The True Intent of the Constitution Isn’t the Jeffersonian-Madisonian-Tea Party View

By: June 15, 2011


We do sharply disagree about the Constitution at its founding. If “a deal’s a deal,“ as you say, the important question would be what the deal is. I maintain that nobody at the time knew what the deal was. That’s our main difference.

Like today, nearly everybody at the time seems to have had an opinion about it. But Roger Sherman’s calling a federal bailout unconstitutional doesn’t make it so; the House’s refusing to pass a bailout bill doesn‘t either. That same House passed the bank bill — yet that doesn’t make you, for one, or James Madison, for another, deem the bank bill constitutional. Like many of the liberals you oppose, and like many of the founders themselves, I think you’re constructing what is really a preference regarding how the Constitution should work as something historically essential to the Constitution‘s intrinsic nature. Despite the Washington administration’s manifest violations of many specific restraints in the Bill of Rights, and of the crystal-clear constitutional rule on habeas corpus, which I’ve written about in stark detail, and despite those violations’ ineluctable connection to Hamilton’s national finance plans, I can’t see the high-Federalist position regarding Congress’s power to form a bank, for example, as “some obscure unstated secret intent of the participants” of the conventions, and thus a bait-and-switch distortion of the Constitution as passed. The Federalist financial intent that I discussed in the last post was largely transparent — and I see that intent as both an overwhelmingly important input to the Constitution and a policy expression of its meaning and purpose, placing the Federalists at odds with other, equally legitimate inputs to and expressions of that meaning.

In other words, to me the Constitution as debated, ratified, and amended involves political and philosophical contradictions. To you, and to many others, all across the political spectrum, it doesn’t: the essential meaning is plain. Some liberals construct the Constitution’s essential meaning as enabling New Deal and Great Society programs! Those who think there’s a plain and essential meaning can’t agree on what that meaning is. The founders couldn’t either.

You and I do firmly agree that the nature of the Constitution “was not completely expressed in the arguments of Hamilton and Madison” in The Federalist. I actually think people tend to make too much of those essays. My reference to Federalist #10 was intended only to remind you that Madison, whom you’d posited as the Constitution’s defender against Hamilton‘s violations, actually concurred in the Hamiltonian high-finance purposes of forming a national government.

But I do see the evolution of Madison’s point of view on a bill of rights, his political struggles at home in Virginia, and his enmity with Hamilton as more complicated than you seem to imply. For example: “The people wanted a Bill of Rights.” Well, yes — and/or the states did, and the terms “the people” and “the states” were blurred, deliberately and politically, then as now. Madison worked hard to focus the rights in the amendments largely on individuals rather than on states. There was some sleight-of-hand and deliberate vagueness involved, with which we’ll always struggle, and with which we’ve struggled especially hard since ratification of the post-Civil War amendments. States-rights people might fairly see Madison as the one who pulled a bait-and-switch in his handling of the amendments! Patrick Henry certainly saw it that way; hence Madison’s representing Virginia in the House and not the Senate. From the obverse point of view, Hamilton too had reason to feel that Madison was suddenly turning on him, in claiming that the federal government they’d collaborated in creating had only the powers explicitly enumerated.

Your “up-front personal engagement with the voters” might as well be a Madison-Jefferson Republican campaign slogan, and that’s what I meant by “sentimental”: uncritically echoing the Jeffersonians’ admiration of themselves feels more political than historical to me.

There’s another way to consider this disagreement. Hamilton was so quickly able to gain support for his plans precisely because those plans had always been crucial to the drive for a national government. That doesn’t mean (and of course I wouldn’t have suggested) that “the true intent of the Constitution was to enable a Hamiltonian quasi-monarchical finance and political elite to use the federal government to undertake any project they saw fit.” But I think you seriously underrate the importance of the efforts for nationalism in the 1770’s and ‘80’s of those high-finance elites, with whom Madison collaborated until he ran into political trouble in Virginia. What you’re calling “Hamilton’s extra-Constitutional  schemes” are part and parcel of the nationalist movement that, while embattled, ultimately gave us a Constitution, as aided and endorsed by men who can’t be counted among urban financiers: Madison, Randolph, Jefferson, Adams. Jefferson much later described himself as shocked to discover what had been going on in his absence in France, and presented himself as a dupe, and I’m sure he meant it — but self-serving reminiscence is the lifeblood of founders’ memoirs.

You close by describing the Constitution’s true intent as reflected by “the majority of American citizens.” Given the politics of the ratifying process, I don’t know — and I don’t believe anyone else knows either — what a majority of American citizens at the time thought about the Constitution‘s intent. And I should note that by “the majority of American citizens” I mean, in this case, what you must also mean: the majority of that minority who had a right to vote and hold office.

But our real disagreement isn’t in these details, which could proliferate forever. What I really dissent from is your idea that the framing, ratifying, and amendment process of the Constitution led to any single, manifestly evident and plain “true intent”; that any such true intent, if it existed, would necessarily be Jeffersonian/Madisonian and anti-Hamiltonian; and that the Tea Party would know how to apply such an intent, if it existed, to policy in the 21st century.

Guest Contributor William Hogeland, a frequent contributor to 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.

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