Rectifying the Fourth Term

The Guardian’s disclosure of the federal government’s (until now) covert program of gathering communications data between American citizens and foreign countries has vindicated our piece on the constitutional underpinnings of Hamilton’s financial policies. The need for an evolving stance toward strict constructionism has become incumbent on civil libertarians.

Before embarking on the two-hour drive from Cromarty, Scotland to John O’Groats, I picked up a copy of today’s Guardian from a local convenience store. Therein appeared extensive coverage of official British complicity in the NSA’s zealous data mining activities, capped by an editorial in which the journalist responsible for breaking the story, Glenn Greenwald, argues that we have arrived at a constitutional crossroads reminiscent of the post-Watergate era, during which a broad realization of governmental overreach catalyzed a movement toward curtailing presidential powers.

Richard Nixon’s abuse of the national security apparatus and his persecution of those who brought such misfeasance to light led to the enactment of the Foreign Intelligence Surveillance Act. This law created a secret court to which president (theoretically) must appeal whenever intelligence collection might encompass American citizens. It was FISA that the Bush administration circumvented via the NSA’s warrantless wiretapping program.

We hope that similar safeguards are pursued in the coming months. Americans’ ignorance of their government’s behavior, juxtaposed with the American government’s knowledge of its citizens’ behavior, has persisted for far too long.

One method for achieving such change involves an unadulterated reading of the Bill of Rights, specifically the Fourth Amendment’s restrictions on unreasonable search and seizure. To use Supreme Court parlance, the federal government should be subject to “strict scrutiny” in its gathering of information. Any scenario that could conceivably threaten the Constitution’s explicit guarantees concerning the conduct of investigations or its implicit recognition of the right to privacy (what one justice referred to as the “broad penumbra” cast by the Bill of Rights) demands an unequivocal judicial veto.

Prism, the NSA’s recently disclosed program, meets these criteria. Notwithstanding President Obama’s insistence that congressional oversight should alleviate constitutional objections to the system, the collection of Americans’ call logs and the parsing of their foreign communications are patently inconsistent with the basest reading of the Constitution, particularly when such surveillance occurs without the subject’s knowledge.

Though we approach their Orwellian narratives with skepticism, Tea Party activists and their political sympathizers, much maligned on this blog, have a right to treat the Prism controversy as a partial confirmation of their raison d’être. While their most virulent protests were elicited by the President’s domestic reforms rather than his foreign policy, their insistence that an overbearing central government has overstepped its constitutional bounds has attained greater validity.

Liberal readers reluctant to tip their hats in a similar fashion must distinguish between President Bush’s pursuit of terrorism and Obama’s. Ari Fleischer, former press secretary to the younger Bush, perceives the 44^th president’s adoption and subsequent expansion of his boss’s rhetoric, tactics, and rationale in the realm of foreign policy as a long-awaited vindication of Bush’s tenure in the Oval Office. We take issue with his conclusion, but concur in his suggestion that Obama has expanded rather than curbed the powers of an imperial presidency.

Followers will recall our argument for an elastic ideological treatment of the Constitution in a previous post. To illustrate our object, we foregrounded Hamilton’s reliance upon Congress’s implied powers to create a national bank under the necessary and proper clause. We argued that the feckless system of government that existed under the Articles of Confederation necessitated assertive constitutional stances stern enough to buttress a fledgling national government.

Our contemporaneous support for strict constructionism raises a critical question: if we determine whether or not to take the Constitution at its face value according to the times, what principles contained therein remain constant? To justify Hamilton’s erection of a federal government, we must prove that there is something worthy of erecting. A cyclical emphasis on implied powers and civil liberties would prove pernicious to both if no coherent defense of the methods used to protect them were offered.

To these considerations we respond that the kernel of civil liberty threatened by Britain’s imperious actions in the wake of the Seven Years’ War and codified by the first ten amendments to the Constitution represent one leg of the American social compact. Our government exists to protect rather than confer these rights, and their temporary violation calls for electoral and legislative redress.

We infinitely prefer such a moderate course of action to its alternative, not broached by Americans since 1860. In the event of a permanent violation, the prudent and considered dissolution of the existing government and the systematic formation of a new one are called for.

The other leg involves the requisite powers of government. It must possess authority sufficient to prevent citizens from infringing upon the freedom of their fellows, and not a mite more. The threat to republicanism posed by violent minorities calls for vigorous action on the part of the central government, as it did during the Civil War.

The preservation of civil liberty and good government are equally inviolable and, we believe, mutually reinforcing. No present contingency calls forth the assertion of federal prerogatives, yet civil liberty has been violated. The hour has struck again for strict constructionism. The revolving hour hand will remain fixed until reforms commensurate with infringements have been adopted.

Parsing Revolutionary Reality

“There is one thing, my dear sir, that must be attempted and most sacredly observed or we are all undone. There must be decency and respect and veneration introduced for persons of authority of every rank.” -John Adams to a friend, 1776

“[Born] on a speck more obscure than Corsica, from an original not only contemptible but infamous, with infinitely less courage and capacity than Bonaparte…a Creole bastard…the bastard brat of a Scotch pedlar.” -John Adams (plagiarizing Jonathan Swift) on Alexander Hamilton, America’s first secretary of the Treasury and the most pivotal force in establishing the government of the United States in independence from Great Britain

The contrast in these two statements, culled from the correspondence of John Adams as easily as they would have been plucked from that of his illustrious contemporaries, encapsulates a fundamental contradiction that has traditionally born intellectual fruit for biographers and professional historians: the contradiction between the Founders’ eloquent defense of liberty, self-government, and intellectual freedom during their opposition to Parliament and the vituperative and highly personal partisan squabbles in which they partook following adoption of the Constitution.

Thomas Jefferson, whose ringing prose inspired Adams to nominate him as the principal author of the Declaration, descended into feverish Francophilia after his appointment as George Washington’s secretary of state, allowing his exuberant embrace of Parisian life during his service as America’s minister to the court of Louis XVI to cloud his assessment of events leading up to an following the storming of the Bastille in July of 1789, during which the monarch to whom he represented his nascent country was consigned to the guillotine. Even less palatably, he outsourced the task of criticizing Hamiltonian policy to Philip Freneau, a man whose passable French earned him a token appointment as a State Department translator, thus affording him the economic independence necessary to engage in incessant and highly personal volleys against the treasury secretary and, eventually, the president himself.

If Jefferson remained tethered to his irrational fears that Hamilton stood at the head of a British-sponsored plot to reimpose monarchy upon the United States, Hamilton’s suspicions that his colleague from Virginia posed an anarchical threat to good government became no less blinding. Just as Jefferson would become tacitly approving if not complicit in the exposure of Hamilton’s extortionate affair with one Maria Reynolds, Hamilton was one of the first to publicly cast moral aspersions on his rival by alluding slyly to the Sally Hemmings affair (his knowledge of which was most likely gleaned from Jefferson’s friendship with Hamilton’s sister-in-law Angelica Church). The two remained riven by their mutual hatred, Jefferson suspecting Hamilton of speculative enterprises and commercial corruption and Hamilton approaching Jefferson as a dangerous and impractical libertine. This personal rivalry would spawn the first political parties in the new republic, institutions toward which the Framers professed outright hatred during their defense of the Constitution.

James Madison, on the heels of his magisterial collaboration with Hamilton in the Federalist, initially became one of Washington’s foremost advisors as a Representative from Virginia, second in influence to Hamilton alone. Madison’s scholarly bent and his political ingenuity, alongside his diligent attendance to the formation and promulgation of the country’s founding charter, rightfully earned him the title “Father of the Constitution.” It was he who argued in Federalist number 10 that, contrary to the views advanced by Montesquieu, a republic could sustain itself over a broad geographical area by encompassing a multitude of factions that would cancel out each others’ hegemonic influence. He would go on to become a canny operative for the Jeffersonian Republicans, glorying in the abuse unleashed by the publication of the Reynolds affair.

John Adams distinguished himself as the veritable engine of the Revolution at the Second Continental Congress, leading the charge toward an outright break with Great Britain in the face of moderates like Pennsylvania’s much venerated John Dickinson. His oratorical prowess brought fellow delegates around to the more militant views of the Bostonians, convincing them that armed resistance alone could recover tarnished English liberties. The bundle of insecurities which tempered his peerless gifts came to full froth following his election as Washington’s successor. Though his ceaseless commitment to obeying his conscience in spite of the public clamor (a trait which this writer has lauded previously), his sensitivity to criticism, a crippling vulnerability for any public figure, led him to support the 1797 Alien and Sedition Acts, which essentially outlawed Democratic-Republic criticism of Federalist officials in a patent violation of the First Amendment.

One suspects that Benjamin Franklin’s deep-seeded pragmatism might have exercised a reconciliatory influence over these disputes. His death in 1791 (at what he might have termed “a ripe old age”) was surely a grievous loss to the tone of political rhetoric. Washington, who at first tried to straddle the divide between his two prolific ministers, found himself drifting closer to the Federalist party in the face of Republican enthusiasm for the French Revolution and the seditious behavior of Citizen Genet, a French diplomat who unsuccessfully sought to outfit American privateers on behalf of his government in strict violation of Washington’s declared policy of neutrality between England and its continental rival. His disgust for the petty journalism that defined 1790s American politics alienated him from Madison.

What are we to make of these muddled character sketches? The disaffected teenager that I once was might have parroted the facile observation of the history teacher from Dazed and Confused (shot in our hometown of Austin, Texas), who encourages her class to celebrate the Fourth of July by remembering that they were setting the sky aglow in honor of rich white men who didn’t want to pay their taxes. My outlook on history has evolved.

Ron Chernow, from whose Alexander Hamilton the quotes appearing at the head of this piece were excerpted, suggests that we do nothing more than treat the Founders fairly. That is to say that we recognize them as a group of uniquely gifted and supremely driven individuals whose circumstances and historical context allowed them to showcase their virtues.  Unsurprisingly, the need to come down from the Olympian heights of tearing down an imperial regime to the thankless job of erecting a representative government corroded some of their gloss and revealed the human foibles underneath. We should strive for understanding of the ideological and biographical traits which led to these conflicts. We should not discard the lock, the stock, and the barrel in an attempt to show how clever we are.

An Endangered Species

“If mankind were to resolve to agree in no institution of government until every part of it had been adjusted to the most exact standard of perfection, society would soon become a general scene of anarchy and the world a desert.” -Alexander Hamilton

After a week in the Welsh countryside, my family and I are staying in Oxfordshire for a few days prior to our departure for Scotland. Today we took a trip around the Cotswolds, a string of verdant hills approximately 60 miles in length that surrounds this English county. During our drive through the picturesque landscape, I fell into conversation with our local contact, a retired geography teacher of 30 years who resides in Abington, a small town in the vicinity of Oxford.

As is my wont, I directed the discussion toward politics, asking him to describe the fissures that divide the Conservative and Labour parties. The Conservatives (a.k.a. Tories), as their name might suggest, hue more closely to our Republican party in their fiscal policy, whereas Labour adopts the conciliatory attitude toward regulation reminiscent of our Democrats. I should note briefly that Britain’s third major party, the Liberal Democrats, entered into a coalition government with the Conservatives several years ago (the British government is a parliamentary as opposed to a presidential system, whereby the majority party in the legislature appoints the executive branch, often requiring parties with a plurality but not an outright majority to join hands with their competitors before “forming a government”).

I mentioned in passing that our liberals and conservatives seem to be torn by a fundamental disparity in their outlooks on the rightful scope of government. He corroborated this observation, describing the Tories as a party that frowns upon regulation and closer ties with the European continent. He identified the Conservatives’ austere handling of the economic crisis precipitated by the Wall Street crash of 2008 and the turmoil which followed on the Continent as a point of departure from Labour’s greater faith in Keynesian economics and proactive government investment in infrastructure, healthcare, and education.

None of this should come as any surprise for anyone with a cursory knowledge of British politics. What stood out as a point of empathy for me was our friend’s frustration with the disappearance of moderate Conservatives, nicknamed “one nation” Tories over here. Apparently, the far right has become more popular in recent years, capitalizing on the cultural anxieties which inevitably accompany a massive influx of immigrants to legitimize ideologies that ring faintly of neo-Nazisim (one assumes that the gruesome murder of a British soldier in London by Islamic extremists will only further inflame the contretemps between assimilationists and isolationists).

This trend has made Conservative politicians who assume a less confrontational attitude toward taxation and regulation less viable, and has even encouraged a Labour attempt to capitalize upon latent animosity by aping far right arguments. (Perhaps it would be prudent to inform readers that this account came from a man who takes an admittedly left-leaning newspaper; though the broad scope of this summary should be taken at face value, its disapproving tenor should be approached skeptically).

Any one who is familiar with the Tea Party’s open disgust of moderate Republicans, who assumed for conservative grassroots activists the moniker R.I.N.O.’s (Republicans in Names Only) following President Obama’s elevation to the presidency, alongside the mainstream Republican party’s accommodation of that truculence, will recognize patent similarities between this island’s political plight and our own. Laying the totalitarian sensationalism that accompanied the 2009 town hall meetings aside, a more recent example of this drift away from compromise involves the Republican establishment’s disillusionment with New Jersey governor Chris Christie, whose praise for Obama’s handling of the federal response to Hurricane Sandy represented for some a pivotal bump for the president in his reelection campaign.

The far right’s usurpation of the Republican banner should strike those with a grasp of the party’s history as supremely unfortunate. With the notable exception of Ronald Reagan, most Republican presidents who have served successful tenures in the Oval Office have done so by urging moderation and ideological restraint. Dwight D. Eisenhower, whose wariness  of the adventurism that followed in the wake of the military-industrial complex should endear him to Tea Party patriots of the Ron Paul variety, was largely responsible for the construction of the interstate system. Occupying the opposite end of the foreign policy spectrum, Theodore Roosevelt catapulted the American conservation movement and laid the progressive regulatory foundation of Woodrow Wilson’s presidency.

Contrarily, ideological purists have a record of underperforming. Despite the benevolence that his efforts on behalf of World War I refugees bespeaks, Herbert Hoover’s utter refusal to parcel out emergency assistance to the unemployed at the outset of the Great Depression accentuated much of the suffering which occurred during the 1930s and has earned him the near universal condemnation of professional historians. Reagan’s legislative partnership with House Speaker Tip O’Neil, his insistence that an executive should take 80% of what he wants if offered, and George H.W. Bush’s habitual raising of taxes belie their more avidly free market rhetoric.

This spirit of pragmatic reconciliation seems to have evaporated. Though President Obama and Senator Majority Leader Harry Reid have a dispiriting tendency to cast the blame for their legislative shortcomings on Republican obstructionism instead of just getting on with it as LBJ would have done, conservative recalcitrance on many of Obama’s judicial nominations epitomizes the political calculus currently in effect: unadulterated opposition to the White House has become the default position for Republican congressmen and women.

More concerning, though, is the rampant rise of far right extremist groups, the Paul family’s sky-rocketing personal appeal, and all such strains of ultraconservatism. Compromise and concession, the inseparable concomitants of participatory democracy, have yielded to paranoia and epistemic narrowness. A vocal albeit limited minority has shaken the trajectory of a party that used to appeal to a more diverse and open-minded electorate. Legislative and political progress is impossible if the unwavering orthodoxies of the few predominate in Congress.

Hamilton’s quote, excerpted from Federalist number 66, merits a broader audience. R.I.N.O.’s are being marginalized. Ideologues benefit. The country does not.

Our Adaptable Constitution

The advent of the Tea Party brought forth a broad interest in strict constructionism, the brand of constitutional interpretation propagated by Thomas Jefferson and James Madison’s Democratic-Republican adherents. At its heart, this doctrine dictates that the federal government limit itself to those powers explicitly delegated to it in Article I, Section 8 of the Constitution, also known as the “enumerated powers of Congress.”

In February of 1791, Alexander Hamilton submitted to Congress the blueprint for a Bank of the United States, a privately operated institution that would provide much needed liquidity to a fledgling national economy. This proposal came on the heels of Hamilton’s Report on Public Credit. In this intellectual tour de force, the Treasury Secretary erected the scaffolding of his plan for funding and assumption, whereby the new central government would assume the debts accrued by individual states during the Revolution and permanently fund the subsequent public debt.

Though it alienated that group of states (of which Virginia was the most prominent member) that had retired their debt prior to adoption of the Constitution, assumption was a prudent step in the establishment of American credit, assuring the world that the United States would honor contracts into which it had entered. After these assumed debts had been compounded by Continental debt, bonds would be sold to private citizens. The capital unleashed by these purchases would be used to repay foreign creditors. Enforcing customs duties with the forerunner to the Coast Guard, Hamilton would service the interest on the bonds, paying down the principal with an excise tax on whiskey (a policy that would lead to the 1794 Whiskey Rebellion in western Pennsylvania).

This package stands as a monument of financial nation building. The creation of a permanently funded debt bound the interest of bondholders to the prosperity of the federal government. Madison raised qualms concerning Hamilton’s refusal to refund the original government bondholders, many of whom were destitute veterans who had sold their bonds in times of great distress, to be reminded by his erstwhile colleague that the buying and selling of bonds implicitly involves the rights to profit and loss resulting therefrom, a principal of American finance that persists to this day.

Hamilton had pursued the idea of a national bank since he worked as an aide de camp to George Washington. Now installed at the head of the most powerful executive department, he saw the easy availability of capital as necessary to promoting American manufacturing. Wealthy southern aristocrats, espousing an ingrained suspicion of northern commerce, sternly resisted the establishment of a national bank, coalescing behind Secretary of State Thomas Jefferson’s arguments that the power to found a national bank was not expressly given to Congress in the nation’s charter. Madison, the preeminent occupant of the House of Representatives, concurred.

In response, Hamilton reminded his collaborator on the Federalist Papers of the “necessary and proper clause” (referred to by its detractors as the “elastic clause” and appearing at the end of Congress’s enumerated powers in Section 8 of Article I), which states that the federal legislature shall possess all powers which are necessary and proper to carrying its explicit prerogatives into effect. Furthermore, the Treasury Secretary wryly foregrounded passages of Federalist #44, in which an explication of the “necessary and proper” clause ascribed to Madison seems to sanction the spectrum of implied powers that Hamilton was now claiming to create a national bank.

After this nascent feud between Hamiltonian “Federalists” and Jeffersonian “Republicans” broke out into all out partisan warfare throughout the turbulent 1790s, the controversy surrounding the constitutionality of Hamilton’s beloved institution was revived by McCullough v. Maryland, an 1817 Supreme Court case. The state of Maryland, chafing under the auspices of the Bank of the United States, had in effect tried to tax it out of existence. Declaring prophetically that “the power to tax is the power to destroy,” Chief Justice John Marshall, writing for the majority, declared Congress’s implied powers to establish a national bank valid under the necessary and proper clause, buttressing the interpretation advanced by Madison in 1788.

The overwhelming verdict of historians, and I should think of common observance, dictates that this reading was essential to laying the foundations of a national government. It is difficult to imagine Hamilton succeeding in his herculean task if he were limited to the powers explicitly mentioned in the Constitution.

Nevertheless, one wonders whether it might be best to approach such precedents as McCullough vs. Maryland as tensed. That is to say that such decisions were appropriate to the needs of the nation during its uncertain infancy. With the emergence of a peerless national security apparatus, it seems as if a reversion to strict constructionism and a scrupulous adherence to the civil liberties codified by the Bill of Rights (the latter of which should no doubt remain constant) represents the best ideological course of action for the federal government.

Might that not be one of the graceful wonders of our founding document? Its brevity and its relative lack of specificity allow us to mold our treatment of it to the needs of a particular time period (cf. the Warren Court’s whirlwind of civil rights precedents during the Civil Rights Movement of the 1960s). Though such a flippant attitude no doubt makes Tea Partiers cringe, it might today be employed to embrace their particular brand of political activism.