Politically Incorrect Guide To The Constitution (Politically Incorrect Guides) (9 page)

As we have already seen, Hamilton
frankly avowed his monarchism in the Philadelphia Convention, while
Madison was just as clear in his desire to see the Confederation replaced
by a national government. John Jay, let us add, found this company perfectly comfortable. Hamilton, in fact, wanted Jay as a New York delegate
to the Convention, but Governor Clinton and the majority of the New
York legislature regarded Hamilton, Jay, and the Federalist project with
suspicion. Clinton and his supporters guessed, rightly, that the Hamiltonian Federalists had more in mind than modestly augmenting the power
of the Confederation Congress.

Reading The Federalist, one can arrive at either of two conclusions
regarding its authors: either they were very confused, or they were
attempting to obfuscate. In Madison's case, in particular, there is just cause
for arriving at either conclusion. For example, his justifications of the
structure of the Senate in Federalist 62 and 63 directly contradict his more
candid-and keenly negative-appraisal of that body in private correspondence with Jefferson, while his confusion about federalism in number 39
is consistent with his repeatedly self-contradictory musings on the same
subject in "Notes on Nullification" and other anti-nullification writings
forty years later.

Hamilton, on the other hand, did not have a reputation for tergiversation because he did not deserve one. His was the opposite failing: boundless loquacity, which often amounted to imprudent logorrhea. And if he
was confused in some of his Federalist explications it was because he was honestly confused in his thinking. John Jay was always more diplomatic
than Hamilton, but he also "never told a lie."

A Book You're Not
Supposed to Read

The Authority of Publius by Albert Furtwan-
gler; Ithaca, NY: Cornell University Press,
1984.

Let us consider some of what The Federalist had to say about the nature
of the proposed government. In number 9, Hamilton writes, "The proposed constitution, so far from implying an abolition of the state governments, makes them constituent parts of the national sovereignty, by
allowing them a direct representation in the senate, and leaves in their
possession certain exclusive and very important portions of sovereign
power." Here we have a characteristic Hamiltonian muddle. Where had
a "national sovereignty" come from? The states had been sovereign ever
since establishing their independence (May 15, 1776, for Virginia; July 4,
1776, for the rest). Surely, then, their delegation of certain powers to a
new federal government did not remake the states into components of a nation, any more than the European Union's assumption of some powers
formerly exercised by its sovereign members made Germany, France,
Italy, and the rest parts of a sovereign European nation. Creating a federation made a federation, not a nation. The states would remain sovereign
under the federal Constitution, just as George Nicholas and Edmund Randolph would soon explain to the Virginia Ratification Convention.

Portrait of a Patriot

John Jay (1745-1829) played a leading role in the Revolution, both within New
York and as a New York member (and sometime president) of the Confederation
Congress. He and Alexander Hamilton led the Federalist Party in securing the
Constitution's ratification in New York's ratification convention, partly through their series of newspaper essays, The Federalist. Jay served as the first chief justice of the United States, and during his
tenure on the Supreme Court he negotiated Jay's Treaty with Britain. He next served as governor of
New York under the state constitution of which he had been chief draftsman in 1777. His signal
achievement as governor was signing into law New York's gradual emancipation act, which eventually brought slavery to an end in the Empire State.

In Federalist 23, Hamilton admits that "the circumstances of our country are such, as to demand a compound instead of a simple; a confederate instead of a sole government." He thus admits the distinction between
a federal and a national government. He goes on to say, however, "The
government of the union must be empowered to pass all laws in relation
to its powers. The local governments must possess all the authorities connected with the administration of justice between citizens of the same
state." As Virginia philosopher-statesman John Taylor of Caroline noted,
if sovereignty lies with the states (or with the people of those states), then
the states (or their citizens) will have authority over the federal government, but if the federal government is sovereign, it will in the end have
power over all the states (and the people of those states). (Taylor, it bears
noting, made this point in 1823-long before its truth had been fulsomely
verified by history.)

This point bears reiteration in regard to Federalist 28. There, Hamilton
says, "In a confederacy the people, without exaggeration, may be said to
be entirely the masters of their own fate. Power being almost always the
rival of power; the General Government will at all times stand ready to
check the usurpations of the state governments; and these will have the
same disposition toward the General Government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If
their rights are invaded by either, they can make use of the other, as the
instrument of redress."

In the same essay, Hamilton adds:

The state governments will in all possible contingencies afford
complete security against invasions of the public liberty by the
national authority. Projects of usurpation cannot be masked
under pretences so likely to escape the penetration of select
bodies of men as of the people at large. The Legislatures will
have better means of information. They can discover the danger at a distance; and possessing all the organs of civil power
and the confidence of the people, they can at once adopt a regular plan of opposition, in which they can combine all the
resources of the community. They can readily communicate
with each other in the different states; and unite their common
forces for the protection of their common liberty.

Hamilton concludes that essay by saying, "If the federal army should
be able to quell the resistance in one state, the distant states would have
it in their power to make head with fresh forces.... The people ... are in
a situation, through the medium of their state governments, to take measures for their own defence with all the celerity, regularity and system of
independent nations." Here, Hamilton holds out the prospect of state
resistance to dangerous federal policy as "the last ditch" of free people's
resistance to a runaway federal government. He cannot resist, however,
referring to the federal government as "national," which calls the reader's
attention back to his earlier statements about sovereignty-and leaves the
ground muddled. If the federal government possesses national sovereignty, on what basis can the non-sovereign states ever resist it? Clearly,
Hamilton/Publius's teaching is self-contradictory: insofar as he says that
the federal government is national and sovereign, it is inconsistent both
with what he says about the states' role in the new Union and with what
leading figures in the ratification debate, such as Charles Cotesworth
Pinckney of South Carolina, Edmund Randolph of Virginia, George Nicholas of Virginia, James Wilson of Pennsylvania, and William Cushing of Massachusetts, taught.

In Federalist 31, Hamilton says, "The State governments, by their original constitutions, are invested with complete sovereignty." In number
32, he concedes that the states, after the ratification of the Constitution,
will "retain [the taxing] authority in the most absolute and unqualified
sense; and that an attempt on the part of the national government to
abridge them in the exercise of it, would be a violent assumption of
power unwarranted by any article or clause of its Constitution." Under
the new constitution, he adds, the state governments would retain "all
the rights of sovereignty which they before had and which were not by
that act exclusively delegated to the United States."

A Book You're Not
Supposed to Read

New Views of the Constitution of the United
States by John Taylor of Caroline, edited and
introduced by Kevin R. C. Gutzman; Leesburg, VA: Alethes Press, 2007.

In number 33, interestingly, Hamilton wrote that the final paragraph
of Article I, Section 8 of the Constitutiongiving the government of the United States
power to "make all Laws which shall be
necessary and proper for carrying into Execution the ... Powers vested by the constitu-
tion"-was merely a "tautology or
redundancy." It did not imply that the federal government had any greater powers
than those specifically stated.

How, then, did Hamilton imagine the
Congress and the state legislatures cooperating in areas in which their
jurisdiction overlapped-as it did in regard to taxation? In Federalist 34
he cites the Roman Republic, in which two separate legislative bodies
each possessed the power to annul the acts of the other. Just as we have
become accustomed, in other words, to the necessity of the federal House
and Senate cooperating before either of them can enact its will, so Hamilton said that in the federal system, the state and federal legislatures would each be able to act in its own sphere irrespective of the acts of the
other.

Hamilton hits upon this solution again in number 36: "As neither the
federal nor state governments, in the objects of taxation, can control the
other, each will have an obvious and sensible interest in reciprocal forbearance." The Congress and the state legislatures will each have a
sphere, and within that sphere, each will act as it sees fit. John Taylor, on
this point, agreed with Hamilton, writing that the federal and state legislatures "are co-ordinate, co-equal, and independent, neither being controllable by the other." One could deduce from this, then, that sovereignty
did not lie in either the state governments or the federal government, but
in the people of the several states-though Hamilton missed this logical
implication.

The thinking behind Hamilton's statements that the federal government and the state governments were each to have some sovereignty can
be explained by his preference for the British model of government. In Britain, then as now, Parliament, not the
people, was sovereign. As Sir William
Blackstone had explained in 1765, final
authority in all matters lay in Parliament.
For Hamilton, final authority lay with the
federal government in some issues and with
the state governments in others. He never
seems to have understood the theoretical
change worked by the American Revolution,
which substituted popular sovereignty (authority in the people) for governmental sovereignty (authority in the government). This helps to
account, also, for the divergence between what he said in The Federalist
and what other Federalists more influential in the ratification contest
were saying at the same time.

Portrait of a Patriot