CHAPTER 4
Hamilton’s Disciple: How John Marshall Subverted the Constitution
[M]any of the great Supreme Court decisions [that Chief Justice John Marshall] handed down were based on concepts articulated by Hamilton.
—RON CHERNOW, ALEXANDER HAMILTON
If John Marshall was the father of judicial review, Hamilton was the grandfather…. He deserves a statue in front of the Supreme Court.
—RICHARD BROOKHISER, ALEXANDER HAMILTON: AMERICAN
John Marshall was appointed chief justice of the United States by President John Adams and served in that capacity from March 3, 1801, until his death in 1835. He was a political compatriot of Hamilton’s (also serving as secretary of state under President Adams). Marshall, in fact, “revered Hamilton,” as the Hamilton biographer Ron Chernow noted, “having once observed that next to the former treasury secretary he felt like a mere candle ‘beside the sun at noonday.’”1
The worshipful chief justice was also an extreme devotee of Hamilton’s nationalism and statism. When Hamilton and the Federalists failed to create a “national” government at the Constitutional Convention, their strategy shifted to one of subverting the “frail and worthless fabric” of the Constitution through the judicial system. For example, Federalist judges—who had a near monopoly in federal judgeships in the Washington and Adams administrations—enforced the insidious Sedition Act, which was a blatant attack on the First Amendment guarantee of free speech. Their purpose in enforcing this act (exclusively against members of the opposition party) was neither justice nor national security but to protect and expand the power of the Federalist Party.
The reason President John Adams appointed dozens of “midnight judges” to the federal judiciary shortly before leaving office was to ensure that the party faithful could continue to effectively rewrite (and subvert) the federal system of government that was created by the Constitution. His biggest “success” in this regard was the appointment of John Marshall to the Supreme Court. As we shall see, many of Marshall’s most important decisions were almost verbatim copies of Hamilton’s own arguments.
Marshall rarely, if ever, relied on information from the Constitutional Convention itself, or on the state ratification conventions, in his constitutional interpretations. Instead, he cited The Federalist Papers, which were predominantly the Hamiltonians’ nationalist views of what the Constitution should look like—views that had been rejected by the convention. He worked diligently for thirty-five years to replace the Constitution with “constitutional law,” which is very different from and often has nothing in common with the actual Constitution. Marshall’s “constitutional law” went a long way toward helping the Hamiltonian nationalists surreptitiously alter the form of government in America from Jeffersonian federalism to Hamiltonian nationalism and governmental consolidation.
THE GENESIS OF AMERICA’S “JUDICIAL DICTATORSHIP”
Common sense suggests that it would have been the height of absurdity for the Founding Fathers to fight a revolution in the name of liberty and then turn around and write a constitution that placed everyone’s liberty in the hands of five government lawyers with lifetime tenure. Even more irrational would be the notion of allowing the central government to be the sole arbiter of the limits of its own powers by granting it the sole right to interpret the constitutionality of legislation through its own court system. Surely it would sooner or later decide that there are no limits to its powers. This was a fear often expressed by the Jeffersonians. In his book Tyranny Unmasked, John Taylor wrote, for example, that since constitutional government was “an essential principle for preserving liberty,” the Constitution “never could have designed to destroy it [liberty], by investing five or six men [Supreme Court justices], installed for life, with a power of regulating the constitutional rights of all political departments.”2
Another Virginian, St. George Tucker, expressed a similar opinion in his View of the Constitution of the United States, a book that, during the early nineteenth century, was considered to be an expression of the Jeffersonian interpretation of the Constitution. Tucker taught law at William and Mary College, was the adoptive father of John Randolph of Roanoke, and authored one of the very first plans for the peaceful abolition of slavery in 1796. In his book he wrote that if the “unlimited authority” of the central government were ever to extend so far as to change the Constitution itself through judicial fiat, then “the government, whatever be its form,” would become “absolute and despotic.”3
Yet that is exactly where America stands today, and no one is more responsible for this state of affairs than Chief Justice John Marshall, the original champion of the Hamiltonian interpretation of the Constitution. Americans are truly living in “Hamilton’s country” (of lawyers).
Marshall did not waste any time in his crusade to turn the federalist Constitution into a nationalist document. His first opportunity came shortly after his first cousin, Jefferson, was inaugurated as president in March 1801. One of Adams’s “midnight judges” was a man named William Marbury, who had been appointed as a justice of the peace in Washington, D.C. He was appointed, but Adams’s secretary of state—none other than John Marshall—neglected to deliver to him his actual commission, a legal document that would grant him judicial powers. When James Madison became secretary of state under the newly installed President Jefferson, he had no intention of delivering commissions to any of the midnight judges. Then Jefferson announced that he considered the commissions of the forty-two judges void. Marbury sued the government for his commission, bringing his lawsuit directly to the U.S. Supreme Court.4 He wanted the Court to order Secretary of State Madison to deliver his commission to him.
Marbury brought his suit to the Supreme Court because the Judiciary Act of 1789 gave the Court jurisdiction in such cases. After two years of legal wrangling the Court found that Congress had no constitutional right to assign such jurisdiction. That part of the Judiciary Act of 1789 was therefore unconstitutional. Marbury lost the case and did not receive his commission. Jefferson was pleased. But so was John Marshall.
Judge Andrew Napolitano explains why the scheming Marshall, who wrote the Court’s opinion, must have been so pleased: “Marbury v. Madison is the most important court decision in American history because it created judicial review—the power of the Supreme Court, and eventually all federal courts, to examine a statute (and eventually the behavior of the president as well) and to declare it void if the court finds it to run counter to the Constitution.”5 This means that “the Supreme Court granted itself the authority to declare the will of the people (as represented through Congress) as null and void.”6
Napolitano points out that “Marbury v. Madison put Hamilton’s notions into practice.”7 This is quite true. Hamilton’s preference was for a judicial dictatorship that would be dominated by nationalists like himself. He made his case in Federalist no. 78, writing: “A constitution is in fact, and must be, regarded as a fundamental law. It therefore belongs to them [that is, to courts] to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body” (emphasis added). After advocating such dictatorial powers for the federal judiciary, Hamilton went on to insist that the federal judiciary would be a benevolent dictatorship that would act only in the public interest. He argued that the judiciary “will always be the least dangerous to the political rights of the Constitution” that it would be “the weakest of the three departments of power” that “the general liberty of the people can never be endangered” by federal judges; and that there would never be a “superiority of the judicial to the legislative power.” It’s safe to say that history has proven all of these promises to be false.
In Marbury v. Madison John Marshall essentially asserted that he, as chief justice, had power over all congressional legislation. A government lawyer with lifetime tenure, who never had to face an election or even respond to public criticism, would decide for everyone what the Constitution really meant. He would do so under Alexander Hamilton’s preferred “expansive” view of the Constitution, reinterpreting the document so as to enlarge the state as much as possible.
Then again, as mentioned in Chapter 3, just because John Marshall offered this opinion did not mean that all Americans accepted it. Jefferson expressed his own view clearly in a September 6, 1819, letter to Judge Spencer Roane: “My construction of the constitution is…that each department [i.e., branch of government] is truly independent of the others, and has an equal right to decide for itself what is the meaning of the constitution in the cases submitted to its action” (emphasis added).8 Many other Americans shared this view, which is why numerous state legislatures, and presidents, considered their opinions to be just as important as the Court’s. For example, in the showdown over the Bank of the United States, decades after Marbury v. Madison was decided, northern and southern states invoked the Jeffersonian philosophy of nullification to ignore federal laws that they believed were unconstitutional. Likewise, northern states ignored President Madison’s trade embargo and refused to participate in the War of 1812, while southern states nullified the hated 1828 “Tariff of Abominations.”
Not until the 1860s did the power of the Supreme Court to decide the constitutionality of federal legislation become more or less supreme. As Woodrow Wilson correctly observed in a book written while he was still a Princeton University professor, “The War between the States established…this principle, that the federal government is, through its courts, the final judge of its own powers.”9 The question of federal judicial supremacy was a matter of legal and political debate until the Hamiltonian position was backed up with the full military might of the U.S. government—until, that is, the debate was ended literally at gunpoint.
THE “LEAST DANGEROUS” BRANCH?
In The Federalist Papers Alexander Hamilton had assured Americans that the judiciary “will always be the least dangerous to the political rights of the Constitution.” But his disciple John Marshall, not content with declaring federal judges with lifetime tenure “supreme” over the elected representatives of Congress, revealed the emptiness of that assurance in subsequent moves. In a series of cases Marshall and his like-minded (nationalist) Supreme Court colleagues asserted the Court’s alleged supremacy over both state legislatures and state courts. Here he was furthering another of Hamilton’s political goals: the political neutering of the states in the federal system.
The Constitutional Convention had rejected the notion that the federal government should have veto power over state courts. Drawing on The Documentary History of the Ratification of the Constitution, the constitutional historian Kevin R. C. Gutzman writes of how the Constitutional Convention denied Congress the power to veto acts of state legislatures, and it “certainly did not mean such power to be assumed by the Court instead.”10 Gutzman notes that, during the Virginia ratifying convention, some extremely intelligent and educated people labored over every detail of the document for weeks, with an eye to possible infringements of states’ rights.
John Taylor also documented this point in New Views of the Constitution of the United States, published in 1823 and based on the notes on the Constitutional Convention taken by Robert Yates. “The proposals for a national government and its negative power over the state acts, were really made” at the Constitutional Convention, Taylor wrote. But “they were opposed by the state deputies” and “they were rejected.”11 The states were sovereign, after all.
Marshall attempted to reverse this understanding in an 1810 case known as Fletcher v. Peck.12 This case involved a bribery scandal in which a group of “investors” bribed almost the entire Georgia legislature into selling them an enormous amount of land—most of what is now Alabama and Mississippi—for next to nothing. The fraudulent sale was repealed by a state law, and the corrupt legislators were all turned out of office.
Marshall, writing for the Court, declared that the Georgia law violated the Contract Clause of the Constitution, because the land sale had been secured with a binding contract and therefore could not be invalidated. This was an astounding decision, for it was widely understood at the time that in order for a contract to be valid there must not be fraud. But in the case of the Georgia land sale there certainly was fraud, and everyone knew it. This left the citizens of Georgia with no remedy for their blatantly corrupt and criminal legislature.
This didn’t seem to matter to Marshall, who was himself a large land investor. What mattered was to establish the precedent—mentioned nowhere in the Constitution and explicitly rejected by the Constitutional Convention—that the federal courts could review and veto state as well as federal legislation. Hamilton’s dream of a “permanent president” may have been lost, but a federal judicial dictatorship—operated by political compatriots like John Marshall—would probably have satisfied him.
This, too, was not universally accepted at the time. Unlike contemporary Americans, early-nineteenth-century Americans did not cower at the sight and pronouncements of their “supreme” judicial rulers.
It wasn’t only the state legislatures that were capable of expressing the will of the citizens of the states—a will that could at times conflict with the political objectives of the relatively small number of men running the central government. The state courts could also cause trouble for those, like Hamilton and Marshall, who sought to consolidate political power in the nation’s capital.
Marshall attempted to stomp out this challenge to “federal supremacy” in an 1816 case known as Martin v. Hunter’s Lessee.13 In this case the state of Virginia had seized land owned by British loyalists during the Revolution. This was before the Fifth Amendment Takings Clause had been added to the Constitution. Although Virginia’s state courts had ruled that the land seizure was legitimate, the U.S. Supreme Court disagreed, citing the Jay Treaty that ended the war and enabled British citizens to own land in America. Marshall’s ally on the Court, fellow nationalist Joseph Story, wrote the Court’s opinion. In opposing the state courts’ position, Story cited the Supremacy Clause of the Constitution, which gives the central government authority over the states only with regard to the eighteen enumerated powers in Article I, Section 8—that is, the powers expressly delegated to it by the sovereign states. Story ignored the Constitution itself and, like Marshall, invented a theory to the effect that the central government’s “supremacy” is virtually unlimited and applies even to land inheritances.
Nothing in the Constitution gave the federal government the power to review state court decisions; Story (with the approval of Marshall) simply asserted such powers. Once again, it was not the Constitution that the justices were applying but “constitutional law.” Kevin Gutzman was surely right when he wrote that “the Marshall Court, not the Virginia judiciary, was violating the Constitution. The result was not only that the Virginia courts were overruled, and the relevant Virginia laws were voided, but that the Supreme Court seized the power to supervise state courts, an entirely unconstitutional usurpation of power.”14
MARSHALL REWRITES HISTORY
Marshall’s most audacious act was to fabricate a false history of the American founding in the 1819 case of McCulloch v. Maryland. In this case Maryland, like Ohio and other states, had imposed a tax on a branch of the Bank of the United States. The purpose was to tax the bank out of existence—at least within the borders of the state. The Bank refused to pay, and a lawsuit was filed against the state of Maryland. (James McCulloch was an employee of the BUS.)
As the legal scholar Edward S. Corwin pointed out, it is “well known” that for his written opinion in this case, Marshall depended on Alexander Hamilton’s earlier argument about the constitutionality of the BUS, which he had written on February 23, 1791.15 As such, Marshall adopted Hamilton’s fanciful definition of the word necessary with regard to the “Necessary and Proper” Clause of the Constitution. He interpreted it as meaning merely “useful” or “convenient,” as Hamilton had done almost two decades earlier. He further insisted that, in addition to the expressly delegated powers of the national government, there are also “implied powers.” This of course was also a verbatim copy of Hamilton’s opinion.
To counter the Jeffersonian strict constructionists who argued that only express powers are legitimate and, moreover, that the Tenth Amendment to the Constitution reserves all other powers for the states and the people, respectively, Marshall deployed the Hamiltonian Big Lie that the states were never sovereign and that the Constitution was somehow the result of a national plebiscite. He claimed that the Constitution was ratified by “the whole people” of the United States, not by the citizens of the independent states. “The government of the Union…is, emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit.”16 If “the whole people” gave the national government its powers, he continued, then no state can interfere with the exercise of those powers, even if they are “implied” powers that are not expressly listed in Article I, Section 8, of the Constitution.
This theory, however, was “both historically incorrect and intellectually dishonest,” writes Judge Napolitano.17 All one has to do to disprove this theory is to read Article VII of the Constitution: “The Ratification of the Conventions of nine States shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.”18 The Constitution was ratified not by any national vote but by state political conventions (not state legislatures) composed of representatives from all the various communities within the states. Moreover, women did not have the right to vote in America until 1920, so “the whole people” could hardly have ratified the Constitution. Not to mention the fact that slaves and free blacks had no role whatsoever in politics at the time.
Marshall’s (and Hamilton’s) nationalist superstition about the ratification of the Constitution is patently false. But that didn’t matter. Marshall had granted himself and his fellow justices the power to codify Hamiltonian nationalism. “From the grave, the practically defunct Federalist Party and its late chieftain, Alexander Hamilton, had their way,” writes Kevin Gutzman. “[T]he Philadelphia Convention, the ratification process, the Tenth Amendment, and the political defeat of the Federalist Party…were all undone by the Marshall Court.”19
The Marshall Court went a long way toward establishing the “invisible sovereignty” that pervades every city, town, and state in America. The federal government is always ready to reach in and nullify or veto the will of the people of the states, or to order them to obey its own dictates. “[T]he Government of the Union,” Marshall himself wrote, may “legitimately control all individuals or governments within the American territory.”20 It is doubtful that any state would have ratified the Constitution had they known that it would come to this, thanks to Hamilton and his disciple John Marshall.
It would take a while, however, before these strange Hamiltonian superstitions could be enforced. As President Andrew Jackson reportedly said about another of Marshall’s opinions, “Mr. Marshall has issued his opinion, now let him try and enforce it.” Hamilton’s political heirs (Joseph Story, Daniel Webster, Henry Clay, and Abraham Lincoln) would repeat this false history for the next four decades as they attempted to persuade and litigate their way toward a monopolistic and mercantilistic national government—Hamilton’s dream.
The strategy of persuasion and litigation ended, as we have seen, in the 1860s. As Edward Corwin wrote in John Marshall and the Constitution, “[U]ntil the Civil War…the great mass of Americans still felt themselves to be first of all citizens of their respective States.”21 Corwin, a champion of and an apologist for Marshall’s nationalistic views, never missed an opportunity to denigrate the notion of state sovereignty for its “individualistic bias”—that is, for its notion that individual rights ought to be protected by government. He smeared state sovereignty by comparing it to a “serpent” and a “dangerous enemy to national unity.”22 He rejoiced over the fact that Marshall had gone so far to destroy the “irrelevant notion of State Sovereignty.”23 He even named a chapter of his book “The Menace of States Rights.”
Of course, state sovereignty was a reality—at least until it was washed away in the 1860s. The founders recognized that the only way to control the central government that the citizens of the states had created, and to make it serve as the citizens’ agent rather than as their master, was through the efforts of political communities organized at the state and local levels. This is how the Constitution was to be enforced. Madison called it “dual sovereignty,” also known as federalism.
Thus Hamilton and Marshall’s war on state sovereignty was a war against the very notion that the citizens should be sovereign over their own government. “Citizen sovereignty” would be an even more accurate phrase than “state sovereignty.” It is disputed whether Hamilton ever called the public “a great beast,” as some historians have purported, but whether he said it or not, his behavior—and the behavior of his political disciples like John Marshall—indicates that he did hold the public in such low regard.
Observing all of this near the end of his life, Thomas Jefferson offered his opinion in a December 25, 1820, letter to Thomas Ritchie. As threatening to liberty as Congress was beginning to seem, Jefferson wrote, “it is not from this branch of government we have most to fear.”24 The real problem was that “the judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric. They are construing our constitution from a co-ordination of a general and special government to a general and supreme one alone.”25 (A sapper is a soldier who digs battlefield fortifications.)
Jefferson next addressed the issue of how the U.S. Senate had failed to convict the Federalist Supreme Court justice Samuel Chase after the House of Representatives had overwhelmingly impeached him for behaving in a prejudiced, partisan way in his enforcement of the Sedition Act. “Having found…that impeachment is an impracticable thing, a mere scare-crow,” Jefferson wrote, Federalist judges like Marshall “consider themselves secure for life; they sculk from responsibility to public opinion, the only remaining hold on them.”26 The Court’s opinions, moreover, seemed to be “huddled up in conclave, perhaps by a majority of one, delivered as if unanimous, and with the silent acquiescence of lazy or timid associates, by a crafty chief judge [Marshall], who sophisticates the law to his mind, by the turn of his own reasoning.”27
Illustrating Jefferson’s point, Marshall interpreted the Constitution as “expansively” as possible in order to enhance the power of the central government and prohibit the citizens of the independent states from exerting their influence. He disallowed the New Hampshire legislature from influencing the method by which Dartmouth College, a state-chartered institution that had received state government funds during the colonial era, chose its board of directors; and he invented a very broad definition of commerce in the 1824 case of Gibbons v. Ogden, a definition that would eventually open the door to federal regulation of virtually all business in America. In recent years, for example, federal jurists have argued that the federal government has the power to decide on gun-control policy in the vicinity of schools because it can be said to affect interstate commerce. How? Because schools are about education; education affects the productivity of the workforce; the workforce produces goods that cross state lines; therefore schools, and all the activities involved with schools, supposedly constitute “interstate commerce.” Even more convoluted reasoning has been used in thousands of other cases, and it all started with John Marshall and his crusade to “write Hamiltonian principles into legal precedent,” as Gutzman put it.28
So by the 1830s the voluntary union of the founders was falling victim to creeping consolidation, thanks to the influence of Hamilton and his political heirs. This was truly a curse on America, for it sowed the seeds of civil war. In a nation as big as the United States—even in the early nineteenth century—there were bound to be numerous powerful regional differences based primarily on economics. The agrarian South had many interests that were starkly different from those of the increasingly manufacturing-based North, for example. With a truly consolidated or monopoly government, only one of those interests could prevail at any one time. That, in turn, inevitably leads to the outcome of one section of the country using the powers of the state to plunder and exploit the other sections, all under the phony guise of “national unity.” (There was forced “national unity” in the Soviet Union for decades, the reader may recall.)
This is precisely why the founders created a system of federalism, or decentralized government, and why Jefferson believed that the Tenth Amendment, which reserved the bulk of governmental powers to the states, was the most important part of the Constitution. Along with the whittling away of federalism by the Hamiltonians (also known as the Federalists, Northern Whigs, and Republicans) came increasing regional conflict and strife, ending with the War between the States.
HAMILTON’S VICTORY
In Alexander Hamilton and the Constitution Clinton Rossiter remarked that “Hamilton had no equal among the men who chose to interpret the Constitution as a reservoir of national energy.”29 All the Federalists, from John Jay to Rufus King to Marshall, owed Hamilton a debt of thanks for “having taught his friends how to read the Constitution,” Rossiter noted. These men were probably already disposed to reading things into the Constitution that were not there, but “there is little doubt that they first learned the details of their constitutional law in the official papers of the Secretary of the Treasury.”30 It was Hamilton who taught them how to subvert the Constitution, a task they would embark upon for the rest of their lives. Senator Rufus King of Massachusetts was so impressed with Hamilton’s skill at subverting the Constitution with his rhetoric that he promised him “assistance to whatever measures and maxims he would pursue.”31
Supreme Court justice Joseph Story, appointed to the Court in 1811, “became the most Hamiltonian of judges. He construed the powers of Congress liberally; he upheld the supremacy of the nation [i.e., the central government] doggedly; he even found the Alien and Sedition Laws constitutional in retrospect.”32 Story wrote his Commentaries on the Constitution in 1833, which became the party line for Federalist/Whig subverters of the original Constitution with their “constitutional law.” The book could have just as easily been entitled “Commentaries on Alexander Hamilton’s Commentaries on the Constitution,” wrote Rossiter.33
Story expounded the Hamiltonian superstitions of “implied” and “resultant” powers of the Constitution, championed executive power and judicial review by the federal judiciary alone, and proclaimed the “supremacy” of the central government. As Rossiter observed, this book provided a legal road map for “the legal [profession’s] elite—or at least among the part of it educated in the North—during the middle years of the nineteenth century.”34 Thus this “elite” would continue the Hamilton/Marshall tradition of constitutional subversion up through the War between the States and beyond. Abraham Lincoln would repeat Hamiltonian notions of “national supremacy” and denials of state sovereignty to justify his military invasion of the southern states, even if he did not cite Hamilton per se in his speeches.
Liberal and leftist historians invariably celebrate the fact that “the principles of Hamilton have governed the development of American constitutional law since the middle of the 1930s.”35 These principles have been used to rationalize federal power grab after federal power grab, and they are the basis for the federal Leviathan State that liberals and leftists so cherish. They are the rhetorical enablers of the New Deal and its political legacies. “Not until the final victory of the New Deal,” wrote Rossiter, “did the principles of nationalism and broad construction expounded by Hamilton and his disciples” finally monopolize discussion of constitutional law.36 “We live today—and will live indefinitely…under a Hamiltonian Constitution.”37
Liberals like the late Clinton Rossiter have loudly celebrated this fact in their writings. “The formula for congressional authority today [the 1960s] reads: the commerce power + the war powers + the power to tax and spend for the general welfare x the loosest possible reading of the words ‘necessary and proper.’”38 The result is “an unchallengeable authority to pass laws dealing with almost any problem that appears to be national in scope, including problems of agriculture, health, education, conservation, morals, welfare, and civil rights.”39 This sounds more like the old Soviet Constitution than the U.S. Constitution.
This formula is nothing to celebrate. It has produced a uniquely American brand of judicial and legislative totalitarianism, in which the Constitution is meaningless as a restraint on governmental power. Thanks to Hamilton, Marshall, and their ideological heirs, Americans live under a Constitution that is construed by the courts as a grant of powers and not as a restraint on government, as was originally intended. It is, Rossiter gushed, “a grant of splendid powers rather than a catalogue of niggling limitations. We go to it for support rather than admonition, for encouragement rather than dissuasion, for ways to get things done [by government] rather than to keep things from being done [by government].”40 This of course is exactly the opposite of the original intent of the framers of the Constitution.
The president is no longer the chief administrator of a modest governmental apparatus, as George Washington was. Thanks to Hamilton’s theories of executive power, as interpreted and applied by such figures as Lincoln and the two Roosevelts, American presidents have assumed “vast responsibilities at home and abroad” and consider themselves to be, more or less, the chief executives of the entire planet. (One might recall President George W. Bush announcing his goal of eliminating tyranny from the earth in his second inaugural address.)
Rossiter was certainly right when he wrote that the Hamilton/Marshall view of the Constitution prevailed with a vengeance beginning in the 1930s. Between 1937 and 1995, not a single federal law was declared to be unconstitutional by the Supreme Court. Not one among hundreds of decisions and thousands of pieces of legislation.41 Hamilton had won: any legislation that is not explicitly prohibited by the Constitution is permitted. Just about anything goes, in other words. The Court paid great deference to the hyperactive legislature and no longer served as any kind of check on unconstitutional legislation. And by that time the states were also neutered, since the rights of nullification and secession were abolished in 1865. The Washington establishment has long considered the taxpayers’ pockets to be an inexhaustible resource, one they can plunder with the validation of the Constitution. Nor are there any longer any serious constraints on government’s ability to centrally plan, regulate, control, and regiment all businesses in America, despite its track record of providing little or no benefits from regulation while burdening the nation with billions of dollars of regulatory costs annually.42
As the great French economist Frédéric Bastiat once remarked, democracy can be just as oppressive as dictatorship if the results of democracy are forced uniformity.43 What is the difference, after all, between a dictator’s edict that everyone in an entire country must behave in a particular way and the exact same edict enacted and enforced by a legislature? Both are examples of coerced “national uniformity,” something that statists of all stripes typically celebrate with nice-sounding words like “union” and “national unity.”
Once the Court abandoned all pretense of performing its duties of seriously applying the words of the Constitution to legislation, all the federal government had to do to have any legislation pass constitutional muster was to make an argument, however weak, that the legislation in question was somehow serving “the common good,” Hamilton’s favorite phrase. Thus in the 1937 case of West Coast Hotel v. Parrish a minimum-wage law for women that had previously been ruled a violation of the Contract Clause of the Constitution suddenly became constitutional.44 The government could pass laws that violated private wage contracts after all, “in the common good.”
During that same year, in NLRB v. Jones & Laughlin Steel Corp., the Court upheld the National Labor Relations Act, under which the government had given itself the right to regulate labor relations. The Court’s argument was that labor relations affected interstate commerce and that therefore the Commerce Clause of the Constitution allowed for federal regulation of all labor relations. The actual case involved ten employees of U.S. Steel (out of 56,000) who had complained of being treated unfairly by the company since they were union sympathizers. The government ordered U.S. Steel to be nicer to those ten men, whose actions supposedly had an important impact on interstate commerce in America.45 Under such twisted (Hamiltonian) logic, the government imposed minimum-wage, maximum-hour, and child-labor legislation. These were all obvious violations of freedom of contract (between employers and employees), but the Court gave Congress the right to regulate any business behavior that might conceivably affect interstate commerce. (Recall that it was Hamilton who was the first to suggest this as the “proper” interpretation of the Commerce Clause.)
Years after FDR’s death his chief domestic policy adviser from 1932 to 1945, Rexford Tugwell of Columbia University, candidly admitted that these and myriad other decisions by the “Roosevelt Court” were “the tortured interpretations of a document [the Constitution] intended to prevent them.”46 Hamilton and Marshall would have been very proud.