Alexander Hamilton And Our Crisis of Bad-Faith Politics

That we're in the midst of a nonstop political crisis is hardly a secret. There are certainly villains to blame for our ever-worsening predicament, but it seems some unlikely heroes are also partly to blame.

Including, dare I say, Alexander Hamilton, the man on the ten dollar bill, the face of the blockbuster Broadway musical, and the darling of American liberals everywhere.

You see, Hamilton was a key architect of our political system, and his ideas on judicial review and federalism have played a significant role in getting us into the dystopian mess we're in today. Before you start throwing your Hamilton.mp3 files at me, let me explain.

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The Federalist Party was one of the first two political parties in the United States, existing from the early 1790s to 1816. The party was founded by Hamilton and other supporters of a strong central government, and it advocated for a strong economic system and a national bank. Federalists believed in a powerful central government that could regulate commerce and maintain order while promoting the growth of industry and supporting the interests of wealthy merchants and businessmen.

Hamilton's belief in the concept of judicial review was noted in Federalist 78, written in 1788. This is the idea that the Supreme Court has the power to review and strike down laws they believe are unconstitutional. On the surface, this might sound like a good idea. After all, who wants the government passing laws that violate our rights? The problem: Judicial review has become a tool for all sorts of bad-faith actors to use for their own ends. Judicial review wasn't the law in the US until 1803.

Enter John Marshall, who served as the fourth Chief Justice of the United States from 1801 to 1835, was a key member of the Federalist Party, and had a close relationship with Alexander Hamilton.

Marshall's relationship with Hamilton was significant because Hamilton played a key role in shaping Marshall's legal and political views, particularly with regard to the role of the judiciary. Marshall's most famous case, Marbury v. Madison (1803), established the principle of judicial review, which is the power of the Supreme Court to review and strike down laws justices see as unconstitutional. This decision solidified the Court's authority and it's a landmark case in U.S. legal history. The case arose from a dispute between the outgoing Federalist administration of John Adams and the incoming Democratic-Republican administration of Thomas Jefferson. Marshall (almost ironically) and the Supreme Court ruled in favor of the new administration, and this set a precedent for the Court's power to review and strike down federal laws it deemed unconstitutional. This ruling greatly enhanced the Court's power and helped establish the principle of judicial review as an integral part of the U.S. legal system.

You're yelling at your phone now. You're fuming. But Sam, you say, these judicial experts, these paragons of what is and is not right, went to law school. They can read laws as written, and they cannot be biased thanks to their legal training.

The process of appointing judges is inherently political. The president and U.S. Senate must approve federal judges, and this process can be influenced by political considerations such as party affiliation and ideology. The political views of the judges themselves can shape their interpretation of the law and their decisions. This can lead to a situation where the judiciary reflects the political views of the ruling party or class, rather than neutrally interpreting the law. I know this is not breaking news to you if you've paid even a little bit of attention to your radicalized right-wing Supreme Court majority.

On one hand, we have conservative activists who have worked for decades to stack the federal courts with judges committed to the conservative project – folks who will strike down progressive laws and policies. On the other hand, we have liberal activists who have largely ignored stacking the courts with left-wing judges who will strike down obscene conservative laws and policies. The result? The Supreme Court has become a political battleground, with activists on both sides using the courts to advance their own agenda or shrug their shoulders when something doesn't go their way.

The Republican Party has long operated in extremely bad faith. I'm not going to bloviate about procedure or "norms" but these can all be recognized as insane. We knew this was going to happen and the machinations of the rules-adoring Democratic Party couldn't stand up to the right wing's onslaught of bad faith. Here are three examples of judicial bad faith that broke brains across the land:

1. Refusing to hold a hearing and vote on Merrick Garland's nomination, in 2016, which was an attempt to delay the appointment of a more liberal justice until after that election.
2. Moving to confirm Justice Amy Coney Barrett right before the 2020 presidential election, after having refused to consider Barack Obama's SCOTUS nominee before the 2016 election.
3. Changing Senate rules to eliminate the filibuster for Supreme Court nominees (I think the Democrats should copy the Republicans' homework here), allowing for simple majority votes to confirm justices, making it easier for the party in power to confirm their preferred nominees, usually radical political actors cosplaying independent law knowers.

These actions were clearly politically motivated and bereft of good faith. It drains my soul of hope that we have these ghouls with lifetime appointments deciding whether good things are constitutional or not.

The power of the judiciary has helped us out before but some cases have caused a major backslide in rights. An easy early example is Dred Scott v. Sandford.

In my early adulthood, congressional Democrats passed the Affordable Care Act, giving me a bit of hope. I was able to stay on my dad's insurance until I was 26 (though I didn't secure "affordable" healthcare until I was 29). Passage of the ACA – a decidedly moderate piece of legislation – led to a complicated lawsuit called National Federation of Independent Business v. Sebelius. Some "good" parts of the ACA remained but the lawsuit took some of the teeth out of the law. Part of the case focused on the expansion of Medicaid under the ACA, which required states to expand Medicaid coverage to everyone with incomes up to 138 percent of the federal poverty level or risk losing their federal Medicaid funding.

A block of small business and corporate ghouls challenged this requirement, arguing that it was an unconstitutional coercion by the federal government. The Supreme Court upheld the expansion of Medicaid but made it optional for states to participate, dooming millions of Americans to life without access to healthcare.

Hamilton's Judicial Review: A Weapon For The Rich

The judiciary, as an institution, is a tool of the ruling class and judicial review allows them to reinforce and maintain the existing power structures in society. Judicial review makes democracy largely illusory. It undermines basic democratic principles at every turn, granting nearly-unchecked power to the judiciary, which happens to be teeming with far-right judges working hand in hand with Republicans to advance a terrifying conservative agenda.

The state and its institutions, including the judiciary, are controlled by the ruling class, which uses its power to maintain its own interests and to oppress the working class. Therefore, the judiciary's role in interpreting and applying laws is not neutral, but rather serves to uphold the interests of the ruling class.

The principle of judicial review is a means for the ruling class to maintain its power and control by striking down laws that threaten its varied interests. True power should be held by the working class and not the ruling class, for that reason, the power of judicial review should not be given to a few folks in flowing black robes but to the people.

Even if Democrats retake the House, the Senate, and the presidency in 2024 and develop the spine required to pass meaningful laws, those policies will be struck down by the packed conservative courts. There is no question about that. Judicial review means progress is not possible. We are boned.

The man on the ten dollar bill, Alexander Hamilton, is at least partly to blame for the current crisis of bad faith politics and our seemingly endless descent into full-blown fascism. Thanks Alex.