Gary Conkling Life Notes

Mostly whimsical reflections on life

Hamilton, Hip-Hop and Originalism

A top trending tweet from last night’s Grammy Awards was “Who is Hamilton?” Alexander Hamilton, the namesake character in the Broadway hip-hop-infused and Grammy-winning musical, could become better known for far more than a hit musical, the $10 bill and his “New York values.”

alexander-hamiltonHamilton was born in 1755 (or 1957) in St. Croix. His parents weren’t married. His father left and his mother died. Orphaned as a teenager and denied access to Church of England education on the island, Hamilton left for New Jersey in 1772 to pursue formal schooling. He wrote his first political tract denouncing what he viewed as British oppression in 1774.

In 1775, Hamilton joined the New York volunteer militia while still attending classes. He studied military tactics and was quickly promoted. Elected as captain, he commanded troops at the Battles of White Plains and Trenton.

Hamilton the musicalHamilton spurned offers to leave the battlefield and join the staffs of generals. He couldn’t refuse the invitation from General George Washington, with whom he formed a lifelong bond. As the Revolutionary War wound to an end, Hamilton persuaded Washington to return him to a field command, where played a key role in the pivotal Battle of Yorktown, which effectively ended the war.

New York chose Hamilton in 1782 as one of its delegates to the Congress of the Confederation and in 1787 to the Constitutional Convention. Many credit James Madison as the guiding hand behind the U.S. Constitution. You might consider Hamilton as Madison’s “left hand.”

As a military commander, Hamilton saw the need for a cohesive central government with the power to provide for a common defense, maintain an army and levy taxes. He agreed with Madison on the wisdom of dividing up governmental powers as well as checks and balances on those powers. They also agreed that a federal government was better able over time to address issues at a distance from local passions and prejudices.

Thomas Jefferson is often regarded as the father of America’s democracy, but Hamilton cast a larger influence in the actual construction of the Constitution. Jefferson wrote letters from France, where he was posted, raising concerns, especially about  the Supreme Court. Hamilton wrote the first Federalist Paper defending the Constitution and vigorously rejecting the idea of chopping the nation envisioned in the Constitution into regional chunks.

So, in the spirit of “originalism,” which the late Supreme Court Justice Antonin Scalia expertly espoused, it is interesting to note some of Hamilton’s fingerprints in the Constitution. Originalism, Scalia said, requires the Constitution to be read for what it actually says, in the context of the political and social times in which the words were written. And by implication, in the perspective of the document’s principal architects.

There were few bigger political egos in the post-Revolutionary period than Hamilton. He was a close adviser to President Washington as the first Secretary of the Treasury. He also was a disillusioned adviser to President John Adams, which led him to conspire in Adams’ defeat for re-election in 1800 at the hands of Jefferson, with whom Hamilton battled ferociously the rest of his life. Hamilton was a tenacious advocate for a national bank, printing money and manufacturing.

Yet, Hamilton never stood for the presidency, which sheds light on the constitutional provision that requires a President to be a “natural born” citizen. In that context, it couldn’t have mattered whether one or both of Hamilton’s parents were “Americans” because when he was born there weren’t any. “Natural born” could only have meant born on the soil that became the United States of America. He wasn’t, which meant he helped to write a document barring him from holding the nation’s highest and most prestigious office.

In fact, the new Americans writing the Constitution worried that the British might try to regain their grip on their former colonies by having Canadians come south and usurp control by getting elected as President.

ted_cruzIf Scalia’s originalist test was applied, GOP presidential candidate Ted Cruz, who was born in Canada, would be ineligible to serve as President, as pointed out by that noted constitutional scholar, Donald Trump. As Scalia’s most ardent originalist disciple, Cruz would qualify for the epithet, “Hoisted by your own petard.”

Sticking with originalist analysis, it may be hard to defend other current-day conservative political positions – for example, the notion that a President serving in his last year in office should surrender his responsibility to fill a Supreme Court vacancy.

The Constitution seems straightforward in giving the President the job of nominating Supreme Court justices and the Senate the job of reviewing and approving or disapproving the nominees. Death was no stranger to Post-Revolutionary America, so the prospect of Supreme Court justices dying, even in election years, wasn’t overlooked. There were no special provisions noted for lame-duck Presidents. The originalist interpretation of filling Supreme Court vacancies is “business as usual, ” not “political funny business.”

Hamilton, by the way, suggested that a President should be elected for life, which suggests he didn’t think much about limits on lame ducks.

chapman.0830 - 08/29/05 - A Supreme Court headed by Supreme Court Justice Antonin Scalia has questions for Chapman University Law School professor John Eastman as he and California Attorney General Bill Lockyer argue the 1905 ''Lochner v. State of New York'' case during a re-enactment Monday afternoon at Chapman University. (Credit: Mark Avery/Orange County Register/ZUMA Press)

If he had a voice in the matter, Scalia undoubtedly would prefer a different replacement for himself than President Obama is likely to nominate. But it seems unlikely this outspoken advocate of originalism would have argued the President and the Senate shouldn’t fulfill their respective constitutional duties to replace him.

Read the words in the Constitution and take them at face value, Scalia would say. Take into account the context in which those words were written – the only time in America’s history when there were no political parties. There were just Americans.


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