The How: A Five Part Play.
March 23, 2025.
Alexander Hamilton
My name is
Alexander Hamilton
And there’s
a million things I haven’t done
But just you
wait, just you wait
Act One. The How Commences.
I admit I threw in the song hoping to grab your interest.
Our play is well underway, and you can go down the rabbit hole as deep
and far as you want, but hurry. We are in intermission and the Supreme Court is set to kick off the final act.
Soon. And you really do not want to miss that.
President Trump's claim of ultimate power, the ability for
him to do as he wishes with impunity, and that in doing so that makes it law,
is based on a recycled constitutional legal theory based on something Hamilton
wrote advocating for the Constitution, which is not even in the Constitution.
And even the originators of the theory did not believe it gives Trump the power
he is claiming today.
You may want to read that again.
The How is an urgent pause before we get back to The Whys.
It follows a straight line back in history from Trump’s power grab to…Alexander
Hamilton. Cue dramatic music, drop curtain on Act One.
Act Two. In Which Federalists Paper the Wall.
Alexander Hamilton. His name was Alexander Hamilton. And there's a million things he did before the duel.
He founded the Federalist Party and drafted Washington's Farewell address (see Reading You Your Rights, March 15). Before all that he was principal author of the Constitution along with James Maddison and John Jay.
Nice work. Nifty concept and fine writing, but how do you transition from the wartime Continental Congress and its Articles of Confederacy to a new Constitutional government?
The Declaration of Independence was just that, a declaration
read aloud in town squares throughout the colonies, "We hold these truths
to be self-evident." Sign here and pick up a gun if you agree.
But the new Constitution was different. While the
Declaration was a mic drop – we are out of here – the Constitution was for
something – this is what we believe and what will rule our lives.
The Continental Congress had a hard enough time banding
together long enough to gain independence. Under the Articles of the Confederacy
the central government could not even levy taxes. After the war, the
Constitutional Convention was called to bring the Federalists and Anti-Federalists
together to craft a solution.
After a spirited four month convention marked by argument and
compromise, they did, and the new Constitution was written and signed. The
founders believed the Constitution needed to be affirmed by the people through
a process of ratification. Nine of the thirteen states would need to ratify the
document for it to be adopted.
Hamilton, Maddison, and Jay wrote a series of eighty-five
letters, collectively the Federalist Papers, explaining the document, the
compromises, and advocating for adoption. They signed each letter “Publius,”
even though Hamilton wrote most. While directed specifically at New York, the
letters had influence throughout the colonies and have come to be considered
important insight into the thought process of the framers.
The Federalist view prevailed, the Constitution was ratified,
the Bill of Rights was added, and the US had a functional central government.
Hamilton became the first Secretary of the Treasury and created the First National
Bank.
As Act Two closes, Hamilton stands center stage, triumphant,
clutching the Constitution in his right hand, the Federalist Papers in his left.
Silence. The curtain closes slowly. A single sheet of paper slips from his left
hand and drifts to the floor. It is Federalist No. 70.
Act Three: In Which Hamilton Refuses to Bend a Knee.
The US Constitution is a little over 4,000 words and was written in less than four months. You can read it in about half an hour. The Declaration and the Bill of Rights are much shorter.
The eighty-five Federalist letters total more than 180,000
words written over eight months as the Constitution was being ratified. Put a pot
on. It will take over ten hours to read them all.
Do not. Just understand that a major under pinning of the constitutional
argument heading to the Supreme Court, the argument that may decide the fate of
our democracy, is a theory plucked from one short letter among the eighty-five,
ignoring the context of the other eighty-four.
Proponents of the Unitary Executive Theory like to cite Hamilton and hold that Federalist No. 70 supports what Article II of the Constitution does not say, that the President of the United States can do whatever he pleases.
UNITARY EXECUTIVE THEORY IS ALL MADE UP! In the Federalist Papers, Hamilton used all caps to make a point. Someone else does that too, but with more exclamation points.
Creating and adopting a new constitution was a long, hard
road, especially given 18th century technology. Hamilton threw
everything he had at the wall to gain ratification. Take one letter out of
context at your peril.
There is debate about whether staunch Federalist Hamilton
really preferred a monarchy. He did. And he did not. At the convention, he even
proposed a plan for an “elective monarchy.” His plan went nowhere. Hamilton
went on to author, sign, and act as the staunchest advocate for the Constitution.
Federalist No. 1 makes clear Hamilton understood the moment,
“It seems to have been reserved to the people of this country…whether societies
of men are really capable or not of establishing good government from
reflection and choice, or whether they are forever destined to depend for their
political constitutions on accident and force.” Getting it wrong, he said,
means nothing less than, “the general misfortune of mankind.”
A lengthy discussion of human bias and self-interest follows, with Hamilton warning citizens to be, “upon your guard against all attempts, from whatever quarter, to influence your decision in a matter of the utmost moment to your welfare, by any impressions other than those which may result from the evidence of truth."
“Ambition must be made to counteract ambition,” Federalist No. 51 says, before outlining the separation of powers and a system of checks and balances. “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”
That does not sound like a man who wants an absolutist or Unitary
Executive, let alone a king. Act Three closes with the blare of a trumpet as
Hamilton, unbowed, refuses to take a knee.
This is a long, but important play. Acts Four and Five will follow quickly. We need to beat the matter to the Supreme Court.
Notes.
https://hamiltonmusical.com/new-york/
https://history.state.gov/milestones/1784-1800/loans
https://guides.loc.gov/federalist-papers/text-1-10
https://howlongtoread.com/books/3077422/The-Federalist-Papers
https://constitutioncenter.org/blog/the-day-the-constitution-was-ratified
https://billofrightsinstitute.org/primary-sources/federalist-no-70
https://guides.loc.gov/federalist-papers/text-1-10
https://teachingamericanhistory.org/document/the-hamilton-plan/
https://www.pbs.org/wgbh/americanexperience/features/duel-hamilton-and-us-constitution/
I’ve been thinking a lot of Franklin’s answer to the Q of whether we have a monarchy or a republic… “A republic, if you can keep it,” he said. And how this is our moment. Who will be our Hamilton? Madison or Hay? And what will it take for Americans to say enough? I wish I had more faith in SCOTUS, but for now it seems federal judges are the only ones holding the line. As usual John, you’ve given us lots to sift through. Thanks for laying it all out there.
ReplyDeleteThanks, LCB. I've been thinking about when we all put hand over heart and pledge, "to the Republic." If we can keep it indeed.
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