CHAPTER 1
The Rousseau of the Right
Hamilton, under the influence of the two political theorists most distasteful to Jefferson, Hobbes and Hume, was frankly the champion of the Leviathan State.
—JEFF TAYLOR, WHERE DID THE PARTY GO? WILLIAM JENNINGS BRYAN, HUBERT HUMPHREY, AND THE JEFFERSONIAN LEGACY
Alexander Hamilton was a brilliant man with boundless energy and ambition. Arguably no other founder has had a bigger impact on American society than he has. But that impact has been almost universally negative from the perspective of those who would like to think of America as the land of the free. Hamilton’s main political and economic ideas were a combination of dictatorial monarchy, centralized power, imperialism, and economic mercantilism. These were the defining characteristics of the British Empire that the American revolutionaries had waged war against.
As a young man, Hamilton served heroically in the American Revolution and became a valuable aide to George Washington. Years after the war he continued to serve Washington, as America’s first treasury secretary. And, of course, Hamilton was one of the principal authors of The Federalist Papers. In his private career he became a skilled lawyer and founder of the New York Post newspaper (founded for the purpose of smearing Jefferson) and the Bank of New York, institutions that still exist today. Although he was an unfaithful husband, his wife, who outlived him by more than fifty years, revered him, as did his children.
Hamilton was not a plantation owner like Jefferson, but an aristocratic New Yorker. Like Jefferson—and many other New York aristocrats—he was a slave owner who nevertheless at times spoke eloquently in opposition to the institution of slavery. This may sound surprising to most readers, but the fact is that slavery thrived for more than two hundred years in New York and was an integral part of the state’s economy. As the Hamilton biographer Ron Chernow noted, “[S]lavery was well entrenched in much of the north” and “New York and New Jersey retained significant slave populations” long after the Revolution. “New York City, in particular, was identified with slavery…and was linked through its sugar refineries in the West Indies.” (Hamilton was born and raised in Nevis, in the West Indies.) By the late 1790s one in five New York City households, like Hamilton’s, “still held domestic slaves,” who were “regarded as status symbols” by the wealthier and more aristocratic New Yorkers. Slavery was not ended in New York City until the early 1850s.1
Hamilton’s wife, Eliza, was from a prominent and wealthy New York slave-owning family (the Schuylers) and retained some of the “house slaves” after marrying Hamilton. This fact is usually soft-pedaled by Hamilton’s more worshipful biographers. “Hamilton…may have had a slave or two around the house” and “was too much a man of his age…to push for emancipation,” wrote the Cornell University historian and Hamilton biographer Clinton Rossiter, a onetime editor of The Federalist Papers.2 (Jefferson, on the other hand, endorsed a plan to end the slave trade early in the Revolution; condemned King George III for introducing slavery into America, in the first draft of the Declaration of Independence; laid out a plan for the abolition of slavery in Virginia, in Notes on the State of Virginia; and proposed blocking the spread of slavery in the Northwest Territory in 1784.)
Chernow oddly labels Hamilton an “abolitionist,” despite the fact that he owned slaves and never endorsed abolition per se. He also bends over backward to downplay Hamilton’s slave ownership, at one point arguing that, yes, he once purchased six slaves at a slave auction, but they were “probably” for his brother-in-law—as though that makes the purchase of human beings less immoral.3
Like virtually all politicians who rise to the highest levels of office, Alexander Hamilton was rather egomaniacal. “He never lacked of self-appreciation,” William Graham Sumner wrote euphemistically in his 1905 biography.4 Rossiter wrote of his “feverish, sometimes even grotesque concern for his reputation. Fame…was the spur of this remarkable man.”5 Other biographers have made similar observations.
So it is easy to understand why Thomas Jefferson thought of his political nemesis Hamilton as a deadly threat to American liberty: he was extremely intelligent and articulate; had an unmatched ego; spoke often of creating a government that would pursue “imperial glory” (and “glory” for himself as well); was a relentless statist, always and everywhere working to expand the size and scope of government (which to Jefferson meant less liberty for the individual); and worked tirelessly and effectively to achieve these ends. He was so effective, in fact, that Jefferson, in a letter to James Madison, once referred to him as a political “colossus.”
Both men fully understood what was at stake: Would the American government mimic the British and pursue “national greatness,” “imperial glory,” and empire, as Hamilton preferred? Or would the primary purpose of government be the modest Jeffersonian one of protecting the lives, liberties, and property of its citizens? Both men understood that empire would mean that government would become the master, rather than servant, of the people, as it had been for generations in the Old World. It was the most important debate in American political history because its results would set the template, so to speak, of the young American government, the effects of which would be felt forever.
The founding generation certainly understood that the colonists of an empire could and would be treated as tax slaves or cannon fodder. This was the history of the Old World, and they had fought a revolution to escape such a fate. But the “nationalists,” led by men like Hamilton and centered in New York and New England, also understood that life could be quite grand for those who managed and ruled over an empire. That was why his party—the Federalists—fought so hard and long for a much more powerful, consolidated, monopolistic government and for mercantilistic economic policies. New Englanders (and some New Yorkers) assumed that they were the salt of the earth, that they should rule America, and that glory and riches would be showered upon them if they captured the reins of government to pursue these ends. As the historian Clyde Wilson has noted, from the very beginning of the American republic New England “Yankees”(i.e., Federalists)
regarded the new federal government…as an instrument to be used for their own purposes…In the first Congress, Yankees demanded that the federal government continue the British subsidies to their fishing fleets. While Virginia and the other Southern states gave up their vast western lands for future new states, New Englanders demanded a special preserve for themselves (the ‘Western Reserve’ in Ohio)…. Under [President] John Adams, the New England quest for power grew into a frenzy. They passed the Sedition Law to punish anti-government words (as long as they controlled the government) in clear violation of the Constitution.6
HAMILTON THE NATIONALIST
Wilson has also made an important distinction between a “nationalist” and a patriot: “Patriotism is the wholesome, constructive love of one’s land and people. Nationalism is the unhealthy love of one’s government, accompanied by the aggressive desire to put down others—which becomes in deracinated modern men a substitute for religious faith. Patriotism is an appropriate, indeed necessary, sentiment for people who wish to preserve their freedom; nationalism is not.”7 Alexander Hamilton is generally acknowledged as being the most famous nationalist in American history.
To understand Hamilton’s love of government, one merely has to read his own words. Hamilton disrespected Jefferson and his philosophy of freedom, complaining of “an excessive concern for liberty in public men.”8 Jefferson believed that government needed to be “bound by the chains of the Constitution,” but Hamilton viewed the Constitution quite the opposite way: as an instrument that could “legitimize” virtually any act of government if given the “proper” interpretation by clever lawyers like himself and his fellow Federalists. When Jefferson’s view prevailed, especially after his election as president in 1800, Hamilton denounced the Constitution as “a frail and worthless fabric.” To Hamilton, it was “worthless” as long as it was used to restrain rather than expand the state.
As Clinton Rossiter explained, “Hamilton’s overriding purpose was to build the foundations of a new empire.”9 He dreamed of governmental “glory” that “could reach out forcefully and benevolently to every person,” said Rossiter.10 (Never mind that force and benevolence are more often than not opposites.)
Far from accepting Jefferson’s limited-government philosophy, Hamilton incessantly complained of the lack of “energy” in government. As Rossiter observed, Hamilton had an “obsession with the idea of political energy,” feared “weakness in government,” and condemned constitutional constraints on governmental power as “a pernicious dream.” Hamilton, Rossiter said, “had perhaps the highest respect for government of any important American political thinker who ever lived” (emphasis added).11
“We must have a government of more power,” Hamilton wrote to George Washington in August 1780. This statement marked the beginning of his lengthy campaign against America’s first constitution, the Articles of Confederation.12 To Hamilton’s and other Federalists’ claims that the government needed to be more powerful and consolidated, Patrick Henry sagely responded that the government under the Articles of Confederation was powerful enough to have created and supplied an army that defeated the British Empire. Nevertheless Hamilton’s agitating paid off, as seven years later he got the Constitutional Convention he had long been proposing. Supposedly the convention was intended to amend the Articles of Confederation, but, of course, the Articles would end up being scrapped completely. What Hamilton and his political compatriots wanted was a much more highly centralized government with vastly expanded executive branch powers.
Discarding the Articles of Confederation was not the work of the Jeffersonians. “States’ rights” meant to Jefferson and his followers that the only way to have citizens control their own government would be through political communities organized at the state and local levels of government. Thus Jeffersonians insisted that as many governmental functions as possible be conducted by the governmental units that are closest to the people—namely, the states and localities. That was why, after the Constitution was ratified, Jefferson believed the Tenth Amendment, which reserved all powers not specifically delegated to the central government to the people and the states, was the most important part of the entire document. He understood that throughout the history of Western civilization, freedom came only through the dispersal of political power, not through its consolidation in a few hands.
In explaining the significance of the Tenth Amendment in a private correspondence, Jefferson wrote in 1824 that “[w]ith respect to our State and federal governments, I do not think their relations correctly understood by foreigners. They generally suppose the former is subordinate to the latter. But this is not the case. They are coordinate departments of one…integral whole. To the State governments are reserved all legislation and administration, in affairs which concern their own citizens only, and to the federal government is given whatever concerns foreigners, or the citizens of other States.”13
The Constitutional Convention of 1787 was held in secret, and there was apparently an agreement that what went on there would not be made public until after the death of all the participants. But by the 1820s word finally began to seep out. First the notes of one of the convention’s delegates, Robert Yates (who would serve as chief justice of New York from 1790 to 1798), were published under the title Secret Proceedings and Debates of the Constitutional Convention. Yates died in 1801, and his notes became the property of his widow, who eventually allowed their publication. They were edited by one John Lansing, who was chancellor of the state of New York and had also attended the Constitutional Convention. Then in 1823 Senator John Taylor of Virginia authored New Views of the Constitution of the United States, which relied heavily on Yates’s notes.14
What these books revealed was how quickly Hamilton moved to consolidate political power in the hands of the central government—and, more specifically, in the hands of the executive branch. At the convention Hamilton proposed a permanent president and senate, with all political power in the national government, as far away as possible from the people, and centered in the executive. He also wanted “all laws of the particular states, contrary to the constitution or laws of the United States [government], to be utterly void,” and he proposed that “the governor…of each state shall be appointed by the general government, and shall have a negative [i.e, a veto] upon the laws about to be passed in the state of which he is governor.”15
Such proposals prompted Clinton Rossiter to write, in an extraordinary display of euphemism, “Hamilton looked to the executive branch as the chief source of political energy.”16 In plainer language, Hamilton proposed a kind of “king” who would yield supreme power over all the people, who in turn would have essentially no say in how their government was run. The states would be mere provinces whose governors would be appointed by and loyal to the “king.” Under such a regime, all political power in the nation would be exercised by the chief executive and his circle of advisers, which would undoubtedly have included Alexander Hamilton as perhaps the chief adviser. John Taylor correctly noted that what was being proposed was “a national government, nearly conforming to that of England…. By Colonel Hamilton’s project, the states were fairly and openly to be restored to the rank of provinces and to be made as dependent upon a supreme national government, as they had been upon a supreme British government.”17
But the convention did not embrace Hamilton’s plan for executive dictatorship and monopoly government. Quoting Yates’s journal, Taylor noted that the convention attendees viewed the Constitution as a compact among the free and independent states and not as the creation of a “national” government. “[I]t was proposed and seconded,” Taylor wrote, “to erase the word national, and substitute the words United States [in the plural] in the fourth resolution, which passed in the affirmative. Thus, we see an opinion expressed at the convention, that the phrase ‘United States’ did not mean a consolidated American people or nation, and all the inferences in favour of a national government…are overthrown.”18
The language of “United States” in the plural is most significant: as revealed by Taylor and others, it meant that the convention delegates (and most everyone else) understood that the free, independent, and sovereign states were united in a confederacy that would delegate a few selected powers to the central government, primarily for national defense and foreign affairs. (This was what the Constitution’s Supremacy Clause documented.) They did not create a consolidated government called “the United States.” Nor did they create a central government whose laws would always trump the laws of the states. (The Supremacy Clause allows for national “supremacy” only for the specific powers that are expressly delegated to the federal government. All others are reserved to the states and the people under the Tenth Amendment. Taylor himself documented that this was the understanding at the Constitutional Convention.)19
As Taylor, Yates, and other Jeffersonians observed, Hamilton and his party combined economic interventionism with their quest for consolidated or monopolistic governmental power. They did not want to allow the independent states to dissent from their high-tariff policies, for example. Protectionist tariffs to allow (mostly northern state) manufacturers to monopolize their industries, isolated from European competition, could not work if some of the states chose a low-tariff policy. Imports would flood into the low-tariff states, and then become dispersed throughout the nation by merchants. This was why a monopolistic, consolidated government, with all power in the nation’s capital, was their main goal.
To Taylor and the Jeffersonians, this scheme was essentially “Monarchy, and its hand-maiden consolidation, and its other hand-maiden, ambition, and a national government” dressed up in “popular disguises” such as “national splendor” and “national strength.”20 The “pretended national prosperity,” Taylor added, “was only a pretext of ambition and monopoly…intended to feed avarice, gratify ambition, and make one portion of the nation tributary to another.”21 Thus, as early as 1823 southerners like Senator John Taylor suspected that northern politicians were conspiring to use the powers of the central government to tax one portion of the country—the South—for the benefit of their own region. (This was long before there were any significant northern abolitionist movements.)
Taylor noted that the proponents of consolidation relied on “paradoxical” arguments. They contended, he said, “that the greater the [government] revenue, the richer are the people; that frugality in the government is an evil; in the people, a good;…that monopolies and exclusive privileges are general welfare; that a division of sovereignty will raise up a class of wicked, intriguing, self-interested politicians in the states; and that human nature will be cleansed of these propensities by a sovereignty consolidated in one government.”22
Of course, Hamilton’s scheme for the Constitutional Convention failed. Taylor observed that “Colonel Hamilton…seems to have quitted the convention in despair” soon after “the failure of the project.”23 But Hamilton and his followers did realize some “progress” at the convention, as the citizens of the sovereign states delegated more powers to the central government (for their own benefit, with the government acting as their agent) than the Articles of Confederation did.
What’s more, the nationalists did not give up the fight once the Constitution was completed. Hamilton, as is well known, campaigned aggressively for ratification of the Constitution as one of the lead authors of The Federalist Papers. Many of these writings sounded quite Jeffersonian, but his actions during the actual convention, as they would be exposed decades later, suggest that such positioning was less than sincere. More likely, his writings were intended to goad the public into acquiescing in the adoption of a document that he hoped would become a “living constitution.” In his preface to The Federalist, the historian Richard B. Morris wrote that Hamilton “constantly sought to reassure the states’ rights politicians [the Jeffersonians] that state sovereignty would not be jeopardized” by the new Constitution; yet he hoped to abolish state sovereignty once the Constitution was adopted.24 He also promised, during the constitutional debates at the New York ratifying convention, that the U.S. Congress would never contemplate “marching the troops of one state into the bosom of another” for any reason.25 But as we will see, when he became treasury secretary he personally accompanied President George Washington and some thirteen thousand (mostly conscripted) troops into Pennsylvania to attempt to quell the so-called Whiskey Rebellion.
Hamilton had laid out his most desired political framework at the Constitutional Convention. His followers and political heirs would work relentlessly for decades in the trenches of the Federalist, Whig, and eventually Republican parties to finally achieve their goal of a monopolistic central state that would enact interventionist economic policies.
“FOR THE PUBLIC GOOD”
Hundreds of years of history—and the rule over the colonists by the British government—had taught Jefferson that the closer government is to the people, the more likely it is to be the servant rather than the master of the people. The converse is also true: despotism is the inevitable consequence of consolidated governmental power. The British historian Lord Acton’s famous declaration about how power corrupts would, in the late nineteenth century, enunciate what Jefferson knew in his bones: “[W]here you have a concentration of power in a few hands, all too frequently men with the mentality of gangsters get control. History has proven that. All power tends to corrupt; absolute power corrupts absolutely.”
The founding generation understood this as well as anyone. (And, of course, Lord Acton’s dictum was proven true over and over again during the twentieth century. The worst tyrants of that era were consolidationists and enemies of federalism or states’ rights.) Thus nationalists like Alexander Hamilton faced a major problem in trying to convince the public to trust centralized government power. To overcome this problem, they relied on a rhetorical gimmick, endlessly repeating that if all political power were consolidated in their hands and the government given more “energy,” then they could be trusted to serve “the general will” and not their own self-interests. They disagreed, in other words, with James Madison’s dictum in The Federalist Papers that if men were angels, there would be no need for government at all. They promised to behave in an angelic manner “for the public good” if they were given enough power.
This Hamiltonian propaganda tactic was almost identical to the methods of the French Jacobins. While Hamilton and his fellow Federalists ironically smeared Jefferson with the label “Jacobin,” because of Jefferson’s friendships with the French, in fact it was Hamilton who espoused the Jacobin philosophy, as first expressed by the eighteenth-century French philosopher Jean-Jacques Rousseau.
Rousseau’s main idea was the supposed existence of a “general will.” That will is not necessarily expressed by the general public in any way but is presumed to be known by the ruling elite. With Rousseau, “no aspect of human life is excluded from the control of the general will,” and “whosoever refuses to obey the general will must in that instance be restrained by the body politic, which actually means that he is forced to be free.”26
Jefferson, Madison, and other founders denied the existence of any such will. Indeed, as the political philosopher Claes Ryn has pointed out, this view of government “collides head on with advocates of constitutionalism,” such as the majority of the American founders.27 “Rousseau’s wish to…dissolve the people into a homogeneous mass, abolish decentralization, and remove representative institutions could not be in sharper contrast to American traditions of constitutionalism, federalism, localism, and representation.”28
The Jeffersonians “hated and feared” the Jacobin concept of a “general will,” wrote Felix Morley in Freedom and Federalism.29 For if “the general will” were to become a practical reality regarding the operation of government, then all voluntary associations must be subjected to government regulation and control in the name of “the people” and their “will”—as interpreted by a ruling elite. This would be the road to serfdom and the end of individual liberty.
In Alexander Hamilton and the Constitution, Clinton Rossiter wrote that “throughout his life, [Hamilton]…stated his belief in the existence of ‘the public interest.’” It was “the streak of political Romanticism that ran all through this area of thought.”30 This is undoubtedly why the political scientist Cecelia Kenyon labeled Hamilton “the Rousseau of the Right” in the scholarly journal Political Science Quarterly.31
Rossiter cataloged how some version of “the general will” appears hundreds of times in Hamilton’s speeches, letters, and writings. Among the phrases he used were “the public good,” “the public interest,” “the public weal,” “the public safety,” “the public welfare,” “the public felicity,” “the public happiness,” “the general good,” “the general interest,” “the common interest,” “the national interest,” “the national happiness,” “the welfare of the community,” “the true interests of the community,” “the permanent welfare of society,” “the good of the whole community,” and “the common interests of humanity.” The last phrase, said Rossiter, was “a burst of supra-nationalism.”32 Hamilton, “more pointedly than any other political thinker of his time, introduced the concept of the ‘public good’ into American thought.”33
To claim that government policies that benefit small but powerful special interests at the expense of the rest of society are really “in the public interest” is an ancient political tactic. It was employed, for example, by the British mercantilists of Hamilton’s time (and before) to argue that high food prices caused by protectionist trade policies were somehow in the general public’s best interest. But no government policy can be said to be in “the public interest” unless it benefits every member of the public. And this is a rare if not nonexistent occurrence in any democracy. All democracies evolve into a state where the net beneficiaries of government (those who receive more in benefits than they pay in taxes) outnumber and dominate the net taxpayers (those who pay more in taxes than they receive in benefits).
As will be discussed extensively in this book, Hamilton was an American mercantilist, and he and his party (and its political heirs, the Whigs and Republicans) advocated special-interest policies that would primarily benefit politically connected merchants, manufacturers, speculators, and bankers at the expense of the rest of the public. The “public interest” rhetoric was (and is) an indispensable political smoke screen if they were to achieve political success. The wool must be pulled over the public’s eyes with “public interest” rhetoric if mercantilism were to succeed. Jefferson and his political compatriots, such as John Taylor, saw through it. Taylor, in fact, wrote an entire book attacking the Federalists’ mercantilistic economic views, entitled Tyranny Unmasked.34
THE FOUNDING FATHER OF CONSTITUTIONAL SUBVERSION
Having failed to create a “national” government at the Constitutional Convention, Alexander Hamilton denounced the document as “a frail and worthless fabric” and devoted himself to “reinterpreting” the “real meaning” of the document so as to subvert it. His purpose was essentially to rewrite the Constitution through lawyerly manipulation of its words to satisfy his main purpose of building “the foundations of a new empire,” as Clinton Rossiter called it.
Hamilton’s expansive view of the Constitution stood in stark contrast to Jefferson’s strict constructionism. Jefferson believed—and the Constitutional Convention had affirmed—that the citizens of the free, independent, and sovereign states had delegated a few powers to the central government for their own mutual benefit, but that citizens of the states, rather than the central government, remained sovereign. He recognized the Constitution as necessary for constraining government and even supported secession in instances when the government no longer behaved in a constitutional manner (not at all a surprising position for the author of the American Declaration of Secession from the British Empire).
But Hamilton dismissed Jefferson’s strict constructionism and viewed the Constitution as a grant of powers rather than as a set of limitations. With clever manipulation of words, he believed, the Constitution could be used to approve virtually all government actions without involving the citizens at all. “It seems certain,” Rossiter wrote, “that Hamilton would have affixed a certain certificate of constitutionality to every last tax…. Hamilton took a large view of the power of Congress to tax because he took a large view of the power to spend.”35
The Constitution had an amendment process, of course, but amending the Constitution would have required Hamilton to sell his Leviathan State ideas to the American public. Rossiter rightly observed: “Having failed to persuade his colleagues at Philadelphia of the beauties of a truly national plan of government, 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.”36 The Federalist Party’s “lawyer-eaucracy” would have to “amend” the Constitution in a more clandestine way.
Many of Hamilton’s arguments are repeated to this day by academics, politicians, and others who favor a bigger, more activist government with unbridled executive powers. For example, Hamilton set out to rewrite the history of the American founding by arguing that the citizens of the states had never been sovereign. On June 29, 1787, he said that the states were merely “artificial beings” that had nothing to do with creating the union.37 In a speech before the New York State Assembly in that same year he argued that the “nation,” and not the states, had “full power of sovereignty” dating back even before the Articles of Confederation; he actually called that first constitution an “abridgement” of “the original sovereignty of the Union.”38 (Abraham Lincoln would make the exact same argument in his first inaugural address seventy-four years later. It was the basis for his denial of state sovereignty—and the right of secession—and his military invasion of the southern states.)
This is perhaps the biggest lie in American political history. But the myth would be endlessly repeated by Hamilton’s political heirs, the Whigs and Republicans, up through the Lincoln regime and beyond, to this very day.
Hamilton also invented the myth that the Constitution somehow grants the federal government “implied powers.” “Implied powers” are powers that are not actually in the Constitution but that statists like Hamilton wish were there. As Rossiter pointed out, “One finds elaborations of this doctrine throughout his writings as Secretary of the Treasury.”39 The most notable articulation of this idea can be found in Hamilton’s Opinion on the Constitutionality of the Bank of the United States. He wrote this report in 1791, while serving as treasury secretary. President Washington had asked both Hamilton and Jefferson for their opinions on the subject. In his opinion, Hamilton wrote that “there are implied, as well as express powers [in the Constitution], and that the former are as effectually delegated as the latter” (emphasis in original).40 He added, “Implied powers are to be considered as delegated [to the federal government] equally with express ones.” A nationalized bank, he went on to argue, was one of these implied powers.
Jefferson vehemently disagreed, arguing that the express powers delegated to the federal government in Article I, Section 8, of the Constitution (providing for the national defense, coining of money, etc.) were expressly stated because they were the only powers delegated to the federal government by the sovereign states that ratified the Constitution. Any new powers, Jefferson believed, could be delegated only by a constitutional amendment. He realized that such a doctrine as “implied powers” would essentially render the Constitution useless as a tool for limiting government if the limits of government were simply left up to the imaginations of ambitious politicians like Hamilton.
Hamilton prevailed, however, and “with the aid of the doctrine of implied powers,” wrote Clinton Rossiter, he “converted the…powers enumerated in Article I, Section 8 into firm foundations for whatever prodigious feats of legislation any future Congress might contemplate.”41 Jefferson’s worst fear was realized. As we will discuss in detail in Chapter 4, the shock troops of the Federalist Party—federally appointed judges—would use Hamilton’s arguments to essentially rewrite history and the Constitution. Thus was “liberal judicial activism” born.
Another Federalist, President John Adams, tried to achieve just this goal when he appointed hundreds of “midnight judges” to the federal judiciary during the very last hours of his administration. With Jefferson about to be inaugurated as president, the Federalists hoped that all those politically loyal judges would subvert the new administration’s strict construction of the Constitution and its limited government policies. When Jefferson opposed them and succeeded in getting rid of most of the judges, his political enemies argued that he was waging a “war on the judiciary.” To this day, nationalist historians repeat this myth. Of course, Jefferson was waging war not on the judiciary as a whole but only on politically appointed judges who were determined to subvert the U.S. Constitution in the service of big government.
George Washington had condemned the notion of a “living constitution” in his Farewell Address (which, oddly enough, is said to have been at least partly ghostwritten by Hamilton). In that address President Washington said, “If in the opinion of the People, the distribution of modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way the Constitution designates. But let there be no change by usurpation…the customary weapon by which free governments are destroyed.”42 Hamilton’s theory of implied powers ignored this warning, laying the template for generations of lawyers who would use the courts, rather than the formal amendment process, to essentially render the constitutional constraints on government null and void.
Not only were there supposedly “implied” powers in the Constitution that only the wise and lawyerly like Hamilton recognized (but that were foreign to James Madison, who like Jefferson was a strict constructionist), there were also “resulting powers,” Hamilton argued. 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 the government…than a consequence of…powers specially enumerated.”43
Thus, if the government engaged in an unconstitutional war of conquest and succeeded, the unconstitutional “powers” would magically become constitutional, in Hamilton’s opinion. Taken to its logical ends, this argument implies that any action of government would be de facto “constitutional” by virtue of the fact that the action occurred. This is how Hamilton viewed the Constitution—as a potential blank check for unlimited powers of government.
Jefferson and Madison were such strict constructionists, by contrast, that each of them, as president, opposed the expenditure of tax dollars even on relatively modest road-and canal-building projects by saying that the Constitution did not expressly name such things as legitimate governmental functions. The Constitution would have to first be amended, they argued.
The Federalists at the Constitutional Convention had known what they were doing when they inserted the General Welfare Clause into the Constitution. (“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.”) Hamilton would immediately use it to expand the powers of the central government. The main source of Hamilton’s expansive interpretation of the General Welfare Clause is his famous Report on Manufactures, which he delivered to Congress in late 1791 while serving as secretary of the treasury.
In that report Hamilton advocated having the federal government grant “pecuniary bounties” to the manufacturers of certain items (a practice known today as “corporate welfare”). Jefferson and Madison objected that nothing in the Constitution permitted such an expenditure of tax dollars. Hamilton’s report cited the General Welfare Clause to handle such objections: “[T]he power to raise money is plenary and indefinite [in the Constitution],” he wrote. “The terms general Welfare were doubtless intended to signify more than was expressed.” He claimed, “It is therefore of necessity left to the discretion of the National Legislature, to pronounce upon the objects, which concern the general Welfare, and for which…an appropriation of money is requisite and proper.” Otherwise, he wrote, “numerous exigencies incident to the affairs of a nation would have been left without a provision.”44
“Thus with a flourish,” wrote Rossiter, “did Hamilton convert the fuzzy words about the ‘general Welfare’ from a ‘sort of caption,’ as Madison described them, into a grant of almost unlimited authority [to the federal government] to enact programs that would divert the growing riches of the American people [through taxation].”45 In Hamilton’s rendering, the federal government’s powers were virtually unlimited; after all, the case will always be made by some politicians that virtually everything government does advances the “general welfare” of the country. Before long, the “National Legislature” was frequently using the General Welfare Clause to justify programs that served special interests rather than the “general welfare.” By the middle of the nineteenth century the problem had become so evident that when the Confederate government adopted its own constitution in 1861, the document was almost a carbon copy of the U.S. Constitution—minus the General Welfare Clause. What is more, generations of nationalist judges have used Hamilton’s argument to expand the size and scope of government far beyond what the Constitution allows.
Hamilton was also likely the first to twist the meaning of the Commerce Clause of the Constitution. (“The Congress shall have Power…To regulate Commerce with foreign Nations, and among the several States.”) This clause was supposed to give the central government the ability to regulate interstate commerce to promote free trade between the states. But Hamilton asserted that “commerce” was really an all-inclusive term for all commercial activities in society, and therefore that the government had a “right” to regulate and control all commerce, not just interstate trade but intrastate commerce as well.46
Jefferson had argued that there was no constitutional authority to regulate commerce within states, as a nationalized bank would do. Hamilton, in his Opinion on the Constitutionality of the Bank of the United States, responded by saying that the Commerce Clause authorized a national bank. Since Congress was authorized to regulate commerce “upon the whole,” he claimed, it was therefore also authorized to regulate “every part” of “the whole.” In other words, he insisted that any regulation of commerce, even interstate commerce, would somehow affect intrastate commerce, and so the Commerce Clause in reality empowered Congress to control the latter too. Hamilton’s language is rather convoluted by modern standards, but here’s how he made his case: “What regulation of commerce does not extend to the internal commerce of every State? What are all the duties upon imported articles, amounting to prohibitions, but so many bounties upon domestic manufactures, affecting the interests of different classes of citizens, in different ways?…In short, what regulation of trade between the States but must affect the internal trade of each State? What can operate upon the whole but must extend to every part?”47
In Hamilton’s opinion, then, the Commerce Clause allowed for government planning of every economic enterprise. No wonder Jefferson, Madison, and other devotees of the Constitution thought of Hamilton as a deadly enemy of the free society. For example, in a September 9, 1792, letter to President Washington, Jefferson wrote that “I have utterly…disapproved of the system of the Secretary of Treasury…. His system [of a national bank, corporate welfare, public debt, protectionist tariffs, etc.] flowed from principles averse to liberty, & was calculated to undermine and demolish the republic, by creating an influence of his department over the members of the legislature.”48
It was also Hamilton who invented the theory of “war powers.” The Constitution does give the central government the power to “provide for the common Defence,” but Hamilton interpreted that to mean that unlimited resources should be given to the military, including conscription and a standing army in peacetime. (The Constitution itself specifically limited the existence of a standing army to two years.) In Federalist no. 23 Hamilton wrote that the resources of the military “ought to exist without limitation.” He also wanted government to nationalize all industries related to the military, which in today’s world would mean virtually all industries.
Jefferson and his followers opposed this fanciful interpretation of the Constitution as well. Drawing on the lessons of history, they understood that standing armies are a potentially bankrupting drain on the nation and also that governments throughout history had used such armies against their own people for such purposes as tax collection or just plain intimidation. Their own experience was particularly instructive: the American colonists were the victims of such intimidation at the hands of the British army. That’s one reason why the Constitution allowed for only a two-year standing army.
Jefferson articulated his opposition to a standing army in his first annual message to Congress as president, on December 8, 1801. President Jefferson declared that it is neither “needful or safe that a standing army should be kept up in time of peace” and that “the only force which can be ready at every point,” should an enemy choose to invade, “is the body of neighboring citizens formed into a militia.”49 Then, in an April 12, 1802, letter to General Thaddeus Kosciusko of Poland, who had inquired about whether some Polish military officers could “expect to be employed” in America, Jefferson wrote: “I hasten to inform you, that we are now actually engaged in reducing our military establishment one third…We keep in service no more than men enough to garrison the small posts dispersed at great distances on our frontiers.”50
WHY HAMILTON LED AN INVASION OF HIS OWN COUNTRY
Many of Hamilton’s key political supporters—and friends, business associates, and relatives—were holders of federal bonds (especially war bonds). More government revenue was needed, Hamilton believed, so that these government bondholders could be paid their principal and interest. In addition, Hamilton believed in issuing even more bonds for the sake of enlarging the public debt. He thought this would tie the wealthy of the country (who would be the primary purchasers of government bonds) to the government, thereby creating a formidable political pressure group in favor of bigger government and higher taxation.
So as U.S. treasury secretary in the Washington administration, Hamilton was instrumental in getting Congress to enact numerous excise taxes, a national property tax, and other taxes, including a special tax on whiskey.
In western Pennsylvania farmers used whiskey as a form of “currency” or barter with which they bought needed goods, since the wheat and other grains they grew were too cumbersome and expensive to transport in order to engage in trade. The Pennsylvania farmers naturally believed that the whiskey tax was grossly inequitable, for farmers in, say, South Carolina and Virginia were not paying a special tax on cotton and tobacco. They refused to pay the tax, generally revolting against it, and even tarred and feathered federal tax collectors whenever they showed up.
Some statesmen, such as Secretary of State Edmund Randolph (formerly the attorney general), urged negotiations between the federal government and the Pennsylvanians. But Hamilton, writes William Hogeland in The Whiskey Rebellion, was “arguing for moving immediately, with an overwhelming force of at least twelve thousand men, bigger than any American army to date, more than had beaten the British at Yorktown.”51 So at Hamilton’s urging, President Washington personally led an army of more than 13,000 conscripts to Pennsylvania, accompanied by Hamilton the chief tax collector. Hamilton’s main purpose, writes Hogeland, was apparently “to frighten the states with the threat of a military takeover” by a federal army if they resisted taxation, however unjust it seemed to them.52 This fact speaks volumes about why Hamilton was such a vociferous proponent of a standing army. He wanted a standing army of tax collectors. This is how King George III collected stamp taxes and other levies from the American colonists prior to the Revolution, and it is how Hamilton intended to collect his whiskey tax.
James Madison remarked that Hamilton’s extreme “excitement” over this whole affair exposed his not-so-hidden agenda of “the glories of a United States woven together by a system of tax collectors.”53 (It was also Madison who had argued in favor of the Second Amendment’s right to bear arms for the purpose of fending off such an invasion of a sovereign state by the central government.) In his history of the Federalist Party, the historian John C. Miller noted that Jefferson’s party had “suspicions that the army had been strengthened in 1798 not to fight Frenchmen but to suppress opposition to Federalist policies.”54 He matter-of-factly concluded that “when the French failed to invade the United States and Hamilton’s dream of foreign adventures went glimmering, the most compelling reason for maintaining a large military establishment was to back up Federal tax collectors, district attorneys, and judges, in the enforcement of unpopular laws.”55 All in “the public interest,” in Hamilton’s view.
The rank-and-file soldiers may have been mostly conscripts, but many of the officers who accompanied Hamilton and Washington to Pennsylvania were “from the ranks of the creditor aristocracy in the seaboard cities,” as Claude Bowers wrote in Jefferson and Hamilton. These officers were eager to enforce collection of the whiskey tax so that the value of their government bond holdings could be enhanced and secured.56 They were, in Bowers’s words, “of the first Philadelphia families in wealth, gorgeous in their blue uniforms made of the finest broadcloth, all mounted on magnificent bay horses so nearly uniform in size and color that any two of them would make a fine span of coach horses. A proud show they made with their superb trappings, their silver-mounted stirrups and martingales, their drawn swords glistening in the sun,” like “patrician conquerors.”57
These “conquerors” treated their captives—including “old men who had fought for American independence…some pale and sick”—most inhumanely. The tax protesters were “run through the snow in chains, toward various lockups in town jails, stables, and cattle pens, to await interrogation by Hamilton.”58 This went on all the way across the state of Pennsylvania, until they reached Philadelphia.
Washington apparently lost interest in the affair and returned home, leaving Hamilton in charge. He played the role of Grand Inquisitor and “prompted detainees to manufacture evidence” against his political opponents from Pennsylvania. One of his assistants, a General White, “ordered the beheading of anyone attempting to escape” and was not overruled by the treasury secretary, who was apparently willing to play judge, jury, and executioner, if need be.59 Indeed, Hamilton ordered local judges to render guilty verdicts against the twenty men who were eventually imprisoned, and he wanted all guilty parties to be hanged. But only twelve individuals went to trial; two men were convicted, and George Washington pardoned them both, to the extreme disappointment of his young treasury secretary.
So the whiskey rebels prevailed. They did not pay the whiskey tax; no one was successfully prosecuted; and once Jefferson became president, the hated whiskey tax, along with most other excise taxes, was abolished.
Hamilton never stopped his quest for “national” and “imperial” glory, though. After his march on Pennsylvania he called for war with France. Apparently exasperated with his political enemies from Virginia, especially Jefferson and Madison, he also spoke of leading a federal army into Virginia to put the state “to the test.”60 This test would eventually occur when another Hamiltonian nationalist, Abraham Lincoln, carried it out in 1861.