16 March 2006

Alexander Hamilton As Gadfly

Richard R. Beeman, a professor of history at the University of Pennsylvania and an expert on the Constitutional Convention of 1787, is particularly well qualified to speak about an issue of great concern to the United States Supreme Court and other constitutional law scholars, the original intent of the founding fathers. His evidence based assessment of this intent is seriously at odds with that of many so called "originalist" jurists.

The following excerpt is from his article, "The Founding Fathers and Executive Power" in the March 17, 2006 issue of The Chronicle of Higher Education at page B12 (emphasis in the original):

Whatever the differences among the framers of the Constitution about the nature of presidential power or about the precise relationship between the president and the legislative and judicial branches of government, nearly all Americans agreed on what they did not want their president to be. Memories of the tyranny of King George III shaped virtually every debate on the issue of presidential power, with even the strongest supporters of a powerful executive taking great pains to emphasized the Constitution's many checks on a unitary exercise of presidential power. Wilson, for example, insisted that "the only powers he conceived strictly executive were those of executing the laws, and appointing officers, not appertaining to and appointed by the legislature." Madison was of the same mind, believing that the president's powers should be "confined and defined." To do otherwise, he reasoned, would bring upon the country "the Evils of elective Monarchies."

There was only one person in the Constitutional Convention who argued unequivocally for an aggressive and expansive definition of presidential power, and it is no accident that the opinions of that person -- Alexander Hamilton -- are the ones most often cited by those who advocate an open-ended definition of presidential power.

Current proponents of the aggressive use of presidential power in the war against terror, for example, are fond of citing Hamilton's Federalist Paper No. 70, in which he declares that "Energy in the Executive" is "essential to the protection of the community against foreign attacks" as well as to "the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy." What Hamilton's contemporary admirers fail to note, however, is that his views on an "energetic executive" found no support whatsoever from any of his fellow delegates in the Constitutional Convention. In a five-hour speech on June 18, Hamilton proclaimed that "the British Govt. was the best in the world," and he urged the delegates to do everything possible to emulate it. Since the new nation lacked a hereditary monarch, the vest Americans could do, Hamilton argued, was to appoint their chief executive for life and to give him sweeping powers that would enable him to withstand the pressures of popularly elected legislatures.

Hamilton's conceptions of the presidency -- driven by a concern for order and security rather than for the preservation of personal liberty -- were far removed from those of every other delegate on the convention floor. In the words of Connecticut delegate William Samuel Johnson, Hamilton's five-hour soliloquy was "praised by everybody [but] he has been supported by none." . . . . Whatever disagreements and confusion may have existed among the founding fathers, they did share a common understanding that the new American government was to be one of limited powers in which no single branch, and no single person, could lay claim to unilateral authority. . . . It may not be possible to discern with precision either the "original intent" of the founding fathers or the precise "original meaning" of the words on the document they crafted, but if we are seeking to comprehend their general understanding of the limits of executive power, then it is best to regard Hamilton as an exception to be avoided, not an authority to be cited in defense of extraordinary uses of presidential power.

The founding fathers were liberals skeptical of government abuses of power, and they build a government with that philosophy in mind. This was the original intent. And, the alternative, the Hamiltonian view, is simply put a fraud to the extent that one claims it to be the original intent of the founders. The United States Constitution was crafted in the shadow of King George's abusive Star Chamber and roughshod treatment of the American insurgents. President George betrays our history, and the constitution that he is sworn to uphold, when he seeks Star Chamber as part of his own anti-insurgency policy. You don't read the dissenting opinion to determine the holding a court intended, and courts shouldn't rely on Hamilton's views on the presidency, to determine the meaning the founders intended with regard to that issue, because his was a dissenting opinion on the topic.

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