Scholar’s Book Explores Origins of U.S. Constitution and Conflicts Among Founders Regarding its Intended Meaning

By Tom McLaughlin

Whether the issue is immigration, Supreme Court appointments, education, or gun control – just to name a few – the ideological battles once waged during the presidential race have only intensified during the early days of the Trump administration.

Andrew Shankman

“As these issues increasingly divide the country, people are still asking a familiar question: What is the role of the U.S. Constitution in deciding these arguments?” says Andrew Shankman, an associate professor of history at Rutgers University–Camden.

The Rutgers–Camden scholar examines the origins of this centuries-old debate – beginning with the contentious relationship between the Constitution’s principal architects – and its implications for modern constitutional analysis in his illuminating new book, Original Intents: Hamilton, Jefferson, Madison, and the American Founding (Oxford University Press).

Some may be surprised to learn that even in the country’s infancy, the founding fathers – the very gentlemen who crafted the document and proclaimed it as the supreme law of the land – disagreed on its power and limitations, explains Shankman, an expert on the revolutionary and early national United States.

Original Intents explains the evolving political, economic, and constitutional ideas of Jefferson, Hamilton, and Madison from the American Revolution through the 1790s, showing how these differences in thinking led to open conflict among the founders. Jefferson and Madison came to regard Hamilton – and he regarded them – as bitter enemies.

“Jefferson and Madison thought the worst of Hamilton, and he thought the worst of them,” says Shankman.

So just how did it ever come to this?

As Shankman explains, for a long time, the founders had common concerns about the post-revolutionary United States, including the weakness of the national government and a general drift toward the anarchy that they feared would destroy their “republican experiment.”

Despite sharing these fears, the founders viewed the solutions to these problems quite differently, says Shankman.

“Jefferson, Madison, and Hamilton all valued ordered liberty, the notion that citizens should make use of their freedoms thoughtfully, soberly, and responsibly, and that there should be some limits placed on individuals by the larger community, but they disagreed profoundly about how to achieve the balance between order and liberty,” he says.

According to the Rutgers–Camden scholar, these differences in mindset had much to do with their upbringings and personal lives. Hamilton, he explains, was born in the West Indies and began working for a merchant’s firm at an early age, becoming knowledgeable in trade and economic developments. He respected and relied on the growing mercantile and property owning class, and believed that ordered liberty would come from the leadership of this elite class of gentlemen, who could guide and direct ordinary farmers and laborers.

“Without this elite leadership, he believed, you would get the anarchy that would destroy American institutions,” Shankman says.

On the other hand, he explains, Jefferson and Madison come from Virginia, a slave-based society, where the difference between wealthy and poorer white men was felt to be much less important than the gulf between blacks and whites. Elite Virginians like Jefferson and Madison believed that most white men should own their own land and be independent of one another, and ordered liberty would be achieved by reproducing these social and economic conditions “writ large.”

“They were committed to westward expansion – a nation of farmers,” says Shankman. “Their thought was that people would responsibly govern themselves and make responsible use of their liberties if they had a real stake in preserving stability and social order.”

According to the Rutgers historian, Hamilton came to argue that the government had implied power to do anything as long as it was not expressly forbidden by the Constitution and the action taken can be plausibly connected to a power the Constitution did expressly grant.

Conversely, Madison and Jefferson believed that the Constitution provided only limited power and the national government could only do what the Constitution explicitly stated it could do.

“As early as 1790 and 1791, the Constitution meant something completely different to Hamilton than it did to Madison and Jefferson,” says Shankman.

These opposing viewpoints were evident in the debate surrounding Hamilton’s proposal for a national bank. He argued that two clauses in the Constitution – the Necessary and Proper Clause, and the General Welfare Clause – dramatically expanded the power that had been expressly granted to the national government.

“If you take his position on implied powers, you can connect these clauses to doing just about anything that is not expressly forbidden,” says Shankman.

In the case of the bank, it was the power to lay and collect taxes, explains the Rutgers scholar. Since that power was expressly granted, since a national bank would make it easier to carry out that power, and since incorporating a bank was not expressly forbidden by the Constitution, Hamilton argued that incorporating a bank was constitutional.

Meanwhile, Jefferson and Madison maintained that nowhere in the Constitution did it say that the United States has the right to create a corporation. Since that power was not stated in the Constitution, it was unconstitutional for the national government to incorporate a bank.

However, Shankman notes, eventually Hamilton and Madison both end up believing in what we today would consider a “fluid” Constitution.

As he explains, in 1811, followers of Jefferson and Madison dissolved the bank Hamilton had created in 1791. But when Madison was president in 1816 his government created a new national bank, which Madison believed this time was constitutional. His argument was based on who he believed was the sovereign authority in the nation – the people of the United States.

“Madison had concluded that the American people, over the last 20 years, had thoughtfully and soberly participated in an extensive conversation about the bank,” says Shankman. “The sovereign American people had the authority to decide the bank was constitutional, but only if they took their duty of citizenship seriously and conducted a thoughtful, learned, and protracted conversation where they educated themselves on the matter, weighed all the issues involved, and judiciously arrived at a mature and considered conclusion. If they did all that, the sovereignty within the democratic people could determine the nation’s fundamental values and law.”

According to the Rutgers scholar, Madison thus also has the capacity to imagine a “living, growing Constitution,” but it was one that has to involve a democratic people having a thoughtful, clear conversation about what their core values were. Madison believed that conversation has to be “careful, thoughtful, sober, and learned, and guided by responsible statesmen who understood what was at stake, and who devoted themselves to the public service of educating the people about the genuine complexities of the issues,” he says.

Shankman notes that, ultimately, these more accurate, historical accounts of the Constitution can better serve our analysis today.

“Instead of thinking that there was one unified view of the Constitution in 1787 or 1788, or that the founders always agreed about everything and had all the answers,” he says, “we have to be much more aware that, from the very beginning, there were different ways to interpret the Constitution. As citizens, we should be much more respectful of differences, challenges, and complexity to make sure we are respectful regarding how we use the Constitution and apply it to contemporary problems.”

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