The Lives of the Constitution: Ten Exceptional Minds that Shaped America's Supreme Law

The Lives of the Constitution: Ten Exceptional Minds that Shaped America's Supreme Law

by Joseph Tartakovsky

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Overview

In a fascinating blend of biography and history, Joseph Tartakovsky tells the epic and unexpected story of our Constitution through the eyes of ten extraordinary individuals—some renowned, like Alexander Hamilton and Woodrow Wilson, and some forgotten, like James Wilson and Ida B. Wells-Barnett.

Tartakovsky brings to life their struggles over our supreme law from its origins in revolutionary America to the era of Obama and Trump. Sweeping from settings as diverse as Gold Rush California to the halls of Congress, and crowded with a vivid Dickensian cast, Tartakovsky shows how America’s unique constitutional culture grapples with questions like democracy, racial and sexual equality, free speech, economic liberty, and the role of government.

Joining the ranks of other great American storytellers, Tartakovsky chronicles how Daniel Webster sought to avert the Civil War; how Alexis de Tocqueville misunderstood America; how Robert Jackson balanced liberty and order in the battle against Nazism and Communism; and how Antonin Scalia died warning Americans about the ever-growing reach of the Supreme Court.

From the 1787 Philadelphia Convention to the clash over gay marriage, this is a grand tour through two centuries of constitutional history as never told before, and an education in the principles that sustain America in the most astonishing experiment in government ever undertaken.

Product Details

ISBN-13: 9781641770620
Publisher: Encounter Books
Publication date: 10/08/2019
Pages: 320
Sales rank: 316,492
Product dimensions: 6.00(w) x 8.90(h) x 0.90(d)
Age Range: 18 Years

About the Author

Joseph Tartakovsky is the former Deputy Solicitor General of Nevada and a practicing attorney in constitutional and appellate law at an international law firm. His writing has appeared in the New York Times, Wall Street Journal, and Los Angeles Times. He is also the James Wilson Fellow in Constitutional Law at the Claremont Institute and served as a law clerk on the United States Court of Appeals for the Tenth Circuit.

Read an Excerpt

Chapter 1

Alexander Hamilton

A War Ends and a Constitution Begins






In the winter of late 1783 the bells pealing in Albany and Manhattan to celebrate the peace between the renegade colonies and his semi-sane majesty must have sounded, to loyalists, like death knells. A half-million souls across the colonies stayed true to George the Third; in New York alone, in 1776, loyalists had amounted to nearly half the state’s population. Alexander Hamilton, a Wall Street lawyer in his late 20s, understood why New York’s patriots, a fever for vengeance crackling in their blood, were now robbing, exiling, hamstringing (disabling by cutting that muscle), and murdering those they called traitorous “parricides.” The war had been fratricidal and eight years long, our longest until Vietnam, and no place was occupied longer than New York City. New Yorkers saw their homes burned, streets denuded of trees, churches used as stables; they saw 11,500 friends and family die on reeking East River prison ships, bones still washing ashore a decade later. It was a time of crisis, and precisely what Hamilton needed to uncoil the powers that would make him loved and feared. He was meddlesome, imaginative, audacious, overbearing, pragmatic, indiscreet, charming, and tireless. He spoke with a confidence so unwavering that one might have supposed he had returned from the future.





Alexander Hamilton was shaken by the cruelties of his countrymen, who had discovered that duly enacted laws could ruin a hated minority faster than street reprisals. A statute from 1784 authorized the sale of seized Tory estates. Philipsburg Manor in Westchester, alone, was parceled out to 287 new landowners, averaging 174 acres apiece. Another law “forever” disenfranchised most Tories for “holding principles inimical to the Constitution,” though it mercifully exempted minors and the insane. When the 1783 Trespass Act encouraged patriots to sue Tories who had moved into the houses or used the businesses of patriots, an alarmed Hamilton began taking loyalist cases. Those breathing revenge, he felt, really only coveted a neighbor’s house or the chance to eliminate a creditor or business rival, and for these unworthy motives New York was violating the treaty Americans had signed with Great Britain and risking the peace that the nation as a whole had achieved.





But most of all Hamilton feared what New Yorkers’ persecutions said about their character. “[W]e have taken our station among nations,” he wrote, in early 1784, under the pseudonym Phocion, but now behaved like the dishonorable Greek tribe who pledged to return an enemy’s prisoners only to execute them and return the corpses. He closed with a warning: “The world has its eye upon America,” but if our misbehavior showed that the “bulk of mankind are not fit to govern themselves,” then with the “greatest advantages for promoting it, that ever a people had, we shall have betrayed the cause of human nature.”



•••



The island of Nevis, a mountainous 36-square-mile speck in the Caribbean where Alexander Hamilton was born in 1755, looks like a jungle paradise. But for inhabitants, the azure waters lapping white sands, the drowsy palms and laughing parrots, probably seemed meager compensation for the earthquakes, hurricanes, pirates, isolation, malaria, and crime. “While other founding fathers were reared in tidy New England villages or cosseted on baronial Virginia estates,” writes Ron Chernow in his 2004 biography of Hamilton, Alexander “grew up in a tropical hellhole of dissipated whites and fractious slaves.” Hamilton regularly witnessed auctions of sugar-cane slaves, with buyers who arrived with branding irons to sear living skin. He was entrusted at age 14 as a clerk for a local merchant. A letter shows Alexander reporting to his boss in stream-of-consciousness style: “I sold all your lumber off immediately at £16 luckily enough, the price of that article being now reduced to £12, as great quantities have been lately imported. Indeed, there must be a vast consumption of this crop—which makes it probable that the price will again rise—unless the crops at windward should fall short—as is said to be the case—whereby we shall stand fair to be overstocked.” Alexander managed shipments of mules and codfish, calculated currency exchanges, advised captains to arm against buccaneers. It was an unmatchable apprenticeship in the centrality of trade, credit, and commerce to the fate of nation.





Alexander Hamilton’s life had strikingly modern touches. He was the son of a single mother who worked as a shopkeeper. When she died, Alexander, and his older brother James, both teenagers, were left alone and disinherited. The remainder of his Nevis family life was one sad fact after another. The town judge had to buy Alexander shoes for his mother’s funeral. Years later, at his wedding to Eliza Schuyler, the daughter of a powerful New York patroon, not a single family member appeared on his side. Hamilton had everything against him, except the prodigious intellect that led a few local merchants to pay his way to King’s College in New York City. He arrived on the continent in 1773, said a biographer, slight and slim, with a “bright, ruddy complexion; light-colored hair; a mouth infinite in expression, its sweet smile being most observable and most spoken of; eyes lustrous with meaning and reflection, or glancing with quick canny pleasantry, and the whole countenance decidedly Scottish in form and expression.”





In 1776 he dropped out of college—another admirable modern touch—to take command of 68 men as a 21-year-old artillery captain, braving British fire (recklessly, some thought) and supplying his troops at his own expense. He soon became a staff officer to George Washington, the beginning of a historic two-decade alliance. The sonless Washington called the fatherless Hamilton “my boy,” and fellow officers remembered “Call Colonel Hamilton” as Washington’s instinctive utterance when important news arrived. Hamilton could write more forcefully than anyone, spoke the French of our allies, and handled politicians like a diplomat. Hamilton was also the sort able to find time between negotiating prisoner exchanges and dodging cannon-fire to begin a systematic study of economics. He filled an artillery notebook with items one might expect to interest a future Treasury Secretary: how Hungarian corn is six times cheaper than English corn, for instance, or that goats might be profitably raised for skin and hair in the South. His self-education would make him the most learned founder on finance, rivaled only by his friend Gouverneur Morris, a hilarious, peg-legged cynic who was so intellectually akin to Hamilton that Hamilton invited Morris, before Madison, to co-write the Federalist.





Hamilton’s political views arose from his wartime service. He thought that America’s headless, incompetent Congress got Americans killed. Congress was trying to fight a war by legislative committee, such as by setting prices and ordering troop movements, all directed by constantly rotating, often corrupt personnel. General Washington’s supplies allowed his untrained men to fire only two practice rounds before engaging skilled Redcoats. Charles Willson Peale, later famed as a painter, recalled how after the Battle of Princeton, to save his exhausted men from another night of hunger, Peale begged door to door until he had enough beef and potatoes for their meal. “[N]othing appears more evident to me,” wrote Hamilton, midway through the war, “than that we run much greater risk of having a weak and disunited federal government, than one which will be able to usurp upon the rights of the people.”





The states had been loosely allied since 1781 under the Articles of Confederation, which created not a government but a treaty between independent sovereigns. It functioned like the United Nations: a frequently chaotic gathering of “delegates” representing effectively separate, self-interested nations, empowered only to issue non-binding resolutions, and wholly inept at maintaining peace. James McHenry, an Irish-born surgeon who served at Valley Forge with Hamilton, wrote his old comrade that bold measures were difficult with a “people who have thirteen heads each of which pay superstitious adoration to inferior divinities.” It is no wonder that many of the most committed future Federalists—the name for the nationalist party that would come to govern during the first decade and a half under the U.S. Constitution—were ex-officers. John Marshall, later the fourth Chief Justice of the Supreme Court, confessed that his captaincy during the war instilled in him his habit of “considering America”—not Virginia—“as my country.”





Hamilton, as the war was winding down, laid out the choice before the country in a six-part essay series he signed “Continentalist.” We could become a “noble and magnificent” federal republic, he wrote, “closely linked in the pursuit of a common interest, tranquil and prosperous at home, respectable abroad,” or we could stumble on in our “diminutive and contemptible” course, as 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 dissensions, in the eyes of other nations.” His choice was obvious, but he was unsure about whether the crumbling American alliance would even hold. After the war he urged George Clinton, New York’s formidable governor, who had privateered against France at 16 and invaded Canada by 20, to hand out land to officers to entice their settlement in New York—just in case the state had to fend for itself. Some veterans, said Gouverneur Morris, “anticipated with horror the moment when they might be called on to unsheathe their swords against each other.”





In the late 1780s Greenwich Village was still a village and Long Islanders were farmers, but New York City was already, in ethnic and religious terms, the most diverse city in North America. It was full of merchants and gazettes. Yet streets also thronged with crippled men, widows, and bankrupts; hundreds of soldiers returned from war only to be jailed for debt. Rampant were suicides, counterfeiting, thefts of whole flocks of sheep. No state, Hamilton felt, better illustrated the need for a federal constitution to unite the states and so bring order and prosperity. But having shaken one foreign ruler, no state was less eager to accept another. New York State, in fact, became the great drag on the continental project. When Congress relocated to New York City in 1785, the state’s refusal to find office space for it forced the legislature to lease a tavern.





Governor Clinton declared that the act of “confederating” with other states under a single government was unnecessary: the future Empire State had fertile lands, commanding waterways, and choice ports that brought the state a fortune in tariffs and taxes. New York City was probably the entrepôt to half the goods consumed in Connecticut and New Jersey. Connecticut, in the early 1780s, had bravely declared that it would allow free trade between the states in the hope that New York would follow suit, but by 1787 it found itself annually paying
£100,000 of coerced “tribute” into New York’s pockets. An infuriated Nutmeg State sought to block all exports to New York and to deny its ships landing. New Jersey, for its part, enacted retaliatory tariffs against New York. New Yorkers, particularly the farmers at the heart of the anti-union movement, loved how this income permitted the state to keep land taxation light.





The U.S. Constitution was drafted in Philadelphia in summer 1787 and sent out to the states for ratification, to take effect if nine ratified. Eight states had already ratified by the time New York even began its convention to consider ratification in Poughkeepsie. George Clinton’s anti-Constitution partisans were glad to let other states go first. Hamilton, the acknowledged leader of the pro-Constitution forces, also favored delay: with only a third of the convention delegates believed to be friendly to the proposed Constitution, he felt that his side’s only hope was that ratification by other states would shake Clinton’s moderates. The state was split between the southernmost counties, led by a commercial New York City, and upstate farming counties, led by Albany, whose leaders prayed, as Clinton’s nephew put it, that from “tax gatherers, standing armies, navies, placemen, sinecures, federal cities, Senators, Presidents and a long train of et ceteras Good Lord deliver us.” Hamilton calculated rightly. Midway through the Poughkeepsie convention, New Hampshire and Virginia signed on. The question for New York then shifted from approval of the Constitution to whether to isolate itself, militarily and commercially, by staying out of the new union. There was genuine fear that if the state kept out, Staten Island would peel off and join New Jersey, and New York City and Long Island would link up with Connecticut. So the Constitution came to New York, by vote of 30-27. Hamilton’s decisive influence in the close-run affair led some exuberant Manhattanites to propose that New York City be renamed “Hamiltonia.”




•••




Presidential candidates today, even after two unbroken centuries of elections, find it hard to avoid doomsday talk about America’s survival. When Americans in the 1790s spoke this way, it had the merit of being true. The physical downfall of the fragile new government under the Constitution—the “experiment,” as that generation liked to call it—was altogether possible in an age when an unluckily placed boulder in a river, as George Washington found, could still stop the movement of an American president. In 1792 Hamilton found it “curious” that “[o]ne side appears to believe that there is a serious plot to overturn the state Governments and substitute monarchy to the present republican system,” while the other “firmly believes that there is a serious plot to overturn the General Government & elevate the separate power of the states upon its ruins.” He was in a position to know: the opposition force that inaugurated our two-party system arose as an anti-Hamilton party.





Hamilton was named the first Secretary of the Treasury, at age 34, and served for five and a half years. In December 1790, after the government had been in effect for a matter of months, Virginia’s legislature declared that Hamilton’s first major economic initiative—to have the federal government absorb state war debts—was not just unconstitutional but “fatal to the existence of American liberty.” The Father of his Country was still largely untouchable, so Hamilton took the heat, much in the English tradition of attacking the minister, not the king. Jefferson, as Secretary of State, started in privately with President Washington on how his fellow cabinet member had secret plans for a homegrown monarchy, which he, Jefferson, thought self-evident especially in the way Hamilton “shuffled” around millions of dollars. In 1792 an exasperated Washington urged a truce between Hamilton and Jefferson, whose intensifying warfare—“daily pitted in the cabinet like two cocks,” Jefferson recalled—was “tearing our vitals,” in Washington’s words, at a time when the nation was “encompassed on all sides” by enemies.





The U.S. was then a long thin strip of a country, like Israel or Chile, wedged up against a sea that it did not control, on a coast and continent roamed by three European empires. Above all were the behemoths England and France, whose clash kept the world at war for the rest of Hamilton’s life and left Europe strewn with the carcasses of overthrown regimes. America felt the crushing strain of a small besieged African nation trying to survive the Cold War. At first Hamilton was amused, if uneasy, when the revolutionary French Republic made him honorary citizen “Jean Hamilton” in 1792. A few months later Parisian radicals beheaded Louis XVI, our ally from a decade earlier. By then hysteria and delirium had broken lose stateside. Better to have the United States “erased from existence than infected with French principles,” cried the Federalist Oliver Wolcott, Jr., who would succeed Hamilton as Treasury Secretary. Jefferson, by contrast, saw the “liberty of the whole earth” turning on the success of the “Jacobin” cause, adding, with customary sangfroid, that “rather than it should have failed, I would have seen half the earth desolated.” John Adams recalled that in spring 1793, 10,000 people took to Philadelphia’s streets, day after day, threatening to “drag Washington out of his house, and effect a revolution in the government, or compel it to declare war in favor of the French Revolution.”





Hamilton dreaded that the U.S. would stumble into a war with Europe during his entire public career—first France in 1793, then England in 1794, then France again in 1797. These were wars, he felt, that we were perilously unequipped to fight. France installed or sponsored puppet “sister republics” in the Netherlands, Germany, Switzerland, and Italy. Hamilton, as time wore on, came to believe that revolution-exporting France had American sympathizers prepared to “cut off the leading Federalists and seize the government.” In 1797, after the stabilizing Washington was succeeded by the less balanced Adams, and the French-American Quasi-War began, the British foreign secretary wrote that the “whole system of American government” seemed to be “tottering to its foundations.”





Then the 1800 election returned a tie between Jefferson and Aaron Burr so fraught and volatile—Jefferson eventually won on the 36th House ballot, by two votes—that Pennsylvania and Virginia, emotions at a boil, began arming for an anticipated struggle. That election was an extraordinary event in history: the first transfer of national power between rivals after a popular, periodic election in the recorded history of our violent species. Today we know parties cede ground back and forth like football teams. The founders did not, which is why they so often could not distinguish disagreement from disloyalty. It is no exaggeration to say that for stretches in the 1790s, a good portion of Americans thought revolutionary France more true to the cause of 1776 than Alexander Hamilton and even George Washington. The party wars of that decade were so unbearably intense, Jefferson recalled, that lifelong friends crossed streets to avoid meeting.





Hamilton was a man constantly in motion, like a shark that must keep swimming to breathe. A friend remembered a publisher in Hamilton’s study at home, waiting to take Federalist essays “as they came fresh” from Hamilton’s quill, composed between breaks in his law practice. Hamilton eventually wrote under so many pen names that he may have been, says biographer Ron Chernow, the “foremost political pamphleteer in American history.” At one point Hamilton began a 38-part series under the name “Camillus,” to debate the Jay Treaty in 1795 between the United States and Great Britain, then two days later began a second series, as “Philo Camillus,” defending “Camillus,” a cascade of words that led Jefferson to exclaim to Madison that Hamilton was an army “within himself.” That was when he wasn’t writing for others. An editor recalled that when he needed material, he would visit Hamilton late at night. “As soon as I see him,” the editor said, “he begins in a deliberate manner to dictate, and I to note down in short-hand. When he stops my article is completed.” Hamilton’s habit of constantly mumbling to himself suggests an almost unmanageable mental ferment. Hamilton’s father-in-law once wrote Hamilton’s wife to report, in amusement, that a shopkeeper refused to accept a large bill from Hamilton, in the belief that he, the shopkeeper, would be faulted for taking a madman’s money. “I have seen him walk before my door for half an hour,” the shopkeeper said, “always talking to himself.”





Hamilton was built for national executive work. He declined nominations for New York Governor (too parochial), U.S. Senator (too many colleagues), and Chief Justice of the U.S. Supreme Court (too boring). His writings vibrate with words like “energy,” “vigor,” “efficiency.” He wanted to give government “new life,” to have it conduct its business “with dispatch, method, and system,” to see the “well-proportioned exertion of the resources of the whole.” He saw limits, too. When he read the draft Sedition Act in 1798—which allowed the jailing of administration critics—he rebuked its authors. “Energy is a very different thing from violence,” he said. “Let us not establish a tyranny.” He even seemed to gainsay the views of George Washington, who had written Adams’s Secretary of War, from his retirement at Mount Vernon, to warn against bringing “professed Democrat[s]” into the army. Hamilton thought that putting party above merit forfeited an opportunity to create friends to the government.





The presidency, the stage on which Hamilton would strut, was a new office for Americans. What was the vague “executive power” created by Article II of the Constitution? In 1789 Hamilton’s friend James McHenry told Washington, “You are now a king, under a different name,” and sent wishes that Washington might “reign long and happy over us.” John Adams bridled that Washington would be called, simply, “President,” and not his “Most Benign Highness,” since there were “presidents of fire companies and of a cricket club.” So many Americans reached for familiar kingly precedent that Washington felt obligated, in his draft First Inaugural address, to remind his people that he was childless. True, he did wear a ceremonial sword and ride in a cream-colored coach attended by liveried servants, but the republican reality was captured by an Englishman who visited him in 1795 in Philadelphia—and found the old warrior domiciled in a simple brick house, near Fourth Street, next to a hairdresser’s shop.





Hamilton was interested not in superficial titles but action. In ghostwriting Washington’s 1796 Farewell Address, he knew he spoke Washington’s mind when he wrote that the “real danger in our system is that the general government, organized as at present, will prove too weak rather than too powerful.” Both Washington and Hamilton knew from the war that no legislature could ever match the concentrated intelligence, speed, and discipline of an official who is always on duty—one reason that even today the President works in the same building that he lives in. Federalist preoccupations were soon tested when, in August 1794, 7,000 “whiskey rebels” marauded through western Pennsylvania, setting up mock guillotines and burning the homes of tax officials—the largest incident of armed resistance to federal authority until the Civil War. The rebels considered Hamilton’s Excise Act a new Stamp Act, but to Hamilton the Excise Act was the second-largest source of federal revenue. Hamilton two years earlier had tried to lower the rate in conciliation, but now rebuffed, energy kicked in.





Hamilton wrote detailed advice to Washington on the number of troops needed and ordered army blankets, medicine chests, and muskets, even specifying the materials to be used for jackets. Hamilton had a martial-romantic streak and at night roamed the camp in which federal forces gathered against the rebels. When one soldier complained, Hamilton took the gun himself and paced until relieved. He believed public trust to be essential to durable government. When Pennsylvania militiamen riding to meet the rebels killed two citizens, he rebuked Pennsylvania’s governor: troops “cannot render a more important service to the cause of government & order,” he said, “than by a conduct scrupulously regardful of the rights of their fellow citizens and exemplary for decorum, regularity & moderation.”





President Washington believed it of “infinite” importance to get right the precedents he was setting on the many questions the Constitution was silent on. He was acutely aware that his acts would obtain pseudo-constitutional status. Among the precedents settled by twelve years of Federalist rule, largely in Hamilton’s favor: Could the House of Representatives demand the President’s confidential papers on foreign affairs? On this Washington, as always, sought the advice of Hamilton (who, sorely in need of income, had returned to private law practice a year earlier). Washington thanked Hamilton for confirming that Washington was right to refuse the House’s request and indeed “to resist the principle.” Could legislators investigate executive officials—the first to receive such an honor, in fact, being Hamilton himself? Trumped-up accusations drafted by Jefferson and Madison challenged Hamilton over his management of loans in 1793. Hamilton was exonerated and would be, again, after another investigation in 1794. Hamilton himself, even on questions of presidential authority, got a practical education. In a Federalist essay, for instance, he doubted that Senators would actually use their advice-and-consent power to try to influence the president’s picks; in fact, senatorial “recommendations” to Washington started rolling in immediately.





When the First Congress asked Hamilton to report to it on economic policy, Congress began the tradition of executive initiative in legislation. Hamilton in 1790 and 1791 produced three major “reports,” on debt and taxes, a national bank, and manufacturing. These foundations of the American school of economics established Hamilton’s influence in his time more than any other achievement. Congress’s skeptics—mostly among the anti-Hamilton party, now called the “Republicans”—were not charmed by what they received. “Some say the Secretary’s Reports are like Smith’s Treatise on the Wealth of Nations,” said one, accurately, adding, “We do not come here to go to school.” The Report on Public Credit was dense enough that most lawmakers probably forgave themselves for declining to read it. Hamilton went through specific duties for Hyson tea, green tea, souchong tea, and bohea tea, before informing Congress that he had mostly “omitted details to avoid fatiguing the attention of the
House.” Hamilton also drafted laws, decided congressional committee memberships, and arrived early at sessions to lobby the Speaker. Another Congressman scolded him for “seem[ing] to take the whole Government upon his shoulders” and for speaking the “language of a Frederick of Prussia, or some other despotic prince.”




•••




“The sacred rights of mankind are not to be rummaged for among old parchments or musty records,” wrote a young Hamilton, in an exquisite passage. “They are written, as with a sunbeam, in the whole volume of human nature, by the hand of the divinity itself, and can never be erased or obscured by mortal power.” But he knew that officeholders did not spend their days reaffirming sacred rights. Even the most worshipful parsing of Locke and Montesquieu yielded little about how to run a post office. Hamilton had pondered the “practical business of government” for over a decade before the Constitution took effect. He subscribed to the couplet of Alexander Pope, his favorite poet—and, more even than Shakespeare, the semi-official poet of the American founders—who wrote:

For forms of government let fools contest; Whate’er is best administer’d is best.


Hamilton observed at the Poughkeepsie ratifying convention that governments as exotic as Sparta’s ephori or the tribunes of Rome had succeeded. One might add that the great Qing, Ottoman, and Bismarckian empires also owed their conquering superiority to administrative effectiveness, not to liberalism. Hamilton worried that our Constitution, as framed, lacked “energy,” but he intended, through invigorating administration, to prove it worthy of the “affection of the people.”





Leonard D. White, the historian of American administration, wrote that Hamilton was not only the “greatest administrative genius of his generation in America,” but “one of the great administrators of all time.” Under Hamilton the Treasury Department became the largest, richest, most efficient enterprise on the continent. Hamilton began with 39 employees, fewer than a large northern shipyard of the day. By 1801 it made up more than half the total civilian federal government, embodied in 1,615 field officials: army and navy accountants, loan commissioners, customs collectors, revenue surveyors, land-office receivers, district attorneys, deputy postmasters, marshals, Indian agents, coastal seamen, and lighthouse keepers. This was the machinery of a modern state, even if, in size, it was a fraction of Cleveland’s government today. The State Department, by contrast, after a decade, remained content with ten employees. Its paper operations were confined to a single desk, which kept letters from foreign governments in two pigeonholes on the right side, and foreign treaties in a pigeonhole on the left.





Enemies saw Hamilton as creating an imperium in imperio that threatened liberty. Hamilton saw just the opposite: a robust Treasury Department was necessary to protect rights. He felt his opponents did not grasp that less government usually does not mean less oppression of property, but, to the contrary, less security for it. Lax enforcement, for instance, gave customs evaders an advantage over those who paid their dues. On his second day in office, he demanded customs returns from his staff—figures that pinpointed the smuggling still pervasive from colonial days when, said Fisher Ames, a leading Massachusetts politician, it was “considered rather as meritorious than criminal.” From his childhood Hamilton knew the tricks by which skippers evaded the king’s men, from rowing goods ashore in the dark of night to false entries that turned a hogshead of brandy into a barrel of cheap rum. He was not timid about flexing what he saw as his constitutional power to impose registrations, licenses, permits, and fines or to found the fleet of customs interceptors that became the Coast Guard. He also pioneered economic interventionism by the government when he proposed that Congress subsidize nascent manufacturers to help them catch up to European rivals.





And then there was the Bank of the United States. His wife Eliza, in her old age, told a visitor: “He made your bank. I sat up all night with him to help him do it. Jefferson thought we ought not to have a bank and President Washington thought so. But my husband said, ‘We must have a Bank.’ I sat up all night, copied out his writing, and the next morning, he carried it to President Washington and we had a bank.” The bank’s creation probably seemed this sudden to opponents, but for a decade Hamilton had called for an institution to do things like ensure a uniform currency, expand the money supply, and service debt. He claimed, in a famous legal opinion to Washington, that the Constitution, read with “liberal latitude,” conferred an “implied” power to erect a bank, no less than if the Constitution actually used the word “bank.” To many, banks still seemed aristocratic evils. One Virginian planter swore that he would no more be caught going into a bank than a whorehouse.





Hamilton was so far ahead of his time that achievements of his are still being uncovered. Three financial historians claim, based on a Hamilton letter that came to light in 2005, that Hamilton all but saved the center of the nation’s economy by inventing the techniques that today’s central banks use to manage a crisis. In 1792, the U.S. faced its first financial panic; Hamilton, over several weeks, steadied nerves with a series of creative lender-of-last-resort operations and open-market purchases. He fired off missives to subordinates with instructions like scrawled ticker tape: “[l]et deposits of stock be received to an amount not exceeding a million—six per cent at par three cents at 10 shillings on the pound and deferred at 12 shillings ” He had no staff statisticians or economists, let alone historical cycles for them to study.





Buzzwords like “innovation,” “visionary,” “democratic,” and “revolutionary” clot politicians’ speeches today, but in Hamilton’s time they were insults. “Democracy,” to Federalists in particular, certainly in their pessimistic moods, did not mean stable majority rule—that was the quite separate concept of “republicanism”—but anarchy. It meant the politics of ignorance, jealousy, and fear. It meant policies as flighty as feathers in wind and voters busily redistributing other people’s property to themselves. One of the most enduring charges against the legacy of Alexander Hamilton is that he was anti-democratic. Hamilton did say many things about what he once called the “unthinking populace” that one would not care to repeat at an Iowa caucus. Behind the closed doors of the Philadelphia Convention, for instance, he said ordinary Americans were “turbulent and changing; they seldom judge or determine right.” Back in public, at the Poughkeepsie convention, he proclaimed us fortunate that the “minds of the people are exceedingly enlightened and refined.” Yet the truth is that most leading statesmen of the age spoke fearfully of the “masses” and many were far more disparaging than Hamilton.





Hamilton wanted not a monarch but an executive with the muscle, prestige, and legitimacy to withstand all perils. Elitism and revulsion at bad laws were part of his perspective, but so, too, judging by the frequency of allusion in letters, was experience with actual mobs. Americans of the late 18th century were addicted to the burning of effigies—better, I suppose, than the old European head-on-a-pole. An American of Hamilton’s time had a fair chance of seeing a drunken mob in full swarm: a theater immolated, say, or men tortured with scalding tar. Hamilton twice fended off a violent crowd: first, during the war, to allow a loyalist teacher of his to escape at King’s College, and again years later, when his head was bloodied by a rock as he spoke in defense of the Jay Treaty on Wall Street. Police forces did not yet exist; mobs were not only deadly but often unstoppable, except by a counter-mob or militia.





The great philosophical realists David Hume (whom Hamilton loved) and Thomas Hobbes (whom Hamilton did not), when pressed, both preferred a monarchy to a republic, on grounds that no king was as deadly as a civil war, considered an ever-present risk in republics. Hamilton said no such thing. Instead he only echoed classic statements of Whig philosophy, like Cato’s Letters (1720–23), where power was likened to fire: if controlled, it gave light and warmth; if let loose, it scorched and destroyed. “[T]oo much power leads to despotism,” wrote Hamilton, but “too little leads to anarchy, and both eventually to the ruin of the people.” This theme—that a government must have power to preserve order, because without order there is no liberty—was his preoccupation. He dismissed, in a 1792 letter to Washington, the monarchical accusations against their Federalist party, by arguing that Americans would not accept a king until demagogues, with their cries of “danger to liberty,” first discredited republicanism. Therefore, Hamilton continued, it was those who urged commotion and contempt for public order (he had Jefferson in mind) who were the “true artificers of monarchy.” Among the ironies of his life was being accused of monarchism by men like George Clinton, who was addressed as “Your Excellency” during his 21-year reign over New York, and who had been chosen by an electorate so narrowed by sex and property qualifications that only about 6% of the population could vote. Democratic skepticism, in short, was not a Hamiltonian trait, but an American one.





Jefferson’s first inaugural address in 1801 was excruciating for Hamilton. “[W]e may now safely dispense with all the internal taxes,” along with tax collectors and other federal offices “too multiplied,” Jefferson said, to count. More terrifying yet, for Hamilton, was that the army and navy were to be basically disbanded; to Jefferson, the only “competent” force against invasion was the “body of neighboring citizens, as formed into a militia.” Hamilton blasted what he called Jefferson’s promise of “emancipation from the burdens and restraints of government” and his alarming “sacrifice of constitutional energy.” Jefferson got what he wanted. “During the opening decades of the nineteenth century,” says Gordon S. Wood, the United States government was “weaker than at any other time in its history.”





Hamilton died eight years before the War of 1812, the realization of his nightmare. The Republicans controlling Congress, believing a standing military inherently tyrannical, even refused James Madison’s request to add two assistant secretaries of war—at the very moment, incredibly, that they voted for war with England. Hamilton’s enemies had abolished his bank and revenue stream and so left the nation unable to pay its $50 million debt; Treasury Secretary George W. Campbell resigned when the U.S. defaulted. The Jefferson–Madison policy of peace through unpreparedness—Jefferson abolished 319 naval offices in his first year in office—touched President Madison intimately: in 1814, his White House home, minutes after his wife fled with a famous portrait of Washington, was torched by British soldiers.




•••




Hamilton’s own worst mistakes arose because he had no non-public life. He could not imagine the national destiny without a heroic role for himself, and, more problematically, he could not hold his tongue about that destiny or his role in it. This led him to bring on the first national sex scandal—against himself. In 1797, a Republican journalist hinted that money Hamilton had sent to a speculator was evidence of insider dealings by Hamilton; Hamilton decided to prove that he was a corrupt spouse, but not a corrupt official. He published a long self-exposé of what was actually a yearlong affair with an unstable prostitute and the hush money he had paid to her pimp husband. Hamilton’s wife Eliza must have loved reading her husband declare that by confessing adultery he “wipe[d] away a more serious stain,” meaning, for Hamilton, the stain that could discredit his superintendence of the nation’s finances.





Another self-inflicted wound took the form of Aaron Burr’s bullet, in the duel that killed Hamilton in 1804. Hamilton once told his oldest daughter: “If you happen to displease [a person], be always ready to make a frank apology.” But when Burr demanded an explanation of Hamilton’s denunciations of him—Hamilton had basically campaigned against Burr in 1800 as a man whose true “theory” of government is “despotism”—Hamilton began a series of elaborate refusals either to admit or deny his remarks. Reading these posturings with Burr today reminds one of a tropical-bird dance and its ritualized ducking and puffing. Sophisticated contemporaries recognized duels as comic relics of an aristocratic age of “honor,” secret stipulations between two men to permit them simultaneously to attempt assassination of the other. A year before the duel, Washington Irving, America’s first celebrity satirist under the Constitution, proposed in New York’s Morning Chronicle—a paper partly owned by Burr—that a more rational alternative to covert gunplay was to sell tickets to the “show,” as in the days of gladiators, since duelers, after all, fought only for “fear of being branded with the epithet of coward.”





Hamilton, ahead of his time in so many ways, was retrograde in this. In a statement written privately to justify his decision to fight Burr, he wrote that “considerations” of honor and the “ability to be in future useful” forced him to conform to “public prejudice.” He meant that if he was perceived as wimping out, he would lose, as we say today, his credibility. President Adams had made Hamilton an army general, and if there came a bid by states at secession (perhaps led by Burr himself), war with Europe, or another Whiskey Rebellion, what soldier, he seemed to reason, would march behind a confirmed jellyfish? He had reasoned so before. Years earlier he told colleagues that he acted with such fanatical scrupulousness as Treasury Secretary in order to deny Republicans room for attack and thereby “keep myself in a situation best calculated to render service.” This turn of mind in fact showed as early as age 14, when he told a friend that he would “willingly risk my life, though not my character, to exalt my station.”





In the years before his duel, his mood was often one of mixed despair and bafflement. “Mine is an odd destiny,” he told Gouverneur Morris. “Perhaps no man in the U[nited] States has sacrificed or done more for the present Constitution than myself,” he continued, yet despite all the neglect and persecution that was his reward, he found himself “still laboring to prop the frail and worthless fabric.” Some suggest that his encounter with Burr was suicidal. But he wasn’t so gloomy in his last years that he couldn’t brilliantly litigate, in New York courts, the Croswell case, which helped establish truth as a defense in libel, or to prepare for future influence by starting the New York Post. The whole point of the duel was to ensure that Hamilton could stay in the game. The duel, then, reveals not disillusionment with public life but how wholly enveloped Hamilton was in it: a healthy man, aged 49, was convinced that his duty to be “useful” to America overrode his separate and, one might think, equally strong duties to his wife and seven children, whom he would leave in poverty, or his obligations to clients and creditors, another acute concern found in his last letters.





The reaction to Hamilton’s murder among his old comrades shows how sincere the political hate was. Years later John Adams still asked why he should forgive the attacks Hamilton made on him merely because Hamilton died “with a pistol bullet through his spinal marrow.” Stories floated that Burr received an “ovation” at a Republican dinner in Petersburg, Virginia. Yet Republicans owed Hamilton. Hamilton despised Jefferson, and in fact had been personally friendly with Burr, but Hamilton’s fear of Burr’s dangerous tendencies and adventurism led him to derail Burr’s presidential bid—prevailing on the Delaware Congressman whose necessary abstention led to Jefferson’s victory—because, as he said, the “public good must be paramount to every private consideration.” Burr, later tried for treason after heading up a military expedition bound, apparently, for Mexico, confirmed Hamilton’s judgment. “I charge you to protect his fame,” said Gouverneur Morris at Hamilton’s funeral, to a city stilled by shock. “It is all he has left.” Then he asked his listeners not to engage in mob violence.




•••




American constitutional history can be reduced, if one must, into warring “Hamiltonian” or “Jeffersonian” traditions: the builder of order versus the exalter of liberty; consolidated energy versus “states’ rights”; a Constitution of growth, flexibility, and creativity versus a Constitution of constriction, rigidity, and caution. There is wisdom in journalist Walter Lippmann’s call for a truce: “To be partisan today as between Jefferson and Hamilton is like arguing whether men or women are more necessary to the procreation of the race.” But the parity that this implies has never existed. Jefferson has always overshadowed his archfoe, and Hamilton has been persistently denied his due. Until we recognize that the sweep of American history has been infinitely more Hamiltonian than Jeffersonian, that we quote Jefferson but follow Hamilton, I say, let the war of legacies continue.





D.H. Lawrence once told his wife: “Frieda, if people really knew what you were like, they would strangle you.” The line comes to mind in considering Americans’ attachment to the tall, mystical Virginian polymath. Like the Lawrences, we are joined with Jefferson in a bond, for better or worse. Our debts to him justify many rays of the aura of reverence he has basked in for two centuries. He was the most soaring, eloquent founder, possessed of a shape-shifting gift for giving voice simultaneously to the convictions of both Left and Right. How else to explain, for instance, that Franklin Delano Roosevelt, the great state-builder, erected a marble temple to the icon of state-minimalism, a man whose contemporary intimates, when they opposed a memorial to Washington, actually put on record their abhorrence of monuments as a trapping of imperialism? The idealized statue-Jefferson will never be dislodged from its shrine on the Potomac, but touching idols, as Flaubert said, does have a way of leaving gilding on the hands.





When Hamilton built his home in what is now Harlem, it rested amid lightly wooded hills and colonial cowpaths, nine miles north of the city. It was the only home Hamilton ever owned; he was otherwise a lifelong renter and early Manhattan commuter. (Those modern touches springing up again.) Hamilton, the supposed banker-elitist, put up a modest two-story home, using hard-won legal fees, in the distinctly American “Federal” style, and named it the “Grange,” probably in homage to the seat of his Scottish forebears but that also happens to be the old English word for the dwelling of a yeoman farmer. Jefferson, by contrast, the New World agrarian, chose an Italian name, Monticello, for the Palladian neoclassical mansion that he built with inherited wealth. Today Monticello, privately owned, proudly and fittingly, advertises that it receives no ongoing federal funding. But Hamilton’s Grange is a National Park, belatedly created by Congress after New York State lagged, again fittingly, to support it. Its website sheepishly invites people to visit the home of this “controversial” founder. Thousands do. But millions visit Monticello.





Nevertheless, Jefferson’s stock has sunk in recent years, largely because of his record on race. Jefferson denounced Hamilton as a closet monarchist while himself ruling as king over a self-contained mini-village, with its generations of vassals (some 600 slaves in his lifetime), who, he said, “labor” for my “happiness.” Some criticize Hamilton for writing about child labor in his report on manufacturing while forgetting that Jefferson actually used it. When around 1818 Jefferson noticed a spate of deaths among the black “little ones,” he ordered lighter duty for mothers, whom he believed were neglecting their children as a result of work duties. His reason for lightening the burden, however, as he wrote to a neighbor, with unforgettable creepiness, was that “a child raised every 2 years is of more profit than the crop of the best laboring men.”





Jefferson did not understand the economic forces reshaping the country because he was not part of that economy: he didn’t need banks because his assets were in flesh; compound interest had little appeal because his capital increased through procreation. Jefferson, the supposed man of science, concluded that black inferiority was “not the effect merely of their condition in life,” though they did improve, he felt, when their blood was “mixed” with that of whites. Hamilton was the better naturalist where it counted: in 1779 he praised a scheme to raise black battalions because it would prove that perceived black inadequacy was the result of their “want of cultivation” and the “contempt we have been taught to entertain” for them.





Jefferson’s politics were “tinctured with fanaticism,” said Hamilton, but he predicted that Jefferson, once possessed of authority himself, would “temporize” with his principles to “promote his own reputation.” Hamilton was right. At the very moment in 1786–87 that Hamilton was trying to bring order to America, Jefferson, in one of his many proto-Leninist outbursts, welcomed a farmers’ rebellion in Massachusetts by declaring that the “tree of liberty must be refreshed from time to time with the blood of patriots and tyrants”—“tyrants,” in this case, referring to Massachusetts state officials. Yet once in power, when President Jefferson faced his own “rebellion” along the Canadian border, he instructed New York’s governor to “crush these audacious proceedings, and to make the offenders feel the consequences of individuals daring to oppose a law by force.” Jefferson, in his “Kentucky Resolutions,” urged states to threaten disunion in response to the Sedition Act signed by John Adams, on grounds that the act suppressed political expression. But as president, now under criticism himself, Jefferson secretly urged state officials to bring a “few prosecutions” of Federalist newspapers, even identifying one to “make an example of.” Jefferson characterized Hamilton as an English lackey—a curious description for a combat veteran who had spilled English blood—before himself overseeing a ruinous, unconstitutional, and now-forgotten embargo policy that treated northern merchants as cruelly as George III ever dared.





President Jefferson at one point asked his Treasury Secretary, Albert Gallatin, to ransack the archives for evidence of Hamiltonian wrongdoing. “I have found the most perfect system ever formed,” Gallatin supposedly reported back. “Any change that should be made in it would injure it. Hamilton made no blunders, committed no frauds.” That didn’t stop Jefferson from continuing to accuse his rival of criminality during the 22 years by which he outlived Hamilton. In an 1816 letter to yet another successor to Hamilton in his old post of Treasury Secretary, Jefferson suggested expelling commercial types “as we do persons infected with disease.” That sincere proposal, I think, reveals the squire-savant’s deepening horror that his rival had pulled it off: Hamilton took a country with no past and planned its future. A simple measure of Hamilton’s entitlement to regard as more relevant than Jefferson is that Hamilton’s preoccupations—lively commerce, an intimidating military, watchful monetary stewardship—are today the boasts of every State of the Union speech.





What is remarkable, in the end, is not only what Hamilton achieved but how precisely it was spelled out in his “Continentalist” essays of 1781–82, at a time when most American leaders had only vague intuitions about what ought to be done for the country. The 1780s are written, in relief, in clause after clause of the Constitution that Hamilton fought for. No longer could a state like New York, for instance, ignore treaties or trammel trade, because the Constitution made treaties supreme over state law and gave Congress power to regulate commerce between the states. Hamilton operated at a time, it must never be forgotten, when his opposition denied that the United States even had the power to construct a lighthouse.





Hamilton’s origins exposed him to disparagement as a foreigner—or, as John Adams said, a “creole” and a “bastard brat of a Scotch peddler.” Hamilton concealed even from friends his squalorous upbringing, a humiliation to this most self-made of self-made men. Yet today these facts give his achievements even more heroic dimensions. This isle-to-eminence history, and his enlightened views on race, made the time ripe for Lin-Manuel Miranda’s celebratory half-rapped musical about the “founding father without a father” to take Broadway like a Nevis storm. The play, a sort of Parson Weems tale but with historical integrity, initiated the biggest popular Hamilton revival since Gertrude Atherton’s The Conqueror, Being the True and Romantic Story of Alexander Hamilton (1902). Yet the undervaluation of Hamilton continues to haunt him, even in the one place where he might have expected better. In 2015, the 76th Treasury Secretary announced the planned removal of his greatest predecessor from the face of the $10 note—part of an attempt, he said, to honor our “great leaders.” The secretary, whose staff apparently failed to brief him on the concept of irony, made the statement while standing in front of Hamilton’s statue. A groundswell of opposition, happily, forced a reversal.





Hamilton’s own assessment of his accomplishments, in late 1798, was this:

In some things my efforts succeeded, in others they were disappointed—in others I have had promises of conformity to lay the foundation of future proceeding the performance and effect of which promises are not certainly known to me. The effect indeed cannot yet be known. The public mind of the country continues to progress in the right direction. [T]he country will ere long assume an attitude correspondent with its great destinies, majestic, efficient, and operative of great things. A noble career lies before it.



My favorite Hamilton story is from Talleyrand, the legendarily corrupt French foreign minister who simply couldn’t fathom how Hamilton, a finance minister of all things, should have to resign for lack of cash. One night, in Manhattan, Talleyrand passed Hamilton’s office and was shocked to glimpse the lawyer toiling by candlelight. “I have seen a man who has made the fortune of a nation laboring all night to support his family,” he said. This eminently American scene makes all the more jarring a remark Hamilton let slip in his last years of anxiety about his fate, and his country’s: “[T]his American world,” he said, “was not made for me.” Perhaps that America was not. But this one is.

Table of Contents

Preface to the Paperback Edition xi

Overture: The Constitution's Third Century xv

Builders 1765-1804

1 A War Ends and a Constitution Begins Alexander Hamilton 3

2 The Philosopher of Philadelphia James Wilson 27

Fighters 1814-1897

3 The First Generation after the Founders Daniel Webster 51

4 Civil War and Uncivil Justice Stephen Field 71

Interlude From Abroad 1835-1888

5 Europe Visits at Mid-Century Alexis de Tocqueville James Bryce 95

Dreamers 1885-1931

6 The President of the Progressives Woodrow Wilson 121

7 Rights after Reconstruction to the Jazz Age Ida B. Wells-Barnett 147

Restorers 1934-2016

8 New Deals and World Wars Robert H. Jackson 173

9 The Dead Democracy Antonin Scalia 197

Finale: The Experiment Endures 221

Acknowledgments 227

Notes 229

Index 289

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