Federalist 64

Image: The Federalist, on the new Constitution. (Hallowell [Me.] Masters, Smith & co., 1857) Library of Congress. https://www.loc.gov/item/09021557/
Which entities of the federal government did Jay believe were best equipped to deal with foreign affairs? What disadvantages did he see as inherent in the House of Representatives in dealing with treaties and foreign affairs? What did Jay mean when he referred to “tides” in the affairs of men? Who did he think was best equipped to deal with “the business of intelligence”? What features built into the Senate permitted it a more extensive role in foreign affairs than the House? Jay mentioned the importance of executive “secrecy and dispatch.” Why might this quality be vital in dealing with foreign affairs?
Does Jay’s argument contradict the idea that the “consent of the governed” is fundamental to the American political order? What would Jay say to those who argue that transparency and accountability to the people are lost when secrecy predominates? Is secrecy consistent with a government based on the rule of law? (See Establishment of the Committee of Secret Correspondence, First Annual Message to Congress, Message to the House of Representatives, Thomas Jefferson to Thomas Cooper, Selected Dispatches, Correspondence Between Anthony Butler and President Andrew Jackson, Hon. Francis O. J. Smith to Secretary of State Daniel Webster, Special Message to the House of Representatives, Ambassador Henry Shelton Sanford to Secretary of State William Seward, Totten, Administrator, v. United States, The Acquisition of Hawaii.)

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The American revolutionaries fought a war with slim prospects for a favorable outcome. In challenging the world’s greatest superpower, the outmanned, outgunned, and often poorly trained Americans used tactics at odds with the principles of the “Glorious Cause” to tip the scales in their favor. One such tactic involved the use of secret operations. The nation’s first spymaster, General George Washington, ordered numerous operations designed to gather information on the enemy, circulate disinformation, and damage the morale of the British and their Hessian (German) mercenaries. The Continental Congress and later the Confederation Congress sponsored similar operations abroad, although both Washington’s and Congress’ operations produced mixed results.

Nonetheless, after the nation secured its independence, those nationalists intent on scrapping the ineffectual Articles of Confederation—including Washington, Hamilton, and John Jay—proposed a new Constitution that created the office of president of the United States. The new chief executive was given power over the armed forces and was expected to serve as the nation’s diplomat in chief. Since the president was expected to play a significant role in foreign affairs and war (arenas noted for their amoral character), the office needed clandestine tools at its disposal. In this essay, John Jay, who served variously as the president of the Continental Congress, envoy to Spain, and secretary of foreign affairs, argued that the president was uniquely situated to oversee the “business of intelligence” as it applied to traditional diplomacy, but also, as we shall see, in other ventures as well.

—Stephen F. Knott

George W. Carey and James McClellan, eds., The Federalist: The Gideon Edition (Indianapolis: Liberty Fund, 2001), 327–28, available at https://oll.libertyfund.org/title/jay-the-federalist-gideon-ed.

… It seldom happens in the negotiation of treaties, of whatever nature, but that perfect SECRECY and immediate DISPATCH are sometimes requisite. These are cases where the most useful intelligence may be obtained, if the persons possessing it can be relieved from apprehensions of discovery. Those apprehensions will operate on those persons whether they are actuated by mercenary or friendly motives; and there doubtless are many of both descriptions, who would rely on the secrecy of the president, but who would not confide in that of the Senate, and still less in that of a large popular assembly. The convention have done well, therefore, in so disposing of the power of making treaties, that although the president must, in forming them, act by the advice and consent of the Senate, yet he will be able to manage the business of intelligence in such a manner as prudence may suggest.

They who have turned their attention to the affairs of men, must have perceived that there are tides in them; tides very irregular in their duration, strength, and direction, and seldom found to run twice exactly in the same manner or measure. To discern and to profit by these tides in national affairs is the business of those who preside over them; and they who have had much experience on this head inform us that there frequently are occasions when days, nay, even when hours, are precious. The loss of a battle, the death of a prince, the removal of a minister, or other circumstances intervening to change the present posture and aspect of affairs, may turn the most favorable tide into a course opposite to our wishes. As in the field, so in the cabinet, there are moments to be seized as they pass, and they who preside in either should be left in capacity to improve them. So often and so essentially have we heretofore suffered from the want of secrecy and dispatch, that the Constitution would have been inexcusably defective, if no attention had been paid to those objects. Those matters which in negotiations usually require the most secrecy and the most dispatch, are those preparatory and auxiliary measures which are not otherwise important in a national view, than as they tend to facilitate the attainment of the objects of the negotiation. For these, the president will find no difficulty to provide; and should any circumstance occur which requires the advice and consent of the Senate, he may at any time convene them. Thus we see that the Constitution provides that our negotiations for treaties shall have every advantage which can be derived from talents, information, integrity, and deliberate investigations, on the one hand, and from secrecy and dispatch on the other….

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