Bench Memos

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The Perennial Publius, part 67


I think Alexander Hamilton had a lot of fun writing Federalist No. 67, the first of his eleven essays on the presidency.  (Have I mentioned that beginning with No. 65 Hamilton is the author of all the remaining essays?)  Clearing the decks for a serious discussion of executive power–a subject no one among the framers understood better than Hamilton, with the possible exception of his mentor George Washington–he starts with some high-spirited mockery, worth quoting at length, of certain opponents of the Constitution:

Calculating upon the aversion of the people to monarchy, they have endeavoured to inlist all their jealousies and apprehensions in opposition to the intended president of the United States; not merely as the embryo but as the full grown progeny of that detested parent.  To establish the pretended affinity they have not scrupled to draw resources even from the regions of fiction.  The authorities of a magistrate, in few instances greater, and in some instances less, than those of a governor of New-York, have been magnified into more than royal prerogatives.  He has been decorated with attributes superior in dignity and splendor to those of a king of Great-Britain.  He has been shown to us with the diadem sparkling on his brow, and the imperial purple flowing in his train.  He has been seated on a throne surrounded with minions and mistresses; giving audiences to the envoys of foreign potentates, in all the supercilious pomp of majesty.  The images of Asiatic despotism and voluptuousness have scarcely been wanting to crown the exaggerated scene.  We have been taught almost to tremble at the terrific visages of murdering janizaries; and to blush at the unveiled mysteries of a future seraglio.

Wow.  That had to bring a smile to Hamilton’s face as his quill made the final period.  And having begun with such a merry exercise in ridicule, he devotes the balance of this essay to a merciless smackdown of the Anti-Federalist writer “Cato.”  This was probably George Clinton, the governor of New York, and if Hamilton knew it or thought it at the time, it had to give him great pleasure to put him in his place, for Clinton was his political nemesis for years, and the two men were to square off some weeks later at the New York ratifying convention.

Cato makes a simple mistake in reading the Constitution.  Article II, section 2, clause 3 reads: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”  Cato takes this to mean that if the seats of senators become vacant, the president is authorized to appoint senators who may serve through the next Senate session.  If he were right this would be a terrible transgression against the separation of powers.  But this is a rookie mistake of the most obvious kind, remedied just as soon as one locates the clause in its context: it appears immediately after the Constitution’s description of the process for appointing executive and judicial officers with the Senate’s advice and consent.  Elsewhere the Constitution (Art. I, § 3, cl. 2) plainly states that the responsibility for filling Senate vacancies lies with the state legislatures, and when they are not in session, with the governors of states.

Not for a moment does Hamilton grant that Cato’s error might have been made in good faith.  He seems to think it was too stupid to have been other than deliberate.  So he painstakingly (not to say brutally where Cato is concerned) corrects the record for his readers, and ends by offering this apology that doesn’t apologize:

Nor have I scrupled in so flagrant a case to allow myself a severity of animadversion little congenial with the general spirit of these papers.  I hesitate not to submit it to the decision of any candid and honest adversary of the proposed government, whether language can furnish epithets of too much asperity for so shameless and so prostitute an attempt to impose on the citizens of America.

Gosh, that felt good.

(For explanation of this recurring feature, see here.)


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