On Hamilton, Madison, Chait, and Klein

by Charles C. W. Cooke

Earlier in the week, New York’s Jonathan Chait took exception to Philip Klein’s suggestion that the Founders intended the Senate to act as a strong local check on the national government. Chait wrote:

A longstanding conceit of conservative thought, which has returned with new force during the Obama years, is that conservatism is the authentic heir to the vision of the Founders. (See, for example, Paul Ryan’s recent op-ed, which offhandedly describes his own polices, in contrast with President Obama’s, as consistent with “the Founders’ vision.”) One can see this in a dispute between liberal writer Jonathan Cohn, who complains that the Senate gives disproportionate power to rural, conservative voters, and conservative Philip Klein, who rebukes Cohn by instructing him that the Founders Wanted It This Way.

In response to this “instruction,” Chait suggested that:

It is true that the Founders agreed to create a Senate that gave every state equal voting rights regardless of population. It is not true that Madison — or Alexander Hamilton, whom Klein also quotes — wanted it this way.

On these two points, Chait is absolutely correct. There were many “Founders,” and between them they had a range of different ideas as to how they might achieve their goals. Some at the 1787 Convention, Madison and Hamilton included, flatly opposed the Senate as it today exists, preferring a more proportionately representative Congress. Others, including Connecticut’s Roger Sherman and many within the “anti-federalist” contingent, preferred to fracture power in order to ensure that the smaller states could more effectively prevent the larger states from riding roughshod over their preferences. The Constitution that we live under today is the product of a compromise between these positions. Yes, Madison and Hamilton eventually took to defending the Constitution as it had been written. But, as Chait notes, that should not lead us to believe that it was what they had wanted all along. It wasn’t.

Chait’s post was evidently intended to serve as a correction to Phillip Klein’s slightly misleading suggestion that the Senate was a Madisonian idea, and, insofar as it does that, it’s all well and good. Nevertheless, Chait goes a little further than simply ensuring that we take each founder at their word, at one point moving away from his central theme that the Constitution was a compromise rather than an “inspired vision” to suggest that “most of the figures we regard as the Founders despised the idea of one state, one vote.” I wonder what exactly this can mean? As I was when Michael Gerson and Peter Wehner went down this road, I am at a loss as to how we could even start to investigate who the most important Founders are? Do we choose the ones who did most of the work? The ones who went on to become presidents? The most famous among them? This is a document, remember, that was written in secret and then submitted to the people for their acquiescence. At neither the drafting nor the ratification stage did the Founders that Chait apparently likes the most have enough votes for their coveted plan. And that, ultimately, is all that matters. “The Founders” wrote a Constitution. The “Founding Electorate” accepted it. It is what it is.

Earlier in the year, in response to Wehner/Gerson, I pushed back against the tendency to elevate the views of some Founders above those of others, noting that

as legislation also bears the mark of those who either voted “No” or extracted concessions in exchange for their acquiescence, the Constitution bears the indelible mark of its critics. And, as the Beatles wouldn’t be the Beatles without Lennon’s acerbic cynicism offsetting McCartney’s silly-love-song lyricism, nor would the Founders be the Founders without Patrick Henry, Sam Adams, George Mason, and all of the proto–tea partiers whom Wehner and Gerson accuse of harboring “fierce anti-government fervor.”

Why is this important? Well, because in constructing their case, Wehner and Gerson do not refer to the text but to the extraneous views of the “most influential of the founders” — the membership of which exclusive group appears primarily to rely upon the degree to which candidates fit the case. Having established which contributors are to be taken seriously and, by extension, which are not, the authors then attempt to graft the views of their chosen few onto a document that bore many other names besides. This is a problem, underplaying the essential importance of the Constitution’s being a hard-won compromise and mistaking intentions for outcomes.

There are limitations to Chait’s critique of Klein, too. What Chait’s post tells us is that Madison and Hamilton had a different vision for the Constitution than did others involved in its commission, and that it is anachronistic to regard the pair’s post-hoc sales pitch as evidence of their early intent. What the post absolutely does not do, however, is to bolster Jonathan Cohn’s initial case, which was that the system we have is limiting the strength of the national government, that this is annoying and, possibly, unintentional. To make the case that Madison and Hamilton did not want a Senate is by no means to make the case that Madison and Hamilton wanted a strong national government. In fact, I would argue the opposite is the case: to wit, that while Madison and Hamilton opposed the Senate per se, they didn’t oppose what the Senate today achieves.

Broadly speaking, the Founders were agreed on what they wanted for the country, which was a national government that enjoyed more power than had the Articles of Confederation, but which would nonetheless be tightly limited in its scope. Certainly, there were disagreements as to that scope Alexander Hamilton wanted a stronger national government than did, say, Patrick Henry. But, in the grand scheme of things, these were minor disagreements. Thankfully, there were no Woodrow Wilsons or Herbert Crolys knocking around at the time, and nor had the evils of living constitutionalism come to blot the escutcheon. The spectre of George III loomed large above Philadelphia. In consequence, the disagreement largely regarded how the attendees might best structure what they agreed was to be a charter of limited and enumerated powers.

By and large, Madison and Hamilton believed that the logic of the Constitution was itself sufficient to guarantee liberty, and that explicit checks and balances were therefore structurally redundant. By and large, their antagonists did not. In the Hamilton-Madison view of things, the federal government couldn’t possibly grow too large because it had only been granted a few powers in the first instance. One can see this logic in action if one examines their opposition to the Bill of Rights. Explicitly enumerated rights, Hamilton concluded, while virtuous in and of themselves, represented “stipulations between kings and their subjects,” “abridgements of prerogative in favor of privilege,” and “reservations of rights not surrendered.” By adopting the Constitution, Hamilton assured those worried about the scope of the new government, “the people surrender nothing” and “retain every thing.” In consequence, “they have no need of particular reservations.” Madison agreed, writing to Thomas Jefferson in 1788 that it was “by the manner in which the Federal powers are granted” that “the rights in question are reserved.” Far from bolstering the protections against an intrusive national government, Madison suggested, “everything not expressly mentioned” in a Bill of Rights would be come to be “presumed to be purposely omitted.” Madison’s bottom line: Because the Constitution is a charter of enumerated powers, there is no need to limit the means by which the people might express their political desires, nor to codify certain rights. Why? Because the government can’t do much anyway.

Reasonable as they are in the abstract, these assurances did not placate everybody. And so, unconvinced that parchment barriers could ever check the growth of the state, a large contingent that came to be known as the “anti-Federalists” kept up their demands for extra checks — just in case. Among these checks were a Bill of Rights, which could be leveled against the government if it moved into areas beyond its remit, and a second chamber, in which each state would enjoy equal representation and thus the capacity to more easily vote down any attempt to expand federal power. History has demonstrated that the anti-Federalists were right to demand these things. The United States has done better than most other countries, but, as the skeptics feared that it would, this country has nevertheless proven incapable of maintaining a truly limited national government, and has therefore come to rely upon the backstops that the more awkward among the founders insisted would be necessary. Chait is correct to say that Hamilton and Madison opposed the creation of the Senate. But Hamilton and Madison got it wrong.

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