Alexander Hamilton is suddenly popular among those trying to establish the constitutionality of Obamacare. Recently, David Brooks – an avowed “Hamiltonian” – wrote that the individual mandate would have been “perfectly acceptable” to the man on the ten dollar bill (Brooks goes on to quibble with the law’s cost control mechanisms). The WaPo’s Greg Sargent finds it highly significant that Alexander Hamilton supported the establishment of Marine Hospitals. And at SCOTUS, Justice Breyer pointed to the first Bank of the United States–Hamilton’s baby – as an early example of Congress “creating commerce.”
I’ll be the first to admit that it is foolish to try to channel the Founding Fathers. We can’t know what they would think today. As far as the law is concerned, all that matters is the text of the Constitution, and the fairest interpretation we can give it. But I’d be lying if I said I didn’t care. I take comfort in the idea that Obamacare would have been wholly unthinkable to the men who framed and ratified the Constitution. And Hamilton is, in some ways, an admirable figure: a brave soldier, advocate of a strong, unitary executive, and critic of the French Revolution. Various conservatives consider him a role model, including of course Brooks (who, with William Kristol, advanced a fuzzy notion of "national greatness conservatism" based partly on Hamilton's example).
Unfortunately, Hamilton also believed in federal intervention in the economy, big time. He preached the idea that government must promote “the public good,” i.e., government knows what’s best for you. In the name of the public good, he advocated high taxes, protectionist tariffs, a state-sponsored bank, and subsidies for select businesses. And he argued that all of this was perfectly constitutional. In his view, the General Welfare Clause empowers Congress to tax and spend for purposes beyond its enumerated powers -- with Congress being the sole arbiter of what counts as “the general welfare. “
As far as the Commerce Clause goes, he brushed aside distinctions between interstate and intrastate commerce. In arguing for the Bank of the United States, he breezily asked: “what regulation of commerce does not extend to the internal commerce of every State?” You could string together such quotations from Hamilton and submit them as an amicus brief in support of the government. And so, dear members, let me ask:
- Do you agree that Hamilton would have blessed the constitutionality (if not the wisdom) of Obamacare?
- If yes, does that affect the original public meaning of the document, i.e., do you think that many (or most) of the people who ratified the Constitution shared Hamilton’s expansive reading?
- Does anybody think that Hamilton ought still to be considered as “the architect of a native American conservatism,” as the late John C. Livingston dubbed him?