By Nancy Spannaus
June 26, 2019—Historian Kate Brown presented Alexander Hamilton’s the legacy in law to a nearly full house at today’s noontime lecture at the U.S. Treasury Department. The event was part of a regular bimonthly series sponsored by the Treasury Historical Association. Members of the Alexander Hamilton Awareness Society, of which I am one, were also invited to participate, along with Treasury employees.
Dr. Brown’s 50-minute lecture featured three highlights from her 2017 book, Alexander Hamilton and the Development of American Law. Brown said at the outset of her remarks: I hope to convince you that Alexander Hamilton was, first and foremost, a lawyer, who used law as a tool to implement his policy objectives. In so doing, she added, he had a “impactful role” on the development of American law, not only during his lifetime, but far beyond.
This blog summarized Dr. Brown’s earlier presentation on this same subject, which she gave at the AHA Society’s Celebrate Hamilton events in the summer of 2018. I will not repeat that summary, but rather elaborate on aspects of her argument as presented today.
A Hierarchy of Law
Dr. Brown began her discussion by describing Hamilton’s controversial private law practice in support of loyalists who were being discriminated against in the state of New York. Hamilton considered New York State laws such as the Trespass Act (which denied that refugees in an occupied area had the right to use abandoned property with permission of the military authorities) to be a violation of long-standing English law, and the Law of Nations. That denial meant that loyalists who had settled in New York City during the British occupation would be liable for trespass (and substantial payments) now that the occupation had ended.
The Trespass Act was just one of 30 anti-loyalist statutes which had been passed by the Revolutionary government of the states, she pointed out. Others included the Confiscation Act, which said property could be taken from individuals listed as enemies of the state (a bill of attainder), and the Citation Act, which permitted debtors to rewrite their contracted debts.
While Hamilton had a whole host of strategies for dealing with what he considered a violation of due process of law for this loyalist minority–including delays, private petitions, and agitating to change the laws—his fundamental argument, Dr. Brown emphasized, was based on the idea that there is a hierarchy of law. In other words, there are principles of “higher law” which exist and trump inferior law (such as the state statutes). In his major challenge to the Trespass Act (Rutgers v. Waddington), Hamilton won that point of principle.
Of course, Hamilton’s most important objective was to change the law. Through his major campaign of open letters, Hamilton actually succeeded in this objective by the end of the 1780s, thus winning the biggest victory of all: the protection of individual liberties and due process of law.
An Energetic Executive, with Discretion to Act
Dr. Brown’s second example of Hamilton’s legal legacy concerned the role of the Federal Executive, which he insisted must have sufficient power and discretion to be able to purse his Number One goal, the restoration of public credit. Thus, the Executive branch had to be able administer the law in such a way as to reach that objective, even if that meant showing flexibility in the application of the law.
I adequately summarized the particular case which Dr. Brown again reviewed in my post on her previous lecture. That case—one in which a merchant violated the law without fraudulent intent—was resolved by Hamilton by establishing a system of collaboration between the Executive and the Judiciary which was ultimately enacted into law, and lasted well beyond Hamilton’s death. Although some might have seen that collaboration as violating the separation of powers, Hamilton saw it as providing the means of facilitating commerce and trade, when it could be established that no fraudulent intent was involved in technical violation of statutes.
When State Precedence is “Contradictory and Repugnant”
Dr. Brown’s final example concerned the ambiguities of our Federalist system as concerns decisions about when Federal power takes precedence over concurrent powers held by the states. Hamilton had addressed this issue in Federalist No. 32, and insisted that such concurrent powers could be carried out harmoniously, as with the power to tax. In that document, Hamilton reassured New Yorkers, in particular, that they still had the right of taxation. Dr. Brown cited the relevant passage:
An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, EXCLUSIVELY delegated to the United States. This exclusive delegation, or rather this alienation, of State sovereignty, would only exist in three cases: where the Constitution in express terms granted an exclusive authority to the Union; where it granted in one instance an authority to the Union, and in another prohibited the States from exercising the like authority; and where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally CONTRADICTORY and REPUGNANT. (emphasis in original)
It was this section which the opponents of the second Bank of the United States used in the landmark 1819 case McCullough v. Maryland, in order to support Maryland’s right to tax the national bank. Chief Justice Marshall in his decision determined, also citing Hamilton, that such state taxing authority (which includes the ability to destroy) was indeed “contradictory and repugnant” to the purposes of the Union.
Dr. Brown used this example to show the long reach of Hamilton’s legal thinking into shaping the future of the United States. She could have found significant examples reaching up to the Franklin Roosevelt administration, when Associate Justice Benjamin Cardozo cited “the conception of spending power advocated by Hamilton” in his decision upholding the constitutionality of the Social Security Administration.
Video recordings will be made available by the Alexander Hamilton Awareness Society and the Treasury Historical Association.