Tag: Alexander Hamilton

Alexander Hamilton: Defender of Property Rights

Treasury Secretary Jack Lew’s proposed degradation of the ten-dollar bill (read: the removal of Alexander Hamilton as the featured figure on the ten-spot) is wrongheaded. In addition to being the first and most distinguished U.S. Treasury Secretary and a renowned journalist, Hamilton also excelled as a lawyer and defender of property rights.

Yes, Alexander Hamilton was a distinguished lawyer. He took on many famous cases out of principle. After the Revolutionary War, the state of New York enacted harsh measures against Loyalists and British subjects. These included the Confiscation Act (1779), the Citation Act (1782), and the Trespass Act (1783). All involved the taking of property. In Hamilton’s view, these acts illustrated the inherent difference between democracy and the law. Even though the acts were widely popular, they flouted fundamental principles of property law. Hamilton carried his views into action and successfully defended — in the face of enormous public hostility — those who had property taken under the three New York state statutes.

Hamilton’s influence on creating a respected national judiciary and shaping American jurisprudence was significant and widely recognized during his lifetime. For example, the Chief Justice of the U.S. Supreme Court John Marshall was known to have said that he was a mere schoolboy next to Hamilton. Indeed, in three of Marshall’s landmark decisions – Marbury v. Madison (1803), Fletcher v. Peck (1810), and McCulloch v. Maryland (1819) – he turned to Hamilton’s legal writings for guidance.

Alexander Hamilton is one of America’s most acclaimed Founding Fathers. He should remain as-is on the ten-dollar bill. Anything else would be an insult, the kind of thing that once engendered a duel.

Hamilton’s Good for the Ten-Spot

I recently objected to Treasury Secretary Jack Lew’s proposed demotion of Alexander Hamilton on the ten-dollar bill. Hamilton was not only the first and most distinguished Treasury Secretary, but was also an accomplished professional in many other fields outside the confines of finance.

During his varied career, Alexander Hamilton was a profound journalist. His most famous journalistic project was a series of 85 opinion pieces that called for the ratification of the Constitution. These essays are called The Federalist Papers, and are the most cited sources by the U.S. Supreme Court. The Federalist Papers were published in 1787 and 1788 in New York City’s Independent Journal. These important essays — written under pseudonyms by Alexander Hamilton, James Madison and John Jay — were of very high quality and set the stage for the Constitutional Convention and the resulting product.

Remove Lew, Not Hamilton

On June 17th, Treasury Secretary Jack Lew shocked many, including former Chairman of the Federal Reserve Ben Bernanke, when he proclaimed that Alexander Hamilton (1755-1804) – the first and foremost Treasury Secretary – would be demoted and share the ten-dollar bill with a yet unnamed woman. Undaunted by wide-spread criticism, Secretary Lew continued to press his case at an event at the Brookings Institution on July 8th. Asked about the ten-dollar bill’s selection, Secretary Lew insipidly claimed that the ten-dollar bill was the “next up” for redesign to help combat forgery. The diminution of Hamilton, for whatever reason, is simply indefensible.

Just how great was Hamilton? A recent scholarly book by Robert E. Wright and David J. Cowen, Financial Founding Fathers: The Men Who Made America Rich, begins its pantheon of greats with a chapter on Alexander Hamilton. It is aptly titled “The Creator.”

After the Constitution was ratified and George Washington was elected President, the new federal government lacked credibility. Public finances hung like a threatening cloud over the government. Recall that paper money and debt were innovations of the colonial era, and that, once the Revolutionary War began, Americans used these innovations to the maximum. As a result, the United States was born in a sea of debt. A majority of the public favored a debt default. Alexander Hamilton, acting as Washington’s Secretary of the Treasury, was firmly against default. As a matter of principle, he argued that the sanctity of contracts was the foundation of all morality. And as a practical matter, Hamilton argued that good government depended on its ability to fulfill its promises.

Hamilton won the argument and set about digging the country out of its financial debacle. Among other things, Hamilton was – what would today be called – a first-class financial engineer. He established a federal sinking fund to finance the Revolutionary War debt. He also engineered a large debt swap in which the debts of individual states were assumed by the newly created federal government. By August 1791, federal bonds sold above par in Europe, and by 1795, all foreign debts had been paid off. Hamilton’s solution for America’s debt problem provided the country with a credibility and confidence shock.

Doesn’t the 76th Secretary of Treasury have better things to do than to diminish the presence of our 1st and most distinguished Secretary of Treasury?

“To Declare [Kinetic Military Action]”

Recently, I’ve been blogging over at the Washington Examiner’s lively “Beltway Confidential” site, mostly on the subject of congressional war powers and President Obama’s Libyan adventure. Today’s post, “Obama Makes ‘Kinetic Military Action’ on the English Language” has a little fun with the administration’s wordgames and the legal rationales behind them. Other posts and a column on the subject are here, here, and here.

Today also brings a pair of columns–in the Wall Street Journal and the Washington Post, respectively–from conservative luminaries defending the notion that Obama has the constitutional power to bomb Libya without congressional authorization. Yoo, the legal architect of George W. Bush’s Terror Presidency, chides Tea Party Republicans like Jason Chaffetz of Utah and Justin Amash of Michigan for questioning Obama’s authority to launch a nondefensive war:

Their praiseworthy opposition to the growth of federal powers at home misleads them to resist Washington’s indispensable role abroad. They mistakenly read the 18th-century constitutional text through a modern lens—for example, understanding “declare war” to mean “start war.” When the Constitution was written, a declaration of war served diplomatic notice about a change in legal relations between nations. It had little to do with launching hostilities. In the century before the Constitution, for example, Great Britain fought numerous major conflicts but declared war only once beforehand.

Similarly, in the Post, David B. Rivkin, Jr., and Lee A. Casey write:

As commander in chief, the president has the authority to determine when and how U.S. forces are used…. When the Constitution was adopted, the power to “declare war” was not equivalent to permitting the use of military force.

The president certainly can’t derive the authority to bomb Libya from the commander-in-chief clause. As Hamilton explained in Federalist 69, that provision merely indicates that the president is the “first General and admiral” of US military forces. Important as they are, generals and admirals don’t get to decide whether and with whom we go to war.

It’s more common for presidentialists to combine a broad reading of Article II, sec. 1’s “executive Power” with an exceptionally narrow interpretation of Article I, sec. 8’s congressional power “to declare War,” to conclude that the president can start wars, leaving it up to Congress to make it official if they so choose.

One problem with that view is that virtually no one from the Founding Generation seems to have understood the clause in that way. For example, James Wilson told the Pennsylvania ratifying convention that ‘‘this system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power in declaring war is vested in the legislature at large.’’ Pierce Butler, like Wilson, had been a delegate to the Philadelphia Convention, and–to the dismay of some delegates–had actually argued for vesting the power to go to war in the president. Yet during the ratification debates, Butler assured the South Carolina legislature that the proposed constitution prevented the president from starting wars: ‘‘Some gentlemen [i.e., Butler himself] were inclined to give this power to the President; but it was objected to, as throwing into his hands the influence of a monarch, having an opportunity of involving his country in a war whenever he wished to promote her destruction.’’

As Professor Michael Ramsey puts it:

Every major figure from the founding era who commented on the matter said that the Constitution gave Congress the exclusive power to commit the nation to hostilities. Notably, this included not only people with reservations about presidential power, such as James Madison and Thomas Jefferson, but also strong advocates of the President’s prerogatives, such as George Washington and Alexander Hamilton.

“How could this be, though,” Ramsey asks, “if Congress has only the power to ‘declare War’, which we may think refers to making a (now-outmoded) formal announcement? Why can’t the President begin a war informally, merely by ordering an attack, without a declaration?” The answer:

…is that in founding-era terminology war could be “declared” either by formal announcement or by military action initiating hostilities. John Locke’s classic Two Treatises of Government from the late 17th century referred to “declar[ing] by word or action.” Blackstone and Vattel, two of the 18th century legal writers most influential in America, also used “declare” in this way…. Johnson’s dictionary gave as one definition of “declare” to “shew in open view” – which, applied to warfare, would obviously encompass military attacks…. Thus in 18th century terms initiating an attack was as much “to declare war” as was making a formal announcement; Congress’ Article I, Section 8 power is not narrowly about issuing formal announcements, but broadly about authorizing the sorts of actions that begin war.

Professor Ramsey lays out the argument in greater detail in his book The Constitution’s Text in Foreign Affairs, and in his (for my money) devastating 2002 rebuttal of Yoo [JSTOR] in the University of Chicago Law Review. Ramsey has further thoughts on the poverty of the argument from “past practice” here as does GMU law professor and Cato adjunct scholar Ilya Somin here.

One last point. While this doesn’t speak directly to the original meaning of the “Declare War” clause, I think it’s worth noting nonetheless:

Like Yoo, Rivkin, and Casey, I’m convinced that Obamacare’s individual mandate is unconstitutional. But consider how that view fits with their other views on federal power. They’ve argued, among other things, that the president can order up bombing raids without so much as a by-your-leave to Congress. As Yoo puts it, the president has the “right to start wars”, for good reasons, bad reasons, or no reason at all, presumably. If the president suspects you’re a terrorist, he doesn’t need a warrant to tap your phone, and, right here in America, he can send soldiers to search your house without offending the Fourth Amendment. He can (according to Yoo, at least) ignore the federal statute prohibiting torture, and he can lock you up for the duration of the war on terror (forever?) without charges.

But there is one thing that he can never, ever do: he cannot penalize you for failure to purchase health insurance. Ours is a government of limited powers, you see.

Taken all in all, doesn’t that constitutional vision strike you as… strange?

Health Care Ruling a Victory for Federalism and Individual Liberty

Today’s ruling vindicates the constitutional first principle that ours is a government of delegated, enumerated, and thus limited powers. Like Judge Hudson in the Virginia case, Judge Vinson recognized that the individual mandate represents an unprecedented and improper incursion beyond those powers: the federal government, under the guise of regulating commerce, cannot require that people engage in economic activity.

And this is as it should be: if the only limit on congressional power were Congress’ own assessment of the wisdom of each assertion of such power, the Constitution would be obsolete – as would any conception of checks and balances. James Madison, the author of the Federalist Paper (51) explaining how man’s non-angelic nature requires explicit limits on those who govern, would spin in his grave. As even would Alexander Hamilton – perhaps the Framer most favorably disposed to strong central power – who cautioned that courts should not be in the business of evaluating the “more or less necessity” of a piece of legislation but rather define judicially administrable rules to guide (but also limit) Congress’s actions.

And so today’s ruling, in a lawsuit that now has 26 states as plaintiffs – with two others challenging the health care “reform” separately – represents the latest and most significant victory for federalism and individual liberty. This will not end until the Supreme Court has its say, but the tide is clearly running in freedom’s favor.

I will comment further once I’ve had a chance to read through the ruling.

Socialism at Jamestown

Washington Post columnist Dana Milbank chides Dick Armey today for having said that socialism caused starvation at Jamestown.  “Who knew they had socialists in 1607?” Milbank asks.

Actually, lots of people know this. As I wrote three years ago:

Four hundred years ago today 105 men and boys disembarked from three ships and established the first permanent English settlement in North America. They built a fort along what they called the James River, in honor of their king.

The land was lush and fertile, yet within three years most of the colonists died during what came to be known as “the starving time.” Only the establishment of private property saved the Jamestown colony.

What went wrong? There were the usual hardships of pioneers far from home, such as unfamiliar diseases. There were mixed relations with the Indians already living in Virginia. Sometimes the Indians and settlers traded, other times armed conflicts broke out. But according to a governor of the colony, George Percy, most of the colonists died of famine, despite the “good and fruitful” soil, the abundant deer and turkey, and the “strawberries, raspberries and fruits unknown” growing wild.

The problem was the lack of private property. As Tom Bethell writes in his book The Noblest Triumph: Property and Prosperity through the Ages, “The colonists were indolent because most of them were indentured servants, expected to toil for seven years and contribute the fruits of their labor to the common store.”

Understandably, men who don’t benefit from their hard work tend not to work very hard.

But a new governor arrived and instituted a system of private property.

And then, the Virginia historian Matthew Page Andrews wrote, “As soon as the settlers were thrown upon their own resources, and each freeman had acquired the right of owning property, the colonists quickly developed what became the distinguishing characteristic of Americans – an aptitude for all kinds of craftsmanship coupled with an innate genius for experimentation and invention.”

John Rolfe, the husband of Pocahontas, said that once private property was instituted, men could engage in “gathering and reaping the fruits of their labors with much joy and comfort.”

I gotta go with Milbank, not Armey, though, on another point of contention: Alexander Hamilton was a big-government man. At least by the standards of 1787; no doubt he’d be appalled at the size, scope, and power of today’s federal government, though he might approve the imperial trappings and authority of modern presidents.