Richard Nisley

Alexander Hamilton on his birthday
History - American Released - Jan 11, 2019
Alexander Hamilton’s birthday is January 11.

His contributions to our nation’s founding are considerable. So much so, that Thomas Jefferson referred to him as “a host unto himself.” Not only did Hamilton serve as aid-de-camp to General George Washington during the Revolutionary War, he helped frame the U.S. Constitution, and wrote 51 of the 85 essays that comprise the Federalist Papers. As Treasury Secretary, his imaginative and far-reaching Funding and Assumption Bills made provision for the massive war debt and, combined with another of his creations, the United States Bank, jumpstarted American capitalism.

His Federalist essays—particularly No. 78—laid the groundwork for judicial review, which Marbury v. Madison, the Supreme Court case, created by setting a legal precedent. If that weren’t enough there’s more, according to historian Kate Elizabeth Brown, which is the subject of her book, “Alexander Hamilton and the Development of American Law.”

Historians generally portray Hamilton as the "archnationalist" of the early American republic—to wit, as a large-F Federalist. Brown makes a very compelling case that Hamilton was, in fact, a small-f federalist, dedicated to balancing robust federal and state sovereignty. She writes: “Hamilton’s most profound influence on American law—and his greatest debt to British constitutionalism—is concurrence.” As Hamilton applied it, concurrence sought to harmonize the combined executive and judicial authority concurrently exercised by the national and state governments. "It was Hamilton’s broadest, most far-reaching influence over American law," writes Brown, "and it is evidenced by the judges and lawyers who continually cited Hamilton as the authority on the matter. By enacting functional and federal concurrence, Hamilton quite literally wrote the rules and set the precedents that configured the American legal system. Concurrence rendered Hamilton . . . as a true, small-f federalist.”

That, in effect, is the book’s thesis, and the author supplies a mountain of evidence—all amply foot-noted—that supports her argument. Indeed, Hamilton first sketched out a model for concurrence in Federalist Nos. 32 and 82, where he described how the national and state governments could simultaneously exercise their overlapping powers yet still coexist with minimal interference.

In the closing chapter—“Litigation, Liberty, and the Law: Hamilton’s Common Law Rights Strategies”—she makes an equally compelling case that Hamilton was at heart an advocate of individual liberties and a free press. “What scholars and biographers have missed,” she writes, “is that Hamilton was always a common lawyer at heart; therefore, he held a deep reverence for the rights and liberties provided and protected by the Anglo-American common law. . . . (T)hroughout his career, Hamilton fiercely and consistently fought to preserve common law rights for all Americans.”

“Alexander Hamilton and the Development of American Law” is Professor Brown’s first book. At times, it is not an easy read. While the writing is reasonably clear, she presents a great deal of case law and legalese that at times is repetitive and sometimes a bit overwhelming. In the intro, the author admits as much: “. . . if you are willing to endure the occasional technical parts of the narrative, I will make clear the significance to be threaded from those legal details and complexities.” I underlined significant passages and took notes (as if back in college preparing for an exam). In the end, I came away deeply impressed with Hamilton as the supreme administrator of the Washington Administration, while learning exactly why for 16 years he was one of the best—if not the best—attorney in the nation. Throughout the nineteenth century, he was the legal authority of American law, cited again and again, even by his rival and fellow attorney, Thomas Jefferson.

- END -
Copyright © 2012-2020 Richard Nisley - All Rights Reserved.