This is very interesting indeed [h/t].
[Alexander Hamilton] duly makes an appearance as the judges are warming up to denounce the individual mandate as constitutional overreach because it dragoons healthy young individuals into buying health insurance they do not want.
If Congress can do that, the dissenting justices write, “then the Commerce Clause becomes a font of unlimited power, or in Hamilton’s words, “the hideous monster whose devouring jaws … spare neither sex nor age, nor high nor low, nor sacred nor profane.”
Those are indeed the words of Alexander Hamilton, but, as they’re quoted here, it seems that he must have been warning against the ever-present tyranny of the federal government. But that was not what he was saying.
…
The relevant clauses of the Constitution, Hamilton wrote, had been “the source of much virulent invective and petulant declamation…” He castigated his political opponents who had criticized the powers the Constitution gave to the federal government “… in all the exaggerated colors of misrepresentation as the pernicious engines by which their local governments were to be destroyed and their liberties exterminated; as the hideous monster whose devouring jaws would spare neither sex nor age, nor high nor low, nor sacred nor profane.”
Hamilton did not decry the federal government as a constitutional Godzilla. He denounced the Anti-Federalists for their distortions and lies.
I don’t really know what to make of that. I’m not a lawyer, so maybe someone who is can help me out. It seems like the argument Ian is making is that the justices wanted to overturn the act so they turned to some dubious history. Still, shouldn’t some clerk have verified what the quote meant before it got to the opinion?
Ordinarily, this is simple legal research, especially for clerks for the U.S. Supreme Court justices, who would be expected to have been on their school’s Law Review.
A second-year law student who makes the Law Review is expected to put in a considerable amount of time “gally proofing” articles submitted for publication. This includeds making sure the format of the citation conforms to the “Harvard Blue Book of Citation” standards; looking up the original reference and verifying accuracy of quotes and that it is correct as to context; conducting a search of Shepard’s Citations to see what cases or articles have reference the same quote, and whether the reference has been overturned or otherwise discredited, etc. It’s not a fun job, it’s pain-staking and time-consuming detail work, but it has to be done by someone.
I suspect that the quote was added at the last minute – by Scalia or Thomas, perhaps?
It’s not just SCOTUS. For some reason Teahadists have started citing Hamilton as some sort of states’ rights champion, which turns history completely on its head. (Anyone remember “The FEDERALIST Papers”?) He was the leading advocate of his day for minimizing direct democracy and putting more, king-like power in the Executive Branch.
It would make sense to cite Hamilton approvingly to defend Dubya’s “unitary executive” policies. To OPPOSE the Executive Branch when someone you don’t like controls it? Absurd. But actual facts or history don’t seem to mean a whole lot to these folks.
“Still, shouldn’t some clerk have verified what the quote meant before it got to the opinion?”
What makes you think “some clerk” didn’t? Do you have any idea what it takes to become a law clerk for a Supreme Court justice? We can safely assume Roberts knew exactly who Hamilton was talking about.
Roberts nixed Commerce Clause, he nixed Medicaid, he gave Obama nothing more than he absolutely had to in order to avoid going down in history as a partisan hack running a partisan court.
Yes, the Wall Street Journal said Romney is “dumb.”
http://www.huffingtonpost.com/.....d%3D175893
Carl,
Yes, the dissent written by Fat Tony appears to have substantiated its ‘originalism’ argument on an out of context quotation from Federalist #33.
Here’s what Hamilton actually wrote in Federalist #33:
Here’s the way Scalia referred to Hamilton’s reasoning in his dissent, joined by Thomas, Kennedy, and Justice Alito:
To use Federalist #33 as any justification for a court opinion overruling the Legislative and Executive branches use of Article I, Section 8, Clause 3, the Commerce Clause, is indeed asinine.
Further in Hamilton writes:
Reasonable people may disagree, but Hamilton damn sure seems to be clearly stating that in the event the Congress & the Executive overstep the bounds of the Necessary & Proper clause, it is up to the people who elected them to address the issue.
But, although Fat Tony’s opinions in Appellate Court and the SCOTUS had repeatedly relied on the same logic as Hamilton in Federalist #33, the dissent of the 4 had nothing to do with ‘Original Intent’ or jurisprudence.
The Fat Tony rump of the SCOTUS’ intent was simply to oppose the President (who they did not elect like 2000!) and make up whatever suited that purpose.
So, no, a law clerk working for the 4 dissenters should not have “caught” it. The misuse was intentional.
Fat Tony is blowing smoke up your ass with that dissent, and his 3 brethren not only buy into the same deceit, but are now disciplining Chief Justice Roberts for not going along.
Hamilton – No.
Jefferson – Yes!
If anything, Hamilton was the one who WANTED the federal government to be a Constitutional Godzilla. Even though he fought for independence, he remained throughout his life an admirer of the British political system, and believed in the vigorous exercise of government power. He was effectively George Washington’s Prime Minister, and practically all the legislative and policy accomplishments of Washington’s term emanated from him. In his tenure as Secretary of the Treasury, Hamilton negotiated the federal assumption of state debt, founded a national bank for the purpose of encouraging commerce and regulating the economy (over a century before the Federal Reserve was created!), established a tariff to encourage domestic manufacturing (though he admired British political structures, he had no wish for the United States to remain tied at the hip to the British Empire), and levied an excise tax on liquor to help pay for it all.
While Hamilton could never have predicted the things for which the commerce clause has been used as a justification, I am confident he would have thoroughly approved. He was almost invariably on the side that said the federal government should do more, not less, and waved away concerns of overreach and the arrogance of power. Therefore, it is the height of irony that Scalia and the rest are invoking Hamilton and claiming that he would not have approved of this vigorous exercise of government power, when the record clearly shows that Hamilton invited controversy constantly for vigorously exercising government power.