication within the tradition of constitutional political economy. On the account of Landes and Posner, an independent judiciary serves the interest of legislators who seek to impose their policies on the jurisdiction for periods that exceed the length of their majority in the legislature. As a consequence, they find it in their interest to have the judiciary enforce the original bargain struck in all legislation.

This argument contains a normative theory of statutory interpretation. Judges ought to enforce the bargains reached by the legislature that enacted the statute. On this account, a judge ignores the views of the current legislative majority. She also eschews interpretation of the statute in terms of her own policy preferences.

One should note that, from the perspective of constitutional political economy, the argument of Landes and Posner is incomplete. They ground their theory of judicial independence in the interests of legislators. The interests of legislators within extant legislative institutions may not coincide with the interests of the constitutional designer.

4.2 Adjudication in Policy Analysis

A normative theory of adjudication was among the earliest claims advanced in the economic analysis of law. Posner [1973, 1979, 1980, 1985, 1990, 1995] asserted claim II in the introduction: the common law ought to be efficient. He interpreted efficiency as “wealth maximization” but then interpreted wealth maximization as “willingness to pay.” This interpretive stance yielded an argument that judges in (common law) cases ought to choose the legal rule that maximized the ratio of benefits to costs as measured by the sum of individual willing nesses to pay.

Posner’s claim evoked great controversy in the late 1970s and early 1980s. (See, e.g., Symposium [1980]). Twenty years later, Kaplow and Shavell [2001] revived and revised Posner’s claim. The revision had two components. First, and most important, they chose welfarism generally rather than cost-benefit analysis in particular as the normative basis for adjudication. Welfarism requires that evaluation depend solely on the well-being of individuals. Cost-benefit analysis is thus a form of welfarist evaluation; but Kaplow and Shavell’s argument allows them to avoid various criticisms of cost-benefit analysis. Second, Kaplow and Shavell do not argue primarily for a normative theory of adjudication. Rather they contend that evaluation of legal rules and institutions by scholars ought to be welfarist. They suggest however that judges by and large have the same evaluative obligation as the third party analyst.

4.21 A brief critique of cost-benefit analysis as a theory of adjudication

Cost-benefit analysis attempts to implement a Kaldor-Hicks evaluative criterion. According to the Kaldor-Hicks criterion, a distribution of goods (broadly understood) Xis superior to a distribution of goods Y if and only if there exists a third distribution of goods Z such that (a) Z is a redistribution of the distribution X; and (b) Z is Pareto preferred to Y.^[16]

Cost-benefit analysis proceeds in two steps. First, for each individual, it identifies a particular representation of the individual’s ordinal ranking of the options open to the policy maker. Second, it aggregates these representations of each individual’s preferences into a social ranking.

The first step is unproblematic. Consider agent K. K has preferences over states of the world. A representation of these preferences assigns a number to each state of the world such that K prefers state X to state Y if and only if the number assigned to state X is higher than the number assigned to state Y. Cost-benefit analysis assigns as numbers the agent’s willingness to pay. This procedure thus links the range of numbers that the agent may assign to the agent’s wealth as willingness to pay is defined in part in terms of the agent’s ability to pay.^[17] The procedure for assigning numbers on the basis of an individual’s willingness to pay in fact yields a representation of that agent’s preferences.

The second step of cost-benefit analysis is more problematic. To aggregates the individual willingnesses to pay, cost-benefit analysis simply sums the individual willingnesses to pay. One can see immediately several difficulties with this procedure. First, each ranking is ordinal; the numbers have no significance beyond the order. IfK assigns a number 2 to state X, a number 4 to state Y and a number 16 to state Z, we cannot conclude anything about K‘s intensity of preference; she does not prefer Zto Y six times as much as she prefers Y to X. It therefore seems odd that one can add agent K‘s willingness to pay to agent J’s willingness to pay.

Second, cost-benefit analysis adopts a method of interpersonal comparisons of well-being that is particularly unconvincing. Interpersonal comparison of well-being requires that one identify the appropriate representation of each individual’s preference ordering and compare those representations. Cost-benefit analysis however does not identify representations on moral or political grounds; rather it chooses the representations that contingently arise from the actual distribution of wealth and income in the society.^[18] If Tom is poor while Bill is wealthy, it is unclear why the representations of the well-being of each that derives from willingness to pay provide interpersonally comparable measures. Equally, if Tom and Bill are equally wealthy but Tom is disabled and Bill is not, the willingness to pay of each may still not be interpersonally comparable.

4.22 A Structural Critique of Welfarist theories of adjudication

One might construct a normative theory of adjudication at either of two levels. First, one might take as given the general structure of adjudication within a particular judicial system and ask what obligations the judges within that system ought to have. Second, one might more fundamentally design the judicial system from scratch. On this second account, the institutional environment in which judges act as well as the obligations of judges within that institutional environment would be subject to evaluation.

Most normative theories of adjudication are of the first type. They take the institutional structure in which adjudication occurs largely as given and then identify the obligations of judges within that system. Phrased differently, normative theories of adjudication are interpretive of an ongoing practice rather than efforts to design a practice from scratch. Welfarist theories of adjudication face several difficulties when understood as interpretive theories of existing (common law) practice.^[19]

First, the structure of adjudication does not generally provide adequate or appropriate information for the selection of rules that maximize social welfare. Adjudication in a common law system usually focuses on a past transaction between particular parties. This transaction may not be typical of transactions that were litigated; it certainly will not be typical of the entire population of transactions that a rule would govern. Under a given rule, for instance, the set of transactions that do not lead to litigation are likely to differ systematically from the set of transactions that do give rise to litigation. Equally important, different legal rules are apt to generate different sets of transactions. The current structure of adjudication does not provide any information that would help a decision maker assess these differences across potential legal rules.

Second, the selection procedure for judges does not identify individuals with the appropriate training and background to make accurate calculations of social welfare. Judges in common law countries have generally not been trained systematically in economics and statistics, two disciplines necessary (but not sufficient) for the determination of social welfare under alternative legal rules.

Third, and related, judges usually face severe constraints in the set of legal rules they may consider in any adjudication. When confronted by a tort case, for example, the court usually considers a limited number of legal regimes; perhaps it will reformulate the standard of care or shift from a regime of negligence to one of strict liability. A court, however, is unlikely to adopt a complex scheme of no-fault insurance or to impose a different insurance scheme even though these more radical transformations of social institutions would provide higher overall welfare.

5. Evaluation of Legal Rules and Institutions

The evaluative tradition in economics is resolutely welfarist. That tradition extends to the policy analysis branch of economic analysis of law. In the prior section, I considered the manifestation of this tradition in the advocacy of cost-benefit analysis as a normative theory of adjudication. In this section, I consider arguments for welfarism as an evaluative standard against which to appraise legal rules and institutions. Welfarism here is not advocated as a theory of adjudication. Consequently, the structural critique of section 5.22 does not apply. The argument here thus lies almost wholly on philosophic territory.

The argument for welfarism as the evaluative criterion for legal rules and institutions has two key elements.^[20] The first identifies an individual’s well-being with her preferences. Thus, an individual K has greater well-being in state X than in state Y, if and only if she prefers state X to state Y. The second, key element of the argument welfarism is a strategy of incorporation. The strategy of incorporation includes within the agent’s preference ordering anything that the agent considers relevant to her decisions. The individual’s preferences thus correspond to her all-things-considered judgments; that is, K prefers state X to state Y if and only if K believes, all things considered, that state X is better than (or ought to be promoted rather than) state B. K’s all-things-considered judgments, of course, will included many considerations that, in ordinary language, are not usually considered as in K‘s self-interest or even as contributing to her well-being. So, for example, her all-things-considered judgments will incorporate concerns for the well-being of others as well as considerations of justice and deontological constraints on action.

The success of this argument for welfarism depends on the success of this strategy of incorporation of every reason for action into an agent’s preference ordering. I shall raise here two objections to this strategy of incorporation. First, the resulting extended preference ordering does not correspond to a concept of well-being that is morally compelling because not all concerns incorporated into the individual’s preferences play the appropriate role in her deliberations. Second, aggregation of these extended preference orderings does not treat the moral reasons incorporated in the extended preference ordering appropriately.

A complete argument that the extended preference ordering does not correspond to a morally compelling conception of well-being would require articulation of the concept of well-being, a task well beyond the scope of this entry. For purposes of this critique, it may suffice to note the varying levels of choice at which various concerns apply. The strategy of incorporation requires that one incorporate a moral concern into an individual’s extended preference ordering when that moral concern motivates an individual’s choices. While it may be the case that the individual in fact prefers a world in which the given moral concern motivates to one in which it does not, the preference for the moral concern arises in the choice of institutional or social arrangements not in the choice within a given set of institutions or social arrangements. The choice within the given institutions may reduce the agent’s well-being rather than promote it.

Turn now to the second objection. Even if extended preference orderings do not correspond to well-being, a defender of welfarism might argue that it is appropriate to aggregate these orderings rather than ones that capture the conception of well-being. This argument, however, misunderstands the distinction between judgment and preference.^[21] Many of the concerns that enter into an agent’s all-things-considered decisions are judgments rather than preferences. Appropriate techniques of aggregation of judgment differ from those of aggregation of preferences.

Crudely, preference differs from judgment in two respect. First, an expression of preference is personal. The individual expresses a preference that is valid for her; she makes no claim about the validity of this preference for others. Liza’s statement that she prefers to be a jazz musician to a lawyer makes no claims concerning Henry’s preferred profession. Judgments generally have a greater scope. If Liza claims that jazz musicians contribute more to social welfare than lawyers, she is not expressing a preference that this be so; she asserts that it is true for everyone (at least within current social arrangements).

Second, an individual is sovereign over her own preferences but not over her judgments. An individual has final say over her preferences but not over her judgments. Henry’s assertion that he prefers to be a lawyer rather than a jazz musician provides no reason for Liza to reconsider her statement that she prefers to be a jazz musician. If, however, Henry asserts that lawyers contribute more to social welfare than jazz musicians, Liza does have reason to reconsider her contrary judgment. Only one of them can be correct.^[22]

Many of the concerns that, under the strategy of incorporation, are included in an individual’s extended preference ordering sound in judgment rather than preference. Concerns for distributive justice, for example, reflect moral judgments and not expressions of preference.^[23] Similarly, respect for deontological constraints on action sound in judgment not preference. Moreover, these moral judgments depend on proof and argument.

The distinction between preference and judgment points to several difficulties with this argument for welfarism . First, to the extent that individual well-being is understood subjectively, it is likely to be a matter of preference not judgment. Yet the extended preference orderings that constitute the domain of the social welfare function include judgments; this conflation of judgment and preferences provides an argument in addition to the one above that these orderings are not equivalent to well-being.

Second, the methods of aggregation of judgment are likely to differ from the methods of aggregation of preference. Rational aggregation of judgments is likely to parallel rational aggregation of belief. When individuals have different beliefs, one does not generally resolve the conflict through some simple process of aggregation.^[24] Rather, the individuals pool information; then each individual updates her beliefs in light of the new information. Ideally, this process leads to convergence of belief. Similarly, the process of moral argument ideally leads to the revision of individual moral judgments.

6. Concluding Remarks

Though the controversy over economic analysis of law has waned, its project continues to disquiet many scholars who study legal phenomena. The prior discussion identifies two distinct sources for that disquiet.

Many legal scholars object to the normative theory of adjudication advanced by policy analysts. These scholars generally reject the welfarism to which policy analysis is committed. The prior discussion suggests, however, that a rejection of welfarism as a moral theory is neither necessary nor sufficient for the rejection of the normative theory of adjudication advanced by policy analysts.

The methodology of economic analysis of law poses a more significant challenge to traditional accounts of law. Economic analysis of law provokes disquiet because the model of self-interested maximization of preferences does not admit a concept of normativity but explaining the normativity of law is a central pre-occupation of philosophy of law. The logic of this commitment to self-interested maximization of preferences would appear to lead to a denial of the need for a distinct concept of law in the explanation and evaluation of social institutions.

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Source: http://plato.stanford.edu/entries/legal-econanalysis/

Whatever happened to compassionate conservatism? Despite the Bush administration’s focus on the war against terror, the idea didn’t disappear. But as White House thinking developed, it got incorporated into a larger, more profound domestic theory. Yes, we need a safety net, the current view seems to go; but we don’t need a European-style welfare state. What’s called for is the traditional American opportunity society, as much a boon to the poor as to everyone else.

Implicit in compassionate conservatism was an epochal paradigm shift that is now all but explicit. Taken together, compassionate conservatism’s elements added up to a sweeping rejection of liberal orthodoxy about how to help the poor, which a half-century’s worth of experience had discredited. If you want to help the poor, compassionate conservatives argued, liberate them from dependency through welfare reform, free their communities from criminal anarchy through activist policing, give them the education they need to succeed in a modern economy by holding their schools accountable, and let them enjoy the rewards of work by taxing their modest wages lightly or not at all. For the worst off—those hampered by addiction or alcohol or faulty socialization—let the government pay private organizations, especially religious ones, to help. Such people need a change of heart to solve their problems, the president himself deeply believed; and while a clergyman or a therapist might help them, a bureaucrat couldn’t.

In fact, a welfare-department worker might do harm even beyond providing money to fuel self-destructive behavior. Rather than understanding that an inner transformation is what such a person needs, the welfare worker might well try to convince him that his plight stems from an unjust economy, which provides him insufficient opportunity, or even purposely keeps a fraction of the population unemployed, so as to hold down the wages of those who are working. His problem thus is the result of vast, impersonal forces of which he is the victim (and doubly the victim if he is black in supposedly racist America). In other words—and this is the theory that undergirded the War on Poverty and has persisted to this day on the political Left, from Barbara Ehrenreich to John Edwards—capitalism is inherently defective and unjust, and therefore we need a welfare state to mitigate its harshness.

President Bush entered the White House with no patience for such a view, or for the psychological theory propounded by the War on Poverty’s originators: that when technological change makes some workers’ skills obsolete, they become so depressed, demoralized, and dysfunctional that they can’t take advantage of opportunity when it does appear. What Bush understood was that the War on Poverty created its own form of depression, as women long dependent on welfare became so convinced of their own inferiority and incompetence that they could hardly present themselves without trembling and stammering at job interviews or conferences with their children’s teachers. And as a far worse psychological consequence, the sense of victimization and of entitlement to government support that the War on Poverty fostered created a corrosive self-pity and resentment among the children of its beneficiaries, and among their children’s children, for generations. The self-pity led to drink and drugs; the resentment to crime and violence; and both together to a perpetuation of irresponsibility, dysfunction, and failure over the generations. The first-line antidote, in Bush’s view, would be the intervention of a counselor, preferably faith-based.

But if there was a permanent class of poor, the cause was not a failure of capitalism but of the War on Poverty, which reinforced such self-defeating attitudes. Clearly, as the administration understood, American capitalism was a dynamo of job creation and opportunity. Bush’s generation, after all, had seen the astonishing restructuring of U.S. industry in the 1980s, when, in response to foreign competition, companies slimmed down, boosted productivity and quality, and kept hold of their markets and prosperity; while their laid-off workers didn’t permanently succumb to paralyzing depression but instead found—or created—new jobs. Moreover, as a Texan, Bush had seen waves of Mexican immigrants flooding in to take jobs no one previously knew existed—still more evidence that there was no crisis of opportunity—while in the cities, a new wave of immigrant-run greengroceries, nail salons, construction firms, and even commercial fish farms in Bronx basements gave the lie to the failure-of-capitalism theory. And on top of all that, the overwhelming success of the 1996 welfare-reform act, which became ever clearer during Bush’s first term, utterly exploded the idea that the hard-core poor were not working because of a lack of jobs. Welfare mothers crowded into the workforce; the rolls dropped by roughly half. Not only were their children not freezing to death on the streets by the thousands, as even so wise an observer as the late Senator Moynihan had predicted they would, but in fact child poverty reached its lowest point ever three years after welfare reform. Lack of opportunity? Hardly.

The War on Poverty rests on the false premise that capitalism creates a permanent class of poor, and War on Poverty attitudes have a deeply harmful effect on those entrammeled in America’s current welfare state: so the second Bush term is bringing the War on Poverty—demonstrably a cataclysmic mistake—to an end. A glance at the administration’s recent budget shows the ongoing dismantling of antipoverty programs: a sharp reduction in the Community Development Block Grant, the main conduit for funneling federal money to cities, whose failure and corruption Steven Malanga discusses on page 48; a reduction in HUD money for Section 8 subsidized housing vouchers, which abet the formation of dysfunctional single-parent families and destabilize struggling, respectable working-class neighborhoods, as Howard Husock has chronicled in these pages; and the shrinkage of ever-expanding Medicaid. Welfare is now temporary assistance in adversity, not a permanent way of life; and we can expect welfare reform’s conditions to become even stricter when the 1996 act finally gets reauthorized. In the administration, a gestalt switch has occurred, so that what it once perceived as the background now stands out as the foreground: as White House director of strategic initiatives Peter Wehner puts it, “Government’s default position should not be to view citizens as wards of the state, but rather as responsible and independent, self-sufficient and upright.”

Supporters of the old paradigm are naturally apoplectic over such a transformation; and their outrage reveals just how sweeping a welfare state they really champion. As Georgetown law prof Peter Edelman, who resigned from the Clinton administration to protest the president’s signing of the 1996 welfare reform, told columnist William Raspberry: “For virtually all of my adulthood, America has had a bipartisan agreement that we ought to provide some basic framework of programs and policies that provide a safety net, not just for the poor but for a large portion of the American people who need help to manage.”

How large a portion? Well, figures Raspberry, “the lower third of the economy.” Think about that: nearly 100 million Americans as clients of the federal government. This is not temporary assistance but a European-style “social-democratic” (that is, socialist) welfare state. It is the political culture of America’s old cities, with their hordes of government-supported clients, employees, contractors, and retirees—a culture that has produced slow or negative job and population growth. And this is exactly what the Bush administration does not want.

The failure of the European model—explicitly based on the belief that free-market capitalism is dangerous and needs to be tied down with a thousand trammels like Gulliver—is one of the signal facts of our era, along with the failure of communism. In Europe, the idea that capitalism creates a permanently jobless class has become a self-fulfilling prophecy, as strict regulation and the high taxes needed to pay lavish welfare and unemployment benefits have resulted in half the U.S. rate of job creation, twice the rate of unemployment, and thus much less opportunity. The permanently unemployed, who often go straight from school to welfare, are more sullenly alienated than any Gauloise-smoking existentialist could ever have dreamed, and no wonder: for they have no social function, except to be kept, like gerbils. They lack not just the discipline of work but the self-realization and self-respect that come from doing something productive, even if the result is only to put bread on your family’s table.

Crime, hooliganism, and obscene drunkenness reign, on a scale that rivals the worst moments of the pre-reform American underclass—and that’s without even mentioning the related problems in Europe’s vast immigrant populations. Meanwhile retirees, often young and vigorous, go off for government-funded visits to health spas or even—as in one notorious recent German case—live in Miami at taxpayer expense. Even if this were morally sustainable, it is not economically so, as even Gerhard Schröder has learned. But with so many voters on the dole, in one way or another, or employed by the government to administer the vast welfare-state apparatus, who knows whether reform or collapse will occur first?

It’s in this context that we should understand President Bush’s campaign for Social Security reform. It is part of the large and coherent worldview that has evolved out of compassionate conservatism. What has always made America exceptional is limitless opportunity for everyone, at all levels—the chance to find a job, to advance up the ladder as you prove yourself, and to prosper. The poor especially have flocked to these shores for just this chance, and have proved the promise true. A giant welfare state—whether its clients are the poor, the “lower third of the economy,” or a cohort of government- pensioned retirees who almost outnumber the taxpaying workers who support them—hampers the job creation that makes all this opportunity possible. Bush is determined to keep the dynamism vibrant and to encourage and empower the poor to take part in it, rather than to suggest that they are unequal to the task.

The Europeans call this “cowboy capitalism.” If so, then yee-ha!

Source: http://www.city-journal.org/html/15_2_compassionate.html

Two April days threw a clarifying light on the state of race in America. On the 11th, North Carolina’s attorney general exonerated three white Duke students of the rape charges that a black stripper had lodged with much press fanfare a year earlier. The next day, CBS fired shock jock Don Imus for calling black Rutgers women’s basketball players “nappy-headed hos.” Between them, these events suggest an explanation for America’s most vexed social question: in a country whose chief domestic imperative for 50 years has been ending racism and righting long-standing wrongs against blacks—with such success that we now have an expanding black middle class, a black secretary of state, black CEOs of three top corporations, a black Supreme Court justice, and a serious black presidential candidate—how can there still exist a large black urban underclass imprisoned in poverty, welfare dependency, school failure, nonwork, and crime? How even today can more black young men be entangled in the criminal-justice system than graduate from college? How can close to 70 percent of black children be born into single-mother families, which (almost all experts agree) prepare kids for success less well than two-parent families?

The legacy of slavery and racism isn’t the reason, economist Thomas Sowell has long argued. That legacy didn’t stop blacks from raising themselves up after Emancipation. By World War I, Sowell’s data show, northern blacks scored higher on armed-forces tests than southern whites. After World War II and the GI Bill, black education and income levels rose sharply. It was only in the mid-1960s that a century of black progress seemed to make a sudden U-turn, a reversal that long-past events didn’t cause. Beginning around 1964, the rates of black high school graduation, workforce participation, crime, illegitimacy, and drug use all turned sharply in the wrong direction. While many blacks continued to move forward, a sizable minority solidified into an underclass, defined by self-destructive behavior that all but guaranteed failure.

What was going on in the mid-sixties that could explain such a startling development? Political scientist Charles Murray gave the first answer to that question: welfare benefits sharply rose just at that moment. Offering more purchasing power than a minimum-wage job, the dole, he argued, provided an economic incentive for women to have out-of-wedlock babies and for their boyfriends to live off their welfare payments, too.

A decade after Murray, I suggested that, though welfare was part of the answer, the real explanation was larger. It was cultural, not economic. Begun by the elites, vast changes reshaped mainstream attitudes in the 1960s. Sex became fine outside marriage, and illegitimacy lost its stigma. Drugs were cool; social authority and tradition weren’t. America was deemed a racist, unjust society that victimized and impoverished blacks, who could rarely better their condition and who therefore deserved generous welfare benefits as reparations for past and present oppression. If blacks committed crime, the system that drove them to it, out of poverty or as an act of protest, was at fault: we shouldn’t blame the victim, as the saying went—meaning the poor criminal, not his prey. Since people shape their actions according to the ideas and beliefs they hold, when these new attitudes reached the inner cities, what could result but an epidemic of social dysfunction?

What the Duke “rape” case shows is that these attitudes about race have hardened into dogma among elites. Otherwise, who would believe for long the fishy charges of accuser Crystal Mangum, then 27, who kept changing her story about how many Duke students had assaulted her, what they looked like, and what they had done? Hired as a stripper for a lacrosse-team party (where she turned up “passed-out drunk,” a cop on the scene reported), the unmarried mother of two claimed that she’d been raped, beaten, robbed, and threatened with violation with a broomstick, by three or five or maybe even 20 members of the Duke team, though she picked out different young men from different arrays of police photos. Or maybe she hadn’t been raped but only assaulted—or perhaps suspended in midair and used sexually by three young men at once, in a tiny bathroom. State attorney general Roy Cooper understandably suspected that Mangum might have had a tenuous grasp on reality. “She may actually believe the many different stories that she has been telling,” the AG remarked, in declaring the students innocent. “You can’t piece it together.”

It’s clear why Durham DA Michael Nifong, facing a desperate reelection fight, would at first have viewed the case as a political godsend in a 40 percent black district. Here was his chance to step forth as champion of a black victim of privileged whites. But early on, he learned that, yes, his hired testing lab had found DNA from several men on Mangum—but none of it belonged to the accused. He let the lab withhold that fact for nine long months. No wonder he was disbarred and resigned in June.

But what led the Duke faculty and officials, along with the mainstream media, to treat this cock-and-bull story as gospel to the bitter end? Why did the university promptly suspend the three students, cancel the rest of the lacrosse season, and force out the coach? Why did president Richard Brodhead say, just after police arrested the trio, “If our students did what is alleged, it is appalling to the worst degree. If they didn’t do it, whatever they did is bad enough”? As a lacrosse player recently told the student newspaper: “It was unfortunate that some of the subsequent actions that were taken by the University didn’t really imply a presumption of innocence.”

After all, this isn’t even the first such hoax. It’s like a rerun of a notorious farce of two decades ago, when 15-year-old Tawana Brawley turned up in a black plastic garbage bag, her clothes torn, her body smeared with dog feces and scrawled in charcoal with a racial slur. Her charge that white men, including a county prosecutor, had done this after raping her proved sheer falsehood, perhaps cooked up to explain her four-day disappearance to her hot-tempered stepfather. As her spokesman, Al Sharpton first won national notoriety by stirring up the case into a huge media circus; he subsequently had to pay $65,000 for slandering the county prosecutor.

Part of what a university should teach is the critical reasoning power to analyze situations like these, with claims and counterclaims, and determine what actually happened. But the last few decades’ transformation of the academic worldview unfitted Duke administrators and faculty from making such a judgment. Like the scientists Swift’s Gulliver met in the kingdom of Laputa, they have one eye that looks inward at themselves and one eye that peers outward toward the farthest heavens, leaving no organ to perceive the reality right in front of their noses—the reality that, as George Orwell says, takes a constant struggle to see through the fog of orthodoxy.

Even for the clear-sighted, that reality takes an effort to discern, because we see the world not in an unmediated way but through the prism of our culture (and even of our class or subgroup), which can both clarify and distort. In the act of observing, we also interpret and judge, according to the terms of our culture’s values, morals, and manners. Our power of reason has limits, so that we have to depend on aid from education, tradition, belief, on what Edmund Burke called “prejudice”—again, all products of culture, built up from the inherited wisdom and experience and sometimes superstition of mankind.

Critical reason’s task is to peer through the cultural web in which we are enmeshed to perceive clearly the reality that actually exists, including the man-made reality of the social order, whose terms give our lives meaning. We have to question our culturally created assumptions to clear away attitudinizing or propaganda or superstitious prejudice. But the professors sidestep this challenge, simplifying and flattening these complex truths about culture and consciousness. They reach the false conclusion that all descriptions of society and our nature are not just colored or refracted by our cultural assumptions but are mere propaganda, aimed at convincing others that the world is as our class or subgroup wishes it to be. Moreover, since the profs believe that not just the social order but also what we take to be “human nature” is man-made, whoever wins the propaganda battle gets to mold society and human nature—human reality itself—into the shape he chooses.

From these assumptions flows academe’s well-known mania for unmasking Western civilization (including its literature and art) as a machine for oppressing the nonwhite, non-rich, and non-male. This worldview—which grants its adherents a sense of superiority over their supposedly racist and sexist fellow men and also a belief in their own special power to remake the world by their words—appears so self-evident on campus as to be impervious to such realities as accelerating black success, for example, or the crowding out of male students by female ones on college campuses themselves.

But woe betide any apostasy from this dogma, as witness the fate of Lawrence Summers, fired as Harvard’s president for impiety about both race and “gender.” Not only did he suggest that African-American studies professor Cornel West ought to do a little real academic work, but he intensified the outrage by hinting that the reason great male mathematicians far outnumber female ones might—only might—have to do with differences in innate ability rather than with inequities in schooling.

Even earlier in Summers’s reign, another break with orthodoxy took place: in 2002, Harvard tightened its rules of evidence for charging someone with sexual assault, since the year before the faculty disciplinary board had found six of the seven such cases baseless. By contrast, most university sexual harassment codes seem to assume that male students will assault, that female students won’t make up accusations in so credulous an atmosphere, and that the accused is guilty until proven otherwise. In this spirit, for instance, Columbia doesn’t give accused students the right to cross-examine witnesses or even to be present to hear them.

So not only did many Duke professors feel that they didn’t have to think twice when stripper Mangum filed her charges; they scarcely had to think once. With one eye looking inward and the other fixed on the heavens, they knew instantly what must have happened. There was triple-plated presumption of the athletes’ guilt: they were, as a Duke literature prof wrote online, “exemplars of the upper end of the class hierarchy”—having doubtless learned lacrosse at fancy prep schools—“the politically dominant race and ethnicity, the dominant gender, the dominant sexuality, and the dominant social group on campus.” Mangum was black, poor, and female—trebly a victim. “How many more people of color must fall victim to violent, white, male, athletic privilege?” English prof Houston Baker wailed. We speak metaphorically of mining companies’ “raping” the landscape or empires’ “raping” their colonies: here was the metaphor made flesh.

In the school paper three weeks after the event, 88 Duke faculty members took out a full-page ad whose circularity of reasoning would have done Swift’s Laputan academicians proud. Headlinedwhat does a social disaster sound like?, the ad used the Mangum affair to stoke campus race and sex paranoia, and used the paranoia to insinuate that Mangum’s charges were likely to be true. Quoting an array of Duke kids’ remarks, the ad proclaimed: “These students are shouting and whispering about what happened to this young woman and to themselves.” And what do the kids say? “We want the absence of terror. But we don’t really know what that means. We can’t think. That’s why we’re so silent. . . . Terror robs you of language and you need language for the healing to begin.”

What to make of such almost comically irrational terror-without-a-name that the profs have stirred up with their specters of racists and sexists, like the nonexistent witches of old? Given the mass hysteria at this supposed seat of reason, the accused trio can probably count themselves lucky that they lost only a year of their lives. Indeed, only recently some of the 88 professors told the student newspaper that they still stood by the ad, while chemistry prof Steven Baldwin, an early critic of the administration response, mused, “I just wonder what Nifong would have done if he thought that the things he was doing were, in fact, not supported by the University.”

The press, as Charlotte Allen wrote in the Weekly Standard, amplified to the general public the keynote that the professors set. Were they not college grads, too—humanities majors—fitted out with the approved elite worldview, which it’s hard to avoid even if, like most young people, you’ve chosen your school not for educational reasons but for career and status ones? The case, according to a sprawling page one New York Times story the month after the event, was “yet another painful chapter in the tangled American opera of race, sex and privilege,” and that same month a Times op-ed agonized, “When the children of privilege feel vividly alive only while victimizing, even torturing, we must all ask why.” A Washington Post columnist struck a note that many other journalists echoed: “The Duke case is in some ways reminiscent of a black woman’s vulnerability to a white man during the days of slavery, reconstruction and Jim Crow, when sex was used as a tool of racial domination.” A USA Today columnist invoked “gender, race and the notion of athletic entitlement and privilege” to explain the case, while a CBS commentator opined, “The collisions are epic: black and white, town and gown, rich and poor, privilege and plain, jocks and scholars.”

Pure fantasy. For all the hyperventilating—including ex-dean of the Duke faculty William Chafe’s invoking the 1955 lynching of Emmett Till, just turned 14, for allegedly whistling at a white woman in Mississippi—the rape never happened. Emmett Till outrages are long over in America.

What does happen is the kind of thing Don Imus did—a nasty racist crack, hurtful and deplorable but not deadly and not symptomatic of a society that excludes blacks. Moreover, for nearly half a century, whites who think themselves decent haven’t said such things and have scorned those who did. In most of America today, what remains are the vestiges of racism, not racism itself. “It’s like weight loss,” remarked actor D. L. Hughley, who is black. “The last few pounds are the hardest to get rid of. It’s the last vestiges of racism that are hard to get rid of.”

But as many pundits noted, Imus’s “nappy-headed hos” is not the language of white racism but the jargon of rap music. As bad as Imus’s crack is, what’s important about it is that it highlights the real problem facing black Americans today, and more particularly those in the inner city: it is not Imus’s smart-aleck racism but rather the African-American worldview that the rap music Imus quoted reflects and disseminates. Through the window that rap opens into contemporary ghetto culture, we can see that the attitudes that first created the underclass have hardened into stone.

Since City Journal still gets letters arguing with a hip-hop story we published four years ago, let me start with a disclaimer. I know that rap’s house has many mansions—there is even Christian rap—and I believe that some rap varieties are constructive. I know that nice kids listen to nasty music and remain uncorrupted. And I know that an old (if not yet dead) white male who thinks rock and roll died when Buddy Holly went down in a 1959 plane crash with Ritchie Valens and the Big Bopper is rushing into terra incognita in discussing this topic. But I also know that most of the rap that the wider world knows is gangsta rap, and to read the lyrics, listen to the songs, and watch the videos of some of the most popular rap songs is instructive, diagnostic, and disturbing.

One of the earliest and certainly most dramatic responses among black Americans to mainstream culture’s new narrative of black victimhood in the 1960s was angry confrontation and resistance. Its watchword was “black power”—armed and militant. One of the era’s iconic images is Black Panther Huey Newton glowering on a wicker throne, in his leather jacket and commando beret, brandishing a rifle and a spear. As it turned out, behind their political rhetoric, the Panthers were simply gangsters, their resistance mere criminality. Yet mainstream culture’s willingness at that time to see even in crime a manly and understandable, if misguided, gesture of revolt against an oppressive system invested a sordid reality with a grain of existential glamour.

So now we have rap’s hero, the gangsta, a ritualized, almost parodic descendant of mainstream culture’s four-decade-old vision of the ghetto homme revolté. One of the first notorious gangsta rap songs, “Cop Killer” of 15 years ago, set the theme that’s still gangsta rap’s keynote. There are no more Emmett Tills, racism is shriveling up, but according to gangsta rap, echoing today’s racial arsonists and extortionists, the system is still victimizing blacks, through the police. Did they not savagely beat Rodney King in Los Angeles?

The gangsta resists. Sings Ice-T in “Cop Killer”:

I’m ’bout to bust some shots off.
I’m ’bout to dust some cops off. . . .
I’m a cop killer, better you than me.
Cop killer, fuck police brutality! . . .
Fuck the police, for Rodney King.
Fuck the police, for my dead homeys.
Fuck the police, for your freedom. . . .
Cop killer, but tonight we get even!

In the rap worldview, as it developed, the police actively set out to murder blacks. Did they not murder Amadou Diallo, Patrick Dorismond, Sean Bell, and even Huey Newton himself back in 1989—and to general applause? As Tupac Shakur puts it in “Changes”: “Pull the trigger, kill a nigga, he’s a hero.” And the song (released two years after the singer’s 1996 murder) goes on to accuse racist white society of purposely introducing drugs into the ghetto to destroy blacks, a widespread inner-city paranoid myth (along with the myth that the government intentionally infected the ghetto with AIDS to exterminate black Americans). In fact, Tupac raps, if blacks commit crimes, mainstream society bears the blame for inciting them to do so:

Give the crack to the kids, who the hell cares, 
One less hungry mouth on the welfare.
First ship ’em dope and let ’em deal the brothers.
Give ’em guns, step back, watch ’em kill each other. 
It’s time to fight back, that’s what Huey said.
Two shots in the dark, now Huey’s dead.

In a final, diabolical turn, the police then hunt down black youths for dealing the drugs that whites introduced into their community in the first place. “Instead of war on poverty,” Tupac charges, “they got a war on drugs, so the police can bother me.” And why do cops do this? Tupac asks in “Strictly 4 My N.I.G.G.A.Z.” (1993):

’Cause the police love to break a nigga,
Send ’em upstate cause they straight-up hate the niggaz.

Later rappers focus their ire on racial profiling, charging the police with purposely harassing blacks out of racist malice. Chamillionaire, in the MTV Best Rap Video of 2006, “Ridin’,” describes looking into his rearview mirror and seeing officers smiling with pleasure in the expectation that when they stop him, they’re bound to find drugs (“dro”):

A nigga upset for sure ’cause they think they know that they catchin’ me with plenty of the drink and dro,
So they get behind me tryin’ to check my tags, look at my rearview and they smilin’,
Thinkin’ they’ll catch me on the wrong, well keep tryin’,
’Cause they denyin’ is racial profiling.

But they are wrong to profile him as a criminal:

When they realize I ain’t even ridin’ dirty, bet you’ll be leavin’ with an even madder mood. . . . 
This a message to the laws tellin’ them WE HATE YOU!

Jay-Z, the one irrepressibly witty rapper, also thinks that the cops stopped him because of racial profiling, assuming that any young black is likely to be a criminal. But unfortunately on that occasion he did happen to have drugs (“raw”) in his car. He tells the story in “99 Problems,” the very funny 2004 MTV Best Rap Video:

The year is ’94 and in my trunk is raw,
In my rearview mirror is the motherfuckin’ law. 
I got two choices: y’all pull over the car or
Bounce on the devil put the pedal to the floor.

And I heard “Son, do you know why I’m stoppin’ you for?”
’Cause I’m young and I’m black and my hat’s real low?
Do I look like a mind reader sir, I don’t know.
Am I under arrest, or should I guess some mo’?

“Well you was doin’ fifty-five in a fifty-four,
License and registration and step out of the car.
Are you carryin’ a weapon on you? I know a lot of you are. . . .”

Once again, the right response, as Fabolous puts it in “Breathe” (2004), is resistance. Make sure to keep some handguns hidden away:

But I keep the Glocks in the stashes,
Cuz the cops wanna lock and harass us.

Rap’s well-known celebration of gangsta behavior is a bad enough message. Trumpeter Wynton Marsalis, head of Jazz at Lincoln Center and a ferocious critic of rap, succinctly sums up rap’s main story line: “Now you have to say that you’re from the streets, you shot some brothers, you went to jail. Rappers have to display the correct pathology.” The implicit message, of course, is that the bad environment is to blame for the bad behavior. As Nas puts it in “Hip Hop Is Dead,” Number One on the charts last year: “What influenced my raps? Stickups and killings / Kidnappings, project buildings, drug dealings.” But add to this celebration of ghetto pathology the cop hatred that is rap’s constant leitmotif, and you have a truly toxic brew.

Back when “Cop Killer” came out in 1992, a Warner Music executive defended that anthem in praise of murdering police officers in a letter to the New York Times whose self-serving sanctimony the passage of time has not dulled. “Rap music provides a window to our urban culture,” the Warner honcho wrote. “To listen to it is to hear from a population desperately in need of attention, slipping headlong into despair and destruction. Almost 30 years ago, Michael Harrington wrote of the other America, the underclass in this country that lives in the shadows of high-rise society. Since then, the gulf between the two Americas has widened to new levels of disproportion. . . . Yet there is music sounding out from this other America, and its message is cautionary, filled with information, warning and, yes, rage. . . . We must confront that reality, however it may offend or disturb.”

However cynical, there’s the sixties’ elite orthodoxy at its most extreme: if the disadvantaged black Other America wants to take revenge on its oppressors by killing the cops who are their agents, that’s understandable. Rappers (and record companies) are doing the country a favor by warning it what danger bubbles down below, so the mainstream can reform its unjust ways and change the toxic environment before violence erupts. Just the other day, rapper Snoop Dogg offered the same rationalization on Black Entertainment Television: “Without hip-hop, the world wouldn’t have understanding of a lot of things that’s going on.”

Undoubtedly, rap reflects violent resentment churning in the ghetto, though without the political significance that the Warner exec gave it. But it is also a kind of propaganda that molds and amplifies, as well as reflects, attitudes—and molds them with harmony and rhythm’s special power to penetrate into the mind, as Plato understood. Rap stokes ghetto kids’ anger, while justifying and legitimating it. It even clothes kids in a special uniform (sold by rap moguls Russell Simmons and Sean “Diddy” Coombs, among others), designed to make its wearers look like dangerous “gangstas”—hooded sweatshirt, baggy jeans worn low to display the boxer shorts beneath, big sneakers, do-rag or baseball cap worn gangbanger-style, backward, sideways, or any way but straight. It provides as well a facial expression and a way of carrying yourself, learned from rap videos as well as from the streets: the contemptuous stare, the menacing swagger, the gang-like hand gestures, the aggressive loud voice, all proclaiming, Don’t mess with me, muthafucka. And there’s the hip-hop lingo, purposely hard for outsiders to penetrate, like Victorian thieves’ cant or Cockney rhyming slang. (I’m grateful to raptranslations.com for a clue through the labyrinth.)

Does all this matter? Well, we all see the world through the spectacles of our culture and subgroup; we depend on belief and prejudice to understand our experience; we slip into the manners and rituals of our culture as a way of knowing who we are and how we should behave. Imagine yourself one of the vulnerable kids that rap sings about, born in a project to an uneducated, teen single mother, possibly put into foster care, surrounded by gangs and gangstas, attending an unruly school that teaches—if it teaches anything—that you are a victimized minority in an unjust country that doesn’t want you to rise, and that you should nevertheless have high self-esteem because you are fine just as you are. No one gives you a book that opens up the world of possibility beyond your cramped existence. Meanwhile, through the headphones that you always wear pulses the beat of rap, driving out thought and underscoring the message of anger, hatred of the oppressor policeman, and resentful entitlement that the lyrics convey. You go home and watch rap videos on BET. You dress like a gangsta, talk like a gangsta, behave like a gangsta.

And what results? Over 16 percent of black men have been in prison (and 22.4 percent of those between 38 and 42 years old), blacks account for about 40 percent of the nation’s entire prison and jail population, and, extrapolating from its 2001 numbers, the Bureau of Justice Statistics estimates that nearly a third of black men will go to prison during their lifetimes. In New York, home of the nation’s largest African-American community, blacks commit 68.5 percent of all the violent crime, Heather Mac Donald calculates, even though they compose only 24 percent of the population. It’s hard to argue that poverty explains these numbers, since blacks, 12 percent of the U.S. population, committed 48.5 percent of the nation’s rapes and sexual assaults in 2005.

Such things grow out of culture—and not just in U.S. inner cities: as Theodore Dalrymple has shown in these pages, similar attitudes among the British elites about class oppression and “social exclusion” have produced a largely white U.K. underclass with its own dysfunctional culture and behavior. In the U.S., rap helps transmit that culture, and it is helping to disseminate the gangsta attitude and the gangsta uniform to resentful youths around the world—to the racaille in the Pariscités, to the disaffected young men in Africa’s urban slums, to British-born Pakistanis listening to Aki Nawaz rapping in praise of suicide bombing.

In ghetto neighborhoods, part of underclass culture is an anti-“snitching” code that stigmatizes any cooperation with the police, even to help them find the murderer of your friend. Rapper Cam’ron told 60 Minutes that he wouldn’t inform the cops if he knew that his next-door neighbor was a serial killer, and in fact he refused to cooperate with police after he himself had been shot and wounded. It would violate his code of ethics, he says, and hurt his business. Even a group of earnest, well-behaved young teens in parochial-school uniforms solemnly told BET that they’d never snitch. Consequently, a criminologist told 60 Minutes, while the national rate for solving murders is 60 percent, it’s in the single digits in many inner-city neighborhoods, in some of which, he says, “we are on the verge of—or maybe we have already lost—the rule of law.”

A vicious circle now operates between the gangsta kids and the police. The kids dislike and fear the cops; the cops—looking for suspects whom victims have described as black, or seeing youths dressed as gangstas behaving as if they might be carrying weapons—stop law-abiding blacks, who then feel all the more victimized, angry, and resentful. And when frightened officers, black or white, mistakenly kill an innocent black man, like Amadou Diallo, such kids—and their mothers and neighbors, who write to City Journal often to say so—take it as proof that the cops are out to kill blacks on purpose. “I am scared for my son,” one mother wrote us recently. “The police always harassing the wrong people & jumping out of cars spot checking, . . . while the criminals sit around the neighborhood all day. . . . Was 50 shots necessary for Sean Bell? Or 45 shots for Diallo? . . . Come on, we all know none of these situations would ever happen to any white kids.” And you understand how she feels.

But one solution, if the mother knows who the real criminals are, is to “snitch.” Another, as a former juvenile-court chief prosecutor puts it, is: “If you don’t want to be treated like a thug, don’t dress like a thug. It’s an invitation to ‘probable cause.’ ” After all, urban black culture wasn’t always like this. Just look through old photos of Harlem and see young men and women dressed up like fashion plates out of Henry James or Thomas Mann, or like Fred Astaire and Ginger Rogers. Look at the black musical celebrities who took such care and made such an impression on people my age: Count Basie, with his elegant mustache, always in a tie and jacket; Duke Ellington, debonair in white tie and jauntily cocked top hat; gorgeous Lena Horne, radiant in her shimmering evening gown—all with the bearing of counts and dukes. What would they make of the gangstas?

The gangsta style, only 15 or so years old, is the malign outward expression of a malign worldview. And it doesn’t just get gangsta kids hassled by the police. It can make them unemployable. “When I see a kid with his hat on backwards or sideways, and who gives me the ‘attitude,’ I don’t go on with the rest of the interview,” says one big New York grocer of his methods for hiring his mostly minority workforce. The only skill his operation requires of employees, aside from bagging groceries, is showing up and being civil to customers, not giving them “attitude.”

Finally, rap’s language: the “hos” Imus mentioned, along with the “bitches” and the “niggas,” are also outward expressions of a destructive and self-destructive worldview. Christopher Hitchens thinks that African-Americans use “nigga” the way suffragettes adopted their detractors’ dismissive name for them as a way of disarming its hurtful power. Perhaps. But I read it as a kind of provocation and reproach: a contradictory combination of WE can use this word, but we dare whites to try, and Whites think they are doing us a big favor by not calling us this, but see how little their puny gesture means to us. Trouble is, rap music has won many white fans, too, some of whom think it’s funny to use the word “nigga.”

But calling women “bitches” and “hos” (dialect for “whores”)—and rap has almost no other word for woman—is an even more destructive development. Harvard sociologist William Julius Wilson explains black Americans’ low marriage rate and high illegitimacy rate by saying that too many unskilled black men are “unmarriageable,” since the disappearance of well-paid manual labor has deprived them of the means to support wives. He’s right that they are unmarriageable, but the reason is not economic but cultural: they are unmarriageable because they have odious attitudes, and therefore odious behavior, toward women, which rap expresses ad nauseam.

Popular music has had risqué lyrics at least since the Victorians sang about “the most immoral lady” who “lay between the lily-white sheets with nothing on at all.” Some lyrics are sophisticated, like “Birds do it, bees do it, / Even educated fleas do it.” Some are wittily raunchy, like Bessie Smith singing in 1931:

I wished I had some good man, to tell my troubles to;
Seem like the whole world’s wrong, since my man’s been gone.
I need a little sugar in my bowl,
I need a little hot dog on my roll,
I can stand a bit of lovin’, oh so bad. . . .

And certainly the straitlaced have long claimed that lyrics like “Why don’t we do it in the road” will subvert the whole framework of society.

But in rap you’ll find no witty double entendres, no playful seductiveness, no risqué flirting. It is hard-core porn—and please be warned that the bad language so far is as nothing compared with what follows. I apologize, but I have to show you the coarseness of the language to convey the coarseness of feeling that is so troubling. What rap has to say about the relations between men and women is basically what Crooked I asks in his song title “Who Wants to Fuck Tonight?”

Now do my niggaz wanna fuck tonight? Hell yeah. 
How many ladies wanna fuck tonight? We do, we do.

Understand though, Crooked I cautions, it’s just sex; it has nothing to do with marriage:

I’m tellin’ hos ain’t no holy matrimony,
Just us, fuckin’ on the holy mattress only.

In fact, as 50 Cent explains in his hit 2002 song “In da Club,” it has nothing to do with love, either:

I’m into having sex, I ain’t into making love.
So come give me a hug if you’re into getting rubbed.

What that leaves to rap about is mechanics. Petey Pablo’s “Freek-a-Leek” is representative:

Tell me what you want, do you want it missionary 
With your feet crammed to the headboard?
Do you want it from the back with your face in the pillow, 
So you can yell it loud as you want to?
Do you want it on the floor? Do you want it on the chair?
Do you want it over here? Do you want it over there?
Do you want it in ya pussy? Do you want it in ya ass?
I’ll give you anything you can handle!

Without feelings other than lust, relations are impersonal and narcissistic. So while it’s good to have a good-looking woman—and rappers go on in considerable detail about what they like (often tall, willowy Asian- or Hispanic-looking women in the rap videos)—sometimes you have to make do with what’s available at the moment. “If she ain’t right,” Ja Rule advises in the verse he contributes to “Who Wants to Fuck Tonight?,” “turn the lights off / Put her on a summit and pump till your dick’s soft.” But even if “on a one-to-ten she’s a certified 20,” Usher sings in “Yeah,” Ludacris, who sings the song’s next verse, says he nevertheless wants to have sex in a way that recurs with disturbing frequency in rap:

I’m a spit the truth, I won’t stop till I get ’em in they birthday suits.
So gimme the rhythm and it’ll be off with they clothes, 
Then bend over to the front and touch your toes.

It’s hard to be more impersonal and dehumanizing than to ask a woman to present herself as no more than an orifice. But as one picture is worth a thousand words, take a look at Snoop Doggy Dogg’s pornographic cartoon cover for his album Doggystyle. Sticking out of a doghouse, we see only the saucily tilted hindquarters of, well . . . it has a tail rigidly sticking up, but is otherwise a very well-shaped young woman, the rest of whose body— naturally along with her face, which would show her to be an individual, a person— is covered up. This motif gets even worse in David Banner’s 2005 hit “Play,” but you’ll have to look that one up yourself. It is beyond pornographic.

Of course, if you do have a personal relation with a woman, it is likely to get annoying. Sings Snoop himself:

This is what you made me do; I really didn’t want to put hands on you. 
But bitch you playin’ with fire.
I’m so sick and tired of loudmouth bitches like you. . . .
You got to put that bitch in her place, even if it’s slapping her in her face.
Ya got to control your ho. Can you control your ho?

The Duke profs wanted to know, “What does a social disaster sound like?” It sounds like this.

By contrast, the closest thing to a love song that I came upon in the rap canon is called “I Miss That Bitch.” Snoop starts by saying that E. White is going to sing a song “For all the players that lost somebody special / And wonder where she at.” And E. White raps:

Perhaps I went to jail,
That left us out of touch.
Shoulda shot some mail or something. . . .
Baby I really wanna see what you got now.
I’m all grown up with my shit together.
I don’t know if I’mma see you ever.
I got a woman and shit, but I must admit this:
You at the top of my list,
Unforgettable.

It’s not much, but by comparison with the organs and positions, it seemed to me like stumbling upon “Night and Day.” What E. White feels about his current woman, of course, is her problem.

The great accomplishment of civilization has been to replace the reign of force with the rule of law, and to humanize the animal realities in which our lives are embedded by means of manners and rituals that give those realities a human meaning. And if the rule of law fares poorly in rap, civilization’s great effort to transform the animal facts of reproduction into love and marriage doesn’t do so well in gangsta-land, either. This is what so much of our culture is about—our manners and morals, poetry and song and film, from the Song of Solomon and the medieval French romances to “The Way You Look Tonight”: yes, I have these feelings, but not just for anyone; it’syou personally I love, so much that I want you always. And many of the popular songs of the 1940s and 1950s, making the promise of permanence explicit, end with talk of marriage. Human beings undergo an education of the feelings, and popular culture’s love songs were once great instructors in this school.

It’s a long drop to the dogghouse and Doggystyle. And since it’s culture that molds feelings and behavior, when the “Why don’t we do it in the road” spirit of sexual liberation of the 1960s declined in the ghetto into “Do you want it over here? Do you want it over there?,” feelings and behavior were bound to follow. Rap is a school that hardens and coarsens rather than cultivates the feelings and, presenting women as disposable and interchangeable objects for use, dehumanizes rather than humanizes the relations between the sexes.

While middle-class people, black and white, have other cultural influences—including loving, caring families, helpful in cultivating a child’s capacity to love—to counteract the dogghouse, the most vulnerable don’t. And while, of course, people do fall in love in the inner cities, it’s not enough to preempt the attitudes that, as Kay S. Hymowitz has shown, lead ghetto girls onto the “teen-mommy track”: that you can’t count on men, that they’re such animals that nobody needs or wants one around the house, that using them to get pregnant without expecting them to be fathers to your children is normal and fine. The men won’t love you, but the baby will—an expectation so often disappointed, with tragic results for the baby and society.

Rap didn’t cause this, but it doesn’t merely reflect it, either, just as it doesn’t merely reflect ghetto lawlessness. It is part of a culture that reinforces, normalizes, and perpetuates a self-destructive, pathological way of life. So if we want to bring the inner-city underclass into the mainstream, we have an immense work of cultural reconstruction ahead of us, of which recognizing the damage that gangsta rap does, and stigmatizing gangsta rappers and their record companies for doing it, is only one part. Chrysler should stop featuring Snoop Dogg in its ads; Mrs. Clinton should stop letting rappers like Timbaland host fund-raisers for her, just as her husband long ago rejected rapper Sister Souljah’s support after she suggested that blacks should kill whites; and the entire nation needs what’s come to be called a Sister Souljah moment, ostracizing rap stars instead of glorifying them.

Wynton Marsalis’s scathing critique of rap understands how hip-hop relates to the larger problem. Leaving aside the lyrics, rap is musically “ignorant,” Marsalis says. “Rhythms have to have a meaning. If the rhythm is corrupt, the music is corrupt and the people become corrupt.” (And, one might add, rap also subverts music’s aim of creating a realm of harmony and beauty.) As for the lyrics, Marsalis says, “I call it ‘ghetto minstrelsy.’ Old-school minstrels used to say they were ‘real darkies from the real plantation.’ Hip-hop substitutes the streets for the plantation.” In its conception of black authenticity, rap perfectly embodies the cultural tragedy of the ghetto underclass. As Marsalis puts it in the title of a 2006 song, when you look at the underclass, it seems that all the progress blacks have made is to go “from the plantation to the penitentiary” and to be, as the song puts it, “in the heart of freedom . . . in chains.”

Those chains are not only the chains that bind prisoners but also what the poet William Blake called “mind forg’d manacles”—beliefs, attitudes, and habits of feeling that imprison you even when you are outwardly free. For the underclass, those manacles are the beliefs that they’re victims, that they’re entitled to be angry and resentful, that the law is an oppression, that the larger community owes them a living, that education is useless, that sex is without responsibility or even emotion, that they’re not responsible for supporting and nurturing their children, and that because they’re victims they never need to be ashamed of anything they do.

The most positive development I know came when Bill Cosby addressed the NAACP on the 50th anniversary of the Brown v. Board of Education desegregation decision and spoke the truth that people like Jesse Jackson, glaring at him from the next chair, try to suppress and stigmatize as racist. “The lower economic and lower middle economic people are not holding their end in this deal,” Cosby said. “In the neighborhood that most of us grew up in, parenting is not going on. . . . People in jail, and women having children by five, six different men. . . . We’ve got to take the neighborhood back. . . . It’s not what they’re doing to us. It’s what we’re not doing . . . . All of these people . . . they’ve got to be wondering what the hell happened. Brown v. Board of Education—these people who marched and were hit in the face with rocks and punched in the face to get an education, and we got these knuckleheads walking around who don’t want to learn English. . . . Well, Brown v. Board of Education, where are we today? . . . What did we do with it? . . . . Fifty percent drop out—rest of them in prison. . . . You have the pileup of these sweet beautiful things born by nature—raised by no one.”

Blacks need to heed this message, and whites need to stop telling them anything different.

Source: http://www.city-journal.org/html/17_3_black_america.html

We New Yorkers imagine our city’s history begins in earnest with the Gilded Age and the Great Migration that brought many of our forebears sailing under the Statue of Liberty’s torch to supercharge a nascent metropolis with a jolt of new energy. But this summer, when a handful of square-bearded, antique-garbed Pennsylvania German Baptists jacked a yellow clapboard house up over a Harlem church and wheeled it around the corner to a new site in St. Nicholas Park, we recalled that more than a century earlier Gotham took center stage as the nation’s first capital. For the house belonged to Alexander Hamilton—not only one of the greatest Founding Fathers but the one who stamped the infant republic forever with the unique spirit of New York City.

The other Founders were Americans of a century’s standing, who fought the Revolution to defend liberties their families had claimed for generations. Washington and Jefferson, landed grandees, descended from seventeenth-century Virginians; Harvard-educated John Adams’s forebears settled in Massachusetts Bay in 1638. Such men were rooted Americans, living on land inherited from their fathers. Hamilton, by contrast, was a penniless immigrant from the West Indies; like so many New Yorkers, he had come here from elsewhere, seeking his fortune.

And he wasn’t just penniless. “My birth,” as he delicately put it, “is the subject of the most humiliating criticism”—for he was, in John Adams’s acidulous taunt, “the bastard brat of a Scotch pedlar.” Nevertheless, as a prime exemplar of that American opportunity and enterprise he so fervently promoted, he rose to be the country’s second most powerful man. As Ron Chernow puts it in his indispensable biography, he served in effect as George Washington’s prime minister and head of government, directing his administration’s policy and molding the enduring institutions it created.

It’s hard to exaggerate the moral squalor of the future Treasury secretary’s childhood. A much older man, flashy and feckless, wed his mother when she was 16 for her beauty and “snug fortune,” as Hamilton called it; she abandoned him and their baby five years later. The outraged husband had her jailed in St. Croix, as its law allowed, for purportedly “whoring with everyone.” Instead of returning to him chastened, as he expected, she fled, soon settling on the tiny British island of Nevis with James Hamilton, a dashing younger son of a Scottish laird. She bore two more sons, James, Jr. and, on January 11, 1755, Alexander. The couple lived as man and wife; though her husband finally got a divorce from her in 1759, its terms forbade her remarriage.

The black sheep of a well-off family, James Hamilton had come to the sugar isles in search of riches like so many hard-up adventurers, but he had “too much pride and too large a portion of indolence,” Hamilton recalled much later, so his “affairs at a very early day went to wreck” and he sank into the crowd of failures and lowlifes who overran the West Indies. When Hamilton was ten, James decamped, drifting until he washed up, old and dying, near the southern Caribbean speck where Defoe shipwrecked Robinson Crusoe.

Hamilton’s intelligent, enterprising mother, who’d returned to St. Croix, started a grocery store. But when Hamilton was 12, one of the tropical fevers that plagued European fortune hunters felled her, and a sea of troubles engulfed her two boys. The cousin who took them in killed himself two years later, leaving the boys destitute; their mother’s little estate—nine slaves, chiefly—had gone to her one legitimate son, who had swooped down to snatch it away from her two “obscene children.” All Hamilton had left were her 34 books, including the Plutarch and Pope that had been his childhood companions, which his cousin had kindly bought for him in the auction of her household effects.

Then, like Mr. Brownlow rescuing Oliver Twist from Fagin, fairy-tale magic descended. A rich St. Croix merchant, Thomas Stevens, took Hamilton into his nurturing household, where he became lifelong friends with Stevens’s son Ned, a year older and remarkably similar in tastes and talents. And why did Stevens take in Alexander, leaving his brother James, Jr. to become a carpenter’s apprentice? Years later, when Secretary of State Timothy Pickering first met Ned Stevens, he was flabbergasted by his “extraordinary similitude” to Hamilton. “I thought they must be brothers,” Pickering wrote—an observation that one of Ned’s relatives later told him “had been made a thousand times.” So was Hamilton doubly illegitimate? Pickering thought so; perhaps someday the DNA sleuths will say for sure.

Some months before the Stevenses took him in, Hamilton, without realizing it, had already linked up to the great world beyond his little island. Though remote, St. Croix was integral to the eighteenth century’s economic dynamo, the triangle trade that (to oversimplify) brought slaves from Africa to work the West Indian sugar estates, carried the sugar and molasses to New England to make into rum, and returned to Africa to trade rum for more slaves, generally with a stop in England to sell sugar and rum for manufactures. At 13, Hamilton had begun clerking for the island outpost of Beekman and Cruger, a New York trading firm owned by two of the city’s great Dutch mercantile families, key players in that business for generations. As he took his modest place in world commerce, he also launched himself onto a tributary that flowed into the heart of Gotham’s mainstream.

His stint at Beekman and Cruger, he later told his son John, was “the most useful part of his education,” teaching him the facts of global economic life, from commodity prices, cash flow, and exchange rates to bill collecting and smuggling. When his boss, Nicholas Cruger, fell ill and went home to Gotham (where his uncle was mayor), he left his luminously gifted 16-year-old clerk in charge. The adolescent took to management with gusto: his vivid letter to young Cruger about how he fattened up a cargo of starving mules from the firm’s sloop Thunderbolt is a marvel of self-confident energy.

On his countinghouse stool, Hamilton dreamt big. At 14, he wrote to Ned Stevens, in his earliest surviving letter, “my Ambition is prevalent that I contemn the grov’ling and condition of a Clerk or the like, to which my Fortune &c. condemns me and would willingly risk my life tho’ not my Character to exalt my Station. . . . I mean to prepare the way for futurity. . . . [I] may be jusly said to Build Castles in the Air . . . , yet Neddy we have seen such Schemes successful when the Projector is Constant I shall Conclude saying I wish there was a War.”

But the upheaval that first exalted Hamilton’s station wasn’t a war; it was a hurricane that ripped through St. Croix in August 1772. When Hamilton’s muscular account of the storm’s ferocity, its aftermath of death and desolation, and his own fears and religious hopes appeared in the local newspaper, its brio amazed readers, some of whom, led by Hamilton’s employers and a kindly clergyman, raised funds to send the teenage prodigy off to college in North America. When Princeton declined to let him plow through its B.A. requirements as fast as he could rather than take the usual three years, the young-man-in-a-hurry enrolled instead at King’s College (renamed Columbia after the Revolution) in late 1773 or early 1774 and became a Manhattanite.

Our American culture embraces a host of microcultures—local traditions and ways of seeing the world that spring from some particular history and make different groups express our common Americanism in their own distinctive accents. The egalitarian Quaker culture of Philadelphia, to take sociologist Digby Baltzell’s example, nurtured many fewer who made it into the Dictionary of American Biography than Boston’s more individualist Puritanism, while historian David Hackett Fischer has shown how the “folkways” of colonists from four different British regions, with their own variants of Protestantism, subtly molded the character of the sections of America they settled, so that their inhabitants ended up even with differently inflected understandings of the idea of liberty. Slight cultural variations can yield markedly different outcomes.

The New York that welcomed Alexander Hamilton had its own distinctive culture, too, whose uniqueness went far deeper than John Adams’s description of a town where “they talk very fast, very loud, and all together.” Its Dutch past, from Peter Minuit’s 1626 purchase of Manhattan to Peter Stuyvesant’s handover of the flourishing New Netherland colony to the British in 1664, left an indelible legacy. After decades of brutish religious war, the Dutch Republic had embraced tolerance with fervor and transplanted to its trading post on the Hudson its constitutional promise that “each person shall remain free, especially in his religion, and no one shall be persecuted or investigated because of his religion.” So, for example, when Governor General Stuyvesant wanted to limit the rights of 23 Jews who sought asylum in New Amsterdam in 1654, they petitioned the Dutch authorities, who commanded Stuyvesant to treat them with Dutch tolerance, reminding him also that Jews were big investors in the West India Company. And then—as if Jews weren’t bad enough—Quakers appeared in the Long Island village of Vlissingen. When Stuyvesant forbade the villagers, mostly English, from taking them in, they disobeyed, citing in their 1657 “Flushing Remonstrance,” one of the foundation documents of American religious liberty, the Dutch principle that “love peace and libertie” must extend even to “Jewes Turkes and Egiptians” and reminding him of their charter, which granted the right “to have and Enjoy the Liberty of Conscience, according to the Custome and manner of Holland.”

And so New Amsterdam became a melting pot like no other place in North America, with settlers arriving from all over the globe and not only living side by side but also marrying each other.

A quarter of the couples married in the town’s Dutch Reformed Church were of different ancestries, with Germans marrying Danes, Italians Dutchmen, a man from “Calis in Vranckryck” wedding a girl from “Batavia in the East Indies.”

The tolerance, which also welcomed sectarian refugees from Massachusetts’s intolerant Puritanism, was a matter of policy as well as principle: the business of New Amsterdam was business, and the authorities wanted to recruit traders of any stripe. The town was quick to make newcomers full citizens. Whereas only 20 percent of that era’s New Englanders were freemen, New Amsterdam, in addition to the “great burgher” status it conferred on substantial taxpayers like the first Beekmans, also gave out “small burgher” status to almost anyone who asked. In the benign glow of such equal-opportunity inclusiveness, commerce boomed: Manhattan became a key shipping center even for Virginia tobacco.

With its “frank acceptance of differences and a belief that individual achievement matters more than birthright,” concludes Russell Shorto in The Island at the Center of the World, his dazzling history of Dutch New York, “this island city would become the first multiethnic, upwardly mobile society on America’s shores, a prototype of the kind of society that would be duplicated throughout the country.” It produced prototypical New Yorkers, too, says Shorto, “worldly, brash, confident, hustling.” When the British took over, they promised to preserve the regime of tolerance and free trade (and did so for a century). “The Dutch here shall enjoy the liberty of their consciences,” they proclaimed. “Dutch vessels may freely come hither.” Why mess with success?

Into the theater of opportunity that had developed from such beginnings—the town where, in Gouverneur Morris’s words, “to be born in America seems to be a matter of indifference”—stepped the upwardly mobile young immigrant of dubious parentage and prodigious talent, just at the moment of the Boston Tea Party. Within months of entering King’s College, overlooking the Hudson and adjoining the port city’s busy red-light district, the 19-year-old undergrad threw himself into revolutionary politics. At a mass rally against England’s punitive Coercive Acts, he made himself famous with an impassioned impromptu speech, calling for a boycott of British goods in defense of American liberties, that electrified the crowd. He followed up with two pamphlets prophetic in their certitude that war would come, that the colonists would win with a guerrilla insurgency, and that they would outstrip Britain in population and wealth. Again and again in his career, Hamilton showed such premonitory insight: he saw complex things at a glance, saw them whole, and saw their consequences. And he had no patience with those who couldn’t keep up with his brilliance.

The moment that news of Concord and Lexington reached New York, Hamilton, with his own brand of student activism, joined the militia and then, early in 1776, the Continental Army. In the dismal retreat from New York—which the British occupied for the next seven years—and in the famous victories at Trenton and Princeton, the 21-year-old artillery captain earned the nickname “the Little Lion” for his cool determination and unflappable courage under fire. An excellent commander and superb organizer, he won the admiration of a quartet of generals, including Washington, who invited him to join his staff as an aide-de-camp and lieutenant colonel. So the war he had wished for back in St. Croix had come and had indeed exalted his station. As he said much later, revolutions, for all their horrors, “serve to bring to light talents and virtues which might otherwise have languished in obscurity or only shot forth a few scattered and wandering rays.”

His connection with Washington turned out to be the greatest opportunity in Hamilton’s life. Almost everything he achieved, he achieved as the commander in chief’s right-hand man—his partner, virtually. As Hamilton said at his patron’s death, “I have been much indebted to the kindness of the General, and he was an aegis very essential to me.” They were each other’s completing counterparts; neither would have achieved such greatness alone. “As a team, they were unbeatable and far more than the sum of their parts,” says Chernow.

In the war, Hamilton quickly became, said Washington, his “principal and most confidential aide.” He worked out strategy with him, dealt with his subordinate generals, wrote letters exactly expressing Washington’s intention from only the vaguest hint. “During the whole time that he was one of the General’s aides-de-camp,” recalled Secretary of State Pickering, “Hamilton had to think as well as write for him in all his most important correspondence.”

It was more than a professional relationship. Following conventional eighteenth-century usage, Washington called his staff of aides his “family,” and, convention aside, that word catches the emotional tone. Certainly the general’s closest ADCs—Hamilton, Lafayette, and John Laurens—became a band of brothers, reminiscent, Hamilton’s son John said, of the Three Musketeers. “All the Lads embrace you,” Hamilton wrote to Laurens. “The General sends his love.” The orphaned and abandoned Hamilton acquired the greatest father figure of them all; and of no less emotional importance, the childless Father of his Country gained a surrogate son, whom he invariably called “my boy.” And indeed the rumor later went round, sparked by Hamilton’s enemies, that the slight, fine-boned West Indian with the gently pensive face was the strapping general’s illegitimate offspring.

Wherever there’s a father and a son, the Viennese doctor would say, there’s a problem. In this case, at least, there came to be. After four years with Washington, Hamilton had risen far above his “grov’ling” condition, but he remained a sort of “Clerk” and began to feel stifled in a job “having in it a kind of personal dependance,” as he put it. He nursed dreams of further, personal, glory and chafed when Washington vetoed his requests for his own command. He came to feel his patron’s affection a burden—a demand for not just affection but also self-suppression. For his part, Washington was loath to lose what Chernow calls his alter ego, and he surely felt stung not only by Hamilton’s eagerness to move on but also by his brilliant protégé’s return of stiff reserve to his own warmth, the aide’s correct “Your Excellency” to the general’s “my boy.” “The pride of my temper would not suffer me to profess what I did not feel,” wrote Hamilton at the time. “Indeed when advances of this kind have been made to me on his part, they were received in a manner that showed at least I had no inclination to court them, and that I wished to stand rather on a footing of military confidence than of private attachment.”

The inevitable explosion came, as usually happens, over a trifle. The two passed each other on the stairs, Washington told Hamilton he wanted to speak to him, and Hamilton said he’d be right back and went to finish his errand, returning, “I sincerely believe,” in less than two minutes. He found Washington in a rage. “Col Hamilton (said he), you have kept me waiting at the head of the stairs these ten minutes. I must tell you Sir you treat me with disrespect.” How much suppressed heartache that last sentence contains. “I am not conscious of it Sir,” replied Hamilton, “but since you have thought it necessary to tell me so we part.” “Very well Sir (said he) if it be your choice.” And though the general almost immediately tried to “heal a difference which could not have happened but in a moment of passion,” Hamilton, his pent-up resentment unappeasable, quit the staff.

In July 1781, Washington finally gave him the command he craved, and it brought him all the glory he wished. When American and French armies had bottled up British general Cornwallis on the Yorktown, Virginia, peninsula, with a French fleet blocking him offshore, Washington wanted to crush him before rescue ships could arrive. Two British redoubts stood in the way of squeezing the siege tighter, and Washington ordered Hamilton’s New York light infantry to clear one and another brigade the other. Hamilton did it with panache, jumping gallantly onto the redoubt’s parapet at the head of his troops, who bayoneted the enemy into quick submission; his counterpart did it with less grace and more blood. But the two victories checkmated Cornwallis, who surrendered five days later, on October 19, 1781, ending the last great battle of the long war—though it was two more years before the British finally left New York City.

While soldiers starved and froze throughout the war, Hamilton, at Washington’s right hand, bitterly watched how Congress’s shortcomings worsened their sufferings with fecklessness and corruption that turned scarcity into famine. He mused over how to fix what was broken, and read widely, filling the blank pages of his old artillery-company paybook with facts and quotations from Bacon, Cicero, Hobbes, Hume, Montaigne, and Plutarch, along with Postlethwayt on Trade and Commerce. By 1780, still Washington’s ADC, he had concluded, years before anyone else, that the United States needed a constitutional convention to form an entirely new governmental structure. That year, in a prophetic letter to Congressman James Duane, with his brilliant grasp of a complex whole in all its details, he sketched out that new government: energetic, strongly centralized, with power to raise an army and build a navy, assess taxes and contract foreign loans to support them, declare war or peace, regulate trade, coin money, and establish banks.

Having played his heroic part in the battle that won the war, he returned to civilian life aiming to help create that new order. Late in 1780, he had married Elizabeth Schuyler, the levelheaded, endlessly kind daughter of General (later Senator) Philip Schuyler, head of a great patroon family, owner of tens of thousands of upstate acres, and a proud friend and powerful ally of his son-in-law ever after. The young couple moved into the Schuyler Mansion in Albany, a gabled, Dutch-style town founded by Stuyvesant, where Eliza listened to sermons in Dutch, still spoken in the Hudson Valley until well into the nineteenth century. There Hamilton taught himself law by ravening through his friend Duane’s legal library, learning in six months what usually took three years and writing a study guide for himself that, passed around in manuscript copies, served other law students as a textbook for the next decade. In October 1782, three months after passing the bar, he became the equivalent of a British barrister.

When the British finally left New York City, leaving behind a half-burned-out town stinking of sewage, Hamilton moved back with Eliza and brand-new baby Philip to a rented house at 57 Wall Street and became one of the city fathers who rebuilt Gotham. He joined the board of the now-renamed Columbia College, helped create the New York Board of Regents, and founded the Bank of New York—all within the first year or so of his return. He also became one of the greatest lawyers of them all—up there with Daniel Webster, one judge later averred.

All the while, the project of recasting the national government ripened in his mind. While still cramming for the bar in 1782, he won election to Congress, headed two of its key committees six months later, and grew all the more fervent for reform. In 1786, he sought a New York legislature seat to use, he told a friend, “as a stepping stone to a general convention to form a general constitution.” His maneuvering in the months after he won it made him, says Catherine Drinker Bowen, “the most potent single influence toward calling the Convention of ’87.”

At the convention, besides ensuring that immigrants like himself had full, New York–style opportunity to serve in Congress, he made only one other contribution: a six-hour speech outlining his ideal government. He proposed a highly democratic House of Representatives elected every three years by universal manhood suffrage, counterbalanced by a president and senate to serve for life (unless impeached for misbehavior), chosen by electors picked by men of property. His purpose was double. He wanted to combine, as he’d suggested in his letter to Duane, the advantages of a monarchy’s energetic executive with republican liberty. He also aimed to ensure real checks and balances between the rich and powerful and the rest. “Give all power to the many, they will oppress the few,” he explained, according to Madison’s convention notes. “Give all power to the few, they will oppress the many.” Here was a scheme that would ensure true equilibrium, he said, rather than merely having “democracy checked by democracy,” as the other proposed schemes envisioned. Of his president-for-life idea, he conceded, “It will be objected probably that such an executive will be an elective monarch”—and his enemies have repeated that objection up to this day, falsely accusing him of secret monarchism.

But behind his idea lay his deepest worry: that direct democracy could decline into mindless mob rule. He had seen that happen after Concord and Lexington, when a New York patriot mob had stormed the King’s College president’s house, aiming to tar and feather him for his outspoken Toryism. The 20-year-old Hamilton boldly harangued the drunken, anarchic crowd about how they were about to “disgrace and injure the glorious cause of liberty”—just long enough for their target to flee out the back and take ship for England. So, too, in November did Hamilton try, unsuccessfully, to defend Tory newspaper publisher James Rivington when patriots destroyed his print shop.

“The same state of the passions which fits the multitude, who have not a sufficient stock of reason and knowle[d]ge to guide them, for opposition to tyranny and oppression, very naturally leads them to a contempt and disregard of all authority,” Hamilton wrote John Jay after the Rivington incident. “When the minds of these are loosened from their attachment to ancient establishments and courses, they seem to grow giddy and are apt more or less to run into anarchy. . . . In such tempestuous times, it requires the greatest skill in the political pilots to keep men steady and within proper bounds, on which account I am always more or less alarmed at every thing which is done of mere will and pleasure, without any proper authority.”

This sentiment lay at the heart of Hamilton’s political vision. “Men are reasoning rather than reasonable animals, for the most part governed by their passions,” he once remarked—a very different vision from Jefferson’s Enlightenment rationalism. “Why has government been instituted at all?” he asked. “Because the passions of men will not conform to the dictates of reason and justice, without constraint.” So while the Constitution that finally emerged from the convention couldn’t bring about “the deceitful dream of a golden age,” which no earthly government can accomplish, Hamilton noted, it was unquestionably a practical framework for ensuring liberty while keeping men steady and within proper bounds. Drawing from all the advances of “the science of politics,” it provided for the “regular distribution of power into distinct departments—the introduction of legislative balances and checks—the institution of courts composed of judges, holding their offices during good behaviour—the representation of the people in the legislature by deputies of their own election. . . . These are . . . powerful means by which the excellencies of republican government may be retained and its imperfections lessened or avoided”—exactly what he was seeking in his marathon convention speech.

This was a constitution that Hamilton thought worth fighting for, offering everything he had called for in his 1780 letter to Duane. With his then-friend James Madison and John Jay (whom rheumatism soon sidelined), he began the greatest propaganda campaign ever in favor of the Constitution’s ratification—The Federalist Papers, 85 newspaper columns, some 50 of which Hamilton wrote, sometimes two, occasionally five or even six, a week. The first, which Hamilton penned on a passenger sloop from New York to Albany, appeared on October 27, 1787, and stressed how high the stakes in the debate were: “whether societies of men are really capable or not, of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions, on accident and force.” We learned from our “unequivocal experience . . . in the course of the revolution” that our existing governmental structure doesn’t work, Hamilton argued, and now the trade disputes raging between different states show that the old structure may prove too weak to hold our union together in the future. We could end up, like the European countries, divided into several warring “confederacies,” each too weak to defend itself against the depredations of the European powers.

The new Constitution, he argued as The Federalist progressed, fixes these problems by creating “a vigorous national government” with sufficient powers to protect us “as well against internal convulsions as external attacks,” to regulate international and interstate commerce, and to carry on foreign affairs. It provides for vital “energy in the executive.” It allows the federal government to raise armies and build a navy, as it must “if we mean to be a commercial people.” And it permits the government to tax, since “money is . . . the vital principle of the body politic,” government’s “essential engine.” But a proto–Laffer effect will keep taxes in check. “If duties are too high they lessen the consumption . . . ; and the product to the treasury is not so great as when they are confined within proper and moderate bounds.” And, of course, “if we are in earnest about giving the Union energy and duration, we must abandon the vain project of legislating upon the States in their collective capacities: We must extend the laws of the Fœderal Government to the individual citizens of America,” making the national government supreme at the expense of the state governments.

In June 1788, the Constitution took effect when the ninth state ratified it. In July, New York State decided to sign on, too, thanks primarily to a month of Hamilton’s heroic speechifying at the Poughkeepsie ratifying convention. Wildly pro-Constitution Gothamites celebrated their townsman’s magnificent achievement as author and orator with a rollicking parade, featuring a flag that depicted Hamilton with trumpet-blowing Fame, and climaxed by a 27-foot frigate-shaped float pulled by ten horses and christened the Federal Ship Hamilton. Marching down Broadway with the celebrants was Hamilton’s old St. Croix boss, Nicholas Cruger.

Once George Washington took office under the new Constitution on April 30, 1789, that “energy in the executive” that The Federalist had extolled turned out to be Hamilton himself. Appointed Treasury secretary in September—the startled Washington had only recently learned that his ex-aide was a financial whiz—Hamilton, now 34 and the administration’s chief policymaker, turned to the financial crisis undermining the nation. He did more than solve it.

He used it as an occasion to bring about his own mini-revolution, transforming what historian Forrest McDonald calls a “hierarchical and deferential social order”—in which freely elected justices of the peace always turned out to be generation after generation of the same family and Harvard listed students in order of family prominence—into a free-market, opportunity society in the New York tradition.

“The fabled birth of Minerva from the brain of Jove,” Daniel Webster exclaimed, “was hardly more sudden or more perfect than the financial system of the United States as it burst forth from the conception of Alexander Hamilton.” Certainly all the complex pieces came into being almost simultaneously and meshed together with Swiss-watch precision. But the exquisite mechanism had a purpose, which Hamilton explained in his 1791 Report on Manufactures, and it’s worth understanding the why before quickly considering the how.

Under the “more equal government” that the Revolution and new Constitution established, America now enjoys unprecedented “personal independence” and “perfect equality of religious privileges,” he wrote. Its next task is to nurture a diversified economy that includes manufacturing. The object is not just the production of more goods and services but of human fulfillment in thinking them up and creating them. So while “a more ample and various field of enterprize” will certainly increase the wealth of the nation, it will also allow all “the diversity of talents and dispositions which discriminate men from each other” to develop to their fullest excellence. In a society with limited opportunity, “minds of the strongest and most active powers for their proper objects . . . labour without effect, if confined to uncongenial pursuits.” But “when all the different kinds of industry obtain in a community, each individual can find his proper element, and can call into activity the whole vigour of his nature.” To Hamilton, this free-market entrepreneurialism is a kind of soulcraft. “To cherish and stimulate the activity of the human mind, by multiplying the objects of enterprise, is not among the least considerable of the expedients, by which the wealth of a nation may be promoted.”

Once in motion, who knows how far the machinery of opportunity and progress can go? The more demand expands, the more enterprise responds. “Every new scene, which is opened to the busy nature of man to rouse and exert itself, is the addition of a new energy to the general stock of effort. . . . The bowels as well as the surface of the earth are ransacked for articles which were before neglected. Animals, Plants and Minerals acquire an utility and value, which were before unexplored.” Prosperity grows, invention and ingenuity flourish, dependence on (and vulnerability to) foreign powers shrinks.

But to reach that point takes a money economy, and that’s what Hamilton created out of the $76 million that the nation and various states owed to soldiers, army suppliers, and foreign lenders. That debt, said Hamilton in his January 1790 Report on Credit, “was the price of our liberty,” and it would be shameful to repudiate it, as some politicians urged. It would be impolitic, too: for if the federal government could convert all the various bonds and promissory notes representing those debts into federal government securities that people believed would actually be paid in full, those securities could serve as money. They could serve as a medium of exchange that would “give greater means for enterprize,” extending trade, manufacturing, and agriculture. But they could do so, to repeat, only if people believed that they were really worth what they said they were worth, and government creates such belief by keeping its promises, not repudiating them.

Of course, the nation had insufficient gold and silver to pay these debts in full, so Hamilton proposed instead to renegotiate and restructure them into several kinds of interest-bearing annuities. He would pay the interest by levying import duties and excise taxes sequestered in a special “sinking fund” that he’d also use to buy up bonds in the market whenever they fell below their face value, thus pushing the price back up to “par” (as he did spectacularly to calm the markets like a seasoned central banker when the bursting of a speculative bubble gave way to the panic of ’92). Thus stabilized in value, the securities could serve as money.

But in the process, Hamilton had to untangle a jumble. Some original holders had sold their promissory notes at big discounts; and in converting these to federal bonds, some legislators asked, shouldn’t the government in fairness discriminate among holders, paying a speculator who’d bought an IOU from a hard-up ex-soldier only what he’d paid for it, plus interest, and giving the rest of the face value to the veteran whose wounds had earned it? Hamilton managed to talk Congress out of such discrimination, arguing that it would be an administrative nightmare of dubious justice, and that it would subvert the whole enterprise, because unless people believed that government securities were worth their face value, they wouldn’t be negotiable and so wouldn’t serve as money.

And what of the state debts? Hamilton thought that the federal government—meaning everybody—should assume responsibility for paying them, since they’d been incurred in the national cause. He also didn’t want the states competing with the federal government in taxing the same items. But Virginians, who’d already settled most of their debt for pennies on the dollar, and who had lots of House votes, disagreed. And so Hamilton made his famous deal with Jefferson and Madison over dinner on June 20, 1790. They’d provide the votes for the federal “assumption” of state debts, if Hamilton delivered the votes for moving the national capital from New York to Philadelphia for ten years and then to a permanent site on the Potomac, where the Virginia statesmen incidentally had bought up lots of land. By the end of July, the necessary legislation had passed. And by December, paper worth $15 million when Hamilton first went to work in his Broadway office just below Wall Street had risen in value to $45 million.

That month, now in the new capital of Philadelphia, Hamilton sent Congress his Report on a National Bank, laying out the last parts of his plan—a bank to issue currency and lend it, a mint to print and coin it, and a customs service to collect duties and catch smugglers. Paper money, Hamilton understood, has an almost magical aspect. Like a bond, a banknote is just a promise, resting on the credit of the issuer, and credit is mere belief. He had already noted in his Report on Credit that “in nothing are appearances of greater moment, than in whatever regards credit. Opinion is the soul of it, and this is affected by appearances, as well as realities.” Now he intended to use the prestidigitation of credit to levitate the nation into economic modernity.

“Gold and silver, when they are employed merely as the instruments of exchange and alienation, have been not improperly denominated dead Stock,” he explained in the Report on a National Bank; “but when deposited in Banks, to become the basis of a paper circulation, which takes their character and place, as the signs or representatives of value, they then acquire life, or, in other words, an active and productive quality.” That’s because, first, the bank can issue paper currency far beyond the value of the precious metal in its vault, since people have sufficient faith that they can redeem their dollar bill for a dollar’s worth of gold or silver that they never do the experiment. How far beyond the value of the gold and silver can the paper currency grow? In a breathtaking leap of daring, Hamilton arranged that, of the bank’s $10 million capitalization, only $2 million would be actual precious metal; the rest would be . . . federal government bonds, so that the national debt would support an even larger superstructure of credit. Stockholders would pay for their shares in four installments over two years. For the first six months, therefore, Hamilton balanced a $10 million elephant of currency on a $500,000 ball of specie.

So why was this not a pyramid scheme? Hamilton made one of those leaps of faith that, once made, prove true. He believed that the country had a vast latent productive capacity and raw developable land that just needed to be unlocked with capital to start gushing wealth. As things stood, he had written as far back as 1780, “the money in circulation is not a sufficient representative of the productions of the country.” The bank’s ability to put its capital to work, incessantly circulating it in notes or in loans at interest, so that it never lies idle, is to “all the purposes of trade and industry an absolute increase of capital,” he observed. “And thus by contributing to enlarge the mass of industrious and commercial enterprise, banks become nurseries of national wealth.” By giving loans to the creditworthy, banks “enable honest and industrious men, of small or perhaps no capital to undertake and prosecute business, with advantage to themselves and to the community,” he wrote, as one self-made man hoping to give others the same opportunity; and indeed, he took care to issue currency in small denominations, so that even the humblest could reap the benefits of the new economy.

Hamilton insisted that the bank be run privately, not by government (which held a 20 percent stake, to give it some oversight power). A private bank would take care not to print more money than its capital could support or than the economy could productively employ, since otherwise people would try to cash in superfluous banknotes for specie, depleting the bank’s reserves. Underlying the magical belief, he repeatedly insisted, had to be a foundation of hard reality: some specie is really there; loans go to people whose character and business plans the bank finds, after careful inspection, solid enough to pay back the money. Politicians are less prudent. “The stamping of paper is an operation so much easier than the laying of taxes,” Hamilton noted, that in an emergency, government would too readily roll the presses, producing inflation and ruining the bank’s credit. Stupid, yes: “But what government ever uniformly consulted its true interest,” he asked, “in opposition to the temptations of momentary exigencies?” In this case, at least, government did the right thing, and Washington signed the bank bill in February 1791.

As Hamilton rolled out his new revolution, opponents rose up in outrage. One revolution, they thought, had been enough, perhaps even too much. Some, like New York governor George Clinton, guarding his vast power from federal constraint, resisted even ratifying the Constitution as long as he could. Others, especially Jefferson, believed that the Hamiltonian system would exalt Northern urban “stock jobbers” over Southern agriculturalists, and even Harvard-trained John Adams thought bankers mere “swindlers and thieves.”

Still others, with Jefferson and Madison at their head, feared that Hamilton’s energetic expansion of federal power threatened constitutional liberty. Where, for instance, does the Constitution give government authority to charter a bank? They pooh-poohed Hamilton’s contention that Article I, Clause 8, allowing Congress to make any law “necessary and proper” for carrying out its enumerated powers, provides such authority by arming government with what Hamilton called “implied as well as express powers.” They rejected his argument that a sovereign government has the “right to employ all the means requisite and fairly applicable to the attainment of the ends” for which it was established, an argument that is a Federalist leitmotif, even in the numbers written by a younger and wiser Madison. The “necessary and proper” clause, they countered, doesn’t license merely convenient but only indispensable means. If government goes down the Hamiltonian road, Jefferson warned, it takes “possession of a boundless field of power, no longer susceptible of any definition”—exactly the arbitrary, monarchical power we fought a revolution to overthrow.

What would such power do? It would bring about, said Patrick Henry, what “I have ever dreaded—subserviency of southern to northern interests.” By which he meant, as he had phrased it more succinctly three years earlier in opposing the Constitution, “They’ll free your niggers.”

The Framers, who hoped they’d found a way for the nation to be half slave and half free, in any event agreed not to keep raising the issue—an agreement, Chernow points out, that during the debates over Hamilton’s financial system “allowed southern slaveholders to proclaim that northern financiers were the evil ones and that slaveholders were the virtuous populists, upright men of the soil.” But the tension remained—becoming the mainspring of our history from the 1820 Missouri Compromise to the Civil War—and Northern abolitionists never heeded the gentlemen’s agreement. Hamilton himself, who hated slavery from seeing its barbarities firsthand in the West Indies—Beekman and Cruger had traded in slaves; his mother had owned them—had become a founding member of the New York Manumission Society in 1785, and after the Revolution he had declared the very idea of making Britain return or pay for slaves it had freed “odious and immoral.” It took decades, but Patrick Henry’s prediction proved correct.

To his rivals, then, Hamilton’s “federalist” program was less a revolution than a counterrevolution against liberty and limited government, and their opposition, which defined American politics for most of Washington’s administration, was bitter. For his own part, aside from his wry awareness that, in Doctor Johnson’s phrase, “we hear the loudest yelps for liberty among the drivers of negroes,” Hamilton abhorred the version of liberty that the “antifederalists” increasingly embraced—the liberté of the French Revolution, which began two months after Washington took office and filled Hamilton with a “foreboding of ill.” In The Federalist, he had rejected, in favor of practical real-world experience and the lessons of history, “those idle theories which have amused us with promises of an exemption from the imperfections, the weaknesses, and the evils incident to society in every shape.” Now, he wrote to Lafayette, “I dread the reveries of your philosophic politicians . . . who being mere speculists may aim at more refinement than suits . . . with human nature.” They mistakenly saw men as reasonable rather than merely reasoning creatures, able to re-create society from logical first principles rather than modestly building on “ancient establishments and courses,” in light of “that best oracle of wisdom, experience.” Human nature being the imperfectible thing it is, he thought, the French would more than likely “run to anarchy.”

When they did, in the massacres, regicide, and Terror of 1792 and ’93, his dread deepened. When France’s ambassador, “Citizen” Genêt, arrived in America in April 1793 and, flouting U.S. neutrality, enlisted American vessels as privateers against British shipping, Hamilton was scandalized, as he was by Genêt’s stirring up pro-French democratic-republican clubs in U.S. cities to demonstrate in favor of the Revolution. One huge Philadelphia mob, John Adams reported, even “threatened to drag Washington out of his house and effect a revolution in the government or compel it to declare war in favor of the French Revolution and against England.” When Republicans (as the antifederalists renamed themselves) started calling one another “citizen” and became so pro-Revolution that, “rather than it should have failed,” as Jefferson declared, “I would have seen half the earth desolated,” Hamilton began to fear that the homegrown “spirit of Jacobinism” could lead in America to “calamities of which the dreadful incidents of the French revolution afford a very faint image.”

The ferocity of this clash, which marked the birth of our two-party system, startles us today. Did Republicans and Federalists really mean it when they cursed each other as “monarchists” and “anarchists”? Yes—for their experiment in government, still brand-new, seemed fragile to them. Benjamin Franklin’s famous answer to the question of what kind of government the Constitutional Convention had produced was: “A republic—if you can keep it.” As Hamilton put it in 1800, in terms that make clear he was our Edmund Burke: “A new government, constructed on free principles, is always weak, and must stand in need of the props of a firm and good administration; till time shall have rendered its authority venerable, and fortified it by habits of obedience.” The Hamiltonians and Jeffersonians each saw the other as perverters of Franklin’s trust.

And they said so pseudonymously in their party newspapers, the Republicans with a scurrility that even modern bloggers rarely achieve. Hamilton, wrote Governor Clinton or one of his henchmen, was “Tom S***,” a “mustee” (the origin of the false belief that Hamilton had African blood). Partial to “the pagentry of rank, the influence of money, . . . and the terror of military force” (wrote Madison in Philip Freneau’s odious paper), the Treasury secretary aimed to make one of George III’s sons king of the United States. Hamilton, writing in John Fenno’s paper, mildly asked if readers thought it right for Jefferson to use government funds to employ Freneau to attack a government in which he himself was secretary of state—and if they really agreed with Jefferson’s denunciations of Hamiltonian policies. “If to National Union, national respectability Public Order and public Credit they are willing to substitute National disunion, National insignificance, Public disorder and discredit—then let them unite their acclamations and plaudits in favour of Mr. Jefferson.”

Jefferson recalled that he and Hamilton were “daily pitted in the cabinet like two cocks,” and each privately tried to enlist Washington against the other. After the president told Jefferson that anyone who believed he didn’t support Hamilton’s measures must think him “too careless to attend to them or too stupid to understand them,” the secretary of state unleashed Freneau to attack Washington himself. Washington finally lost his iron control, Jefferson reported, and exploded in a cabinet meeting: “By God he had rather be in his grave than in his present situation; . . . that that rascal Freneau sent him three of his papers every day . . . ; that he could see in this nothing but an impudent design to insult him.”

In a now-familiar tactic, the Republicans tried to wear Hamilton down with two congressional inquiries, requiring written reports and days of testimony on his personal as well as official financial dealings. In truth, they wore each other down. Jefferson left the cabinet at the end of 1793, Hamilton resigned as Treasury secretary just over a year later, and Washington decided that two terms were enough and returned to Mount Vernon in 1797.

One of the dumbest things ever said about a land settled by immigrants seeking a new start across the sea is that there are no second acts in American lives. America, especially Hamiltonian opportunity America, is all about second chances—and third and fourth ones. But Hamilton himself had done almost everything in his power to make his own political comeback very difficult.

You’d think that any Treasury secretary would have known that when a pretty 23-year-old turns up at your door saying that her husband has left her and asking for money, you do not offer to bring her some at her house later that evening, and you do not start an affair with her the minute you arrive. But Hamilton was a sucker for pretty young women in distress (perhaps hoping to rescue someone like his mother). He’d been at West Point when Benedict Arnold’s treachery came to light, for example, and he completely fell for artful coconspirator Peggy Arnold’s charade of innocence as she tearfully received him, Washington, and Lafayette, all heaving bosom out of a cheap romance. And at the height of his power, as he was guiding his bank bill through Congress in the summer of 1791, he fell just as easily for Maria Reynolds, who with her husband seems to have made a career of shaking down prominent men.

At first, the husband, who soon claimed to have reconciled with Maria, just “happened” to ask Hamilton for a Treasury job, without success. A wary Hamilton thought he’d better break off the affair, but Maria’s “appearances of violent attachment, and of agonizing distress at the idea of relinquishment” played on his “sensibility, perhaps my vanity,” so he planned “a gradual discontinuance . . . as least calculated to give pain, in case a real partiality existed”—meaning he couldn’t keep away from her. “Do something to Ease My heart Or Els I no not what I shall do for so I cannot live,” she wrote, in one of a series of such letters. “The variety of shapes which this woman could assume was endless,” Hamilton exclaimed with a half-admiring exasperation.

Just before Christmas, the husband pretended to “discover” the sexual goings-on and extorted $1,000 in blackmail “as the plaister of his wounded honor,” as Hamilton put it. A month later, Reynolds wrote Hamilton, “inviting me to renew my visits to his wife,” which Hamilton did, allowing Reynolds systematically to “levy contributions upon my passions on the one hand, and upon my apprehensions of discovery on the other.” With studied professionalism, Reynolds made sure that a witness, another lowlife named Clingman (who later married Maria), saw Hamilton several times as he came to his house to visit Maria—as he did, all told, for nearly a year. Having risen so high, Hamilton was back among the grifters he thought he’d left behind.

Of course, no amount of money would stop these people from using the power they had over him, and they passed it on to his enemies. When Reynolds and Clingman landed in jail as swindlers (on a different matter), Clingman, appealing to his ex-boss Congressman Frederick Muhlenberg for help, told him that he could “hang” Hamilton for conspiring in financial hanky-panky at the Treasury with Reynolds, showing notes from Hamilton to Maria as evidence. Duty-bound to investigate, Muhlenberg, together with another congressman and Senator James Monroe, called upon Hamilton in December 1792 to ask. Yes, said Hamilton, he had had dealings with Reynolds—but not “for purposes of improper pecuniary speculations” but rather because of Reynolds’s “design to extort money from me” for “an amorous connection with his wife.” Hamilton showed the three embarrassed legislators a sheaf of documents that amply persuaded them, and they declared themselves satisfied and sorry to have troubled him.

But the matter didn’t end there. In the summer of 1797, another Republican journalistic hit man named James Callender revived the corruption charges against Hamilton and revealed the sex scandal, which he’d learned from Monroe. (In Jefferson’s pay, like Freneau, Callender later turned on the sage of Monticello and revealed the then-president’s long affair with his slave Sally Hemings in 1802.) The official-misconduct charge ignited Hamilton’s fury. Scrupulously incorruptible and indifferent to riches, he had retired as Treasury secretary poor: the notoriously corruptible and rich French diplomat Talleyrand, who had become Hamilton’s friend when he took shelter in America from the Terror, reported with amazement, after glimpsing Hamilton through the candlelit window of his New York law office, “I have seen a man who made the fortunes of a nation laboring all night to support his family.”

With remarkably poor judgment—Washington seems to have supplied all of the political prudence in their long partnership—Hamilton churned out a luridly vivid pamphlet, which I have been quoting, denying financial corruption and explaining his transactions with Reynolds by detailing his relations with Maria. Had he kept silent, the gutter-press rumormongering would have died away. But now his enemies roasted him. Hamilton’s “whole proof in this pamphlet rests upon an illusion,” cackled Callender. “ ‘I am a rake and for that reason I cannot be a swindler. I have not broken the eighthcommandment. . . . It is only the seventh which I have violated.’ ” His friends kept an embarrassed silence.

But there was a worse pamphlet to come. Late in the 1800 presidential campaign three years later, he wrote the Letter from Alexander Hamilton, Concerning the Public Conduct and Character of John Adams, Esq. President of the United States that Adams believed cost him reelection. He already believed that Hamilton’s support of a rival Federalist had pared his presidential victory to a razor-thin margin, and he resentfully spurned his advice once in office. Hamilton nevertheless gave sub-rosa counsel to cabinet members, and Adams, suspecting “a mischievous plot against his independence,” summarily fired two of them. The two clashed repeatedly over policy, and Adams believed that Hamilton was working against his reelection, when the reverse was true.

All this dirty linen Hamilton aired in his pamphlet, going on to argue that Adams had “great and intrinsic defects in his character, which unfit him for the office of Chief Magistrate,” including “a vanity without bounds, and a jealousy capable of discoloring every object.” His “ungovernable temper” makes him “liable to paroxisms of anger, which deprive him of self-command” (to the point, Jefferson recalled, of his “dashing and trampling his wig on the floor”). Nevertheless, he’s a Federalist, Hamilton concluded, and “I have finally resolved not to advise the withholding from him of a single vote.” Adams went down in defeat, the Federalist party split in two and slowly died, Hamilton entered the political wilderness, and the Southern Republicans he so despised—Jefferson, Madison, and Monroe—reigned for the next quarter-century.

Some think that Hamilton went into his duel with Aaron Burr five years later out of suicidal despair over the wreck of his political career. That wasn’t the case. He had built his beautiful yellow villa at the very top of Harlem Heights in 1802 and was happy to work on his highly successful law practice in his little book-lined study there, to take his gun round his 35 acres of woods looking for game birds, to tend the garden laid out by his friend Dr. Hosack, to read to his seven children, and to gaze out the floor-to-ceiling bow window of his long drawing room at the magnificent rural view northward up the Hudson and eastward to Long Island Sound. “A disappointed politician is very apt to take refuge in a garden,” he explained.

But he wasn’t even done with politics. Late in 1801, he and nine partners founded the New-York Evening Post—still operating today as the morning New York Post—and its editor recalled often calling on Hamilton late in the evening to get help thinking through some important political development. “As soon as I see him, he begins in a deliberate manner to dictate and I to note down in shorthand,” William Coleman recounted. “When he stops, my article is completed.” And when Vice President Aaron Burr, knowing that Jefferson would drop him from the ticket in the 1804 election, decided to run for governor of New York instead, Hamilton roused all his political skill and passion to stop him. Hamilton had met the handsome, dapper, wellborn roué when Burr momentarily served on Washington’s wartime staff; their legal careers intertwined ever since they both joined the bar. Hamilton thought Burr a cynical opportunist with “no principle, public or private,” who had never produced “a single measure of public utility” in political life, and who should not be governor of his home state. “If we have an embryo-Caesar in the United States,” he thought, “’tis Burr.”

What actually led him to the duel was a tragic choice he had made just after the Post was born. He was a man torn between two irreconcilable ideals. Having come into the world with a congenital disgrace, he was self-made even in the matter of honor, thinking his own so precarious that he was quick to take offense at any slight, large or small. He castigated Adams, for example, for not asserting “the national dignity” after “the mortifying humiliations we had endured” from revolutionary France’s undeclared war on U.S. shipping in 1797 and ’98. Like most soldiers, he believed in asserting honor through dueling, and he had nearly challenged Monroe over the Virginian’s leaking the supposedly confidential facts of the Reynolds affair. On a practical level, he believed that the disgrace of evading a duel would ruin anybody’s political future. But as he got older, his early religiousness returned, and he knew dueling was wicked.

So when he learned that his beloved 19-year-old “eldest and brightest hope,” Philip—whom he had often taken with him, with one or another of his younger sons, when he had to be away on long official trips—was to fight a duel the next day, he was torn over what advice to give, especially since Philip had gotten into the duel by calling his opponent a “rascal” for a speech insulting Hamilton himself. Hamilton advised a course he thought would reconcile honor and morality. Philip should shoot into the air, honorable behavior in the dueling code. His opponent might do the same or might miss; only one duel in five was fatal. But this one was. Taken to his uncle’s house with a bullet in his gut, Philip died after hours of agony, his weeping parents lying on either side, clinging to him.

And that drove Hamilton’s 17-year-old daughter mad. She lived to be 73 in a kind of permanent, fearful girlhood, talking of Philip as if he were still alive and singing the songs she used to sing with her father. Poor Angelica, said her younger sister when they were both old. “Lost to herself for half a century.” Material enough for novels by all the Brontës.

Hamilton could easily, and honorably, have avoided his duel with Burr. Enraged by his loss in the gubernatorial race, blaming Hamilton for working against him and wrongly thinking him the author of slashing campaign attacks, Burr wanted revenge. He found the occasion in a letter to a newspaper about its report that Hamilton had called Burr “a dangerous man and one who ought not to be trusted with the reins of government.” Actually, said the letter writer—a guest at the dinner party where Hamilton had made the remark—“I could detail to you a still more despicable opinion which General HAMILTON has expressed of Mr. BURR.”

That did it for Burr, who sent his second to demand that Hamilton explain what “despicable opinion” he held. The second diplomatically advised Hamilton to say that he had no idea what the dinner guest was talking about, which would have ended the matter right there. Hamilton replied instead that Burr had no business asking him such questions. When Burr then demanded that Hamilton take back anything he’d ever said “derogatory to the honor of Mr. Burr,” the duel was on.

Hamilton told his friends that he would “throw away” his shot: just what he’d advised his son to do. Hamilton’s friends told him not to do that, for Burr, a crack marksman, had been doing target practice and was rumored to mean to kill him. But Hamilton was thinking more about Philip than about Burr. Whether he lived or died, what he was seeking was atonement.

Rowing across to Weehawken on July 11, 1804, he famously looked back at the New York he had done so much to shape “and spoke of the future greatness of the city.” Arriving at the secluded ledge on the Jersey bank, he took his position, put on his glasses, and fired above Burr’s head, shooting some twigs off a cedar tree. Burr shot him through the liver and shattered his spine. “This is a mortal wound,” Hamilton said; and surrounded by his family and a dozen weeping friends, in the middle of the next afternoon, aged 49, he died.

He left a statement apologizing to his creditors if he didn’t leave enough to pay off the debt from building his little villa, explaining that he had looked forward to a “comfortable retirement” there after having “been so much harassed in the busy world” and that he expected the house, “by the progressive rise in property on this Island, and the felicity of its situation to become more and more valuable.” Indeed it did, as the engine of prosperity he set in motion enriched his city and nation.

As a result, his villa—the only house he ever owned—got moved not once but twice. In 1889, as his country landscape became urban, a developer bought part of his 35 acres to build row houses, and offered Hamilton Grange, as the house was called, to anyone who would move it. An Episcopal church rolled it two blocks from its original site at 143rd Street and Convent Avenue down to 141st Street, to use as a rectory, wedging the house in sideways to fit the space, moving the front door to the side, and shearing off the verandas. And now, moved again to a site where its porches can be restored, its front door put back, it still stands on Hamilton’s land, next to City College, where another generation of ambitious immigrants prepares itself to plunge into Hamilton’s opportunity America.

The National Parks Service, the house’s owner, is gradually restoring it. Already the architects have scraped away dozens of layers of paint to discover the original pale yellow of the drawing-room walls, and they’ve discovered, by taking down plaster, that early descriptions of the room, with three mirrored doors echoing the tall bow window at the room’s other end and reflecting its view, are correct. They’ve even found the doors.

I’m hoping they’ll find the original furniture: the piano that Angelica Hamilton used to play, I know, is stored in a warehouse somewhere. But most of all, I hope Hamilton’s silver ice bucket turns up.

It arrived at his door when the scandal over the Maria Reynolds affair was at its height and he badly needed some support. In the box, he found this note: “Not for any intrinsic value the thing possesses, but as a token of my sincere regards and friendship for you and as a rememberance of me; I pray you to accept a Wine cooler for four bottles. . . . It is one of four I imported in the early part of my late administration of the Government; two only of which were ever used. I pray you to present my best wishes, in which Mrs. Washington joins me, to Mrs. Hamilton & the family; and that you would be persuaded, that with every sentiment of the highest regard, I remain your sincere friend and affectionate Hble. Servant. Go: Washington.”

He understood better than anyone the man’s incomparable worth.

Myron Magnet is City Journal’s editor-at-large and was its editor from 1994 through 2006. He is the author of The Dream and the Nightmare: The Sixties’ Legacy to the Underclass and a recipient of the National Humanities Medal.

Source: http://www.city-journal.org/2009/19_1_urb-alexander-hamilton.html

It’s worth recalling that when the Founding Fathers led the American colonists in revolt against British oppression, they weren’t rebelling against torture on the rack or being chained in galleys or having to let aristocrats deflower their daughters. They were rebelling against taxes. To them, having to pay duties they hadn’t voted for themselves was a tyrannical taking of property—theft—and, in true Lockean fashion, they concluded that since government exists to protect life, liberty, and property, a regime that does the opposite renders itself illegitimate. What would they make, then, of today’s New York City, where 1.2 percent of the taxpayers—40,000 households—pay 50 percent of the income taxes, and half the households pay no income tax at all? If the tax code ensures that those who pay the bulk of the taxes are always a minority of those who vote for the legislature that imposes the taxes, isn’t that taxation without representation? Isn’t it also the tyranny of the majority that the Founders tried to prevent?

A state of affairs so opposed to the Founders’ vision could never have come about all at once. It took shape in emergency spurts, sparked by upheavals like the Civil War, which prompted crisis measures like the first federal income tax (made legal retrospectively in 1913 by the Sixteenth Amendment). For New York, the cataclysmic turning point was the Depression. Gotham was the New Deal metropolis, with New York senator Robert F. Wagner and Gotham mayor Fiorello La Guardia falling over each other to make the city the showcase for President Franklin D. Roosevelt’s big programs, designed (among other aims) to turn urban ethnics—whose normally supportive banks and charities the Depression had crushed along with their jobs—into the foundation of Democratic Party power.

As New York’s governor, FDR had already begun in 1931 to provide the state’s jobless with welfare proper—direct relief in money, food, and clothing—for the first time in over half a century. As president, he made the program national in 1933 through the Federal Emergency Relief Administration, and La Guardia quadrupled Washington’s funds with lavish state and city supplements. After the mayor heard that insolent city workers were worsening the already-painful humiliation of getting aid, he rushed down to a Lower East Side relief station to investigate. When he saw abashed applicants waiting and waiting, while an official in a hat lounged with his feet on a desk, smoking a cigar, La Guardia famously strode over to him, knocked the cigar out of his mouth and the hat off his head, and barked, “Take your hat off when you speak to a citizen!” Later he announced, “That’s another s. of a b. that has no job.” In 1935, the feds instituted another cash relief program, this one for fatherless families: Aid to Dependent Children, which was supporting 700,000 kids nationwide by 1939 and later became the main U.S. welfare scheme. In addition to such cash programs, FDR’s Public Works Administration put New Yorkers to work building the Triborough Bridge, the Lincoln Tunnel, and La Guardia Airport; by 1936, the Works Progress Administration had employed 250,000 Gothamites to construct, under the direction of La Guardia and Parks Commissioner Robert Moses, public swimming pools, beaches, playgrounds, and hospitals.

La Guardia had set about constructing the first welfare city from the moment he entered City Hall. In his 1933 campaign, he had floated the unprecedented idea of government housing, and when he won, the White House offered to fund a New York City Housing Authority if the new mayor would set it up. On a frigid December 3, 1935, the nation’s first-ever public housing project opened on the Lower East Side. “A great constitutional lawyer two years ago told me it would be a cold day when the government builds houses,” said La Guardia at the dedication of the 122-unit complex, proudly highlighting the radicalism of his accomplishment. “Well, he was right that time.” Constitutional or not, eight more projects arose during La Guardia’s three terms in City Hall. In addition, with $315 million in bond financing, the mayor took over the city’s three ailing and deteriorating private subway companies, along with its bus lines, in 1939 and 1940, turning transportation into a government-subsidized public service and transit workers into civil servants. To accompany his publicly funded municipal hospitals, he also set in motion a subsidized health-insurance program, which began operating just before he died in 1947.

Taken together, all these programs not only expanded government unimaginably but also created a comprehensive new rationale for it, very different from the Founding Fathers’ political philosophy. Not content with ensuring the liberty in which individuals are free to pursue their own happiness in their own way, government was now going to hand it to them. “We are trying to make people happy,” La Guardia announced. “We are going to make our city a real heaven,” he promised, taking politics into a realm beyond the mere art of the possible.

A much subtler thinker, Roosevelt—in the spirit of never letting a good crisis go to waste, as a modern Democrat would put it—calculatedly used the Depression as an occasion to remake society in accordance with his own vision of “social justice” and freedom, though his new birth of freedom stood Lincoln’s on its head. “Necessitous men are not free men,” he postulated. The great corporations and the tycoons who controlled them before the New Deal, he said, “had concentrated into their own hands an almost complete control over other people’s property, other people’s money, other people’s labor—other people’s lives. For too many of us, life was no longer free; liberty was no longer real; men could no longer follow the pursuit of happiness. Against economic tyranny such as this, the American citizen could appeal only to the organized power of government.”

But while big government existed to protect the individual from big business, the individual paradoxically faded out in FDR’s worldview, changed in the president’s imagination into a unit in the great social machine. “For it is literally true that the ‘self-supporting’ man or woman has become as extinct as the man of the stone age,” he declared. “Without the help of thousands of others, any one of us would die, naked and starved.” Moreover, the great social machine is better off without the rugged individuals of yore, since in Roosevelt’s conventional (and mistaken) economic theory, the Depression was a crisis of overproduction, with an excess of goods and services forcing down prices and wages. “The day of the great promoter or financial Titan, to whom we granted everything if only he would build, or develop, is over,” FDR pronounced. “Our task now is not discovery, or exploitation, of natural resources, or necessarily producing more goods. It is the soberer, less dramatic business of administering resources and plants already in hand, . . . of distributing wealth and products more equitably.” Progress was something that had already happened; in FDR’s view—before the war, at least—America had reached the end of history.

Once you start talking about government’s equitable distribution of wealth—about giving government the power to define and create “fairness,” as Hayek put it—you have begun to leave democracy behind. And while both FDR and La Guardia were extraordinary visionaries with sincere sympathy for ordinary people, theirs was not a democratic vision. Roosevelt’s patrician paternalism saw the world from an Olympian height, from which individuals, in the shadow of the immense, almost superhuman institutions that concerned him, looked tiny and indistinguishable. The scale of his imagination was much grander than the Founders’ vision of a government powerful enough to protect individuals from the depredations of others but strictly limited and hedged by checks and balances to keep it from becoming an instrument of oppression, as history shows most governments have been.

In the same vein, La Guardia bristled at being called a “politician,” preferring the honorific “municipal officer.” In true Progressive fashion, he dreamed of government by enlightened, public-spirited experts, as opposed to venal (but democratic) Tammany-style pols, and he kept trying to soar above politics, defining himself as a “progressive” rather than a “regular” Republican. He flitted from party to party, winning the mayoralty in 1933 as the Fusion candidate, in 1937 as the Fusion, Republican, Progressive, and American Labor Party candidate, and in 1941 as the Republican candidate endorsed by his best Democratic friend, FDR. “You know I am in the position of an artist or a sculptor,” he explained. “I can see New York as it should be and as it can be if we all work together”—if, in other words, the voters would give him the power to mold their world into the shape he desired for them. Any great leader needs a vision, of course—needs to show people the world as it could be. But it is not surprising that the five-foot-two dynamo’s enemies called him the “midget Mussolini” or that he kept on his desk a figurine of that other dynamo of short stature who tried to impose his gigantic will on the world, Napoleon Bonaparte.

The Founders recognized the danger of a freely elected government’s becoming what Declaration of Independence signer Richard Henry Lee called an “elective despotism.” In their urgency to combat the Depression with all possible weapons, the New Dealers discounted that peril.

As so often happens, the emergency measures didn’t disappear when the emergency ended. But they needed an updated rationale. They got one in August 1943, when, after Gotham’s wartime job opportunities and its rich smorgasbord of welfare benefits had drawn waves of new black migrants into the city, a white cop summoned to settle an unruly dispute shot an unarmed black soldier, and Harlem erupted in riots. Even sober working people joined in the arson and looting, smashing windows and carrying off merchandise “in bundles and baskets and parcels.” Six died; property damage totaled $15 million. Mayor La Guardia’s response was to turn all the machinery of the new welfare city to eradicating the racial inequality that, in his view, had sparked the riots—though a Brooklyn grand jury at that very moment recommended better policing as the solution to that borough’s African-American lawlessness. Roundly condemning the Brooklyn approach, the mayor gave the welfare city a new justification: creating racial justice. For the first time, though, with New Deal money no longer flowing, the cost of welfare put the city budget in deficit. La Guardia’s successors raised taxes by dribs and drabs, a hotel levy here, a sales-tax boost there.

La Guardia was ahead of his time, but over 20 years later, when John Lindsay took over city hall during President Johnson’s War on Poverty and Nelson Rockefeller’s long, liberal reign as New York’s governor, the nation had caught up. Redressing three centuries of racial wrongs became America’s Number One political crusade. As always, New York marched in the vanguard, with LBJ taking as his chief antipoverty model a Lower East Side far-left community-organizing group called Mobilization for Youth, which emphasized confrontational political activism to change “the system,” poverty’s supposed cause.

Lindsay himself—a “progressive” Republican like La Guardia, though without the genius—adopted a dumbed-down version of Marx’s already-crude idea that ideas and values are merely an automatic reflection of the economic “base.” So he set out to provide poor black New Yorkers with middle-class incomes, middle-class housing in middle-class neighborhoods, and middle-class political control of schooling as a way of making them middle-class citizens with a middle-class outlook. The result of such governmental largesse was exploding welfare dependency, anarchic housing projects, family collapse, and open warfare between activists and teachers whose destructive consequences proved ineradicable. As the welfare rolls shot up under radical social-services chief Mitchell “Come-and-Get-It” Ginsberg, and as businesses and middle-class taxpayers began fleeing the disorder, taxes shot up, too, and New York City imposed its first personal income tax during Lindsay’s first year in office, 1966.

But over the following decades—and despite all the War on Poverty foolishness that turned so many of its supposed beneficiaries into an intergenerational underclass—the Civil Rights Act of 1964, along with a transformation of white attitudes about race, really accomplished the civil rights revolution that the country desired, fully opening American opportunity to African-Americans. Much effort went into denying this accomplishment—from blacks whose identity rested on their sense of grievance, from unionized service providers and clients fearful of losing their incomes, from politicians and advocates staring into the dustbin of history. But with the election of an African-American as president, even many blacks who once resisted the idea are starting to imagine themselves as an equal part of the American nation.

A democracy can’t tax citizens without a rationale, however cockeyed, as much of the War on Poverty’s rationale was. That’s part of the reason for the outrage over the Bush-era congressional earmarks to build a bridge to nowhere or remove tattoos or combat obesity: giving legislators taxpayer money to disburse as they saw fit, with no stated national purpose, pulled the veil off the great taxation machine and revealed parts of it, at least, as a racket—as theft, the Founders would say. Now our polity stands at an inflection point. “New Deal II: The War on Poverty” is over, its mission accomplished, though by different means than it foresaw. What do we do with the government machinery it justified?

A strangely fortunate by-product of the War on Poverty’s focus on minorities was that it largely insulated white America from the most destructive and demoralizing welfare programs and attitudes that retarded progress among many of the black and Hispanic poor. It shunted the New Deal welfare state onto a branch line, while England and Europe hurtled down the welfare state’s main line to much more widespread dependency and idleness, low growth, limited horizons, little innovation, and a grossly bloated public sector, with countless unproductive government drones gobbling up a porcine share of GDP and further constricting liberty through meddling, “fairness”-promoting diktats.

But in New York, with its vast population of the hereditary minority poor, we now have something less like the rest of America and more like the European welfare state: heavily and inequitably taxed; undemocratic, unsustainable, and largely pointless; with government telling us what to eat and where to smoke, using its total control of the school system to accomplish little beyond boosting costs dramatically, subsidizing or dictating the rents on half of the city’s rental apartments, forcing private health-insurance buyers to subsidize the care of the indigent, and prohibiting us from asking whether those who use the services we pay for are here legally. Our public services, even vital ones like the subway, work badly, because they operate less for the convenience of their users than for the sake of their unionized, overpaid employees, now not so much public servants as the public’s masters, through the vast political might they wield over so powerful a government.

On top of which, New York State, judged the “least free” in the nation in a new George Mason University study of personal and economic liberty, is quicker than the other 49 states to wield eminent domain to take away private property and give it to someone else, the absurd extreme of government-forced redistribution. Such unfreedom—along with “swarms of officers to harass our people, and eat out their substance”—would have driven the Founders to arms, but New Yorkers have no idea of how to reform a government that is essentially a one-party elective despotism with no checks and balances, and no democratic levers of change, such as voters’ initiatives and referenda. For us, the clearest solution is to leave, as millions of middle-class individuals and most of our Fortune 500 headquarters have done over the last half-century.

Struggling under the accumulated burden of eight decades of “progressive” government, we New Yorkers can serve as a warning to our fellow Americans as President Obama, following the New Deal playbook, seeks to use the current financial crisis to provide a new rationale and legitimacy for the gargantuan machinery of the federal government. Our economic ills, the president contends, require expanding the welfare state to include the majority of Americans not just in Medicare and Social Security but also in government-subsidized and -controlled health care and higher education—all paid for by an ever smaller percentage of the citizens, in the name of European-style redistributionist “fairness.” Logically, this plan is a non sequitur (in the process of turning, by constant repetition, into a Big Lie), since health care and education have nothing to do with the causes or cure of our present economic woes. But logic aside, consider New York’s government-controlled services and ask if they are worth taking to nationwide scale. Take a good look at the president’s tax plans, too, which will end up with many more Americans paying nothing and many fewer paying most of the bills. Once the tax eaters outnumber the taxpayers and can vote themselves an income, you have arrived at elective despotism.

And despotism is the real issue, much larger than high taxes and bad services provided by public employees whose pensions and lifetime health benefits dwarf those of most taxpayers who struggle to support them. Just look beyond European-style New York to Europe proper. In the name of “fairness,” European governments have criminalized free speech, with France prosecuting Brigitte Bardot, and Switzerland and Italy prosecuting Oriana Fallaci, for anti-Muslim statements, while the British home secretary who charged her husband’s porno movie rentals to the taxpayers has barred Dutch M.P. Geert Wilders and American talk-show host Michael Savage from Britain for fomenting anti-Islamic hatred. The Scandinavian countries have outlawed antihomosexual speech as well.

As Theodore Dalrymple has written in these pages, governments that take charge of life’s important matters—health care, pensions, the education of children—infantilize their citizens, making them so frivolous and torpid that they become unwilling even to defend their country and their way of life. “I have never learned to fight for my freedom,” Mark Steyn quotes one Dutchman saying ruefully about the Islamization of his country. “I was only good at enjoying it.” In this spirit, 15 British sailors surrendered without a shot to an Iranian gunboat in the Persian Gulf two years ago. “From the outset, it was very apparent that fighting back was simply not an option,” said a marine captain among these latter-day representatives of Lord Nelson’s indomitable tars. “Had we chosen to do so, then many of us would not be standing here today.” Such unblushing cowardice makes the Royal Navy, for all its costly weaponry, about as fearsome as the expensively armed Saudi or Egyptian air forces.

More important still, the propounders of the individualist work ethic, from Alexander Hamilton onward, had it right: a free society isn’t one that alleviates the burden of supporting ourselves and our families, but rather one that provides the opportunity to labor in a way that brings to light whatever human excellence may lie within us—a way that perhaps even adds to the sum of human progress. As opposed to FDR’s immense governmental machine throbbing mightily at the end of history, how much grander is Edmund Burke’s vision of society as “a partnership in all science; a partnership in all art; a partnership in every virtue and in all perfection.” It is a vision in which some can be the Titans Roosevelt rejected—not just the Morgans and the Vanderbilts that New York produced, but also its Edith Whartons and its Herman Melvilles. Most crucially, all can be humans, free citizens with a sense of purpose, not cogs.

Myron Magnet is City Journal’s editor-at-large and was its editor from 1994 through 2006. He is the author of The Dream and the Nightmare: The Sixties’ Legacy to the Underclass and a recipient of the National Humanities Medal.

Source: http://www.city-journal.org/2009/nytom_taxes.html

Irving Kristol, who died today at 89, was famously the godfather of neoconservatism, and he was the godfather of City Journal, too, having urged the Manhattan Institute’s then-president Bill Hammett 20 years ago to start a magazine. Ever practical and realistic, Irving knew that it wasn’t enough for conservatives to have good ideas; they also needed vehicles to communicate them. If the mainstream media—which in that pre-Internet era really had a monopoly on news and opinion—didn’t want to give conservatives a platform, there was no use complaining: we’d just have to start our own publications. Irving understood the power of ideas as well as anyone, but he also understood the power of institutions.

His own world-historically influential magazine, The Public Interest, bore Irving’s stamp of practicality and realism, indeed of realpolitik. It aimed, through its hard-headed emphasis on social-scientific data, to rise above mere theorizing and opinion into the realm of fact and proof. Ever the anti-utopian, in politics and in temperament, Irving was interested in the world as it is, not as some system wanted it to be. He’d had his youthful flirtation with left-utopianism and, disillusioned by experience, became a neoconservative—a liberal, as he defined it, who’s been mugged by reality. What he really meant, of course, was simply a liberal who’d been mugged—who’d seen that all the liberal, welfare-state ideals for the uplift of the poor, and especially the minority poor, had in the end produced a criminal underclass, exactly the opposite of the intended uplift. The good intentions counted for nothing with him and even sparked a certain dry contempt; it was the result that mattered.

For all The Public Interest’s hard-headedness, however, Irving—a New York Intellectual, after all—saw clearly the power of that very intangible reality, culture. He knew how perversely wrong Marx had been to think that economic relations mold the world, giving form even to our ideas. On the contrary, Irving understood, the ideas, beliefs, customs, virtues, even the prejudices that make up the tissue of our culture are the true shapers of reality. As he explained in his greatest essay, “When Virtue Loses All Her Loveliness,” which closes Two Cheers for Capitalism, Adam Smith, for all his greatness as an economist and philosopher, did not see how crucial to the functioning of markets as he described them was the Presbyterian culture of the Scotland that bred him, with its emphasis on probity, thrift, enterprise, and truthfulness. Even in the economic world, material reality is only part of the story.

As for virtue, how lightly and graciously Irving embodied it, in his storybook marriage to his intellectual equal, the historian Gertrude Himmelfarb, as a father to his accomplished children, and as a beloved, endlessly fascinating, convivial friend, as I, for whom New York became a poorer and duller place when Irving and Bea moved to Washington, can feelingly attest. He had a disabused, open-eyed optimism: when a huge crack opened in his pretty, nineteenth-century London living room when he was editing Encounter, he turned to Bea and said with a twinkle, “Well, that means we don’t have to worry about the children this year.” His generosity, especially to young conservatives, was legendary. It was partly a matter of policy, for nurturing the talented and finding them influential jobs is the way to build a movement. But it was even more an emanation of the sweetness of his temper and the depth of his humanity. I was complaining to him about New York’s plague of aggressive panhandlers back in the 1980s, and he said, “If someone is so in need that he asks me for money, who am I to determine what’s driven him to it? I always give something.” The reality he always had before him was the human reality.

Myron Magnet is City Journal’s editor-at-large and was its editor from 1994 through 2006. He is the author of The Dream and the Nightmare: The Sixties’ Legacy to the Underclass and a recipient of the National Humanities Medal.

Source: http://www.city-journal.org/2009/eon0918mm.html

Tuy nhiên, ở bình diện khác, hội nghị ấy vẫn mang tầm vóc lịch sử, vì, dù hay muốn hay không, nó là một dấu hiệu xác nhận các dự báo lý thuyết của nhiều nhà nghiên cứu xã hội vào những năm giao thời giữa hai thiên niên kỷ: sự chuyển biến khách quan của công cuộc hiện đại hóa thứ nhất sang thời kỳ hiện đại hóa thứ hai với một loạt các khái niệm mới mẻ như: xã hội-nguy cơ, xã hội-thế giới và nền văn hóa công luận… Có đủ lý do để chúng ta, khi đón xuân mới, thử tiếp cận với hệ vấn đề mới mẻ này, hay, nói đúng hơn, trở lại với vấn đề hiện đại hóa, một chủ đề của báo Xuân TBKTSG cách đây hai năm.

Từ “Hiện đại hóa thứ nhất” đến “Hiện đại hóa thứ hai”

Hiện đại hóa (thứ nhất) là một phức hợp những biến đổi bắt đầu từ thế kr thứ 18 ở phương Tây với các tiến trình công nghiệp hóa, đô thị hóa và cá nhân hóa. Luận điểm chủ yếu hiện nay: chúng ta đang là những chứng nhân của một sự đứt gãy của tiến trình hiện đại hóa, vì tiến trình ấy từng bước thoát ly khỏi các khuôn khổ của xã hội công nghiệp cổ điển để mang dấu ấn của một hình thái mới, gọi là xã hội-nguy cơ. Nếu trong ba thế kỷ qua, hiện đại hóa đã làm tan rã xã hội nông nghiệp lạc hậu và hình thành cấu trúc của xã hội công nghiệp thì công cuộc hiện đại hóa (thứ hai) ngày nay lại bắt đầu phá vỡ các khuôn khổ của xã hội công nghiệp để hình thành một hình thái xã hội mới. Đặc trưng để phân biệt giữa hai thế kỷ sẽ là sự thay thế “logic của việc sản xuất sự giàu có” bằng một “logic” mới đang ngày càng chiếm ưu thế. “logic của việc sản xuất nguy cơ”, đồng thời cũng là sự biến đổi từ “logic của việc phân phối sự giàu có” thành “logic của việc phân phối nguy cơ”.

Trong xã hội tiền hiện đại, nguy cơ chủ yếu gắn liền với thế giới tự nhiên: đói kém, bệnh tật, động đất…; còn ngày nay nguy cơ chủ yếu do chính con người tạo ra: sản xuất thừa, bất công, thất nghiệp, ô nhiễm với các dạng nguy cơ điển hình: hạt nhân, hóa học, sinh học và môi trường. Xã hội nguy cơ do nhân tai dần thế chỗ cho xã hội bất trắc do thiên tai.

Xã hội – nguy cơ, theo cách gọi của nhà xã hội học Ulrich Beck, sẽ mang nhiều đặc tính chưa từng có trước nay:

- Các bất trắc của xã hội tiền hiện đại và các khuyết tật của xã hội công nghiệp cổ điển dễ được nhận diện và xử lý. Trái lại, các nguy cơ ngày nay không dễ dàng nhận thấy, không ai quản lý và ảnh hưởng lâu dài đến các thế hệ tương lai : chẳng hạn, phóng xạ, hóa chất độc hại, ô nhiễm không khí thực phẩm biến đổi đen…

- Mâu thuẫn trung tâm của xã hội hiện đại: những đại nguy cơ do chính con người tạo ra nhưng lại rất khó quy lỗi cho ai và không biết phải xử lý làm sao, vì chúng không thể bù đáp được bằng tiền bạc và cũng không thể bảo hiểm. Nói khác đi, đó là một “sự vô trách nhiệm có tổ chức”!

- Trong xã hội công nghiệp, tác động của sự bóc lột, nghèo đói, bất công… được cảm nhận khác nhan tùy theo vị trí xã hội, trong khi đó, các nguy cơ của xã hội hậu công nghiệp không còn được phân chia hay sắp xếp theo trật tự giai cấp: người giàu, kẻ mạnh đều không thoát nạn: “sự túng quẫn thì có tính đẳng cấp, còn ô nhiễm không khí thì… dân chủ!”.

- Các nguy cơ vượt ra khỏi ranh giới mọi quốc gia; xã hội nguy cơ cũng đồng thời là xã hội nguy cơ toàn cầu.

- Cấu trúc của sự bất công xã hội trong mỗi quốc gia và trong phạm vi thế giới còn lâu mới có thể thay đổi, nhưng xã hội nguy cơ sẽ làm biến đổi sâu sắc những điều kiện sống vật chất lẫn văn hóa. Vị trí kinh tế trong xã hội không còn nhất thiết đi liền với sự dị biệt về đẳng cấp như trước đây nữa. Hệ thống phúc lợi xã hội hiện đại, tính cơ động trong điều kiện sinh hoạt và làm việc của mọi người, nhất là của phụ nữ, sự bùng nổ của nền giáo dục suốt đời, và mở rộng liên tục những quan hệ cạnh tranh… sẽ thúc đẩy mạnh mẽ tiến trình cá nhân hóa. Thật thế, trước đây, trong quá trình công nghiệp hóa, con người trở thành một bánh răng trong bộ máy, một con số bị quản lý, cá nhân là một cá nhân thụ động, bị tổn thương (theo cách nhìn của Weber, Adorno, Horkheimer, Foucault…). Trong thời kỳ công nghiệp phát triển, từ một cách nhìn khác (Durkheim, Parsons, Luhman…), con người được giải phóng để trở thành cá nhân chủ động, thậm chí trở thành cá nhân nguy hiểm, cá nhân phì đại (hyper-individual), có khả năng gây tổn hại cho sự cố kết xã hội.

Trong thời kỳ hiện đại hóa thứ hai đang và sẽ diễn ra, tiến trình cá nhân hóa không khỏi mang lại một loại hình cá nhân khác nữa: cá nhân nước đôi, cá nhân nguy cơ, với tất cả thách thức lẫn cơ hội không lường trước được. Sự mất an toàn sẽ thay chỗ cho sự khan hiếm. Cộng đồng nhu cầu chuyển thành cộng đồng lo âu. Trong thời kỳ hiện đại thứ nhất, ý tưởng chi phối xã hội là ý tưởng về sự (bất) bình đẳng và đòi hỏi phúc lợi trong xã hội nguy cơ, sẽ là ý tưởng về sự an toàn. Động lực của xã hội trước đây là : “Tôi đói!”, còn động lực của xã hội tương lai sẽ là: “Tôi sợ?”. “Giấc mơ của xã hội phân chia giai cấp là ai ai cũng muốn và cần giành được một phần của chiếc bánh. Còn trong xã hội nguy cơ, giấc mơ là làm sao cho mình tránh khỏi bị đầu độc”!

Hiện đại phản tư tưởng và xã hội thế giới

Trong xã hội-nguy cơ, ngư ta đứng trước nghịch lý: sự lạm phát của những nguy cơ được cảm nhận lại dễ dàng dẫn đến sự dửng dưng, vì khi tất cả đều có thể trở nên nguy hại thì dường như chẳng còn có gì là thực sự nguy hiểm nữa. Thêm vào đó giới khoa học – với trách nhiệm xã hội cố hữu là phát hiện và cảnh báo – cũng thường bất lực trước sức ép và các thủ đoạn che đậy, xuyên tạc của các nhóm lợi ích. Do đó, sự thức tỉnh và phản tư cần phải được đặt ra trong một khuôn khổ và phạm vi sâu rộng hơn trước nhiều. Tiến trình hiện đại hóa chỉ trở nên phản tư, khi có đủ sức lấy chính mình và những nguy cơ do mình tạo ra làm chủ đề và vấn đề. Khi nhìn nhận rằng vấn đề không còn chỉ là tận dụng giới tự nhiên để giải phóng con người khỏi những cưỡng chế và thiếu thốn theo kiểu truyền thống mà là quan tâm đến những hậu quả của bản thân sự phát triển kinh tế-kỹ thuật thì chủ đề bàn luận là hiểu rằng tiến trình hiện đại hóa – xét như tiến trình đổi mới – cũng sẽ cũ đi. Phương diện khác của việc cũ đi này chính là sự ra đời xã hội nguy cơ: vượt ra khỏi những cơ chế kiểm soát và an toàn của xã hội công nghiệp truyền thống.

Trong tinh thần ấy, hiện đại-phản tư một mặt chống lại việc tiếp tục tiến trình hiện đại hóa một cách mù quáng, vì hiện đại thứ nhất chỉ mới là nhà hiện đại, còn mang đậm nhiều yếu tố tiền hiện đại, cần phải được giải thể và thay thế. Mặt khác, nó cũng phải tranh biện với các xu hướng hậu hiện đại muốn vứt bỏ hết mọi giá trị của hiện đại. Hiện đại-phản tư không còn chạy theo sơ đồ ứng xử và tư duy đơn thuần mang tính phương tiện-mục đích của hiện đại thứ nhất, trái lại, bất chấp mọi sự đứt gãy vẫn giữ vững và phát huy hằng số của các nguyên tắc hiện đại; đó là: sự bó buộc phải biện minh và lập luận, sự cạnh tranh của các lý lẽ và tôn trọng lý lẽ tốt hơn vì không ai nắm độc quyền chân lý, và, thứ ba, thừa nhận vị trí trung tâm của cá nhân với đầy đủ những quyền tự do chính trị, xã hội, văn hóa. Về mặt cấu trúc, hiện đại thứ hai hay hiện đại phản tư vẫn tiếp tục mang tính hiện đại, nhưng là tính hiện đại khác, kiểu khác.

Nếu xã hội-nguy cơ đã trở thành xã hội-nguy cơ toàn cầu thì bản thân mỗi xã hội riêng lẻ cũng mặc nhiên trở thành xã hội-thế giới. Các vấn đề toàn cầu cần đến những giải pháp toàn cầu (chẳng hạn: Nghị định thư Kyoto…), các thế lực toàn cầu (chẳng hạn các công ty xuyên quốc gia…) cần được đối trọng và kiềm chế bởi những định chế pháp lý quốc tế (nhiều người đã nghĩ đến mô hình “các nhà nước xuyên quốc gia”…). Muốn giải quyết các xung đột liên quốc gia một cách hòa bình, vai trò của công pháp quốc tế ngày càng trở nên quan trọng và cấp bách.

Nền văn hóa công luận

Nhận diện xã hội công nghiệp như một xã hội-nguy cơ để phê phán và cải biến nó không thể không cần đến những cuộc thảo luận, tranh luận trong chốn riêng tư lẫn công cộng. Tuy nhiên, nhận thức những gì trước đây là hợp lý và đúng chức năng nay đang biến thành phi lý và phản chức năng bao giờ cũng khó khăn và gặp nhiều lực cản “sự biến đổi cấu trúc của công luận” là một đề tài lớn, đã được Habermas nghiên cứu từ khá sớm và ngày càng được giới nghiên cứu đặc biệt lưu ý. Trước thế kỷ 18, nền văn hóa châu Âu là nền văn hóa “nghi vệ” mà biểu tượng điển hình nhất của nó là cung điện Versailles của vua Louis XIV: sự vĩ đại của nước Pháp và của hoàng đế chế ngự cảm quan của người xem như là sự “độc diễn” của một phía. Sự ra đời của báo chí, các câu lạc bộ đọc sách, các quán cà phê trong thế kỷ 18 báo hiệu sự suy tàn của nền văn hóa “nghi vệ” phong kiến, nhường chỗ cho nền văn hóa “công luận” mang tính phê phán và tự do tư tưởng. Theo Habermas, Đại cách mạng Pháp chính là kết quả của sự biến đổi văn hóa ấy. Nhưng rồi chính sự lớn mạnh của nền truyền thông thương mại, sự ra đời của nhà nước phúc lợi trộn lẫn nhà nước và xã hội đã biến công luận phê phán thành một công luận tiêu thụ thụ động. Nền công nghiệp tư bản chủ nghĩa (chủ nghĩa tư bản cổ phần, nhà nước phúc lợi, nền văn hóa tiêu thụ đại trà) đã phổ quát hóa logic của tính hiệu quả và sự kiểm soát xã hội.

Ranh giới giữa công cộng và riêng tư, giữa cá nhân và xã hội, giữa hệ thống (quyền lực chính trị và quyền lực kinh tế) và thế giới cuộc sống trở nên nhập nhằng: hệ thống ngày càng khống chế và “thuộc địa hóa” thế giới cuộc sống, các đảng phái và các nhóm lợi ích thay chỗ cho nền dân chủ tham dự, xã hội ngày càng được quản lý tinh vi, vượt ra khỏi năng lực nắm bắt của những người công dân. Và chính xã hội-nguy cơ – và cùng với nó là xã hội-thế giới toàn cầu hóa – vào đầu thế kỷ 21 lại là cơ may để từng bước khôi phục và phát triển nền văn hóa công luận đúng nghĩa. Habermas tỏ ra lạc quan về triển vọng hồi sinh của “khu vực công cộng”. Ông nhìn thấy trong tương lai kỷ nguyên mới của một “cộng đồng chính trị” vượt ra khói khuôn khổ của các cộng đồng hạn hẹp dựa trên cơ sở quốc gia, chủng tộc và sự đồng nhất văn hóa để tiến tới một cộng đồng dựa trên những người công dân có những quyền hạn và nghĩa vụ bình đẳng được đảm bảo về pháp luật. Cộng đồng chính trị mang tính toàn cầu ấy đòi hỏi một nền văn hóa công luận tích cực, nơi đó những vấn đề thuộc về lợi ích chung có thể được thảo luận một cách công khai và sòng phẳng, và sức mạnh của công luận có thể tác động hiệu quả đến các quá trình lấy quyết định.

Tuy đã “chạm đúng vào dây thần kinh của thời đại” (Armin Nassehi), nhưng thật ra, các khái niệm mới mẻ như “xã hội-nguy cơ”, “xã hội- thế giới”, “hiện đại thứ hai”… mới chỉ là những dự phóng lý thuyết chưa thực sự ổn định và còn cần tiếp tục điều chỉnh phát triển. Và ngay cả sự hy vọng của một tác giả có uy tín lớn như Habermas cũng không phải được mọi người đồng tình và chia sẻ. Michael Schudson (Đại học Califomia, San Diego) ngờ rằng một khu vực công (luận) dành cho sự trao đổi thực sự độc lập và thuần túy dựa vào lý lẽ đã và sẽ không bao giờ có thật! Nhưng, khác và nhiều dự phóng không tưởng trước đây các nhà nghiên cứu xã hội ngày nay thường không thiếu những dữ kiện xã hội hiện thực để làm cơ sở cho những lý thuyết của mình. Thế giới đang thay đổi nhanh chóng. Các nhà lý thuyết nhiều khi phải chạy hụt hơi mới theo kịp hiện thực, nhưng đồng thời nhiều dự phóng lý thuyết có cơ sở sẽ lại mở đường và định hình cho hiện thực, như kinh nghiệm lịch sử đã nhiều lần cho thấy. Ngay cả sự “không tưởng” cũng không thừa. “Một khi mọi ốc đảo của sự không tưởng đã trở nên khô cạn thì cs còn lại sa mạc của sự bất lực và vô nghĩa. Xin mượn câu nói ấy của Habermas làm món quà xuân gửi đến bạn đọc.

Giấc mơ của xã hội phân chia giai cấp là ai ai cũng muốn và cần giành được một phần của chiếc bánh. Còn trong xã hội nguy cơ, giấc mơ là làm sao cho mình tránh khỏi bị đầu độc!

Source: http://chungta.com/Desktop.aspx/ChungTa-SuyNgam/Van-Hoa/Hien_dai_thu_hai_van_hoa_cong_luan/

Legal Club: Như chúng tôi đã có lần đề cập với các bạn về vấn đề Chủ nghĩa Liên Bang – Federalism – đó là một trong những chủ đề, theo chúng tôi, là hấp dẫn nhất của lý thuyết về pháp luật và nhà nước. Để có thể tìm hiểu một cách toàn diện nhất về Chủ nghĩa Liên Bang thì một trong những cách tốt nhất là tìm hiểu về thân thế, sự nghiệp và các tác phẩm của những người được gọi là “cha đẻ” của chủ nghĩa này. Một trong những con người tiêu biểu nhất, đó là John Jay. Ông được biết đến như là một trong ba tác giả của cuốn Người Liên Bang – Federalist Papers – bao gồm: John Jay, A.Hamilton và J.Madison (cha đẻ của Hiến pháp Hoa Kỳ). Cuốn sách Người Liên Bang có thể coi là cuốn sách kinh điển nhất về Chủ nghĩa Liên Bang (và chúng tôi cũng đang lần lượt giới thiệu tới các bạn). Bài viết dưới đây sẽ cung cấp cho các bạn một cái nhìn khá đầy đủ về John Jay.

(Do khối lượng công việc của chúng tôi thời gian gần đây khá bận nên chúng tôi chưa thể hoàn thành bản dịch Tiếng Việt của các bài đã đăng. Rất mong các bạn thông cảm. Chúng tôi hy vọng thông qua việc đọc bằng nguyên bản gốc Tiếng Anh, các bạn sẽ có thể nâng cao được khả năng tiếng Anh và chúng tôi cũng sẽ cố gắng để hoàn thành những bản dịch Tiếng Việt trong thời gian sớm nhất. Xin chân thành cảm ơn các bạn!)

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The Education of John Jay

America’s indispensable diplomat

Myron Magnet

Few could fathom why 55-year-old John Jay turned down President Adams’s nomination to rejoin the Supreme Court when his two terms as New York’s governor ended. What would lead him, in the hale prime of life, to retire instead to the plain yellow house he’d just built on a hilltop at the remote northern edge of Westchester County, two days’ ride from Manhattan, where visitors were few and the mail and newspapers came but once a week? After 27 years at the forge of the new nation’s founding, why would so lavishly talented a man give up his vital role on the world stage for the quiet life of a gentleman farmer?

But just that option—the chance for every man to sit quietly under his vine and his fig tree, with none to make him afraid—is what he had labored more than a quarter-century to bring about, and he felt he had achieved it. As the first chief justice both of New York and of the United States, as president of Congress and governor of his state, as secretary for foreign affairs and, most important, as the diplomat who stamped his vision on America’s foreign policy for generations to come, he had tried to ensure for his countrymen the peace, order, and stability that had seemed to him fragile and elusive from the moment he was born.

A sense of life’s fragility hung over Jay’s childhood; already at six and seven, his father described him as “very grave” and “very reserved,” though “indowed with a very good capacity.” He grew up with a keen sense that his Huguenot ancestors—refugees, like the Plymouth Pilgrims, from religious tyranny—had fled to the New World in the nick of time after France began persecuting Protestants in 1685. Before he was born, smallpox had blinded an elder brother and sister, for whom, he later wrote, “this world has not been a Paradize”; of his four other siblings, one was retarded and another emotionally disturbed. Shortly after John’s birth on Manhattan’s Pearl Street in 1745, his father moved his brood to a farm bordering Long Island Sound in Rye, an easier setting for his two blind children. Though Jay’s father had grown rich as a merchant, married a Van Cortlandt heiress, and counted most of the colony’s Dutch and Huguenot establishment as his relatives, and though he and his wife were loving parents, Jay’s childhood after he went to boarding school at age eight in the French-speaking Huguenot town of Nouvelle Rochelle had its share of privations. His eccentric schoolmaster treated his pupils “with little food and much scolding,” Jay’s son and biographer William reports. The boy struggled to keep the snow off his bed by blocking up his broken window with scraps of wood.

After entering six-year-old King’s College (later Columbia) at 14 (the normal age) and spending four happy years among his 20-odd fellow collegians, Jay—six feet tall, stick-thin, round-shouldered, fine-boned, with a sensitive mouth and thoughtful, melancholy eyes—began his law studies as a clerk for kindly Benjamin Kissam, who perceived at once the young man’s talent. Your “Whirl of Imagination,” he wrote his clerk, “bespeaks the Grandeur . . . of the Intellectual Source from whence the Current flows.” Fellow clerk Lindley Murray, whose school grammars and readers later sold in the millions, remembered Jay as “remarkable for strong reasoning powers, comprehensive views, indefatigable application, and uncommon firmness of mind.”

But Jay’s placid interval was short-lived. In the first year of his four-year apprenticeship, Parliament passed the Stamp Act. Six months later, the American Revolution had its prologue a few blocks from Kissam’s John Street office at New York’s old City Hall on Wall Street, where Federal Hall now stands. There the Stamp Act Congress convened in October 1765, only the second time that representatives of the American colonies had ever met together and the first time that they themselves, rather than royal authorities, had convened such a conclave—“a Measure which we Conceive of dangerous Tendency in itself,” the shocked Lords of Trade spluttered in London. More important, it was the first time that the colonies unitedly drafted a Declaration of Rights, in which they claimed “the Freedom of a People, and the Undoubted Right of Englishmen, that no Taxes be imposed on them, but with their own Consent.” Such big doings down the street—especially since one of New York’s five delegates to the Congress was a cousin of Jay’s and another was Judge Robert R. Livingston, father of Jay’s best friend—made so strong an impression on the 19-year-old that 11 years later, at the First Continental Congress, he effortlessly recalled in debate the rules that the Stamp Act Congress had followed.

Historians speak of the 1765 Congress, with its fulsome pledges of loyalty to the king, as conservative. It was a funny kind of conservatism, though; for when Judge Livingston, probable author of the group’s “Address to the King,” wrote New York’s London agent that no one should view the meeting as factious, since it aimed to divert Parliament from a course that sooner or later “will naturally render the colonies independent,” he was veiling a threat under an assurance. The New-York Gazette had already made that threat explicit four months earlier, writing that with Britain and her colonies at such cross-purposes, “the Connection between them ought to cease—and sooner or later it must inevitably cease.”

Unambiguously unconservative was the response of a New York mob a week after the Congress broke up. At dusk on November 1, 1765, the day the Stamp Act was to take effect, “A Wonderfull Large Mob” of sailors, youths, farmers, and blacks, along with “many people of substance,” began to form, armed with clubs and torches, and threatening to “bury” Royal Artillery Major Thomas James, who supposedly “had threatened to cram the stamps down their throats with the point of my sword.” Outside Fort George, where the first shipment of stamps lay under Lieutenant Governor Colden’s protection, the crowd hanged effigies of Colden and ex–prime minister Bute, before burning them in a bonfire, along with the outraged Colden’s cherished carriage of state. Then the rioters surged to Major James’s newly furnished house and despoiled it, frenziedly smashing fine furniture, mirrors, and paintings, slitting and shredding the mattresses and silk curtains, stealing the silver, trampling the garden, guzzling the wine, and smearing butter over what remained. At four in the morning, they straggled off. Jay’s father witnessed this “most surprising ferment on account of the stamp papers, and as violent attempts were intended to get them out of the Fort, I thought it most prudent for us to withdraw immediately to our more peaceable habitation in the country.” Rumors of mobs coming to “plunder the Town” swirled for the next week, and British commander in chief Thomas Gage warned Colden that if such a mob materialized and his men opened fire on it, “the consequence would . . . be an Insurrection” and “the Commencement of a Civil War.”

In this turbulent atmosphere—and rioting went on sporadically in the city of 18,000 for the next decade—John Jay came of age and worked out his view of the world and of himself. A week after the Stamp Act passed (but before the news reached America), he was still an adolescent, writing one of his few letters of this period, a passionate, unguarded avowal of friendship to Judge Livingston’s son, with an eager pleasure in young Robert’s having “opened wide those Doors of Friendship, into which I had long desired to enter” and looking forward to “our voyage to Eternity.” But after New York’s November riots, the city’s 30 or so lawyers suspended business because they refused to use the hated stamps required for legal documents (with unerring stupidity young George III and his apparatchik ministers had passed a radicalizing measure that fell hardest on America’s opinion-forming lawyers and journalists). Hence Jay had ample time to meditate upon the ferment seething around him. By the last year of his legal apprenticeship, 1768, everyone at the lawyer-dominated Debating Society Jay belonged to knew what one of the debaters meant (in a match Jay’s side won) when he spoke feelingly of “the Blessings of order and Tranquility and of the pernicious Consequences of Faction and Riot.”

Looking back on this period a decade later in a letter to Livingston—who had been his law partner from 1768 to 1770 and would go on to become chancellor of New York, secretary for foreign affairs, Jay’s unsuccessful opponent in the gubernatorial election of 1798, negotiator of the Louisiana Purchase, and the backer of Robert Fulton’s steamboat enterprise—Jay mused on the vast changes he saw in himself. Back in ’65, he wrote, he was “ambitious,” “pertinacious,” filled with “Bashfulness and Pride,” as “sensible of Indignities” as Livingston but more “prone to sudden Resentment.” How right he was about the stiff-necked pride, a mixture of stubborn principle and hair-trigger defensiveness against an ever-present sense of threat. A few weeks before his college graduation, he got briefly suspended for ostentatiously refusing to snitch on a classmate and brandishing the college bylaws to show that no rule required him to do so. As a novice lawyer, he had all but challenged the colonial attorney general to a duel for conduct that “represents me in an insignificant Point of View,” and he even expressed willingness to duel with an aggrieved young man he’d turned down for membership in the fashionable dancing assembly he cochaired. But though in those days, he might have been formed more “for a college or a Village” than for “a citizen of the World,” he told Livingston, he had since developed the requisite worldly flexibility, vivacity, and control over his pride, his facial expression, and his passions.

Though he didn’t mention it, he’d gained one other quality he’d confessed to having lacked in 1765—an understanding of women. For in 1774, he married as splendid a wife as could be found: Robert’s second cousin, Sarah Van Brugh Livingston, who shines out from her vivid letters like all of Jane Austen’s winsome heroines rolled into one, with sense and sensibility to spare. Then 17 while her husband was 28, Sally was one of the so-called three graces, the witty, spunky, and beautiful daughters of lawyer William Livingston, long one of New York City’s foremost politicians and then governor of New Jersey. While representing his family’s princely Livingston Manor in the New York Legislature, he had founded the influential (and wonderfully named) Independent Reflector, in which he had argued as early as 1752 that governments rest on the “free consent of Mankind” and that “those who have cloathed [a king] with Authority have a Right to strip him of it, whenever he abuses it.” Of Sally, the urbane Gouverneur Morris bantered the year before her marriage, “Never was a Little Creature so admired (I speak seriously). . . . As to her Heart when in the Midst of her Admirers it singeth with Joy. . . . The rosy Fingers of Pleasure paint her Cheeks with double Crimson. . . . And so it will continue if the Whim does not take her to get in Love.” But the whim did take her, and as her sister Kitty wrote a few years later, “Mr. & Mrs. Jay can be unhappy no where. They love each other too well.”

When the couple returned from their wedding trip in late May, though, Jay found the world turned upside down. While he was gone, news had reached New York of the first of Parliament’s Intolerable Acts, closing Boston’s port in retaliation for December’s Boston Tea Party—of which New Yorkers had held their own version the week before the Jays’ wedding, dumping overboard the first cargo of East India tea to reach town. Jay, by now a leading lawyer earning £1,000 a year, found himself already named to a committee to correspond with the other colonies and decide what to do, a committee whose numbers, form, and name shifted over the next two years but that ended up running both the city and the entire province. The committee joined the call for a continental congress, to which Jay won election in July 1774.

Jay’s townsmen pegged this youngest of all the congressional delegates as a conservative; and certainly, when an overwrought Patrick Henry exclaimed at the Congress’s start that “Government is at an End. All distinctions are thrown out. . . . We are in a State of Nature,” Jay mildly retorted, “I cant yet think all Government is at an End. The Measure of Arbitrary power is not full, and I think it must run over, before We undertake to frame a new Constitution.” Let’s not get carried away and think “We came to frame an American constitution, instead of indeavouring to correct the faults in an old one.” A reasonable remonstrance to Britain, Jay hoped, coupled with a determined trade boycott, ought to bring the ministry to its senses. Jay’s conservatism consisted only in this: that he would omit no effort—consistent with the rights of man and of Englishmen—to avoid an irreparable breach.

Assigned to write Congress’s “Address to the People of Great Britain,” Jay explained what those rights were. There’s no reason “why English subjects, who live three thousand miles from the royal palace, should enjoy less liberty than those who are three hundred miles distant from it,” he declared. “No power on earth has a right to take our property from us without our consent” or our “inestimable right of trial by jury,” as Britain has done in setting up admiralty courts, in which “a single man, a creature of the crown,” sits in judgment in tax-evasion cases on defendants presumed guilty until they prove their innocence. If Britons allow such injustices to befall their American cousins, they should keep two things in mind, Jay cautioned. First, “we will never submit to be hewers of wood or drawers of water for any ministry or nation in the world.” Second, “take care that you do not fall into the pit that is preparing for us.” Still, even after the king ignored Congress’s first petition, even after Concord and Lexington, Jay pressed for one last-ditch try in the Second Continental Congress, John Dickinson’s fruitless July 1775 “Olive Branch Petition,” some of whose language Jay supplied. But he remained realistic: in expressing his hope for an enduring American union with Great Britain, he conceded, “God knows how the Contest will end.”

More realistically still, while Congress was extending its olive branch with one hand, it was gathering up arrows with the other. In May 1775, in response to rumors that Britain was readying troops to enforce its will and might land them in New York, Congress advised New Yorkers “to persevere the more vigorously in preparing for their defence, as it is very uncertain whether the . . . conciliatory Measures will be successful.” In June, Congress began to raise an army and named George Washington its chief, two days before the Battle of Bunker Hill showed the British that they faced an unexpectedly hard war. Passing through New York when news of the fierce fighting arrived, the new commander, realizing that the politically divided colony’s royal governor, William Tryon, would probably start arming the loyalists, issued his first official order—to arrest Tryon if he did.

Both the rumors of invasion and Washington’s instincts about the loyalists proved correct, and John Jay rushed to counter each threat. To prepare for the invasion, he had to deal with an unintended consequence of the trade boycott he had championed and helped enforce. Not only did the ban fail to stem England’s harshness, as planned, but it also kept the colonies from stockpiling war supplies they turned out to need desperately. By the time even reluctant rebels like Jay understood that “the Sword must decide the Controversy,” New Yorkers were reduced to stripping the lead out from between their windowpanes to cast into bullets, and melting down their brass door knockers and bronze church bells for cannon. Pathetically, until better weapons turned up, Jay sent from Philadelphia a well-designed spear for New York craftsmen to copy.

After the new British commander in chief, Sir William Howe, moved the strategic center of the war to New York, aiming to use its great harbor as the hub of naval operations and to take control of the Hudson River, cutting New England off from the rest of America and then conquering the colonies one by one, Jay went on a wild ride through Connecticut, rounding up cannon from the Salisbury foundry to defend the river and heavy chain to block the Royal Navy from sailing up it. But supplies—everything from bullets to blankets to boots—remained scarce for the entire war. “There have been instances, and I speak from the most undoubted authority,” wrote Jay in 1780, “of considerable detachments marching barefooted over rugged tracts of ice and snow, and marking the route they took by the blood that issued from their feet.”

As for the loyalists, New York was unique among the colonies in the strength of its residents’ attachment to the mother country; at least a third wholeheartedly supported the king and another third trimmed from side to side.

After the brothers Howe, general and admiral, sailed into New York Harbor on June 29, 1776, turning it into “a wood of pine trees” from the Lower Bay to the Tappan Zee with the masts of 82 warships—once the British occupied the city in September and kept it as a stronghold for the next seven years—the whole colony became a dragon-ridden theater of threat, fear, and violence. If John Jay had seen one kind of ferocious anarchy in the urban riots of 1765, when he watched men in a frenzy of murderous destructiveness, he lived through a different kind of anarchy, no less fearsome and instructive about human nature and its brutish capacity for evil, from 1776 to ’78.

Sitting on the cool veranda of his Westchester farmhouse before moving into his richly carpeted dining room, with its “JJ”-monogrammed Chinese-export dishes bought for his wedding, its table and 24 chairs of the finest and heaviest mahogany skillfully carved in the simplest, least pretentious late-eighteenth-century style, an elderly John Jay talked of these times one memorable evening to his son William’s boyhood schoolmate, James Fenimore Cooper, who became the new country’s first novelist. Two weeks before the British entered New York Harbor, New York’s Provincial Congress, of which Jay was a member while also a Continental Congressman, had assigned him to chair a committee to deal with fifth-columnists, and he evoked for his young friend Cooper the shadowy world of “plots, conspiracies, and chimeras dire” he would occupy for some time to come.

He found that Governor Tryon had indeed “been very mischievous,” raising a corps of New York’s British sympathizers to support the invading army when it arrived and funneling money to them through the city’s mayor. More alarmingly, he found that the plotters included a soldier of George Washington’s bodyguard, who, according to later rumor (never proved), plotted to kill the general. The mayor went to jail, the guardsman to the gallows.

What Cooper remembered from that long evening’s talk was Jay’s description of how, as head of the Committee for Detecting Conspiracies, he had run a spy ring in Westchester and the Hudson Valley once the British had occupied Manhattan, Staten Island, and all of Long Island, a tale Cooper elaborated in 1821 into the very first best-selling American novel, The Spy. With the Royal Navy commanding Long Island Sound and part of the Hudson, and the British army driving Washington’s small, ill-equipped force across New Jersey, politically divided Westchester, Cooper recounts, “had many of the features of a civil war,” with the British invaders “profiting by these internal dissentions” by arming troops of loyalist auxiliaries “to reduce the young republic to subjection.” The Americans formed their own troops of irregulars in response, for “annoying the enemy,” who had regular, as well as ragtag, troops in the county. Both guerrilla groups, the patriot “Skinners” and the loyalist “Cow-Boys,” tended to degenerate into savage and pitiless marauders—roving “banditti of ruffians” (as Tom Paine described the State of Nature’s primal hordes)—“whose sole occupation appears to have been that of relieving their fellow-citizens from any little excess of temporal prosperity they might be thought to enjoy,” as happened to John Jay’s father and siblings, leaving them only their clothes and their lives. They were lucky, though, as this gang of Cow-Boys murdered some of their other victims.

“Oppression and injustice” reigned, says Cooper. “The law was momentarily extinct in that particular district, and justice was administered subject to the bias of personal interests and the passions of the strongest.” The locals lived in doubt and fear of predators, often too demoralized to plant crops, distrustful of their neighbors, and hiding their real sympathies—if they had them. Patrick Henry was wrong in saying that America had returned to the State of Nature in 1774, but in Westchester in the late 1770s, it was Thomas Hobbes’s war of all against all—a laboratory demonstration for political philosophers and a graduate education for John Jay.

Though Jay never named him, he told Cooper the story of one of his spies, Enoch Crosby, whose 1832 deposition requesting a federal pension recounts adventures much like those of Cooper’s hero, Harvey Birch. A virtuoso of deception and double-dealing, brave, cool, resourceful, and patriotic, Crosby, surviving hair-raisingly narrow escapes, helped American troops capture some 100 recruits to the British forces, some loyalist by conviction, some opportunistic freebooters.

Once elected chief justice of New York in May 1777, Jay remained knee-deep in such banditti. “I am now engaged in the most disagreeable part of my duty—trying criminals,” he wrote Gouverneur Morris in the spring of 1778. “The Woods afford them Shelter and the Tories Food. Punishments must of course become certain, and Mercy dormant, a harsh System repugnant to my Feelings, but nevertheless necessary.” He had before his court in Albany a gang of Cow-Boys who’d looted two Columbia County farms, killing the son of one farmer, a Continental soldier home on leave. They were “tory criminals,” according to the New-York Journal, bandits and traitors rolled into one. “Their thefts and robberies they justified, under the pretense of the goods being lawful prizes, forfeited to the King.” Jay sentenced ten of them to hang.

Anyone who wants to keep his hands clean and his conscience pure had better not choose politics as a vocation, Max Weber famously wrote, because politics operates through “power backed up by violence,” and its guiding principle—the very opposite of the Christian command to “Resist not him that is evil with force”—is “ ‘Thou shalt resist evil by force,’ or else you are responsible for the evil’s winning out.” But here one enters a moral morass, for “he who lets himself in for politics, that is, for power and force as means, contracts with diabolical powers, and for his action it is not true that good can follow only from good and evil only from evil, but that often the opposite is true.” John Jay came to understand this ethical dilemma with all his being once he began detecting conspiracies. For if it’s disagreeable enough to hang men for their heinous actions, what about jailing or banishing people from their homes on suspicion—on information from spies about their political beliefs, or on their refusal to take loyalty oaths? Should people be punished not just for their action but also for their inaction? For their beliefs?

As early as November 1775, Jay answered by proposing harsh measures when Congress asked him how to handle disaffection in Queens County on Long Island, which declared itself neutral in the looming conflict and voted not to send delegates to Philadelphia. It’s not acceptable to be “inactive spectators,” Jay declared, hoping, if the British win, “to purchase their favour and mercy at an easy rate,” while, if America wins, “they may enjoy, without expense of blood or treasure, all the blessings resulting from that liberty which they, in the day of trial, had abandoned.” Accordingly, he recommended that the declared neutrals “be put out of the protection of the United Colonies,” confined to their county, excluded from the law courts, and disarmed by New Jersey and Connecticut troops.

Some who claimed neutrality, Jay suspected, were actively supporting the enemy by “collecting and transmitting intelligence, raising false reports, and spreading calumnies of public men and measures.” Or worse, as he found when Beverley Robinson, a prosperous merchant related to his mother, came before his committee in February 1777. “Sir we have passed the Rubicon and it is now necessary every man Take his part,” Jay told Robinson. “Cast off all alliegiance to the King of Great Britain and take an oath of Alliegiance to the states of America or Go over to the enemy for we have Declared our Selves Independent.” This was an age, remember, when giving your word or swearing in God’s name put your honor or your soul at stake. Replied Robinson, “Sir I cannot Take the Oath but should be exceeding Glad to Stay in the Country.” Think it over, Jay advised. Jay wrote Robinson’s wife, urging her to persuade him to take the loyalty oath. But by then, Robinson had started to raise a loyalist regiment; and by March, Jay got news that he’d guided British regulars to attack American soldiers at Peekskill, wounding two.

But some of the neutrals were neither traitors, liars, nor trimmers, and Jay faced no harder case than that of his honorable King’s College friend Peter Van Schaack, who “condemned the conduct of the Home government” in London, Van Schaack’s son reported, but “was yet opposed to taking up arms in opposition to it” and felt conscience-bound not to take the loyalty oath against his king. Jay directed him to appear before the Albany authorities, whose proceedings led to his ultimate banishment to London, from which he wrote Jay in 1782, as the Revolution was drawing to a close, tentatively hoping to reopen communication. Jay replied at once: “I have adhered to certain fixed Principles, . . . without regarding the Consequences of such Conduct to my Friends, my Family, or myself; all of whom, however dreadful the Thought, I have ever been ready to sacrifice, if necessary, to the public Objects in Contest. Believe me, . . . I felt very sensibly for you and for others; but as Society can regard only the political Propriety of Men’s Conduct, and not the moral Propriety of their Motives to it, I could only lament your unavoidably becoming classed with many whose morality was convenience. . . . No one can serve two Masters: either Britain was right, and America wrong; or America was right, and Britain wrong. . . . Hence it became our Duty to take one Side or the other.” He closes by asking how his old friend and his children are doing. “While I have a Loaf, you and they may freely partake of it. Don’t let this Idea hurt you. If your Circumstances are easy, I rejoice; if not, let me take off their rougher Edges.”

Van Schaack wrote back with equal magnanimity: “Be assured, that were I arraigned at the bar, and you my judge, I should expect to stand or fall only by the merits of my cause.” He had reasons for his choice, he continued. “Even in a doubtful case, I would rather be the patient sufferer, than run the risk of being the active aggressor.” But now that the fighting is over, “if America is happier for the revolution, I declare solemnly that I shall rejoice that the side I was on was the unsuccessful one. . . . I have always considered you as one of the foremost enemies of this country, but since what has happened, has happened, there is no man to whom I more cordially wish the glory of the achievement.” As for his children, his son has been accepted at Yale. In time, Van Schaack returned to his New York law practice, and the friendship bloomed again.

Loyalty oaths, wartime un-American-activities committees: William Jay asserts that, while his father “was ever ready to adopt all proper measures for preventing the tories from injuring the American cause, he abhorred the idea of punishing them for their opinions.” Not so. He believed America was in a fight for its existence against enemies who, as he wrote to his fellow New Yorkers, “plunder your houses; ravish your wives and daughters; strip your infant children; expose whole families naked, miserable and forlorn, to want, to hunger, to inclement skies, and wretched deaths”; and who seek to impose a slavery such as “Egypt, Babylon, Syria, or Rome” imposed upon the Jews—or as Catholics, he might have said, imposed on Huguenots. The greatest sin and dishonor would be not to fight to win, whatever it took. A life-or-death struggle has no margin for error.

Along with these indelible lessons in anarchy, Jay learned five great lessons about anarchy’s antidote—government—in his education as a statesman during his presidency of the Continental Congress from December 1778 through September 1779. First, he grasped that American unity was permanent. Our enemies, he wrote in his “Circular Letter from Congress to their Constituents,” argue “that the confederation of the States remains to be perfected; that the union may be dissolved.” They are wrong. “These states are now as fully, legally, and absolutely confederated as it is possible for them to be.” The ongoing war is making the bond ever stronger. “A sense of common permanent interest, mutual affection (having been brethren in affliction), the ties of consanguinity daily extending, constant reciprocity of good offices, . . . all conspire in forming a strong chain of connexion, which must for ever bind us together.” Jay welcomed every sign of growing unity. He cheered the marriages of two fellow congressmen to ladies from states not their own: “I am pleased with these intermarriages,” he wrote John Adams. “They tend to assimilate the States and to promote one of the first wishes of my Heart viz. to see the People of America become one nation in every Respect.” And he objected to Massachusetts’s description of itself “as being in New England as well as in America. Perhaps it wd. be better if these Distinctions were permitted to die away.”

Second, a Federalist by instinct even before there was Federalism, he understood that union required a strong central government sovereign over the states. As early as October 1775, he wrote: “The Union depends much upon breaking down provincial Conventions.” Accordingly, during his presidency, Congress for the first time—and in his handwriting—declared its supremacy over the state governments, overturning a Pennsylvania statute (and a Pennsylvania jury decision) in the allocation of the sloop Active as a war prize. “Congress,” Jay pronounced in taking these actions, “is by these United States invested with the supreme sovereign power of war and peace.”

Third, assuming the presidency when the quarrel between two top American diplomats, Silas Deane and Arthur Lee, had reached its apogee of bitterness, with murky charges of malfeasance and spying flung about in Congress, Jay learned a wariness toward his own colleagues. “There is as much intrigue in this State House as in the Vatican,” he commented, “but as little secrecy as in a boarding School.” His distrust only deepened when General Horatio Gates, part of a cabal of senior officers seeking to displace George Washington as commander in chief, sent him an insinuating letter critical of Washington’s military strategy. Rightly judging the letter mere Machiavellian self-serving on Gates’s part, like so much of the unprincipled self-interest he had seen in Congress, Jay sent Washington the relevant passage as a heads-up and received in response a letter of such nobility of character and comprehensive strategic and managerial brilliance as to teach him his fourth great lesson: that Washington was a world-historical leader. The two became friends and confidants; within weeks, Washington moved from signing himself “Yr. obliged & obed. Ser.”

to “Yr. most obed. & affect. Servt.,” though it took Jay six months to get up the nerve to tell the “master-builder” (as he termed the great man) that “with sincere affection & Esteem, I am your friend & servant.”

The fifth lesson proved the most useful of all to the man who set the future course of U.S. foreign policy: in the world of diplomacy, nothing is what it seems, so trust no one. He entered that murky world in November 1775, well before the colonies declared independence, when Congress sent him, Benjamin Franklin, and Thomas Jefferson to see a nameless Frenchman who’d requested a secret meeting in Philadelphia. As William Jay remembers his father often recounting, the elderly, lame man stated that the king of France, then officially at peace with George III, favored the colonists’ defense of their rights and wished to help with arms and money. When the trio repeatedly asked by what authority he spoke, the man merely drew his hand across his throat and replied, “Gentlemen, I shall take care of my head.” Shortly thereafter, Congress—impressed by this drama, Jay thought—appointed him to a secret committee to seek aid from abroad.

A year later, after further foreign encouragement, the committee sent Silas Deane to France, posing as a merchant, to obtain the promised arms and supplies, which France furnished through a front company to hide its role. One of Arthur Lee’s accusations in the Deane-Lee catfight raging in Congress when John Jay assumed its presidency was that Deane had charged Congress for matériel that France had given as a gift. When Tom Paine, secretary to Congress’s Committee for Foreign Affairs, leaked in the press the secret information that France had most certainly given such a free gift, French ambassador Conrad Gérard, to preserve the fiction that France had not aided America while still at peace with Britain, demanded that Congress refute what he claimed was a calumny against “the Dignity and the Reputation of the King my Master”—even though by then, France, convinced by the American victory at Saratoga in October 1777 that the rebels could win, had signed a formal alliance with the United States in February 1778. So John Jay, in one of his first acts as president, had to call Paine before the bar of Congress to discipline him for telling the truth. Sacrificial whistle-blower Paine resigned in outrage before Jay could fire him.

During Jay’s nine months as president, Ambassador Gérard “used frequently to spend an evening with me,” Jay wrote, “and sometimes sat up very late,” urging on Jay the wisdom of drawing Spain into the war as an ally, and outlining the inducements America might offer. Gérard made the same argument to Congress, which in late September 1779 named Jay minister plenipotentiary to Spain, with instructions to seek such an alliance.

So sudden was the appointment that Jay could say good-bye to his family only by letter—as could his wife, who, as sharp an observer of the era and as sparkling a writer as Abigail Adams, had with utter unconventionality decided to go with him. “Considering the mortality of man, and my time of life,” Sally’s loving father wrote her, “it is probable I may never see you again. O may God Almighty keep you in his holy Protection, & if it should please him to take you out of this World, receive you into a better!”

That very nearly happened. Eighteen days out of Philadelphia, their 185-foot frigate sailed into a savage winter gale that tore away her masts and bowsprit and damaged her rudder. The falling spars had injured two sailors, Sally told her mother in a long and typically vivid letter; one, “poor fellow! surviv’d not many days the amputation of his arm.” By no possibility could the jury-rigged ship reach Europe, her officers concluded, though Gérard, who was on board, demanded that they continue eastward. Jay, in his first diplomatic negotiation, got the ambassador to agree to head south to Martinique with “the first fair wind that offered (which was not ’till near three weeks from the above mentioned aera),” Sally wrote. She marveled at her husband’s “firmness & serenity of mind.” “Your whole family love Mr. Jay, but you are not acquainted with half his worth,” she told her mother, “for his modesty is equal to his merit. It is the property of a Diamond (I’ve been told) to appear most brilliant in the dark; and surely a good man never shines to greater advantage than the gloomy hour of adversity.” Now, wrote Sally, as the frigate rolled and fellow passengers played checkers at her cramped table, she is dreaming of Martinique’s fruit. A few days later, she added, “A land bird! A land bird! Oh! the pleasure of being near land!”

Ashore, she set off to explore the exotic island, where it seemed “in a sportive humour [nature] had display’d a whimsical fancy” and which she described to Governor Livingston with characteristic verve and economy. She always noticed and praised landscapes cultivated and improved by labor. “It is really surprising to trace the effects of industry on the very summits of the hills which are covered with coffee, coconuts, and cane,” she remarked, and went on to describe, with her lifelong delight in how things work, the island town’s ingenious plumbing system. To her father-in-law, once the Jays had left Martinique and were “sweetly sailing before the wind” toward Europe, she wrote two observant paragraphs describing with crisp precision how a sugar mill turns cane into sugar and molasses.

Though Jay didn’t know it, his mission to Spain was doomed from the start. With a colonial empire in the New World, the Spanish king, who had his own imperial ambitions in North America that competed with American claims, shuddered at the idea of colonial rebellion and would never officially support one, even to harass Britain. Making matters worse, Spain and France were conspiring behind America’s back. While Congress dithered about whom to send abroad, the two Bourbon powers secretly revived their decades-old Family Compact in the Treaty of Aranjuez, which bound Spain to join the war against Britain in exchange for France’s pledge not to make peace until the Spanish got Gibraltar back—a deal that not only ignored America’s claims but also violated France’s treaty with America by its clandestine change in the peace requirements. Also unfriendly to America was France’s agreement to let Spain share the Grand Banks fishery, long an American fishing ground, if France could win it. And there was one more thing Jay didn’t know: though Spain had helped America with money and supplies early in the Revolution, now that she was herself at war, she had no money to spare, despite the legends about her wealth.

Jay might have figured out the economic truth beneath the facade early on. The first leg of his trip from Cádiz, where he landed in January 1780, to Madrid, was pure pomp, with 16 or 20 oarsmen rowing “a very handsome Barge . . . ornamented by a crimson damask canopy handsomly fringed,” Sally wrote in one of her letters, which provide the best account of the Jays’ day-to-day life in Europe. But soon the travelers transferred to something “they’ve the impudence to call . . . Coaches, it’s true they are made of wood and have four wheels, but there the resemblance ceases.” As for the inns, “the awkwardness and filth of every thing exceed description. . . . The very first evening we found that a broom was absolutely essential,” for sweeping out “several loads of dirt in which were contain’d not [less] than two or 3000 fleas, lice, buggs, &c. if we may form any Judgment by what still remained.” To add insult to injury, her husband wrote, the landlord charged their party of eight for the 14 beds in their rooms, observing “that we might have used them all if we pleased.” Hardly signs of a rich country.

For the two and a half years of “this honorable Exile,” as he called it, Jay fruitlessly trailed after the Spanish court as it accompanied the king from palace to palace. Given his paltry salary, Jay wrote, “To keep a House at each place is not within the Limits of my Finances.” Even hiring mules and a chaise to follow the court strained his budget. “So circumstanced I cannot employ Couriers to carry my Dispatches to the Sea Side or to France. My Letters by the Post are all opened”—and indeed the Spanish secretary of state once handed over a top-secret letter that Congress had sent Jay, without bothering to conceal that he’d intercepted and read it. Living in furnished single rooms with one servant, Jay had to leave Sally, his invaluable source of moral support, in Madrid, where, as the court had never recognized him as an ambassador, she knew almost no one. When a daughter was born in July 1780, Sally’s “whole heart overflowed with Joy & gratitude.” But the baby died three weeks later. “Excuse my tears,” Sally wrote—“you too mamma have wept on similar occasions, maternal tenderness causes them to flow & reason, tho’ it moderates distress, cannot intirely restrain our grief, nor do I think it should be wish’d.”

Jay’s financial problems weren’t just domestic. In its desperation for funds, Congress began spending the money it hoped he could raise from Spain, drawing bills of exchange on him for £200,000 (these typical financial instruments of the time order a second person—Jay—to pay a supplier or lender a specified amount by a given date). Though at first, Spain’s minister of state, the count of Floridablanca, came up with funds when pressing bills came due, and hinted further help, the flow trickled off, the count temporized, and Benjamin Franklin, America’s ambassador to France, had to raise money there to pay the bills as well as Jay’s salary.

After nearly two years in Spain, Jay diplomatically told Floridablanca to put up or shut up. Was an “intimate union” possible or not? The count told him to outline a treaty, and three days later, Jay came back with an offer to let Spain have the exclusive right to navigate the lower Mississippi River in exchange for an alliance, most-favored-nation commercial status, and financial aid—an offer, Jay shrewdly stipulated, that would expire if Spain didn’t sign the treaty before Britain made peace. As always, Spain shied away from accepting American independence. A disgusted Jay wrote to Gouverneur Morris in code: “This government has little money, less wisdom, no credit, nor any right to it.” Seven months later—and six months after Cornwallis surrendered to Washington at Yorktown and the fighting ended—Franklin wrote Jay to come to Paris and help him negotiate the peace treaty with Britain. “Spain has taken four years to consider whether to treat with us or not,” Franklin wrote. “Give her forty, and let us in the mean time mind our own business.”

While from the moment of the Jays’ arrival in Spain, Sally wrote her usual dazzling descriptions, Jay himself, always prudent, waited until they were about to leave before he offered a portrait. No doubt, he wrote, Aranjuez “is a charming Place,” with the king’s parks, meadows, and woods. But “it is not America. A genius of a different Character . . . reigns over these. Soldiers with fixed bayonets present themselves at various Stations in these peaceful Retreats; and tho’ none but inoffensive Citizens are near, yet Horsmen with drawn swords guarding one or other of the royal family . . . , renew and impress Ideas of Subjection. Power unlimited and Distrust misplaced, thus exacting Homage & imposing awe, occasion uneasy Reflections. . . . Were I a Spaniard, these decorated Seats would appear to me like the temporary Enchantments of some despotic magician, who by re-extending his wand, could at pleasure command them to vanish, and be succeeded by Presidios, Galleys and Prisons.” All human relations in Spain catch a tinge of the same spirit. “This is a kind of Prudence which naturally grows out of a jealous and absolute Government, under which the People have, for many Generations been habituated to that kind of Dependence, which constrains every Class to watch and respect the opinions and Inclinations of their superiors in Power.” No European splendor can equal “the free air, the free conversation, the equal Liberty, . . . which God & Nature and Laws of our making, have given and secured to our happier Country.”

In May 1782, Jay, Sally, and their new baby, three-month-old Maria, left for Paris, with Sally brightening up as they traveled through what struck her as “one of the favorite spots of Nature,” which “the gaiety & industry of the inhabitants” had adorned everywhere with gardens and bowers in “very pretty taste.” Admired for her beauty and modishness—a Paris theater audience once mistook the dainty blonde for Marie Antoinette—and with friends like Franklin and the Marquise de Lafayette, Sally flourished. So did Jay, who met his toughest challenge and won his greatest triumph.

Right after he arrived on June 23, he emerged as the chief American peace negotiator, and the task first looked to him something like a game of pool, with four balls on the table—Britain, France, Spain, and the U.S. Congress—balls that moved of their own accord, however, and didn’t obey the laws of physics when hit. But within weeks, he grasped that he was playing a different game entirely, a game of poker for global stakes against the sharpest diplomatic card sharper of them all, French foreign minister Charles Gravier, count of Vergennes. At 63, the worldly aristocrat, with the star, sash, and haughty bearing of the ancien régime, could draw on over 40 years’ experience in foreign affairs, as ambassador to Trier, Sweden, and the Ottoman Empire, where he had himself painted lounging on silk cushions in a sultanic turban and fur-trimmed caftan. By the time of the Franco-American alliance, he had conceived a grand global strategy, whose finishing touches he planned to complete in the negotiations at Paris.

With the privilege of historical hindsight, let’s peek over the count’s shoulder and see what cards he was holding. He had predicted when the French and Indian War ended in 1763 with Britain having driven France out of North America that “England will ere long repent of having removed the only check that could keep her colonies in awe. They stand no longer in need of her protection,” he wrote, and they will respond “by striking off all dependence.” Smarting at France’s defeat, he saw that he could punish and permanently weaken France’s most formidable rival by patiently helping the colonists in their inevitable rebellion, amputating a rich and important limb of the British empire.

To produce a balance of power advantageous to France, though, he also had to control the shape that a newly independent America would take. She mustn’t be strong or rich enough to be a global power in her own right, and she certainly must not end up allied with Britain. A weak America, squabbling with and distracting England, hemmed in narrow geographical boundaries by foreign powers, and dependent on French protection would be the best of all possible worlds for Versailles, and it was his task as foreign minister to bring that world into being. Here Spain, his secret ally, could serve as a useful and willing tool, blocking American control of the Mississippi River, barring her westward expansion and hampering her economic growth by cutting off a key trade route.

Vergennes had begun laying the groundwork for this strategy in 1779, when he sent Ambassador Gérard for his late-night talks urging president of Congress Jay to entice Spain into the war by offering to give up American claims to navigate the Mississippi—a deal that Jay favored until Spain joined the war for goals separate from American independence. Without missing a beat, at the very moment that Jay landed in Spain, Gérard’s successor, Count Luzerne, pressured Congress to change his instructions and order him to give up America’s claim on the Mississippi, which Jay did, but with that escape clause he added on his own initiative. Finally, Vergennes dealt himself an ace in the hole when he persuaded Congress in 1781 to instruct its peace commissioner to hide nothing in his negotiations from “the ministers of our generous ally the King of France; to undertake nothing in the negotiations for peace or truce without their knowledge or concurrence; . . . and ultimately govern yourself by their advice and concurrence.”

Our way of thinking,” Vergennes wrote Luzerne as the peace negotiations began, “must be an impenetrable secret from the Americans.” Certainly, Jay’s co-commissioner Franklin, now 76 and a Parisian celebrity who had found the French nothing but generous allies, understandably credited their goodwill. But Jay smelled a rat. As Spain, which he despised, would be a party to the treaty, he called first on her ambassador to France, the immensely rich Count d’Aranda, who, like Jefferson, combed the vineyards to stock his cellars with treasures, who employed a full-time silversmith to shine his magnificent plate, and who became Jay’s friend. Okay, said the count, unrolling a map of North America, where do you think your western border is? The Mississippi, Jay replied; where do you think it is? Go ahead and draw it on the map. The count replied that there was no point quarreling about a few acres, and that he would send Jay the map with his proposed border in a day or two. When it arrived around August 6, 1782, Jay found that Aranda had lopped off all the land north of the Ohio, plus what became Alabama and Mississippi, along with part of the future Kentucky and Tennessee.

Flabbergasted, Jay and Franklin rushed to tell Vergennes of Aranda’s “utterly inadmissable” land grab, Jay recounts in his official report. Instead of sympathetic reassurance, they met with unexpected reserve, with Vergennes’ secretary, Joseph-Matthias Gérard de Rayneval, hinting that “we claimed more than we had a right to.” A few weeks later, Rayneval sent Jay a pettifogging memo, backing up the Spanish by saying that, as England never owned the territory just east of the Mississippi and south of the Ohio, America could have no claim to it, either—and with no territory adjoining much of the river, America also had no navigation rights to it. As for the territory north of the Ohio, America would have to sort out with Britain whether that should be part of Canada. When Jay protested that, when he had negotiated with Count Floridablanca in Madrid, the Spanish had accepted that America owned much of the east bank of the Mississippi, the secretary casually replied that Floridablanca hadn’t then understood the matter.

“Hence it became evident,” Jay concluded, “from whom [the Spanish] had borrowed their present ideas.” And it became evident to him as well that, when the final negotiations took place, France, for all its protestations of goodwill, “would oppose our extension to the Mississippi” and “our Claim to the free navigation of that River,” and also would back Spain’s right to divvy up the lands east of the Mississippi with Britain.

Jay found France similarly a hindrance in his negotiations with the British. When Lord Shelburne became prime minister in July 1782 and fired the pro-American foreign secretary Charles James Fox, he sent a gifted young friend, Benjamin Vaughan, as an unofficial envoy to assuage American anxiety. Vaughan showed Jay and Franklin a document stating that George III, “to give a striking proof of his royal magnanimity and disinterested wish for the restoration of peace,” had commanded the new foreign secretary to acknowledge America’s independence unconditionally, in advance of a general treaty. Perfect, said Jay; but when he exchanged credentials with the official British negotiator, Richard Oswald, a 77-year-old merchant who’d lived in America for six years, he found with disappointment and “disapprobation” that Oswald’s commission authorized him to treat with representatives of the American “colonies.” If the king really meant what Vaughan’s documents stated, why didn’t he commission Oswald to negotiate with the independent United States of America? Vergennes told Jay he was being silly, that he “was expecting the effect before the cause,” and Franklin agreed that Oswald’s commission “would do.”

From mid-August, while he was still trying to negotiate with Aranda, to mid-September, Jay patiently explained to Oswald what Vergennes was up to. The French, as Jay summed it up in his official report, “are interested in separating us from Great Britain” and planting “Seeds of Jealousy, Discontent, and Discord” that will prevent “Cordiality and mutual Confidence” between the two English-speaking nations. Vergennes wants a treaty that will “render Britain formidable in our Neighbourhood” and will “leave us as few resources of wealth and power as possible,” so that we must “perpetually keep our Eyes fixed on France for Security.” The longer the French keep the war going, the more opportunity they will have to accomplish their goals, while a forthright British acknowledgment of American independence will end the war promptly and stymie them. Vergennes reinforced Jay’s argument about French deviousness by having a top-secret document purloined from Oswald’s locked writing desk. Don’t worry, the now-experienced Jay told Oswald; it will be back in place when Vergennes has finished reading it—as it was.

Jay’s larger argument was that Britain would gain by treating America as magnanimously as George III had promised. Treaties are just words, he told Oswald, and he “would not give a farthing for any Parchment security whatever. They had never signified any thing since the World began, when any Prince or State of either Side, found it convenient to break through them.” What Jay proposed was “that the Peace should be lasting,” framed so that “it should not be the Interest of either party to break it.” At first, the worry-prone Oswald blanched at Jay’s expression, a “lasting peace.” Did it have some dark connotation? Did Jay have some deep-laid scheme to make the United States the arbiter of the European balance of power? Franklin set his mind at ease with an anecdote from Roman history: a peace whose terms and conditions are fair, he patiently explained, will be lasting. A relieved Oswald said that in that case, he thought he had the authority to recognize America’s independence and would just check with Lord Shelburne to make sure.

And now a race to London took place between envoys from Jay and Vergennes. On September 7, 1782, Vergennes dispatched Rayneval across the Channel, which Jay learned on the tenth—the same day he got an intercepted letter to Vergennes from France’s American envoy, boasting that Congress would leave “the King, Master of the Terms of the Treaty of Peace” and plotting to split the Newfoundland fishery between France and Britain. Rayneval’s mission, Jay guessed, must be to tell Shelburne that France endorsed neither America’s demand for quick recognition of independence nor its claim to navigate the Mississippi, and to see if England would divide the fishery with France and the land east of the Mississippi with Spain. Jay probably guessed right. When Shelburne told Rayneval that he’d decided to grant America immediate independence, the Frenchman’s whole tone changed: “the point of independence once settled,” the prime minister wrote George III, Rayneval “appears rather Jealous than partial to America upon other points, as well as that of the Fishery.”

To counter Vergennes’ move, Jay asked young Vaughan to rush to London that day and lay out a rosy vision for postwar Anglo-American relations. Since America had plainly won the war and “as every Idea of Conquest had become absurd, nothing remained for Britain to do, but to make friends of those whom they could not Subdue, . . . by leaving us nothing to complain of,” Jay asked Vaughan to tell Shelburne. After all, Britain had much more to gain by a treaty with America than “a mere suspension of hostilities.” It could gain “Cordiality, Confidence and Commerce”—indeed, “extensive and lucrative Commerce,” whose profits surely are “the true Objects of a commercial European Nation.” If America ends up with the lands east of the Mississippi and the navigation of the river, its population will explode westward, and the two English-speaking nations could share an inland waterway carrying “from the Gulph of St. Lawrence to that of Mexico . . . this immense and growing Trade” that on the European side “would be in a manner, monopolized by Great Britain.” If, by contrast, Britain excludes America from the Mississippi and the fishery, and seizes the land north of the Ohio, she’ll end up with “vast tracts of wilderness” that she won’t be able to settle or supply, and she will “sow the Seeds of future War in the very treaty of Peace.” With such advantages in prospect, the British would do well to win America’s confidence—and America holds the acknowledgment of her independence “as the touch stone of British Sincerity.” Without it, as Jay had told Vaughan a couple of weeks earlier, “he would rather the war should go on to his grandsons.”

Shelburne agreed, and on September 27 Oswald’s new commission arrived, authorizing him to treat with the United States of America. During the first week of October, Oswald and Jay hammered out a preliminary treaty, giving Jay most of what he wanted—a much bigger country than otherwise would have emerged, with everything it needed to become powerful, rich, and independent. When a scandalized Vergennes, whom Jay had kept out of the loop during these negotiations, saw the draft, he was shocked by the extent of territory America had won and by the defeat of his plans for a dependent client state in the New World. Aranda, tapping Jay on the shoulder, murmured, “Eh bien, mon ami, vous avez très bien fait”—well played, my friend.

Also scandalized was American secretary for foreign affairs Robert Livingston, Jay’s old law partner. Along with his many pro-French colleagues in Congress, he condemned Jay’s “separate and secret manner” toward Vergennes, which flagrantly disobeyed Congress’s instructions to consult and defer to the count. Jay stoutly countered his former friend’s “doubts respecting the propriety of our conduct.” As Vergennes opposed us on all our key points, Jay argued, he “ceased to be entitled to . . . confidence”; as he wanted a very different treaty from what “America would have preferred,” it would have been “imprudent” to let him shape it. You say we didn’t follow our instruction? “The object of that instruction was the supposed interest of America, and not of France.” They are not the same. “So far and in such matters as this Court may think it their Interest to support us, they certainly will, but no farther,” Jay wrote from Paris. Moreover, we had to seize the moment. Because Shelburne needed to make peace quickly, before a war-weary Britain pushed him out of office, he and Oswald “became less tenacious on certain points, than they would otherwise have been,” and we got a great treaty by acting fast and pressing hard—and not because Britain has “either Wisdom, Virtue or Magnanimity enough to adopt a perfect and liberal System of Conciliation. If they again thought they could conquer us they would again attempt it.”

Nevertheless, between the two great European powers, Jay had already made his choice and committed his country, though it was the opposite of Congress’s choice. America had fought a war with a French ally against a British enemy, but in the peace negotiations and for the rest of his public career, Jay, often on his own initiative and against much resistance from his colleagues and countrymen, led the way in building the foundation of future U.S. foreign policy, the special relationship between the two English-speaking peoples. And why? “Not being of British Descent,” Jay explained years later, “I cannot be influenced by . . . that Partiality . . . , which might otherwise be supposed not to be unnatural.” But in Europe, he came to loathe arbitrary governments, which “debase and corrupt their Subjects,” even subjects as talented and accomplished as the French (as his Huguenot ancestors had found, he well knew). Very different is Britain’s political culture and therefore its national character. “It certainly is chiefly owing to Institutions Laws and Principles of Policy & Government originally derived to us as British colonists, that with the favor of Heaven the People of this Country are what they are.” Hence his “sentiments of esteem” for the British nation.

On September 3, 1783, Jay and Franklin signed the final Treaty of Paris, along with their co-commissioner John Adams, who joined the tail end of the negotiations. Oswald’s successor, David Hartley, signed for Britain. “The peace, which exceeds in the goodness of its terms the expectations of the most sanguine, does the highest honour to those who made it,” Alexander Hamilton wrote Jay, who at this moment in American history had been the indispensable man. “The New-England people talk of making you an annual fish-offering, as an acknowledgment of your exertions for the participation of the fisheries.” Jefferson echoed the sentiment: “The terms obtained for us,” he wrote, “are indeed great.”

Later that month, the Mongolfier brothers made the first manned balloon flight over Paris, which Sally Jay watched from her terrace, and which fired the whole world’s imagination with ideas, Jay wrote, that “travellers may hereafter litterally pass from Country to Country on the wings of the wind.” “Don’t you begin to think of taking yr. passage next spring in a Ballon?” Sally asked him. But instead, they set out for New York on an ordinary sailing ship on June 1, 1784, and arrived home—without incident this time—on July 24.

It is one thing to sign a treaty but quite another to get it carried out, as Jay discovered on his return, when he learned he’d been named secretary for foreign affairs. He knew before he left for Europe that America needed a strong central government sovereign over the states; now, finding himself the key official of a government too weak to carry out promises he himself had made, he felt that need urgently. According to the treaty, America would void state laws that barred British creditors from dunning U.S. citizens for prewar debts, and British troops would leave U.S. territory. When America’s London envoy, John Adams, remonstrated with the British for keeping their frontier forts, they replied that they intended to honor the treaty—as soon as America kept its end of the deal. Secretary Jay, echoing his opinion in the 1775 sloop Active case, pronounced that the Articles of Confederation gave Congress alone the right to make a treaty, which “immediately becomes binding on the whole nation,” so Congress told the states to repeal the offending laws—but had no power to make them do so. And they temporized, protecting powerful citizens who owed big sums: and the British soldiers stayed put. “The federal government,” Jay fumed, “is rather paternal and persuasive than coercive and efficient.”

Less than a year into his job, Jay started pushing to make the United States “one Great Nation, . . . divided into different States merely for more convenient Government, . . . just as our several States are divided into Counties and Townships for the like purposes.” Moreover, since the faction-ridden Congress, which held both legislative and executive power, couldn’t make timely decisions, Jay also sought to “divide the Sovereignty into its proper Departments. Let Congress legislate—let others execute—let others judge”—for efficiency rather than for checks and balances. He was quick to support a convention to correct the “Errors in our national Government,” but when the Constitutional Convention met, his duties as secretary kept him from attending. Once the conclave produced its great document, though, he eagerly joined James Madison and Hamilton in writing The Federalist to defend it—until a rock thrown in yet another New York riot sidelined him for a long convalescence.

Of the five Federalist papers that he wrote, four are what you’d expect from a minister without the power to execute his decisions and a diplomat who’d learned from experience that “to be constantly prepared for War is the only Way to have Peace.” Federalist Numbers 2 through 5 argue that Americans, forged by the Revolution into a “band of bretheren,” need to form a single, powerful union that can make good on its treaties, ensure “security . . . against hostilities from abroad,” and avoid the constant skirmishing inevitable if the states, as some anti-Federalists suggested, broke into several separate confederations.

But his fifth Federalist paper, Number 64—which supports having the president elected not directly but by “select assemblies . . . of the most enlightened and respectable citizens” and the senators appointed by the state legislatures, to ensure leaders of “abilities and virtue”—raises a large issue that Jay’s letters and speeches fully developed and that remains as pertinent today as ever. If, as his whole experience had taught him, “the mass of men are neither wise nor good,” how can government by the people yield leaders of distinction?

“The Rulers in democratic Republics are generally men of more Talents than morals,” history shows; “there can be but little connection between Cunning and virtue, and therefore . . . our affairs will commonly be managed by political Intrigues,” and “a succession of Demagogues must be expected.” These “political Mountebankes” will be “less sollicitous about the Health of the credulous Crowd than abt. making the most of their nostrums and Prescriptions.” Since their fortunes depend on public opinion, they will mold and manipulate it. “The Knaves and Fools of this World are forever in Alliance,” Jay wrote Jefferson, and because of this “coalition between the men of too much art and the men of too little, so they who either officially or from Choice fabricate opinions for other Peoples use will always find many to receive and be influenced by them.” Worse, “actuated by Envy ambition or avarice,” these politicians and pundits “will always be hostile to merit, because merit will always stand in their way.”

Democracy is a magnificent idea: “Without a portion of it, there can be no free governmt.,” Jay was certain. But “pure Democracy, like pure Rum, easily produces Intoxication, and with it a thousand mad Pranks and Fooleries,” he thought. Hence he favored the existing property qualifications for electors and officials: “They who own the Country,” he thought, “are the most fit Persons to participate in the governmt. of it.” Such men, he expected, would share his horror of redistributive taxation, which his favorite author, Cicero, identified as the demagogue’s vote-getting “kind of liberality which involves robbing one man to give to another,” rather than taxing everyone proportionally to his wealth or income for such common purposes as defense. Propertied men, too, he thought, would include “the most enlightened and respectable citizens” he cited in Federalist 64—those best capable of choosing leaders with “abilities and virtue.”

Such leaders, despite all human nature’s failings, were there for the finding. Men like George Washington, “who ascended to the Temple of Honor through the Temple of Virtue,” had absorbed the “maxims and precepts of sound Policy, which enable Legislators and Rulers to manage and govern public affairs wisely and justly,” he noted. “Explained and inculcated by the ablest writers ancient and modern,” these precepts “relate to the nature and duties of man—to his propensities and passions—his virtues, and vices—his habits and prejudices—his real, and relative wants and enjoyments—his capacities for social and national happiness—and the means by which . . . it is . . . to be procured, preserved, and increased.”

From studying the accumulated thought and experience of the wisest of mankind about human nature and the social order, coupled with reflection on his own experience, a leader can learn wisdom; but to have virtue, Jay believed, he also needs religion. The most devout of the Founders, he once told an atheist “that if there was no God, there could be no moral obligations, and I did not see how Society could subsist without them.” When his acquaintance replied that “Society would find a Substitute for them in enlightened self Interest,” Jay impatiently changed the subject.

Jay’s own life movingly exemplified the connection between religion and spotless virtue. “I have done nothing but constantly serve my Country for these six Years past and that most faithfully,” he wrote in 1780. “But I confess that I did it . . . because I thought & think it my Duty, without doing which I know I cannot please my Maker & go to Heaven. Provided he is satisfied with my Conduct, the mistaken opinions of others cannot deprive me of Happiness.” In this spirit, he calmly met George Clinton’s thuggish theft of the 1792 gubernatorial election from him: “A few years more will put us all in the dust,” he wrote Sally; “and it will then be of more importance to me to have governed myself than to have governed the State.” And early in the war, when he wrote Sally from “a hot little Room” full of “Bugs & Fleas” in “Poghkeepsy,” where Congress had fled before the British onslaught, he told her that he kept up his spirits with the “Pre-Sentiment that we shall yet enjoy many good Days together.” But if this fantasy “be a Delusion” that will “like a Bubble vanish into Air, . . . a firm Persuasion of after Bliss give[s] me Consolation. Then my dear Wife shall we fear no Tyrants Power, neither shall we know Anxiety any more, and if, I cant fill up the blank, we shall again join Hands and Hearts & continue our virtuous Connection forever.”

America was a brand-new democracy, and, Jay knew, “It takes time to make Sovereigns of Subjects.” He believed that schools and churches could form a public-spirited civic culture alongside “the Spirit of Enterprize and adventure” that already prevailed. But these institutions could accomplish only so much, he stressed. Especially after two years in Enlightenment Paris, he had no patience with the philosophe notion of human perfectibility, an idea he jeered at more sarcastically the older he got. You just have to read the newspapers to know “the vanity of expecting that, from the Perfectibility of human nature and the Lights of Philosophy, the multitude will become virtuous & wise, or their Demagogues candid and honest.” Advances will be real but finite: “Human knowledge and experience will doubtless continue to do good, in proportion to their extent and influence,” he wrote; “but that they will ever be able to reduce the passions and prejudices of mankind to such a state of subordination to right reason as modern philosophers would persuade us, I do not believe one word of.” Furthermore, the human reality means that teachers, pastors, and leaders of abilities and virtue never make permanent gains: “political like other fields require constant attention—when neglected they soon become unproductive, and fresh Weeds Briars and Thorns will gradually spring up.” Even after all our labors, Jay concluded, “I do not expect that mankind will before the Millennium be what they ought to be.”

With the Constitution ratified—Jay helped persuade New York’s convention to sign on with a soothing “Address to the People of the State of New York” and a bare-knuckled threat that Federalist New York City would otherwise secede from the anti-Federalist state—George Washington took the oath as the nation’s first president on April 30, 1789, on the balcony of the New York City Hall, where the Stamp Act Congress had met almost a quarter-century earlier, and which, renamed Federal Hall, had housed the U.S. Congress since December 1784. Around the corner at 133 Broadway, in one of the capital city’s grandest houses, lived John Jay, now the father of four (with one more to come), rich (thanks to inheritance and his own New York real-estate investments), and, from September 26, 1789, the first chief justice of the United States.

It turned out to be a less glamorous job than he expected, however. With the Constitution brand-new, few issues required Supreme Court rulings: the Court’s first session, with only four of the six justices present and no cases, broke up after a week, in February 1790. And then the really unglamorous part of the job began, since the justices also presided over the federal circuit courts in the states. Twice a year, they “rode circuit,” so in 1791, after the nation’s capital moved to Philadelphia, Jay had to travel there for his Supreme Court sessions, then return to New York for the circuit court, and press on to courts in New Haven, Massachusetts, New Hampshire, Rhode Island, and finally Vermont. He rode on horseback, often on “Roads rendered bad by Snow and Ice,” he wrote Sally. “I have had so much to do with cold and wet, that I really do wish for a Respite.” Thinking it improper for a judge to accept the many invitations to stay with friends on his circuit, he slept at inns that ranged from “clean” and “obliging” to “bad.” He and Sally hated the separation: “Oh! my dr. Mr. Jay,” Sally wrote, when all the kids had fevers, “shd. you too be unwell & absent from me, & I deprived of the satisfaction & consolation of attending you how wretched I shd. be!”

Jay had told Washington that he wanted the job chiefly because he thought the Court could complete his great work, the Treaty of Paris, by solving the British debt problem, which was now not merely keeping the redcoats stubbornly in their American forts but also stoking up red-hot anger that Jay and Washington feared could ignite a new war. So piece by piece, he chipped away at the issue on his circuit-court rounds. In Connecticut in 1791, his court overturned—as a violation of the Treaty, which was now the law of the land—a state law preventing British subjects from collecting interest due on prewar debts from Connecticut citizens, probably the first time a federal court overruled a state law on constitutional grounds. In Rhode Island the next year, he threw out a state law granting three years’ delay to debtors whom a British merchant was suing, ruling that the law violated the Constitution’s contract clause. In 1793, he rode the circuit that included Virginia, a state that accounted for almost half the debts to British creditors, more than 100 of whom were suing Virginians. The defendants’ lawyers, Patrick Henry and John Marshall, put on “one of the most brilliant exhibitions ever witnessed at the Bar of Virginia,” one observer exclaimed. But they lost. The court ruled that the Declaration of Independence didn’t cancel debts to Britons and that a Virginia law shielding debtors was an unconstitutional violation of the Treaty of Paris.

But just when John Jay, Patrick Henry, and John Marshall were performing their drama in a Richmond courtroom, “the astonishing Tragedy which the French Revolution has introduced on the Theatre of the World,” as Jay termed it, had raised the curtain on its darkest act, with the beheading of Louis XVI in January 1793 and France’s declaration of war against England the next month. For all Jay’s efforts to resolve the debt issue, the Revolution stirred up the smoldering anger between Britain and America to explosive rage.

The British believed that America planned to join her old ally, France, in the war against them. And with good reason, for in April, Revolutionary France’s envoy, Edmond Genêt, arrived in America with instructions to make that alliance happen. Pro-French “Democratic Societies” immediately sprang up among Republicans (as the anti-Federalists now called themselves) in cities across America, proclaiming the French Revolution the latest advance in human freedom and feting “Citizen” Genêt with public dinners wherever he went. “He who is an enemy to the French revolution cannot be a firm republican,” the New York society declared, and should therefore be barred from public office. In Philadelphia, a pro-French crowd chanted hymns and swore loyalty at an “altar of Liberty.” Genêt began commissioning American privateers to prey upon British shipping from U.S. ports, a gross provocation of British retaliation against America and a blatant violation of the neutrality that America had just declared and that Genêt had publicly dismissed. In May, an outraged Jay told a grand jury that “the subjects of belligerent powers are bound while in this country to respect the neutrality of it, and are punishable . . . for violations of it.”

Duly provoked, Britain responded in June by declaring that it would seize the cargoes of all ships carrying grain or flour to French or French West Indian ports—a direct blow to American trade—and in November, it announced it would seize the ships as well. British naval captains began impressing American sailors into the Royal Navy, claiming that they were British nationals. Along the northern U.S. border, the eight forts the British still held turned from an irritation into a mortal threat. In February 1794, the governor of Canada made a speech denying American sovereignty over land Jay had won in the Treaty of Paris and telling the Indians along the border, who had been fighting the intermittent Northwest Indian War against the Americans for a decade, to prepare to join him in war against the United States. He ordered the lieutenant governor of Upper Canada, John Graves Simcoe, the founder of Toronto, to arm British vessels on the Great Lakes to keep U.S. ships off them. In April, he sent Simcoe, who nursed dreams of reconquering America from the north, to build Fort Miamis at Maumee, Ohio, to supply the Indians.

That month, an alarmed and angry George Washington asked Jay to go to London on a last-ditch peace mission, to try to solve the fort and debt issues, to get compensation for seized U.S. ships and cargoes, and to reach an agreement allowing U.S. ships to trade in the Caribbean. “Nothing can be more distant from every wish on my own account,” Jay wrote Sally from Philadelphia about the president’s request. “I regard it as a measure not to be desired, but to be submitted to. . . . If it should please God to make me instrumental to the continuance of peace, and in preventing the effusion of blood, . . . we shall both have reason to rejoice.”

“How my dr. Mr. Jay is it possible!” Sally replied. “The Utmost exertion I can make is to be silent. Excuse me if I have not philosophy or patriotism to do more.” When the Senate confirmed his appointment as envoy extraordinary on April 19, Jay wrote her: “Your own Feelings will best suggest an Idea of mine. God’s will be done; to Him I resign; in him I confide. Do the like. Any other philosophy applicable to this occasion is delusive.”

On May 12, Jay left for London. “Farewell my best beloved!” Sally wrote in parting. “Your wife ’till Death & after that a ministring spirit.”

When Jay landed a month later, he found the situation dire. The British government, he wrote Washington, clearly had “looked upon a war with us as inevitable” because of “the indiscreet Reception” America had given Genêt and because the ministry assumed that American troops fighting the Northwest Indian War would storm the British forts. That’s why London had begun to seize U.S. ships and to stir up Simcoe in Canada. By August, when Jay felt he’d made enough headway to write that George III had remarked, “Well Sir: I imagine you begin to see that your mission will probably be successful,” things suddenly turned sharply worse. On August 20, when U.S. general “Mad Anthony” Wayne won the last battle of the Northwest Indian War under the walls of Fort Miamis, his soldiers discovered—and hanged—several Englishmen in war paint among the captives. A furious Washington wrote Jay on August 30 that not only was Simcoe supplying the Indians with arms and supplies to carry on “their hostilities;—the murders of helpless women & innocent children along our frontiers”; he was providing “men also, in disguise” (though the men turned out to be British traders whom the Indians had conscripted, not British soldiers). If the British want peace, they’d better surrender the forts, Washington thundered; if not, “war will be inevitable.”

That eventful August, Washington also declared martial law to put down the Whiskey Rebellion in western Pennsylvania—a revolt he was sure the Republican pro-French “self-created societies” had precipitated. Unfortunately, the British government shared his belief and feared the rebels would depose the president they trusted, take over the government, and send American troops to fight as allies of France—a belief only strengthened on August 15, when Republican James Monroe, neutral America’s new envoy to France, presented an address expressing fraternity and union to the French National Convention, to which the convention’s president replied with a kiss. When printed in London, where the French Reign of Terror had sparked a “dread of Jacobin Politics and Jacobin Scenes,” the speech, Jay wrote Washington, “made a strong and disagreable impression.”

With tempers so inflamed, Jay strove “to acquire the confidence and esteem of this government, not by improper compliances, but by that sincerity, candour, truth, and prudence which . . . will always prove to be more wise and effectual than finesse and chicane,” he wrote Secretary of State Edmund Randolph from London. Long experience had taught him diplomatic patience and tact: he liked to quote a Spanish proverb that says, “We cannot catch Flies with Vinegar.”

British pride, he knew, could never stand the humiliation of admitting that the capture of U.S. ships had broken international law, though he sought compensation for those seizures. So he proposed to veil the ugly truth with a polite disguise: a joint commission of Britons and Americans would award payment for vessels taken “under colour” of royal authority—a formulation that neither admitted nor denied the legality of that authority and that ultimately produced $10.3 million in compensation. He proposed a similar commission to compensate British creditors for their American debts. In return, the foreign secretary, Lord Grenville, agreed to get all redcoats off U.S. soil by June 1796. A fervent believer in free trade, Jay strove to get American ships admitted to both the British West and East Indies. He succeeded, within strict limits as to the size and destination of U.S. ships allowed in the British West Indies trade. He and Grenville sorted out the northern U.S. boundary, very favorably to America, but only partly solved the impressment-of-seamen issue, which ultimately ignited the War of 1812—which America, with its new navy and much stronger army than it had possessed in 1794, and with no British forts on its territory, was only then in a position to win.

Jay and Grenville signed what came to be called “Jay’s Treaty” on November 19, 1794. “I have no reason to believe, or conjecture, that one more favourable to us is attainable,” Jay wrote of the treaty, and “we have reason to be satisfied.” Outrage greeted it in America, however. Pro-French Republicans, still resentful not only of England but also of the Federalists’ constitution and Hamilton’s financial system, would naturally be opposed, an unsurprised Jay wrote, as would southern debtors, who hoped for a war that would finally cancel what they owed to British creditors. Moreover, he didn’t even try to get compensation for slaves the British had freed and carried off. When he arrived home in May 1795, Jay joked that he could travel across the country by the light of burning effigies of himself, and he met such newspaper squibs as:

May it please your highness, I John Jay Have traveled all this mighty way To inquire if you, good Lord will please To suffer me while on my knees, To show all others I surpass, In love, by kissing of your ___.

Don’t worry about it, Washington wrote: “I have little doubt of a perfect amelioration of sentiment after the present fermentation . . . has evaporated a little more. The dregs however will always remain, and the slightest motion will stir them up.” By 1796, as peaceful trade began to feed a boom, Republican Benjamin Rush grumbled that the treaty, “once reprobated by nineteen twentieths of our citizens, is now approved of, or peaceably acquiesced in, by the same proportion of the people.”

Once again, Jay returned from abroad to find himself unexpectedly in a new job: without campaigning, he’d been elected governor of fast-growing New York. Jay’s two terms as governor of a state whose constitution he had written in 1777 left two great legacies. The first was penal reform. After hanging scores of miscreants beginning in his spymaster days, he had come to think that, while murderers deserved the death penalty, there must be a better way to punish 12 other classes of felons, who, until then, went to the gallows; and also a better way than whipping to punish lesser infractions. He proposed building “establishments for confining, employing and reforming criminals” by hard labor, and in November 1797, the state’s first prison opened in Greenwich Village.

Second, as far back as 1780, Jay had written from Spain that until America abolished slavery, “her Prayers to Heaven for Liberty will be impious,” and if he were a legislator, he’d introduce a bill to abolish it and “never cease moving it till it became a Law.” The president of the New York Manumission Society from its founding in 1785 until he became chief justice (even though he himself still owned slaves), he carried out that vow when he became governor. Four times, he had a bill introduced into the state legislature for gradual abolition, until it finally passed and he signed it into law in 1799.

When Jefferson won the 1800 presidential election, Hamilton urged Jay in a slightly hysterical letter to use political legerdemain (to put it nicely) to overturn New York’s vote for “anatheist in Religion and a Fanatic in politics” and bring about Adams’s reelection—a letter Jay filed with the notation: “Proposing a measure . . . it wd. not become me to adopt.” From the same anti-Jefferson motive, Adams renominated Jay as chief justice, writing him that “the firmest security we can have against the effects of visionary schemes or fluctuating theories, will be in a solid judiciary.” But Jay had made up his mind to retire—and certainly the attractions of getting back on his horse to ride circuit again couldn’t change it, so John Marshall became chief justice. When Jay’s second three-year term as governor ended in June 1801, he headed for Westchester.

There he owned nearly 600 acres in Bedford that his father and his aunt had willed him out of the 5,200 acres Grandfather Van Cortlandt had bought as an investment around 1700 from Chief Katonah. (The hamlet within Bedford where Jay’s farm stands now bears the chief’s name.) Between 1799 and 1801, Jay enlarged for himself the small house he’d built there for his farm manager in the late 1780s. He emphatically did not want “a seat,” his son William says; he wanted a plain, republican farmhouse, just like his neighbors’ and like hundreds of others built by carpenters rather than architects all over the northeast in the Federal period—two stories tall, five windows across, with a full-length front porch for looking down the hill at the rural view to the south. He now wanted no “useless display” like the grand house at 133 Broadway, “which serves only to please other people’s eyes, while it too often excites their envy.”

The only difference about his house was that it was bigger than most, with 12 spacious but cozy rooms (excluding hallways, cellar storerooms, and servants’ garrets); it had two little wings, for his study and a kitchen, with their own doors to the porch; and it was built like a battleship. Along with simplicity, Jay wanted quality and spared no expense for the best materials. A religious friend who visited while he was enlarging the house remarked that “all his conduct seemed to have reference to perpetuity in this world and eternity in the next,” William recalls. In this spirit, while riding circuit in 1792, he had sent his son Peter Augustus some mulberry seeds to plant. “My father planted many trees,” he wrote in the accompanying letter, “and I never walk in their shade without deriving additional pleasure from that circumstance; the time will come when you will probably experience similar emotions.”

All his furniture breathes the same republican gentleman’s solid simplicity: his unadorned, indestructible traveling barrister’s mahogany and glass-doored bookcases that unstack for easy transport; his mahogany Sheraton chest of drawers with its sober, subtle oval inlays; and especially those magnificent mahogany dining-room chairs that James Fenimore Cooper sat in, with their slender vertical-slat backs fanned out just enough to be elegantly, if severely, stylish, their edges carved with just enough plain molding to show that a cabinetmaker, not a carpenter, made them—and so skillfully that, even though Jay’s descendants used them well past the middle of the twentieth century, not a joint is loose.

Mementos of his career are everywhere. In the hall hang engravings that his former secretary John Trumbull gave him of two of his Revolutionary War paintings; in his study stand the desk he used as chief justice and three of the armchairs made for the original Senate Chamber of New York’s Federal Hall and given to Jay as a souvenir when he retired.

Not just a Founding Father but a family patriarch as well, he surrounded himself with portraits of his ancestors, his children, and his friends. The works and brass dial of his father’s grandfather clock, its case broken in a move, now tick in a replacement case Jay had made—plain and mahogany. He kept the certificate, signed in 1686 by James II’s colonial governor of New York, Lord Limerick, that allowed his immigrant grandfather to live and work there. The four generations of descendants who lived there after Jay were equally reverent, carefully preserving their eminent forebear’s relics and enlarging the house (with modern plumbing, too) toward the back without erasing the original structure.

Jay and his middle daughter, Ann, 17, moved into the house in the summer of 1801 to supervise the remodeling’s finishing touches. Sally, ailing after a slight stroke in December 1800, had been taking the waters in upstate New York and staying with relatives to avoid the construction noise and dust. “Oh my dear Mr. Jay! The distance that separates us is too, too great,” she wrote from her sister Kitty’s house up the Hudson—as she had so often written before. When she traveled south to Jay’s childhood house at Rye, where his brother Peter lived, she wrote, “I have been rendered very happy by the company of our dear children but could we have been All together it would have heightened the satisfaction.” By December 2, 1801, she was in the new house, writing her newly married daughter Maria that, with the unusually mild weather, “Ann is at this moment in the garden planting peach-stones.” In May 1802, she wrote assuring Maria “that my health & appetite increases daily & that I really & truly feel very well indeed.” That was the last letter Maria had from her mother: she died suddenly on May 28, aged 45, with her husband at her side. Jay led his children into the next room and read them from Corinthians: “Behold, I show you a mystery; We shall not all sleep, but we shall all be changed, in a moment, in the twinkling of an eye, at the last trump: for the trumpet shall sound, and the dead shall be raised incorruptible, and we shall be changed.”

Jay wrote no letters for a long time. In January 1803, he wrote Rufus King, then U.S. envoy in London, of Sally’s “long and painful Illness, and (when she appeared to be fast recovering) her unexpected Death.” But he had a house and farm to finish and improve, and children to care for. “My Expectations from Retiremt. have not been disappointed, and had Mrs. Jay continued with me, I should deem this the most agreeable part of my life,” he told King. “Many Blessings yet remain and I enjoy them.”

He was up at dawn, in the saddle before breakfast on a horse whose grandmother his father had given him in 1765 and whose mother he then rode. Outdoors most of the day, he supervised improvements, crops, and cider-, grist-, and saw-mills. He presided over morning and evening worship with his family and servants, and carefully annotated his prayer book with the appropriate prayers for specific days. He expanded his landholdings to about 750 acres and corresponded with British agricultural innovators on advances in scientific farming. He rarely commented on politics or visited New York City, once letting eight years pass without a trip to town. “A stranger might have resided with him for months together, without discovering from his conversation that he had ever been employed in the service of his country,” writes William, who came to live with him in the house at Bedford in 1809, raised six children there, and helped his father turn the farm into a profitable dairy operation, while also founding the Bible Society and becoming a prominent abolitionist.

“The burden of time I have not experienced,” Jay wrote, adding that he enjoyed “frequent conversations with the ‘mighty dead,’ who, in a certain sense, live in their works.” Christian stoic that he was, he most often turned to the Bible and to Cicero, that beguiling conversationalist who loved virtue, revered private property, hated taxation and tyranny, and brought Greek stoic philosophy to Rome and to posterity. Like his fellow lawyer-statesman Jay, he understood that in a world of adversity, injustice, and suffering, where one must often “choose the least among evils,” one must live according to “the moral law which nature itself has ordained” and that philosophers have painstakingly elucidated, in order to better “the human community” and feel whole and decent in one’s “own soul, which is the most godlike thing that God has given to man.” Along with that bracing doctrine, Jay also had his belief in the afterlife. Two years after Sally’s death, that Christian stoicism illuminates his condolence letter on the death of his friend Alexander Hamilton to Hamilton’s father-in-law, Jay’s old and dear friend, Philip Schuyler: “The philosophic topics of consolation are familiar to you,” he wrote, “and we all know from experience how little relief is to be derived from them. May the Author and only Giver of consolation be and remain with you.”

As his 28 years of temperate and contented retirement reached their halfway mark, his worldview had grown, if anything, more wry. His health was better than a year ago, he wrote a friend, “so that at present, there is some Prospect of my living to see further Proofs of the Perfectibility of human nature by modern Philosophers, and of the increased Illumination of this age of Reason.” On May 17, 1829, at the age of 83, he died, as perfect in virtue as human imperfection allows.

Myron Magnet is City Journal’s editor-at-large and was its editor from 1994 through 2006. He is the author of The Dream and the Nightmare: The Sixties’ Legacy to the Underclass and a recipient of the National Humanities Medal.

Source: http://city-journal.org/2010/20_1_urb-john-jay.html