Reclaiming the Constitution

by Professor Michael Anthony Lawrence, Michigan State University College of Law. The views expressed here are his own.

If James Madison and Alexander Hamilton, signers of the Constitution and primary authors of the Federalist Papers (the indispensable work of 85 essays which Thomas Jefferson described as “the best commentary on the principles of government which has ever been written”), were magically able to transport themselves 222 years forward in time to the present day, they would find a lot to like about President Barack Obama’s first 100 days in office. Madison and Hamilton would welcome American government’s return, after eight years in the wilderness, to the core constitutional principles for which they so passionately argued.

First, Hamilton and Madison would admire Obama’s ambitious — even audacious — domestic agenda. “Energy in the executive is a leading character in the definition of good government,” Hamilton wrote in the Federalist 70.

Moreover, Madison especially would appreciate Obama’s understanding of the Constitution’s limitations on executive power, as shown in his early executive orders repudiating the Bush administration’s use of torture interrogation techniques in Guantanamo Bay and CIA secret prisons. In the Federalist 47, Madison spoke of the dangers of such a go-it-alone approach, explaining, the accumulation of all powers, legislative, executive, and judiciary, in the same hands may justly be pronounced the very definition of tyranny.”

Finally, Madison and Hamilton would approve of Obama*s recognition (as demonstrated by his early reversal of the Bush administration policy of hiding information, and, more recently, the release of the torture memos) that government serves at the pleasure of, and thus must be held accountable to, the people. “The genius of republican liberty,” Madison concluded in the Federalist 37, “demand[s] not only that all power should be derived from the people; but, that those entrusted with it should be kept in dependence on the people.” “[T]he power of the people,* Hamilton added in No. 78, “is superior to [that of government].”

Immortal words that President Barack Obama, the former constitutional law professor, understands well.

Mr. Lawrence is author of the forthcoming book, “Free Radicals: Four Hundred Years Toward Greater Liberty and Equal Justice in America (Religious Orthodoxy Notwithstanding).”