Five years after General George Washington took command of a revolutionary army, he believed that the revolution was on the verge of collapse.
The Articles of Confederation, which bound the thirteen former British colonies together prior to the ratification of the U.S. Constitution, were fundamentally flawed. Congress, under the Articles, could not directly tax individuals or legislate their actions. Delegates to Congress had little authority to exercise independent judgment, as they both owed their salaries to their state government and could be recalled “at any time.” Of particular frustration to General Washington, the Articles also gave Congress no real power to raise troops or to provide for them once they were assembled under Washington’s command. Congress could request recruits or money, but it was powerless if the states denied these requests.
“Unless Congress speaks in a more decisive tone,” Washington wrote in 1780, “unless they are vested with powers by the several States competent to the purposes of war . . . our Cause is lost.”
The Revolutionary War taught our first president the value of a strong central government. And this understanding was not limited simply to the need to provide a capable army. As Washington wrote a young former aide named Alexander Hamilton shortly after the war was won, “unless Congress have powers competent to all general purposes,  the distresses we have encountered, the expences we have incurred, and the blood we have spilt in the course of an eight years’ war, will avail us nothing.”
National Problems, National Solutions
As both Yale Law Professor Jack Balkin and the Constitutional Accountability Center have explained, this concern about a too-weak national government provided much of the impetus for the new Constitution. When the framers of the Constitution met in Philadelphia, with Washington serving as president of this Constitutional Convention, they adopted a resolution declaring that the new federal government’s powers should be quite expansive indeed. Congress, in the framers’ vision must be able “to legislate in all cases for the general interests of the Union, and also in those to which the States are separately incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation.”
The framers understood, in other words, that there will be problems that face the entire nation, and that these problems require a government powerful enough to address these national concerns — Congress may legislate “in all cases for the general interests of the Union.” Though the framers could not possibly have anticipated the way new innovations would weave the nation together into one grand community (decades after the Constitution was ratified, for example it still took nearly a third of a year to travel from New York to California. The transcontinental railroad reduced this to 6 days). They had the foresight to build a central government that was robust enough to tackle the problems presented by an interconnected nation and multinational corporations.
To implement the framers’ resolution, a committee of the Constitutional Convention drafted the list of powers Congress is permitted to exercise, such as the power to “raise and support armies” or to “establish a uniform rule of naturalization” that are now contained in Article I of the Constitution. Arguably the most significant of these powers are Congress’ authority to “regulate commerce . . .among the several states,” which gave Congress broad authority to regulate the nation’s economy and the power to raise taxes and spend money in ways that advance “the common defense and general welfare of the United States.” As railroads, highways, telephones and the Internet caused our nation’s economy to become more and more interconnected, the Constitution’s broad grant of power would grow to touch more people’s lives, but this outcome flowed naturally from the text of the Constitution of 1787.
The First Great Constitutional Fight
Though the text of the resolution adopted at the Constitutional Convention suggests that there was a consensus around the need for robust federal power, the Founding Fathers soon divided into two factions. Broadly speaking, Treasury Secretary Alexander Hamilton led a faction which supported Congress’ broad constitutional authority to regulate the economy, to fund public works, and to otherwise spend money for the benefit of the nation. On the other side, Secretary of State Thomas Jefferson and his ally, Virginia Congressman James Madison, led a faction that would have almost certainly viewed anything resembling a modern welfare and regulatory state as unconstitutional.
These two visions collided in 1791 over Hamilton’s proposal to create the First Bank of the United States. Hamilton envisioned the bank as both a place to deposit federal tax revenue and a way to ensure access to credit. Should the new government experience a temporary shortfall in revenue, the bank could offer a short term loan to cover the gap. More broadly, bank loans would enable both the federal government and private interests to fund public works. Thus, Hamilton viewed the power to create such a bank as implicit in Congress’ broad authority to tax and provide for the new nation. As he explained to President Washington,
the very general power of laying and collecting taxes, and appropriating their proceeds — that of borrowing money indefinitely — that of coining money, and regulating foreign coins — that of making all needful rules and regulations respecting the property of the United States. These powers combined, as well as the reason and nature of the thing, speak strongly this language: that it is the manifest design and scope of the Constitution to vest in Congress all the powers requisite to the effectual administration of the finances of the United States. As far as concerns this object, there appears to be no parsimony of power.
Jefferson offered a very different view of the bank, and of the Constitution itself. If the Constitution permitted Congress to incorporate a national bank merely because doing so would enable it to carry out its other duties more effectively, then Jefferson feared the federal government’s powers would expand without limit. “If such a latitude of construction be allowed,” Jefferson told Washington, “it will go to everyone, for there is not one which ingenuity may not torture into a convenience in some instance or other . . . . It would swallow up all the delegated powers, and reduce the whole to one power.”
Jefferson, in other words, believed that the primary goal of the Constitution was to restrain federal power, and thus it should be read narrowly to limit Congress ability to act. Hamilton, by contrast, understood the new Constitution to empower the United States to confront challenges it was powerless to address under the Articles of Confederation. The battle over the national bank posed a fundamental question about what kind of nation the United States would become: would we be governed by a national government fully empowered to meet national problems with national solutions, or did we fear central power so much that we were willing to risk impotence to ward off centralized tyranny?
George Washington chose the first option. He sided with Hamilton and signed the bank bill into law.
The War That Never Ends
President Washington, however, was not able to calm this fight over how to read our Constitution for long. To the contrary, the history of American constitutional law has, to a large extent, been a never ending fight between Hamilton’s vision and Jefferson and Madison’s. Though Washington, the Supreme Court, and ultimately, even Madison himself would eventually concede that a federally charted bank is constitutional, the nation’s seventh president never did. President Madison signed a bill authorizing a Second Bank of the United States, but President Andrew Jackson allowed this bank’s charter to expire — to disastrous results.
Less than a quarter century later, President James Buchanan vetoed the land grant college act, relying in part on a distinctly Madisonian interpretation of the Constitution. Abraham Lincoln would later reject this interpretation, and sign a very similar bill into law.
In the late Nineteenth Century, the nation’s leading opponent of a strong government spoke of Washington’s decision to side with Hamilton over Madison as if it were America’s original sin. Justice Stephen Field — who led an economically libertarian insurgency within the Supreme Court even as he voted to uphold both Jim Crow segregation and laws with such extravagantly racist names as the “Chinese Exclusion Act” — campaigned for president in 1880 against a chain of evils he traced all the way back to Alexander Hamilton. “The old Constitution,” one of Field’s campaign pamphlets claimed, “has been buried under the liberal interpretations of Federalist-Republican Congresses and administrations, grasping doubtful powers and making each step towards centralization the sure precedent of another.”
Though Field was never really a viable candidate for president, he would live long enough to see his radical libertarian understanding of the Constitution largely embraced by a majority of his colleagues on the Supreme Court. A few years before President Grover Cleveland appointed Melville Fuller as Chief Justice of the United States in 1888, Fuller published a revealing analysis of American political history:
Two great parties have always divided the people of this country . . . the doctrine of the one is that all power not expressly delegated to the general government remains with the states and with the people; of the other, that the efficacy of the general government should be strengthened by a free construction of its powers. The one believes that that is the best government that governs least; the other, that government should exercise the functions belonging to Divine Providence, and should regulate the profits of labor and the value of property by direct legislation. The leader and type of one school of thought and politics was Thomas Jefferson; and Alexander Hamilton was the leader and type of the other.
After joining the Court, Fuller revealed himself to be a proud member of the Party of Jefferson. In a single year, Fuller’s Court declared the income tax unconstitutional and it gave a nationwide sugar monopoly immunity to anti-trust law on constitutional grounds. Chief Justice Fuller also presided over the odious Lochner decision, which led to numerous laws protecting workers from rapacious employers being struck down.
So, while Washington rejected Jefferson and Madison’s vision of a Constitution fundamentally distrustful of government power, that vision did not die in 1791. It may never die. It was the vision that animated the Supreme Court’s conservatives to stand athwart the New Deal yelling stop. It was the vision that led Barry Goldwater to label a federal ban on whites-only lunch counters unconstitutional. And it was the vision that drove the nearly successful lawsuit against the Affordable Care Act.
The mistake that most constitutional lawyers made — the mistake that I made — in treating the constitutional case against Obamacare as a joke is that we thought the eternal struggle between Hamilton and Jefferson had finally come to a close. The legal theory in that case was a joke, if you took the Constitution’s text and precedent seriously. Indeed, no less of an authority than Judge Laurence Silberman, a prominent conservative who received the Presidential Medal of Freedom from President George W. Bush, proclaimed that the case against the Affordable Care Act has no basis “in either the text of the Constitution or Supreme Court precedent.”
But it is firmly rooted in the skeptical view of government that George Washington rejected in 1791.
Jefferson and Madison’s vision of the Constitution is a vision that would declare not just Obamacare, but Medicare and Social Security unconstitutional. It is a vision that is wholly unsuited to a modern nation that must respond creatively to a complex and vibrant national economy. Yet, to borrow from Justice Antonin Scalia, it rises again and again “like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried.”
But it is also not the vision that drove the Constitutional Convention. And it is not the vision that won the support of our first president. Today is the day when we celebrate George Washington’s Birthday. If the Tea Party fully understood what Washington did for this country, they would treat today as a day of mourning.