Hamilton and the Removal Power

Previous posts have discussed the appointment and removal of executive branch officials.

Gary Schmitt at AEI:

During the First Congress’s debate in which James Madison and others defended the ideas that the president had the constitutional power to remove department heads “at pleasure,” one of Madison’s opponents noted that, in Federalist #77, Alexander Hamilton had written that the Senate’s consent would be necessary not only for an official’s appointment but also “to displace” them. Madison and Hamilton, the two most influential expositors of the newly adopted constitution were seemingly at odds over how the government would remove senior administration figures.

Hamilton, alerted to the fact that his statement in Federalist #77 had been used to challenge Madison’s argument sent a note (see William Smith letter to Edward Rutledge, June 21, 1789) to a Madison ally in the House to let its members know that “upon more mature reflection,” he now agreed with Madison. The power to remove was the president’s alone as a constitutionally implied power of the office.

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Abusing the Pardon Power

 Many posts have addressed the president's pardon power.

Stephen Holmes at the Project Syndicate:

The pardon power is the only authority that the US Constitution places entirely in one person’s hands, immune from legislative override or judicial review. Alexander Hamilton, defending this arrangement in Federalist 74, understood the danger. But he wagered that shame would restrain abuse – that a president, bearing sole blame for corrupt use of the power, would hesitate where a legislature might not. “The sense of responsibility is always strongest,” Hamilton wrote, “in proportion as it is undivided.”

Hamilton was wrong. He did not anticipate a shameless president.

Hamilton’s case for the pardon was political, not moral. He barely mentioned mercy. The power’s core purpose was emergency peace-making: “in seasons of insurrection or rebellion, there are often critical moments, when a welltimed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth.”

This was the rationale for Massachusetts’ offer of clemency to participants in Shays’s Rebellion, and for George Washington’s pardon of those who took part in the Whiskey Rebellion during his presidency. The pardon was an ad hoc instrument for ending conflict after rebellion was suppressed – a discretionary tool for restoring peace when peace took priority over justice.

Crucially, Hamilton insisted that clemency must remain unpredictable. “It would generally be impolitic beforehand,” he wrote, “to take any step which might hold out the prospect of impunity.” A standing promise of pardons would encourage rebellion. The power works only if potential lawbreakers cannot count on forgiveness in advance.

Trump has inverted every element of this design. He has transformed the pardon from an instrument for ending conflict into a weapon for stoking it, from an ad hoc exercise of discretion into a standing promise of impunity, from a tool of reconciliation into a system for rewarding loyalty. Hamilton envisioned a president using clemency to heal divisions after insurrection; Trump pardoned the insurrectionists who attacked the US Capitol on January 6, 2021, only after returning to the presidency four years later, signaling that loyalty to him guarantees impunity.

The effects are already visible in courtrooms and law offices across the US. “If I were any defendant now,” a former senior Department of Justice official told the Financial Times, and “I had the financial wherewithal or connections, my thought would be, maybe I’ll be convicted, but I very well may get a pardon as well.” Defense attorneys are reportedly advising clients that conviction need not be the end for those who meet the criteria. Hamilton’s nightmare has become litigation strategy.

 

Stashing Away Residents of this Country

  The Trump administration is snatching people without due process.

 UNITED STATES COURT OF APPEALSFOR THE FOURTH CIRCUITNo. 25-1404(8:25-cv-00951-PX)KILMAR ARMANDO ABREGO GARCIA; JENNIFER STEFANIA VASQUEZSURA; A.A.V., a minor, by and through his next friend and mother, JenniferVasquez Sura,Plaintiffs – Appellees,v.KRISTI NOEM; TODD LYONS; KENNETH GENALO; NIKITA BAKER;PAMELA JO BONDI; MARCO RUBIO,Defendants – Appellants.ORDER WILKINSON, Circuit Judge, with whom KING and THACKER, Circuit Judges, join:

Upon review of the government’s motion, the court denies the motion for an emergency stay pending appeal and for a writ of mandamus. The relief the government is requesting is both extraordinary and premature. While we fully respect the Executive’s robust assertion of its Article II powers, we shall not micromanage the efforts of a fine district judge attempting to implement the Supreme Court’s recent decision.

It is difficult in some cases to get to the very heart of the matter. But in this case, it is not hard at all. The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order. Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done. 

This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear. 

The government asserts that Abrego Garcia is a terrorist and a member of MS-13. Perhaps, but perhaps not. Regardless, he is still entitled to due process. 

...

 “Energy in the [E]xecutive” is much to be respected. FEDERALIST NO. 70, at 423 (1789) (Alexander Hamilton) (Clinton Rossiter ed., 1961). It can rescue government from its lassitude and recalibrate imbalances too long left unexamined. The knowledge that executive energy is a perishable quality understandably breeds impatience with the courts. Courts, in turn, are frequently attuned to caution and are often uneasy with the Executive Branch’s breakneck pace. 

And the differences do not end there. The Executive is inherently focused upon ends; the Judiciary much more so upon means. Ends are bestowed on the Executive by electoral outcomes. Means are entrusted to all of government, but most especially to the Judiciary by the Constitution itself.

The Executive possesses enormous powers to prosecute and to deport, but with powers come restraints. If today the Executive claims the right to deport without due process and in disregard of court orders, what assurance will there be tomorrow that it will not deport American citizens and then disclaim responsibility to bring them home?∗ And what assurance shall there be that the Executive will not train its broad discretionary powers upon its political enemies? The threat, even if not the actuality, would always be present, and the Executive’s obligation to “take Care that the Laws be faithfully executed” would lose its meaning. U.S. CONST. art. II, § 3; see also id. art. II, § 1, cl. 8.

-- Judge J. Harvie Wilkinson 

* See, e.g., Michelle Stoddart, ‘Homegrowns are Next’: Trump Doubles Down on Sending American ‘Criminals’ to Foreign Prisons, ABC NEWS (Apr. 14, 2025, 6:04 PM); David Rutz, Trump Open to Sending Violent American Criminals to El Salvador Prisons, FOX NEWS (Apr. 15, 2025, 11:01 AM EDT).

2 telling things here:

1) White House crosses out “wrongly,” despite repeatedly acknowledging its error in court.

2) “who’s never coming back” is basically taunting SCOTUS. Signals the opposite of any intent to “facilitate” his return. https://t.co/Pn2ltL8lzX

— Aaron Blake (@AaronBlake) April 18, 2025

Tariffs Are Bad

 Phillip W. Magness at Cato:

• James Madison viewed tariffs as necessary to raise revenue but was caught off-guard by early attempts to enact tariffs for industry protection.
• Alexander Hamilton and Henry Clay supported the use of tariffs to stimulate infant industries. However, there’s little evidence the American System of tariffs and industrial subsidies was responsible for American economic growth in the 19th century.
• Contrary to the “national conservative” narrative, many of the leading figures of the American Founding opposed the protectionist arguments of Hamilton and Clay.
• From 1789 to 1934, tariff-seeking industries were notorious for diverting resources into rent-seeking, or the lobbying of Congress for preferential rates with bribes and backroom deals.
• Corruption associated with protectionist tariff policy of the late 19th century directly led to adoption of the 16th Amendment and the federal income tax as an alternative revenue system.
• Modern American trade policy was restructured in 1934 to bypass the disastrous Smoot–Hawley Tariff Act of 1930, which exacerbated the Great Depression and illustrated the tendency of protectionist tariffs to serve corrupt interest groups.

The Founders and Current Events

 Many posts have discussed the Founding.

David Frum at The Atlantic:

Two political myths inspired the dreams and haunted the nightmares of the Founders of the American republic. Both these foundational myths were learned from the history and literature of the ancient Romans.

Cincinnatus was the name of a man who, the story went, accepted supreme power in the state to meet a temporary emergency and then relinquished that power to return to his farm when the emergency passed. George Washington modeled his public image on the legend of Cincinnatus, and so he was depicted in contemporary art and literature—“the Cincinnatus of the West,” as Lord Byron praised him in a famous poem of the day.

Against the bright legacy of Cincinnatus, the Founders contrasted the sinister character of Catiline: a man of depraved sexual appetites who reached almost the pinnacle of power and then exploited populist passions to overthrow the constitution, gain wealth, and pay his desperately pressing debts. Alexander Hamilton invoked Catiline to inveigh against his detested political adversary, Aaron Burr:

He is bankrupt beyond redemption except by the plunder of his country. His public principles have no other spring or aim than his own aggrandisement … If he can, he will certainly disturb our institutions to secure to himself permanent power and with it wealth … He is truly the Cataline of America.

Jessica Gavora at The Atlantic:

The notion that America is an idea has always lifted up our country, and for good reason. The fact that America was founded on the principles of the Declaration of Independence and the governing limits of the Constitution makes us unique among nations. Most countries trace their origins to tribal identity. But America has its origins in the revolutionary idea that the government cannot deny men and women an equal opportunity to life, liberty, and the pursuit of happiness. Both our friends and foes have recognized this difference. No less than Joseph Stalin railed against American “exceptionalism” when our workers refused to join in solidarity with his murderous revolution of the proletariat.

Indictment of a Former President

 Trump is under indictment.  Austin Sarat:

The Constitution’s authors contemplated the arrest of a current or former president. At several points since the nation’s founding, our leaders have been called before the bar of justice.

Article I, Section 3 of the Constitution says that when a federal government official is impeached and removed from office, they “shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.”Tench Coxe Public domain via Wikimedia Commons

In his 1788 defense of this constitutional provision, Alexander Hamilton noted that, unlike the British king, for whom “there is no constitutional tribunal to which he is amenable, no punishment to which he can be subjected without involving the crisis of a national revolution,” a president once removed from office would “be liable to prosecution and punishment in the ordinary course of law.” Trump has been impeached twice but not removed from office.

As a scholar with expertise in legal history and criminal law, I believe the punishment our nation’s founders envisioned for government leaders removed from office would also apply to those who left office in other ways.

Tench Coxe, a Pennsylvania delegate to the Continental Congress from 1788 to 1789, echoed Hamilton. He explained that while the Constitution’s speech or debate clause permanently immunized members of Congress from liability for anything they might do or say as part of their official duties, the president “is not so much protected as that of a member of the House of Representatives, for he may be proceeded against like any other man in the ordinary course of law.”

In Coxe’s view, even a sitting president could be arrested, tried and punished for violating the law. Though Coxe didn’t say it explicitly, I’d argue that it follows that if presidents can be charged with a crime while in office, once out of office, they can be held responsible like anyone else.

Statesmanship

Daniel Stid at National Affairs:

To understand why even these acts of statesmanship appear increasingly rare in American politics, we can turn to an essay written by the great political scientist Herbert Storing in the early years of the Carter administration. In "American Statesmanship: Old and New" (which ended up being his last essay before his untimely death in 1977), Storing identified three categories of obstacles to American statesmanship: an original set that was consciously adopted by America's founders, as well as two more resulting from the spread of populism and technocracy, respectively.

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If a system is designed to operate with minimal dependence on statesmen, it becomes difficult to identify what incentives and structures will remain in place to create them for the moments of crisis when they are needed. In such a system, it is easy to imagine that the people would come to take the machinery of government for granted and lose sight of the virtues of leadership upon which even the most well-designed governments ultimately depend. In Storing's estimation, by developing a system of government that so limited the need for statesmen, the America's founders created a polity that would likely fail to understand, appreciate, or generate them.

This original challenge to American statesmanship has been compounded by the rise of populism in the centuries since the founding era. Storing noted that, contrary to the standard critique from progressives, the founders sought to establish a popular government based on the principle of majority rule. But they also recognized the danger inherent to such democratic systems — which they called "majority foolishness or tyranny" — and sought to mitigate it through constitutional arrangements that would foster large yet unstable majorities. "Democratic statesmanship," Storing argued, "must be understood, above all, in the light of that great danger, which implies its great task" — namely, refining and enlarging and, if need be, standing against public views that run counter to the rights of some or the long-term interests of all.
...
In addition to the descent into populism, Storing identified the rise of technocracy as a force that undermined American statesmanship. Though Storing argued that the origins of this approach to governance can be traced to the founding era, and especially to Alexander Hamilton, it only became a dominant way of thinking about politics in response to Jacksonian populism in the mid-19th century. Following the Jacksonians' rank embrace of the so-called "spoils system" — by which administration offices are awarded to the supporters of election winners, rather than based on merit — subsequent generations of reformers became ardent proponents of meritocracy, efficiency, and "sound administration." One result of this development was an eventual push for civil-service reform in the latter part of the 19th century, spearheaded by a new generation of Hamiltonians seeking to save government from populists by professionalizing it.

These efforts gained momentum during the Progressive Era of the early 20th century, when the government began to undertake more daunting tasks in regulating society and the economy. As government swelled in size, politicians increasingly looked to technical experts to understand how best to achieve their desired results. The ideal of scientific management as the standard for government decision-making has been predominant in America — and in our governing class, in particular — ever since.

Writing in the 1970s, amid simultaneous waves of regulation and deregulation in federal policy driven by this worldview, Storing lamented that "what scientific management has been moving toward is not statesmanship, and not even administration or management, but rather economizing." He warned that the notion (per efficiency expert Frederick Taylor) that there is always one best way to solve a problem, and that it can be identified through research, analysis, and optimization uncoupled from moral considerations, would ultimately lead administrators down a blind alley. Though a statesman should take empirical data and research into account, Storing understood that true statesmanship hinges on the moral dimension of decision-making — on the statesman's capacity to grasp the ends of government and to balance competing moral values in his pursuit of those ends.

The combined effects of these two arcs of decline, Storing argued, was "to resolve the role of the public official into two simple elements: populism...and scientific management." Storing saw this problematic resolution embodied in the presidency of Jimmy Carter, who had won his party's nomination through the recently democratized primary system. A nuclear engineer by trade, Carter vowed to re-organize, streamline, and fix government to deliver what the people wanted more efficiently.

Despite Carter's determination to govern as both a populist and a technocrat, he had to make judgments and take actions on matters for which the will of the people was not clear, and for which there were real questions about not only the best means but also the proper ends of policy. Carter needed to practice statesmanship, but he and others could not understand or describe his leadership as such. For his part, Storing doubted "the feasibility, at least on any significant scale or over any considerable period of time, of a statesmanship in which there is such a sharp difference between style and substance."

Hamilton and Slavery

Jennifer Schuessler at NYT:

The question has lingered around the edges of the pop-culture ascendancy of Alexander Hamilton: Did the 10-dollar founding father, celebrated in the musical “Hamilton” as a “revolutionary manumission abolitionist,” actually own slaves?

Some biographers have gingerly addressed the matter over the years, often in footnotes or passing references. But a new research paper released by the Schuyler Mansion State Historic Site in Albany, N.Y., offers the most ringing case yet.

In the paper, titled “‘As Odious and Immoral a Thing’: Alexander Hamilton’s Hidden History as an Enslaver,” Jessie Serfilippi, a historical interpreter at the mansion, examines letters, account books and other documents. Her conclusion — about Hamilton, and what she suggests is wishful thinking on the part of many of his modern-day admirers — is blunt.

“Not only did Alexander Hamilton enslave people, but his involvement in the institution of slavery was essential to his identity, both personally and professionally,” she writes.

...

But Ron Chernow, whose 2004 biography calls Hamilton an “uncompromising abolitionist,” said the paper presented a lopsidedly negative view.

The paper, he said in an email, “seems to be a terrific research job that broadens our sense of Hamilton’s involvement in slavery in a number of ways.” But he said he was dismayed at the relative lack of attention to Hamilton’s antislavery activities. And he questioned what he called her sometimes “bald conclusions,” starting with the claim that slavery was “essential to his identity.”

“I don’t fault Jessie Serfilippi for her tough scrutiny of Hamilton and slavery,” he said. “The great figures in our history deserve such rigor. But she omits all information that would contradict her conclusions.”

Foreign Influence on Elections

Federalist 22:

One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption. An hereditary monarch, though often disposed to sacrifice his subjects to his ambition, has so great a personal interest in the government and in the external glory of the nation, that it is not easy for a foreign power to give him an equivalent for what he would sacrifice by treachery to the state. The world has accordingly been witness to few examples of this species of royal prostitution, though there have been abundant specimens of every other kind.

In republics, persons elevated from the mass of the community, by the suffrages of their fellow-citizens, to stations of great pre-eminence and power, may find compensations for betraying their trust, which, to any but minds animated and guided by superior virtue, may appear to exceed the proportion of interest they have in the common stock, and to overbalance the obligations of duty. Hence it is that history furnishes us with so many mortifying examples of the prevalency of foreign corruption in republican governments.

From the FBI:

Election Day 2020 is less than two months away, and the FBI is charged with protecting the rights of all Americans, including their right to vote.

From now until November 3, every American has a role to play in protecting the election from threats against the democratic process. Across the country, the FBI has initiated public awareness messaging about election security online at fbi.gov and across our social media platforms.

The goal of this social media campaign is to increase the public’s awareness about threats to the upcoming election and to inform Americans about what they can do to help the FBI ensure that the elections are safe and secure. These threats include crimes the FBI has been charged with investigating for decades, including campaign finance crimes; voter/ballot fraud; civil rights violations, cyber threats targeting the election process; and the potential for foreign influence on the democratic process, elected officials and institutions.
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The FBI is the primary investigative agency responsible for engaging with local and state election security counterparts to safeguard election integrity. The FBI is also the lead federal agency for identifying and combating malign foreign influence operations targeting our democratic institutions through the FBI’s Foreign Influence Task Force (FITF). The FITF brings together all FBI authorities and capabilities from multiple divisions to include Counterintelligence; Cyber; Criminal; and Counterterrorism assets to coordinate and work together to combat the threat.

The FITF is committed to providing accessible tools and resources to all levels of government through both in-person briefs and online tools, such as our Protected Voices campaign, found at fbi.gov/protectedvoices. Protected Voices is a public initiative which provides political campaigns, organizations, and other election security stakeholders with tools and resources to protect against malign foreign influence and cyber security threats.

In addition to protecting the November 2020 election, the FITF remains focused on persistent malign foreign influence efforts targeting our democratic institutions and processes outside of election events and works closely to address threats targeting the democratic process and American elections.

If you have information about allegations of election crime or voter fraud, please call your local FBI field office. The Washington Field Office can be reached at 202-278-2000.

Additional information on the FBI’s role in election security and access to educational resources about how to protect your voice and vote, can be found by following the FBI’s Washington Field Office at @FBIWFO.

 

Hamilton on Natural Rights

Tony Williams at RealClearPublicAffairs:

After serving a brief time in Congress, Hamilton became an attorney in New York. His dedication to natural-law justice prompted his courageous defense of the rights of unpopular Tories who had had their property confiscated under New York law. He believed that the laws violated equal justice, the rights of minorities, and the Peace Treaty of 1783. In January 1784, he wrote "Letter from Phocion," stating that a natural-rights republic “holds the rights of every individual sacred” and “punishes no man without regular trial.” Most famously, he represented a widow in Rutgers v. Waddington, making a case for judicial review when state laws conflicted with national ones, individual rights, and natural law.

During the 1780s, Hamilton joined the antislavery New York Manumission Society. He believed that slavery was a moral evil and a contradiction of any natural-rights regime. During the war, he had backed friend John Lauren’s plan to emancipate slaves in South Carolina if the slaves would bear arms for the patriot cause. Ultimately, though, abolition was not Hamilton’s main cause. He adopted a longer view, one devoted to building a well-governed republic that protected the inalienable rights of all.

The Constitutionality of Shutdown Orders

Walter Olson at Cato:

If you want to know whether something is unconstitutional, one group you might ask is judges. And in early rounds of litigation, a reasonably clear—and, to many of us, unsurprising—answer is emerging. Some ways in which shutdowns are applied may indeed be unconstitutional, as when a mayor allows a civic group but not a church to convene in numbers, or when a gun shop gets treated less favorably than comparable small businesses because someone in the governor’s office isn’t fond of Second Amendment rights. Those cases, important as they are, change only a few lockdown outcomes. And the remedy that follows — making restrictions neutral and even‐​handed — is different from lifting those restrictions.

As for the argument that lockdowns as such are broadly unconstitutional, that one has begun to reach judges — and fallen on its face.

Business people in Pennsylvania and Michigan have already sued to reopen their businesses, and the judiciary in both states has said no. In Pennsylvania, while three Justices partially dissented, they did so without endorsing the plaintiffs’ contentions of unconstitutionality, instead indicating that they deserved more latitude to develop their case. The Michigan ruling upholding Governor Gretchen Whitmer’s order against challenge was handed down by a judge who earlier served as deputy legal counsel to former Republican Governor John Engler and has advised the state’s Federalist Society chapter.

...
As for the Framers, they were intimately acquainted with the dangers of epidemics, which had ravaged the colonies as well as wiping out much of the Indian population. From its outset, American constitutional law, like the colonial law that preceded it, recognized states’ and cities’ police power during true emergencies to intercept the sorts of otherwise harmless movements and actions that can turn well‐​meaning individuals into vectors of physical harm to others.

Bans on assembly, movement, and badly needed economic activity? Citizens of the early Republic went through all these and much more. Churches shut their doors. People were routinely cooped up in their homes — contrary to some recent speculation, there was no general practice of applying restrictions only to the sick. Not long after the adoption of the new Constitution, the nation’s capital of Philadelphia was struck with a deadly outbreak of yellow fever; persons fleeing the city in the direction of places like Baltimore were turned back at gunpoint, while Alexander Hamilton and his wife Eliza, after surviving the illness, had to undergo quarantine at the behest of authorities in Albany, N.Y. whence they had fled.
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This was the soil in which our constitutional law took root. As Michael McConnell and Max Raskin wrote recently, “History buffs may recall that the first Free Exercise Clause case in Supreme Court history, in 1845, involved the prohibition of open‐​coffin funeral services in a New Orleans church during a yellow fever outbreak.” (The clergy lost, on the noteworthy grounds that the Supreme Court at that time did not even have jurisdiction to intervene.) Likewise, in the famous case of Gibbons v. Ogden, 1824, Justice John Marshall observed in an aside that state quarantine and health laws “are considered as flowing from the acknowledged power of a State to provide for the health of its citizens.”

Courts, Civic Education, and Social Media

Chief Justice John Roberts's annual report:

 Hamilton, Madison, and Jay ultimately succeeded in convincing the public of the virtues of the principles embodied in the Constitution. Those principles leave no place for mob violence. But in the ensuing years, we have come to take democracy for granted, and civic education has fallen by the wayside.  In our age, when social media can instantly spread rumor and false information on a grand scale, the public’s need to understand our government, and the protections it provides, is ever more vital.  The judiciary has an important role to play in civic education, and I am pleased to report that the judges and staff of our federal courts are taking up the challenge.

By virtue of their judicial responsibilities, judges are necessarily engaged in civic education. As Federalist No. 78 observes, the courts “have neither FORCE nor WILL, but merely judgment.”  When judges render their judgments through written opinions that explain their reasoning, they advance public understanding of the law. Chief Justice Earl Warren illustrated the power of a judicial decision as a teaching tool in Brown v. Board of Education, the great school desegregation case.1  His unanimous opinion on the most pressing issue of the era was a mere 11 pages—short enough that newspapers could publish all or almost all of it and every citizen could understand the Court’s rationale. Today, federal courts post their opinions online, giving the public instant access to the reasoning behind the judgments that affect their lives.

Happy Constitution Day

Yuval Levin at AEI:

Populism and elitism are each in its way a kind of politics of hubris. Each is rooted in a plainly unreasonable view about the capacity of human beings — be it a select class or the people as a whole — to make just the right governing decisions. The Constitution is plainly dubious about both sets of claims to superior judgment. It is built upon a profound skepticism about the ability of any person and any group or political arrangement to overcome the limitations of human reason and human nature, and so establishes a system of checks to prevent sudden large mistakes while enabling gradual changes supported by a broad and longstanding consensus. Experts and aristocrats should not govern, nor should the people do so directly, but rather the people’s representatives should govern in a system filled with mediating institutions and opposing interests — a system designed to force us to see problems and proposed solutions from a variety of angles simultaneously and, as Alexander Hamilton puts it in Federalist 73, “to increase the chances in favor of the community against the passing of bad laws through haste, inadvertence, or design.”

That such a system is far from populist should be obvious. In Federalist 63, James Madison says that the constitutional architecture involves “the total exclusion of the people in their collective capacity” from directly governing. The more democratic elements of the Constitution are intended to be checks on the power of government, not expressions of trust in the wisdom of the public as a whole. And the more aristocratic elements are checks as well — on the tendency of representative institutions to shamelessly curry favor with the electorate at the expense of responsible government.

"The Only Path to a Subversion"

Alexander Hamilton, Objections and Answers Respecting the Administration, 18 August 1792:

The truth unquestionably is, that the only path to a subversion of the republican system of the Country is, by flattering the prejudices of the people, and exciting their jealousies and apprehensions, to throw affairs into confusion, and bring on civil commotion. Tired at length of anarchy, or want of government, they may take shelter in the arms of monarchy for repose and security.

Those then, who resist a confirmation of public order, are the true Artificers of monarchy—not that this is the intention of the generality of them. Yet it would not be difficult to lay the finger upon some of their party who may justly be suspected. When a man unprincipled in private life desperate in his fortune, bold in his temper, possessed of considerable talents, having the advantage of military habits—despotic in his ordinary demeanour—known to have scoffed in private at the principles of liberty—when such a man is seen to mount the hobby horse of popularity—to join in the cry of danger to liberty—to take every opportunity of embarrassing the General Government & bringing it under suspicion—to flatter and fall in with all the non sense of the zealots of the day—It may justly be suspected that his object is to throw things into confusion that he may “ride the storm and direct the whirlwind.”

It has aptly been observed that Cato was the Tory-Cæsar the whig of his day. The former frequently resisted—the latter always flattered the follies of the people. Yet the former perished with the Republic the latter destroyed it.

No popular Government was ever without its Catalines & its Cæsars. These are its true enemies.

The Cost of the American Revolution

Jay Cost at National Review:

On an absolute scale, the American Revolution was a relatively modest affair. However, judged in light of the tiny American economy of 1776–83, it was an enormous undertaking. As a percentage of GDP, the Revolutionary War cost the United States about as much as World War I did (and remember that, before the absolutely massive conflict of World War II, World War I was known as “the Great War”).

...
The war effort was the single greatest reason for the nationalist movement of the 1780s, which led in turn to the Constitution. The 1770s was characterized by a revolutionary fervor — informed by a simple, virtuous type of republicanism that rings through the Declaration of Independence. That was the ethos of Patrick Henry, Richard Henry Lee, and Samuel Adams. But five years later, it was others — such as George Washington, Robert Morris, James Madison, and Alexander Hamilton — who had to reckon with the prospect of a failed revolution. They had to deal with the impossible challenge of running a government completely unequipped for the task at hand. This is the origin of our Constitution, born first and foremost of the sacrifice of the Revolutionary soldiers.

The Coast Guard and the Shutdown

Our textbook discusses the Coast Guard.  which has moved over the years from Treasury (where it started in 1790 under Alexander Hamilton) to Transportation to DHS (with stops at the old War Department in between):

Patricia Kime at Military.com:

The Coast Guard's 41,000 active-duty members will not be paid on their next payday, scheduled for Jan. 15, due to lack of appropriations in the ongoing government shutdown, the service's vice commandant said Thursday.

Active-duty Coast Guardsmen received a paycheck Dec. 28 as the result of a workaround by the Department of Homeland Security, Coast Guard, and Office of Management and Budget, which ruled that the service had the authority to issue all pay and allowances for December.

But in an all-hands message dated Jan. 10, Adm. Charles Ray said no reprieve will occur Jan. 15: The service is unable to cover its payroll.

Dan Lamothe at WP:

Employees of the U.S. Coast Guard who are facing a long U.S. government shutdown just received a suggestion: To get by without pay, consider holding a garage sale, babysitting, dog-walking or serving as a “mystery shopper.”

The suggestions were part of a five-page tip sheet published by the Coast Guard Support Program, an employee-assistance arm of the service often known as CG SUPRT. It is designated to offer Coast Guard members help with mental-health issues or other concerns about their lives, including financial wellness.

“Bankruptcy is a last option,” the document said.

The Coast Guard receives funding from the Department of Homeland Security and is subjected to the shuttering of parts of the government along with DHS’s other agencies. That stands in contrast to other military services, which are part of the Defense Department and have funding.

The tip sheet, titled “Managing your finances during a furlough,” applies to the Coast Guard’s 8,500-person civilian workforce. About 6,400 of them are on indefinite furlough, while 2,100 are working without pay after being identified as essential workers, said Lt. Cmdr. Scott McBride, a service spokesman. They were last paid for the two-week period ended Dec. 22.

...

The Coast Guard removed the tip sheet from the support program’s website late Wednesday morning after The Washington Post inquired about it.

Coast Guard civilian employee Geoff Anderson writes at The Times of San Diego:

Politicians do not value the Coast Guard as much as the other military services. They are funded while the Coast Guard is not. The Department of Homeland Security lumps the Coast Guard in with 13 other “operational and support components,” when in fact it is nothing like them. It is military, it is global, and no other DHS organization can approach the scope and reach of its mission.

Arguments about whether DHS should be the parent agency for Coast Guard aside, politicians and the general public mistakenly equate “military” with “Department of Defense,” to the detriment of the Coast Guard. One can imagine the public outrage if other military branches were required to work without pay for this long.

In summary, most of the general public and politicians in Washington don’t understand the Coast Guard and take it for granted. That statement probably also applies to every federal worker affected by this shutdown, regardless of organization.

Thanksgiving Proclamations

Richard Samuelson at Law and Liberty:

George Washington set the tone for the office in many ways, none more so than in his Thanksgiving Proclamation, given in October, 1789, seven months after he took the oath of office. Why have such a proclamation at all? Where in Article I, Section 8 (the section that lists the powers the people gave the federal government) is the power to proclaim a federal holiday? In 1791 James Madison would criticize Alexander Hamilton’s assertion that the U.S. government has the authority to create a national bank, for nowhere in the Constitution did the people give the federal government the right to create a bank or to create a corporation (an entity that had traditionally been regarded as a “person” in the eyes of the law). And fourteen years later, the Louisiana Purchase would tie President Jefferson in knots, for nowhere did the people give the U.S. government the right to acquire territory. Yet Madison lost the national bank argument in 1791 and by 1816 he had changed his mind about its constitutionality. Meanwhile, Jefferson didn’t stop the Senate from ratifying the Louisiana Purchase. In other words, he and Madison implicitly accepted that there are some powers that belong to government due to the nature of the thing, and when the people created the U.S. government they, of necessity, allowed it those powers without which no government can function.

The authority to proclaim a Thanksgiving might seem trivial to us—mere words, and an idle declaration. But it is, in fact, fraught with meaning, for the assumption of such authority highlights the degree to which a President is, by nature, much like a monarch—albeit an elected one. Similarly, it points us to the limits of secular nationalism.

Consider President Washington’s Thanksgiving Proclamation. He begins with the universal “duty of all nations to acknowledge the providence of Almighty God, to obey His will, to be grateful for His benefits, and humbly to implore His protection and favor.” But then he stops, as if he knew some might ask why the President is involved. Washington goes on, “Whereas both Houses of Congress have, by their joint committee, requested me ‘to recommend to the people of the United States a day of public thanksgiving and prayer to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God, especially by affording them an opportunity peaceably to establish a a form of government for their safety and happiness.’” Congress asked Washington to proclaim the day. An interesting request. Congress did not pass a law proclaiming a day of Thanksgiving. Such an act may, according to some constructions of the Constitution, have crossed over into an establishment of religion. Instead, they have merely asked the President to “recommend” such an observance to the people. But if it’s not a law, wherefore does the authority come from? It must adhere in the nature of the thing.

Kagan on the Court

Justice Elena Kagan spoke at Princeton.

I transcribed the entirety of Justice Elena Kagan's answer about the Supreme Court and institutional legitimacy because I think it's important. pic.twitter.com/BzEbXF5Z9T

— Cristian Farias (@cristianafarias) October 6, 2018

Her comments on the army and money were a loose paraphrase of Hamilton in Federalist 78:

The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

Jeff Flake on Free Press and Fake News

Remarks in the Senate by Jeff Flake of Arizona:

Mr. President, so powerful is the presidency that the damage done by the sustained attack on the truth will not be confined to the president’s time in office. Here in America, we do not pay obeisance to the powerful – in fact, we question the powerful most ardently – to do so is our birthright and a requirement of our citizenship -- and so, we know well that no matter how powerful, no president will ever have dominion over objective reality.

No politician will ever get to tell us what the truth is and is not. And anyone who presumes to try to attack or manipulate the truth to his own purposes should be made to realize the mistake and be held to account. That is our job here. And that is just as Madison, Hamilton, and Jay would have it.

Of course, a major difference between politicians and the free press is that the press usually corrects itself when it gets something wrong. Politicians don’t.

No longer can we compound attacks on truth with our silent acquiescence. No longer can we turn a blind eye or a deaf ear to these assaults on our institutions. And Mr. President, an American president who cannot take criticism – who must constantly deflect and distort and distract – who must find someone else to blame -- is charting a very dangerous path. And a Congress that fails to act as a check on the president adds to the danger.

Now, we are told via twitter that today the president intends to announce his choice for the “most corrupt and dishonest” media awards. It beggars belief that an American president would engage in such a spectacle. But here we are.

And so, 2018 must be the year in which the truth takes a stand against power that would weaken it. In this effort, the choice is quite simple. And in this effort, the truth needs as many allies as possible. Together, my colleagues, we are powerful. Together, we have it within us to turn back these attacks, right these wrongs, repair this damage, restore reverence for our institutions, and prevent further moral vandalism.

Presidential Self-Restraint

Christopher Nadon writes at The Weekly Standard:

According to the popular-again Alexander Hamilton, “Energy in the executive is a leading character in the definition of good government." In light of this requirement and the failure of the Articles of Confederation to meet it, the authors of our Constitution took careful measures to create a powerful executive. After witnessing the expansion of executive rule, in both foreign and domestic affairs, over the past two administrations, we might well wonder whether the Founders went too far or created enough of the checks and balances they thought made our executive consistent with "the genius of republican government." Or perhaps our experience confirms that however useful they may be, institutional restraints can never fully obviate the need for certain human virtues. No president before or after has pushed the limits of executive action to the extent Abraham Lincoln did. His understanding of the constitutionality of the Emancipation Proclamation and its compatibility with republican principles of government illuminates the need for self-restraint in the executive as a supplement to the institutional separation of powers.

...
Lincoln's sensitivity to this difficulty restrained the partisan impulse to boast, as we sometimes hear today, "I've got a pen and I've got a phone," or "I just took an action to change the law." Instead, he did his best to minimize and even hide the extent of his rule. In the cabinet meeting of September 22, 1862, Lincoln surprised both its pious and less-than-orthodox members by informing them "I made the promise to myself, and (hesitating a little) to my Maker," that if the rebel army was driven out of Maryland after Antietam, he would issue the proclamation. Gideon Welles, secretary of the Navy, recorded in his diary, "It might be thought strange, [Lincoln] said, that he had in this way submitted the disposal of matters when the way was not clear to his mind what he should do. God had decided this question in favor of the slaves." And when in the spring of 1864, he made a written record at the request of the governor of Kentucky of an account he had given in person of his shifting views on the "indispensable necessity" of emancipation, Lincoln again sought to diminish the part he played.

I add a word which was not in the verbal conversation. In telling this tale I attempt no compliment to my own sagacity. I claim not to have controlled events, but confess plainly that events have controlled me. Now, at the end of three years struggle the nation's condition is not what either party, or any man devised, or expected. God alone can claim it.

No president has a stronger case to have been the indispensable man for the moment. Yet Lincoln was careful to avoid the claim that "I am your best hope" or "I alone can fix it."