Washington Lawyer - July/August 2020 - 36

FEATURE
administration, Green says, ensures that communities at all scales have
the activist services Hamilton presciently thought essential. The current
coronavirus pandemic and government shutdown earlier in this administration impress upon the American public just how much we depend on
Hamilton's working government, Green says.

authority in the States would be absolutely and totally contradictory and
repugnant." Clarifying what "repugnant" does not signify, Hamilton writes,
"I mean where the exercise of a concurrent jurisdiction might be productive of occasional interferences . . . but would not imply any direct contradiction or repugnancy in point of constitutional authority."

"People began to discover how reliant they are on these quiet institutions that day in and day out operate seemingly anonymously under the
surface of things that are so vitally important for our daily function, like
the air we breathe. That notion is what was central to Hamilton's idea of
public trust," Green says. "This is the fundamental lesson of Alexander
Hamilton: If you don't provide national and state and local administrative
institutions that infrastructure to quietly
operate mostly harmoniously, we have no
commercial republic."

What is problematic today in a Hamiltonian sense, Brown says, is "the
federal government is not using its powers to work effectively and concurrently with the states." She adds, "There is no reason why Hamilton or
anyone else for that matter should think it is improper for states to use
their appropriate powers in this situation to try to help themselves out.
But just because states can do it under concurrence doesn't mean the
federal government can't operate. And
the converse of that is also true."

That power, summoned by
'We the People,' evokes in 2020
the government and the American
public's potential to manage
expected affairs and rise to the
challenge of frightening ones.

PERTINENCE TO
PANDEMIC RESPONSE

Today the federal government is an
immense network of personnel, laws, regulations, and capacities, and state governments, as in Hamilton's day, remain
powerful. But is Hamilton's institutionalizing of law and public administration still
pertinent, let alone effectual? Much has
changed structurally in government since
Hamilton's advocacy of energetic government such as the Civil War amendments,
the New Deal governmental expansion,
civil rights, presidents' enhanced national
security powers, and intense partisanship. And in dealing with the coronavirus crisis, some disagree that the Constitution gives us a clear framework for responsibilities and action.
City College of New York professor and constitutional historian R. B.
Bernstein, author of the forthcoming book The Education of John Adams,
says the first thing that stands out is how different the Founders' world
was from ours. "The Founders couldn't have imagined shutting down
a whole society the size of the United States to deal with a plague,"
Bernstein says, even though "they knew about pestilential disease,
they knew about things like yellow fever."

In fact, Bernstein notes, Hamilton himself contracted a violent case of
yellow fever in 1793 in the then-capital city of Philadelphia, the epicenter
of the epidemic. "When yellow fever hit Philadelphia in 1793, the United
States government literally pulled up stakes and moved to another
city, for temporary purposes. It was the public health authorities of
Philadelphia that dealt with such things," Bernstein says.
Brown, the Western Kentucky University professor, also shares a historian's caution with turning to figures from the past for today's crisis, but
she offers that Hamilton's doctrine of concurrence, expressed in Federalist
No. 32, is nonetheless very pertinent today. Affirming the states' abilities
to handle matters and enjoy powers like taxation, Hamilton says concurrence would work because exclusive federal government powers would
be those the Constitution exclusively delegates to the United States;
those the Constitution grants to the Union and explicitly excludes the
states; or those "it granted an authority to the Union, to which a similar

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JULY/AUGUST 2020

A Hamilton example that comes to mind,
Brown says, is how he handled the insolvency of the United States in 1789, with
the ultimate solution of funding and
taxing to assume state debts while the
states exercised their regular powers such
as taxation.

A LIVING LEGAL LEGACY

The lawyerly tradition of common law
and judicial review and the establishment
of a constitutionally structured public
administration, with states and the federal
government having concurrent powers,
are emblematic of our constitutional
system. This reflects Hamilton's triumph in
American legal history. But these powers and traditions, while complementary, are not perfectly knit together, raising the question of whether
we might find some other cross-cutting part of the Constitution that
prominently accounts for the American system enduring. Treanor
believes there is, and it's in the Preamble.
The Preamble's drafting and inspiration are traditionally credited to
Gouverneur Morris, the most active member of the Constitutional
Convention's Committee of Style and Arrangement charged with
scripting and ordering the agreed-upon provisions of the Constitution.
But Hamilton and Madison were also on the five-member committee.
Treanor points out that the committee, in fact, started out with the
Preamble's famous "We the People of," followed by a listing of the individual states.
"The committee changes that to 'We the People of the United States.'
In some way that encapsulates what Hamilton pushed for at the
Constitutional Convention and the years afterwards," Treanor explains.
"Hamilton had a strong nationalist vision, and that defines his career
as a lawyer, as a politician, as a government leader."
And that power, summoned by "We the People," evokes in 2020 the
government and the American public's potential to manage expected
affairs and rise to the challenge of frightening ones.
Richard Blaustein is a freelance science, environmental, and legal journalist
with a background in environmental law.

Washington Lawyer - July/August 2020

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