The following quote is pretty much why people were terrified of Alexander Hamilton. To give you the proper context: he was answering criticism from his former Federalist Paper collaborator James Madison that this proposed Bank of America was un-constitutional. Hamilton had asked for a federal charter for the bank, Madison said there was nothing in the Constitution saying that the government should fund corporations. Hamilton pointed out that the last article of the Constitution – the one about Congress being able to make “all laws which shall be necessary and proper” – He said that that article was sufficient evidence that a charter would be constitutional.
BUT – the way Hamilton summed it all up was not calculated to assuage his enemies who feared his lust for power. He wrote:
Wherever the end is required, the means are authorized.
Okay, Machiavelli – whatever you say. Hamilton went on:
If the end be clearly comprehended within any of the specified powers, and if the measure have an obvious relation to that end, and is not forbidden by any particular provision of the Constitution, it may safely be deemed to come within the compass of the national authority.
One interpretation here, and it’s my own: Hamilton ended up being right about a lot of things (although his autocratic STYLE didn’t make him many friends) – and one of the things I think he was right about was that he was really the first one to challenge the Constitution that he helped create and defend. He was the first one to refuse to look at it as a rigid set-in-stone document, to be obeyed. No. It was to be USED, challenged. It was not dead. It was to be a LIVING document.
I suppose there are those out there who think I have just committed heresy myself. Strict constructionists, and all that. Whatever. Room for all of us in this big country here.
“No. It was to be USED, challenged. It was not dead. It was to be a LIVING document.”
Whoa, there. The “living constitution,” courtesy of people like Earl Warren and Bill Brennan and the 1937 Supreme Court ourt that reacted in fear for its life against FDR, seems to me another step beyond what Hamilton was talking about. If he could’ve imagined THAT, I can’t imagine him having ever written that the judiciary was the least powerfful branch of government. Hamilton as one of the drafters of the necessary-and-proper clause seems to have been advocating a vision of federal authority that would’ve been recognized and agreed with by John Marshall: more expanisive than dogmatic adherence to only each of the enumerated powers strictly understood, but not completely omnipotent, not, e.g., “the federal commerce power means Congress can tell you to not grow corn for your own private use.” (paraphrasing from Wickard v. Filburn, one of the “stitch-in-time that saved Nine” cases from 1937 and 1938 that showed Roosevelt had managed to completely reverse his fortunes and bring the Court to heel in favor of the political branches, a situation that hasn’t ever exactly righted itself since).
“I suppose there are those out there who think I have just committed heresy myself. Strict constructionists, and all that.”
I’m not a strict constructionist: I do not believe such a creature truly exists (even if they think they do), because it would require being caught up in the endless circuitous logic of a document that was often deliberately written in broadly sweeping language. I’m with Justice Scalia on this one. But Machiavellian words aside, and his own vision of expansive federal power notwithstanding, I don’t think Hamilton believed the federal government could everything it wasn’t specifically prohibited from doing. That would’ve missed the point of having enumerated powers in the first place. Saying “wherever the end is required, the means are authorized,” does very much sound like Nixon saying, “when the President does it, that means it’s not illegal,” but the second quote clarifies things enormously: there has to be clear comprehension of a particular end within the text and an obvious, not post hoc bullshit, relationship between the two.
DaveJ: Uhm, I didn’t say: “To strict constructionists, like Dave J…”
Calm down.
My point is that he was the first to treat the Constitution, brand new, as a living document, to be challenged. That’s it. It would obviously be the first of many many arguments about the nature of the document- but Hamilton’s challenge was the first. And the Constitution, if I might add, passed the test. That’s what I find striking and interesting about this entire event.
I’m calm. What makes you think I’m not calm…dammit! :-p
No, seriously, I think we’re more in agreement than my first comment might have made clear, and I certainly do think that of all the Founders, Hamilton was by far the most prescient. I just tend to react immediately to the idea of “the Living Constitution,” which sounds like it can mean anything, and at least recently has become code for “the Constitution means whatever Judge X wants it to mean today.” (Especially when Judge X = Justice O’Connor, in which case it may mean precisely the opposite tomorrow). I think it was Justice Thomas said, about the “living Constitution,” something like “that’s funny: my copy appears inanimate.”
Knee-jerk reactions aside (and I KNEW someone would have that reaction to that particular post), some people don’t want their sacred documents touched or challenged. Ever. Especially by a little nobody like me. I was talking to “those people” in general.
And I get the same response from by-the-book religious folk when I say, “I like to look at Genesis as a collection of amazing stories.” Not that I have no faith in the Bible, it’s actually the opposite – but I like to look at the whole thing as being there for us to pick over, ponder, interpret, learn from.
Hamilton wasn’t afraid to go up against the Constitution – he believed in the institutions he helped create. They could bear those challenges, and I think he set a great precedent.
There are those who want our government to be as still and perfect as a statue. No thanks. I prefer the mess. And again, Dave J: I’m not talking to you!!!
(I mean, I AM, obviously … but I’m not thinking evilly to myself: “I hope DaveJ reads this and gets my evil subliminal message…”)
The problem with interpreting the Constitution is that people will have different interpretations. Did they MEAN this? They could NEVER have seen how THIS clause would be used today … blah blah. Of course.
But like I said. I prefer that the debate goes on, even if it’s messy.
“There are those who want our government to be as still and perfect as a statue. No thanks. I prefer the mess.”
Hey, I worked for the past three years inside the sausage factory better known as the legislative, so believe me, I agree. “Mess” is the essence of self-government.
haha
I want to make sure you get, though, that I’m not commenting on this as THOUGH I am talking about you!!!
“There are those subliminal message: dave j dave j dave j …who want our government to be as still and perfect as a statue”
Just sayin’. :)
I can’t remember where I read it – but I feel like it was in one of Joseph Ellis’ books, maybe Founding Brothers … anyway, he said something like, The Founding Fathers did not set it up so that one side would win and one side would lose. They set it up so that the debate between the sides could continue.
Or something like that.
Part of it is also that when I hear or read “the Living Constitution,” I ammediately think of my dear “friends,” the Justice of the Florida Supreme Court, mostly with little serious respect for the law, even less for history, and none at all for separation of powers (three equal branches of government, one of which, theirs, is more equal than the others). They’re not who I’d want to mention in the same breath as Hamilton.
Put me down with Dave J. When I hear “Living Constitution,” I hear “a Constitution WE can make say whatever we want it to say.” I love the mess that is Constitutional debate, but I don’t think Hamilton saw the Constitution as a malleable document to be shaped and formed to fit every particular ideological goal. That you would suggest such a thing, you heretic, and on President’s Day to boot, gives me the conservative vapors. Not.
I LIVE to give conservatives vapors. After all, as is obvious here, it is way way too easy. You’re like a bunch of Victorian ladies requesting smelling salts.
I never said “Hamilton saw the Constitution as a malleable document to be shaped and formed to fit every particular ideological goal”. I said that his was the first challenge of the brand-new document that was the Constitution. He argued FOR the government giving the bank a charter, and he placed it under the “all laws which shall be necessary and proper” heading. This was without precedent – because, after all, his argument was the FIRST. And in doing so – he set up the precedent that the Constitution was not to be a document untouched, under glass, but it was something that could be argued, could be interpreted if you will. I think this is important – because Hamilton DID see ahead, he saw way further ahead, he foresaw the Industrial Revolution long before anyone else did … he saw that the Constitution, although a document of its day and age, would be needed in the FUTURE, for reasons they could only imagine.
Did you even read my post? I’m not even defending what you guys are arguing about. You’re having a knee-jerk response to something that is NOT HERE.
Happy Presidents Day.
Damn, Sheila. I thought it was obvious that I was just yanking your chain. I know you expect we conservatives to have the vapors over such things, and I was grabbing that role. To me, it is obvious that a document(brilliant as it is)written in the 1700s has to tolerate some flexibility to reflect an ever-changing world. For myself, I think any changes, additions, subtractions, etc. should occur only after very rigorous and sober reflection. I view the Constitution as a framework, or an outline–not intractable, but not something to be altered haphazardly.
heh heh
I knew you, of all people, were yanking my chain. The conservative chain. The vaporous conservative chain. I am sure it is quite amusing for you. (Obviously, I am a very easy target.)
:)
But JUST IN CASE, I wanted to make sure it was OBVIOUS what I was TRYING to say – because I felt like Dave J’s original response was actually to something that wasn’t in the post.
And that’s fine – I don’t care. JUST WANTED TO BE CLEAR.
Long live the Constitution of the United States.
That’s me. A proud member of the vast right-wing vaporous conservative chain conspiracy. It has a ring to it–and a secret handshake.
Shhhhh…DBW, what are you doing telling stuff like that in public view? Do you want EVERYBODY to know? ;-)
I think the thing is that you’re using your own terminology, but you’ve hit on what is essentially a term of art that’s predefined: “living constitution” = deconstructionist legal postmodernism, which I certainly don’t claim you’re defnding.
I suppose when you capitalize those 2 words (living and constitution) you get into a whole different ballgame. Living Constitution. It means something, it has some baggage attached to it. I have certainly heard plenty of gripes on both sides of this fence. I didn’t mean for the two words to be capitalized … in anyone’s minds.
Besides – how could you tell – WHEN I CAPITALIZE SO MUCH FOR EMPHASIS ANYWAY???
I suffer from a trauma of sorts: WHENEVER I SEE ALL CAPS, I ASSUME IT’S PSYCHOTIC TEENAGE ORLANDO BLOOM FANGIRLS TALKING. :-p
(apologies for the double-post)