How Four Supreme Court Justices Misquoted Alexander Hamilton

Americans have always used the Revolutionary era as a cabinet of historical curiosities. When we need authority for our beliefs, we rummage around in the cupboard and pull out some suitable analogy or quotation to bolster the argument we want to make.

The Tea Party sees itself as the modern incarnation of the anti-tax rhetoric of the Sons of Liberty. The more zealous among them even channel Paul Revere and other Patriots by donning tricorn hats and frock coats as if this will defeat their political enemies.

Thomas Jefferson is now the small-government guru, but he was once the patron saint of reform. In the 1850s, Abraham Lincoln invoked the idea that “All Men are Created Equal” to discredit slavery. He used the words of a slaveholder to condemn human bondage. Martin Luther King, Jr. used those same words a century later to attack segregation. They both knew how difficult it is to face off with the demigods of the national pantheon.

Given how ingrained this national habit is, it seemed pretty routine that the four conservative Supreme Court justices who found the Affordable Care Act unconstitutional would include in their judgment a quotation from Alexander Hamilton. Washington’s lieutenant duly makes an appearance as the judges are warming up to denounce the individual mandate as constitutional overreach because it dragoons healthy young individuals into buying health insurance they do not want.

If Congress can do that, the dissenting justices write, “then the Commerce Clause becomes a font of unlimited power, or in Hamilton’s words, “the hideous monster whose devouring jaws ... spare neither sex nor age, nor high nor low, nor sacred nor profane.”

Those are indeed the words of Alexander Hamilton, but, as they’re quoted here, it seems that he must have been warning against the ever-present tyranny of the federal government. But that was not what he was saying.

The image of the devouring monster in Federalist 33 is, in fact, Hamilton sarcastically denouncing the scare tactics of the Anti-Federalists -- the men who opposed the Constitution. Hamilton wanted to assure the voters of New York that far from the tyrannous monster they had been warned about, the broad power of taxation in the Constitution was perfectly consistent with republican government.

The relevant clauses of the Constitution, Hamilton wrote, had been “the source of much virulent invective and petulant declamation…” He castigated his political opponents who had criticized the powers the Constitution gave to the federal government “… in all the exaggerated colors of misrepresentation as the pernicious engines by which their local governments were to be destroyed and their liberties exterminated; as the hideous monster whose devouring jaws would spare neither sex nor age, nor high nor low, nor sacred nor profane.”

Hamilton did not decry the federal government as a constitutional Godzilla. He denounced the Anti-Federalists for their distortions and lies.

So how could such a misreading find its way into the dissenting judgment on the health care reforms?

Law office history (and the kind done in judges’ chambers) is like the search for legal precedent. It often pulls a fact or quotation out of context to make a point. But this is something worse than just trying to pile up case law and historical precedent.

The words used by the conservative dissenters seemed so apt that whoever wrote this section of the judgment wanted to believe very badly that Hamilton really was railing against federal tyranny.

Many others followed that will to believe. This quotation soon featured in commentary in conservative magazines such as The American Spectator. It was recycled on Fox News. Wall Street Journal columnist Peggy Noonan quoted the sentence from the dissenters as proof that the ruling was “very bad for the atmosphere of freedom in our country.”

All of this was really wishful thinking. The writers desperately wanted to believe Hamilton had foreseen the monstrous totalitarianism in Obamacare when he wrote constitutional scripture in the Federalist Papers.

As anyone who’s ever done History 101 should know, though, Hamilton was the big government conservative in 1787. Unlike many others in Constitution Hall, he wanted a powerful national state to emerge from the deliberations and he believed it should carry a sizeable public debt. Hamilton wanted an active federal government to build the nation.

Conservatives who profess to revere the text and original meaning of the Constitution should consider what all the sound and fury of the Federalist Society is worth when four Supreme Court justices and the highly educated clerks who work for them all failed to recognize this quotation was a fake Alexander Hamilton of their imagination.

Or as Jefferson was reputed to have said: “Falsehood will travel a thousand miles while Truth is putting on her boots.”