The Founding Father of Constitutional Subversion

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Upon learning that my new book on Alexander Hamilton (Hamilton’s Curse: How Jefferson’s Archenemy Betrayed the American Revolution — And What It Means for Americans Today) will be published in October, a law student from New York University emailed to say how excited he was to hear of it. He wrote of how sick and tired he was listening to one of his NYU law professors, Nadine Strossen, constantly invoking Hamilton’s judicial philosophy (and that of his political descendants) to promote bigger and bigger government, day in and day out, in class. Being schooled in the classical liberal tradition, this student understood that bigger and bigger government always means less and less individual liberty.

Hamilton was indeed the founding father of constitutional subversion through what we now call "judicial activism." That’s why leftist law professors like Strossen lionize him in their classrooms while barely mentioning opposing viewpoints.

Hamilton was the leading advocate of a constitutional convention to "amend" the nation’s first constitution, the Articles of Confederation. He lobbied for seven years to have such a convention convened, constantly complaining to George Washington and anyone else who would listen that "we need a government of more energy." Patrick Henry opposed Hamilton by sagely pointing out that the Articles of Confederation had created a government powerful enough to raise and equip an army that defeated the British empire, and that that seemed sufficient to him.

At the convention, which scrapped rather than amended the Articles of Confederation, as had been promised, Hamilton laid out his grand plan: A permanent president who would appoint the governors of each state, and who would, through his state-level puppets, have veto power over all state legislation. A national government with the president given essentially the powers of a king is what he advocated. It was all rejected, of course, when the convention spurned Hamilton’s nationalism and adopted a federal system of government instead, with only a few powers delegated to the central government by the sovereign states, mostly for foreign affairs. Hamilton subsequently denounced the new constitution as "a frail and worthless fabric."

He and his political compatriots, such as Senator Rufus King of Massachusetts, and John Marshall of Virginia, then set about to sabotage the new Constitution by "reinterpreting" the document as something very different from what was clearly written in black and white. His purpose, wrote Cornell University historian Clinton Rossiter in his book, Alexander Hamilton and the Constitution, was to build "the foundations of a new empire."

Jefferson and most other founders viewed the Constitution as a set of constraints on the powers of government. Hamilton thought of it in exactly the opposite way — as a grant of powers rather than as a set of limitations — a potential rubber stamp on anything and everything the federal government ever wanted to do. He and his fellow nationalists (the Federalists) set about to use the lawyerly manipulation of words to "amend" the Constitution without utilizing the formal amendment process. "Having failed to persuade his colleagues at Philadelphia of the beauties of a truly national plan of government," Rossiter wrote, "and having thereafter recognized the futility of persuading the legislatures of three-fourths of the states to surrender even a jot of their privileges, he set out to remold the Constitution into an instrument of national supremacy."

And how did he "remold" the Constitution? He began by inventing a number of myths (i.e., lies) about the American founding. On June 29, 1787, before the Constitution was even ratified, he said that the sovereign states were merely "artificial beings" that had nothing to do with creating the union — despite the fact that the Constitution itself (in Article 7) declared that the document would be ratified (if it was to be ratified) by the citizens of at least nine of the thirteen states. He told the New York State Assembly in that same year that the "nation," and not the states, had "full power of sovereignty," clearly contradicting the written Constitution and actual history. This lie would be repeated by nationalist politicians from Clay, Webster and Story, to Lincoln. It is still repeated to this day by various apologists for the American empire.

When President Washington asked Hamilton his opinion on the constitutionality of a national bank, Hamilton responded with a long-winded report that argued that if one reads between the lines of the Constitution, one discovers "implied powers" that are not specifically delegated to the central government by the states. Like the creation of a central bank, for instance. Secretary of State Jefferson was also asked his opinion on the matter, and essentially said that all he saw "between the lines" of the Constitution was blank space.

Hamilton prevailed, setting the template for the eventual destruction of the Constitution. "With the aid of the doctrine of implied powers," Rossiter wrote approvingly, Hamilton "converted the . . . powers enumerated in Article I, Section 8 into firm foundations for whatever prodigious feats of legislation any future Congress might contemplate." He established the foundations for unlimited government, in other words.

Hamilton also invented the "doctrine" of "resulting powers." If the united States ever conquered one of their neighboring countries, he wrote, "they would possess sovereign jurisdiction over the conquered territory. This would be rather the result from the whole mass of government . . . than a consequence of . . . powers specially enumerated." Thus, if government engages in an unconstitutional act, such as an undeclared war of conquest, then according to Hamilton, the fact that the conquest occurred would create a new constitutional right.

It was Hamilton who first advocated the broadest possible interpretation of the General Welfare Clause of the Constitution so that he could make his case for corporate welfare in his 1791 Report on Manufactures. "It is . . . of necessity left to the discretion of the National Legislature, to pronounce upon the objects, which concern the general Welfare," he wrote. Naturally, the legislature would be eager to define every piece of special-interest legislation to be serving "the general welfare."

Again celebrating the political trickery of his hero Hamilton, Rossiter wrote that "Thus with a flourish did Hamilton convert the fuzzy words about the u2018general Welfare’ from a u2018sort of caption,’ as Madison described them, into a grant of almost unlimited authority" of the federal government.

Hamilton was also likely to be the first to twist the meaning of the Commerce Clause of the Constitution, which gave the central government the ability to regulate interstate commerce, supposedly to promote free trade between the states. Hamilton argued that the Clause was really a license for the government to regulate all commerce, intrastate as well as interstate. For "What regulation of [interstate] commerce does not extend to the internal commerce of every State?" he asked. His political compatriots were all too happy to carry this argument forward in order to give themselves the ability to regulate all commerce in America.

Hamilton also invented the notion of special "war powers" that are not specifically delegated to the federal government by the states. He subsequently argued for a standing army, funding of the army "without limitation," and the nationalization of all industries that supplied goods to the army.

Jefferson opposed Hamilton on this and all of his other constitutional subversions. In his first annual message to Congress as president, he said that it is neither "needful or safe that a standing army should be kept in time of peace." In a September 9, 1792 letter to President Washington, Jefferson wrote that he "utterly . . . disapproved of the system of the Secretary of the Treasury [Hamilton] . . . . His system [of a national bank, protectionist tariffs, and corporate welfare] flowed from principles averse to liberty, & was calculated to undermine and demolish the republic . . ."

Clinton Rossiter’s book on Hamilton and the Constitution is a masterwork of scholarship, but when Rossiter editorializes he sounds quite giddy in his celebration of Hamilton’s subversion of the Constitution. "Hamilton had no equal among the men who chose to interpret the Constitution as a reservoir of national energy," he wrote. All of the nationalist politicians and jurists of early America, from John Jay to Rufus King to Joseph Story and John Marshall, owed Hamilton a debt of thanks for "having taught his friends how to read the Constitution." Senator Rufus King of Massachusetts was so impressed by Hamilton’s conniving slickness, and its potential to cause government to grow vastly larger than what the Constitution called for, that he promised him "assistance to whatever measures and maxims he would pursue."

Justice Joseph Story became "the most Hamiltonian of judges," according to Rossiter, faithfully reproducing the lie that the states were never sovereign; he "construed the powers of Congress liberally"; and "even found the Alien and Sedition Acts constitutional in retrospect." (The Sedition Act outlawed criticism of the federal government, a crystal-clear repudiation of the First Amendment). Story’s book, Commentaries on the Constitution, published in 1833, was a roadmap for nationalists who wished to further destroy constitutional limitations on government. It could just as well have been entitled "Commentaries on Alexander Hamilton’s Commentaries on the Constitution," says Rossiter.

The book was essentially a political training manual for "the legal profession’s elite — or at least among the part of it educated in the North — during the middle years of the nineteenth century." The Jeffersonian interpretation of the Constitution, based on actual historical reality as opposed to the lies, myths and superstitions of Hamilton, Marshall and Story, was more popular in the South. (Perhaps the best exposition of this tradition is St. George Tucker’s A View of the Constitution of the United States.)

The Jeffersonian interpretation of the Constitution was all but wiped out by Lincoln’s war, after which Hamiltonian hegemony prevailed for decades. Slowly but surely, virtually all vestiges of Jefferson’s strict constructionism were swept away so that by the 1930s the "principles of nationalism and broad construction expounded by Hamilton and his disciples" finally monopolized constitutional law in America, wrote Rossiter. Between 1937 and 1995, not a single federal law was ruled unconstitutional by the U.S. Supreme Court. Hamilton’s "rubber stamp" constitution was firmly in place. It is little wonder that a law student like our NYU correspondent, who is familiar with the Jeffersonian and classical liberal traditions, would be disgusted by his pontificating professor’s expositions of Hamilton’s subversive constitutional trickery.

Thomas J. DiLorenzo [send him mail] professor of economics at Loyola College in Maryland and the author of The Real Lincoln; Lincoln Unmasked: What You’re Not Supposed To Know about Dishonest Abe and How Capitalism Saved America. His latest book, Hamilton’s Curse, will be published on October 21.

Thomas DiLorenzo Archives at LRC

Thomas DiLorenzo Archives at Mises.org

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