Hamilton and the Law

Reading Today's Most Contentious Legal Issues through the Hit Musical

Lisa A. Tucker

• Publisher: Cornell University Press
• Year: 2020
• ISBN:
  9781501752223
• Topic: Law
• Subtopic: Legal History
• Index: Law

Since its Broadway debut, Hamilton: An American Musical has infused itself into the American experience: who shapes it, who owns it, who can rap it best. Lawyers and legal scholars, recognizing the way the musical speaks to some of our most complicated constitutional issues, have embraced Alexander Hamilton as the trendiest historical face in American civics. Hamilton and the Law offers a revealing look into the legal community's response to the musical, which continues to resonate in a country still deeply divided about the reach of the law.

A star-powered cast of legal minds—from two former U.S. solicitors general to leading commentators on culture and society—contribute brief and engaging magazine-style articles to this lively book. Intellectual property scholars share their thoughts on Hamilton 's inventive use of other sources, while family law scholars explore domestic violence. Critical race experts consider how Hamilton furthers our understanding of law and race, while authorities on the Second Amendment discuss the language of the Constitution's most contested passage. Legal scholars moonlighting as musicians discuss how the musical lifts history and law out of dusty archives and onto the public stage. This collection of minds, inspired by the phenomenon of the musical and the Constitutional Convention of 1787, urges us to heed Lin-Manuel Miranda and the Founding Fathers and to create something new, daring, and different.

Part 1

“And so the American Experiment Begins”

The Constitution and the Three Branches of Government

1

Lin-Manuel Miranda and the Future of Originalism

Richard Primus

The summer of 2015, when Hamilton: An American Musical opened on Broadway, was also the summer when Donald Trump announced his candidacy for the Republican presidential nomination. The shared timing was more than coincidental; there was a reason why each of these projects came on the scene during the last phase of America’s first nonwhite presidency. The birther-in-chief’s campaign for high office and Lin-Manuel Miranda’s rap opera about the man behind the Federalist Papers spoke to the same deep issues about American identity at a time when the nation’s demography was increasingly coming to resemble that of the larger world. They just approached the subject from different perspectives. One sought to protect an America that was still mostly white and Christian against Mexicans, Muslims, and other outsiders deemed dangerous. The other was so confident in the multiracial future that it rewrote the American past in its image. Trumpism and Hamilton are, in short, the same national transition but from opposite sides of the looking glass. And the passions that each has inspired are rooted partly in the desire to reject a vision of America that the other represents.

The astounding success of each project has implications for the future of constitutional law. The effects of Trump’s election are obvious: The Supreme Court is likely to have a Republican-appointed majority into the indefinite future, continuing an unbroken run that began in 1970. While Republican appointees control the Court, Miranda’s project is unlikely to have significant effects on legal doctrine. But among the Court’s liberal opposition—on and off the bench—Hamilton will contribute to a significant change. After several decades during which constitutional originalism has been mostly a right-wing art form, liberals will increasingly turn to a jurisprudence of original meanings—and not merely as a way of trying to appeal to the originalists on the bench. Instead, liberals will turn to originalism because they will increasingly believe, authentically, that originalist methods support liberal positions in constitutional law. Eventually, we’ll see this development’s ascendancy: when the day finally comes that the Supreme Court has a liberal-leaning majority, that majority will deploy originalism for liberal ends. Hamilton is part of the reason why.

Judges commonly understand the Constitution in light of their assumptions about the Founding generation. The writing of the Constitution is part of America’s origin story. And if the history of constitutional law shows anything, it shows that the “original meaning” of the Constitution changes over time. Not the actual original meaning, of course. To the extent that the Constitution has an actual original meaning, that meaning is fixed by historical facts. But what shapes constitutional law is not the actual original meaning of the Constitution. It is the operative original meaning of the Constitution, meaning the original meaning as understood by judges and other officials at any given time. The operative original meaning of the Constitution is not entirely divorced from actual constitutional history, but it is also not a strict function of careful historical inquiry. Instead, how judges imagine the original meaning of the Constitution depends on their intuitions—half-historical, half-mythical—about the Founding narrative. If you can change the myth, you can change the Constitution.

Hamilton is changing the myth. Originalism in constitutional law has recently had a generally conservative valence not because the Founders were an eighteenth-century version of the Federalist Society, or the Cato Institute, or the Family Research Council, but because readings of Founding-era sources that favored right-leaning causes were generally predominant in the community of constitutional lawyers. Since 2015, however, the millions of Americans who have listened obsessively to Hamilton’s cast album or packed theaters to see the show in person have been absorbing a new vision of the Founding. The blockbuster musical narrative of our times has retold America’s origin story as the tale of a heroic immigrant with passionately progressive politics on issues of race and issues of federal power. And so the balance shifts:¹ inspired in part by this retelling, a new orientation toward the Founding will come into view.

Hamilton offers this alternative vision at the dawn of a period when liberals will find themselves attracted to rediscovering the Founders as political and jurisprudential allies. The Court is likely to be distinctly conservative, or libertarian, or some mixture of the two. One of originalism’s leading uses is as a tool of resistance to judicial authority. Within our legal culture, an appeal to the Founders is an appeal over the judges’ heads. The Founders lack the power to reverse the Supreme Court, so in the here and now that appeal to higher authority is a bid for hearts and minds rather than damages and injunctions. But in a democratic society, hearts and minds are worth winning. Moreover, many liberals will be opposed to things the Court does, and they will want ways to articulate their opposition. Many liberals will accordingly do what many conservatives were motivated to do by the Court of the 1960s: tell stories about the Founding that vindicate their values against current judicial depredations. Hamilton will help that process along. So for everyone who has learned to expect originalist arguments to lead mostly to conservative results, here is your Miranda warning: within a generation, American liberals may have developed a jurisprudence of original meanings that, if deployed one day by a liberal Court, could underwrite progressive constitutional decision-making like nothing seen since the days of Chief Justice Earl Warren.

Twenty years ago, in an opinion curtailing the federal government’s power to regulate gun sales, Justice Antonin Scalia described Hamilton as the most nationalistic of the Founders. It was not a compliment. It was a reason to discount an argument based on one of Alexander Hamilton’s arguments in the Federalist Papers, an argument that would have upheld broad federal power to regulate in the case at hand. The true Founding view, Scalia wrote, was better captured in a different essay by James Madison, who was (in Scalia’s presentation) more skeptical of central authority.² Hamilton was out of step.

Scalia was not wrong to think of Hamilton as a fervent supporter of national government. But Hamilton’s views were not as marginal as Scalia’s treatment suggested. Any number of leading Founders were aggressive centralizers in 1787—Madison included. Writing for a majority of the Supreme Court, however, Scalia’s confidence in the Founders as local-power, small-government types enabled him to imagine Hamilton as an outlier who could be dismissed. The same set of assumptions also framed Scalia’s reading of Madison’s essay—an essay that would easily bear a more nationalistic interpretation than Scalia gave it. I assume that Scalia and the rest of the Court’s majority made these interpretive moves in good faith. Quite authentically, they thought of Hamilton as nonrepresentative and Madison as skeptical of central authority. Those attitudes supported an interpretation of the sources that blocked an exercise of federal lawmaking.

Hamilton, which opened in the last year of Scalia’s life, will make it harder for the next generation of American lawyers to think of Hamilton as marginal. A large and ecstatic audience now knows a narrative of the Founding in which Hamilton is protagonist and hero. If that perspective prevails, then future readers of originalist source material will hear Hamilton’s voice more loudly. Moreover, if Hamilton’s ardent support for centralized power is taken as the view of a leading figure, it will be easier to read the writings of other Founders as leaning further toward national authority. The sources will bear more nationalist readings than the Court has given them in recent decades. The question is whether the judges and commentators who do the reading will continue to expect Founding texts to lean against federal power, as they have in the past generation, or whether a substantial portion of the next generation of readers will develop the intuition that the nationalism Hamilton represents was an authentic Founding view.

The question is not whether Hamilton will change the way dedicated conservatives view federal power. It is whether Hamilton will help people who might be open to robust conceptions of federal power to see the Founders as on their side and to deploy the cultural power of originalism accordingly. The answer to that question is probably yes. One cannot know in advance how any given influence will change people’s intuitions about history, but in this case it is hard to overstate the preliminary indications. Hamilton is a Pulitzer Prize–winning production whose cast album went platinum faster than any album in the history of Broadway. The audience has not just been listening; it has been rapt. In cooperation with the Rockefeller Foundation, Hamilton’s production company has staged special performances for tens if not hundreds of thousands of students in New York City’s public schools. My personal experience suggests that a significant proportion of teenage Michiganders can recite the lyrics. If art can change ideas—and it can—then it looks like a new vision of the Founding is ready to rise up.³

As a weapon of social change, Hamilton is trained directly on the intuitions that previously made the Founding the differential property of conservatives. In part, this is a matter of the substantive political values that Miranda’s protagonist represents, both on the issue of federal power and on currently salient social issues like immigration. But Hamilton’s larger enterprise is exploding the politics of racial memory that have, in recent decades, made liberals queasy about embracing the Founding too closely. On that score, Hamilton attempts nothing less than regime change. Not in the sense of replacing the president with a different president, but by altering the way that Americans—of all races—think about the identity of the republic.

The show takes barely thirty seconds to establish its perspective on this issue. In the opening sequence, half a dozen rappers—all of them nonwhite in the original production...

Table of contents

• Preface: “Is This a Legal Matter?”
• Acknowledgments
• Part 1. “And so the American Experiment Begins”: The Constitution and the Three Branches of Government
• Part 2. “America, You Great Unfinished Symphony”
• Part 3. “We’ll Never Be Truly Free”: Hamilton and Race
• Part 4. “I’m ’a Compel Him to Include Women in the Sequel”
• Part 5. “Immigrants, We Get the Job Done”
• Part 6. “The Ten Duel Commandments”
• Part 7. “Who Tells Your Story?”
• Part 8. “What Is a Legacy?”: Lessons from Hamilton beyond the Libretto
• Notes
• List of Contributors
• Index