To Love America Well

With this I end with thanks a month-long stint as a Law and Liberty blogger. It’s been great fun, even with the distractions that came from pushing my book, The Once and Future King: The Rise of Crown Government in America.

The book’s thesis is that, from an admirable patriotism and a less attractive ignorance of history, American libertarians do not adequately defend liberty.

We are all patriots first and philosophers second—and that is just as it should be. For American theorists, patriotism means elevating people such as James Madison to the pantheon of political philosophy. The British have Hume and Burke, the French have Rousseau and Tocqueville—and the Americans have Madison and Hamilton. To be sure, they’re not mediocrities. But then they’re not the people who made the deals that produced the Constitution, or whose beliefs informed its content.

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The Myth of Constitutional Science

Kevin D. Williamson has posted an excellent takedown at National Review of a National Journal assault on the Constitutional regime. This latter piece, a polemic by Alex Seitz-Wald, argues that the founding document, while innovative in its time, no longer reflects humanity’s best constitutional erudition. Williamson’s critique is definitive—he notes, among other points, that the regime is not defective simply because it has failed to produce results in accordance with a critic’s proclivities—but I would amplify one point. Seitz-Wald argues for a sort of latter-day constitutional technocracy arising from science and divorced from experience that describes neither what happened at Philadelphia nor that for which any political society ought to wish today.

Seitz-Wald writes: “What was for the Founders a kind of providential revelation—designing, from scratch, a written charter and democratic system at a time when the entire history of life on this planet contained scant examples of either—has been worked into science.” Actually, the entire history of planetary life contained the British constitution, which the convention delegates much admired, and, more important, upwards of a century-and-a-half of uniquely American experience with self-government from which constitutional institutions evolved.

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The Constitution is a Bill of Rights

My 10-year-old, fruit of my own loins, came home from fifth grade on Constitution Day to announce that his teacher could no longer demand his homework because the Fourth Amendment entitled him to be “secure in his documents.” This, like all sensitive situations, was to be handled with a degree of delicacy: interest in the Constitution to be celebrated, fallacies about it to be clipped before flowering.

“Did you read the Constitution in school?’

“Yeah.” Pause. “Well, we read the Bill of Rights.”

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Making the Supreme Court Safe for Democracy

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This next conversation is with Joshua Hawley, a former clerk to Chief Justice John G. Roberts, Jr., and an associate professor of law at the University of Missouri, about the arc of power exercised by the Supreme Court since the passage of the 14th Amendment. In one sense, we understand directly what the Antifederalist Brutus once opined about its potentially unlimited powers. The Court, Brutus informed, would be the most dangerous branch because its judges “are independent of the people, of the legislature, and of every power under heaven.” Of course, criticisms of the Court’s activism are now part of our political discourse. Indeed, how could they not be given the Court’s performance in any number of decisions?

But where does a revival of a limited judiciary begin? Less noted amidst talk of judicial methodology and interpretation that fills our discourse on constraining the judiciary is that our written Constitution is rooted in the principle of self-government and is, ultimately, the people’s document to be interpreted by their voices and practices. Its political structural principles of federalism and separation of powers seem to commend a competitive politics that is largely free of substantive judicial intervention. So, how to get there from here? For that, you will need to listen to Hawley discuss several ways a more targeted focus on self-government might challenge the Court’s self-understanding of its expansive powers.

Greg Weiner responds to Stephen Knott and George Thomas

Don’t miss Greg Weiner’s reply in the Liberty Forum section to separate responses by Stephen Knott and George Thomas to his essay, “Congress and Deliberation in the Age of Woodrow Wilson: An Elegy”.

Herewith, an excerpt:

[F]or every instance of presidents acting alone, one can offer others of presidents acting in consultation with Congress according to the constitutional model.  James K. Polk lined up troops on the Mexican border, observed that a state of war already existed, but nonetheless asked Congress for a declaration.  Lincoln, so beloved of devotees of Presidential prerogative, repeatedly asked Congress to ratify what he had extra-constitutionally done.  Perhaps some of the excesses attributed to President Bush were not unprecedented, as Steve notes in his book, even though I would argue the difference lies in reclassifying them as rules rather than as exceptions.  In either case, the fact that other presidents engaged in similar practices does not seem to me to be a defense of them.  On the whole, the examples Steve provides do not constitute either the sole historical pattern or, crucially, an argument that presidents properly act unilaterally in these ways.

Next, some of Knott’s illustrations seem more complicated than his presentation here.  Yes, Washington issued a Neutrality Proclamation, but this was hardly an uncontroversial constitutional act.  Moreover, when juries rejected his Administration’s attempt to try people for violating it, he was compelled to go to Congress for legislative authority to back it up.  Similarly, a miffed Washington did indeed refuse ever to return to the Senate for advice and consent in person after doing so on the Indian treaty, but this was because the Senate—which then had constitutional kishkes—irritated him by refusing merely to accede quickly to his wishes.  Washington reasonably withheld documents pertaining to the negotiation of the Jay Treaty; it is far more difficult to see him simply circumventing the Senate by reclassifying it as an “executive agreement,” as for example, President Bush did in concluding an agreement with the government of Iraq. 

Throughout Knott’s analysis, it seems to me there is a danger—see Burke on this point—of mistaking exceptions for rules.  Jefferson intended the Louisiana Purchase to be the former—a big exception, to be sure, historic in scope, but one committed over grave constitutional reservations, surely not intended to set a precedent.

Alexander Hamilton: Switzerland or the Caribbean, Anyone?

McCraw uses the  immigrant experience to explain in part the development of a national perspective (see here and here for the 1st 2 installments in this series). Being originally outsiders, immigrants could see the forest for the trees while many, if not most of their native born friends were freighted with the prejudices of particular states. (363) It was this, combined with Hamilton’s and Gallatin’s natural brilliance, McCraw contends “that enabled them to envision and then to execute the responsible deployment of rootless capital in the forging of a new economy.” (326)

Looked at from this perspective, McCraw understandably connects only partially to his subjects pre-American experiences, and then more for Hamilton than Gallatin. Much of the former’s sense of urgency and impatience stemmed, as he notes, from Hamilton’s youth on the island of Nevis: “He knew from his boyhood that things could fall apart on short notice.” (49)

The Caribbean was not the most stable region politically. Hamilton’s own French Huguenot background through his mother,  and his father’s origins in Scotland, testify to the imperial seesaw that characterized the geopolitical reality of the islands. Yet for Gallatin, he misses a similar opportunity.

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Alexander Hamilton and the Politics of Impatience (and Immigrants): Part II

So returning to Thomas McCraw’s The Founders and Finance, McCraw’s interpretive concept around which he builds his narrative is the idea of the “immigrant,” but not just any immigrant. Rather, he has highlighted the traits of a select few: those with commercial and financial experience and understanding. This group, he points out, had particular facility with numbers. They were at home with account books. They understood commercial instruments. They could handle all manner of complex transactions.

Robert Morris, Alexander Hamilton and Albert Gallatin were exemplars of this type. But aside from their technical proficiencies, McCraw finds one further trait to be of paramount importance: a national perspective on their adopted homeland. (363) And among this select few, it is Hamilton who takes the lead, rising to the level of brilliance.

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Alexander Hamilton and the Politics of Impatience: Part I

Editor’s note: Occasioned by Thomas McCraw’s The Founders and Finance: How Hamilton, Gallatin, and Other Immigrants Forged a New Economy, this is the first post in a series by Liberty Fund Senior Fellow Hans Eicholz that will explore the contrasting visions for the early American republic in the financial, economic, and foreign policy thinking of Alexander Hamilton and Albert Gallatin. Stay tuned for further developments.

The Founders and FinanceThomas McCraw has given us a compelling portrait of two major figures at the outset of American financial and economic history in The Founders and Finance.  His primary aim is to draw out their similarities—their foreign origins, their experiences in commerce, their capacity to see the big picture of American nationhood—but I was struck more by their striking dissimilarities.

Where Albert Gallatin aspired initially to commercial success; Hamilton very early determined on a political career. Where Gallatin felt somewhat awkward on the political stage, Hamilton thrilled at the prospects of a public career and a public reputation. Where Gallatin learned to roll with the political punches of a diverse and rollicking republic (adapting policies to commercial and political realities), Hamilton formulated a clear, even unitary conception of where America needed to go and what he needed to do to get it there.

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Ratifying the U.S. Constitution

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This next edition of Liberty Law Talk is a discussion with John Vile about his new book, The Writing and Ratification of the U.S. Constitution: Practical Virtue in Action. Our discussion, chronologically and philosophically, retraces the dramatic story of the Founders’ Constitution. In four parts, we talk about the failing of the Articles of Confederation, the need to reground republican government on constraints and diffusions of power given the governing weaknesses of many state governments, arguments and contests among major and lesser known figures at the Philadelphia Convention, and the often overlooked state ratifying conventions where the Constitution had to prove itself to delegates highly critical of the new powers it assumed.

Understanding Alexander Hamilton

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The next episode of Liberty Law Talk is a discussion with Michael Federici about his new book, The Political Philosophy of Alexander Hamilton. Federici attempts to get beyond the mountains of secondary material on Hamilton and the regnant opinions that he was a monarchist, an elitist, or a proto-nationalist thinker. Federici’s goal, and the point of this podcast, is to understand this American founder as he understood himself and his purposes within the American constitutional realm. Our conversation focuses on Hamilton’s overall political philosophy, but also tries to understand his Christian anthropology,  his constitutionalism, political economy, and foreign policy.