As a delegate to the Constitutional Convention, a co-author of the Federalist Papers, Cabinet officer, and lawyer, Hamilton was a key player in the founding of the nation. His career intersected with civil liberties in a number of ways. Hamilton was an early member of the New York Manumission Society and its second president. Thus, he worked for providing the most fundamental liberties to people of African descent in the new nation. Having grown up in a slave society, on the Island of Nevis, Hamilton was particularly aware of the fundamental contradiction between liberty and slavery.
In Rutgers v. Waddington (1784), Hamilton argued that a New York statute violated the state constitution and was therefore void. The court rejected this argument (although it sided with Hamilton on other grounds). Nevertheless, this was an early argument in favor of judicial review, which would ultimately be a key tool in preserving civil liberties form oppressive legislatures.
At the Constitutional Convention, Hamilton opposed adding a bill of rights to the new frame of government. Like most other Federalists, Hamilton believed a bill of rights was unnecessary. He made similar arguments during the debates over ratification. Like other Federalists, Hamilton believed it was impossible to draft a bill of rights that would protect all liberties, and that any liberties not specifically protected would be lost. Thus, in Federalist 84, he argued that a bill of rights was
not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted.
He also argued that a bill of rights was unnecessary because Congress could only pass laws under the power granted to it by the Constitution. In Federalist 84 he wrote:
[W]hy declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?
In Federalist 85, Hamilton noted that the proposed national Constitution was just like New York State’s Constitution in that both lacked a ‘‘formal bill of rights’’ and ‘‘a provision respecting the liberty of the press.’’ However, Hamilton argued that in fact the new national Constitution provided ‘‘securities’’ to ‘‘liberty and to property’’ because it would limit the ‘‘ambition of powerful individuals in single States.’’ Like Madison, Hamilton believed that liberty would be best protected by a strong national government that would undermine local power. He believed that local interests were far more dangerous to liberty than any national government elected by the entire people of the nation. Similarly, in Federalist 78, Hamilton argued that the ‘‘independence of the judges’’ would ‘‘guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves.’’ He believed that the judiciary would prevent the ‘‘serious oppression of the minor party in the community.’’ As a lawyer, Hamilton believed that the common law, republican government, and an independent judiciary would coalesce to protect fundamental civil liberties.
With the adoption of the Constitution, Hamilton became secretary of the treasury. In urging President George Washington to sign a bill to charter the Bank of the United States, Hamilton argued for an expansive concept of constitutional interpretation, especially the ‘‘necessary and proper clause’’ of Article I, section 8. This interpretation did not immediately affect civil liberties. However, Hamilton’s argued that Congress has implied powers, which presumably could be used to regulate some fundamental liberties. Secretary of State Thomas Jefferson opposed the bank and argued that the as-yet-to-be-ratified Tenth Amendment limited the powers of the national government and precluded the creation of a bank. Jefferson saw Hamilton’s nationalism as a threat to local government and civil liberties; Hamilton saw Jeffersonian localism as a threat to the nation, which in turn would leave minorities vulnerable to the political force of majorities.
Hamilton successfully persuaded Washington to call out troops to suppress the Whiskey Rebellion in 1794. The ‘‘rebellion’’ consisted mostly of farmers who did not want to pay an excise tax on the whiskey they produced from their corn. Hamilton successfully urged Washington to use 12,000 troops to suppress the rebellion. Hamilton’s strong response maintained the rule of law, but the episode made Hamilton appear to be supportive of oppression. In fact, he saw this event as being about the rule of law and the necessity of maintaining a civil society. Throughout his life Hamilton argued that liberty could thrive only under a strong government, which maintained stability and peace and kept local majorities from oppressing minorities.
Hamilton left government in 1795 to return to private law practice, but in 1796 drafted Washington’s farewell address. Here he repeated, with Washington speaking the words, his long-held views that a strong union ‘‘ought to be considered as a main prop of your liberty, and that the love of one ought to endear to you the preservation of the other.’’ Using Hamilton’s speech, Washington warned that ‘‘where the government is too feeble to withstand the enterprises of faction[s],’’ it would be impossible to ‘‘maintain all in the secure and tranquil enjoyment of the rights of person and property.’’
In 1798 Hamilton opposed his party’s support for the Sedition Act. Hamilton considered suppression of newspapers to be both bad policy and bad law. A brilliant political writer, Hamilton doubtless believed that the best test of political ideology was in what Justice Oliver Wendell Holmes, Jr. would call the ‘‘marketplace of ideas,’’ and that government should allow debate to be open and unconstrained by prosecution. In 1800 he tried to get the Federalists to replace John Adams with Charles Cotesworth Pinckney. This failed, but so did the Federalist Party. When the election was over, Thomas Jefferson and Aaron Burr had the same number of electoral votes. This sent the election to the House of Representatives. Although Jefferson mistrusted Hamilton, thinking he was a monarchist, Hamilton worked to secure Jefferson’s election, because Hamilton believed Burr to be dangerous and dishonest. With Jefferson in power, Hamilton started a newspaper to be part of the ‘‘loyal opposition.’’ However, by this time he was mostly involved in his law practice.
His law practice led to his defense of freedom of the press after Jefferson took office. While Jefferson is often seen as a defender of a free press, he in fact urged his supporters to prosecute Federalist editors at the state level. In 1804, Jefferson’s allies in New York prosecuted the Federalist publisher Harry Croswell for common law seditious libel, after he criticized Jefferson (People v. Croswell ). Croswell had accused Jefferson of paying James T. Callender to denounce George Washington and John Adams. Croswell wanted to call Callender as a witness to prove the truth of his article, but the judge, a Jeffersonian Democrat, would not postpone the trial long enough to allow the witness to arrive. Not that it would have mattered. Reverting to the pre–Sedition Act theory of libel law, the trial judge, Lewis Morgan (who would soon become the Democratic governor of New York), in instructions to the jury, said that truth was not a defense to a libel prosecution. Croswell appealed to New York’s highest court. In People v. Croswell (1804), Hamilton, eloquently, but unsuccessfully, argued for the right of Croswell to prove the truth of his accusations, and thus made a strong argument for a freedom of the press. Hamilton argued that ‘‘[t]he liberty of the press consisted in publishing with impunity, truth with good motives, and for justifiable ends, whether it related to men or to measures.’’ Without a free press, he argued, ‘‘you must for ever remain ignorant of what your rulers do.’’ Hamilton declared that his ‘‘soul has ever abhorred the thought, that a free man dared not speak the truth.’’ New York’s highest court was divided on whether to give Croswell a new trial and so the conviction remained. However, in April 1805 the New York legislature passed a law declaring that truth would be a defense in a seditious libel case. In the wake of this statute, the state’s highest court ordered a new trial, which apparently never took place, and Croswell went free. While Croswell’s case was on appeal, Hamilton also represented Samuel Freer of Kingston, New York, the Federalist publisher of the Ulster Gazette, who was prosecuted on contempt of court by Jeffersonians for reporting on the Croswell trial (People v. Freer ). Freer had published an attack on the Croswell prosecution, but not, he said, to attack the court, but rather in response to a vitriolic piece attacking his paper in the Jeffersonian paper, the Plebeian. The Jeffersonian majority on the Court charged him with contempt. In People v. Freer, the great jurist James Kent, reflecting Hamilton’s arguments, rejected any idea that Freer could be charged with libel for reprinting material from the Croswell case, and said his motives—to answer a rival paper— were sufficient to relieve him of any criminal intent. Nevertheless, Kent gave Freer a token fine of $10.00 for his contempt towards the court itself.
Late in 1804 Hamilton was killed by Aaron Burr in a duel. His untimely death brought an end to the life of one of the most brilliant among the founders. Hamilton’s commitment to the rule of law, to personal liberty, and even to the right of personal property were significant forces in the subsequent development of civil liberties. His arguments in the cases of Croswell and Freer, late in his life, helped destroy the idea that the government could legitimately prosecute the political opposition, thus paving the way for a free press.
References and Further Reading
Cases and Statutes Cited