On Tyranny and Hamilton's Axiom in the Federalist Papers; Our Post-Constitutional Moment, Pt. 4

If one has some familiarity with Russell Vought’s ‘radical constitutionalism’ or (which does not amount to the same thing) ‘national conservatism’ (of which Hazony is the pre-eminent thinker), one recognizes that Hamilton’s views are in the ascendancy. For it is Hamilton that is the ultimate source of the so-called ‘unitary executive theory.’ And if we return to Hamilton’s most influential writings the issues that face us will come into stark relief.

For, as it happens, the first instance of the use of ‘tyrant’ (and its cognates) in the Federalist Papers occurs in Hamilton’s “General Introduction,” (also known as ‘Federalist 1’). It is worth quoting in full:

An enlightened zeal for the energy and efficiency of government will be stigmatized as the offspring of a temper fond of despotic power and hostile to the principles of liberty. An over-scrupulous jealousy of danger to the rights of the people, which is more commonly the fault of the head than of the heart, will be represented as mere pretense and artifice, the stale bait for popularity at the expense of the public good. It will be forgotten, on the one hand, that jealousy is the usual concomitant of love, and that the noble enthusiasm of liberty is apt to be infected with a spirit of narrow and illiberal distrust. On the other hand, it will be equally forgotten that the vigor of government is essential to the security of liberty; that, in the contemplation of a sound and well-informed judgment, their interest can never be separated; and that a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government. History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants.

So, for Hamilton it is false to claim there is an implied trade-off between rights of the people and the vigor (if not firmness and efficiency) of government. For the rights of the people presuppose such vigor. To put Hamilton’s point in technocratic fashion: if vigor in government is the input, then the output of the executive is the protection of the people’s rights. Let’s call this ‘Hamilton’s axiom.’

According to Hamilton, Hamilton’s axiom has a historical corollary (I assume Hamilton has Caesar and Cromwell in mind): that the most dangerous of demagoguery, the one that ends up producing tyranny, is most likely to originate in those that present themselves with one-sided attention to the people’s rights without due diligence in securing the proper functioning of government (which is what Hamilton’s use of ‘efficiency’ — that is, the proper operation of efficient causes — really amounts to). If you are committed to Hamilton’s axiom and the robustness of its historical corollary, then strengthening the control of the presidency over the executive branch in the way, say, the US Supreme Court has been doing (in a manner known as supporting ‘the unitary executive theory’) during the last decades, would seem of vital importance.

As an aside, that republics are vulnerable to tyranny is a a concern throughout the Federalist Papers. For example, federalism is Hamilton’s proposed solution (in Federalist 9) to end the “perpetual vibration between the extremes of tyranny and anarchy” of republics.

Be that as it may, Federalist 20 (attributed to Madison and Hamilton jointly) offers a somewhat different historical account than the one articulated in Federalist 1 of the origin of tyranny within (confederated) republics. The underlying argument is a critique of confederacy in favor of federalism. And Federalism 20 does so by way of a survey of some of the imperfections of the Dutch practice of demanding unanimity in the States-General, and the risk associated with the office of a stadhouder. (I would not be surprised if Hume’s History, responding to Temple (as Federalist 20 is), is the source of this evidence and the underlying argument.) I quote it because of the last sentence below:

In critical emergencies, the States-General are often compelled to overleap their constitutional bounds. In 1688, they concluded a treaty of themselves at the risk of their heads. The treaty of Westphalia, in 1648, by which their independence was formerly and finally recognized, was concluded without the consent of Zealand. Even as recently as the last treaty of peace with Great Britain, the constitutional principle of unanimity was departed from. A weak constitution must necessarily terminate in dissolution, for want of proper powers, or the usurpation of powers requisite for the public safety. Whether the usurpation, when once begun, will stop at the salutary point, or go forward to the dangerous extreme, must depend on the contingencies of the moment. Tyranny has perhaps oftener grown out of the assumptions of power, called for, on pressing exigencies, by a defective constitution, than out of the full exercise of the largest constitutional authorities.

So, here the argument suggests that tyranny is the effect of a defective constitution in which extra-constitutional power is exercised originally legitimately or at least with a veneer of legitimacy (it is de facto usurped) in order to solve a pressing political problem having to do with public safety; and then kept. The use of ‘oftener’ suggests we’re not dealing with merely a fictional thought experiment, but historical regularity. Federalism 20 fully anticipates the twentieth century traumas with abused emergency powers as a hypothesized (‘perhaps’) historical regularity. To put the point simply: the unitary executive theory works well unless one’s republic is already sufficiently (as the Machiavellian would say) corrupted.

Now, formally, one may save the Federalist Papers from self-contradiction by suggesting that the arguments against the dangerous usurpations of Stadhouders don’t apply to the American presidency. Less important than the implied tension in the Federalist Papers is, of course, the implied existential risk inherent in the constitution (recall Pt 2 in the present series): as Jefferson (writing a month before Federalist 20) writes in his famous letter to William Smith: “What we have lately read in the history of Holland, in the chapter on the Stadtholder, would have sufficed to set me against a Chief magistrate eligible for a long duration.”

Hamilton responds to the underlying argument in Federalist 70 (and in his speech to the Constitutional Convention on June 18, 1787). The overall argument is (recall here; and here) a cost-benefit analysis. He acknowledges the risk of tyranny, but thinks that risk is worth taking given the advantages that follow from a unitary executive with power lodged in a single person. He does so by reiterating the argument of Federalist 1, and, in fact, by fleshing it out with more detail before doubling down on it:

THERE is an idea, which is not without its advocates, that a vigorous Executive is inconsistent with the genius of republican government. The enlightened well-wishers to this species of government must at least hope that the supposition is destitute of foundation; since they can never admit its truth, without at the same time admitting the condemnation of their own principles. Energy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws; to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy. Every man the least conversant in Roman history, knows how often that republic was obliged to take refuge in the absolute power of a single man, under the formidable title of Dictator, as well against the intrigues of ambitious individuals who aspired to the tyranny, and the seditions of whole classes of the community whose conduct threatened the existence of all government, as against the invasions of external enemies who menaced the conquest and destruction of Rome.—Federalist 70.

At this point, one may well wonder how, other than faith in republicanism, Hamilton foresees preventing this energetic executive from turning into a (dictatorial) usurper-tyrant. Let’s allow that many such office holders will understand the prudence of self-moderation.

Simply put Hamilton’s argument is that by vesting ultimate responsibility and power in a single magistrate (the President), his system generates clear accountability and allows the people, “to censure and to punish.” What this suggests is that contemporary Hamiltonians would do well to advocate for and continue to defend expansive freedom of speech, even the tumult Hamilton himself sometimes feared, and robust voting rights in practice.*

*Elsewhere Hamilton rightly notes that Habeas Corpus and Trial by Jury are a kind of bulwarks against the legal imposition of tyranny.