In Novus Ordo Seclorum: The Intellectual Origins of the Constitution (1985), the historian Forrest McDonald underlined how conscious America’s Founders were of what McDonald called “The Rights of Englishmen.” McDonald especially had in mind the link made by many prerevolutionary Americans between liberty and property. But McDonald went on to stress how British constitutional arrangements, legislation, and common law shaped the same Americans’ use of their property and liberties during the colonial period to a greater extent than they perhaps realized.
The process of ordering freedom is never simple. Formally ratifying a constitution isn’t the end of the process. Articles and clauses need interpretation, ambiguities necessitate clarification, disputes require adjudication, and governmental structures giving effect to the constitution’s purposes must be developed.
Few of America’s Founders understood this better than Alexander Hamilton. If there is anything his admirers and critics agree upon, it is the singlemindedness with which Hamilton pursued his objective of vesting the new republic with a garb he considered worthy of a modern sovereign nation.
Hamilton’s project is usually portrayed as implemented through his political writings, advice tendered to President George Washington, and critical pieces of financial and economic legislation. Kate Elizabeth Brown’s Alexander Hamilton and the Development of American Law (2017), however, highlights the extent to which Hamilton used British legal traditions and America’s federal and state courts to achieve many of his aims. In doing so, Brown argues, Hamilton revealed himself not just “as a constitutional strategist” of the first order but also as a conservative innovator—one less nationalistic than is often supposed.
Continuity Amidst Change
As Brown describes it, Hamilton’s legal expertise proved especially relevant as he pursued five goals. These were: establishing a robust federal judicial power, enhancing federal executive power, creating a commercial republic, protecting the federal government’s fiscal powers, and securing basic liberties such as due process, trial by jury, and press freedoms.
There were, Brown states, two primary legal sources on which Hamilton drew to realize these ends. The first of these was Anglo-American common law. Among other things, common law emphasizes judges reflecting on judicial precedents to apply established principles consistently across time to address unresolved questions, especially when legislation is ambiguous or silent on the matter under consideration.
Yet common law was in Hamilton’s time (and ours) more complicated than this. Brown underscores that the common law to which Hamilton looked was “a centuries-old amalgamation of homegrown English and, later American, colonial law that also incorporated elements borrowed from the civil, canon, and natural law traditions.”
By Hamilton’s time, English and Scottish case law had become further overlaid by Enlightenment and modern natural law emphases. This added up to a remarkably cosmopolitan set of legal assets on which American lawyers such as Hamilton could draw. In Hamilton’s case, this was supplemented by his extensive personal knowledge of classical, Christian, natural law, and Enlightenment sources.
The second reference point for Hamilton, Brown maintains, was the British constitutional tradition. Hamilton was an unabashed promoter of Britain’s post-Glorious Revolution constitutional arrangements at a time when many Americans were suspicious of anything associated with Britain. Hamilton, by contrast, saw this heritage as the basis for what Brown calls “a restorative approach to the American constitutional system.”
It wasn’t that Hamilton wanted to replicate Britain’s precise constitutional arrangements or transfer holus bolus the content of British common law to the United States. Rather, he used these traditions in an instrumental fashion—almost like a legal toolbox—to realize a distinctive vision for the United States. Therein lies, Brown proposes, Hamilton’s method of conservative innovation through the law.
Creating a Federal Magistracy
This approach manifested itself, according to Brown, in Hamilton’s efforts to adapt the American experiment to the legal doctrine of concurrence. Brown acknowledges that Hamilton never used the term “concurrent” to describe his effort to harmonize shared federal and state powers such as taxation. Nonetheless, Brown assembles an impressive case to argue that Hamilton used British constitutionalism to establish what amounted to a functional concurrence between the executive and judicial branches. She describes these arrangements as a “federal magistracy.”
British constitutionalism, Brown points out, was characterized by a unified sovereignty that gave expression to distinct executive, judicial, and lawmaking functions. The separation of powers is, of course, central to the very idea of modern constitutionalism. But in Britain’s case, separation never meant that the three branches could not work together. Their respective jurisdictions were “inseparably interwoven” in theory and in practice. The monarch, parliament, and magistrates all exercised elements of legislative, judicial, and executive authority, albeit to different degrees.
Against this background, Brown holds that Hamilton was less interested in aggressively consolidating power in a nascent federal government than in “unifying the workings of the nation’s various jurisdictions through the sovereign people’s federal constitution.” As Treasury Secretary, for example, Hamilton advanced legal cases designed to elicit clarifications of constitutional law from the federal judiciary: so much so that Brown claims “much of the Supreme Court’s reasoning filtered up from the processes established in the Treasury.”
Hamilton’s immediate object was to help the Constitution’s abstract provisions give rise to good governance. He especially had in mind a harmonization of the discretionary powers and administrative responsibilities of the executive and the judiciary, thereby resulting in arrangements analogous to the British constitution. This balancing and mixing of judicial oversight and executive prerogative arose, Brown demonstrates, from a coordination between the two branches fostered by Hamilton and his collaborators in the executive and judiciary from the beginning of his tenure as Treasury Secretary.
This brings us to the most controversial of Brown’s arguments: that Hamilton was less a proto-nationalist centralizer of power and far more what she calls a “small f” federalist.
Federalist by Name, Federalist in Practice
There’s no question that Hamilton wanted to establish and increase federal power. But, Brown insists, this is only part of Hamilton’s influence on American constitutionalism’s development. Hamilton was not concerned with reducing the states’ retained powers. Instead, he wanted to sustain the sovereignty of the states in the context of the new national sovereignty that had been ratified by those same states. From Brown’s standpoint, the doctrine of concurrence is once again key to understanding Hamilton’s strategy as he sought to give form to the federalism from which his party took its name.
Hamiltonian concurrence worked to place what Brown calls “a protective bubble” over federal and state powers. It did so by concurrently defining, maintaining, and exercising the powers delegated to federal institutions and the powers retained by the states. The establishment of federal taxing powers, for instance, need not infringe preexisting state taxing powers. On the contrary, Hamilton thought that state governments and the federal government could work together to secure state and national interests. In fact, Brown writes, “the Confederation-era Hamilton who scorned state power evolved into a (small-f) federalist statesman who recognized the states’ potential to advance the nation’s policy-objectives.”
A good example is Hamilton’s approach to economic policy. Earlier than most Founders, Hamilton always understood that attracting foreign capital and the development of what we would call a capitalist economy was essential for the republic’s long-term prosperity. The states, he recognized, “were concurrent spheres in which to attract foreign investment, to sell land and adjudicate title disputes, and to encourage commercial ventures within their boundaries.”
It was not so much a question of fostering a “competitive federalism.” It was a matter of Hamilton’s recognizing that the states possessed “formidable powers to accomplish nationally oriented statecraft.” Examining Hamilton’s private legal practice, Brown shows how Hamilton used his involvement in cases heard by New York state courts to transform laws concerning mortgages and creditor-debtor relations in ways that made long-term foreign and domestic investment easier throughout New York. What’s important is that Hamilton regarded such improvements as complimenting what he had worked to achieve at a federal level as Treasury Secretary.
Brown’s disputation of the widespread view of Hamilton as the consummate nationalist will surely be contested by many of Hamilton’s contemporary detractors and enthusiasts. Two hundred thirteen years after Hamilton’s death at the hands of Vice-President Aaron Burr, the very mention of Hamilton’s name still sparks ardent debates and disagreements among conservatives. Hamilton appears destined to be as controversial a figure in our time as he was during his own.
It is, however, part of Brown’s achievement that she brings a dispassionate approach to evidence and a careful attention to the historical background of ideas to what will be unending disputes about someone whose powerful mark remains on America today. Brown’s book will hardly be the last word on Alexander Hamilton and the law. Nevertheless, it contributes greatly to our understanding of the thought and legacy of a complicated, flawed, occasionally reckless but, in my view, often very great man.