Hamilton thread

2 posts

Bob Dylan Roof
Thomas777 suggested I create this thread to discuss the constitutional theory, if any, of Alexander Hamilton.

I'll begin by noting that Hamilton uses the word "constitution" in the pre-modern sense to denote a variety regimes with and without written foundational documents. For example, in his first published work, "A Full Vindication of the Measures of Congress", Hamilton writes:

No person will affirm that a French colony is independent on the parent state, though it acknowledge the king of France as rightful sovereign. Nor can it with any greater propriety be said that an English colony is independent while it bears allegiance to the king of Great Britain. The difference between their dependence is only that which distinguishes civil liberty from slavery, and results from the different genius of the French and English constitutions.​

Thus, for Hamilton, both the absolute French monarchy and England's mixed regime possess "constitutions", even though they lack written constitutions. Hamilton's constitutional theory therefore extends beyond the legal interpretation of foundational documents.

Thomas also mentioned Federalist 84, in which Hamilton affirms the principle that rights cannot be guaranteed by a written document, but rather exist anterior to the document itself. Also note that Hamilton finds the potential for abuse inherent in the codification of a litany of rights worrisome:

I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.​

Contrast this perspective with the "constitutionalism" of modern conservatives, who maintain that citizens ought to accept incorrect interpretations of the constitution resulting in judicial abrogation of their natural rights until they can nominate the right candidate who will change the interpretation.

Federalist 25 further illustrates Hamilton's views concerning the import of a written foundational document:

It also teaches us, in its application to the United States, how little the rights of a feeble government are likely to be respected, even by its own constituents. And it teaches us, in addition to the rest, how unequal parchment provisions are to a struggle with public necessity.

It was a fundamental maxim of the Lacedaemonian commonwealth, that the post of admiral should not be conferred twice on the same person. The Peloponnesian confederates, having suffered a severe defeat at sea from the Athenians, demanded Lysander, who had before served with success in that capacity, to command the combined fleets. The Lacedaemonians, to gratify their allies, and yet preserve the semblance of an adherence to their ancient institutions, had recourse to the flimsy subterfuge of investing Lysander with the real power of admiral, under the nominal title of vice-admiral.​

Thus we see that, for Hamilton, the exceptional nature of political necessity diminishes the importance of "parchment provisions" to the overall purpose of the State.
President Camacho
The subtext here is that the interpretation of constitutional law can only be grounded in precedent... Upholding precedent is highly dependent upon continued recognition of the constitution's original source of authority; this in turn is a function of breeding and training-- upon maintaining a ruling caste in general agreement on basic cultural assumptions. "We demand these rights not as 'men', but as Englishmen " -- is how I believe Edmund Burke put it.

If authority collapses and a closed political caste gives way to privateers and revolutionaries of varied provenance and loyalties, exegesis becomes an attractive method for interpreting constitutional law, since the authority acknowledged at the constitution's inception has been abograted, forgotten, or otherwise dissolved. Corruption of constitutional law is inevitable in any society with an "open" political system.