February 6, 2018

A RESTORATION, NOT A REVOLUTION:

Alexander Hamilton: Revolutionary Conservative Lawyer : A new book illustrates how Alexander Hamilton used British legal traditions and the American judiciary to give a distinctive constitutional form to a new republic. : a review of Kate Elizabeth Brown's Alexander Hamilton and the Development of American Law (2017) (Samuel Gregg, February 5th, 2018, Public Discourse)

In Novus Ordo Seclorum: The Intellectual Origins of the Constitution (1985), the historian Forrest McDonald underlined how conscious America's Founders were of what McDonald called "The Rights of Englishmen." McDonald especially had in mind the link made by many prerevolutionary Americans between liberty and property. But McDonald went on to stress how British constitutional arrangements, legislation, and common law shaped the same Americans' use of their property and liberties during the colonial period to a greater extent than they perhaps realized. [...]

Hamilton's project is usually portrayed as implemented through his political writings, advice tendered to President George Washington, and critical pieces of financial and economic legislation. Kate Elizabeth Brown's Alexander Hamilton and the Development of American Law (2017), however, highlights the extent to which Hamilton used British legal traditions and America's federal and state courts to achieve many of his aims. In doing so, Brown argues, Hamilton revealed himself not just "as a constitutional strategist" of the first order but also as a conservative innovator--one less nationalistic than is often supposed.

As Brown describes it, 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. [...]

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."

Had George understood that we just wanted our rights as Englishmen, the whole disaster could have been avoided.
Posted by at February 6, 2018 1:54 PM

  

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