tag:blogger.com,1999:blog-1237087217187172116.post3885013962098527595..comments2024-03-28T10:44:30.518-06:00Comments on American Creation: The jurisprudence of Alexander HamiltonBrad Harthttp://www.blogger.com/profile/17669677047039491864noreply@blogger.comBlogger13125tag:blogger.com,1999:blog-1237087217187172116.post-22470242653666704372009-06-15T20:57:37.382-06:002009-06-15T20:57:37.382-06:00Thank you for your careful attention to AH. My non...Thank you for your careful attention to AH. My non-substantive comment follows.<br /><br />As a Hamiltonian interested in consistency, I would like to put the dual/duel confusion to rest by reminding readers that it was a "duel" with Aaron Burr that preceded Hamilton's death. Just one Burr was too much for AH, it seems. A "dual" attack would've been way too much.<br /><br />I look forward to your future writings on the subject.ADhttp://leoindustries.books.officelive.com/blog.aspxnoreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-57988005617512399522009-06-07T04:16:41.204-06:002009-06-07T04:16:41.204-06:00I hear you now, and I'll try not to cramp your...I hear you now, and I'll try not to cramp your style, dude. Usually they give away the punchline in the first sentence if not the title, so it's usually a matter of housekeeping.<br /><br />Rock on.Tom Van Dykehttps://www.blogger.com/profile/07121072404143877596noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-19348047493873105222009-06-05T23:44:13.786-06:002009-06-05T23:44:13.786-06:00Well, I will continue with my next posts then, wit...Well, I will continue with my next posts then, with your encouragement. To be honest, now that I've done some work on this, I think that there may be enough here -- once it is fully fleshed out -- for a short law review article. That's some synergy between blogging and academic writing!Mark D.https://www.blogger.com/profile/05000893614655251587noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-81683839661120502082009-06-05T19:14:39.866-06:002009-06-05T19:14:39.866-06:00Well, Mark, it's sure great to correspond with...Well, Mark, it's sure great to correspond with someone two steps ahead and not behind.<br /><br />But I do think you should set down your argument for posterity. I didn't know anything about any of this until you inspired me to do some research, and the conclusion hit me based on what you wrote and a little subsequent digging on my own.<br /><br />The Davy Crockett story is interesting, that he regretted his vote in Congress to give $20,000 to the victims of a fire as unconstitutional, although according to this,<br /><br />http://www.infoporium.com/heritage/crockbio.shtml<br /><br />he became a fierce opponent of Andrew Jackson, Crockett supporting the Bank. [The Jacksonians defeated his re-election in the end.]<br /><br />I especially liked the typo that in 1827, Crockett "Successfully runs from U.S. Congress." As do we all, Davy, as do we all.Tom Van Dykehttps://www.blogger.com/profile/07121072404143877596noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-51584361296147336122009-06-05T17:45:32.500-06:002009-06-05T17:45:32.500-06:00Ah, Tom, you've leap-frogged over me! My next...Ah, Tom, you've leap-frogged over me! My next two posts were going to draw out that implication! The next post was going to be on Democratic Republican jurisprudence, focusing on Jefferson and Jackson's opposition to the Bank. Then the third post was going to be on how virtually of the all jurisprudential theories of the early Republic were more constrained and less - let's say - creative than much of current jurisprudence. <br /><br />Drat. Now I have to come up with another second post! Oh well...<br /><br />Thanks for the research tip, by the way.<br /><br />Cheers!Mark D.https://www.blogger.com/profile/05000893614655251587noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-69484724194158838802009-06-05T15:16:26.990-06:002009-06-05T15:16:26.990-06:00Hamilton still claimed "implied" powers,...Hamilton still claimed "implied" powers, more than say, Jefferson and Madison.<br /><br />But we might be able to say that if Hamilton had the most expansive---liberal, if you will---sense of constitutional interpretation, then today's "living" Constitution is far outside the bounds of even the most liberal of Founders!<br /><br />You may find helpful Andrew Jackson's veto of the renewal of the Bank of the United States' charter, on a number of constitutional grounds.<br /><br />http://avalon.law.yale.edu/19th_century/ajveto01.aspTom Van Dykehttps://www.blogger.com/profile/07121072404143877596noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-73082344273306655252009-06-05T09:49:06.168-06:002009-06-05T09:49:06.168-06:00Tom,
Interesting. But I don't see Hamilton h...Tom,<br /><br />Interesting. But I don't see Hamilton has having an inconsistency. Essentially, I think his understanding of the Constitution's grant of authority to the government works like this: where the text gives an authority to the federal government to engage in a specific act, like setting up post roads or regulating currency, that authority should be interpreted widely in light of the Necessary and Proper Clause in order to promote active and vigorous government. Hence, the federal government has the authority to set up a system of domestic roads and a national bank. <br /><br />But where the text is silent about a power given to the federal government, say to establish a religion or to exercise prior restraint over the press or to build and operate canals, Hamilton believes that the federal government lacks power in that area, and that it cannot act without amendment to the Constitution. This was his essential argument in the Federalist and while serving as field commander of the federal army under John Adams (his last formal government job).<br /><br />So, I don't see an inconsistency in Hamilton. It is a different approach to understanding the Constitution than what is common today, or even in Hamilton's own time. Which is one of the reasons I find it so interesting. <br /><br />Maybe I have enough here to start work on a law review article!Mark D.https://www.blogger.com/profile/05000893614655251587noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-35519380211279026362009-06-05T01:21:34.015-06:002009-06-05T01:21:34.015-06:00I hear that, Mark, about the Louisiana Purchase. ...I hear that, Mark, about the Louisiana Purchase. Completely a propos and an excellent rejoinder.<br /><br />Not that I'll ever put Jefferson up as the standard on anything constitutional [see previous post]. Madison gets more leeway with me.<br /><br />I was arguing Hamilton against Hamilton, which seems fair, yes?Tom Van Dykehttps://www.blogger.com/profile/07121072404143877596noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-75368666725550669012009-06-04T23:49:07.254-06:002009-06-04T23:49:07.254-06:00To put Hamilton in a modern context, I would say t...To put Hamilton in a modern context, I would say that his jurisprudence is most like that of Byron White -- a kind of flexible conservativism that looked to the text of the constitution as both a starting point and a limitation on the jurisprudence of the Court, without getting trapped in a kind of dogmatic literalism like Jefferson did.<br /><br />Of course, Jefferson's convictions about the Constitution didn't stop him from achieving the greatest accomplishment of his presidency: the Louisiana Purchase. He wasn't nearly as consistent as Hamiliton!<br /><br />Cheers!Mark D.https://www.blogger.com/profile/05000893614655251587noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-41108428904627503322009-06-04T17:00:40.093-06:002009-06-04T17:00:40.093-06:00Just not as much as Jefferson Madison and Randolph...Just not as much as Jefferson Madison and Randolph's, eh?<br /><br />And Congressman Davy Crockett's. Fascinating story, and it explains our politics [and deficits] of 2009 completely.<br /><br />http://www.juntosociety.com/patriotism/inytg.htmlTom Van Dykehttps://www.blogger.com/profile/07121072404143877596noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-62611982554537973292009-06-04T16:37:38.038-06:002009-06-04T16:37:38.038-06:00Tom,
First, thanks for the critique.
Second, I...Tom,<br /><br />First, thanks for the critique. <br /><br />Second, I think that Hamilton's reading of the constitution was consistent. When dealing with the Bank situation and his proposal for the building of roads, Hamilton believed that the Necessary and Proper Clause authorized Congress to act because Congress had a power in each case to undertake the basic action. For example, Congress's power over currency, the interstate commerce power, the post roads power, etc. <br /><br />Now, there is no question that he read the Necessary & Proper Clause expansively in each case. He did not favor a narrow reading of that clause. But he did not read the Necessary and Proper Clause as a substitute for an express grant of power in the Constitution. He did not believe that simply because something was perhaps a necessary and proper policy of government that such a policy could be justified by the Necessary and Proper Clause. That's what his argument about his canal proposal demonstrates. And that is what makes Hamiliton's jurisprudence conservative.Mark D.https://www.blogger.com/profile/05000893614655251587noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-66676148813399760622009-06-04T16:26:24.767-06:002009-06-04T16:26:24.767-06:00But in order to have the authority to build canals...<i>But in order to have the authority to build canals, Hamilton argued, Congress would have to be empowered by a constitutional amendment.</i>..<br /><br />Mark, I'd certainly love to claim Hamilton for "strict constructionism," but his Bank of the United States seems to contradict his canal story.<br /><br />[plagiarized from the internet]:<br />http://www.pbs.org/wgbh/amex/hamilton/peopleevents/e_bank.html<br /><br /><br />In contrast to Hamilton's plan for the federal government to assume state debts, Hamilton's bank plan had a relative easy time in Congress. The Senate passed it handily on January 20, 1791, and the House followed in early February. But support for the Bank fell largely along sectional lines, with Northern endorsement and Southern opposition. Among those Southern opponents was James Madison, who worried that the Bank's placement in Philadelphia, the nation's temporary capital, might thwart the decision to put the permanent seat of government further south on the banks of the Potomac River. Madison also noted that the Constitution conferred no power to establish a national bank or any other corporation; and if a power was not in the text, by what authority could it be done? When the Bank bill reached George Washington, Thomas Jefferson, who termed the banking industry "an infinity of successive felonious larcenies," also weighed in against it on constitutional grounds, urging a veto. So did Attorney General Edmund Randolph. It seemed as if the Bank might yet go down to defeat.<br /><br />Hamilton would not give up without a fight. Asked by his patron Washington to answer the opinions of Jefferson and Randolph, Hamilton swiftly penned an opinion of almost 15,000 words presenting his case. Hamilton's central point was that the Constitution must confer implied powers along with those actually enumerated; the vehicle for this was the clause enabling Congress "to make all laws which shall be necessary and proper" to put expressly granted powers into effect. In Hamilton's view, later echoed by Chief Justice John Marshall in the landmark McCulloch v. Maryland case upholding the Bank's constitutionality, "necessary" did not mean absolutely essential so much as useful and appropriate, and the Bank certainly met that looser standard -- it would be a great help in enabling the government to carry out a number of powers explicitly granted it by the Constitution, including collecting taxes, regulating trade and creating a military. Persuaded by Hamilton's arguments, on February 25 Washington signed the Bank bill into law.Tom Van Dykehttps://www.blogger.com/profile/07121072404143877596noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-22790190222172871732009-06-04T16:20:09.354-06:002009-06-04T16:20:09.354-06:00This comment has been removed by the author.Tom Van Dykehttps://www.blogger.com/profile/07121072404143877596noreply@blogger.com