Tuesday, January 23, 2018

Hamilton Versus Trump Part 1

by Michael Dorf

Yesterday was the first meeting of a new seminar I'm teaching this semester called Hamilton Versus Trump: Reading the Federalist Papers in Contemporary Context. I intend to provide occasional reports on topics that arise in the seminar over the course of the semester when they strike me as likely to be of wider interest. But first, the course description:
This seminar will explore the contemporary relevance of The Federalist Papers. In constitutional law classes, students typically read excerpts of a few of The Federalist Papers. In this seminar, we will read them in order and in their entirety. 
For each of ten sessions, students will read a number of the essays. Prior to each of these meetings, each student will be responsible for identifying at least one contemporary issue to which the assigned reading from The Federalist speaks. Class discussion will then be divided roughly evenly between analyzing the arguments in The Federalist on their own terms and considering their relevance to such contemporary issues as how the Electoral College functions, the degree to which democracy presupposes a homogeneous population, and the mechanisms by which Congress may check the president. 
In the final three sessions, students will present and critique one another's drafts of research papers for discussion. 
My introductory materials provided slightly more background. I wrote:
The Federalist Papers may be read for various purposes. No doubt they shed some light on the original understanding of various constitutional provisions, but one must bear in mind that these were polemical documents. They aimed to put the Constitution in a light that their authors—John Jay, James Madison, and especially Alexander Hamilton—believed would appeal to New Yorkers considering whether to vote for ratification in the late 1780s. They do not reflect a consensus view of the original understanding. 
Moreover, constitutional law and American constitutionalism are not pervasively originalist. To give a couple of examples, the Framers did not say anything explicit about such questions as whether GPS surveillance constitutes a search within the meaning of the Fourth Amendment or whether Congress has the power to require that the president consult with other officials before launching a nuclear strike. 
Nonetheless, even when The Federalist Papers provide no unique answer to contemporary questions, they may shed considerable light. Hamilton, Jay, and Madison were key players at the Founding, practical politicians, and visionary statesmen. Despite the passage of 24 decades, the insights Publius expressed are surprisingly fresh and timely. At any rate, that is the premise of this seminar.
Because the first meeting of the seminar occurred during our drop/add period, for this session only students were not required to write reaction papers. We read Federalist No. 1 -- Federalist No. 8. I came to class with some notes but with the goal of letting the discussion go where the students took it. In my own preparation, I surprised myself by noticing how much of what I assigned was specifically relevant to the Trump era. That was a surprise because I had intended the title of the seminar mostly as a hook, expecting that occasionally we would find material relevant to our Trumpian moment but that, for the most part, the contemporary relevance, if any, of any particular number in the Federalist, would be to a wider set of issues. And yet, here's what I had in my notes:

Federalist No. 1 (Hamilton)

AH worries about “a torrent of angry and malignant passions” being “let loose.” He also worries about demagogues who pay “an obsequious court to the people . . . commencing demagogues, and ending tyrants.” Uh oh.

Meanwhile, here and throughout the Federalist, Publius (whether Hamilton, Madison, or Jay) tends to view the problems of institutional design as aiming at controlling the pathologies of human nature. Was Publius unduly pessimistic? Have we allowed ourselves to become unduly optimistic?

Federalist No. 2 -- No. 5 (Jay)

JJ is a clever debater. Rather than frame the choice facing NY and the rest of the country as the Constitution versus the Articles of Confederation or going back to the drawing board, JJ assumes that if the Constitution fails, the states will break apart into either 13 republics or into some small number of (2, 3, or 4) confederacies. He then aims to show that so divided, the chance of war will be greatly multiplied.

Note that JJ also makes an affirmative case for union based on demography. He describes the US as  “one connected country” inhabited by “a people descended from the same ancestors, speaking the same language, professing the same religion.” Is that true? What about Indian tribes? Enslaved African Americans? Members of dissident religious sects and non-Protestants and non-Christians? In 1790 there were over a thousand Jews in America. There were roughly 40 times that many Catholics (concentrated in Maryland). Was Jay an ethnic nationalist? How do we reconcile Jay's offhand statement with the Religious Test prohibition in the Constitution he was promoting?

Federalist Nos. 6 and 7 (Hamilton)

Continuing on JJ's theme, AH takes aim at what we now would call Immanuel Kant's theory of democratic peace--the idea that democracies do not go to war with one another. The immediate aim of Publius is to show that war among the states or sub-confederacies would be all too likely if the Union were dissolved, but his argument is broader. If Publius is right that there is no natural affinity among democracies, then perhaps that justifies a foreign policy of realpolitik rather than the Wilsonian idealism that has been its chief rival for the last century or so. Can Publius be invoked to defend Trump's courting of Putin?

Federalist No. 8 (Hamilton)

Wrapping up the case for the Constitution to preserve the Union to preserve the peace, AH argues that disunion will lead to hostilities, which will lead to standing armies. Putting aside for the moment the Founding generation's fear of standing armies, the broader shape of the argument should be very familiar: Nations long at war or at risk of war become garrison states in which civil liberties are lost. AH adds: “It is of the nature of war to increase the executive, at the expense of the legislative authority.”


So much for my notes. The actual discussion was lively and wide-ranging. I won't attempt to summarize it. I will simply note one striking observation. In No. 8, Hamilton warns that in a nation constantly at war or at risk of war, "by degrees the people are brought to consider the soldiery not only as their protectors, but as their superiors. The transition from this disposition to that of considering them masters, is neither remote nor difficult." Bracketing Trump's infatuation with generals, I do not think we are (yet) at the point where Americans consider military leaders our masters, but one student who grew up in Canada reported that Hamilton's observation about superiors strongly resonated with her experience upon coming to the US.

I responded that I think part of what she has observed was a corrective to the Vietnam War era, when anti-War protests sometimes were directed at the troops themselves. Since then, I noted, even anti-war activists have been careful to distinguish between opposing war and denigrating the men and women serving in the armed forces, with slogans like "Support Our Troops: Bring Them Home." We all agreed that the corrective made sense but that the culture has gone too far in the opposite direction. We ended that avenue of discussion by wondering whether the near-constant state of war over the last sixteen and a half years might also be a substantial factor in creating a culture that venerates the military (even as it provides inadequate support for veterans along many dimensions).


John Barron said...

MD: "Moreover, constitutional law and American constitutionalism are not pervasively originalist."

Never mind that the Framers respectfully disagreed. As Madison observes, there is only one proper way to interpret the Constitution:

I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone is it the legitimate Constitution. And if that not be the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers.

James Madison, Writings of James Madison: 1819-1836 191 (G. Hunt ed. 1910); accord, e.g., Thomas Jefferson, Letter (to Wilson Nicholas), Sept. 7, 1803 at 2; see also, 1 J. Story, Commentaries on the Constitution of the United States § 426 (1833). There is no contrary authority.

The problem LC advocates can't address is that of consent. Abraham Lincoln summarizes the concept ably: "no man is good enough to govern another man, without the other’s consent." Abraham Lincoln, Speech (on the Kansas-Nebraska Act, Springfield, IL), Oct. 16, 1854. And COTUS--as written--marks the outer limits of our consent. Where did we consent to a constitution that changes with the wind, and is changed in an ex post facto manner?

Who in their right mind would consent to that?

The proof lies in the obverse: If you would not willingly suffer my absolute rule, by what right do you claim absolute rule over me? The Framers surely would have found the notion of an LC intolerable:

"We are reduced to the alternative of chusing an unconditional submission to the tyranny of irritated ministers, or resistance by force. -- The latter is our choice. -- We have counted the cost of this contest, and find nothing so dreadful as voluntary slavery.

John Dickenson and Thomas Jefferson, Declaration of Causes and Necessity for Taking Up Arms, Continental Congress (U.S.), Jul. 6, 1775.

The Framers were Calvinists, convinced of the depravity of Man. To them, absolute power corrupted absolutely. The conceit that they would have granted judges unfettered power to rewrite COTUS in their image is risible.

Shag from Brookline said...

I'm curious as to the "appeal" of the Federalist Papers to ratifiers in states other than NY. Also, I trust that this:

"They [Federalist Papers] do not reflect a consensus view of the original understanding. Moreover, constitutional law and American constitutionalism are not pervasively originalist."

will not sidetrack the aim of this post. And one could argue that we have had a near constant state of war going back to WW II.

John Barron said...

MD: "In 1790 there were over a thousand Jews in America."

Out of a population of about 3,900,000. “[A] people descended from the same ancestors, speaking the same language, professing the same religion” was materially accurate, if you ignored the natives--who weren't really a part of their society. "Filthy atheists" like Tom Paine largely kept their beliefs to themselves out of self-preservation, and the slaves were indoctrinated. "God wants you to be a slave."

MD: "How do we reconcile Jay's offhand statement with the Religious Test prohibition in the Constitution he was promoting?"

America was, in large part, a nation of religious dissenters. The strictures against religious tests were driven by a universal interest in not creating an American analogue to the Church of England.

MD: "Nations long at war or at risk of war become garrison states in which civil liberties are lost."

We've been at war with somebody for more than half my life, and are dangerously close to fascism. Eisenhower warned us, and he was prescient.

The problem with a standing army is that you are eventually going to find some reason to use it. As General Smedley Butler observed, we have always used it as "the muscle" for the gang of plutocrats who actually rule us. (Amusingly, we are screaming like banshees about Russia doing to us what we have done to just about every country in the world at one point or another.)

We are not free men. The government can do just about anything it wants to us with total impunity, and "our betters" are exempt from the rule of law. Hamilton was prescient, as was Washington (wrt faction).

The overriding question is whether the American experiment has finally failed (it has), and the Federalist is essentially telling us what the hell happened. That is why we should study it.

John Barron said...

Shag: "the aim of this post"

Correct me if I am wrong here, but I see it as searching for lessons pre-learned in the mortifying Age of Trump. MD didn't need to reflexively preach LC dogma to get there, as the lessons imparted would be the same.

Madison summarizes the problem (Fed#51):

"If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself."

As Washington warned us in his Farewell Address, faction was the Achilles heel of this elegant system they had constructed. From Nunez to Sessions to Gorsuch to Ryan, we see the firebrakes against "dangerous ambition" fail. Was our system fatally flawed from the outset? Trump was elected to be a human Molotov cocktail [Michael Moore]. Can we even repair the damage?

(If I might make one suggestion to MD, it is that several key Anti-Fed essays be a part of the curriculum (esp., the response to #84).)

Shag: "And one could argue that we have had a near constant state of war going back to WW II."

Already went there.

Shag: "I'm curious as to the "appeal" of the Federalist Papers to ratifiers in states other than NY."

Even cursory review of Elliot's reveals that their thoughts were not unique. From Maine to Georgia, the same basic concerns were consistently raised, albeit not always with the skill of "Publius" and "Brutus."

Shag (quoting MD): "They [Federalist Papers] do not reflect a consensus view of the original understanding."

You guys so desperately keep trying to ride this wooden horse, hoping that it will go somewhere. You will search in vain for any Framer endorsement of the LC, inasmuch as there was no time for material linguistic or societal drift to have occurred. Besides, optima est lex, quae minimum relinquit arbitrio judicis: That is the best system of law which confides as little as possible to the discretion of the judge. Whether in law or equity, the Framers saw the judge as “a mere machine." Thomas Jefferson, Letter (to Edmund Pendleton), Aug. 26, 1776.

Greg said...

In response to John Barron:

While I'm sure Prof. Dorf would endorse some form of living constitution himself, the two circumstances he references (GPS surveillance, nuclear first strike) are hardly controversial in the idea that they can be addressed by applying constitutional principles without necessarily having the result explicitly called out in the constitution. This is particularly true for GPS surveillance.

Are you really arguing that we require a constitutional amendment any time a new technology is discovered that doesn't precisely fit into the norms established for technologies that existed in 1787? That's a pretty extreme position to take, even for a strict originalist.

Michael C. Dorf said...

John Barron: In numbers 37, 78, and 82, we find Publius expressing the idea that experience will be necessary to liquidate the meaning of the Constitution. There is a version of originalism compatible with this idea, but it is a fairly expansive version of originalism. I was noting only that the narrow version of originalism--which is incompatible with such notions of liquidation--is clearly rejected by contemporary constitutional law and practice. In any event, I'm sorry to have upset you so much by acknowledging the empirical fact that "constitutional law and American constitutionalism are not pervasively originalist." Consider this your nunc pro tunc trigger warning for this blog post and your prospective trigger warning for future posts.

John Barron said...

MD: "I'm sorry to have upset you so much"

Don't know why anyone would get upset over academic discussion. Certainly, not me. But as I am prohibited from commenting further, I will leave you to debate "liquidation" and its compatibility with originalism with Professors McGinnis and Rappaport.

Joseph Fishkin said...

This course sounds like a fascinating/depressing project. I assume you have probably seen Sandy Levinson's book, An Argument Open to All? It's antetrumpian by about two years (ante not anti); it's a set of short essays on each of the federalist papers as read today. It does seem like a good time to revisit them.

Unknown said...

Mr. Dorf,

I've read through several of your articles & felt inclined to inform you that anti-Trump propagandists such as yourself, whilst masquerading ideological subversion as curriculum, aren't accomplishing much by way of seditious conspiracy.

Any way you dream to nonchalantly advertise alternatives to the document(s) that were forged during the founding of our nation in hopes of ousting President Trump suggest much about what you've done for your country.

I understand that you've never had a fifty caliber lead ball wiz by your head, nor have you loaded a musket under duress, or watched your brothers blown to bits, which is a good thing because you probably would've cowered & wavered a white flag to a tyrannical power that completely agrees with your perspective, leaving your countrymen at the mercy of those who you betrayed us for.

I'm not clear as to whether or not you're proud of our Constitution or what it actually stands for (certainly not parchment paper..), but I am, not for its ancient verbiage (which clearly didn't consider our modern technologies), so much so as for its absolution, decree of liberty, service of justice, and freedom. (just ask Georgie III)

The United States is the greatest nation on earth, and if you don't like it or its history, or seek to demonize or defame its leader(s), please leave.

Consider where the US started & why, and where we are now, and perhaps entertain the notion of teaching a class about it & how the citizens of today can make an even better America tomorrow.

Semper Fidelis.