Re: Alexander Hamilton & ObamaCare
Earlier, Adam Freedman asked whether Alexander "Hamilton would have blessed the constitutionality (if not the wisdom) of Obamacare."
I don't think you can read Hamilton's support of the National Bank as endorsement of the idea that the government has no limits. He did think that the federal government could spend and tax for the general welfare, because of the placement of those powers at the head of Article I, Section 8. But that is different than saying he would interpret a power like the Commerce Clause to be essentially unlimited. As far as I know, he never made such an argument -- certainly not as a co-author of the Federalist, where such a claim would have been a devastating concession in favor of opponents of the Constitution, or as Secretary of the Treasury in the Washington administration.
Some have pointed to various things that Hamilton supported, such as the bank, or health care for mariners, and so on, to support the idea that Hamilton was in favor of a limitless federal power. But these examples arise under different powers -- such as the federal government's control over the navigable waters and maritime rules, or the taxing and spending power.
These commentators and bloggers overlook or ignore Hamilton's most important thinking on the nature of limited federal powers, Federalist 84, which was a criticism of a proposal for a bill of rights (an argument he eventually lost). Hamilton's argument against including a bill of rights was that this would imply that federal powers are unlimited. If you don't have a bill of rights, you understand that the limits of federal power are their description or enumeration. But when you have a bill of rights, you assume that the individual rights are carve-outs from otherwise unlimited federal powers. Hamilton would not have made such an argument if he had not believed that federal powers were enumerated and limited. His words are as important now as then:
I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.
If Obamacare is upheld, Hamilton's dire prediction may yet come true.
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Comments:
Mar '12
Re: Re: Alexander Hamilton & ObamaCare
Good post. The argument againt a Bill of Rights remains reasonable. But it's also true that it could have cut the other way in practice.
I have added some thoughts about Hamilton's views, noting the context of some of the statements that, the Left says, justify unlimited government, here:
http://ricochet.com/member-feed/Hamilton-s-Limited-Federal-Government
Re: Re: Alexander Hamilton & ObamaCare
Great point -- thanks, John. I agree of course that Hamilton supported the bank as incidental to the taxing power and the general welfare clause. But in his Report on Manufactures, he argues (or so it seems to me) that Congress is free to define the scope of the "general welfare.". He did note that "general" welfare must be national rather than local or regional, but otherwise, I don't find much of a limiting principle in his arguments. Don't you think Hamilton would agree with the Helvering court re general welfare? But of course, If the individual mandate isn't a tax, then the general welfare clause can't be used to justify the mandate. And I don't think Hamilton argued for a limitless commerce clause.
Apr '11
Re: Re: Alexander Hamilton & ObamaCare
I think that Hamilton's argument against a Bill of Rights was partly disingenuous, and that he was relatively happy with the Bill of Rights that eventually resulted; his fear, along with Madison's, was that the Amendments would include serious structural change to the Federal Government. The end results included little of practical importance at a time when the federal government was so limited in reach (at least nothing that made a huge difference during Hamilton's lifetime, or for a good while thereafter). The one possible exception was opposition to the Sedition Act, for which the First Amendment was helpful; even there, though, the Bill of Rights was not determinative.
Dec '10
Re: Re: Alexander Hamilton & ObamaCare
John,
Once again today in the hearing over Illegal Immigration and Arizona's Law, we saw that the administration is barely willing to make a normal legal argument. The government posited some imaginary power for itself to set National Policy over and above enforcing the law as written! In short unlimited tyrannical central power.
The concept of checks and balances, that of limited government, is simply pearls before swine to this administration. Even Sotomayor couldn't fully stomach the Obamite mindlessness. Will wonders never cease.
David Brooks is no conservative. He is an intellectual lightweight exploiting his pseudo conservative rep with the lefties for personal profit.
Thanks to Adam and John for alerting us to this gimmicky spin designed to change the subject from the fact that the Obama administration has apparently never read the US Constitution.
Regards,
Jim
Nov '11
Re: Re: Alexander Hamilton & ObamaCare
Random questions/thoughts:
1. It might be interesting to have an analysis comparing:
-- the extent to which a recognition of a constitutional right wins against an assertion of federal power
versus
-- the extent to which a recognition of a constitutional right wins against an assertion of state power.
2. Somewhat in the same vein: We all hear about Obamacare being challenged on federalism grounds as an improper expansion of federal power beyond what is enumerated in the constitution. But has anyone come up with a viable challenge to Obamacare as a violation of an individual constitional right? For example, would it be just plain silly to argue that, by having the effect of requiring individuals to share private health information with the government and/or with an insurance company, Obamacare mandates an "undue" interference (a la Roe) with the constitutionally protected "privacy" of the doctor-patient relationship?
A challenge based on individual rights (in addition to a challenge based on federal over-reaching) might actually bring along a few liberals:
Can the government, under Obamacare, force a woman to report her abortion to an insurance company for reimbursement?
Sep '10
Re: Re: Alexander Hamilton & ObamaCare
I've often been thankful that Hamilton lost that argument (intentionally or not), because the First and Second Amendments are often the only things standing between us and a federal government run amok.
May '10
Re: Re: Alexander Hamilton & ObamaCare
To imagine that he would have liked Obamacare is a slur on the great man, who I like much more than Jefferson. Of course he would not support it because it is not allowed, or even close to allowed. No founder would have ever thought it OK to force people to buy something.
Re: Re: Alexander Hamilton & ObamaCare
Thanks for this, John. Hamilton's quarrel with Jefferson and Madison turned on the necessary and proper clause -- i.e., just how much leeway the federal government had in exercising what everyone acknowledged to be an enumerated power. In the end, Madison -- who championed the Second National Bank -- had to acknowledge that, in the absence of a national bank, it was next to impossible for the federal government to fulfill its responsibilities. Never did Hamilton endorse treating commerce within an individual state as something subject to federal supervision. Everything turned on commerce among the states.
Edited on April 26, 2012 at 10:48pmSep '11
Re: Re: Alexander Hamilton & ObamaCare
John Yoo:
If Obamacare is upheld, Hamilton's dire prediction may yet come true. · · 20 hours ago
I believe Clarence Thomas said that using the commerce clause to prevent a private individual from growing marijuana for personal use would open the door to federal regulation of pot-luck dinners and sewing bees. I'm not a lawyer, so maybe that's why I find it such and fitting analogy. If he's right, then in what way has Hamilton's dire prediction not come true? Surely the nightmare has largely come to pass, even if we haven't lost every right not guaranteed in the Bill of Rights.