Alexander Hamilton, the New Republic, and the Law of Nations

by Chris Borgen

There’s this musical on Broadway. It’s called Hamilton.  You might have heard of it. It’s causing legal scholars to say things like “I admired Hamilton since before he could rap,” and “My Shot has a pretty good lyric but have you tried Federalist no. 6?”

Anyway, a short note on A. Ham. and the law of nations seems in order.  For the following, I am particularly indebted to  Mark Janis’ book America and the Law of Nations 1776-1939 (Oxford 2010), David Bederman’s volume The Classical Foundations of the American Constitution: Prevailing Wisdom (Cambridge 2008) and Hamilton’s Republic (The New Press 1997), a compilation of writings by Alexander Hamilton and later “Hamiltonian” writers edited and introduced by Michael Lind. These authors and others writing about Hamilton do not necessarily come to the same conclusions regarding his views on what we now call international law, but rather provide  varying perspectives on a complex man.

By way of background, the views of the founders were in part shaped by their education in classical history as well as Enlightenment philosophy.  David Bederman, in his study of classical thought and the U.S. Constitution, wrote that “[s]tarting first with classical writers in Greek, the Framing generation particularly prized the works of Plato, Aristotle, Thucydides, Polybius, and Plutarch, in that rising order of esteem.” (Bederman, 15.)   Thucydides’ international realism and Polybius’ conception of a “mixed constitution” combining monarchy, oligarchy, and democracy were especially influential on the founding generation. Hamilton was particularly fond of quoting Plutarch, whose biographies combine issues of public policy and state building with individual moral choice. (Bederman,16-17; 22.) Hamilton and other founders may have used “instrumental classicism,” to support their political arguments, but they also did a “reputable job in trying to make sense of antiquity,” with Hamilton among the “best” classicists. (Bederman, 228.)

Beyond classical history and philosophy, the founders were also influenced by Enlightenment philosophy and, as a group, were well-versed in the 18th century law of nations and often referred to it in their writings. Mark Janis, in the first volume of his history of the United States and international law, argued that “[n]o group of America’s leaders have ever been more mindful of the discipline[of international law] than were the Founding Fathers.” (Janis, 24.)

In relation to studies in natural law at Kings College (later, Columbia University), Alexander Hamilton suggested in 1775 a reading list of “Grotius, Pufendorf, Locke, Montesquieu, and Burlemaqui.” (Janis, 24-25.) This shows, at least, his exposure to foundational texts of international law.  However, suggesting a reading list on natural law and actual application of the law of nations in practice are two different things. So, how concerned was Alexander Hamilton with the application of the law of nations to the “young, scrappy, and hungry” republic?

Here we can see some divergence in interpretation by scholars. Janis notes that in 1795 Hamilton wrote that it was “indubitable that the customary law of European nations is part of the common law, and, by adoption, that of the United States.” (Janis, 32.)  However, Michael Lind reads some of Hamilton’s writings and perceives an “unsentimental and realistic view of power politics and their ever timely warning against allowing attachments to particular foreign states to influence American foreign policy.” (Lind, 32.)

Lind is referring to the Pacificus letters, in which Hamilton defended Washington’s Proclamation of Neutrality in 1793. As dramatized in Cabinet Battle #2 in the musical Hamilton, this decision not to support our Revolutionary War ally France in its European wars was controversial.  But Janis reads the same text (Pacificus no. 3) and rather than pure power politics, sees Hamilton supporting a core norm of the law of nations—declarations of neutrality. Janis notes that Hamilton cited to Vattel and emphasized that the “main objective” of the Proclamation was “to prevent the nation’s being responsible for acts done by its citizens, without the privity or connivance of the government, in contravention of the principles of neutrality.” (Janis, quoting Hamilton, 38.) The relation to the law of nations is further underscored in Hamilton’s description in Pacificus no. 3  of the Executive as “’the interpreter of the national treaties, in those cases in which the judiciary is not competent, that is, between government and government,’ and ‘the power which is charged with the execution of the laws, of which treaties form a part.’” (Janis, quoting Hamilton, 38.)

While scholars may debate the extent to which Hamilton was concerned with the law of nations in and of itself, Hamilton, as one of the authors of the Federalist Papers, was clearly very concerned with (and was extremely influential on) what we now call the law of foreign relations, the ways in which the Constitutional structure interacts with foreign policy and international obligations.

Writing in The Oxford Handbook on the History of International Law, Janis explains that “it was the inability of the United States under the articles of Confederation to live up to its obligations as a sovereign State under the law of nations which proved to be one of the principle causes of that early form of U.S. government.” (Handbook, 530). In particular, after the end of the Revolutionary War certain states of the U.S. had enacted legislation that had frustrated the U.S.’s promise to Britain as part of the Peace of Paris for British creditors to be fully repaid without impediment.  In America and the Law of Nations, Janis explains that in Federalist 80, concerning the foreign affairs power,

[Hamilton] argued ‘that the peace of the WHOLE ought not to be left at the disposal of a PART.’ Looking at judicial disputes, Hamilton warned that unwise state judgments against a foreigner could well, ‘if unredressed, be an aggression upon his sovereign, as well as one which violated the stipulations in a treaty or the general law of nations.’

(Handbook, 530. Citations omitted.)

The stability of the new republic and its ability to undertake an effective foreign policy were critical concerns to the founders. This is in part due to the founding generation’s reading of classical history.  Many of the founders used their interpretation of the history of the military confederations of Greek city states and the instability of these arrangements; this argued, in their view, for a stronger role for a central government for national defense. Hamilton was also concerned that republics were as prone to war as monarchies. (Bederman, 165.) Nonetheless, Hamilton favored the establishment of a standing army for the safety of the country. (Bederman, 165, 167.) In Federalist 26, Hamilton described that the check on the standing army would be the need for ongoing Congressional appropriations. (Bederman, 168.)

In these passages we see Hamilton’s support for a strong national government overlapping with issues of foreign-policy making, national security, and international law. His classical studies helped form his concerns about the instability of confederations as well as a certain hard-nosed realism concerning the interest of nations. But, his readings of Enlightenment philosophers and jurists seemed to give him at the very least a respect for the importance of treaties, their relation to domestic law, and the severe consequences if the U.S. ignored its treaty obligations.

The musical Hamilton ends with a lyric about “who lives, who dies, who tells your story.” Hamilton’s story, a small part of which touches on the law of nations, is complex and open to interpretation. And it is still being told.

http://opiniojuris.org/2016/06/14/alexander-hamilton-the-new-republic-and-the-law-of-nations/

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