"There are only two ways of telling the complete truth—anonymously and posthumously."Thomas Sowell

Sunday, April 10, 2016

Alexander Hamilton's unorthodox conservative constitutional jurisprudence

Tom's post from yesterday evening got me thinking about the constitutional wisdom of Alexander Hamilton. Hamilton has long been overshadowed by many of the the major American founding fathers, largely because he had the misfortune of falling from political grace and then getting killed by Aaron Burr in a duEl. From such an end, knowledge of Hamilton quickly sank from popular culture, although thanks to the work of folks like Richard Brookheiser, Gordon Wood and Ron Chernow, he has finally received some of the attention from historical circles which he is due. And his story has even given rise to a popular Broadway musical exploring the themes and concepts of his amazing life.

In this post, I'd like to briefly look at Alexander Hamilton's contributions to the world of constitutional law—specifically, his approach to interpreting the Constitution as it developed between the Federalist Papers and his work as in both the Washington and Adams administrations. Hamilton is well-known for his defense of judicial review and the independence of the judiciary in the Federalist Papers. His arguments in favor of the power of the judiciary are part of his legacy as a legal thinker, and I won't take up space here simply repeating what others have already said. What bears closer inspection is Hamilton's approach to constitutional interpretation after the Constitution was ratified and during the time when he was in government.

As Forrest McDonald has noted, Hamilton's legal ideas were remarkably influential at the time, and "at least two of [Chief Justice John] Marshall's opinions were drawn directly from Hamilton's constitutional pronouncements." Hamilton advocated a flexible approach to constitutional interpretation, one that provided for a generous and expansive reading of federal power. It is no surprise that this kind of view closely paralleled his general political principles. But Hamilton also insisted that this expansive view of government power be limited by the Constitution's outline of government authority. Hamilton did not believe that the Constitution was simply a grant of general authority to the federal government; he was an enemy of the idea of a "living Constitution," of constitutional principles unmoored from the text of the Constitution itself. As he commented when discussing the power of the Congress to authorize corporations: "Whatever may have been the intention of the framers of a constitution, or of a law, that intention is to be sought for in the instrument itself, according to the usual & established rules of construction."

In addition, Hamilton contended that when discerning the intent of the Constitution's provisions, recourse outside of the text of the Constitution was to be avoided: "arguments drawn from extrinsic circumstances, regarding the intention of the convention, must be rejected."

Hamilton's approach to constitutional interpretation did not, therefore, reduce constitutional law to politics, nor was it an attempt to read the Constitution as an infinitely malleable text that would allow for the creation or recognition of new or novel rights. Hamilton believed that the Constitution's text was binding. He was, in effect, proponents of classic original intent jurisprudence, where the intentions of the Framers of the Constitution are sought by examining the actual text of the Constitution, rather than speculating on what the Framers might have meant, or by looking at extrinsic sources to supply the intent of the document.

Well, what about Hamilton's rather famous disagreement with Jefferson over the proper scope of federal authority under the Constitution? Hamilton's constitutional jurisprudence diverged from Jefferson's not over the question of original intent, but over the question of the explicit grant of authority to Congress under the Necessary and Proper Clause of the Constitution. Was the clause to be read expansively (as Hamilton and the Federalists advocated), or narrowly (as Jefferson and the early Democratic Republicans wanted)? Hamilton was convinced that it should be viewed expansively, in light of the Constitution's grant of enumerated powers to Congress. By the terms of the clause, Congress had the power to do what was "necessary and proper" to carry out its expressed powers. But in Hamilton's view, even this expansive reading of the Necessary and Proper Clause was still bracketed by the text of the Constitution itself.

Proof of this is seen in Hamilton's advocacy of the federal government improving the network of internal canals and roads within the United States in order to strengthen the country's domestic military defenses. Hamilton made this suggestion while serving, under President Adams, as the field commander of the federal army during the Quasi-War with France (1798-1800). An excessively expansive reading of the Necessary and Proper Clause, unhinged from the actual expressed powers of Congress, would see such internal defense improvements as being within Congress's overall military power with a possible connection to Congress's power to regulate interstate commerce. But that wasn't Hamilton's argument. Hamilton argued that Congress had the authority to establish the roads he proposed under its power to "establish post offices and post roads." But in order to have the authority to build canals, Hamilton argued, Congress would have to be empowered by a constitutional amendment.

That episode demonstrates the the constrained nature of Hamilton's way of reading of the Constitution. While committed to the idea of a flexible and vigorous federal government, Hamilton was also committed to the Constitution's function as a limitation on that government's power. When the text of the Constitution indicated that Congress had power, Hamilton urged that that power be used to its utmost. But when the text indicated that Congress did not have a given power, Hamilton insisted that the text be followed, even if he thought the text should be changed in order to facilitate better policy. This approach sets Hamilton clearly within the conservative camp when it comes to interpreting the Constitution -- as in his general approach to law & government, he would be an unorthodox conservative today, but a conservative nonetheless. Constitutional structure & constitutional language both mattered to Hamilton. And it is in both that he found the best guarantees against an overly expansive sweep of government power.

(Tom's post immediately below demonstrates this point as well in reference to the Senate's role in judicial appointments.)


Tom Van Dyke said...

But in order to have the authority to build canals, Hamilton argued, Congress would have to be empowered by a constitutional amendment.


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