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CHAPTER 1
Hamilton's Constitutional Republic
There is something noble and magnificent in the perspective of a great Federal Republic, closely linked in the pursuit of a common interest, tranquil and prosperous at home, respectable abroad; but there is something proportionately diminutive and contemptible in the prospect of a number of petty states, with the appearance only of union, jarring, jealous and perverse, without any determined direction, fluctuating and unhappy at home, weak and insignificant by their dissentions, in the eyes of other nations.
— Alexander Hamilton, The Continentalist, 1782
Alone among the statesmen and political thinkers of his generation (and indeed of several generations after his death), he understood the importance of administration to the success of popular government.
— Clinton Rossiter, 1964
The concept of republican government is by no means simple or clear. This was as true during the founding period as it is today. James Madison, in Federalist essay 39, described many uses of the term. Hamilton did the same during the New York Ratifying Convention and later in defending himself against charges of being a monarchist. That the founders employed a variety of terms to describe the government they were constituting just added to the confusion. They frequently employed terms such as "popular government," "republic," or "republican government," and somewhat less frequently the terms "democratical government," "elective government," "free government," and "representative government." Hamilton may have been the first to use the term "representative democracy" to describe American government more precisely, but he used "republican" and "popular" government most often.
Hamilton and his colleagues derived their republican ideas from a confluence of historical, theoretical, scientific, and philosophical insights, which had coalesced in Europe to form a new, modern liberal conception of political society. Though its antecedents reach far back into history, modern liberalism bore a new political science and an era characterized as the Enlightenment. Its ideas found expression in the writings of luminaries such as Niccolò Machiavelli, Thomas Hobbes, John Locke, David Hume, Francis Hutchinson, Baron de Montesquieu, Adam Smith, James Steuart, and Jean-Jacques Rousseau. Their work represented a radical departure from traditional classical and Christian conceptions of political order. At root, it posits a state of nature that exists prior to the establishment of civil society and in which individuals are driven psychologically by a fundamental passion for self-preservation. Civil societies are formed by individuals through a social contract to protect the natural right to survival by protecting life, liberty, and property. Passions drive people more than reason does, though reason can be employed to channel the passions toward productive ends. A modern liberal regime focuses and limits the aims of government on the material conditions and virtues required to ensure a peaceful and orderly society. It eschews ancient or classical regime aims to cultivate higher virtues, which serve some notion of a summum bonum, or ultimate good, for individuals and their place in the community, or polis. Individuals are instead free to determine their way in life through social institutions of their choosing or on their own.
The American framers enjoyed the rare opportunity of forming a political society based on these modern liberal ideas more than any other regime in history. Moreover, they could form such a society on republican principles exclusively, without need for the mixed forms of government (e.g., combining monarchy, aristocracy, and democracy) that had evolved in some European countries, especially Great Britain. Though many founders admired the British model, most were convinced that Americans would only accept a government based purely on republican and democratical ideals. At the state and national levels, they applied the Aristotelian distinction between a republic and a direct democracy. Aristotle treated direct democracy as a form of popular government prone to mob rule. Republics, on the other hand, contained mechanisms of restraint against mob rule, primarily through representation and structural innovations in governing form. Americans practiced both direct and representative democracy at local levels throughout colonial history but were disinclined to establish direct democracy for state and national government. Their focus centered on the design of representative government and on whether and how a republic could be sustained on a large or extended national scale. Historically, republics had been small city-states, so no precedents existed upon which to base an extended republic, and this led to fierce arguments between advocates for preserving a confederation of smaller state republics (Anti-Federalists) and those wishing to establish an extended and united national republic (Federalists).
Hamilton, with Madison, Washington, and other nationalists, vigorously advocated for the extended, united republic despite individual differences over the policies it should eventually pursue. For Hamilton, an extended republic put effective leadership and administration at its core alongside the separation of powers and checks and balances that to this day receive far more attention. Furthermore, Hamilton's conception of an American republic retained some elements of classical and Christian thought. He was not as extremely modern liberal as some scholars have suggested. For example, he rejected the notion of a social contract in favor of classical and Christian views of the individual as historically rooted in collective life, "born into a world in tension between order and disorder" and bound by the dictates of a moral natural law. These older ideas informed his designs and his theory of administration in significant ways. An explication of his republican theory can be derived from his brief but thoughtful definition of a republic offered in a letter to the New York Evening Post in 1802:
The truth seems to be, that all Governments have been deemed Republics, in which a large portion of the sovereignty has been vested in the whole, or in a considerable body of the people; and that none have been deemed Monarchies as contrasted with the Republican standard, in which there has not been an hereditary Chief Magistrate.
Were we to attempt a correct definition of a Republican Government, we should say, "That is a Republican Government in which both the Executive and Legislative organs are appointed by a popular Election, and hold their offices upon a responsible and defeasible tenure."
This definition includes five elements, expressed or implied, that give form to Hamilton's republic: natural law and divisible sovereignty, no hereditary offices, partitioned powers, representation and popular elections, and accountable forms of responsibility. When Hamilton said republics vest "a large portion of the sovereignty" in the people, he really meant a portion as distinguished from total possession of sovereignty. The people are the source of the Constitution, but their sovereignty is not absolute. Other considerations pertain, especially natural law and the divisibility of sovereignty.
Natural Law and Divisible Sovereignty
Hamilton understood natural law to be rationally and intuitively apprehendable, with many of its insights discerned in the discourse of influential writers on the subject and manifested in large part through the law of nations. This law "embodied the deliberative experience [and scrutiny] of generations of human beings from different nations" and in the eighteenth century was expounded by such leading figures as Hugo Grotius, Richard Hooker, Samuel von Pufendorf, Jean-Jacques Burlamaqui, and Emmerich de Vattel. Hamilton treated the natural law as "indispensably obligatory upon all mankind, prior to any human institution." Hence, all constitutions created by men are subject to the dictates of natural law. A positive (human-made) law that violates natural law is void. Hamilton stated as much in an early pamphlet titled The Farmer Refuted: "No human laws are of any validity, if contrary to this [natural law], and such of them as are valid, derive all their authority, mediately or immediately, from the original." He thus rejected Thomas Hobbes's assertion that there is no morality outside of civil society, as well as David Hume's reduction of morality to matters of social utility or expedience. His republican theory therefore rids sovereignty of some absolutist baggage.
Natural law provides limits and structure for sovereign power that extend beyond the people of a specific regime to include, for example, treaties informed by standards drawn from the law of nations. Natural law thus limits and conditions sovereignty through a variety of sources and institutions. Sovereignty in its traditional sense (as expressed during the European renaissance) meant "independence and power which are separately or transcendently supreme and are exercised upon the body politic from above." The sovereign is the source of law and is therefore above the law (i.e., absolute). Moreover, sovereignty as traditionally conceived must be indivisible, proceeding from one body — that of a prince or a king — and clothed with a majesty that is wholly separate from the governed. The sovereign stands apart from the rest of society. Hamilton and his colleagues found this formulation untenable. They conceived of a sovereignty divided between the states and the national government and of sovereign power as flowing from the people who, with those chosen to govern, were themselves subject to the laws of the country and of the law of nations. No one should be above the law. Sovereignty clearly entailed a different meaning, one for which other terms seem more appropriate.
The kind of power the founders spoke of as flowing from the people is better described as "plenary" or "requisite" power — terms they used often and seemingly interchangeably. This is power complete over a particular area or for a particular purpose. For example, when Hamilton spoke of executive power as plenary, he meant that the executive has all those powers deemed essential or requisite to the performance of executive duties, subject to prudent limits and exceptions. This state of power is distinguished from the state of having all conceivable power, which is more in the spirit of sovereignty's original meaning. Hamilton employed the terms "plenary" and "requisite" in the former sense, not in the latter. To illustrate, in his opinion on the constitutionality of the US Bank, he used "requisite" in direct reference to sovereignty: "Now it appears to the Secretary of the Treasury, that this general principle is inherent in the very definition of Government and essential to every step of the progress to be made by that of the United States; namely — that every power vested in a Government is in its nature sovereign, and includes by force of the term, a right to employ all the means requisite, and fairly applicable to the attainment of the ends of such power; and which are not precluded by restrictions & exceptions specified in the constitution; or not immoral, or not contrary to the essential ends of political society." In Hamilton's mind, both the people and their governing officials are limited in their powers first by natural law and second by the positive laws and processes established or recognized under the Constitution. The people possess the power to change the Constitution through processes stipulated therein, but only in a way that coincides (as Hamilton stated in his Phocion letters) with the "dictates of natural justice," the "dictates of reason and equity," and "many other maxims, never to be forgotten in any but tyrannical governments." So, when employing the term sovereignty in the republican context, it is more appropriate to say that the people are sovereign through their Constitution, and that the national and state governments participate in this sovereignty through the plenary powers assigned to them.
This formulation accords with Hamilton's treatment of the subject and is significant because Hamilton wanted to change what he believed was a fundamentally flawed relationship of the national government to the states as established under the Articles of Confederation. The articles made the national government dependent upon the powers of the states, a relation he described in Federalist essay 15 as "the political monster of an imperium in imperio" in which "the concurrence of thirteen distinct sovereign wills is requisite ... to the complete execution of every important measure that proceeds from the Union." In effect, the arrangement denied to the national government the plenary powers needed to perform its duties effectively in order to establish a true union. As a result, the arrangement "arrested all the wheels of the national government and brought them to an awful stand." This was hardly a matter of abstract theory for Hamilton. He had experienced firsthand the terrible effects of this disparity of power during the Revolutionary War.
The Articles of Confederation established a weak and feckless national government. It could generate no independent revenues and had to rely instead upon requisitions from the states for everything. Furthermore, the few powers ceded to it were lodged entirely within the Continental Congress. All aspects of administration were conducted by congressional boards or committees, with predictable and debilitating results. The states often failed to comply with congressional requests for resources, and the congressional boards acted slowly, if at all, and entirely without consistency or system. Hamilton chronicled the effects in his Continentalist essays of 1781, stating that the "whole system is in disorder and unprovided with everything."
As General Washington's chief aide-de-camp, Hamilton witnessed on a broad scale the failures of this arrangement. The country possessed willingness, resources, men, and foreign aid sufficient to quickly defeat the much smaller British forces. But instead, the war dragged on for years because of poor organization and management. "As in the explanation of our embarrassments nothing can be alleged to the disaffection of the people, we must have recourse to the other cause of IMPOLICY and MISMANAGEMENT in their RULERS."
After the war, the confederation continued in the same fashion, perpetuating if not exacerbating the conditions established during the war. Lack of power and organization in the national government precipitated political and economic crises, and leading figures pressed for the establishment of a new government, one capable of stable and systematic public administration. Thus followed the Annapolis and Philadelphia conventions and the framing of the Constitution in 1787.
In Hamilton's view, the new constitution remedied the problem with a safely vested mix of independent and concurrent powers for both the states and the federal government, such that neither is "dependent on the other for the efficacy of its power." However, as Michael Federici observes, the remedy required some subtraction of the states' powers in order to establish independent federal powers, and it "was this very subtraction that bothered many anti-Federalists and caused them to oppose ratification, or to insist on the addition of a national bill of rights that clarified the distribution of sovereignty." The Bill of Rights notwithstanding, Americans have been arguing and fighting over this distribution ever since. In the founding era, the Jeffersonian Republicans coalesced into a political party in large part to claw back some of the new federal prerogatives in favor of states' rights, while Hamiltonian Federalists endeavored to firmly establish a broad construction of requisite federal powers. Hamilton led the Federalist effort with legal opinions and new national administrative organs that would make the supremacy clause and other broad provisions of the new constitution a reality.
The connection of law to administration here is of crucial significance. The political battles of the day centered around the establishment of federal administrative agencies and quasi-public institutions such as the Bank of the United States, and Hamilton's legal opinions outlined an administratively empowering jurisprudence that Federalist judges such as John Marshall and Joseph Story would apply well into the nineteenth century. The more immediate point is that the disputes over political power were channeled or sublimated into the legal/administrative realm, which made the principle of rule by law the overarching standard in American governance. Ron Chernow described it this way: "Virtually every program that Hamilton put together raised fundamental constitutional issues, so that his legal training and work on The Federalist enabled him to craft the efficient machinery of government while expounding its theoretical underpinnings."
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Excerpted from "Alexander Hamilton's Public Administration"
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