“A work of superb scholarship and vigorous analysis. . . . This is an impressive work, comprehensive and sage. It is presented in a clear and engaging style. This book is quite worthwhile.”
–Dennis Owens, “The Appellate Practice Journal”

The Effective Republic

Administration and Constitution in the Thought of Alexander Hamilton

By Harvey Flaumenhaft

Duke University Press

Copyright © 1992 Duke University Press
All rights reserved.
ISBN: 978-0-8223-1214-7

Contents

Acknowledgments,
Introduction,
I Principles,
Part One: Popular Representation,
II The Characteristic Spirit of Society,
III The Natural Rights of Mankind,
IV The Structural Foundation of Government,
V The Partition of Power,
Part Two: Efficacious Administration,
VI Administrative Efficacy,
VII Unity,
VIII Unity and Duration,
IX Duration,
X Republican Constitution,
Part Three: Constitutional Integrity,
XI Independent Judgment,
XII Partisanship, Partiality, and Parts of Government,
XIII Partisanship, Partiality, and Popular Liberty,
XIV Return to First Principles,
Conclusion,
Notes,

CHAPTER 1

Principles

We Americans dwell together in a building long admired as commodious and even noble. But its inconveniences obtrude upon us, and its very safety has been questioned. Shall we prop it up or pull it down, make small repairs or thorough renovations? Or shall we just leave well enough alone? Our wish to reexamine the founding of our constitution springs not from an antiquarian love of lingering in museums; it arises neither from a pious longing to perform the rites of civic reverence, nor from a petulant delight in mocking heroes or battling authorities. We must make plans about the house that we’ve inherited; and in making plans for maintenance or renovation, a prudent heir examines plans and records left by those who built the house.

The American founders, not worshiping the work of human hands, nor disregarding wantonly what already was laid down, fearlessly pulled down connecting walls that made their habitation an apartment in a dangerous old castle; coolly they surveyed the edifice hastily erected afterward to enclose and join their several rooms; and they deliberately proceeded with a fundamental renovation. They found they had to show in full that the evils which Americans experienced proceeded not from minute or partial imperfections, but from “fundamental errors in the structure of the building,” which could only be amended by “an alteration in the first principles and main pillars of the fabric.” The “frail and tottering edifice,” it seemed to them, was “ready to fall upon our heads and to crush us beneath its ruins.” The “renovated edifice” was something very new.

Among the builders of the new edifice, Alexander Hamilton was regarded as a master. In “Character Sketches of Delegates to the Federal Convention” another delegate wrote of him: “There is no skimming over the surface of a subject with him, he must sink to the bottom to see what foundation it rests on.” Among his professional colleagues also, Hamilton stood supreme. According to a chief justice of New York’s supreme court, one who had been assemblyman, state senator, and Hamilton’s opponent as counsel in various cases: “Hamilton … more than any other man, did the thinking of the time.” And another chief justice of New York’s supreme court, Chancellor James Kent, professor of law and writer of an authoritative set of commentaries on American law, looking back in 1836 on the members of the New York bar “who took a leading share in business for some years after the close of the American War,” said that then, when everything was new, great talent was needed, and “among all his brethren, Colonel Hamilton was indisputably pre-eminent.” To his domestic party opponents, Hamilton seemed a “colossus.” More than once, Jefferson would plead thus with Madison: “We have had only middling performances to oppose him … when he comes forward, there is nobody but yourself who can meet him…. For God’s sake take up your pen, and give a fundamental reply.” A distinguished foreign observer, Talleyrand, said that he considered Napoleon, Pitt, and Hamilton to be the three greatest men of the age, and that without hesitation he would give first place to Hamilton.

It might be argued that Hamilton’s thought is not worth much consideration apart from an historical account of what he did, for he was not a theoretical writer but a statesman—a man who had to make decisions and engage in advocacy concerning particulars. Hamilton himself was well aware that the business of decision and advocacy differ from theorizing. Criticizing Adams as chief executive, he wrote about how widely the “business” of government differs from the “speculation” of it, and “the energy of the imagination dealing in general propositions” from “that of execution in detail.” What is choiceworthy in the circumstances, he pointed out, depends on what is feasible in the circumstances: “what may be good at Philadelphia may be bad at Paris, and ridiculous at Petersburgh.” Moreover, speech that urges the choice of a particular action must be adapted to its audience. Not only must one emphasize or single out minor points that are likely to have effect, one must sometimes adopt some of the prejudices of those one addresses, and even “a little of their nonsense.” Much of what Hamilton accomplished was done by others through whom he acted. Such influence requires sometimes drafting papers based on premises which the author may reject but is willing nonetheless to suppose authoritative.

Though differing from theory, decision and advocacy may have a grounding in thoughtfully articulated principle. When asked for his advice on one occasion, Hamilton replied that he regretted troubling the President with “the perusal of so voluminous a discussion”; but because “the judgments formed, in particular cases, are almost always connected with a general train of ideas, in respect to some more comprehensive principles or relations,” he therefore “thought it advisable to lay that train before you, for the better explanation of the grounds of the opinions, I now give, or may hereafter have occasion to give on the like subjects, in obedience to your commands.” When departing in a particular case from what he thought to be sound general principle, Hamilton was inclined to indicate that he was doing so. To avoid pedantry, he said, one must admit exceptions to any general rule, but such avoidance is not the same as an easy inconsistency: “a wise and good man may, on proper grounds, relinquish an opinion which he has once entertained, and the change may even serve as a proof of candor and integrity. But with such a man, changes of this sort, especially in matters of high public importance, must be rare. The contrary is always a mark, either of a weak and versatile mind, or of an artificial and designing character; which, accommodating its creed to circumstances, takes up or lays down an article of faith, just as may suit a present convenience.”

It was belief that principles are indispensable in politics which led Hamilton to stake his life in opposition to the career of Aaron Burr. Hamilton lamented the plan of some New Yorkers to run Burr against Adams for vice president in the second national election, Burr being a man with “no other principles than to mount”—”unprincipled”—”for or against nothing, but as it suits his interest or ambition”—”determined … to make his way to be the head of the popular party, and to climb per fas aut nefas to the highest honors of the State, and as much higher as circumstances will permit”—”bold, enterprising, and intriguing”—”his object to play the game of confusion.” For Hamilton to say this, thus taking part in elections while Secretary of the Treasury, was a departure from a principle which hitherto had been his rule, and thus it needed to be justified. He said that though he had hitherto scrupulously avoided interference in elections, the occasion was, in his opinion, sufficiently important to warrant in this instance a departure from that rule. “It is incumbent upon every good man to resist the present design,” he wrote; “I feel it to be a religious duty to oppose his career.” Calling Burr “an embryo-Caesar” who “cares nothing about the means of effecting his purpose,” Hamilton again justified his departure from that rule which deems it most proper for someone in his situation to avoid interference in any matter relating to the elections for members of the government. A decade later Hamilton’s associates had to choose between Burr and Jefferson for the chief magistracy. To the argument that Burr was preferable because “he holds no pernicious theories, but is a mere matter-of-fact man,” Hamilton replied that “If Burr’s conversation is to be credited, he is not far from being a visionary.” But while admitting that Burr “has no fixed theory,” and that “his peculiar notions will easily give way to his interest,” Hamilton asked: “Is it a recommendation to have no theory? Can that man be a systematic or able statesman who has none?” His answer was: “I believe not. No general principles will hardly work much better than erroneous ones.”

Unless there are true principles in politics, it would be folly to make an attempt at “establishing good government from reflection and choice” rather than to acquiesce in being “forever destined to depend, for … political constitutions, on accident and force.” It would be deceitful to proclaim that “My motives must remain in the depository of my own breast: my arguments will be open to all, and may be judged of by all. They shall at least be offered in a spirit, which will not disgrace the cause of truth.”

Hamilton’s principles, however, lie scattered about through many volumes of official reports, newspaper essays, speeches, letters, and miscellaneous papers. His collected writings require selection and arrangement to yield the principles that guided his handling of particulars. “Judiciously collected,” said Fisher Ames about Hamilton’s writings, “they will be a public treasure.”

When Hamilton was approached by Hopkins, the man who was to republish The Federalist in 1802, Hamilton “hesitated his consent to republication”; he gave Hopkins the impression that “he did not regard the work with much partiality”; “but, nevertheless,” said Hopkins, Hamilton “consented to republication” of the collected Federalist papers, insisting however that the edition include the Pacificus letters, which, he remarked to Hopkins, “some of his friends had pronounced … his best performance”; the hesitant Hamilton told Hopkins that “Heretofore I have given the people milk; hereafter I will give them meat,” words indicating to Hopkins “his formed purpose—to write a treatise on government.”

According to Chancellor Kent, Hamilton contemplated “a full investigation of the history and science of civil government and the various modifications of it upon the freedom and happiness of mankind.” He wished “to have the subject treated in reference to past experience and upon the principles of Lord Bacon’s inductive philosophy, and to engage the assistance of others in the enterprise.”

At the age of forty-nine, however, Hamilton was killed, “religiously” opposing the career of “an embryo-Caesar,” before he could write that treatise—leaving us the work of discovering for ourselves what animated his work.

For the appropriate attitude in which to examine the arguments of Hamilton, we might get light from Francis Bacon, Hamilton’s scientific source. In the Second Book of his Advancement of Learning, Bacon writes: “for the more public part of government, which is Laws, I think good to note only one deficience; which is, that all those which have written of laws, have written either as philosophers or as lawyers, and none as statesmen. As for the philosophers, they make imaginary laws for imaginary commonwealths, and their discourses are as the stars, which give little light because they are so high. For the lawyers, they write according to the states where they live, what is received law, and not what ought to be law: for the wisdom of a lawmaker is one, and of a lawyer another.”

CHAPTER 2

The Characteristic Spirit of Society

We begin with the end by which governing itself is governed. The prime end of all laws, said Hamilton in the controversy with which his public career began, is “utility.” But, it might be asked, utility for what? If we had to put his politics into a word, that word would be security: good government secures for the people safety and prosperity. Good governing, he said, is “productive of solid and durable advantages” for the people—advantages which he identified as “their union, safety, and prosperity.” But their union is itself only for the sake of their safety and prosperity. In a resolution he intended to submit to Congress in 1783, but abandoned for lack of support, he wrote that it would be unwise to “continue this extensive empire under a government unequal to its protection and prosperity.” Hamilton abandoned this resolution, but not his resolute effort to produce a government equal to the work of governing. As the Convention adjourned in 1787, having done its work of proposing a workable government, Hamilton wrote for himself some “Conjectures about the New Constitution,” in which he spoke about the people’s belief in “the necessity of the union to their safety and prosperity.” Subsequently urging the ratification of the proposed Constitution, Hamilton as “Publius” seemed to equate vindicating it with showing it to be “necessary to the public safety and prosperity.”

The preservation of liberty, it is true, was often listed by Hamilton alongside safety and prosperity as governing aims. Sometimes it even replaced safety or prosperity. However, he treated popular liberty not as a stage or an arena for displaying popular action, but rather as a protective device, which, moreover, properly established might help the people it protected to become yet more productive. As America moved toward independence, he asked: “will you give up your freedom”—”or, which is the same thing, will you resign all security for your life and property?” And he called the checks and controls on government which are provided by representation “that moral security which is the very essence of civil liberty.”

Sweet as liberty may be, what secures it must give way when it becomes an impediment to the protection which it is to serve. Writing of standing armies, and the corresponding appendages of military establishments, Hamilton called safety from external danger the most powerful director of national conduct. Even the ardent love of liberty, he said, will after a time give way to its dictates. The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort, for repose and security, to institutions which have a tendency to destroy their civil and political rights. To be more safe they at length become willing to run the risk of being less free. Liberty secures one’s safety against one’s own government; but in order to obtain the means of security against overwhelming danger from foreign governments, one may have to forego means of security against one’s own.

Although Hamilton recognized that government must submit to necessity, his judgment of measures often referred to their effects upon the nation’s “honor,” “character,” “dignity,” “reputation,” or “respectability.” But when Hamilton appealed to honor, he did not mean that political men should soar in quest of glory. He meant that men who cannot take care of themselves unless they cheat cannot respect themselves, and that men will have contempt for and put no trust in other men who cannot take care of themselves, whose words are not reliable and whose deeds are not sober.

National honor is an affair of durable solidity, not of lofty splendor: in matters of state we ask about utility. Political society is a means of coping with men’s insecurity, an insecurity preceding political society, though political society may complicate that insecurity. Political society is machinery for organizing swords and purses. Fear and desire are the beginnings of government; its ends are safety and prosperity.

Not that amid such beginnings and ends a merely petty interest attaches to the means. Men need shelter, so they build, and they try to make their houses safe and also comfortable; but a stately house is not merely a shelter: it is a noble and magnificent shelter, a delight to the overseeing eyes of its builders, its supervisors, and its resident owners. And so, while the Union was yet a congeries of shacks hastily thrown together on a great estate, Hamilton called for its rebuilding on proper foundations into a more stately dwelling. Writing on the sixth anniversary of the independence of the United States, in the very last paragraph of his series “The Continentalist,” he said that there is “something noble and magnificent” in the spectacle of a great federal republic, closely linked in the pursuit of a common interest, tranquil and prosperous at home, respectable abroad. And writing of the need for funding to make the public debt solid and stable, one important effect being to make it “useful as Capital,” Hamilton showed how even an “edifice” of “business,” a structure of interested enterprise that one would not think to call noble, may present a “spectacle” so “wonderful” as to evoke, by its vast liveliness, a kind of disinterested delight.

ii Hamilton wrote for men who mostly accepted as self-evidently true the ends of political society as he stated them. What was not self-evident to them, and what he found it repeatedly necessary to argue, was that, having accepted the ends, they had to abandon beliefs which did not well consist with achieving those ends. He sought to liberate them from opinions having their source in antiquity, for the animating spirit of earlier society was different from and inferior to that of modern society.

(Continues…)Excerpted from The Effective Republic by Harvey Flaumenhaft. Copyright © 1992 Duke University Press. Excerpted by permission of Duke University Press.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.