As a start, History News Network, journalist and professor Ian Mylchreest offered an essay on “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. . . .Indeed, that number of the Federalist states:
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 last clause of the eighth Section of the first Article of the plan under consideration authorizes the National Legislature “to make all laws which shall be necessary and proper for carrying into execution the powers by that Constitution vested in the Government of the United States, or in any department or officer thereof;” and the second clause of the sixth Article declares, “that the Constitution and the laws of the United States made in pursuance thereof, and the treaties made by their authority, shall be the supreme law of the land; anything in the constitution or laws of any State to the contrary notwithstanding.”As Mylchreest goes on to point out, in truth Hamilton was one of the early American republic’s champions of a stronger and more active national government:
These two clauses have been the source of much virulent invective, and petulant declamation, against the proposed Constitution. They have been held up to the people 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; and yet, strange as it may appear, after all this clamor, to those who may not have happened to contemplate them in the same light, it may be affirmed with perfect confidence, that the constitutional operation of the intended Government would be precisely the same, if these clauses were entirely obliterated, as if they were repeated in every Article. They are only declaratory of a truth, which would have resulted by necessary and unavoidable implication from the very act of constituting a Fœderal Government, and vesting it with certain specified powers. This is so clear a proposition, that moderation itself can scarcely listen to the railings which have been so copiously vented against this part of the Plan, without emotions that disturb its equanimity.
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.Specifically, Hamilton hoped a bigger, stronger national government could help American business. His understanding of the constitutional structure in general and the commerce clause in particular aren’t the only authorities on their meaning, then or now. But the justices and their clerks could have found much more appropriate dead spokesmen for their view of a limited commerce clause.