As a close reader of Hamiltonian finance, I’m getting especially interested in aspects of this dialogue that have to do with the historical bases of conservative versus liberal views of the Constitution.
I think we agree that the liberal reading of the Constitution is founded in large part on Hamilton’s argument when he was trying to form a central bank. As many people may be aware, Hamilton argued for the bank’s constitutionality with reference to the Constitution’s “necessary and proper” clause (Congress can do what is necessary and proper to carry out its enumerated duties), to which you’ve said he gave an “invented meaning.” You’ve summed up the conservative view in part by saying “Congress’s powers are limited to those enumerated in Article I, Section 8,” and you’ve emphasized that because the proper method of changing the Constitution is set out in the document itself — the amendment process — changing it via what you call “expansive judicial interpretations or executive usurpations” is unconstitutional.
So you read Congress’s forming the central bank at Hamilton’s behest not the way I do — a deliberately regressive measure, part of Hamilton’s and others’ pretty unabashed, longstanding plan to use federal power to concentrate wealth in elite hands and make that wealth available to the nation — but the way Madison did: an unconstitutional act of executive-inspired overreaching, illegal on its face. And I’d guess you’d see the 1819 Supreme Court decision that upheld forming the second bank as one of the rulings that began changing the Constitution in ways not contemplated by the document itself, ultimately almost beyond recognition. Hence your saying that the Tea Party wants to revive the Constitution, as ratified and amended, as our secular covenant.
This is an important point, which I think both conservatives and liberals might want to do more thinking about. Liberal lawyers can — and do — eagerly take you on regarding how the Constitution is supposed to work, whether there are uneumnerated powers of Congress and penumbral rights of citizens, whether the Supreme Court may interpret the Constitution broadly, etc. (And you can just as eagerly take them on right back.) Liberal laypeople and pols choose to align themselves with liberal constitutional readings even as they reject (or ignore) the regressive Hamiltonian finance and executive-branch authoritarianism in which, I agree, those readings had their strange birth. And so we go round and round.
But I’m interested in the history of that very fight, beginning with Madison and Hamilton, and the politics of how the fight goes on today. It probably won’t come as news to many readers that Tea Party and other conservatives have long seen welfare-state programs of the Great Society and the New Deal as expanding federal authority well beyond what the framers intended. The post-Civil War amendments too have long struck many conservatives as concocting new rights, contrary to the intended operation of the Constitution. Extending to citizens, as federally enforced rights against their state governments, rights originally created solely against federal power gets us into the legal maelstrom that has swirled forever around civil-rights, reproductive-rights, states-rights and other movements and marked the political wars of at least the past fifty years.
What I do think will come as news to many readers is that from your point of view, the Constitution was violated virtually from day one — the day President Washington signed the central bank into law — and that the violation gained fatal traction as early as the Marshall court. It seems to me that in this reading, the Constitution can’t be said to have ever operated authentically. Such a reading wouldn’t make you necessarily wrong (and nobody’s turned a colder eye on the Washington administration than me), but it would throw light on what Tea-Party-backed politicians really mean when they take a pledge, for example, to act only with regard to the literal meaning of the Constitution. To the extent that Tea Party ideas prevail, should we really be looking for a do-over not on the New Deal, not on the fourteenth amendment, not on judicial review, but on acts of the first Congress and accomplishments of the Washington administration? Because I don’t think most people know that.
Guest Contributor William Hogeland, a frequent contributor to Salon.com and the Huffington Post, is the author of The Whiskey Rebellion: George Washington, Alexander Hamilton, and the Frontier Rebels Who Challenged America’s Newfound Sovereignty and Declaration: The Nine Tumultuous Weeks When America Became Independent: May 1 – July 4, 1776.