➡ The article discusses the importance of the Constitution as a standard to prevent dictatorship and maintain balance between democracy and rule by elites. It highlights the historical debates between Hamilton and Jefferson on democracy versus aristocracy, and how these debates have shaped American political parties and policies. The article also explores the struggle over the establishment of a central bank, a key debate in American constitutional history, and how this debate continues to influence major disputes in American constitutional law today.

➡ This text discusses the historical debates around the power of the federal government versus states’ rights in the United States, focusing on the concept of nullification and secession. It highlights the differing views of key figures like Hamilton, Jefferson, and Madison, and how these debates led to the Civil War. The text also explores how these issues continue to be relevant today, particularly in relation to the 10th Amendment and the balance of power between the federal government and the states. Lastly, it touches on the controversial figure of Aaron Burr and his attempts at secession.

➡ Jefferson and John Marshall had a major disagreement over the interpretation of the Constitution, leading to significant legal battles. This conflict continued even after Hamilton’s death, with Marshall seeing himself as Hamilton’s successor. The clash between Jefferson and Marshall set the stage for ongoing constitutional debates we still face today, such as the balance between federal and state power. Ultimately, their disagreements helped shape the Constitution and the role of the Supreme Court in American governance.

➡ The text discusses the influence of Hamilton and Jefferson on the U.S. Constitution and Civil War, and how their ideas shaped the post-war amendments. It highlights the role of Hamilton in the consolidation of the United States and the revival of his ideas during the Reconstruction period. The text also explores the impact of these historical figures on the Civil Rights movement, the debate over presidential power, and the evolution of executive authority. Lastly, it delves into the influence of Hamilton and Jefferson on early 20th-century leaders like Theodore Roosevelt, Woodrow Wilson, and William Howard Taft.

➡ The discussion revolves around the contrasting political ideologies of Hamilton and Jefferson, and how these ideologies have influenced American politics over the years. The speaker emphasizes the importance of open debate and listening to differing viewpoints, as both Hamilton and Jefferson did, to maintain a healthy republic. The speaker also mentions the current polarization in American society, comparing it to the Civil War era, and warns against viewing political opponents as enemies. The conversation ends with a call to uphold the values of liberty, equality, and government by consent, as embodied in the Declaration of the Constitution.

Our guest now is Jeffrey Rosen. The book, which just came out about a week or so ago, the pursuit of how Hamilton vs. Jefferson ignited the lasting battle over power in America. And in his book, he traces this over different time periods, a couple of decades, each of these things, and how people’s viewpoint and our viewpoint of government has shifted between these two polls, I guess, in terms of looking at how power should be structured here in the United States between Hamilton and Jefferson. But you have an interesting anecdote about Hamilton and Jefferson and what happened, what Jefferson did after Hamilton died.

Tell us a little bit about that. It’s so moving that Hamilton and Jefferson’s battles define the. Our early debates and in fact, all debates ever since about national power versus states rights, or a strong executive versus a strong judiciary, or liberal versus strict construction of the Constitution. And their battles over the bank of the United States and the Alien and Sedition Acts lead to the formation of America’s first political parties. But despite all of those clashes at the end of his life, after Hamilton dies in the duel, because they’re both united in believing that Aaron Burr is a traitor who’s trying to raise an insurrection in Spanish Louisiana and set himself up as a dictator after they both united against Burr, Jefferson places a bust of Hamilton across from his own in the central entrance hall of Monticello.

You can see it there today if you go there. And he passed it. Jefferson would say opposed in life as in death. And he viewed Hamilton not as a hated enemy to be destroyed, but a respected adversary to be engaged with. And that spirit of civil dialogue and learning how to listen to the other side and disagreeing without being disagreeable is one that we’ve urgently got to get back today. Oh, yes, we do. I talk about that almost every day. What has happened with that? Let’s start with the introduction. You say the greatest man that ever lived was Julius Caesar, quote, unquote.

And the dinner party that defined America. Tell us a little bit about what that is about. What’s that dinner party about? It’s amazing how relevant it is to our current debates. So this is a dinner party in the room where it happened, not the one where they moved the Capitol from New York to Washington D.C. in exchange for assuming the national debt. The one in the Hamilton musical. This is a year later and Washington’s away. The whole cabinet is gathered. At some point, Hamilton says to Jefferson, who are those three guys on the wall? And Jefferson says, those are my three portraits of the three greatest men in history.

John Locke, Francis Bacon and Isaac Newton. And Hamilton pauses for a long time and then he blurts out the greatest man that ever lived was Julius Caesar and convinces Jefferson, he wrote in his diary, that Hamilton is for a monarchy bottomed on corruption. And he proceeds to found the Democratic Republican Party in order to resist the alleged dictatorial ambitions of Hamilton and the Federalists. And Jefferson’ convinced from his studies of history that all elective monarchies end with popular leaders like Caesar converting themselves into hereditary despots. And that’s why Jefferson wants a one year term limit for the president.

When he gets a copy of the Constitution, he writes to Madison that a future president might refuse to leave office. So we need a one year term limit. Now. The anecdote is so interesting because as Ron Chernow, the great Hamilton historian, notes, when Hamilton praised Julius Caesar, he must have been joking. He insisted throughout his career that the greatest threat to America was an authoritarian demagogue like Caesar who could overthrow popular elections and consolidate power in his own hands. Hamilton’s solution, amazingly, is a life term for the President. Basically, if the President’s elect, he says, he won’t be tempted to extend his term, and that’s too much of the Constitutional Convention.

But amazingly, James Madison and Gouverneur Morris at some point support a version of a life term. So Hamilton wasn’t totally off on his own. Nevertheless, you know, the Constitution chooses no term limits. And then Jefferson establishes the tradition of stepping down after two terms. Washington, of course, famously gave up the office like Cincinnati returning to his farm. Yes, but it was Jefferson who by reaffirming that tradition, establishes it. And you know, I’ve just been looking into it in light of the recent question about whether or not President Trump can run for a third term. That Jefferson tradition holds until Grant, who actually does want to run for a third term, but Congress objects and he kind of pushes back.

The first president who, who’s who’s nominated and runs for a third term, of course, is Theodore Roosevelt. On the third party ticket. He promised not to run again and then he breaks that promise and then Franklin Roosevelt. And NFDR is such a great example of the kind of Julius Caesar because he’s attacked throughout his term as opposed to would be Caesar. And he dresses up in 1934 like Caesar. He has a Caesar themed birthday party and Eleanor dresses like a Roman matron and he in the middle, but it’s in the middle of World War II, so he arranges to be drafted by the Democratic Convention.

He runs for a third term and then he wins a fourth. He dies after 82 days after his election is a fourth term. And then Republicans in Congress just think, we, this cannot happen again. A kind of president who keeps running. So in 1947, Congress, which has been retaken by the Republicans, proposes the 22nd Amendment, which says you can’t be elected to the office of president more than twice. It’s ratified in 1951, and ever since then, that’s pretty well stuck. I mean, sometimes Ronald Reagan wanted to repeal the 22nd Amendment after he left office, but there in any real efforts to do it, it’s relatively popular.

And that brings it to our current debates. You know, President Trump had noted that his staff had discussed this potential loophole where you could run as a vice president, be elected, and then the elected president could resign and you could succeed that way. President Trump called that probably too cute. And I saw that just this morning. He seemed to acknowledge that the amendment clearly forbids a third term. He’d say, if. I’d say, if you read that, it’s pretty clear I’m not allowed to run. But the debate is so interesting because it goes back to Hamilton and Jefferson, to that dinner party that defined America.

And the point is that all of the framers are very concerned about presidents extending their power through dictatorial means. All the ancient republics of Greece and Rome had fallen because the virtue of the citizens hadn’t led citizens to protect liberty and had made them succumb to these demagogic leaders. And that’s why, although we’ve debated exactly how to impose term limits, I think Harry Truman put it best when he, in 1950, said he. I think he said, I know I could be elected and continue to break the old precedent, but it shouldn’t be done. The president should continue to be limited by custom based on the honor of the man in the office.

And I think that’s a great way. I agree. You know, that’s what is so dangerous about it. You know, that dinner, of course, certainly, at least in Jefferson’s estimation, you had Hamill Hamilton crossing the Rubicon is like, oh, that’s it. You know, this guy was a lifetime president. He thinks Julius Caesar was it. But, you know, it’s something that has really bothered me when people talk about this guy being the drug czar. I think it’s William Bennett, and he accepted that term. And it’s like, well, you know, czar is Caesar. Right. It’s the same thing. And we see this over and over again.

We got a czar for this and a czar for that. So we have this trend towards a kind of authoritarian dictatorship, leader, strongman, whatever you want to call it. I think it’s a very dangerous trend. And the thing that concerned me, as I said earlier in the program, you know, if we don’t understand the history, if we don’t understand the Constitution and how we got there, you know, we’re still having these same arguments, as you pointed out. That’s the whole purpose of your book, is to point out how this has gone back and forth and we have these two poles that we’re drawn to.

And if we don’t understand history, we don’t really see human nature and how human nature is continually going back to these types of things over and over again. So we don’t have a context for it. But I think that’s what’s really important about your book and about studying history and looking at these different philosophies that are there towards government, I think is very important now. So we have. That was the introduction to your book. And then you’re talking about how the will of the majority should always prevail. Thomas Jefferson’s declaration, that was one of the things that Steve Bannon was saying.

He said, well, the will of the people is the Constitution. And I’m like, well, no, I believe that the Constitution is a written document. And I think it’s very important to have an established standard that is out there that is external to the people. I think you have to have some kind of external standard so that you don’t wind up with a dictator, or so that you know that you’ve got a dictator if they ignore that standard that’s there. As someone who is working with the constitutional issues all the time with your organization, what do you think about that? Well, you’re absolutely right that that’s a central debate that goes back to the founding.

The balance between democracy and rule by elites. How can we empower majorities while resisting the mob? And that’s the central reason the Constitutional Convention was called. Hamilton and Madison and the other federalists are afraid of Shays rebellion in western Massachusetts, where Deb are mobbing the courthouses and the federal armory. And Hamilton says, imagine that Shays rebellion had been led by a Caesar or a Catiline. He would have begun a demagogue and turned tyrant. So so much of the Constitution is designed to slow down deliberation, to prevent mobs from formalizing, to put on checks on direct democracy.

At the same time, the will of the people must ultimately prevail. And that’s why Jefferson’s great vision was that the will of the majority should always ultimately prevail. He wanted, believe it or not, a constitutional convention every 19 years so that the people could decide whether they still supported it. Hamilton thought that was a disastrous idea because it would. You know, it was a miracle the first convention had succeeded. But that balance between democracy and rule by elites is central. FDR is really amazing here. And you’re so right about the importance, the urgent importance of studying history.

I was so struck by how presidents throughout history have actually invoked the Hamilton and Jefferson debate to structure our understanding of history. I was inspired to write the book when I saw that John Quincy Adams traced the entire development of America’s political parties back to the initial debate between Hamilton and Jefferson about democracy versus aristocracy, which is the question we’re talking about now. And that kind of. Hamilton and Jefferson go up and down throughout the 19th and 20th century. And Lincoln says that he’s a Jeffersonian even as he’s extending the powers of Congress dramatically during the Civil War.

Theodore Roosevelt leads a Hamiltonian revival when a historian called Herbert Crowley calls on him to deploy Hamiltonian means for Jeffersonian ends. In other words, the Hamiltonian strong federal power for the Jeffersonian ends of democracy and curbing the corporations. But the most amazing turn, Hamilton stock crashes after the stock market crash in 1929, no one likes Hamilton. Franklin Roosevelt in 1932 reinvents the Democratic Party as the party of Jeffersonian democracy rather than limited government. And he makes Jefferson the patron saint of the New Deal. Now, this takes incredible. Franklin Roosevelt is expanding government more than any other president in history, but he puts Jefferson on the nickel and he builds the Jefferson Memorial, and he reinvents himself as the patron saint of Jeffersonian democracy.

So this just shows how protean, how malleable Hamilton and Jefferson are. Both sides are often invoking them, you know, for both purposes. But then, to close this part of the story, Ronald Reagan said that he left the Democratic Party in 1960 because it had abandoned the principles of Jefferson and limited government. And he proposed to reinvent the Republican Party as the Libertarian Jefferson rather than the, you know, Jefferson who hated the banks and saying of the New Deal. And. And that really does bring us to today, where, as you suggested, the sides are so scrambled, in some sense, both sides will still invoke both folks.

President Trump said that he was running for office in 2020 because Democrats wanted to take down statues of Thomas Jefferson. And he was defending, you know, the founding ideals, although he’s certainly using executive power in ways that Jefferson would have questioned, whereas Joe Biden and The Democrats, you know, everyone’s a Hamiltonian after the musical and President Obama at the White House and stuff, but they’re hardly fans of Hamilton’s fiscal responsibility or his principles of, you know, of capitalism in the free market. So we’re very much as always debating the legacy of these men. But that basic tension you just identified between democracy and ruled by elites is central in American history.

And of course Jefferson was really well loved by the people. He was so linked to liberty as you’re talking about, you know, the libertarian streak of it. But he was linked to liberty and the minds of the American people. We’ve got towns and counties all across America that are named after Jefferson. Everybody wants to claim that he is with them on their political journey. Of course the Democrats for the longest time had the Jefferson Jackson dinners that they had there. And yet, you know, they’re pushing for a central bank which neither of them liked. And so, you know, it’s kind of interesting to me, like I said, you know, we have this increasingly centralized, all powerful government like Hamilton wanted to have and yet everybody wants to pretend that they’re Jefferson at the same time.

That’s this, this veneer of Jefferson that’s there. Maybe with this musical Hamilton, they’re going to change that and finally own what is really there. By the time you get to the third chapter, you talk about the struggle of the bank. Let’s talk a little bit about that because both of them are on different sides in terms of the bank. The central bank likes Hamilton, they put him on the ten dollar bill. But Jefferson, they put him on a short lived $2 bill. But talk a little bit about the struggle over the central bank and the national bank.

It’s amazing. This is the central debate in American constitutional history and it resonates for the next 200 years. The question is whether Congress can set up a bank. It’s the centerpiece of Hamilton’s financial plan. He wants to assume the state debts and create reliable credit. But the problem is that Jefferson says it’s unconstitutional. So Washington asks for memos from Jefferson and Hamilton and these become some of the most important constitutional memos in American history. Jefferson says that it’s unconstitutional to create a bank because the Constitution allows Congress to create all means necessary and property proper for promoting its enumerated ends.

And although Congress has the power to tax and to promote the general welfare, creating a bank isn’t absolutely or indispensably necessary to promoting the general welfare or raising taxes. Hamilton responds and he’s always pulls an all nighter he writes 14,000 words, and he says, you should interpret the necessary and proper clause liberally rather than strictly. And as long as a chosen means is conducive or appropriate or useful for carrying out an enumerated end, then it’s consistent with the Constitution. And since it might be useful to have a bank because that would promote credit, then the bank should be permissible.

Washington sides with Hamilton rather than Jefferson. Then it goes up to the Supreme Court a few years later, and John Marshall, in one of the most important Supreme Court opinions ever called McCullough vs. Maryland, sides with Hamilton over Jefferson. Marshall views himself as Hamilton’s successor. He’s writing Washington’s biography. He has next to his desk Washington’s papers given him by Bushrod Washington, who’s Washington’s nephew. And he reads in Washington papers Hamilton’s memo about the bank. He paraphrases it almost word for word in McCullough versus Maryland. And in one of the most famous sentences in constitutional history, Marshall says, let the end be legitimate.

If the means are appropriate, then it’s consistent with the Constitution. Almost a direct paraphrase of Hamilton. And then for the next hundred years, the constitutionality of the bank is still alive. Andrew Jackson resolves to kill the bank. He seizes Martin Van Buren’s hand and says, the bank is trying to kill me, but I will kill it. He lets it expire. James Madison, eventually, having initially thought the bank was unconstitutional, changes his mind because he thinks the people have come to accept it, showing that he has a kind of evolving version of the Constitution. And this question of the ability of Congress to print paper money is central in the Civil War.

And Lincoln actually appoints Supreme Court justices to try to uphold his power to print paper money. And then I won’t take you through the rest of American history right now, but when you think about the biggest disputes in American Constitution constitutional history, including the constitutionality of the Missouri Compromise which led to the Civil War, the constitutionality of the post restructuring Reconstruction Civil Rights act, all the way up to the constitutionality of health care reform. It all goes back to liberal versus strict construction. What’s necessary, what’s conducive, what’s appropriate. And just last week or so, the Supreme Court is debating the constitutionality of the Voting Rights act.

And it all goes back to that same debate. So I was really struck how central this is. And the main debate in constitutional history is not between originalism and non originalism, it’s between liberal and strict construction of the Constitution. Yes, whether or not we take the 10th amendment, very literally to say, well if you don’t have it listed there, you don’t have those powers. And so, but they won’t always infer it in terms of the Supremacy Clause or the General Welfare clause or the Commerce clause or something like that. Now, you know that chapter that was, you got dates on many of these things as well.

That was the debate. 1790, 1791. And then we move on to the nullification debate and whether or not that is the rightful remedy. You’ve got that date as 1792 to 1780. Let’s talk a little bit about that. Because of course nullification comes back in, in the 1830s and we nearly had a secession. And during the nullification crisis and the tariffs of abomination that happened, I’ve talked about that many times because it, you know, it’s kind of the situation where they, they reached a compromise and they were able to defuse it without having a full blown secession which happened like 30 years later.

And I’ve looked at it kind of from the standpoint of the fourth turning thesis of Strauss and Howe and how they’re looking at about every 80 years you have this major restructuring. I said, yeah, it just, it was like the society wasn’t really primed for it at that point, but the timing was right 30 years later. But nullification was always a big issue. Talk a little bit about that back in 1792-1780. What was going on with nullification at that point in time? Absolutely. You really well described the debate and it goes right back to Hamilton and Jefferson’s debate over the Alien and Sedition acts.

So in 1798, the Federalists, led by John Adams passed this law and it’s the greatest assault on free speech in American history. It makes it a crime to criticize the Federalist president, John Adams, but not the Republican Vice president Thomas Jefferson. It’s a pure political hatchet job, basically. So Jefferson and Madison object and they write the Virginia and Kentucky resolutions claiming that these laws are unconstitutional. Madison always takes a moderate and middle position between Hamilton and Jefferson. Sometimes it’s so complicated that only he can understand it. And he states don’t think that a law is constitutional.

They can interpose an objection. No one knows what this means except maybe like sending a stern letter saying that they don’t like it. But. But Jefferson goes further and in the Kentucky resolution he says if a state doesn’t think that a federal law is constitutional, it can nullify or refuse to obey it. That’s too much for Madison. He thinks that would lead to secession, and indeed it does. As the Civil War approaches, Southern opponents of federal power invoke Jefferson’s Kentucky resolution for the principle that states can refuse to carry out federal laws that they disagree with.

And it comes to a head first, as you said in the nullification controversy arising out of the tariff of abominations in 1828, when South Carolina objects that this northern tariff is going to hurt its commerce. And John Calhoun says, who’s Andrew Jackson’s vice president, says that South Carolina can refuse to carry out the tariff. It’s an incredible moment of testing for Andrew Jackson. After all, he’s a Jeffersonian who generally likes limited government. But in this noble decision to favor union over secession, Jackson gives a toast. He says liberty and union, they must be preserved. And he insists on enforcing federal law and not allow South Carolina to nullify.

So that is the first great statement of, of nationalism in this period. But nevertheless, Calhoun and the Southern secessionists continue to invoke Jefferson. And finally, right before the Civil War, they claim that the south can secede from the Union because we are a compact of states and federal law is not supreme. Once again, Madison disagrees with that. He thinks that once states agreed to form the Union, they can’t unilaterally secede. Abraham Lincoln cites Madison and John Marshall and James Wilson, all nationalists, when he denies the South’s power to secede. And that’s one of the precipitants of the Civil War, the constitutionality of secession.

And it takes the Civil War and the war came, as Lincoln said, and all the blood and tragic loss that resulted from that, to establish the proposition that we the people of the United States are sovereign, that states can’t unilaterally secede from the Union and that nullification is unconstitutional. And of course, Jefferson, in terms of, as you pointed out, he wanted to have frequent constitutional conventions because he was so heavily involved in the idea of self governance and that people would be able to make that determination. And the nation had been born by declaring its independence from Great Britain.

And so in a sense, you know, as the writer of the Declaration of Independence, he’s looking at this and saying, you know, we were born out of secession and we have the right of self determination to determine where we’re going to be. It’s interesting that today, of course, we’re, we’re still seeing echoes of this, especially with what’s happening with immigration and other issues. And we’ve had another aspect of this that’s been added, which of course is the non commandeering thing saying that you can’t force a state to work along with the, with the federal government on its agenda if the state doesn’t agree with it.

I think one of the things that’s kind of been the way that they have moved to have a direct confrontation is kind of the oblique method of saying, well, we will pay you money or we’ll withhold funds, depending on whether or not you do what we tell you to do from the federal government. And so that that method of, I call it bribery or blackmail financially, that has kind of kept this issue from coming to a head up to this point. And we still see aspects of it. When California wants to go their own way on immigration, they threaten them with removing funds, just as they do on issues about bathrooms and gender and things like that.

You’re so right that the central question of the residual power of states rights under the tenth Amendment remains one of America’s central constitutional questions. The constitutionality of secession turned on who was sovereign? The people of the United States, the people of each state. And as you say, there are still some states, and now some of them are blue rather than red, that are claiming there should be a residual right to secede. And more broadly, this question of when the federal government can commandeer the states and what the residual state sovereignty is remains crucial. Barry Goldwater, when he began to foment the conservative revolution in response to the New Deal, said that the 10th Amendment was central.

And on the current Supreme Court, many of the justices invoked the 10th Amendment in arguing that the help the Obama health care mandate was unconstitutional and that you can’t commandeer the states. Justice Anthony Kennedy was a big fan of federalism and insisted that federal and state power had to be kept within their appointed spheres. He said the founders split the atom of sovereignty. It all goes back to that initial Hamilton Jefferson debate. And the truth is we’re not entirely. There’s disagreement, there’s not consensus on the question of whether the nation is totally sovereign, as Hamilton said, whether the states are sovereign, as Jefferson said, or whether there’s a kind of dual sovereignty, as Madison said, which I think is the best reading of the Constitution, which part where we the people are sovereign, but we parcel out some sovereignty to the states and to the federal government and we’ve got to keep the balance between them.

Yeah, so that’s basically what he put in the 10th amendment. These powers have been delegated, you know, by the people in the states. So this is these debates that, this is why your book is so important, because the debates that we’re faced with on all these core and divisive issues that are there. These have been debated from the very beginning again between these two polls of Jefferson and Hamilton. Your next chapter here is 1800-1826 and this is President Jefferson, Chief Justice Marshall and Aaron Burr in court. Tell us a little bit about that. Well, first I have to say what a villain Aaron Burr was.

Historians have been wishy washy about his. When I was in North Carolina, we had a descendant of his who became a senator was better than he was. He was charming and you know, a rogue and very pleasant to be to have drinks with. But the guy was dead to rights. Henry Adams, the historian, found in the archives of the British ambassador a letter where Aaron Burr offered his service to the British in exchange for their supporting his efforts to lead a secessionist movement in Spanish Louisiana and set himself up as dictator of Mexico. So he may not have been technically guilty of treason because as John Marshall said after Jefferson prosecuted him, the Constitution sets a very high bar.

You need two witnesses and an overt act. But there’s no question that he was conspiring to secede from the Union. Another Benedict Arnold. Yeah, he was totally a balancing and that’s what was so. And that’s why Hamilton died. Remember Hamilton really distrusts Jefferson, of course, but he thinks Jefferson is a patriot and he thinks Burr is a traitor and that’s why he calls Burr a traitor. And that’s why Burr challenges him to a duel and he sacrifices his life because of his devotion to the Union and Jefferson joins him in this. So after Hamilton dies, Jefferson decides to prosecute Burr for treason.

And this precipitates the huge clash between Jefferson and John Marshall in the Supreme Court. The John Marshall is a federalist redoubt. After the Federals have lost the election, you know, they appoint all these federalist justices to pack the courts. John Adams smuggled in Marshall as Chief justice during the waning days of his administration. And Marshall sets out to defend Hamiltonian values, namely property rights and national commerce over states rights and, and, and too much democracy. And, and Marshall has these huge clashes with Jefferson. The most famous one, Marbury vs Madison, involves can he order Jefferson to turn over a commission that Adams had made to a, to a judge.

And Marshall doesn’t want to issue an order that he knows will be defied because it’ll expose the court as weak. The same question we’re having today, is the president going to defy the Supreme Court? Marshall dodges the question by saying the court has the power to Order the subpoena. But he’s not going to do it now because the act authorizing the subpoena to be turned over is unconstitutional. Even to state this shows he. He was such a master of what Jefferson called twistifications. He would come up with these very complicated legal compromises. I like that word, twistification.

We need to bring that back. Yeah. Jefferson also said of Marshall that he’s so untrustworthy that if you ask me the time of day, I’ll say, I don’t know, because he’ll twist my words against me. They really disliked each other. They were distant cousins, and I think Marshall’s. Jefferson had courted the lady who became Marshall’s aunt or something like that. So they have been blood in the family. But. But the point is, it’s a huge clash. Basically, the clash between Jefferson and John Marshall is the clash between Jefferson and Hamilton continued after Hamilton’s death because John Marshall views himself as Hamilton’s successor.

And in the end, in the Burr trial, Marshall does order Jefferson to turn over papers related to Burr. This faces Jefferson with a question, and he briefly considers not obeying or abiding by decision. He does decide to turn over the papers establishing the precedent that the president can be subpoenaed. But Jefferson, in his response to Marshall, declares that the President has an ability to interpret the Constitution differently than the Supreme Court and to follow his own conclusions. This is a principle that becomes known as departmentalism, where each department can reach its own judgment. And carried to its extreme, it would allow the president to defy the Supreme Court when he disagreed with it.

Interestingly, no president has taken that radical position and openly defied the Supreme Court. Lincoln briefly defied Roger Taney for two weeks during the Civil War when Taney ordered him to free a Confederate prisoner and said that he’d unconstitutionally suspended habeas corpus. Lincoln didn’t do that for two weeks. Then he did comply. But Taney was acting as a district court judge not sitting for the whole Supreme Court, so. So no president has ever openly defied the full Supreme Court. But the point of that chapter, the clashes between Marshall and Jefferson are that they also establish the constitutional battles that we’re still facing today between liberal and strict construction of the Constitution.

And remember, Marshall’s approach, which he calls liberal or fair construction, which he gets from Hamilton, is always construe federal power fairly. You know, not. Not to be unlimited, but. But broadly, consistently with its spirit. And Jefferson, as you said, said, if the power isn’t explicitly enumerated, then you shouldn’t construe it to be present. And you should also carry yourself back to the spirit in which the amendment was passed. It’s. It’s strict construction. And that debate is won by Marshall temporarily. But then, just to finish this part of the story, Marshall is succeeded by Roger Tawney. And Andrew Jackson wants Roger Taney to constrict federal power and to prevent Congress from chartering a bank.

And Taney gets in and he comes up with a more Jeffersonian approach on the Supreme Court. And it culminates in the debate over the Missouri Compromise, which leads to the Civil War. Yes, it is. It is amazing to see these same strains being pulled back and forth as we go through history. I love the way your book is set up. It’s very interesting, of course, with Marbury versus Madison, if I remember correctly, Jefferson said, well, that’s the end of the Constitution if we’re going to have the Supreme Court be able to decide and have the final say as to whether or not something is constitutional.

I’m kind of paraphrasing him here, maybe you know the quote, but that’s absolutely right. He’s. And he said that Marshall would make a thing of wax out of the Constitution if he construed it so liberally as to eliminate all powers. And that’s why he wants strict construction to prevent Marshall from turning the Constitution into a thing of wax. Yes. That’s a great way to put it. Today they talk about being a living document, but I like the idea of it being a thing of wax. That’s great. And then you have the period from 1826 to 1820, you say all honor to Jefferson.

And so up until the point of the Civil War, you know, we have a everybody again. Jefferson, who spoke so eloquently about liberty, captured everyone’s imagination in America. And he is the one that everybody wants to be seen as. Talk a little bit about that period in history there because they were going through the nullification crisis and many other things. Absolutely. And culminating in the debate over the constitutionality of the Missouri Compromise, which is the central compromise over slavery in the early Republic. The basic question is, does Congress have the power to ban slavery in the newly acquired territories and in new states? And Jefferson initially said yes.

He, in 1784, sponsored a provision called the Jefferson Proviso, which would have allowed Congress to ban slavery in the territories. But then he becomes president. First of all, he doubles the size of the US by buying Louisiana, even though he thinks it’s unconstitutional. But he swallows his doubts because he’s more interested in, you know, the obvious benefits of doubling the size of the US but then he really is afraid that the Missouri Compromise is going to lead to civil war. So he argues that it’s unconstitutional, embracing the same narrow construction of the territories clause that he’d rejected in buying Louisiana.

So it gets up to the Supreme Court and it all comes back to that same question, liberal versus strict construction of the single word territories. And Chief Justice Roger Taney, channeling the late but not the earlier Jefferson says, because the Constitution allows you to pass regulations for the federal for governing land in the federal territory, singular, it only covers the territory that was held by the US at the time of the founding, not future acquired territories, plural. It’s like it all depends on what the meaning of the word is. Incredibly legalistic. And the point here is that, you know, Jefferson had flipped on this question, and it’s the central constitutional question of the antebellum period.

The entire Republican Party is founded by Lincoln and others in 1857 on the proposition that Congress does have the power to ban slavery in the territories. So Taney is imposing a contested interpretation of the Constitution above the consensus of the Republican Party as well as many other pro popular sovereignty Democrats. And his opinion has the effect of helping to precipitate the Civil War. Taney wrongly thinks that this will end the divisions over slavery. But as usual, when the Court tries to solve a contested question without clear constitutional answers, it made things worse. And Lincoln says that he will not follow the Dred Scott decision except with regard to the parties in the case.

But otherwise he doesn’t view it as part of the Constitution, Interestingly embracing a kind of Jeffersonian view of the President’s power to interpret the Constitution separately from the Court. That’s when Lincoln stands in front of Independence hall in 1861 and he says, I’ve never had a thought politically that doesn’t stem from Jefferson and the Declaration of Independence. I’d rather be assassinated on this spot than abandon the principles of Jefferson. It’s incredibly powerful statement by the great emancipator. Why is Lincoln a Jeffersonian? After all, he’s embracing a version of federal power that really wants to expand the government in ways that are consistent with Hamilton’s views, Basically because, you know, Hamilton’s name is mud and he’s viewed as a aristocrat, and the Federalist Party is dead.

And Lincoln’s mentor, Henry Clay, the founder of the Whig Party, studied with Thomas Jefferson’s law tutor George with and views himself as a Jeffersonian nationalist. So, so that’s why. And plus, Lincoln wants to win and everyone loves Jefferson. So. So that’s why he embraces Jefferson before the Civil War. But the great constitutional achievement of Abraham Lincoln is to inscribe into the Constitution the principle of liberty for all. And by talking about the goals of the Declaration and the Constitution in the phrase liberty for all, he’s inspired by Jefferson. And that’s what leads to the post Civil War amendments to the Constitution.

It’s just an amazing reminder of how central that old Hamilton Jefferson debate was in leading the court to strike down the Missouri Compromise and helping to cause the Civil War. And as you say in the next chapter, you know, post. Well, from 1861 on, Hamilton is waxing. In other words, Hamilton is growing and it’s becoming more and more concentrated and centralized, as many people pointed out. They would say the United States are before the Civil War, but after that they said the United States is. And so we have this tremendous consolidation that happens because of the Civil War.

Speak to that. It’s so striking, isn’t it? Jackson was the first. Well, James Wilson and Gouverneur Morris, who wrote the preamble to the Constitution, talked about the United States. R. Jackson picked it up. And then the Civil War establishes that we’re a plural union. I think it’s so inspiring that James Garfield led a Hamilton revival after the Civil War when he read the collected works of Hamilton in the library. Hamilton’s son James published them and Garfield read them and said, I want to make him the patron saint of Reconstruction. Then Reconstruction, Congress. People like John Bingham, who’s an incredible admirer of John Marshall, cite Marshall and Hamilton in when they propose the 13th, 14th and 15th Amendments.

And the 14th Amendment in Section 5 gives Congress the power to enforce this article by appropriate legislation. Bingham is trying to empower Congress in ways that Hamilton would have wanted. And the first draft of the 14th Amendment says Congress shall have all power to make laws necessary and proper to enforce equal protection. He’s taking that liberal construction of that necessary and proper clause all channeled by Hamilton. These guys are such good lawyers, but more importantly, they’re great historians. They studied history as kids. They were inspired by their heroes, and they want to make Hamilton and Marshall central.

And then the great debates over Reconstruction. And it’s such a tragic period because, you know, Congress passes these laws and then there’s a violent reaction and black civil rights are subverted and black people are lynched and murdered. And then the Supreme Court goes on to strike down a lot of the pillars of Reconstruction, including the Civil Rights act of 1875, which forbids discrimination and public accommodations, and also the Ku Klux Klan act of 1877, which allows the punishment of racially motivated violence. And in striking those acts down, they invoke Jefferson’s strict construction of the Necessary and Proper Clause, and they ignore the fact that Hamilton had the opposite view.

And. And Justice Bradley is kind of a villain of my book because he really does a number on Reconstruction and strikes all those acts down. And the hero of this part is John Marshall Harlan, a great justice named after John Marshall because his father admires Marshall so much. Harlan is the. He is the president of the Alexander Hamilton Memorial Society, and he writes the only dissenting opinions, both in the civil rights cases which strike down the Civil Rights act, And in Plessy vs Ferguson, the infamous case which upholds segregation and railroads. And Harlan nobly says the Constitution institution is colorblind and neither knows nor tolerates classes among citizens.

And he explicitly votes Hamilton’s broad construction of congressional power. It takes another hundred years for Thurgood Marshall to read Harlan’s opinion aloud before he argues Brown versus Board of Education. Today, Justice Neil Gorsuch has a portrait of Harlan in his chambers, showing that Harlan has been embraced by strict constructionist conservatives as well as liberals alike. But it all goes back to the Hamilton revival, when Bingham wants to make Hamilton, rather than Jefferson, the patron saint of Reconstruction. Interesting. And as we look at Reconstruction and the idea that we had a standing army that was a part of that Posse Comitatus, which is now back in current events because of the actions of ICE and the Trump administration, that was a kind of a capstone to Reconstruction and some of the abuses that were happening with a standing army at that point in time.

So all these things keep coming back, don’t they? They really do. And to make things even better for the Hamilton Jefferson narrative, although not for the country, the debate over Posse Comitatus is part of this longstanding debate about the president’s power to call up the militia to enforce federal law, which goes back to the Insurrection act of 1807, sponsored by Thomas Jefferson. It’s amazing that Jefferson is the guy who, before the Founding says, oh, we should. A little rebellion every now and then is a good thing, and we should pardon those whiskey Rebels, and we’ve got to moisten the blood of tyrants with revolution.

I mean, he, like, endorses revolution, but then he becomes president and totally switches his tune when Vermont rebels against his hated embargo. Jefferson has this disastrous economic policy. We’re cutting off all trade with the rest of the world. New England. That sounds familiar too, but yeah, go ahead. I’m sorry. Everything goes back to those days. Well, New England, then, as now, actually rebels. And in Jefferson writes to Madison, do I have the power to send out the troops to stop these guys? Madison says, I don’t think so. So they pass the Insurrection act, which is the same one that has been invoked throughout American history.

And President Jackson invokes it to put down a rebellion. Lincoln invokes it to put down secession. Grant invokes it after the Civil War to try to put down some of that mob violence. And it goes all the way up today. And the last time it was invoked, it was during the Civil Rights movement, And then George H.W. bush involved it to put down the Rodney King riots. That was the last time. But this, this question, which is obviously central now both with the Posse Comitatus act and also the question, can President Trump send guards from one state into another? Goes back to that initial Hamilton Jefferson debate.

And I, I, having read the Insurrection act as it was amended over the years, it does seem to give the President pretty broad authority to send the troops, even for domestic law enforcement. Although Jefferson and Hamilton initially thought that you couldn’t federalize the troops for domestic law enforcement, only to put down insurrection or serious external threats. But because Congress has exceeded in the expansion of executive authority over the years, the President’s authority may be unconstrained. Yeah, that’s a very interesting debate that we have there. And then we go to the period of the early 1900s. You have this titled as Hamiltonian means to achieve Jefferson ends question mark.

And so we’ve got the time of Theodore Roosevelt, Woodrow Wilson and the new nationalism. Henry Cabot Lodge, Calvin Coolidge, talk a little bit about that. I was partly inspired to write this book when I read this historian from the Progressive Era, Herbert Crowley, calling on Theodore Roosevelt to deploy Hamiltonian means for Jeffersonian ends. Crowley was the founder of the New Republic magazine. As it happens, I spent almost two decades there as the Legal affairs editor a while ago. And I just thought that was an interesting phrase. And I was so struck that Roosevelt used it and quoted it word for word when he said, I am a Hamiltonian with regard to my views of federal power and a Jeffersonian in my views about democracy.

So obviously the categories were getting scrambled. And this is the period when Theodore Roosevelt makes Hamilton the hero of the Progressive Era, and then Coolidge and Harding make Hamilton the hero of the Gilded Age. Coolidge really admires Hamilton, who he studies in Amherst College. He reveres the founding, in particular the Puritan basis of the founding. And he sees Hamilton as a patron saint, both of free enterprise and of limited government. It’s so striking. And there’s a huge change in the understanding of executive power. In the election of 1912, you had to pick a single moment for the growth of the modern imperial presidency.

It would be 1912 when both Theodore Roosevelt and Woodrow Wilson, the progressive and Democratic candidate, say that the president is a steward of the people who should directly channel popular will. And William Howard Taft, the old constitutionalist, thinks that they’re both demagogues and that the Founders thought that the president should be a chief magistrate who enforces the laws of Congress but doesn’t communicate directly with the people. Interestingly, all three of them are historians who love Hamilton. And Theodore Roosevelt, isn’t it? I thought this was so cool. Theodore Roosevelt wrote a biography of Gouverneur Morris, who is a big Hamiltonian.

He’s a great historian as well as a great leader. Woodrow Wilson is the only president who ever got a PhD in history or in anything. And he, he admires Hamilton, although he also admires Hegel, the German philosopher, and criticizes the natural law, separation of powers basis of the Declaration of Independence. And William Howard Taft thinks that Hamilton and Marshall are the greatest Americans ever and writes a book on presidential power. So George Will once told me that you can tell what kind of conservative someone is today based on where they would have have stood in the election of 1912.

And if you’re a. If you’re a kind of populist conservative, then you love Wilson or Roosevelt. And if you’re a constitutionalist conservative, you like William Howard Taft. Yeah, I would have gone for Taft, I think. No doubt about it. And so I have to just briefly say I. As it happens, I wrote a short biography of William Howard Taft for the American President series a while ago. I didn’t know much about him until I got the assignment, but I really came to admire him as our last constitutionalist president. Wow. He’s a great man. Not just by his size, but he was an outsized character in history as well.

And so at this point in time, this is also when we have a major restructuring of our country with the bank, with the Federal Reserve. You talk about these guys being fans of Alexander Hamilton. Well, we can certainly see that with the Federal Reserve act that happens at that point. Time. And then we have 1932-68. So New Deal ism, FDR and other things. The Economic Hamiltonianism has become political. Jeffersons Jeffersonians talk a little bit about that. Another example of a time when best selling books are changing. Hamilton and Jefferson going up and down. Theodore Roosevelt’s inspired to embrace Hamilton when he reads a bestseller by a woman called Gerthrude Everton the Conqueror.

Being the true and romantic tale of Hamilton. It’s the Hamilton musical of its day and it makes Hamilton the star of the moment. But FDR is inspired to resurrect Jefferson after reading a book by a guy called Claude Bowers called Jefferson versus Hamilton the struggle for democracy over aristocracy. And FDR invites Bowers to speak to the Democratic Convention of 1928 and he’s a huge success. And then he reinvents himself as the second coming of Thomas Jefferson based on his reading of this book. FDR is a Hudson Valley aristocrat. You who you know, you’d think would his, his grandfather had actually been an ally of Hamilton but he just identifies with Jefferson the democratic aristocrat.

You know he’s collecting stamps and tracing his ancestry back to the founding and, and, and decides to make himself the, the, the second coming of Thomas Jefferson. But this raises the question of the limits on the New Deal administrative state. As you said, independent agencies were created during the Progressive era by Woodrow Wilson and Louis Brandeis who’s another hero of mine. Actually Brandeis was a great Jeffersonian. He admired Jefferson more than anyone. And in constructing agencies like the Fed and the Federal Trade Commission he viewed them as a combination of public and private control that would prevent too much centralization in the federal government.

And Brandeis upheld the constitutionality of the independent agencies in the 1930s in a case called Humphreys Executor. That was a unanimous Supreme Court decision. That’s the central question in the Supreme Court’s going to hear in a couple weeks. Are independent agencies constitutional today? And lots of folks think they’re going to overturn that Humphreys executive decision and strike down the agencies on the so called unitary executive theory which says that the President can fire anyone he appoints. The. Who’s the patron saint of the unitary executive theory? Alexander Hamilton. He came up with the idea of it in his Pacificus letters and Reagan administration lawyers invoked it when they first came up with the unitary executive theory.

And who’s the patron saint of the constitutionality of the independent agencies? Thomas Jefferson. Who Brandeis invoked in the Humphreys Executor case. So once again I think you got the thesis of the book. Now it all goes back to that initial clash. It’s so interesting. And of course, what we’ve seen is everybody wanted to embrace the image and the reputation of Jefferson and identify themselves as Jeffersonianism. And again, I think it was because Jefferson was so linked with the idea of liberty, you know, as the author of the Declaration of Independence and all the rest of stuff.

But now lately there’s been this effort in modern times to link him to slavery. And so I think he has. His reputation has been tarnished. Now we’ve got Hamilton with his own musical, and we have Jefferson, who is now decried as someone who had slaves. And so there’s been a reversal of that. And I think that that’s kind of a key thing for who we are right now because, again, people would have this veneer of Jefferson there, but they really were consolidating power because. Because that’s just the nature of politicians and politics, is that you would have a consolidation of powers.

Acton said, but speak a little bit about that and where we are because we’re nearly out of time. Let’s give some. Some closing statements here as to where you see us right now in terms of this being pulled from one pole to the other. Jefferson and Hamilton. Well, these are challenging times for the American republic, as we all know, and we are more polarized than at any time since the Civil War. And there is talk once again in the land of secession and. And Julius Caesar and the question of whether the republic will survive. It’s so striking that Hamilton and Jefferson embraced the basic principles of the American idea as embodied in the Declaration of the Constitution.

Liberty, equality, and government by consent. They disagreed about how to apply those values in practice. And they had fierce debates over the proper balance between liberty and power, with Jefferson thinking every increase in power threatened liberty, and Hamilton thinking that increases in centralized power could secure liberty. The point of the Constitution is not agreement, but debate. The Constitution is made for people of fundamentally differing points of view, as Justice Oliver Wendell Holmes said. And disagreement is not a bug in the system, it’s a feature. But the debate has to involve listening to the other side. It cannot involve viewing the other side as enemies, owning the libs and owning the conservatives.

We’ve got to be committed to the process of deliberation itself. And that’s why the Hamilton and Jefferson debate is so inspiring. As long as we maintain it, we will keep the republic. And it’s only when we reject the debate itself that the shooting begins. Oh, absolutely, I agree with that. Yes. When we look at the fact that, as you point out, both people on the left and people on the right want to shut down the other side, censor them, punish them, take away licenses, whatever. We have to have that debate. And that was one thing on which both these two polls agreed, that is the quintessential American thing, is that we have to have a debate, debate on these different issues.

Thank you so much. Again, the book is the let me get the title again. Here it is, the Pursuit of how Hamilton vs. Jefferson ignited the Lasting Battle Over Power in America by Jeffrey Rosen, CEO of the National Constitution Center. And where’s the best place for people to find this? Do you sell this directly or on Amazon? The books on Amazon and in bookstores near you. Okay. That’s the best place for people find it looks like a fascinating book. It’s been a fascinating conversation. Thank you so much, Mr. Rosen. It’s a real great insight that you have there.

Thank you. And everyone, have a have a great day today. And thank you. Scott Helmer, thank you very much for the tip. I appreciate that. And we’ll talk about that tomorrow. Again. Scotthelmer.com News An Anthem for a Divided World Scott Helmer’s website there latest single but he of course he is recording artist. He said latest single speaks to. It does. Yes. Please share that scotthelmer.com and you can see at his website he’s got a new single that is there. Thank you so much, Scott, and thank you to all of you. Have a great day. The Common Man.

They created Common Core to dumb down our children. They created Common past to track and control us. Their Commons project to make sure the commoners own nothing. And the communist future. They see the common man as simple, unsophisticated, ordinary. But each of us has worth and dignity created in the image of God. That is what we have in common. That is what they want to take away. Their most powerful weapons are isolation, deception, intimidation. They desire to know everything about us while they hide everything from us. It’s time to turn that around and explore what they want to hide.

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