Thursday, June 4, 2009

The jurisprudence of Alexander Hamilton

[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?


Tom Van Dyke said...
This comment has been removed by the author.
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...

Mark, I'd certainly love to claim Hamilton for "strict constructionism," but his Bank of the United States seems to contradict his canal story.

[plagiarized from the internet]:

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.

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.

Mark D. said...


First, thanks for the critique.

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.

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.

Tom Van Dyke said...

Just not as much as Jefferson Madison and Randolph's, eh?

And Congressman Davy Crockett's. Fascinating story, and it explains our politics [and deficits] of 2009 completely.

Mark D. said...

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.

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!


Tom Van Dyke said...

I hear that, Mark, about the Louisiana Purchase. Completely a propos and an excellent rejoinder.

Not that I'll ever put Jefferson up as the standard on anything constitutional [see previous post]. Madison gets more leeway with me.

I was arguing Hamilton against Hamilton, which seems fair, yes?

Mark D. said...


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.

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).

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.

Maybe I have enough here to start work on a law review article!

Tom Van Dyke said...

Hamilton still claimed "implied" powers, more than say, Jefferson and Madison.

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!

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.

Mark D. said...

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.

Drat. Now I have to come up with another second post! Oh well...

Thanks for the research tip, by the way.


Tom Van Dyke said...

Well, Mark, it's sure great to correspond with someone two steps ahead and not behind.

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.

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,

he became a fierce opponent of Andrew Jackson, Crockett supporting the Bank. [The Jacksonians defeated his re-election in the end.]

I especially liked the typo that in 1827, Crockett "Successfully runs from U.S. Congress." As do we all, Davy, as do we all.

Mark D. said...

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!

Tom Van Dyke said...

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.

Rock on.

AD said...

Thank you for your careful attention to AH. My non-substantive comment follows.

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.

I look forward to your future writings on the subject.