In this very first episode, constitutional scholar Jeff Rosen joins the podcast to discuss his new book, The Pursuit of Liberty, the enduring disagreements between Alexander Hamilton and Thomas Jefferson, and how their competing visions of government have shaped 250 years of American history, constitutional interpretation, supreme court justices, presidential powers, and civil discourse. Together, we learn why America's resilience has depended not on consensus, but on institutions capable of absorbing disagreement while preserving liberty.
TRANSCRIPT
TRANSCRIPT
Introduction
BEN KLUTSEY: Today my guest is Jeff Rosen. He is CEO emeritus of the National Constitution Center, a professor of law at George Washington University, and a contributing editor at The Atlantic. He has written several best-selling books, including The Pursuit of Happiness, a favorite of mine, and his latest book, The Pursuit of Liberty: How Hamilton vs. Jefferson Ignited the Lasting Battle over Power in America, which is the subject of our conversation today.
Jeff is one of America’s leading constitutional scholars and a widely respected voice on the Constitution, the Supreme Court, and the American founding. Thanks for joining me.
JEFF ROSEN: It’s great to be with you, and congratulations on the new podcast. So exciting.
KLUTSEY: Thank you, thank you.
The fragile American experiment
KLUTSEY: The book is a fascinating story of the debate on how best to pursue liberty strong national government to guarantee liberty, or a weaker national government to ensure it doesn’t override individual and state rights. It’s really interesting, and I’m eager to get into some of the key points here.
The first thing, really, I think your book vividly captures how tenuous the American experiment felt in its earliest years—Shays’s Rebellion, the Whiskey Rebellion, the Sedition Act, the vicious Adams–Jefferson election. Looking back, just how fragile was the republic in those first decades? It seemed to me that survival itself was quite uncertain in the early days.
ROSEN: It was indeed, which is why most of the founders at the time of their deaths were uncertain about whether or not the experiment would succeed.
George Washington, famously, in his farewell address, warns of the danger of faction. Hamilton despairs, almost the day before the due,l that the real threat to America is democracy, which he puts in capital letters. Jefferson rightly fears the Union fracturing over civil war. Only Madison is slightly more optimistic because he expects less of the virtue of the people, because he has put structural constraints into the Constitution to slow down deliberation.
But none of them is sure that it will succeed. And when Adams and Jefferson die on the same day, July 4, 1826, many comment that it’s a miracle that the Republic has thrived for as long as it has.
Forged in conflict
KLUTSEY: Now, one of the striking themes in the book is that America’s institutions were forged through conflict rather than consensus. Do you think America’s resilience emerged not despite these tensions but because the system was forced to absorb and channel them—like it is because of these tensions that we are resilient? What are your thoughts on that?
ROSEN: Yes, I do think so. I think of the competing ideas of Hamilton and Jefferson over national power versus states rights, and democracy versus rule by elites, and liberal versus strict construction of the Constitution, as golden and silver threads woven throughout the tapestry of American history. That’s the image that came to my mind. Sometimes they’re side by side, sometimes they cross, sometimes they pull so far apart that they threaten to snap, but it is the productive tension on both sides of the threads that has sustained the American experiment. And on the rare occasions when we’ve pulled too far in one direction or another, that’s when the violence begins.
Radical ideas at America’s founding
KLUTSEY: Yes. You note that Jefferson believed the Constitution should effectively expire after about 19 years, roughly one generation. I had no idea that was one of the things that was discussed. How radical is that idea? And to at least the folks around at the time, was that an unusual idea?
ROSEN: Yes, it was extraordinarily radical. It was connected to his idea that no one generation should be able to impose a debt on another. He thought a generation was about 19 years. Which is why, according to some accounts, he thought that public debts should expire and should not have to be paid by subsequent generations—an incredible irony, of course, given the fact that he himself lived so wildly beyond his means, like a kind of emperor or Caligula at Monticello, that he died with crushing debts that he imposed on his daughters, and his entire estate and all of the enslaved people on it had to be sold to pay his debts.
But it was quite radical. And Madison, for example, did not agree with Jefferson. He thought it was a miracle that the first convention had succeeded. It would be tempting fate to try another, and therefore best to leave well enough alone.
It was connected to Jefferson’s also radical view that the will of the majority should always prevail, which led him to suggest, at times, that when the people disagreed with Supreme Court opinions, there should be an intervening election or a constitutional convention. But he was very ahead of his time in his embracing of democracy and also of frequent constitutional conventions.
KLUTSEY: Yes. And for Hamilton, he argued that we must have a government with more power, and at points, even flirted with lifetime tenure for presidents and senators, while openly admiring aspects of the English system. What was Hamilton really trying to solve for?
ROSEN: He was trying to solve for the danger of a self-interested, Caesar-like demagogue who would come and flatter the people and persuade them to exchange their liberties for cheap luxuries, like bread and circuses, and install himself as a dictator. It seems like an unusual suggestion, but in that notorious speech at the convention at the beginning of June, which went on for six hours, he proposed a president elected for life because he thought that such a president would be able to look to the public interest, rather than tending to the interests of factions or to his own corrupt financial interests.
His model is the British king, although he always emphasized—although Jefferson attacked him as a monarchist and monocrat—that he did not believe in hereditary monarchy, so he considered himself a republican. But the goal was to put the president above ordinary politics.
The idea was not as crazy as it sounds now. Different delegates at different times, including James Wilson and Gouverneur Morris, supported a lifetime-elected president. So it was something of a federalist shibboleth. But it didn’t go anywhere at the convention, obviously, and it was too much for the delegates.
KLUTSEY: In your previous book, The Pursuit of Happiness, you talk about their interest in virtues and cultivating virtues for themselves. Did they not believe that it was possible for the people to also cultivate similar virtues of temperance, prudence, courage, justice, and those kinds of things, which meant that maybe some of these radical ideas may not have been necessary?
ROSEN: Well, they certainly hoped that it was possible, and they did think that the experiment would only succeed if the people found the personal self-government to make possible political self-government, but they weren’t sure that it could succeed on a wide scale. It had never been tried before, and it was expecting a tremendous amount of ordinary people. And this was a time when the franchise was beginning to be expanded, and never before in human history had so much expectation been put on the individual for self-perfection.
And that’s why so many of them emphasized education. Jefferson, the greatest champion of democracy, puts three achievements on his tombstone: author of the Declaration of Independence, of the Virginia Bill for Religious Freedom, and founder of the University of Virginia. And for him, that was far more important than his presidency, because it educated the next generation to be “republican machines,” as some of the founders put it.
And George Washington never lost his advocacy of a national university that would bring together citizens of different backgrounds to set aside their parochial and geographic interests and learn two things: the habits of the science of government and the habits of civil deliberation. And every president since Washington supported the national university to a certain degree, especially enthusiastically John Quincy Adams, and Grant after the Civil War. But because of concerns about federalism and uncertainty about whether or not Congress had the power to charter the national university, that idea never was totally embraced—although George Washington University, where I teach, was started up partly by a bequest from Washington in his will. So it was the closest that Washington came to achieving his goal.
The growth of the administrative state
KLUTSEY: One thing that modern readers often, I think, forget is how tiny the federal government originally was. As I was reading your book, I came across these interesting details: that Treasury had only a few dozen employees, Jefferson’s State Department had six people, the Department of War only two. I wonder to what extent that shaped the founders’ debates about liberty and federal power, and I wonder what they would say now about how large the federal government apparatus is.
ROSEN: Well, it’s certainly true that Jefferson and Hamilton have completely different views about the relationship between liberty and power. For Jefferson, every increase in government power threatens liberty. For Hamilton, more vigorous governments can secure liberty. But as you suggest, the vigorous government for Hamilton was a handful of employees. And he’s the guy who’s pulling these all-nighters and writing his reports on public credit all by himself without any speechwriters. So, they certainly didn’t imagine the scope of the modern administrative state.
Now, there’s a lot of interesting debate about whether or not Hamilton in particular would have supported administrative agencies. It’s actually relevant in the Supreme Court cases about the administrative agencies. And there’s evidence that Madison, for example, supported an independent controller of the Treasury. And this is what those who argue that the framers would have accepted a version of the administrative state are trying to argue before the Supreme Court.
Nevertheless, there’s no doubt that they would have been shocked—shocked at the sheer scope of the modern administrative state. When Franklin Roosevelt decided to make Jefferson the patron saint of the New Deal, it can only be described as what my people would call an act of chutzpah, because he was exploding the size of the federal government in ways that would have made the libertarian sage of Monticello cringe.
On the other hand, they weren’t unimaginative. They believed that government would adapt to the times. Many had great ambitions about the growth of America, in particular Jefferson, who imagined an “empire of liberty” spreading slowly across the continent to the west, one which included the forced removal of Native Americans and the spread of slavery. But it was nevertheless his hope that eventually America would grow, and with it its government. And of course, it was Jefferson who doubled the size of the United States with his Louisiana Purchase, even though he thought it was unconstitutional.
The meaning of the word “necessary”
KLUTSEY: Right. And maybe this next question speaks to this, because it’s about the understandings of the word necessary, within the necessary and proper clause, that are in the constitutional debates. It’s fascinating because it reveals two completely different constitutional philosophies. Jefferson reads necessary narrowly; Hamilton reads it broadly and pragmatically. Was that really the foundational split that continues to shape constitutional interpretation today?
ROSEN: Absolutely, the interpretation of a single word. Bill Clinton said, “It depends on what the meaning of is is,” and the central constitutional debate in all of American history is, “It depends what the meaning of the word necessary is.”
Hamilton proposes the bank as a centerpiece of his plan for public credit, along with the assumption of state debts, and Jefferson insists that it’s unconstitutional. So Washington asks for memos on the question. And Jefferson and Hamilton disagree about the word necessary.
Jefferson wants to construe the word necessary in the necessary and proper clause that gives Congress the power to pass all laws “necessary and proper” for carrying out its enumerated powers. He wants to construe it strictly to mean absolutely, indubitably, or unquestionably necessary. And because he thinks a bank is not absolutely necessary for achieving enumerated powers, like raising taxes or promoting the general welfare, he thinks that the bank is unconstitutional.
Hamilton disagrees. He pulls one of his all-nighters. He writes 14,000 words and he wants to construe the word necessary “liberally,” as he puts it, to mean useful, conducive, or appropriate. And because he thinks the bank is useful, or conducive, or appropriate for promoting the general welfare and raising taxes, he wants to imply the power to raise taxes and promote the general welfare by chartering a bank, even though there’s no enumerated power to charter a bank.
So, just to make it as clear as possible, Jefferson says, “If the power isn’t enumerated, you need the proposed solution to be unquestionably necessary and linked to an enumerated power.”
And Hamilton says, “As long as it’s useful, you can imply the power.”
It goes up to the Supreme Court after Hamilton’s death in McCulloch v. Maryland, and John Marshall sides with Hamilton. He views himself as Hamilton’s successor. He served with Hamilton at Valley Forge. He thinks Hamilton is the greatest American next to Washington. He wants to carry Hamilton’s vision of liberal construction into the new era. And in one of the most famous sentences in constitutional history, he paraphrases Hamilton almost word for word. He has in front of him Hamilton’s memo, because he’s writing George Washington’s biography, and Washington’s nephew, Bushrod Washington, has given Marshall Washington’s papers. And Washington says in this famous paraphrase, “Let the end be legitimate, then all means that are useful or appropriate for carrying it into effect are consistent with the Constitution,” more or less. His paraphrase is even closer to Hamilton than my reconstruction of it was.
And then for the rest of American history, that is the central debate in all of the major Supreme Court cases involving congressional power. It’s the central case over the constitutionality of the Missouri Compromise, of the post-Reconstruction Civil Rights Act of 1875, which the court strikes down with Jeffersonian strict construction over the objection of John Marshall Harlan—named by his dad after the great nationalist. It’s the centerpiece of the debates over the constitutionality of the New Deal. And it’s at the center of many of our current debates on the Supreme Court, including the constitutionality of Obamacare.
So for me, the big debate on the court over history has not been between originalism versus non-originalism. It’s been between liberal and strict construction of the Constitution, and particularly of the word necessary.
The contradictions in Jefferson and Hamilton
KLUSTEY: Yes. But I wanted to touch on Jefferson a bit more. Is he principled or pragmatic? He railed against Hamilton, but as president, he kept the national bank and executed the Louisiana Purchase, which dramatically expanded national authority and territory. Should we see Jefferson as hypocritical, pragmatic, or simply a politician who is just confronting the realities of his time?
ROSEN: Well, I think all three of those things. He’s principled in that he gives America the American creed, the most important principles in all of American history, in the Declaration of Independence: liberty, equality, and government by consent. And in his moments of candor, he recognizes the times when he betrays those principles, in particular over slavery, which he never said was consistent with the Declaration. And he said, “I tremble for my country when I remember that God is just.”
On the other hand, he’s a relentlessly, ruthlessly pragmatic politician. He has the world’s best oppo campaign against Hamilton by accusing him of wanting to resurrect monarchy in America. And although his entire program and vision is based on a constrained executive and a balanced budget, he gets into office and he doubles the size of the US purely by executive fiat, even though he thinks it’s unconstitutional and he would have preferred a constitutional amendment.
So you can attack him as a hypocrite and an opportunist, or you can say more charitably, as I’m inclined to do, that like Hamilton, who was similarly inconsistent in applying his own principles—although both Jefferson and Hamilton sometimes betrayed their principles—at least they gave America the gift of principles to debate. And it is their competing principles that we’ve debated over the course of history. The debate has not been a bug in the system, but a feature. And it’s the productive tension between the principles that has prevented us from descending into violence.
And that’s the case for all of the presidents, congresspeople, and Supreme Court justices who have invoked Hamilton and Jefferson over time. They’re constantly switching, mixing, and matching, and Hamiltonians become Jeffersonians. And that wonderful line from Herbert Croly that Theodore Roosevelt adopted, calling for Hamiltonian means for Jeffersonian ends, namely, the Hamiltonian means of strong federal power for the Jeffersonian ends of promoting democracy and curbing the corporations. And FDR comes up with a similar synthesis.
You can say it’s opportunistic, but for me, the deep engagement of our leaders throughout history with the ideas of Hamilton and Jefferson, the fact that they’ve read the primary sources and are willing to debate them, and the fact that almost all of them find themselves on different sides of the Hamiltonian-Jefferson divide at different times of their life, is more a sign of the inspiring endurance of the principles than something that should just be dismissed as opportunistic.
KLUTSEY: Yes. I’m just thinking that a cynic might say, “Every president wants more power, and so they would leverage which argument allows them to do more in whatever circumstance.” Is that too cynical?
ROSEN: No, I think that’s right. Executive power has been expanding since the beginning. Look at the number of executive orders. George Washington issued about 10. It was fewer than that until Lincoln, who had about 50 during the Civil War. It balloons up to about 300 under Theodore Roosevelt, and I think thousands—3,000—under FDR. Then it goes back to several hundred a year for most of the past Democratic and Republican presidents.
So, all presidents are inclined to use executive orders to achieve what they can’t achieve through Congress. And just as significantly, ever since the election of 1912—when both Theodore Roosevelt and Woodrow Wilson insisted that the president was a steward of the people who should directly channel popular will—that’s expanded what Arthur Schlesinger called the imperial presidency, which has continued to swell. And there’s no difference between Democrats and Republicans in how much power they are attempting to seize, just as there wasn’t much difference between Hamilton and Jefferson, and Jefferson’s own power grabs once he became president.
So it’s inherent in the nature of the office to want to consolidate power. The framers knew that, and they tried to design a constitution that would constrain the president. What would have surprised the framers is not that the president is trying to constantly aggrandize his own power, but that Congress has become so supine in rubber-stamping the power grabs of presidents of their own parties.
The framers saw Congress as the most dangerous branch, sucking all powers into its impetuous vortex, as Madison so memorably said. And they also thought that the Senate, a group of aristocrats, would check the popular House, just as both would be checked by the independent president and the independent judiciary. So the rise of partisanship to the degree that it stopped Congress in particular from doing its job would have surprised the founders, but the fact that the presidency has engaged in power grabs would not.
What if Hamilton was president?
KLUTSEY: Do you have any reflections on how Hamilton would have governed if he had been president? Or we can just basically guess from the ways in which his ideas lived on through other presidents?
ROSEN: Well, it’s really striking to speculate about. First, we know character is destiny, and Hamilton was extraordinarily hot-headed. That’s why he’s the guy who got the musical. No one’s going to write a musical probably about the Sphinx-like Jefferson, or certainly the temperate Madison.
And he’s constantly picking fights with everyone, not only his enemies like Jefferson, Burr, and eventually Madison, but even his friends like John Adams, who he completely gratuitously attacks during the election of 1800, and George Washington, who’s his patron. And he resigns from Washington’s service because Washington gently upbraids him for keeping him waiting.
He’s incredibly insecure about his illegitimacy and is always on the lookout for people who are demeaning him or questioning his status. And he also does have these strong tendencies toward monarchy, to the degree that Gouverneur Morris, one of his allies and friends, in his eulogy for Hamilton confesses that he never knew whether Hamilton would have followed through on what Morris called “his hobby horse” of wanting to establish a kind of military presence in Spanish Louisiana with himself at the helm, essentially doing what he rightly accused Aaron Burr of doing.
So, really, whether he would have been comfortable with the constitutional system and its constraints is not obvious. On the other hand, he certainly would have been a vigorous leader, and some of our most successful presidents have been vigorous and stretched the bounds of executive power like Lincoln and FDR.
His genius is unquestioned. He was not a great party politician. He never really led the Federalists in any sustained way because he was always picking intramural fights. He tried to change the rules of the election of 1800 to keep Burr from the New York governorship after the election had taken place, which was one of the worst things he ever did.
He called, at the end of his life, for a society for the promotion of Christian virtue to try to inspire virtue, which different people have different views about. And the fact that he never successfully gained meaningful elective office for any period of time suggests that he wasn’t made for politics because he dislikes democracy. I mean, how can you expect someone who literally thinks that the greatest threat to America is popular rule to be a successful popular politician?
Jefferson’s empire of liberty
KLUTSEY: Now Jefferson famously uses the term “empire of liberty” to describe America. That phrase sounds probably paradoxical to modern ears, but what did he mean by that?
ROSEN: He meant that America would spread from east to west—in particular, across the Missouri territories, eventually reaching California—bringing with it the suffrage for white, male farmers. He’s very keen on the virtue of the rural classes. He wants to give a competency of 50 acres to everyone who sets off for the West, in order to guarantee them the vote. And in this sense, he’s progressive in supporting a version of universal suffrage for white men.
This coincides with his brutal policies about Native American removal, which is the centerpiece of his empire of liberty—picked up by Andrew Jackson—and also the idea that slavery should be able to extend into the northwest territories, a position he had rejected in 1784, when he had insisted that slavery be banned in the northwest territories. That failed only because a delegate from Virginia didn’t show up. Jefferson, at the time, said [that] on the fate of millions, that single vote turned.
But then when he got older, he hardened in his attachment to slavery. He totally flip-flopped on the question of the constitutionality of banning slavery in the territories and came to argue that the Missouri Compromise was unconstitutional, adopting a version of the strict construction of the territories clause that he’d originally rejected in the Northwest Ordinance and also rejected in buying Louisiana. So he’s really all over the place in justifying slavery by the end of his life, which makes the idea of an empire of liberty complicated, to say the least.
But that was his vision, and that’s why at Monticello, he oriented the house so that it was facing west and he could look out to the west and imagine the scope of the empire to come.
Jefferson’s Saxon myth
KLUTSEY: Fascinating stuff. You also highlight something that Jefferson calls “the Saxon myth,” the idea that Americans inherited an ancient Anglo-Saxon tradition of liberty and self-government. Why was that story so important to Jefferson, and how much did these founding myths matter in shaping American identity?
ROSEN: He is obsessed with it. So obsessed that it really becomes tedious after a while, because he’s reading Lord Coke and these ancient English analects of common law that even he confesses he can barely understand because they’re so technical. But it’s really a utopian vision of lost liberty.
He gets the idea that at some point, in the mists of the ancient past, before the Norman Conquest, the Saxons and the Celts engaged in self-governing communities through a form of protodemocracies. And in their town meetings they were able—because the communities were so small and all divided into wards—to engage in the first exercises in democratic self-government, before the Norman Conquest imposed feudal entails and other restrictions that he thought were inconsistent with liberty and democracy.
He keeps returning to this myth. It may have satisfied some psychological need in him for a security that he lacked in his own upbringing. He had an ambivalent relationship with his mom and his dad died when he was young, so maybe it gave him a sense of comfort.
But basically, the Saxon myth proved inadequate once King George refused to recognize it. Jefferson believed that the colonists took all of their liberties with them when they emigrated from England, and that the British parliament had no more authority over them than it did over the people of Holland—a position he was not able to persuade anyone but his law tutor, George Wythe, to embrace. So once the king refuses to recognize these ancient common-law liberties that Americans are supposed to have taken with them, then Jefferson broadens his gaze to the universal rights of mankind. And that’s why in the Declaration he says all men, human beings, are created equal. And he roots liberty not in tradition, but in natural law.
And, of course, it’s the natural law tradition that previously excluded groups—from African Americans to women to other immigrants—have invoked to demand their place in the American story, as Martin Luther King did on the Washington Mall, when he invoked the Declaration and said the arc of justice bends upward.
So, from the beginning, Jefferson has two competing notions of liberty, and they’re at war with each other from the beginning.
Jeffersonian and Hamiltonian presidents
KLUTSEY: Now, this may be a bit of an unfair question, but if you look across the 250 years of American history and 46 presidencies, which of the presidents would you say is the most Hamiltonian, and which of the presidents would you say is most Jeffersonian?
ROSEN: Well, that is—it’s not an unfair question, but it’s one that I never thought through. So let me see if I can do it on the spot.
I mean, if you just judge based on a devotion to federal power versus states’ rights, I suppose you’d have to say that FDR is the most Hamiltonian president. Even though he made Jefferson his icon, built the Jefferson Memorial, put Jefferson on the nickel, and died the day before Jefferson’s birthday with an undelivered speech on Jefferson as the prototype of the postwar era.
And the most Jeffersonian president—I suppose that some of the presidents in the early 20th century might count. William Howard Taft, who’s another hero of mine—I wrote a short biography of him—in fact worshiped Hamilton and John Marshall because of their devotion to judicial independence. But he viewed the presidency as a kind of chief magistrate who would carry out Congress’s will, could propose ideas but not really lobby for them. And he also balanced the budget in a way that Jefferson did. So, he was fairly Jeffersonian, but he took a strong view of the executive as chief justice, so he doesn’t quite do it.
Interestingly, the later Gilded Age presidents like Coolidge, who worshiped Hamilton and praised him above all, also were Jeffersonian in their devotion to small government. Ronald Reagan, who said he left the Democratic Party because it had abandoned the limited-government principles of Jefferson, of course expanded executive power, including claims about the unitary executive to vast degrees.
Interestingly, William Jefferson Clinton, who really loved Jefferson and took a bus from Monticello to his inauguration, admired Jefferson and balanced the budget. I think he was the last president who did. So he was pretty true to his namesake. Those are some possibilities. What do you think? Have I missed any?
KLUTSEY: No. The ones that came to mind—I think you already talked about them in terms of the Jeffersonian ones, like Bill Clinton, Coolidge to a certain extent, and then Ronald Reagan as well, to the extent that they focused quite a bit on deregulation. Maybe Carter might be in that camp, potentially? But because of their focus on deregulation, balancing the budget, especially in Bill Clinton’s case. But yes, I thought your answers were great.
Jeffersonian and Hamiltonian legacies in the Supreme Court
KLUTSEY: So the Roberts Court—you made a remarkably prescient observation that Chief Justice John Roberts would likely uphold the Affordable Care Act by channeling John Marshall’s instinct for institutional preservation and judicial restraint. What helped you to see that before many others did?
ROSEN: Well, I wouldn’t call it a prediction or a prophecy. With the arrogance of youth that I was demonstrating in those days as an opinion journalist, I did say that if he took seriously his devotion to John Marshall, his hero, then he would uphold the Affordable Care Act, because Marshall believed in federal power and also in avoiding divisive opinions that would challenge the centerpiece of a president’s domestic agenda, which Marshall avoided doing with Jefferson. And then later, George Will, my friend who I greatly admire, wrote a piece accusing me and some other commentators, including President Obama, of trying to bully Chief Justice Roberts, which of course was silly. We were just writing opinion pieces.
But the significant thing is that, in that crucial moment, Roberts chose to be Marshall rather than Taney, or Justice Bradley, or any of the other justices who struck down totemic super-statutes passed by Congress. He quoted Marshall and Hamilton, and he upheld the Affordable Care Act in a kind of twistification—to use Jefferson’s epithet about Marshall—that his critics thought was completely unprincipled. That jujitsu move, that the Affordable Care Act violated the commerce clause but was a tax, is something that Marshall would have been proud of.
KLUTSEY: And now, going back to what you said earlier, that we should—rather than think of the Supreme Court as the two camps, the originalists and the non-originalists, we should think more in terms of the Hamiltonian versus the Jeffersonian. Is that correct?
ROSEN: Yes, I do think that it’s a significant split. It’s significant that Justice Scalia, the first originalist, called himself a Hamiltonian, said he believed in vigorous federal government, and supported the Chevron opinion, deferring to administrative agencies. And there’s a book about Scalia calling him a Hamiltonian on the court.
He disagreed with Justice Thomas on questions, including the constitutionality of bans on medical marijuana, because Justice Thomas is a Jeffersonian. Just a few weeks ago, he gave a speech praising the Declaration of Independence and natural law. And he takes a much more strict- rather than liberal-constructionist view, and is far less sympathetic to federal power.
On the current court, broadly, you could say that Hamiltonians include Chief Justice Roberts, Justice Barrett, and perhaps Justice Kavanaugh, at least on congressional power. And Jeffersonians include Justices Gorsuch, Alito, and Thomas.
Now, it’s not a clean typology, because Democrats tend to be Hamiltonian on executive power, and Jeffersonian on congressional power—at least when the other guy’s in control. And Republicans are the opposite. They tend to be Hamiltonian on executive power, and Jeffersonian on congressional power. [sic] But speaking broadly, there’s certainly a difference in how vigorously the justices are willing to uphold federal power. And I think we see it on the court today.
The inspiration behind “The Pursuit of Liberty”
KLUTSEY: So what inspired you to write the book?
ROSEN: I was the legal affairs editor of The New Republic magazine for a long time—20 years. And at some point then, I came across Herbert Croly’s book, The Promise of the American Life, calling on Theodore Roosevelt to deploy Hamiltonian means for Jeffersonian ends—as we discussed, the Hamiltonian means of strong federal power for the Jeffersonian ends of curbing the trusts and promoting democracy. And I was just intrigued by the phrase.
And then I came to be familiar with the fact that the claim that American history has been a battle between the ideals of Jefferson and Hamilton is probably the oldest thesis in all of American history. I found that John Quincy Adams had made it in his amazing speech about the “Jubilee of the Constitution” on its 50th anniversary, where he said that American history could be traced to the Hamilton-Jefferson debate between federal power and states’ rights. And then I learned that Martin Van Buren, who wrote the first political history of the US, said that the history could be reduced to the Hamilton–Jefferson debate between democracy and rule by elites.
And then, of course, I came across these great books that were really influential in their time, like Claude Bowers’s Jefferson and Hamilton, [which talks about] the battle for democracy versus aristocracy, which just told the story of Hamilton and Jefferson in their own times, but which FDR cited as his inspiration for the New Deal.
So I just wondered whether anyone had taken it up to the present. It seemed like such an obvious topic, the most obvious of all. And to my surprise, no one had. So I thought on the occasion of America 250, it would be useful, interesting, and most of all, that I would learn stuff—which is the way I choose my book topics—to trace the Hamilton–Jefferson battle from the founding into today.
And it’s such an exciting time to be a historian with electronic word searches, because so many of the documents are online. You can just sit on your couch and plug in the words Hamilton and Jefferson to all the most significant debates in American history.
And what surprised me is they’re everywhere. It’s not just hiding in plain sight. Congressmen, presidents, and justices are quoting them by name at all the crucial turning points. And that was important to me, not to vaguely describe a debate as Hamiltonian or Jeffersonian, but to have them quoted in the primary sources as supporting one position or another.
So it proved to be so much richer than I could have even imagined, because at every point up to the present, from Clinton all the way up to President Trump, Americans have been debating Hamilton and Jefferson. The stocks of each of them have gone up and down, depending on pop culture or the needs of the moment. And it’s just a dramatic, and I hope compelling, way of telling the intellectual, social, political and constitutional history of the United States.
A model of civility and resilience
KLUTSEY: That’s excellent. As we wrap up—and speaking of America’s 250th—how should we think about the debate between Hamilton and Jefferson in informing how we consider America’s resilience going forward? By resilience, I mean the ability to adapt, to innovate, to bounce back even stronger in the midst of challenges. And it seems to me that America has been able to do that over the past few centuries. There are probably some interesting lessons for us to learn about this debate or conversation between Jefferson and Hamilton going forward.
ROSEN: Absolutely. First of all, it’s striking how severely we’ve been tested at times in our history, not just during the Civil War but after, with a brutal reaction to Reconstruction, insurrectionist violence from the Whiskey Rebellion to January 6 and beyond. Although, as Richard Hofstadter noted, it’s notable that insurrection has been relatively rare in American history.
But what’s so striking is that despite the violent, at times, and certainly always vigorous clashes between the ideals of Hamilton and Jefferson, Americans have generally been agreed on the ideals of the Declaration that Hamilton and Jefferson were debating, the ideals of the Declaration, the basis of the American creed. Liberty, equality, and government by consent are ideals that both Hamilton and Jefferson accepted, even though they disagreed about how to balance those values.
It’s also very significant that Hamilton and Jefferson themselves are a model for the civil discourse that we need to refer to. They both ended up joining forces in their opposition to Aaron Burr, who they rightly believed was a traitor plotting a secessionist movement in Spanish Louisiana and planning to set himself up as a dictator of Mexico. Hamilton said, “If we have an embryo Caesar, tis Burr.” And he supported Jefferson over Burr in the election of 1800, because although he didn’t like Jefferson, he thought Burr was a traitor and Jefferson was a patriot.
And Jefferson reciprocated by placing a bust of Hamilton next to his own in the central entrance hall of Monticello, which you can see if you go there today. And when Jefferson would pass the bust, as he was old, he would smile faintly and say, “Opposed in life as in death.” And for Jefferson, Hamilton was not a hated enemy to be opposed, but a respected opponent to be engaged with. And as we think about resilience and civility on the occasion of America 250, that’s exactly the spirit that we’ve got to get back to today.
KLUTSEY: That’s excellent. Well, Jeff Rosen, thank you so much for taking the time. Really appreciate it. And this is a fantastic book: The Pursuit of Liberty. Really wonderful book. Learned a lot from it. Thank you very much, Jeff.
ROSEN: Thanks for reading it so closely, and congrats again on this great new podcast.
KLUTSEY: Thank you.
