SOURCE: "Jefferson, Hamilton, and the Constitution," in Theory and Practice in American Politics, edited by William H. Nelson with Francis L. Loewenham, The University of Chicago Press, 1964, pp. 13-23.

[Malone wrote the definitive biography of Jefferson: the six-volume Jefferson and His Time (1948-1981). In the following essay, he explicates the respective roles of Jefferson and Hamilton in shaping the interpretation of Constitutional law and the role of government.]

Jefferson and Hamilton had much to do with interpreting the Constitution, but little or nothing to do with its framing. Had Jefferson been available, he could hardly have failed to be a delegate from his state to the convention which met in Philadelphia in 1787, but he was then minister of the United States at the court of France; he did not return to his own country, in fact, until after the Constitution had been ratified and put into operation with George Washington as President. Hamilton was a delegate to the Convention from the state of New York, but, since they voted in the Convention by states and he was regularly outvoted by the other New York delegates, he soon withdrew, realizing that he was virtually without influence on the deliberations. From what he said, however, and from what he wrote out for incorporation in the record, we know that he favored a national government so strongly centralized, so consolidated, that it would have had no chance of adoption by the states of the Union if it had been submitted to them. He would have reduced these states to administrative provinces, the governors of which were appointed by the President, who would himself hold office for life; and he would have reduced popular control to a very low point, for he had no confidence in the wisdom of the people. No doubt he would have accepted something less, as of course he had to do, but these views could not command much favor. Since the deliberations of the Convention were secret, they did not need to be made public, which was fortunate for him.

One person who certainly knew about them and, in fact, knew more about these proceedings than anybody else was James Madison, the man who best deserves to be called the father of the Constitution.… Not only was he there all the time; he also kept careful notes on the proceedings. These were not published in his own lifetime, but it is safe to say that no man of his generation knew as much about what actually went on in the closed meetings in Philadelphia and about what the framers had in mind. His intimate knowledge was fully available to Jefferson after that gentleman returned from France, for these two had no secrets from each other. It is my own guess, however, that Jefferson did not take time to study the written notes carefully, and that he got his impressions chiefly from what Madison told him personally. This must have included some reference to the extreme views which Hamilton had expressed with respect to national consolidation.

Hamilton settled for considerably less in the ratification fight and performed magnificent service in that fight. Madison's service in it was comparable, and these two men co-operated in writing the Federalist papers, a work which excited Jefferson's enthusiasm and which has been universally recognized as a classic interpretation of the American governmental system under the Constitution. Since the original purpose of this series of essays was to win votes for ratification, however, and it was written in great haste, both men said some things they afterward regretted. For this reason no doubt both of them were glad that the authorship of the individual essays was not revealed. Since we now know just who wrote what, we can perceive that the constitutional philosophies of the two men were not identical, but it is as indisputable that they stood shoulder to shoulder in this fight as that they afterward diverged.

The explanation of this later divergence most favored by Hamilton's partisans was that it was owing to the sinister influence on Madison of Jefferson, after he came back from France full of wild revolutionary ideas. One difficulty about that fanciful theory is that Madison began to diverge from Hamilton before Jefferson got back on the national scene. Furthermore, in constitutional matters at this stage and perhaps at most times, it is nearer the truth to say that Madison told Jefferson than that Jefferson told Madison. Finally, it may be seriously doubted whether Jefferson brought back from France any important ideas that he did not already have when he went there. A more plausible explanation, it seems to me, is that Madison concluded that Hamilton in office as Secretary of the Treasury was seeking a greater degree of consolidation than he had argued for in the ratification fight, that he was in fact moving toward the sort of government that, as his expressions in the Philadelphia convention showed, he really wanted. This is to oversimplify the matter, however. Economic considerations were involved, and political opinion in Virginia surely was. That is, this was not merely a matter of constitutional theory. Further explanation must be sought in the actualities of the political situation.

Let us now return to Jefferson, who had been relegated to the role of distant observer while he was in France. If the Constitution as framed was a less powerful instrument than Hamilton wanted, it was a more powerful one than Jefferson had expected or thought necessary, and at first glance he feared that it might be made into an instrument of oppression. Unlike Hamilton and Madison, he had seen despotism at first hand in Europe and had recoiled against it. One of his specific objections—of which there were really only two—was to the perpetual re-eligibility of the President, which seemed to leave the way open to the eventual establishment of a monarchy. He had a phobia about kings which now appears to have been unwarranted so far as his own country was concerned, but we must remember that he lived in a world in which kings were the rule and republics the very rare exception. He was determined that in America the clock should not be turned backward, that there should be no resort to the British example, no return to the political system from which the young American republic had so painfully emerged. In that context his talk about kings and monocrats in this period of history does not sound so unrealistic. He continued to be disturbed, throughout this period, by what he described as monocratic tendencies, but his immediate fear that there might be an American king was quieted by the reflection that George Washington would be the first president. Jefferson, who viewed the national hero with a respect bordering on reverence, never thought he would permit himself to be made king. (In passing we may remind ourselves that Washington started the two-term tradition, and that Jefferson confirmed it.)

The second specific objection was not, as some might suppose, that the Constitution went too far in curtailing the powers of the states. He was surprised that the states had yielded so much but was fully aware that their powers had been far too great, and as an official he had had abundant reason to recognize the imperative need of bolstering up the general government. No, his immediate fears were not of what might happen to states; they were of what might happen to individuals. This is a crucial point, I think. A good reason for not putting tags on people is that it is generally impossible to find a perfect fit, but if I had to designate this complicated man of diverse genius by a single term I would call him an individualist. We must remember also that, although in his own commonwealth of Virginia he had observed and been part of a mild government, he had seen nowhere a government which in a positive way could be truly called beneficent. There was nothing remotely suggesting the welfare state, which renders direct services and benefits to its individual citizens. He had insufficient reason to think of government as a positive good. He did not say that government is a necessary evil and I do not believe that his approach to it was as negative as has often been alleged, but unquestionably he believed that all sorts of governments tended to be repressive and that rulers tended to become tyrannical.

In other words, individuals needed to be protected against their rulers, against any rulers. Specifically, the American Constitution needed a bill of rights and he was shocked that it did not have one. His correspondence with Madison on that subject is most interesting and illuminating. It made an impress on Madison, who was himself a staunch friend of human rights but had been giving most of his thought lately to the creation of an effective federal government. It was Madison who introduced the Bill of Rights in the form of amendments to the Constitution in the first Congress. Indeed, the promise of some action of the sort was a virtual condition under which his state and other states ratified the Constitution, and we have always regarded the Bill of Rights as a part of the original document, thought it was not actually quite that. (Incidentally, it should be noted that Madison was particularly aware of the criticisms of the Constitution in the ratification fight, and of the explanations and assurances that were then given by its advocates. These bore chiefly on the limitation of centralized authority, and he took them so seriously that perhaps it may be said that he was now prepared to settle for less central power than he had advocated in the Federal Convention.)

Since Jefferson's major objections to the Constitution were met, he accepted it. He would never have assumed the secretaryship of state if he had not. The partisan charge of later years that he was against the Constitution meant nothing more than that in his interpretation of that document he did not agree with Hamilton. He was no anti-federalist in the original meaning of the term, whatever his political enemies might say.

The two men did not disagree on all points, of course, and we must recognize the danger of exaggerating their differences and ignoring the very large area of agreement. They approached constitutional questions from opposite angles, however, and the gap between them widened in the actualities of successive political situations. Had situations been different it is certainly conceivable that the gap would never have become so wide. I regard it as exceedingly unfortunate that it became such a chasm. I am disposed to explain it on the ground of what appears to be virtually a law of history, namely, that excess tends to promote excess, that extremes on one side lead to extremes on the other. To be more specific, I do not believe that Jefferson would have gone as far as he did in interpreting the Constitution in this era if Hamilton had not pressed things so far and so hard, and in the duel with Jefferson which ensued, I regard Hamilton as the aggressor, even though he himself claimed just the opposite.

Some degree of conflict was probably inevitable, however, in view of their antithetical philosophies and incompatible personalities. The temptation to dwell on their personalities must be resisted, for this conflict went much deeper than that. But in this connection Hamilton's personality is of particular importance, because the reaction against his policies and the constitutional interpretation with which he supported them cannot be dissociated from the personal reaction against him. He had constructive talents of the first order and in the realm of government and finance may truly be described as creative. But he was an exceedingly aggressive man, inordinately ambitious, and undeniably arrogant. He was a hard man to like unless one agreed with him completely, and it was easy to believe that he was doing everything possible to increase his own power. He provoked resistance. That he wanted power for himself cannot be doubted, but he also wanted it for the nation. Indeed, that is the best way to describe his central purpose.

Hamilton's patriotism cannot be questioned, but one can ask what he wanted a powerful nation for. He himself gave one of the best answers in something he said later in this decade, at a time when he and his partisans would have liked to enter the international arena on the side of Great Britain and against France. He wrote Rufus King, then our minister in London: "I anticipate with you that this country will, ere long, assume an attitude correspondent with its great destinies—majestic, efficient and operative of great things. A noble career lies before it" Hamilton to Rufus King, Oct. 2, 1798 [Works of Alexander Hamilton, ed. H. C. Lodge, 1904]. He wanted it to play a great and active role in the world, and it is easy to see why Theodore Roosevelt admired him. In the perspective of history it seems that Hamilton's major service was in laying foundations of national power for the future, and for this we should be grateful, since we have had to enter the world arena. In his own time he seized every opportunity to extend the authority of the general government; indeed, he created opportunities. He wanted as much as possible to be done at the center; regarding the state governments as a good deal of a nuisance, he had no concern for state rights; and he was indifferent to, even contemptuous of, the ordinary individual.

His attitude toward ordinary individuals would not commend him to our democratic age, but in certain respects he was a notably prophetic figure. Indeed, he was far ahead of his time. The United States was not ready to play a great role in the world until the era of Theodore Roosevelt, and prior to our own century its major task was to open up its own land and develop its own resources. That sort of thing could not be well directed from the center. Jefferson correctly perceived that at this stage it was of the utmost importance to have local vitality, or, if you will, vitality at the grass roots; and he believed that men will do and dare most if they breathe the air of freedom. It can be argued, therefore, that after Hamilton's great financial measures, which served not only to make the nation solvent but also to widen the authority of the national government, centralization had gone far enough. He envisioned a more spacious governmental edifice than these times required. That was the way Jefferson and Madison felt about it anyway, and if they could not stop him one way they would try another.

They did not do too well when they sought to check him on constitutional grounds in the most important theoretical conflict (outside the field of foreign affairs) in Washington's administration, the one over the first Bank of the United States. In this, Hamilton had much the better of the argument. Here is an excellent example of the impingement of political considerations on constitutional interpretation. Madison and Jefferson opposed the creation of this bank for a good many reasons, including their own ignorance of banking. Their own state had benefited relatively little from Hamilton's financial system, of which he regarded the bank as the crown, and they saw this as another instance of federal encroachment. Madison opposed it in the House on its merits, but he was not at his best in the field of banking, and he fell back on the Constitution. He could find nothing in the Constitution which, in his opinion, empowered Congress to grant a charter to a corporation. The bill was passed nonetheless, but Washington hesitated to sign it, since he rightly had a very high opinion of Madison as an interpreter of the Constitution. He passed it on to the Attorney General, who agreed with Madison, and then to Jefferson. It is from the latter's argument that we generally date the doctrine of strict construction. We might date it from Madison's speech, which contained essentially the same arguments, though they sound stricter in Jefferson's paper.

The doctrine of strict construction is much easier to understand than the one with which Hamilton opposed it. It is simply that a document means just what it says—no more, no less. According to the Constitution the general, or federal, government possesses only specifically enumerated powers, all the others belonging to the states. In none of these enumerated powers is there any reference to granting charters of incorporation. Accordingly one must have recourse to the general expressions—the necessary and proper clause, for example. This Jefferson construed with complete rigidity, as meaning in effect "absolutely necessary." At this point I begin to be somewhat repelled by his argument; it is too rigid; he is imposing too severe a test. And I wonder if he would have taken so stiff and unyielding a position if he had not had so many grounds for wanting to stop Hamilton. As for the general welfare clause, his discussion of that, while somewhat pedantic, makes a lot of sense. If that clause were construed too liberally, Congress could do anything it liked, and there would be no need to have in the Constitution a list of the things it could do. Like Parliament, the legislature would be omnipotent.

The forbidding rigidity he displayed in this argument is not at all like Jefferson when he was discussing science or religion, and does not sound like the man who had said that constitutions should be revised every twenty years or so. But he would stand for no trifling with law while it was still on the books, least of all with a constitution; he regarded basic law as a shield or fence for the protection of human beings against wrong; he distrusted rulers who might interpret law in their own way for their own purposes; and by now he deeply distrusted Hamilton. So he prepared a paper which, though narrow, was utterly logical and which upon its face looked unanswerable.

Hamilton's answer to it is, in my opinion, the greatest paper he ever drew. He had to prove that the Constitution meant more than it explicitly said, that no government could be effective if rigidly confined within a narrow framework, that latitude must be permitted in the interpretation of basic law. He did this by starting with the premise that the federal government has sovereign power within the field allotted to it, and by concluding that in the exercise of this it may reasonably employ any means not specifically prohibited. There is more to his argument than this, but the important thing to remember is that the dominant trend of constitutional interpretation in our country was here anticipated. And whatever else this meant, it surely meant that our constitutional system would not be static but would be allowed to grow and might become dynamic. The essence of the matter Hamilton himself stated in a passage which ought to be quoted more often than it is: "The moment the literal meaning is departed from, there is a chance of error and abuse. And yet an adherence to the letter of its powers would at once arrest the motions of government." If Jefferson's observations of government and of his colleague had not rendered him so distrustful, he might have fitted these words into his own philosophy of progress, for certainly he did not believe in a static society. There is more sweet reasonableness in Hamilton's words, however, than those who differed with him in policy had detected in his public conduct; and they may be pardoned for believing that he was interpreting and would continue to interpret the Constitution to suit himself. They did not give up the fight, and it is well they did not, for he was a man who had to be kept in bounds. He was always likely to overreach himself.

This conflict had been waged behind the scenes, not in public; and there is no reason to suppose that Hamilton's opinion was shown to Jefferson and Madison. They undoubtedly knew his general line, but they did not see his full argument and had no occasion to rebut it. They did not abandon strict construction, though I do not believe that they again used it in a form which was quite this rigid. It was a natural, almost inevitable line for them to take afterward as leaders of the opposition to a government which was exercising powers which they thought unwarranted and regarded as dangerous to human liberty. This was after Washington had relinquished the first office but when Hamilton was more powerful than ever. It was the time of the Alien and Sedition Acts.

(Some extremely interesting constitutional questions, relating to the powers of the House of Representatives with respect to treaties, came up in the long fight over Jay's treaty. Jefferson was then in retirement and Republican policy was determined by Madison, Gallatin, and others in Congress. The episode is an unusually good illustration of the effect of party policy on constitutional positions. Jefferson expressed himself freely on the subject in private, showing himself a complete Republican in this matter and taking a different position from the one he probably would have as Secretary of State. Since this subject is relatively technical, however, I shall not enter into it here.)

The situation created by the notorious Alien and Sedition Acts was far more dangerous to Jefferson's dearest interests than the one in which Hamilton successfully defended the Bank of the United States. That proved to be an excellent institution even though it did relatively little for the agricultural districts. These measures were adopted at a time of hysterical patriotism and fantastic fear of subversive foreign influences (especially French) the like of which our country has rarely seen, though our own generation can perceive a certain similarity to it in the madness we had to live through shortly after World War II, when some excited people saw subversives behind every bush. There was no single public figure in this earlier period of hysteria who can be properly compared to the late Senator Joseph McCarthy, who played a unique role as an inciter of suspicion and hatred, but on the whole I believe that the situation then was considerably worse. There was a concerted campaign, in the name of patriotism, against every form of criticism of the federal government, and against the very existence of political opposition. In short, freedom of opinion and speech was at stake, and the party of which Jefferson was the undisputed leader was threatened with destruction. By silencing its newspapers the party in power sought to deprive it of a voice. This was the policy of the extreme section of the party commonly described as High Federalists. Their acknowledged leader was not John Adams but Hamilton, who was not in office but whose influence was at its height. If I seem to ignore him in discussing this particular matter you may safely assumed that Jefferson and Madison were battling against him, more than against any other man, and that he opposed them on all points.

All I have space for here is the response to this challenge which Jefferson and Madison made in the Kentucky and Virginia Resolutions. These were conceived in no vacuum, and the direction they took, though not necessarily the details, was determined by the actualities of the situation. The three branches of the general government—executive, legislative, and judicial—were united with respect to these detested laws. Hence Jefferson turned to the states because he had nothing else to turn to. He had said very little about the rights of states before he became fearful of Hamiltonian consolidation. Now, under the pressure of circumstances he found intolerable, he took the most extreme position of his entire life with respect to state rights.

The direct part he played in these events was not made public until long years afterward, by which time he had returned to a more moderate position and his own administration as President had been assailed on grounds of state rights by his political opponents. Not until after his retirement was it known that he drafted the Kentucky Resolutions. But they and their companion Virginia Resolutions, which Madison drew, became part of the public record. In later years these documents were often cited by upholders of the state-rights tradition—a tradition which our Southern forefathers naturally clung to as they passed into the minority, but in the name of which they took actions which proved disastrous. Many of these forefathers of ours misinterpreted Jefferson's position. Never again did he emphasize the theory of state rights as he did here, and not even here were these the prime consideration. What he did was to invoke state rights in defense of human rights, as a means and not an end. And it is as a champion of human rights that he should be best remembered.

This question has so many ramifications that I cannot possibly do justice to it in brief compass. For the purposes of the present discussion, I should remind you that the Alien and Sedition Acts have received virtually unanimous condemnation at the bar of history. Therefore, Jefferson was abundantly warranted in inducing the states of Kentucky and Virginia to protest against them. He sought to support his position, as the Republicans had already done in Congress, by arguing that these acts were unconstitutional. Without entering into these arguments I simply make the point that in a dangerous political situation he and his party resorted to the Constitution for defense. Naturally, they followed the line of strict construction and, against what they regarded as an unwarranted assumption of power by the federal government, they talked of the reserved rights of states. In the Kentucky Resolutions of 1798, Jefferson went to the dangerous extreme of asserting the right of a single state to declare unconstitutional an act of Congress which it judged to be in violation of the original compact, and in his draft he said that the nullification of such a law within a state's own borders was proper procedure. This proposal the Kentuckians left out of their first set of resolutions but they used it the next year in a second set which Jefferson did not write.

The South Carolinians resurrected the word "nullification" a generation later in a wholly different situation. They were then opposing a tariff which was obviously disadvantageous to them, but their protest, unlike Jefferson's, was not in the name of the universal human right to freedom. Madison in his resolutions did not claim the right of nullification by a single state. In the final document of this series, his magnificent Report of 1800, he refined away the original excesses and put the Republican party on defensible ground. Without implying that I now agree with everything he said, I can safely say that there is real validity in the doctrine of state rights as presented in this report. With all this Jefferson went along, showing increased moderation as dangers lessened. But the highest wave at the peak of the storm left its mark on the shore.

This episode provides a striking illustration of the intimate connection between constitutional interpretation and political situations. Indeed, we would do well to think of these historic resolutions primarily as political documents. We should certainly remember that Jefferson never attempted to put into practice the extreme theory he advanced at a time when he almost despaired of human liberty and the survival of his party. This was a theoretical matter altogether. It is far more important to remember what he fought against and what he fought for than a particular weapon which he never regarded as anything but a threat and which in fact he afterward discarded.

In dealing briefly with so complicated a subject as this, it is easy to create a confused impression. I hope that one impression at least is clear: namely, that people ought to know more about history. We have no right to expect highly detailed and special knowledge of many people, but surely we can ask that anybody who draws on ancient documents or doctrines to support a position he himself is taking should inform himself of the major circumstances which caused that document or doctrine to come into being. The only thing that can be safely quoted out of context is something that bears upon itself the mark of timelessness and universality. Constitutional interpretations do not do that, even when they are reiterated often enough to become doctrines, even when they harden into dogma. They cannot be divorced from circumstances. It is fortunate that this is so, for no constitution which cannot be adjusted to changing conditions can be expected to survive. One of the major reasons for the long survival and recognized success of our Constitution is that it has proved flexible. Judges have to consider all that has gone before, and they should anticipate as best they can what the future effects of their judgment may be, but, after all, they are addressing themselves to particular cases in specific situations.

In constitutional matters, as in theological, I regard the absolutist spirit as unfortunate. It is presumptuous to think that God is on one side or the other in a constitutional debate. The truth need not lie precisely in the middle, but in major controversies there are generally important conflicting interests which must somehow be reconciled. One of the major tasks of government is to reconcile them. To me it is regrettable that the two eminent men we have been talking about diverged so far, and I dislike the excesses of both, though I do not say that I dislike them equally. I can forgive Jefferson more because I tend to value freedom more than power, to be more fearful of power than of liberty. But if we now had as feeble a national government as he advocated a century and a half ago, our liberties would surely perish. So I must recognize that somehow we must reconcile ourselves to Hamilton. Indeed, I suppose that we have been reconciling the conflicting philosophies of these two men from their day to this as we have found ourselves in a succession of particular situations.