Hamilton’s Idea for the Courts Would Have Kept Liberals at Bay for Generations

Alexander Hamilton is currently enjoying quite the renaissance — at least for a founding father — among liberal Americans and/or hipsters. (But I repeat myself.) Apparently, if you put someone’s life story to rap, the young and avocado toast-inclined will eat it up like … well, avocado toast.

However, the particulars about what Hamilton believed might have made Lin-Manuel Miranda a bit skittish about going all hagiographical on everyone’s favorite Caribbean-born secretary of the treasury, particularly in the era of Donald Trump. See, while liberals are all about tying up the president’s agenda through the courts, Hamilton had a clear message for the president and Congress about constitutionally dubious rulings: simply ignore them.

In a piece for The Federalist, Ryan Walters noted that Hamilton thought there ought to be limits on the judiciary, even though he believed in the principle of judicial review.

“Many conservatives hold conflicting positions about dealing with illegitimate federal court rulings. They blast rulings from the high courts as unconstitutional, illegal, and improper, while stating the other branches of government must follow these rulings,” Walters wrote in a piece published this week.

“Conservatives watched in disbelief, for example, as federal courts ruled that President Trump’s treatment of foreign nationals was unconstitutional. Considering the seven applicable federal statutes, the president was on the firmest legal footing with three separate executive orders limiting immigration from countries that pose a national risk. While the Supreme Court months later upheld parts of these travel bans, this was just the latest example of a more central problem: lawless judges using their position to launch political attacks that slow or halt conservative policy.”

Walters pointed out that in the Federalist Papers, Hamilton argued the judiciary was ultimately subordinate and relied on the law of the land — particularly the Constitution — to make its decisions.

“Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them,” Hamilton wrote in Federalist 78.

“The Executive not only dispenses the honors but holds the sword of the community. The legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated,” he added.

“The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”

Hamilton agreed that the courts ought to be able to rule on legislation and whether or not it runs afoul of the Constitution.

“If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents,” Hamilton wrote.

“Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power,” he added. “It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.”

This street works both ways, Walters argued. If a judicial ruling very obviously runs afoul of the Constitution, it ought to be, well, ignored. He notes that some of the most heinous Supreme Court rulings of all time have been those that kept slavery and segregation alive (Dred Scott, Plessy v. Ferguson).

“If President James Buchanan and the 35th Congress had stated that they had no intention of following a Supreme Court ruling that violated the very natural law of liberty that ungirded the entire U.S. Constitution, Congress would have felt added pressure to find a political solution, and the nation may have avoided the Civil War,” Walters wrote. “This ruling allowed Congress to shift responsibility to the court and thus enshrined the deplorable continuation of slavery until more than 600,000 Americans lay dead.”

Of course, this is just a hypothetical, given that James Buchanan and most of his fellow Democrats did love them some slavery (Buchanan, in fact, pressured a dissenting justice in the case in writing, turning Dred Scott from a narrow decision that wouldn’t have much of an effect on the slavery question into a broader one that was supposed to settle the issue permanently in the favor of slave-holding territories), but it’s an interesting hypothetical, particularly in an era where courts try to make laws on their own.

One of the facts that becomes clear from Federalist 78 is that even those who favored judicial review at the time the Constitution was written were wary of the power that the courts could exert, particularly if they were stocked with activist judges who felt that their reach should go beyond the bounds of the document. In Hamilton’s case, that wariness went far enough that it could be read he believed Congress and the president ought to ignore or legislate around unconstitutional decisions by the judiciary.

That’s probably enough to get the “Hamilton” soundtrack off a few liberal Spotify accounts, I think.

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Hamilton’s Idea for the Courts Would Have Kept Liberals at Bay for Generations

One of the penalties for refusing to participate in politics is that you end up being governed by your inferiors. -- Plato (429-347 BC)

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