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John Jay was the nation's first chief justice. A deeply religious man, he played a significant role in contributing to most First Amendment freedoms, including freedom of speech and of the press. He is known for negotiating the Jay Treaty to ease tensions with Britain after the Revolutionary War. (Portrait, public domain)

Although he served as the first chief justice of the United States, John Jay (1745-1829) has been largely overshadowed by John Marshall, who served as the fourth chief. Although it does not appear that the Supreme Court voided any laws under the First Amendment while Jay was on the Supreme Court, he played a significant role in contributing to most First Amendment freedoms.

Born and raised in New York, Jay was a descendant of Dutch Reformed and Protestant French Huguenots and shared his parents’ strong religious faith. He attended King’s College (today’s Columbia University), read law and married into the prominent Livingston family (his wife was the daughter of a New Jersey governor). In addition to his role as an Episcopal layman, Jay was active in the American Bible Society and other Protestant ecumenical evangelistic endeavors, which he thought might hasten the return of Christ, and he believed strongly that human reason alone was inadequate in understanding divine truths. 

John Jay negotiated treaty to ease tensions with Britain after war

Jay worked in the First and Second Continental Congresses to avoid conflict with Britain (helping to draft the Olive Branch petition to King George III), but supported the Declaration of Independence. He served as New York’s first chief justice, and took on a number of diplomatic assignments including helping to negotiate an end to the Revolutionary War and negotiating the controversial Jay Treaty to ease later tensions with Great Britain. 

Jay was one of three authors of The Federalist Papers, which argued for ratification of the U.S. Constitution and believed that God had favored American independence. In Federalist No. 2, Jay optimistically observed that:

Providence has been pleased to give this one connected country to one united people—a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs, and who by their joint counsels, arms, and efforts, fighting side by side throughout a long and bloody war, have nobly established their general liberty and independence” (p. 38).

Jay was George Washington’s first appointment to the U.S. Supreme Court. Although he served from 1789 to 1795, he spent some of this time on diplomatic missions abroad, and, partly because of the arduousness of circuit riding and partly because of the relative insignificance of the court in its early years, he resigned to become governor of New York, where he served until 1801.

John Jay believed in broad protections for speech, the press

In part because of the role that robust speech and press had played in the revolutionary cause, Jay believed in broad protections for both, and did not seek to prosecute those who criticized him for his official roles. 

In a letter to Thomas Jefferson that he wrote on May 5, 1786, Jay observed that:

The Liberty of the Press is certainly too important to the public, to be restrained for the sake of personal considerations, especially as it is in every man’s power to frustrate calumny, by not deserving censure; for alto slander may prevail for a while, yet truth and consistent rectitude will ultimately enjoy their rights. While I possess the esteem of those who merit esteem, the effusions of unmerited malevolence will give me no greater concern, than that what naturally results from the various other evils to which we are liable. We cannot indeed be insensible to them, but we may bear them with fortitude (Bird 2015, 122).

In a similar defense of freedom of speech that he expressed in “An Address to the People of New York” (1788) in favor of the U.S. Constitution, Jay observed that its framers were aware that opinions would differ but that “Liberality, . . . as well as prudence, induced them to treat each other’s opinions with tenderness” (Bird 2015, 123). In a charge to a grand jury in 1793, Jay further observed that “As free citizens we have a right to think and speak our sentiments on these subject[s], in terms becoming free men — that is in terms explicit and decorous — As judges and grand jurors the merits of those political questions are without our province” (Bird 2015, 124).

Jay counseled individuals to speak and write prudently, but he did not favor prosecuting them for criticizing the government or its leaders. 

Although Jay did not initially think that a federal bill of rights was necessary, he favored the freedoms that it articulated. As governor, he did not pursue any prosecutions under the Sedition Act of 1798, and as a moderate Federalist he does not appear to have supported it or to join in criticism of the Virginia and Kentucky Resolutions that opposed it.

John Jay defended religious freedom but thought Roman Catholic loyalty was divided

With his strong religious faith, Jay enjoyed the right of religious exercise, but as one whose ancestors had been driven from France because of their Protestant religious beliefs, he joined other defenders of religious freedom of his day, many of whom had been influenced by John Locke, by seeking to limit the right of Roman Catholics, whose loyalty he thought was divided. 

In helping to draft the New York state constitution of 1776, Jay successively introduced three  resolutions (only the last of which was adopted) that would withhold toleration to citizens who held “doctrines [or] principles inconsistent with the safety of civil society”;  that would bar Roman Catholics from civil rights unless they foreswore loyalty to the pope; and that would have distinguished liberty of conscience from the encouragement of “licentiousness” or that would “disturb or endanger the safety of the state” (Bonomi 2000, 15).

He further added a provision requiring anyone wishing to become a naturalized citizen of the state to renounce subordination “to all and every foreign king, prince, potentate and state, in all matters ecclesiastical as well as civil” (Bonomi 2000, 15). 

Although Jay favored governance of the Episcopal Church by bishops, he made sure that they were not required (as were Anglican counterparts) to take a test oath — many Anglican ministers had sided with Britain during the Revolution because they felt bound by the oaths that they had taken. 

John Jay’s deeply religious views supported Sabbath observances, end to slavery

As governor of New York, Jay followed New England precedents in declaring days of Thanksgiving and pressed for laws requiring observance of the Sabbath. His religious beliefs also appear responsible for his opposition to slavery, which led to laws gradually abolishing the institution in his state.

Jay was succeeded as chief justice by John Rutledge (who served for only 138 days) and Oliver Ellsworth, who served from 1796 until John Marshall succeeded him in 1801.

John R. Vile is a professor of political science and dean of the Honors College at Middle Tennessee State University.

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