[Picture: Alexander Hamilton, American Founding Father.]
Hello! I'm Mark in Spokane and this is my inaugural post here at American Creation. The excellent bloggers here have kindly invited me to be a contributor to his blog, and I am honored beyond words to have the privilege to share some of my thoughts with you all here. For my first full post here, I would like to sketch out some thoughts on the jurisprudence of one of our nation's Founders, Alexander Hamilton.
Hamilton has long been overshadowed by many of the the top-tier Founders, largely because he had the misfortune of getting killed by Aaron Burr in a dual before he could become president. Burr's own reputation never really recovered from the dual, either, and what had been a fairly stellar political career up to that point soon dwindled into weirdness. But that's a topic for another post! This post is dealing with Hamilton, who thanks to the work of folks like Richard Brookhieser, Gordon Wood and Ron Chernow, is finally starting to get some of the attention to which he is due. In this post, I would like to look at Alexander Hamilton's contributions to the world of constitutional law, specifically, his approach to interpreting the Constitution.
Hamilton is well-known for his defense of judicial review and the independence of the judiciary in the Federalist. His arguments in favor of the power of the judiciary are well-known, and I won't take up space here simply repeating what others have already said (hey, this is a blog post, not a law review article!). Instead, I want to look at Hamilton's approach to constitutional interpretation after the Constitution was ratified and during the time when he was in government. As Forest 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 wording of the Constitution itself. Just as much as Jefferson, Hamilton was an enemy of the idea of a "living Constitution." 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, 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 maliable text that would allow for the creation or recognition of new or novel rights. Just as much as his nemesis Jefferson, Hamilton believed that the Constitution's text was what was binding. Both were, 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.
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 closely 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.
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. Hamilton's jurisprudence was both active and conservative at the same time.
How cool is that?