The Founders’ Warning About the Dictator President

Episode Transcript
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Speaker 1 (00:07):
Our guest now is Jeffrey Rosen.

Speaker 2 (00:09):
The book which just came out about a week or
so ago, The Pursuit of Liberty, How Hamilton versus Jefferson
ignited the lasting battle.

Speaker 1 (00:18):
Over power in America.

Speaker 2 (00:20):
And in his book he traces this over different time periods,
a couple of decades, each of these things, and how
people's viewpoint and our viewpoint of government has shifted between
these two polls.

Speaker 1 (00:36):
I guess in terms.

Speaker 2 (00:37):
Of looking at how power should be structured here in
the United States, between Hamilton and Jefferson. But you have
an interesting anecdote about Hamilton and Jefferson and what happened,
what Jefferson did after Hamilton died.

Speaker 1 (00:50):
Tell us a little bit about that.

Speaker 3 (00:52):
It's so moving that Hamilton and Jefferson's battles define our
early debates and in fact all debates ever since about
national power versus states rights, or a strong executive versus
a strong judiciary, or liberal versus strict construction of the Constitution,
and their battles over the Bank of the United States
and the Aliens Edition Acts lead to the formation of

(01:15):
America's first political parties. But despite all of those clashes,
at the end of his life after Hamilton dies in
the duel, because they're both united in believing that Aaron
Burr is a traitor who's trying to raise an insurrection
in Spanish Louisiana and set himself up as a dictator.
After they both united against Burr, Jefferson places a bust

(01:36):
of Hamilton across from his own in the central entrance
hall of Monticello. You can see it there today if
you go there. And he passed it. Jefferson would say,
opposed in life as in death, and he viewed Hamilton
not as a hated enemy to be destroyed, but a
respected adversary to be engaged with. And that spirit of
civil dialogue and learning how to listen to the other

(01:59):
side disagreeing without being disagreeable, is one that we've vigently
got to get back today.

Speaker 2 (02:04):
Oh yes, we do talk about that almost every day.
So what has happened with that? Let's start with the introduction, say,
the greatest man that ever lived was Julius Caesar, quote unquote,
and the dinner party that defined America. Tell us a
little about what that is about. What's that dinner party about?

Speaker 3 (02:21):
It's amazing how relevant it is to our current debates.
So this is a dinner party in the room where
it happened, not the one where they moved the capital
from New York to Washington, d C. In exchange for
assuming the national death. The one in the Hamilton musical.
This is a year later and Washington's away. The whole
cabinet has gathered. At some point, Hamilton says to Jefferson,

(02:43):
who are those three guys on the wall? And Jefferson says,
those are my three portraits of the three greatest men
in history, John Locke, Francis Bacon, and Isaac Newton. And
Hamilton pauses for a long time and then he blurts
out the greatest man that ever lived was Julius Caesar.
And Vince's jeff He works in his diary that Hamilton

(03:03):
is for a monarchy bottomed on corruption, and he proceeds
to found the Democratic Republican Party in order to resist
the alleged dictatorial ambitions of Hamilton and the Federalists. And
Jefferson's convinced from his studies of history that all elective
monarchies and with popular leaders like Caesar converting themselves into
hereditary despots. And that's why Jefferson wants a one year

(03:27):
termlament for the president. When he gets a copy of
the Constitution, he writes to Madison that a future president
might refuse to leave office, so we need a one
year termlament. Now, the anecdote is so interesting because, as
Ron Cherno, the great Hamilton historian, notes, when Hamilton praised
Julius Caesar, he must have been joking. He insisted throughout
his career that the greatest threat to America was an

(03:49):
authoritarian demagogue like Caesar, who could overthrow popular elections and
consolidate power in his own hands. Hamilton's solution, amazingly, is
a life term for the president. Basically, if the presidents
are like Hight, he says, he won't be tempted to
extend his term, and that's too much at the Constitutional Convention.
But amazingly, James Madison and gouvernor Morris at some point

(04:12):
support a version of a life term, so Hamilton wasn't
totally off on his own. Nevertheless, you know, the Constitution
chooses no term limits, and then Jefferson establishes the tradition
of stepping down after two terms. Washington, of course, famously
gave up the office like Cincinnati, returning to his farm. Yes,
but it was Jefferson who, by reaffirming that tradition establishes it.

(04:37):
And you know, I've just been looking into it in
light of the recent question about whether or not President
Trump can run for a third term. That Jefferson tradition
holds until Grant, who actually does want to run for
a third term, but Congress subjects and he kind of
pushes back. The first president who's nominated and runs for
a third term, of course, is Theodore Roosevelt on the

(04:57):
third party ticket. He promised not to run again, and
then he breaks that promise, and then Franklin Roosevelt and
NFDR is such a great example of the kind of
Julius Caesar because he's attacked throughout his term as a
would be Caesar, and he dresses up in nineteen thirty
four like Caesar. He has a Caesar themed birthday party,
and Eleanor dresses like a Roman matron, and he in

(05:21):
the middle. But it's in the middle of World War two.
So he arranges to be drafted by the Democratic Convention.
He runs for a third term, and then he wins
a fourth. He dies after eighty two days after his election.
Is the fourth term, and then Republicans in Congress just think,
we this cannot happen again a president who keeps running.

(05:41):
So in nineteen forty seven, Congress, which has been retaken
by the Republicans, proposes the twenty second Amendment, which says
you can't be elected to the office of president more
than twice. It's ratified in nineteen fifty one, and ever
since then, that's pretty well stuck. I mean sometimes Ronald
Reagan wanted to repeal the twenty second Amendment after he

(06:03):
left office, but there haven't been any real efforts to
do it. It's relatively popular, and that brings it to
our current debates. The President Trump had noted that his
staff had discussed this potential loophole where you could run
as a vice president, be elected, and then the elected
president could resign and you could succeed that way. President

(06:26):
Trump called that probably too cute, and I saw that
just this morning. He seemed to acknowledge that the amendment
clearly forbids a third term. He'd say, I'd say, if
you read that, it's pretty clear I'm not allowed to run.
But the debate is so interesting because it goes back
to Hamilton and Jefferson to that dinner party that defined America.
And the point is that all of the Framers are
very concerned about presidents extending their power through dictatorial means.

(06:48):
All the ancient republics of Greece and Rome had fallen
because the virtue of the citizens hadn't led citizens to
protect liberty and had made them succumb to these demagogic leaders.
And that's why, though we've debated exactly how to impose
term limits, I think Harry Truman put it best when
he in nineteen fifty said he I think he said,

(07:09):
I know I could be elected and continue to break
the old president, but it shouldn't be done. The president
should continue to be limited by custom, based on the
honor of the man in the office. And I think
that's a great way.

Speaker 1 (07:22):
I agree. And you know that's what is so dangerous
by it.

Speaker 2 (07:25):
You know that dinner of course, certainly, at least in
Jefferson's estimation, you had Hamilton crossing the rubicon, and it's like, oh,
that's it. You know, this guy was a lifetime president.
He thinks Julius Caesar was it. But you know, it's
something that has really bothered me when people talk about
this guy being the drugs are I think is William Bennett,

(07:46):
and he.

Speaker 1 (07:46):
Accepted that term, and it's.

Speaker 2 (07:48):
Like, well, you know, Zar is Caesar, right, it's the
same thing, and we see this over and over again.

Speaker 1 (07:52):
We got a czar for this and a zar for that.

Speaker 2 (07:54):
So we have this trend towards a kind of authoritarian dictatorship, leader,
strong man, whatever you want to call it. I think
it's a very dangerous trend. And the thing that concerned
me is I said earlier in the program, you know,
if we don't understand the history, if we don't understand
the constitution and how we got there, you know, we're
still having these same arguments.

Speaker 1 (08:14):
As you point out.

Speaker 2 (08:15):
This whole purpose of your book is the point out
how this has gone back and forth, and we have
these two polls that were drawn to and we don't
understand history. We don't really see human nature and how
human nature is continually going back to these types of
things over and over again, so we don't have a
context for it. But I think that's what's really important

(08:36):
about your book and about studying history and looking at
these different philosophies that are there towards government. I think
it's very important. Now so we have That was the
introduction to your book, and then you're talking about how
the will of the majority should always prevail Thomas Jefferson's
declaration those one of the things that Steve Bannon was saying.

(08:57):
He said, well, the will of the people is the kindstitution.
And I'm like, well, no, I believe that the Constitution
is a written document, and I think it is very
important to have an established standard that is out there
that is external to the people. I think you have
to have some kind of an external standard so that
you don't wind up with a dictator, or so that

(09:18):
you know that you've got a dictator if they ignore
that standard that's there. As someone who is working with
the constitutional issues all the time with your organization, what
do you think about that?

Speaker 3 (09:30):
Well, you're absolutely right that that's a central debate that
goes back to the founding, the balance between democracy and
rule by elites. How can we empower majorities while resisting
the mob And that's the central reason the Constitutional Convention
was called. Hamilton and Madison and the other federalist who
are afraid of SHA's rebellion in western Massachusetts where debtors

(09:51):
are mobbing the courthouses and the federal Armory. And Hamilton says,
imagine that SHA's rebellion had been led by a caesar
or a cattle line, he would have begun a demagogue
and turned tyrant. So so much of the Constitution is
designed to slow down deliberation, to prevent mobs from formalizing,
to put on checks on direct democracy. At the same time,

(10:13):
the will of the people must ultimately prevail. And that's
why Jefferson's great vision was that the will of the
majority should always ultimately prevail. He wanted to, believe it
or not, a constitutional convention every nineteen years, so that
the people could decide whether they still supported it. Hamilton
was a disastrous idea because it would, you know, as
a miracle the first convention had succeeded. But that balance

(10:36):
between democracy and rule Biolits is central. Fdr is really
amazing here. And you're so right about the importance, the
urgent importance of studying history. I was so struck by
how presidents throughout history have actually invoked the Hamilton and
Jefferson debate to structure our understanding history. I was inspired
to write the book when I saw that John Quincy
Adams trace the entire development of America's political parties back

(10:59):
to the initial debate between Hamilton and Jefferson about democracy
versus aristocracy, which is the question we're talking about now,
And that kind of Hamilton and Jefferson go up and
down throughout the nineteenth and twentieth century, and Lincoln says
that he's a Jeffersonian even as he's extending the powers
of Congress dramatically. During the Civil War, Theodore Roosevelt leads

(11:22):
a Hamiltonian revival when a historian called Herbert Crowley calls
on him to deploy Hamiltonian means for Jeffersonian ends. In
other words, the Hamiltonians strong federal power for the Jeffersonian
ends of democracy in curbing the corporations. But the most
amazing turn, Hamilton stock crashes. After the stock market crash
in nineteen twenty nine. No one likes Hamilton. Franklin Roosevelt

(11:45):
in nineteen thirty two reinvents the Democratic Party as the
party of Jeffersonian democracy rather than limited government, and he
makes Jefferson the patron saint of the New Deal. Now,
this takes incredible hunts. Franklin Roosevelt's expanding government more than
any other president in history. But he puts Jefferson on
the nickel, and he builds the Jefferson Memorial, and he

(12:05):
reinvents himself as the patron saint of Jeffersonian democracy. So
this just shows how protean, how malleable Hamilton and Jefferson are.
Both sides are often invoking them, you know, for both purposes.
But then to close this part of the story, Ronald
Reagan said that he left the Democratic Party in nineteen
sixty because it had abandoned the principles of Jefferson and
limited government, and he proposed to reinvent the Republican Party

(12:28):
as the libertarian Jefferson rather than the Jefferson who hated
the banks and the patron sainted a New Deal. And
that really does bring us to today, where as you suggested,
the sides are so scrambled, and in some sense both
sides will still invoke both folks. President Trump said that

(12:51):
he was running for office in twenty twenty because Democrats
wanted to take down statues of Thomas Jefferson, and he
was defending the founding ideals. Although he's certainly using executive
power in ways that Jefferson would have questioned, whereas Joe
Biden and the Democrats, you know, everyone's a Hamiltonian after
the musical and President Obama, yeah, exactly at the White

(13:13):
House and stuff. But they're hardly fans of Hamilton's fiscal
responsibility or his principles of you know, of capitalism in
the free market. So we're very much as always debating
the legacy of these men. But that basic tension you
just identified between democracy and rule by elites is central

(13:33):
American history.

Speaker 2 (13:34):
And of course Jefferson was really well loved by the people.
He's so linked to liberty if you're talking about, you know,
the libertarian streak of it, but he was linked to
liberty and the minds of the American people. We got
towns and counties all across America that are named after Jefferson.
Everybody wants to claim that he is with them on
their political journey. Of course, the Democrats for the longest

(13:56):
time had the Jefferson Jackson dinners that they have there.
And yet you know, they're pushing for a central bank,
which neither of them liked. And so you know, it's
kind of interesting to me, like I said, you know,
we have this increasingly centralized all powerful government like Hamilton
wanted to have. And yet everybody wants to pretend that

(14:19):
they're Jefferson at the same time that this veneer of
Jefferson that's there. Maybe with us Musical Hamilton, they're going
to change that and finally own what is really there. Yeah,
by the time you get to the third chapter, you
talk about the struggle of the bank. Let's talk a
little bit about that, because both of them are on

(14:39):
different sides in terms of the bank. The Central Bank
likes Hamilton. They put him on the ten dollar bill,
but Jefferson they put him on a short lived two
dollar bill. But talk a little bit about the struggle
over the central bank and the national bank.

Speaker 3 (14:54):
It's amazing. This is the central debate in American constitutional history,
and it resonates for the next hundred years. The question
is whether Congress can set up a bank. It's the
centerpiece of Hamilton's financial plan. He wants to assume the
state debts and create reliable credit. But the problem is
that Jefferson says it's unconstitutional. So Washington asked for memos

(15:15):
from Jefferson and Hamilton, and he's become some of the
most important constitutional memos in American history. Jefferson says that
it's unconstitutional to create a bank because the Constitution allows
Congress to create all means necessary and proper for promoting
its enumerated ends. And although Congress has the power to
tax and to promote the general welfare, creating a bank

(15:37):
isn't absolutely or indispensably necessary to promoting the general welfare
or raising taxes. Hamilton responds, and he pulls on all night,
or he writes fourteen thousand words, and he said, you
should interpret the necessary and proper clause liberally rather than strictly.
And as long as a chosen means is conducive or

(15:57):
appropriate or use for carrying out an enumerated end, then
it's consistent with the Constitution. And since it might be
useful to have a bank because that would promote credit,
then the bank should be permissible. Washington sides with Hamilton
rather than Jefferson. Then it goes up to the Supreme
Court a few years later, and John Marshall, in one
of the most important Supreme Court opinions ever called McCullough

(16:19):
versus Maryland, sides with Hamilton over Jefferson. Marshall views himself
as Hamilton's successor. He's writing Washington's biography. He has next
to his desk Washington's papers given him by Bushrod Washington,
who's Washington's nephew, and he reads in washington papers Hamilton's
memo about the bank. He paraphrases it almost word for

(16:39):
word in McCulla versus Maryland, and in one of the
most famous sentences in constitutional history, Marshall says, let the
end be legitimate. If the means are appropriate, then it's
consistent with the Constitution, almost a direct paraphrase of Hamilton.
And then for the next of the one hundred years,
the constitutionality of the bank is still alive. Andrew Jackson
resolves to kill the bank. He seizes Martin van Buren's

(17:02):
hand and says, the bank is trying to kill me,
but I won't kill it. He lets it expire. James
Madison eventually, and having initially thought the bank was unconstitutional,
changes his mind because he thinks the people have come
to accept it, showing that he has a kind of
evolving version of the Constitution. And this question of the
ability of Congress to print paper money is central in

(17:25):
the Civil War, and Lincoln actually appoints Supreme Court Justices
to try to uphold his power to print paper money.
And then I won't take you through the rest of
American history right now. But when you think about the
biggest disputes in American constitution constitutional history, including the constitutionality
of the Missouri Compromise which led to the Civil War,
the constitutionality of the post restruction reconstruction Civil Rights Act,

(17:49):
all the way up to the constitutionality of healthcare reform,
it all goes back to liberal versus strict construction. What's necessary,
what's conducive, what's appropriate. And just last week or so,
the Supreme Court is debating the constitutionality of the Voting
Rights Act, and it all goes back to that same debate.
So I was really struck how central this is. And
the main debate in constitutional history is not between originalism

(18:12):
and non originalism. It's between liberal and strict construction of
the Constitution.

Speaker 1 (18:17):
Yes, whether or not we take the.

Speaker 2 (18:20):
Tenth Amendment very literally to say, well, if you don't
have it listed there, you don't have those powers and so,
but they won't always infer it in terms of the
supremacy clause or the general Welfare Clause, or the Commerce
Clause or something like that. Now you know that chapter
that was You've got dates on many of these things
as well. That was the debate in seventeen ninety seventeen

(18:42):
ninety one, and then we move on to the nullification
debate and whether or not that is the rightful remedy.
That's you've got that date as seventeen ninety two to
seventeen eighty. Let's talk a little bit about that, because
of course nullification comes back in in the eighteen thirties
and we nearly had a secession, and during the nullification

(19:05):
crisis and the tariffs of abomination that happened. I've talked
about that many times because you know, it's kind of
the situation where they reached a compromise and they were
able to defuse it without having a full blown secession,
which happened like thirty years later. And I've looked at
it kind of from the standpoint of the fourth Turning

(19:25):
thesis of Strauss and how and how they're looking at
about every eighty years you have this major restructuring. I said, yeah,
it just it was like the society wasn't really primed
for it at that point, but the timing was right.
Thirty years later, but nullflication was always a big issue.
Talk a little bit about that back in seventeen ninety
two to seventeen eighty what was going on with nulflication

(19:48):
at that point in time.

Speaker 3 (19:50):
Absolutely, you really well described the debate, and it goes
right back to Hamilton and Jefferson's debate over the Alien
and Sedition Acts. So, in seventeen ninety eight, the Federalists,
led by John Adams, pass this law, and it's the
greatest assault on free speech in American history. It makes
it a crime to criticize the Federalist President John Adams,
but not the Republican Vice President Thomas Jefferson. It's a

(20:11):
pure political hatchet job, basically. So Jefferson and Madison object
and they write the Virginia and Kentucky resolutions claiming that
these laws are unconstitutional. Madison always takes a moderate and
middle position between Hamilton and Jefferson. Sometimes it's so complicated

(20:32):
that only he can understands it. And he says, if
states don't think that a law is constitutional, they can
interpose an objection. No one knows what this means, except
maybe like sending a stern letter saying that they don't
like it. But Jefferson goes further and in the Kentucky Resolution,
he says, if a state doesn't think that a federal
law is constitutional, it can nullify or refuse to obey it.

(20:54):
That's too much for Madison. He thinks that would lead
to secession, and indeed it does. As the war approaches,
Southern opponents of federal power invoke Jefferson's Kentucky Resolution for
the principle that states can refuse to carry out federal
laws that they disagree with. And it comes to a
head first, as you said, in the nullification controversy arising

(21:17):
out of the tariff of Abominations in eighteen twenty eight,
when South Carolina objects that this northern tariff is going
to hurt its commerce, and John Calhoun says, who's Andrew
Jackson's vice president says that South Carolina can refuse to
carry out the tariff. It's an incredible moment of testing
for Andrew Jackson. After all, he's a Jeffersonian who generally

(21:39):
likes limited government. But in this noble decision to favor
union over secession, Jackson gives a toast. He says, liberty
and union, they must be preserved, and he insists on
enforcing federal law and not allow South Carolina to nullify.
So that is the first great statement of nationalists in

(22:00):
this period. But nevertheless, Calhoun and the Southern Secession has
continued to invoke Jefferson, and finally, right before the Civil War,
they claim that the South can secede from the Union
because we are a compact of states and federal law
is not supreme. Once again, Madison disagrees with that. He
thinks that once states agreed to form the Union, they

(22:21):
can't unilaterally secede. Abraham Lincoln cites Madison and John Marshall
and James Wilson, all nationalists, when he denies the South's
power to secede. And that's one of the precipitents of
the Civil War, the constitutionality of secession, and it takes
the Civil War, and the war came, as Lincoln said,

(22:41):
and all the blood and tragic loss that resulted from
that to establish the proposition that we the people of
the United States, are sovereign, that states can't unilaterally secede
for the Union, and that nullification is on constitutional.

Speaker 2 (22:56):
And of course Jefferson, in terms of as point, I
want to have frequent constitutional Conventions because he was so
heavily involved in the idea of self governance and that
people be able to make that determination. And the nation
had been born by declaring its independence from Great Britain,
and so in a sense, you know, as the writer

(23:17):
of the Declaration of independence, he's looking at this and saying,
you know, we were born out of secession, and we
have the right of self determination to determine where we're
going to be. It's interesting that today, of course, we're
still seeing echoes of this, especially with what's happening with
immigration and other issues. And we've had another aspect of

(23:37):
this it's been added, which of course is the non
commandeering thing, saying that you can't force a state to
work along with with the federal government on its agenda
if the state doesn't agree with it. I think one
of the things that's kind of been the way that
they have moved to have a direct confrontation is kind

(24:00):
of the oblique method of saying, well, we will pay
you money or will with whole funds depending on whether
or not you do what we tell you to do
from the federal government. And so that method of I
call it bribery or blackmail financially. That has kind of
kept this issue from coming to a head up to
this point, and we still see aspects of it. When

(24:23):
California wants to go their own way on immigration, they
threaten them with removing funds, just as they do on
issues about bathrooms and gender and things like that.

Speaker 3 (24:33):
You're so right that the central question of the residual
power of states rights out of the Tenth Amendment remains
one of America's central constitutional questions. The constitutionality of secession
turned on who was sovereign the people of the United
people of each state. And as you say, there's still
some states, and now some of them were blue rather

(24:54):
than red, that are claiming there should be a residual
right to secede. And more broadly, this question of when
the federal government can commandeer the states and what the
residual state sovereignty is remains crucial. Very Goldwater, when he
began to flment the Conservative Revolution in response to the

(25:15):
New Deal, said that the Tenth Amendment was central, and
on the current Supreme Court, many of the justices invoked
the Tenth Amendment in arguing that the Obama healthcare mandate
was unconstitutional and that you can't commandeer the states. Justice
Anthony Kennedy was a big fan of federalism and insisted

(25:35):
that federal and state power had to be kept within
their appointed spheres. He said, the founders split the atom
of sovereignty. It all goes back to that initial Hamilton
Jefferson debate, and the truth is we're not entirely there's disagreement.
There's not consensus on the question of whether the nation
is totally sovereign as Hamilton said, whether the states or

(25:56):
sovereign as Jefferson said, or whether there's a kind of
dual sovereignty as Madison said, which I think is the
best reading of the Constitution, which part where we the
people are sovereign, but we parcel out some sovereignty to
the states and the federal government and we've got to
keep the balance between them.

Speaker 2 (26:13):
Yeah, so that's basically Wady, but it's at the Amendment.
These powers have been delegated by the people in the States.
So these debates that this is why your book is
so important, because the debates that we're faced with on
all these court and divisive issues that are there, these
have been debated from the very beginning. Again, between these
two polls of Jefferson and Hamilton. Your next chapter here

(26:37):
is eighteen hundred eighteen twenty six, and this is President Jefferson,
Chief Justice Marshall and Aaron Burr in court.

Speaker 1 (26:46):
Tell us a little bit about that.

Speaker 3 (26:48):
Well, first I have to say what a villain Aaron
Burr was. A story has been wishy washy about.

Speaker 2 (26:57):
When it was in North Carolina. We had a descendant
of his who became a senator.

Speaker 3 (27:03):
It was better than he was. He was charming and
you know, a rogue, and very pleasant to be to
have drinks with. But the guy was dead to rights.
Henry Adams, the historian, found in the archives of the
British Ambassador, a letter where Aaron Burr offered his service
to the British in exchange for their supporting his efforts
to lead a secessionist movement in Spanish Louisiana and set

(27:24):
himself up as dictator of Mexico. So he may not
have been technically guilty of treason because, as John Marshall
said after Jefferson prosecuted him, the Constitution sets a very
high bar. You need two witnesses and an overt act.
But there's no question that he was conspiring to secede
from the Union. Canald, he was totally abound to Darnold,

(27:44):
and that's what was so. And then that's why Hamilton died.
Remember Hamilton really distrusts Jefferson, of course, but he thinks
Jefferson is a patriot, and he thinks Burr is a trader,
and that's why he calls Burr a trader. And that's
why Burr challenges him to a duel and he sacrifices
his life because of his devotion to the Union, and
Jefferson joins him in this. So after Hamilton dies, Jefferson

(28:05):
decides to prosecute Burr for treason. And this precipitates the
huge clash between Jefferson and John Marshall and the Supreme Court.
The John Marshall is a Federalist redoubt. After the Federals
have lost the election, they appoint all these Federalist justices
to pack the courts. John Adams smuggled in martialists chief
Justice during the waning days of his administration, and Marshall

(28:27):
sets out to defend Hamiltonian values, namely property rights and
national commerce over states rights and too much democracy. And
Marshall has these huge classes with Jefferson. The most famous one,
Marbury versus Madison, involves can he order Jefferson to turn
over a commission that Adams had made to a judge

(28:52):
and Marshall doesn't want to issue in order that he
knows will be defied because it'll expose the court as weak.
We're having today, is the president going to defy the
Supreme Court? Marshall dodges the question by saying the court
has the power to order the subpoena, but he's not
going to do it now because the act authorizing this
isid poena to be turned over as unconstitutional. Even to

(29:14):
state this shows he was such a master of what
Jefferson called twistifications. He would come up with these where
he complicated legal compromises.

Speaker 1 (29:21):
That twistification. We need to bring that back. Yeah.

Speaker 3 (29:25):
Jefferson also said Marshall that he's so untrustworthy that if
you asked me the time of day, I'll say I
don't know, because I'll twist my words against me. They
really disliked each other. They were distant cousins, and I
think Marshall's Jefferson had courted the lady who became Marshall's
aunt or something like that, so that they have fled

(29:45):
in the family. But the point is it's a huge clash. Basically,
the class between Jefferson and John Marshall is the clash
between Jefferson and Hamilton continued after Hamilton's death because John
Marshall views himself as Hamilton's successor, and in the end
in the Burr trial, Marshall does order Jefferson to turn
over papers related to Burr. This faces Jefferson with a question,

(30:08):
and he briefly considers not a bank or abiding by
the decision. He does decide to turn over the papers,
establishing the president that the president can be subpoenaed. But Jefferson,
in his response to Marshall, declares that the president has
an ability to interpret the Constitution differently than the Supreme
Court and to follow his own conclusions. This is a

(30:29):
principle that becomes known as departmentalism, where each department can
reach its own judgment, and carried to its extreme, it
would allow the president to defy the Supreme Court when
he disagreed with it. Interestingly, no president has taken that
radical position and openly defied the Supreme Court. Lincoln briefly
defied Roger Tawny for two weeks during the Civil War,

(30:52):
when Tawny ordered him to free a Confederate prisoner and
said that he'd unconstitutionally suspended habeas corpus. Lincoln didn't do
that for two weeks. Then he did comply. But Tawny
was acting as a district court judge, not sitting for
the whole Supreme Court. So no president has ever openly
defied the full Supreme Court. But the point of that chapter,
the clashes between Marshall and Jefferson are that they also

(31:17):
establish the constitutional battles that were still facing today between
liberal and strict construction of the Constitution. And remember Marshall's approach,
which he calls liberal or fair construction, which he gets
from Hamilton, is always construe federal power fairly, not to
be unlimited, but broadly consistently with its spirit. And Jefferson,

(31:39):
as you said, said if the power isn't explicitly enumerated,
then you shouldn't construe it to be present, and you
should also carry yourself back to the spirit in which
the amendment was passed. It's strict construction. And that debate
is won by Marshall temporarily, but then just to finish

(31:59):
this part of the story, Marshall is succeeded by Roger
Tawny and Andrew Jackson wants Roger Tawni to constrict federal
power and to prevent Congress from chartering a bank, and
Tawny gets in and he comes up with a more
Jeffersonian approach on the Supreme Court, and it culminates in
the debate over the Missouri Compromise, which leads to the

(32:21):
Civil War.

Speaker 1 (32:22):
Yes, it is.

Speaker 2 (32:23):
It is amazing to see these same strains being pulled
back and forth as we go through history. I love
the way your book is set up. It's very interesting,
of course, with Marbury versus Madison. If I remember correctly,
Jefferson said, well, that's the end of the Constitution if
we're going to have the Supreme Court be able to
decide and have the final say as to whether not

(32:44):
something is constitutional. I'm kind of paraphrasing him here. Maybe
you know the quote, but.

Speaker 3 (32:50):
That's absolutely right. And he said that Marshall would would
make a thing of wax out of the Constitution.

Speaker 1 (32:56):
That he is true.

Speaker 3 (32:57):
It so liberally is to eliminate Paul powers, and that's
what he wants strict construction to prevent the Marshall from
turning the Constitution into a thing of wax.

Speaker 1 (33:05):
Yes, that's a great way to put it.

Speaker 2 (33:07):
Today they talk about being a living document, but I
like the idea of it being a thing of wax.

Speaker 1 (33:12):
That's great.

Speaker 2 (33:14):
And then you have the period from eighteen twenty six
to eighteen sixty one. You say all honor to Jefferson,
and so up until the point of the Civil War.
You know, we have everybody again. Jefferson, who spoke so
eloquently about liberty, captured everyone's imagination in America, and he

(33:36):
is the one that everybody wants to be seen as.
Talk a little bit about that period in history there,
because there we're going through the nullification crisis and many
other things.

Speaker 3 (33:47):
Absolutely and culminating in the debate over the constitutionality of
the Missouri Compromise, which is the central compromise over slavery
in the early Republic. The basic question is does Congress
have the power to ban slavery in the newly acquired
territories and in new States? And Jefferson initially said yes.

(34:07):
He in seventeen eighty four sponsored a provision called the
Jefferson Proviso, which would have allowed Congress to ban slavery
in the territories. But then he becomes president. First of all,
he doubles the size of the US by buying Louisiana,
even though he's unconstitutional, but he swallows his doubts because
he's more interested in the obvious benefits of doubling the

(34:29):
size of the US. But then he really is afraid
that the Missouri Compromise is going to lead to civil war,
so he argues that it's unconstitutional, embracing the same narrow
construction of the territories clause that he'd rejected in buying Louisiana.
So it gets up to the Supreme Court and it
all comes back to that same question liberal versus strict

(34:51):
construction of the single word territories, and Chief Justice Roger Tawny,
channeling the late but not the earlier Jefferson says, because
the Constitution allows you to pass regulations for the federal
for governing land in the federal territory singular, it only
covers the territory that was held by the US at
the time of the founding, not future acquired territories plural.

(35:15):
It's like, what the meaning of the word is incredibly legalistic.
And the point here is that you know Jefferson had
flipped on this question, and it's the central constitutional question
of the anti Bellum period. The entire Republican Party is
founded by Lincoln and others in eighteen fifty seven on
the proposition the Congress does have the power to ban

(35:37):
slavery in the territories. So Tawny is imposing a contested
interpretation of the Constitution above the consensus of the Republican
Party as well as many other pro popular sovereignty democrats,
and his opinion has the effect of helping to precipitate
the Civil War. Tawny wrongly thinks that this will end

(35:58):
the divisions over slavery, but as usual, when the court
tries to solve the contested question without clear constitutional answers,
it made things worse. And Lincoln says that he will
not follow the dread Scott decision except with regard to
the parties in the case, but otherwise it doesn't view
it as part of the Constitution, interestingly embracing a kind
of Jeffersonian view of the president's power to interpret the

(36:21):
Constitution separately from the Court. That's when Lincoln stands in
front of Independence Hall in eighteen sixty one and he says,
I've never had a thought politically that doesn't stem from
Jefferson in the Declaration of Independence. I'd rather be assassinated
on this spot than abandoned the principles of Jefferson. It's
incredibly powerful state by the great emancipator. Why is Lincoln

(36:42):
a Jeffersonian? After all, He's embracing a version of federal
power that really wants to expand the government in ways
that are consistent with Hamilton's views. Basically because you know,
Hamilton's name is Mud and he's viewed as an aristocrat,
and the Federalist Party is dead and Lincoln mentor Henry Clay,
the founder of the Whig Party, studied with Thomas Jefferson's

(37:04):
law tutor, George with and views himself as a Jeffersonian nationalist.
So that's why. Plus Lincoln wants to win, and everyone
loves Jefferson, so that's why he embraces Jefferson before the
Civil War. But the great constitutional achievement of Abraham Lincoln
is to inscribe into the Constitution the principle of liberty

(37:26):
for all and by talking about the goals of the
Declaration and the Constitution in the phrase liberty for all.
He's inspired by Jefferson, and that's what leads to the
post Civil War amendments to the Constitution. It's just an
amazing reminder of how central that old Hamilton Jefferson debate
was in leading the court to strike down the Missouri

(37:48):
Compromise and helping to cause the Civil War.

Speaker 2 (37:51):
And as you say in the next chapter, you know
post Well from eighteen sixty one on, Hamilton is waxing.
In other words, Hamilton is growing, and it's becoming more
and more concentrated and centralized. As many people pointed out,
they would say the United States are before the Civil War,
but after that they said, the United States is, And

(38:12):
so we have this tremendous consolidation that happens because of
the Civil War.

Speaker 1 (38:17):
Speak to that.

Speaker 3 (38:19):
It's so striking, isn't it. Jackson was the first Well,
James Wilson and Governor Morris, who wrote the Preamble to
the Constitution, talked about the United States are. Jackson picked
it up, and then the Civil War establishes that were
a plural union. I think it's so inspiring that James
Garfield led a Hamilton revival after the Civil War when
he read the collected works of Hamilton in the library

(38:42):
that Hamilton's son James published them, and Halton Garfield read
them and said, I want to make him the patron
saint of reconstruction. Then Reconstruction Congress people like John Bingham,
who's an incredible admirer of John Marshall, site Marshall and
Hamilton in when they proposed the thirteen, fourteenth, and fifteenth Amendments,

(39:03):
and the fourteenth Amendment in section five gives Congress the
power to enforce this article by appropriate legislation, beingham is
trying to empower Congress in ways that Hamilton would have wanted.
And the first draft of the fourteenth Amendment says Congress
shall have all power to make laws necessary and proper
to enforce equal protection. He's taking that liberal construction of
that necessary and proper clause, all channeled by Hamilton. These

(39:25):
guys are such good lawyers, but more importantly, they're great historians.
They studied history as kids, they were inspired by their heroes,
and they want to make Hamilton and Marshall central. And
then the great debates over reconstruction, and it's such a
tragic period because Congress passes these laws and then there's
a violent reaction and black civil rights are subverted and

(39:46):
black people are lynched and murdered. And then the Supreme
Court goes on to strike down a lot of the
pillars of reconstruction, including the Civil Rights Act of eighteen
seventy five, which forbids discrimination in public accommodations, and also
the ku Klux Klan Act of eighteen seventy seven, which
allows the punishment of racially motivated violence. And in striking

(40:08):
those acts down, they invoke Jefferson's strict construction of the
necessary and Proper clause, and they ignore the fact that
Hamilton had the opposite view. And Justice Bradley is kind
of a villain of my book because he really does
a number on reconstruction and strikes all those acts down.
And the hero of this part is John Marshall Harlan,

(40:31):
a great justice named after John Marshall because his father
admires Marshall so much. Harlan he is the president of
the Alexander Hamilton Memorial Society, and he writes the only
dissenting opinions both in the civil rights cases which strike
down the Civil Rights Act and in Plusy versus Ferguson,
the infamous case which upholds segregation in railroads, and Harlan

(40:52):
nobly says the Constitution is color blind and neither knows
nor tolerates classes among citizens, and he explicitlytes Hamilton's broad
construction of congressional power. It takes another one hundred years
for Furbid Marshall to read Harland's opinion allowed before he
argues Brown versus Board of Education. Today, Justice Neil Gorsich
has a portrait of Harlan in his chambers, showing that

(41:15):
Harlan has been embraced by strict constructionist conservatives as well
as liberals alike. But it all goes back to the
Hamilton Revival when Bingham wants to make Hamilton rather than Jefferson,
the patron saint of reconstruction.

Speaker 2 (41:32):
Interesting and as we look at reconstruction and the idea
that we had a standing army that was a part
of that posse comittatis, which is now back in current
events because of the actions of Ice and the Trump administration.
That was a kind of a capstone to reconstruction and

(41:52):
some of the abuses that were happening with a standing
army at that point in time. So all these things
keep coming back, don't.

Speaker 3 (42:00):
They They really do. And to make things even better
for the Hamilton Jefferson narrative, although not for the country.
The debate over posse comitantis is part of this long
standing debate about the president's power to call up the
militia to enforce federal law, which goes back to the
Insurrection Act of eighteen oh seven, sponsored by Thomas Jefferson.

(42:21):
It's amazing that Jefferson is the guy who, before the
Founding says, oh, we should a little rebellion every now
and then is a good thing, and we should pardon
those whiskey rebels, and we've got to moisten the blood
of tyrants with revolution. I mean, he endorses much revolution,
but then he becomes president and totally switches his tune.
When Vermont rebels against his hated embargo. Jefferson has this

(42:43):
disastrous economic policy. We're cutting off all trade with the
rest of the world. New England.

Speaker 1 (42:48):
That's familiar to but go ahead, let's sorry. I everything goes.

Speaker 3 (42:52):
Back to those days. Well in New England then, as
now actually rebels and Jefferson writes to Madison, do I
the power to send out the troops to stop these guys.
Mediicin's I don't think so. So they pass the Insurrection Act,
which is the same one that has been invoked throughout
American history, and President Jackson in votes it to put
down a rebellion, Lincoln invokes it to put down secession.

(43:15):
Grant invokes it after the Civil War to try to
put down some of that mob violence, and it goes
all the way up today. And the last time it
was invoked it was during the Civil Rights movement, and
then George H. W. Bush involved it to put down
the Rodney King riot. So that was the last time.

(43:37):
But this question, which is obviously central now both with
the Puzzi Comitatus Act and also the question ken President
Trump send guards from one state into another, goes back
to that initial Hamilton Jefferson debate, and I having read
the Insurrection Act as it was amended over the years,
it does seem to give the president pretty broad authority

(43:59):
to send the troops, even for domestic law enforcement. Although
Jefferson and Hamilton initially thought that you couldn't federalize the
troops for domestic law enforcement only to put that insurrection
or serious external threats, but because Congress has succeeded in
the expansion of executive authority over the years, the president's
authority may be unconstrained.

Speaker 2 (44:21):
Yeah, that's very interesting debate we have there. And then
we go to the period of the early nineteen hundreds.
You have this title as Hamiltonian means to achieve jefferson
ends question mark, And so we've got the time of
Theodore Roosevelt, Woodrow Wilson, and the new Nationalism. Henry Cabot Lodge,

(44:41):
Calvin Coolidge talk a little bit about that.

Speaker 3 (44:45):
I was partly inspired to write this book when I
read this historian from the progressive era, Herbert Crowley, calling
on Theodore Roosevelt to deploy Hamiltonian means for Jeffersonian ends.
Crowley was the founder of the New Republic magazine. As
it happens, I spent almost two decades there the legal
affairs at it her a while ago, and I just
thought that was an interesting phrase, and I was so
struck that Roosevelt used it and quoted it word for

(45:06):
word when he said, I am a Hamiltonian with regard
to my views of federal power, and a Jeffersonian in
my views about democracy, so obviously the categories were getting scrambled.
And this is the period when Theodore Roosevelt makes Hamilton
the hero of the progressive era, and then Coolidge and
Harding make Hamilton the hero of the Gilded Age. Coolidge

(45:30):
really admires Hamilton, who he studies at Amorrist College. He
revers the Founding, in particular the Puritan basis of the Founding,
and he sees Hamilton as a patron saint both a
free enterprise and of limited government. It's so striking, and
there's a huge change in the understanding of executive power
in the election of nineteen twelve. If you had to

(45:52):
pick a single moment for the growth of the modern
imperial presidency would be nineteen twelve, when both Theodore Roosevelt
and Woodrow Wilson, the Progressive and Democratic candidate, say that
the president is a steward of the people who should
directly channel popular will, and William Howard Taff, the old constitutionalist,
thinks that they're both demagogues and that the founders thought

(46:12):
that the president should be a chief magistrate who enforces
the laws of Congress but doesn't communicate directly with the people. Interestingly,
all three of them are historians who love Hamilton and
Theodore Roosevelt, isn't it? I thought this was so cool.
Theodore Roosevelt wrote a biography of Gouvernor Morris, who is
a big Hamiltonian. He's a great historian as well as

(46:33):
a great leader. Woodrow Wilson is the only president who
ever got a PhD in history or in anything, and
he admires Hamilton, although he also admires Hagel, the German philosopher,
and criticize the natural law separation of powers basis of
the Declaration of Independence. And William Howard Taff thinks that
Hamilton and Marshall are the greatest Americans ever and writes

(46:54):
a book on presidential power. So, George will once told
me that you can tell what kind of conservatives some
one is today based on where they would have stood
in the election of nineteen twelve. And if you're a
kind of populist conservative, then you'd love Wilson Roosevelt. And
if you're a constitutionalist conservative, you'd like William Howard Taft.

Speaker 1 (47:13):
Yeah, I would have gone for Caft. I think no
doubt about it.

Speaker 3 (47:17):
And so I have to just briefly say as it happens.
I wrote a short biography of William Howard Taft for
the American President series a while ago. I didn't know
much about him until I got the assignment, but I
really came to admire him as our last constitutionalist president.

Speaker 1 (47:30):
Wow.

Speaker 2 (47:31):
Wow, he's a great man, not just by his size,
but he was an outsized character in history as well.
And so at this point in time, this is also
when we have a major restructuring of our country with
the bank with.

Speaker 1 (47:45):
A federal reserve.

Speaker 2 (47:46):
You're talking about these guys being fans of Alexander Hamilton
when we can certainly see that with a Federal Reserve
Act that happens at that point in time. And then
we have nineteen thirty two to sixty eight, so New Dealism,
FDR and other things. The economic Hamiltonianism has become political.
Jefferson's Jeffersonians talk a little bit about that.

Speaker 3 (48:10):
Another example of a time when best selling books are changing,
Hamilton and Jefferson going up and down. Theodore Roosevelt's inspired
to embrace Hamilton when he reads a best seller by
a woman called Gertrude Averton, The Conqueror being the true
and romantic tale of Hamilton it's the Hamilton Musical of
its day, and it makes Hamilton the star of the moment.

(48:32):
But FDR is inspired to resurrect Jefferson after reading a
book by a guy called Claude Bowers called Jefferson Versus Hamilton,
The Struggle for Democracy over Aristocracy. And FDR invites Bowers
to speak to the Democratic Convention of nineteen twenty eight
and he's a huge success, and then he reinvents himself
as the second coming of Thomas Jefferson based on his

(48:52):
reading of this book. FDR is a Hudson Valley aristocrat
who you'd think his grandfather had actually been an ally
of Hamilton, but he just identifies with Jefferson, the Democratic
aristocrat and who he's collecting stamps and tracing his ancestry
back to the founding and decides to make himself the

(49:13):
second coming of Thomas Jefferson. But this raises the question
of the limits on the New Deal administrative state. As
you said, independent agencies were created during the Progressive era
by Woodrow Wilson and Louis Brandeis, who's another hero of mine. Actually,
Brandeis was a great Jeffersonian. He admired Jefferson more than anyone,
and in constructing agencies like the FED and the Federal

(49:35):
Trade Commission, he viewed them as a combination of public
and private control that would prevent too much centralization in
the federal government. And Brandice upheld the constitutionality of the
independent agencies in the nineteen thirties in a case called
Humphrey's Executor that was a unanimous Supreme Court decision. That's
the central question in the Supreme Court's going to hear
in a couple of weeks. Are independent agencies constitutional today?

(49:59):
And lots of folks think are going to overturn that
Humphy's Executive decision and strike down the agencies on the
so called unitary executive theory, which says that the president
can fire anyone he appoints. Who's the patron saint of
the unitary executive theory? Alexander Hamilton, he came up with
the idea of it in his Pacificus letters, and Reagan
administration lawyers invoked it when they first came up with

(50:21):
the unitary executive theory. And who's the patron saint of
the constitutionality of the independent agencies? To Thomas Jefferson, who
brandis invoked in the Humphrey's Executor case. So once again
I think you got the thesis of the book. Now
it all goes back to that initial class.

Speaker 2 (50:40):
So interesting, and of course what we've seen as everybody
wanted to embrace the image and the reputation of Jefferson
and identify themselves as Jeffersonians. And again I think it
was because Jefferson was so linked with the idea of liberty,
you know, as the author of the decreuischem independence and
all the rest of this stuff. But now lately there's

(51:00):
been this effort in modern times to link him to slavery,
and so I think he has his reputation has been tarnished.
Now we've got Hamilton with his own musical, and we
have Jefferson who is now decried as someone who had slaves,
and so there's been a reversal of that. And I
think that's kind of a key thing for where we

(51:22):
are right now, because again people would have this veneer
of Jefferson there, but they were really were consolidating power,
because that's just the nature of politicians and politics is
that you would have a consolidation of powers. Act and said,
but speak a little bit about that and where we are,
because we're nearly out of time, let's go some closing

(51:44):
statements here as to where you see us right now
in terms of this being pulled from one poll to
the other. Jefferson and Hamilton.

Speaker 3 (51:53):
Well, these are challenging times for the American Republic, as
we all know, and we are more polar that at
any time since the Civil War, and there is talk
once again in the land of secession and Julius Caesar
and the question of whether the Republic will survive. It's

(52:14):
so striking that Hamilton and Jefferson embraced the basic principles
of the American idea as embodied in the Declaration of
the Constitution, liberty, equality, and government by consent. They disagreed
about how to apply those values in practice, and they
had fierce debates over the proper balance between liberty and power,
with Jefferson thinking every increase in power threatened liberty and

(52:36):
Hamilton thinking that increases in centralized power could secure liberty.
The point of the Constitution is not agreement but debate.
The Constitution is made for people of fundamentally differing points
of view as justice, Oliver Wendel Holmes said, and disagreement
is not a bug in the system, it's a feature.
But the debate has to involve listening to the other side,

(53:00):
not involved viewing the other side as enemies, owning the
Libs and owning the Conservatives. We've got to be committed
to the process of deliberation itself, and that's why the
Hamilton and Jefferson debate is so inspiring. As long as
we maintain it, we will keep the republic. And it's
only when we reject the debate itself that the shooting begins.

Speaker 1 (53:21):
Oh absolutely, I agree with that.

Speaker 2 (53:22):
Yes, when we look at the fact that, as you
point out, both people on the left and people on
the right want to shut down the other side since
of them, punish them, take away licenses, whatever. We have
to have that debate. And that was one thing on
which both these two poles agreed. That is the quintessential
American thing, is that we have to have a debate

(53:44):
on these different issues. Thank you so much again. The
book is let me get the title again here, it
is the Pursuit of Liberty, How Hamilton Versus Jefferson ignited
The Lasting Battle over Power in America by Jeffrey Rosen,
CEO of National Constitution Center. And where's the best place
for people to find this? Do you sell this directly
or on Amazon?

Speaker 3 (54:06):
The books on Amazon and in bookstories near you.

Speaker 2 (54:09):
Okay, that's the best place for people find it. Looks
like a fascinating book. It's been a fascinating conversation. Thank
you so much, mister Rosen. Thank you for real great
insight that you have there. Thank you and everyone have
a great day today. And thank you Scott Helmer. Thank
you very much for the tip. I appreciate that and
we'll talk about that tomorrow again. Scott Heelmer dot com

(54:30):
dot news an anthem for a divided world. Scott Helmer's
website there the latest single. But he of course he
is a recording artist. He said, the latest single speaks
to it, does yes? Please share that Scott Helmer dot
com and you can see it his website. He's got

(54:53):
a new single that is there. Thank you so much, Scott,
and thank you to all of you. Have a great day.
The common Man, they created common Core and dumb down

(55:15):
our children. They created common past track and control us.
They're Commons project to make sure the commoners own nothing
and the communist future. They see the common man as simple,
unsophisticated ordinary. But each of us has worth and dignity
created in the image of God. That is what we

(55:39):
have in common. That is what they want to take away.
Their most powerful weapons are isolation, deception, intimidation. They desire
to know everything about us, while they hide everything from us.

Speaker 1 (55:53):
It's time to turn that around.

Speaker 2 (55:55):
And expose what they want to hide. Please share the
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