by Ron Chernow
In Federalist numbers 11–13, Hamilton displayed his practical, administrative bent as he explained the advantages of the new union for commerce as well as government revenues and expenses. He revealed America’s commercial destiny as he prophesied that envious European states would try to clip the wings “by which we might soar to a dangerous greatness.”41 With a powerful union, America would strike better commercial bargains and create a respectable navy. He offered an expansive view of prosperous American merchants, farmers, artisans, and manufacturers, all working together. In a sudden flash of economic foresight, he anticipated twentieth-century monetary theory: “The ability of a country to pay taxes must always be proportioned, in a great degree, to the quantity of money in circulation and to the celerity [what economists now call velocity] with which it circulates.”42 Blessed with a potent union, the government would collect customs duties with greater efficiency, since it would not have to stop contraband among the states and need only patrol the Atlantic seaboard. Americans would likewise save money by having a single country rather than the separate confederacies that might stem from disunion. All this was a further rebuttal to Montesquieu’s view that large republics could never survive.
In Federalist numbers 15–22, Hamilton and then Madison skewered the anarchic state of the confederation. Pride and honor always loomed large in Hamilton’s value system, both personal and political, and he mourned the national degradation and loss of dignity after the Revolution. The United States had become a pariah country, sneered at by foreign states: “We have neither troops nor treasury nor government.”43 Land and property values had plummeted, money had grown scarce, public credit had been destroyed—all because the central government lacked power. And it lacked that power because it had to rely for revenue upon the states, who competed to provide the least money to it.
Only if the federal government could deal directly with its citizens and not fear obstruction from the states could it be a true government. In number 17, Hamilton disagreed that national officials would be able to impose their wills on the states. State governments would always have superior claims on people’s affections, and abuses of power would therefore more likely occur on the local level. Here Hamilton had planned a tour d’horizon of ancient and modern confederacies, showing how they tended to fall apart. When he learned that Madison had already undertaken this work, Hamilton handed him his notes for Federalist numbers 18–20. The resulting somewhat pedantic essays by Madison ended on a defensive note: “I make no apology for having dwelt so long on the contemplation of these federal precedents. Experience is the oracle of truth and where its responses are unequivocal, they ought to be conclusive and sacred.”44
To round out his searching critique of the Articles of Confederation, Hamilton devoted two more essays to the central government’s impotence in enforcing the law. Recalling Shays’s Rebellion, he inquired, “Who can determine what might have been the issue of [Massachusetts’s] late convulsions if the malcontents had been headed by a Caesar or a Cromwell?” (This and numerous other pejorative references to Caesar belie Jefferson’s canard that Hamilton revered the Roman dictator.) He endorsed the need for federal regulation of commerce and allayed fears that the central government would levy oppressive customs fees: “If duties are too high, they lessen the consumption—the collection is eluded and the product to the treasury is not so great as when they are confined within proper and moderate bounds.”45 He also decried the confederation’s lack of a federal judiciary: “Laws are a dead letter without courts to expound and define their true meaning and operation.”46 In typically categorical fashion, Hamilton ended by dismissing the Articles of Confederation as an abomination, “one of the most execrable forms of government that human infatuation ever contrived.”47
In the next fourteen numbers (23–36), Hamilton undertook a point-by-point defense of the Constitution, making the case that an energetic government would require peacetime armies and taxation—both associated with British rule and hence anathema to radical populists. The new country would be so large, he contended, that only a mighty central government could govern it. To gain the requisite strength, that government would need the option of raising armies instead of relying on the much romanticized state militias: “War, like most other things, is a science to be acquired and perfected by diligence, by perseverance, by time, and by practice.”48 While others maintained that a wide ocean insulated America from European threats, Hamilton saw a country enmeshed in a shrinking world: “The improvements in the art of navigation have ...rendered distant nations in a great measure neighbours.”49 Economic and military strength went hand in hand: “If we mean to be a commercial people...we must endeavour as soon as possible to have a navy.”50 As to fears that the federal government would amass excessive power, Hamilton again reassured readers that “the general government will at all times stand ready to check the usurpations of the state governments and these will have the same disposition towards the general government.”51 Similarly, state militias would check potential abuses of any national army, safeguarding the balance of power between the federal and state governments.
Approaching the knotty subject of revenues in number 30, Hamilton described the power of taxation as “an indispensable ingredient in every constitution.”52 Without it, the confederation government “has gradually dwindled into a state of decay, approaching nearly to annihilation.”53 Not only would taxes underwrite operating expenses, but they would enable the country to pay off its debt, restore its credit, and raise large loans in wartime. From his reading of history, Hamilton concluded a few essays later that war was an inescapable fact of life: “the fiery and destructive passions of war reign in the human breast with much more powerful sway than the mild and beneficent sentiments of peace.”54
Broaching the vital doctrine of implied powers in numbers 30–34, Hamilton asserted that in politics “the means ought to be proportioned to the end.... [T]here ought to be no limitation of a power destined to effect a purpose.”55 He wanted the Constitution to be a flexible document: “There ought to be a capacity to provide for future contingencies.”56 Making another critical distinction, Hamilton denied that the federal government would retain an exclusive taxing power. States would have concurrent power to tax their citizens because the Constitution “aims only at a partial Union or consolidation.”57 The sole exception would be the federal monopoly of customs duties, then the principal source of revenue and the leading source of existing tensions and inequities among the states.
At moments, it seems clear that while scribbling The Federalist, Hamilton was daydreaming about becoming treasury secretary. In number 35 he wrote, “There is no part of the administration of government that requires extensive information and a thorough knowledge of the principles of political economy so much as the business of taxation.”58 In the following essay, he inserted a statement with a patently autobiographical ring: “There are strong minds in every walk of life that will rise superior to the disadvantages of situation and will command the tribute due to their merit, not only from the classes to which they particularly belong, but from the society in general. The door ought to be equally open to all.”59 At the same time, Hamilton thought that a Congress composed mostly of landowners, merchants, and professionals could legislate effectively for the masses.
On January 11, 1788, Madison began to cover the general structure of the new union in a string of twenty essays, starting with number 37. Hamilton, now back in Albany, may have pitched in on the final ten. Until this point, Hamilton had scarcely said anything in The Federalist that he had not said repeatedly since his earliest wartime letters or in his “Continentalist” essays. Only as he touched upon such topics as elections in the later essays did he diverge from his own preferred beliefs, and even then he surrounded new positions with old arguments. Those who criticize Hamilton for having engaged in a propaganda exercise in The Federalist must reckon with the tremendous continuity that connects the Federalist essays to both his earlier and
later writings.
As Madison reviewed the “compound character” of the federalist system in number 37, subtle but fateful differences with Hamilton began to emerge—differences that were to be enlarged over time. In number 41, Madison expressed reservations about standing armies and the onerous taxes needed to sustain them and was cynical about the corruption of the British Parliament. (In other places, however, he sounded like even more of a raging Anglophile than Hamilton.) Madison faulted the Articles of Confederation for their vague language and savored the Constitution’s precision, which he hoped would circumscribe federal powers. Hamilton, in contrast, capitalized on what he saw as the document’s general and elastic language to expand government power.
By numbers 59–61, Hamilton, returned to New York from Albany, took up the subject of congressional elections and regulations. Though identified with northern mercantile interests, Hamilton emphasized that in an agricultural society “the cultivators of land...must upon the whole preponderate in the government.”60 In Federalist number 60, he offered a vision of a House of Representatives dominated by landholders but also marked by diversity. Hamilton was careful to stress that, for the foreseeable future, manufacturing would play an auxiliary role in a predominantly agricultural society.
The five essays (62–66) on the Senate embody the The Federalist’s most collaborative section, with Madison handling the first two, Jay reappearing to take number 64, and Hamilton winding up the two concluding numbers. In number 62, Madison stated frankly that the balance struck between proportional representation in the House and equal representation in the Senate had come from political compromise, not ideal theory. In the next essay, he defended the small, elite Senate against charges that it would grow into “a tyrannical aristocracy” and sounded Hamiltonian when he stated that “liberty may be endangered by the abuses of liberty as well as by the abuses of power.... [T]he former rather than the latter is apparently most to be apprehended by the United States.”61 With this parting shot, Madison went back to Virginia in March to defend the Constitution in his home state. Once Jay wrote number 64 on the treaty powers of the Senate, Hamilton singlehandedly penned the next twenty-one essays (65–85), handling parts of the Senate as well as the entire commentary on the executive and judicial branches.
In his superb account of Senate impeachment powers in number 65, Hamilton visualized, with exceptional prescience, the problems that would occur when passions inflamed the country and partisanship split the Senate over an accused federal official. Since the impeached president or federal judge would remain liable to prosecution if removed from office, Hamilton showed the Constitution’s wisdom in having the chief justice alone preside over the trial instead of the entire Supreme Court. The Senate would benefit from the chief justice’s judicial knowledge while keeping the high court free for any future decisions related to the case. Acknowledging imperfections in the impeachment process, Hamilton stressed that the Constitution had produced the best compromise available: “If mankind were to resolve to agree in no institution of government until every part of it had been adjusted to the most exact standard of perfection, society would soon become a general scene of anarchy and the world a desert.”62
In turning to the executive branch (67–77), Hamilton wrote about the part of government in which he had the keenest interest and which he considered the engine of the entire machinery. As he phrased it in number 70, “Energy in the executive is a leading character in the defintion of good government.”63 He mocked exaggerated fears of the powers bestowed on the president and said that in some respects he would have fewer powers than New York’s governor. Hamilton drew freely on statements he had made at the Constitutional Convention to distinguish his “elective monarch” from a king. The British king, he pointed out, was hereditary, could not be removed by impeachment, had an absolute veto over the laws of both houses, and could dissolve Parliament, declare war, make treaties, confer titles of nobility, and bestow church offices. It clearly exasperated Hamilton that critics were drawing facile comparisons between the American president and the British king.
In his essays on the need for executive-branch vigor, Hamilton continually invoked the king of England as an example of what should be avoided, especially the monarch’s lack of accountability. Every president “ought to be personally responsible for his behaviour in office.”64 In number 71, Hamilton presented his theory of presidents as leaders who should act for the popular good, even if the people were sometimes deluded about their interests. Hamilton made the argument that the separate branches of government were not intended only to curb one another but to afford independence to one another: “To what purpose separate the executive or the judiciary from the legislative if both the executive and the judiciary are so constituted as to be at the absolute devotion of the legislative?”65
Deviating from his convention speech, Hamilton now touted the merits of a four-year term for the president, who could run for additional terms. This would give occupants of the office an incentive to perform well and “secure to the government the advantage of permanency in a wise system of administration.”66 In reviewing presidential powers (73–77), Hamilton praised the presidential veto as a way to contain the legislature and offset popular fads. Where populists worried that the executive branch might overwhelm the legislature, Hamilton had a contrary fear of excessive legislative power. In number 74, he made a moving appeal for the presidential power to issue pardons: “Humanity and good policy conspire to dictate that the benign prerogative for pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.”67 In this passage, he sounded reminiscent of the young Colonel Hamilton who pleaded with General Washington to show mercy for Major John André.
Notwithstanding his preference for a strong president, Hamilton applauded many checks on presidential power. To protect the country from a president corrupted by foreign ministries, Hamilton approved the provision requiring presidents to obtain two-thirds approval of the Senate to enact treaties. In a similar vein, he approved the presidential power to appoint ambassadors and Supreme Court judges, subject to Senate confirmation, which would check “a spirit of favoritism in the President.”68 In The Federalist Papers, Hamilton was as quick to applaud checks on powers as those powers themselves, as he continued his lifelong effort to balance freedom and order. In the final analysis, he thought that the federal government, not the states, would be the best guarantee of individual liberty.
In the last eight essays of The Federalist (78–85), written for the conclusion of the second bound volume, Hamilton dedicated the first six to the judiciary. Throughout his career, he showed special solicitude for an independent judiciary, which he thought the most important guardian of minority rights but also the weakest of the three branches of government: “It commands neither the press nor the sword. It has scarcely any patronage.”69 He was especially intent that the federal judiciary check any legislative abuses. In number 78, Hamilton introduced an essential concept, never made explicit in the Constitution: that the Supreme Court should be able to review and overturn legislation as unconstitutional. At Philadelphia, delegates had concentrated on the question of state versus federal courts, not whether courts could invalidate legislation. Here, Hamilton bluntly affirmed that “no legislative act...contrary to the constitution can be valid,” laying the intellectual groundwork for the doctrine of judicial review later promulgated by Supreme Court justice John Marshall.70 When Hamilton wrote these words, state judges had taken only the first tentative steps in nullifying laws passed by their assemblies.
Hamilton revered great judges and in the next essay pondered how the most highly qualified people could be recruited and retained by the courts. He argued for adequate salaries and against both age limits and the power to remove judges, except by impeachment. He then outlined the s
cope of the courts’ jurisdiction and the separate bailiwicks of the Supreme Court and the appellate courts. In number 82, Hamilton tackled the vexed issue of how powers would be divided between state and federal courts, insisting that, in the last analysis, judicial power must rest with the federal courts. Though a believer in trial by jury, he dissented in the next essay from the fanciful idea that juries were universally applicable in civil as well as criminal cases. He was particularly alarmed at the prospect that juries would sit in cases involving foreign relations, where their ignorance of the law of nations might “afford occasions of reprisal and war” from the countries affected.71
Many foes of the Constitution were demanding a bill of rights as a precondition for ratification. In number 84, Hamilton said this would be superfluous and even potentially hazardous: “For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained when no power is given by which restrictions may be imposed?”72 He also thought the Constitution had already guaranteed many rights ranging from habeas corpus to trial by jury. Where Hamilton often seems oracular in The Federalist, he was frightfully wide of the mark when it came to a bill of rights, one of his real failures of vision. We should note that in Federalist number 84, he supported with enthusiasm the Constitution’s ban on titles of nobility: “This may truly be denominated the cornerstone of republican government, for so long as they are excluded, there can never be serious danger that the government will be any other than that of the people.”73