Establishing a lasting and free county is no easy task. “The process of ordering freedom is never simple,” Samuel Gregg writes in a new article for Public Discourse, “Formally ratifying a constitution isn’t the end of the process. Articles and clauses need interpretation, ambiguities necessitate clarification, disputes require adjudication, and governmental structures giving effect to the constitution’s purposes must be developed.” No one understood that better than the ten-dollar founding father, Alexander Hamilton.
Gregg reviews Kate Elizabeth Brown’s 2017 book, Alexander Hamilton and the Development of American Law. “If there’s anything [Hamilton’s] admirers and critics agree upon,” Gregg notes, “it is the single-mindedness with which Hamilton pursued his objective of vesting the new republic with a garb he considered worthy of a modern sovereign nation.”
Brown’s book outlines a “continuity amidst change” that Gregg explains:
Hamilton’s legal expertise proved especially relevant as he pursued five goals. These were: establishing a robust federal judicial power, enhancing federal executive power, creating a commercial republic, protecting the federal government’s fiscal powers, and securing basic liberties such as due process, trial by jury, and press freedoms.
There were, Brown states, two primary legal sources on which Hamilton drew to realize these ends. The first of these was Anglo-American common law. Among other things, common law emphasizes judges reflecting on judicial precedents to apply established principles consistently across time to address unresolved questions, especially when legislation is ambiguous or silent on the matter under consideration.
Yet common law was in Hamilton’s time (and ours) more complicated than this. Brown underscores that the common law to which Hamilton looked was “a centuries-old amalgamation of homegrown English and, later American, colonial law that also incorporated elements borrowed from the civil, canon, and natural law traditions.”
By Hamilton’s time, English and Scottish case law had become further overlaid by Enlightenment and modern natural law emphases. This added up to a remarkably cosmopolitan set of legal assets on which American lawyers such as Hamilton could draw. In Hamilton’s case, this was supplemented by his extensive personal knowledge of classical, Christian, natural law, and Enlightenment sources.
The second reference point for Hamilton, Brown maintains, was the British constitutional tradition. Hamilton was an unabashed promoter of Britain’s post-Glorious Revolution constitutional arrangements at a time when many Americans were suspicious of anything associated with Britain. Hamilton, by contrast, saw this heritage as the basis for what Brown calls “a restorative approach to the American constitutional system.”
It wasn’t that Hamilton wanted to replicate Britain’s precise constitutional arrangements or transfer holus bolus the content of British common law to the United States. Rather, he used these traditions in an instrumental fashion—almost like a legal toolbox—to realize a distinctive vision for the United States. Therein lies, Brown proposes, Hamilton’s method of conservative innovation through the law.
Gregg concludes by praising both Brown’s book and the “Scotsman, dropped in the middle of a forgotten spot in the Caribbean” himself:
Brown’s disputation of the widespread view of Hamilton as the consummate nationalist will surely be contested by many of Hamilton’s contemporary detractors and enthusiasts. 213 years after Hamilton’s death at the hands of Vice-President Aaron Burr, the very mention of Hamilton’s name still sparks ardent debates and disagreements among conservatives. Hamilton appears destined to be as controversial a figure in our time as he was during his lifetime.
It is, however, part of Brown’s achievement that she brings a dispassionate approach to evidence and a careful attention to the historical background of ideas to what will be unending disputes about someone whose powerful mark remains on America today. Brown’s book will hardly be the last word on Alexander Hamilton and the law. Nevertheless, it contributes greatly to our understanding of the thought and legacy of a complicated, flawed, occasionally reckless but, in my view, often very great man.
Featured image is in the Public Domain.