I happen to have Alexander Hamilton right here with me...

Drawing by David Levine, New York Review of Books, 1964.

 

It's a little amusing that Roberts is citing Breyer there, in Clinton v. Jones, that's the Paula Jones case, where Breyer is arguing, in a unanimous decision (Democrat Stevens wrote the opinion), that Clinton was not immune (from civil lawsuits based on private conduct), in spite of the fact that Clinton was indeed the president at the time and the case was certainly "distracting his time and energy", the thing the Framers are said to have been so particularly tender about, and in spite of the fact that this was only the third time in American history that such a suit had been filed against a sitting president. Clinton had failed to prove, Breyer thought, that the US government needed for Clinton to have the immunity:

As Madison pointed out in The Federalist No. 51, "[t]he great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack." Id., at 321-322 (emphasis added). I agree with the majority's determination that a constitutional defense must await a more specific showing of need; I do not agree with what I believe to be an understatement of the "danger." 

It seems to me that with Trump v. United States the Court has turned this upside down, shifting the burden of proof from the offender to the offended. Henceforth (I once knew a cat called Henceforth, and a pretty good cat too), it will just be assumed that the president shouldn't be asked to answer any questions, even after they've left office, nor should his White House employees, even when they're glorified nursemaids for the cranky old psychopath, like poor Hope Hicks helping him ride his way through the scandal of the Access Hollywood video. She was part of the apparatus enabling Trump's "energetic, vigorous, decisive and speedy execution of the laws" when he was paying his hush money debt to Michael Cohen with $420,000 in checks disguised as legal fees so nobody would know about it, so it looks like her testimony in the New York case should not have been given, and his conviction now seems likely to turn into a mistrial, even though you'd be hard put to name any occasions when he executed any laws at all beyond his photo op bill-signing moments with the presidential Sharpie.

It would be fun to put that on trial, wouldn't it?  "Do you recall faithfully executing any laws in 2017, Mr. Trump? Can you list some of those for the jury?" But of course it's unimaginable.

It's also difficult to imagine a Supreme Court majority now citing Federalist 51, with its focus on checks and balances among the three branches, and Madison wistfully letting on how much he wished he could have had the president and Supreme Court justices directly elected:

System of Imbecility

Alexander Hamilton on the filibuster: “[I]ts real operation is to destroy the energy of the government and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority.”

— Laurence Tribe (@tribelaw) March 21, 2021

That's perfect, I thought, but of course the filibuster hadn't been invented yet—what was Hamilton actually talking about? So I asked Dr. Google, and what I got was the single most useful comment on the Federalist Papers I've ever read, from The New Yorker's Hendrik Hertzberg, July 2013:

The Federalist Papers—so often quoted to rationalize governmental stasis and congressional gridlock—are almost always treated as secular scripture. They’re not. They’re newspaper op-ed pieces, written in haste to sell a particular set of compromises, some of which their authors had adamantly opposed and accepted only with the greatest reluctance.

How to Fix the Senate

Folks, I think I have this figured out, inspired by a sort of random threadlet from the genial Jamelle Bouie (a New York Times columnist since mid-January, but some of us have admired him since he started out as a blogger for The American Prospect in 2010):

"The right of equal suffrage among the States is another exceptionable part of the Confederation. Every idea of proportion and every rule of fair representation conspire to condemn a principle, which gives to Rhode Island an equal weight in the scale of power with Massachusetts."

— b-boy bouiebaisse (@jbouie) February 24, 2019

"Sophistry may reply that sovereigns are equal, and that a majority of the votes of the States will be a majority of confederated America. But this kind of logical legerdemain will never counteract the plain suggestions of justice and common sense."

— b-boy bouiebaisse (@jbouie) February 24, 2019

The quotation is from Federalist 22, and it's written in justification of the novel idea of federalizing democracy in the new Constitution, where the impotent Continental Congress, in which each state had a single vote, like the UN General Assembly, was to be replaced by a bicameral legislature with one house representing the states with two votes for each, and one with a house representing the people of the nation as a whole, divided into constituencies with a population size quota (an idea the House of Commons didn't really evolve to until 1885).

Post-Capitalist Politics

Alexander Hamilton, neoliberal and multicultural. Well, he's multicultural now, and you have to be a pretty mean old fart to complain about it. Image via The Source. I just ran into a very good essay (in the sense that it agrees with me a lot) on Hamilton and the subject matter discussed here, by Matthew Yglesias, from April.

That proposal from Brooks yesterday for a post-Trumpian politics of the open vs. the closed, if that's what it was, echoed something earlier in the week by James Traub in Foreign Policy with reference to that UK referendum ("It's Time for the Elites to Rise Up Against the Ignorant Masses"), and may even have been inspired by it, except that Brooks wouldn't have understood very clearly what it was:

Perhaps politics will realign itself around the axis of globalization, with the fist-shakers on one side and the pragmatists on the other. The nationalists would win the loyalty of working-class and middle-class whites who see themselves as the defenders of sovereignty. The reformed center would include the beneficiaries of globalization and the poor and non-white and marginal citizens who recognize that the celebration of national identity excludes them.

Corey Robin, making some well-deserved fun of this kind of panditry, fell into doing some of it himself, offering his own analysis of a Clintonian political realignment that would work by simply eliminating the (less multicultural part of the) left, and his own proposal for a mirror-image realignment that would kind of move the multiculturals around and eliminate the right:

It's what conservatives do

Daveed Diggs as Thomas Jefferson and author Lin-Manuel Miranda as the eponymous protagonist of Hamilton.

Famed drama critic David Brooks comes out with his review of the hip-hop musical Hamilton, by Lin-Manuel Miranda, at the Public Theater. I haven't seen the show and have no justification for complaining about his judgment—glad he had a good time—but I have to quibble with the way he just has to insert a little bit of conservative propaganda, portraying the contest between Federalists and anti-Federalists in Alexander Hamilton's time in a kind of Jonah Goldberg funhouse mirror as plucky lower-class Republicans vs. liberal elitist Democrats:

Hamilton’s greatest foe, Thomas Jefferson, is portrayed brilliantly by the actor Daveed Diggs as a supremely gifted aristocrat who knows exactly how gifted he is. Hamilton assaulted Jefferson because he did not believe a country dominated by oligarchs could be a country in which poor boys and girls like him would have space to rise and grow.

Hamilton on the threat of oligarchy, 1784, defending citizenship rights for the pro-British loyalists or Tories who had lost the war: