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).