How Alexander Hamilton Screwed Up America by Brion McClanahan

Author:Brion McClanahan
Language: eng
Format: epub
ISBN: 9781621576549
Publisher: Regnery Publishing
Published: 2017-09-07T04:00:00+00:00

Nor does the opinion of the unconstitutionality and consequent nullity of that law remove all restraint from the overwhelming torrent of slander which is confounding all vice and virtue, all truth and falsehood in the US. The power to do that is fully possessed by the several state-legislatures. It was reserved to them, and was denied to the general government, by the constitution according to our construction of it. While we deny that Congress have a right to controul [sic] the freedom of the press, we have ever asserted the right of the states, and their exclusive right, to do so. They have accordingly, all of them, made provisions for punishing slander, which those who have time and inclination resort to for the vindication of their characters. In general the state laws appear to have made the presses responsible for slander as far as is consistent with their useful freedom. In those states where they do not admit even the truth of allegations to protect the printer, they have gone too far.2

Furthermore, the power of judicial review was an assumed power of the court not expressly granted by the text of the document. Judicial review, like Hamilton’s system, was an implied power. And because the court had been politicized in the months before Jefferson’s inauguration, it was now the home of unelected political hacks insistent on bending the Constitution to meet their political agenda.

A leading Republican newspaper in Boston sniffed this out and cautioned its readers to accept the decision at their own peril. “The efforts of federalism to exalt the Judiciary over the Executive and Legislature, and to give that favorite department a political character and influence, may operate for a time to come, as it has already, to the promotion of one party and the depression of the other.… Politics are more improper and dangerous in a Court of justice . . . than in the pulpit.”3

Another series of letters written anonymously and published under the pseudonym “An Unlearned Layman” in the Washington Federalist spotted the real flaws in Marshall’s reasoning. “If it had been intended to confer this pre-eminent power [judicial review] on the judiciary would not those great and wise men, who composed the convention, have given it by marked expression, as they have given to the President, the limited veto, and not left them to assume, as they now do, from interference, the unlimited?” The author then attacked Marshall’s declaration that the federal court system had the ultimate authority to serve as the legal backstop for all constitutional questions. “Such an interpretation, not only corrupts the text, but destroys the compact. There is enough to satisfy these words without resorting to this broad construction. The clause must refer, solely, to questions properly judiciary, and, not to those, which impinge upon legislative jurisdiction.…” The writer understood that Congress may pass illegal acts, but he did not believe it was the job of the federal judiciary to arrest such tyranny. “No sir, when it comes to this, other tribunals than five judges must be resorted to.

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