Alexander Hamilton (53 page)

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.”
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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 mostto be apprehended by the United States.”
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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.”
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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.”
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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.”
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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?”
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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.”
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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.”
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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.”
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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.”
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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.
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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 scope 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.
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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?”
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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.”
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In the final essay, number 85, Hamilton reminded readers that the Constitution was not a perfect document and cited Hume that only time and experience could guide political enterprises to completion. It would be folly to imagine that the framers could attain instant perfection. The final lines of
The Federalist
throbbed with high hopes but were also tinged with darkness. On a promising note, Hamilton said, “A nation without a national government is, in my view, an awful spectacle. The establishment of a constitution in [a] time of profound peace by the voluntary consent of a whole people is a prodigy, to the completion of which I look forward with trembling anxiety.”
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If Hamilton had ended on this uplifting note, he would not have been Hamilton. So he closed instead with the ominous warning that “I know that powerful individuals in this and in other states are enemies to a general national government in every possible shape.”
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Thus ended the most persuasive defense of the Constitution ever written. By the year 2000, it had been quoted no fewer than 291 times in Supreme Court opinions, with the frequency of citations rising with the years.

As the excruciating demands of
The Federalist
rendered Hamilton’s life even more sedentary than usual, he was a prisoner of his desk. He had no relief from his labors or time for diversion. Reelected to Congress by the New York legislature on January 22, 1788, he didn’t even have a chance to present his credentials until February 25. That spring, swept up in a political whirlwind, he apologized to Gouverneur Morris for having been incommunicado, saying, “The truth is that I have been so overwhelmed in avocations of one kind or another that I have scarcely had a moment to spare to a friend.”
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Amid his manifold labors, Hamilton kept a careful eye on the pregnant Eliza, who gave birth to their fourth child, James Alexander, on April 14. Eliza spent the summer with her family in Albany, attended by an unexpected visitor: Ann Venton Mitchell.

The Federalist
is so renowned as the foremost exposition of the Constitution that it is easy to forget its original aim: ratification in Hamilton’s home state. Printed in only a dozen papers outside of New York, its larger influence was spotty. In places where it did appear, the verbal avalanche of Hamilton, Madison, and Jay overwhelmed hapless readers. In mid-December, one embattled antifederalist in Philadelphia bewailed the never-ending onslaught of words: “Publius has already written 26 numbers, as much as would jade the brains of any poor sinner…so that in decency he should now rest on his arms and let the people draw their breath for a little.”
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Another antifederalist complained that Publius had “endeavored to force conviction by a torrent of misplaced words.”
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Supporters, however, had a bottomless appetite for the essays, and the authors’ names began to leak out. When Edward Carrington of Virginia sent the first bound volume to Jefferson in Paris, he added, with suspiciously precise guesswork: “They are written, it is supposed, by Messrs. Madison, Jay and Hamilton.”
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