Washington Lawyer - July/August 2020 - 34

FEATURE
While the case had mixed results (but much lessened fees for Hamilton's
client), its significance is with Hamilton's argument for judicial review two
decades before Justice John Marshall's well-known Marbury v. Madison
decision affirming the judiciary's right of review.

Hamilton's next great pre-Marbury argument for judicial review -
his great essays on the judiciary in Federalist Nos. 78 to 83 - is no less
dazzling, says Treanor, especially Federalist No. 78, written in 1788.
Hamilton writes:
The interpretation of the laws is the proper and peculiar province
of the courts. A constitution is, in fact, and must be regarded by
the judges, as fundamental law. It therefore belongs to them to
ascertain its meaning, as well as the meaning of any particular act
proceeding from the legislative body. If there should happen to
be an irreconcilable variance between the two, that which has
the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred
to the statute, the intention of the people to the intention of their
agents.
"[This] is the most elaborate working through of why judicial review is
important," Treanor says, adding that in Federalist No. 78 Hamilton does
three especially powerful things. "First of all, at a time when judicial
review was not well established, Hamilton is defending it and showing
how fundamental it must be in a system of constitutional law. Second,
he has the idea that there is a distinction between law and politics. So,
what the judiciary is doing is limiting political actors, not because of the
values of the judiciary but because they are enforcing the law."
The third resonant assertion of Federalist No. 78, according to Treanor, is
that Hamilton is showing that "the Constitution reflects the considered
will of the people in constitution making."
Hamilton's almost prophetic arguing in essays and in court, Treanor
emphasizes, belie the popular culture notion that Marbury established
judicial review. Treanor points out that prior to Marbury, there were

"At a time when judicial review
was not well established,
Hamilton is defending it and
showing how fundamental it
must be in a system of
constitutional law."
WILLIAM TREANOR
Georgetown University Law Center
nearly 40 federal and state cases involving some finding on judicial
review.
One of these cases is Hylton v. United States, which Brown highlights
as pivotal. It is also a dramatic case because Hamilton, while serving as
secretary of the treasury under George Washington, argued it in the
U.S. Supreme Court.
The 1796 Hylton case involved a federal statute imposing a tax on horse
carriages. The question was whether the carriage tax was a direct tax, as
the plaintiff argued, to be apportioned among the states by population.
Brown says Hylton, which Hamilton won, does a few things well. "First,
Hamilton's big policy goal was to allow the federal government to use
its Article 1, Section 8 powers to stabilize the economy and encourage
economic growth. And Hamilton knew that if Congress is limited in the
way it can tax, then it loses a lot of its financial power, in particular to
handle the debt crisis. So, Hamilton wanted it to be the case where the
federal taxing power is as robust as possible," Brown explains. "Hylton is
Hamilton strategizing constitutional power meaningful for what the
federal government can do and accomplish."
Hylton also marks the first time the U.S. Supreme Court reviewed a
statute for its constitutionality, says Brown. "Hylton therefore taps into
that judicial review lineage of interest that lawyers have."
Brown says Hylton is also relevant because a carriage tax is basically a
wealth tax, an idea Elizabeth Warren promoted during her presidential
campaign, and which has been challenged on constitutional grounds.
"Hylton gives us a very early example of putting a wealth tax in action
and how it can pass constitutional muster," Brown says.

Courtesy of Kate Brown

"Hamilton's big policy goal
FUNDAMENTALS OF PUBLIC TRUST
Richard
Green, professor of public administration at the University of
was to allow the federal
Utah, says Hamilton incomparably brought to the U.S. government
government to use its Article 1, public administration professionalism that continues to be a hallmark
Section 8 powers to stabilize
of civil service to this day.
the economy and encourage
Green has more than 30 years of professional interest in Hamilton,
authoring the 2019 book Alexander Hamilton's Public Administration
economic growth."
KATE BROWN
Western Kentucky University

34 WASHINGTON LAWYER

JULY/AUGUST 2020

and writing a dissertation on Hamilton's administering the Treasury
Department from 1789 to 1795. Green says Hamilton's seminal conceptualization of public administration is found in Federalist No. 72:

Georgetown University Law Center

"It is 20 years before Marbury, and Hamilton argues that a New York state
statute is unconstitutional and the court should disregard it," Treanor
says. "For a young lawyer to come up with this argument was quite
remarkable."

Washington Lawyer - July/August 2020

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