HAMILTON, ALEXANDER (1755–1804)

Alexander Hamilton, American statesman, member of the Constitutional Convention (1787), coauthor of the federalist, first secretary of the Treasury (1789–1795), and leading member of the Federalist party in New York, was born on the island of Nevis in the British West Indies. He came to New York in 1773 and enrolled in King's College; he served with distinction in the Revolutionary War, from 1777 to 1781 as george washington's aide-de-camp. Hamilton was a leading member of the New York bar before and after he served in President Washington's cabinet.

During the prelude to independence, Hamilton participated in the pamphlet controversies between American Whigs and supporters of Britain. His most important pamphlet, "The Farmer Refuted" (1775), expressed a conventional natural rights philosophy. He asserted that "nature has distributed an equality of rights to every man." He also upheld the right to resort to first principles above and beyond the "common forms of municipal law." He subscribed to the theory of government as a social compact between ruler and ruled (a model used by william blackstone rather than john locke) and, like john adams and thomas jefferson, argued that the British king was "King of America, by virtue of a compact between us and the King of Great Britain."

Hamilton, who by origin was not rooted in any one of the thirteen states, became an early and perhaps the most outspoken advocate of a stronger and more centralized government for the United States. In 1780 he developed a far-reaching program of constitutional reform. First, he pleaded for a vast increase in the power of Congress and asked for a convention for the purpose of framing a confederation, to give Congress complete sovereignty in all matters relating to war, peace, trade, finance, and the management of foreign affairs. Second, he called for a more efficient organization of the executive tasks of Congress. Individuals were better suited than boards of administration (with the possible exception of trade matters), because responsibility was then less diffused; "men of the first pretentions" would be more attracted to these tasks if offered individual responsibility. Hamilton developed his plea for strengthening Congress in "The Continentalist" (1781–1782) in which he revealed his future political program by pointing to the need "to create in the interior of each state a mass of influence in favour of the Foederal Government." As a delegate from New York to Congress (1782–1783), Hamilton criticized the articles of confederation. Only in September 1786 did he succeed having the Annapolis Convention endorse his resolution for calling a convention to meet in Philadelphia in May 1787 "to devise such further provisions as shall appear to them necessary to render the constitution of the Foederal Government adequate to the exigencies of the Union."

Hamilton took a strong stand during that period against New York state legislation discriminating against Loyalists. His "Letters of Phocion" (1784) defended individual rights and the rule of law against "arbitrary acts of legislature," as well as the supremacy of the state constitution over acts of the legislature. As counsel for the defense in the New York case of rutgers v. waddington (1784) Hamilton argued that the New York Trespass Act (1783), which enabled people who had fled New York when British forces occupied the city to recover damages from persons who had held their premises during the occupation, was incompatible with higher law—that of the law of nations, of the peace treaty, and of commands of Congress. The Court did not accept the argument for judicial review, but followed another of Hamilton's arguments: that the legislature could not have meant to violate the law of nations.

At the constitutional convention of 1787, Hamilton was somewhat an outsider for two reasons. First, the other two members of the New York delegation, john lansing and robert yates, opposed a stronger central government. Second, Hamilton's views, presented to the Convention in a five-hour speech on June 18, were extreme on two counts: he advocated the abolition of states as states, favoring a system that would leave them only subordinate jurisdiction; and he advocated tenure during good behavior both for members of the Senate and for the chief executive. He admitted that in his private opinion the British government was "the best in the world." Hamilton's constitutional proposals reflected the idea of "mixed government": the lower house of Congress should be elected on the basis of democratic manhood suffrage, yet the Senate and the President ought to be elected by electors with high property qualifications. A chief reason for Hamilton's "high-toned" constitutional ideas was that "he was much discouraged by the amazing extent of Country"; he feared disruptive tendencies, originating particularly from the larger and more powerful states.

Could his constitutional proposals influenced by the British model still be termed republican? Hamilton held that the standards of republican government were respected as long as "power, mediately, or immediately, is derived from the consent of the people," or as long as all magistrates were appointed by "the people, or a process of election originating with the people." Against later charges of "monarchism," Hamilton replied that his plan submitted at Philadelphia was conformable "with the strict theory of a Government purely republican; the essential criteria of which are that the principal organs of the Executive and Legislative departments be elected by the people and hold their offices by a responsible and temporary or defeasible tenure."

Though Hamilton absented himself during much of the Convention's work, he signed the Constitution on September 17, 1787, as the only member from New York, indicating that he saw only an alternative between anarchy, on the one hand, and "the chance of good to be expected from the plan," on the other.

During the struggle for ratification of the Constitution (1787–1788), Hamilton's two major achievements were the publication of The Federalist essays and his part in the New York ratifying convention at Poughkeepsie. He organized and coordinated publication of The Federalist, which appeared over the signature of "Publius" from late October 1787, to late May 1788. Of the eighty-five essays, Hamilton wrote fifty-one. In them he developed several major themes, some of which also recurred in his speeches in the New York Ratifying Convention.

Hamilton proved the utility of the union to America's political prosperity chiefly by painting a somber picture of international rivalry, ever ready to exploit dissensions among the states; he raised the specter of a disrupted Confederation, of war between the states, and of the rise of partial confederations, the most likely and most dangerous contingency being the formation of a northern and a southern confederacy. Hamilton then demonstrated the insufficiency of the Confederation to preserve the union by pointing to the necessity that the federal government, to be effective, "carry its agency to the persons of the citizens." He envisaged a broad scope for the powers granted to the federal government. The powers needed to provide for the common defense of the members of the Union "ought to exist without limitation." A vast scope for the federal power to regulate commerce and to provide for the financial needs of the Union, and the maxim that "every power ought to be in proportion to its object, " foreshadowed Hamilton's later constructions of the Constitution while he directed the Treasury. The Constitution ought to allow a capacity "to provide for future contingencies," which were illimitable.

Hamilton's most important contribution to the analysis of institutions and procedures is his discussion of the executive branch in The Federalist #67–77. Believing that efficient administration was the very core of good government, he supported an individual executive who would be less likely than a plural executive "to conceal faults, and destroy responsibility." The office of chief magistrate, if not shackled by brief duration or restrictions on reeligibility, might attract men imbued with "the love of fame, the ruling passion of the noblest minds" (#72).

Hamilton's analysis of the federal judiciary is best known for the justification of judicial review in The Federalist #78. There Hamilton tried to refute the argument presented by the Anti-Federalist "Brutus" that judicial review implied judicial supremacy. Hamilton invoked the superiority of the will of the people as declared in the Constitution and the duty of the judges to be governed by that will. A constitution "is in fact, and must be regarded by the judges as fundamental law." His statement in The Federalist #81 "that the Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution" is similarly significant.

Hamilton argued against a federal bill of rights in The Federalist #84. His main point that bills of rights were not needed in constitutions founded upon the power of the people is rhetorical; it is contradicted by his own admission that the Constitution as drafted did in fact contain a rudimentary bill of rights, including provisions on habeas corpus, the prohibition of bills of attainder and ex post facto laws and the guarantee of trial by jury in criminal cases.

The office of secretary of the Treasury, coveted by Hamilton more than any other, afforded him the opportunity to initiate policies for strengthening the public support, and particularly the support of the moneyed community, for the federal government. He considered leadership not only as compatible with, but incumbent on, executive office, and once spoke of the "executive impulse." He seems to have considered his office as that of a prime minister on the British model. Hamilton's major effort and achievement was the establishment of public credit for the new federal government. His measures included funding the foreign and domestic debt at par, assumption of the revolutionary state debts, creation of the Bank of the United States, and levying of federal excise taxes; his most important policy papers were his Report on Public Credit (January 1790) and his Report on the National Bank (December 1790). As a program for the future, Hamilton, in the Report on Manufactures (1791), envisaged protective tariffs, aid for agriculture, and internal improvements. Increasingly, his policies encountered and provoked opposition from Thomas Jefferson, james madison, and the Republican party forming around them.

There were two great constitutional issues on which Hamilton spoke out during his membership in Washington's cabinet: the constitutionality of the proposed Bank of the United States (1791), and the constitutionality of the President's proclamation of neutrality (1793). In the dispute on the bank, both Attorney General edmund randolph and Secretary of State Jefferson denied that the United States had the power to incorporate a bank, this power not being enumerated in the catalogue of powers granted to Congress by the Constitution. Hamilton, in his "Opinion on the Constitutionality of an Act to Establish a Bank," developed the theory of implied powers granted by the Constitution, arguing that implied powers as well as express powers were in fact delegated by the Constitution; he also asserted the existence of such resulting powers as those resulting from the conquest of neighboring territory. Grants of power included means to attain a specified end, the criterion of constitutionality being met if the end was specified in the Constitution. To attain the objective of the "effectual administration of the finances of the United States," there was no "parsimony of power." Also, Hamilton argued that the necessary and proper clause ought to be construed "to give a liberal latitude to the exercise of specified powers" rather than construing the word "necessary" restrictively, as had Jefferson. These arguments were later adopted by the Supreme Court in mcculloch v. maryland (1819), and still guide the interpretation of Congress's legislative powers.

Hamilton's second major constitutional pronouncement concerned the power of the executive to issue a declaration of neutrality. In the first of his "Pacificus" articles justifying the President's action against Jeffersonian criticism, he presented an extremely broad construction of Article II. The grant of "executive power" (singular) as opposed to the "powers" (plural) granted to Congress meant a general grant of power; the enumeration of specific powers of the executive was merely demonstrative, "intended by way of greater caution." Hamilton also argued that the executive conducted the nation's foreign policy and that his duty obligated him to execute the laws including the law of nations.

During the years after his retirement from the Treasury, Hamilton, as leading Federalist politician, yet without federal office except for a brief spell as Inspector of the Army (1798–1800), on several occasions commented on constitutional matters.

Controversy over jay ' streaty (1794) involved constitutional issues between the executive and the House of Representatives. Was the President bound to submit papers pertaining to the treaty negotiations to the legislature? Did the treaty power, jointly exercised by President and Senate, oblige the legislature to appropriate the needed funds without any liberty of exercising legislative discretion? Hamilton denied any obligation on the part of the President to transmit papers, arguing that such a transmittal would "tend to destroy" the confidence of foreign governments in the "prudence and delicacy" of the government. He further argued that a treaty could obligate the legislature to appropriate funds.

Representing the federal government in hylton v. united states (1796), his only appearance as counsel before the Supreme Court, Hamilton argued that a federal tax on carriages (levied by Congress in 1794 on Hamilton's recommendation) was an excise rather than a direct tax, and so did not have to be apportioned among the states according to the census. Hamilton argued that as an excise the tax was constitutional, and the Court upheld his view.

In 1796 Hamilton was approached for a legal opinion on the Yazoo land grant affair in Georgia. An act of the Georgia legislature had repealed an earlier act providing for the sale of vast tracts of land, the repeal having been prompted by charges of fraud in the original transaction and a political changeover in the legislature. Hamilton argued that Article I, section 10, of the Constitution, prohibiting the states from passing any law "impairing the obligation of contracts," applied not merely to contracts between individuals but to contracts between states and individuals as well, and that a land grant was a contract covered by the contract clause. Hamilton's views became the basis of the Supreme Court's decision in fletcher v. peck (1810).

When New York State election results in the spring of 1800 made it virtually certain that the state legislature would elect presidential electors favoring Jefferson as President, Hamilton suggested that Governor john jay call the outgoing legislature into special session to elect anti-Jefferson electors. Hamilton believed that it "is easy to sacrifice the substantial interests of society by a strict adherence to ordinary rules." Jay rejected this proposal, which shows Hamilton's readiness to neglect, in cases he considered extraordinary crises or emergencies, "ordinary rules." Hamilton approved, incidentally, the louisiana purchase.

Although not technically concerning the Constitution, Hamilton's defense of freedom of the press in people v. croswell (1804) deserves notice. Hamilton was counsel for the appellant before the high court of New York, the appellant having been convicted of libel for publishing an anti-Jefferson piece. Hamilton's two main points, based on the successful plea of Andrew Hamilton in zenger ' s case (1735), were that truth of an alleged libel should be admitted as evidence and that juries, in libel cases, ought to decide both on fact and on law. The Court divided and thus the conviction was allowed to stand, though no sentence was passed. State legislation to give effect to Hamilton's points was enacted soon afterward.

Hamilton's understanding of the federal Constitution was informed by his vision of the United States as one nation rather than thirteen states, and also by his conviction that the United States constituted one nation among many nations in a state of permanent rivalry. In his interpretation of the Constitution, three points stand out: the broad construction of federal powers as opposed to state powers; the broad construction of executive powers; and the doctrine of judicial review.

Gerald Stourzh
(1986)

Bibliography

Cooke, Jacob Ernest 1982 Alexander Hamilton. New York: Scribner's.

Goebel, Julius, Jr. , et al., eds. 1964–1980 The Law Practice of Alexander Hamilton: Documents and Commentaries. 4 Vols. New York: Columbia University Press.

Mitchell, Broadus 1957–1962 Alexander Hamilton. 2 Vols. New York: Macmillan.

Rossiter, Clinton 1964 Alexander Hamilton and the Constitution. New York: Harcourt, Brace.

Stourzh, Gerald 1970 Alexander Hamilton and the Idea of Republican Government. Stanford: Stanford University Press. Syrett, Harold E. et al., eds. 1961–1978 The Papers of Alexander Hamilton. 26 Vols. New York: Columbia University Press.