Is the Constitution a grant of powers, nigh unlimited, or a restraint on the reach of governments run by self-serving (sinful) men?  What answer have we been given in our modern era?  Most of us would be honest and say that operationally, the former is the answer; some might go so far as to be totally honest and say that the latter is technically and legally the correct response, but our country has been taken down a path away from adherence to the letter of the law, in exchange for being “led by the Spirit”, divorced from the context of the words.

Hamiltonian “will-worship” is to blame for the current state of affairs.  Specifically, according to DiLorenzo, it was the adoption of Hamilton’s view of the ever-growing power of the central state carried out through the machinations of court decisions that have carried us to the murky waters of the swamp of socialistic impulses that our government wallows in today.

Who is the chief priest of the nationalist idolatry?  It was none other than John Marshall, chief justice of the United States Supreme Court, the man who, according to Ron Chernow in his sycophantic biography on Hamilton, stated that beside Hamilton, Marshall felt as a “candle beside the sun at noonday”.   DiLorenzo points out that Marshall relied more strongly on the Hamilton-influenced Federalist Papers than on the Constitution itself as his basis for interpretation of the document.  Hmmm, that seems somewhat akin to relying on the salesman’s word that there are no hidden costs rather than reading the fine print of the contract yourself before signing.

I was definitely struck by one specific point in this chapter:  the vital difference between courts using the Constitution and using constitutional law.   It’s the difference between Jeffersonian federalism and Hamiltonian nationalism; between seeing the governing compact as decentralized or seeing it as consolidated.  This is a significant difference indeed.

Through a series of decisions of the Marshall court, constitutional law has taken the place of the Constitution in deciding our nation’s direction.  Beginning with the infamous (though not for the right reasons) Marbury v. Madison, which, in DiLorenzo’s telling, created a virtual “judicial dictatorship” in the Hamiltonian model (though Hamilton, a master of gamesmanship, would try to belie that in Federalist No. 78), to Gibbons v. Ogden which so broadly defined commerce for federal regulatory purposes as to put all business under the shadow of central control, the courts have made our Constitutional republic “Hamilton’s America”.

Let’s sketch a brief list of the Marshall Court’s “hit parade” on our republican form of government:

Marbury v. Madison–The court gains power to review legislative or executive decisions and declare them void–putting the courts as the final arbiter of the power of supposedly co-equal branches;

Fletcher v. Peck–The court uses the Contract clause to invalidate state law–neutering state courts;

Martin v. Hunter’s Lessee–The court uses the supremacy clause to extend national governmental power beyond Article 1 Section 8 limitations;

McCulloch v. Maryland–The court finds a novel definition for the word “necessary” in the Necessary and Proper clause; now it means “useful” or “convenient” when it allows the national government to assert for itself powers “implied” (not “enumerated”) as it sees “useful”;

Gibbons v. Ogden–The court’s lexionary prowess expands the definition of commerce to an absurdity–giving the national government de facto control (negative sanction) over all business.

Given this list (and there are more examples), it is now very clear that what some of us today would classify as “judicial tyranny” by an oligopoly of nine black robed demigods is really only judicial midgets walking in the footsteps of giants of the imperial judiciary.  The analysis that DiLorenzo gives as to where this truth leaves us now is something that will help you to understand why Hamilton may have been this republic’s own worst enemy.