Alexander Hamilton, the Nondelegation Doctrine, and the Creation of the United States.

• Author: Bamzai, Aditya

Introduction

One of the most significant criticisms lodged against the Articles of Confederation in the years before the ratification of the Constitution was that the Continental Congress could not directly raise funding for the national government. In 1781, during the American Revolution, the Continental Congress had formally requested that each state "vest a power in Congress, to levy" a tariff of five percent on many foreign imports. (1) In 1787, after years of twists and turns, New York's rejection of Congress's authority to implement an impost effectively sounded the death knell for the proposal. (2) Between those years, the United States won a war and formed a government under the Articles of Confederation. (3) During this period, the impost controversy was central to political debates (4)--so central that, when James Madison spelled out the flaws of the Articles of Confederation in 1787, he placed the inability of the Continental Congress to raise revenue at the very top of the list. (5) New York's rejection was not just the death knell of the impost proposal, but effectively the death knell for the Articles of Confederation and the government they had created. To borrow Alexander Hamilton's words, "impost begat [the Constitutional] Convention." (6)

The impost controversy was the occasion for a lengthy and substantial debate over the nondelegation doctrine. That is because, in the crucial State of New York, (7) critics of the proposals for federal impost authority invoked the Legislative Vesting Clause of the New York Constitution of 1777 and contended that it prohibited such a conferral of authority. That clause of the New York Constitution declared, in relevant part, that "the supreme legislative power within this State shall be vested in two separate and distinct bodies of men; the one to be called the assembly of the State of New York, the other to be called the senate of the State of New York." (8)

The critics of the impost proposal argued that delegating impost-collection authority to Congress violated this legislative vesting provision. To take an example, as early as 1783, Abraham Yates--later a prominent antifederalist opponent of the Constitution--claimed that the New York legislature lacked the power "of delegating the authority constitutionally vested in them to the federal government." (9) He contended that if the legislature could do so "in this instance, they might in another, and at last surrender the whole legislative power." (10) Three years later, in 1786, the Habsburg Monarchy's agent in the United States, Baron de Beelen-Bertholff, reported that critics of the impost claimed that the New York legislature could not give away "an authority that inheres necessarily in the respective legislatures of each state" and that delegating such authority would depart from the "fundamental principles of the American constitutions." (11) And in the crucial debates over the impost in February 1787, a pseudonymous author, "Candidus," claimed that the New York Constitution did "not authorize the legislature to transfer the power of legislation to Congress, in this instance." (12)

Almost six years of debate over the nondelegation doctrine culminated in a speech before the New York Assembly by Alexander Hamilton in February 1787. (13) In his speech, Hamilton directly addressed the nondelegation doctrine at length, noting that some had charged the impost bill with violating a constitutional prohibition on "delegat[ing] legislative power" from the New York legislature "to Congress" and characterizing this objection as the one "supposed to have the greatest force." (14) He acknowledged the critics' premise that the New York Constitution incorporated a nondelegation principle. He said that "[i]n the distribution of the different parts of the sovereignty in the particular government of this state the legislative authority shall reside in a senate and assembly, or in other words, the legislative authority of the particular government of the state of New-York shall be vested in a senate and assembly." (15) But relying on other parts of the New York Constitution, Hamilton contended that the New York Constitution's Legislative Vesting Clause did not go beyond "delineat[ing] the different departments of power in our own state government." (16) Hamilton thus claimed that a delegation to the federal government did not violate the prohibition against delegations within "the different departments" of the New York government. (17)

Despite its relevance, the impost debate has received effectively no attention in the voluminous scholarship on the nondelegation doctrine. (18) In this Article, I have uncovered essays and papers written about the legislative vesting provision of the New York Constitution in the critical years and months preceding the Constitution's adoption. There are three basic reasons to care about these new documents.

First, the impost controversy precipitated a crisis that led to the Convention that wrote the Constitution of the United States. It is not much exaggeration to say that this was the legal debate that led to the creation of the United States--with the nondelegation doctrine under the New York Constitution playing a starring doctrinal role. The backdrop of Hamilton's speech was the significant financial difficulties (and potential dissolution) of the federal union prompted by the national government's inability to raise national revenue. (19) Thus, "conferring on congress the power of levying a national impost, was the great dividing question on which the two parties that existed in America were arrayed." (20) In the words of Alexander Hamilton's son, the historian John Church Hamilton, "[t]he vote of the New-York legislature on the impost decided the fate of the confederation." (21)

Second, the debate over the Constitution prompted a debate over delegation in a second sense: whether state legislatures had the authority to transfer away their authority to the federal government, either directly or through an agent like the delegates to the Constitutional Convention. During the debate over the Constitution, this question came to the fore, with John Jay addressing the topic of delegation in letters and others addressing whether the participants at the Constitutional Convention had exceeded their delegated authority. (22)

Third, the question whether the U.S. Constitution's vesting of "legislative powers" in Congress implies a nondelegation principle is a matter of significant current debate. (23) The New York debates over the impost provide interesting and potentially significant new and previously overlooked evidence on this question. (24) In a nutshell, they demonstrate that, in one of the highest-profile and consequential debates during the years preceding the Constitution's adoption, editorial writers and legislators within New York repeatedly made arguments based on the premise that the New York Constitution contained a nondelegation doctrine. (25) And in seeking to rebut that argument, Alexander Hamilton, along with his allies, accepted the existence of a nondelegation doctrine under the New York Constitution's Legislative Vesting Clause, but disputed the doctrine's application to a delegation to the federal government. (26)

This Article proceeds in four parts. Part I spells out the history of the impost crisis in the 1780s, starting with its genesis during the American Revolution in 1781 and addressing developments until the critical year of 1787. Part II discusses the New York Assembly's 1787 session, which addressed the impost proposal for a final time in a debate culminating in Alexander Hamilton's speech analyzing the nondelegation doctrine. It includes an extended discussion of that speech, which acknowledged that the New York Constitution's Legislative Vesting Clause incorporated a nondelegation doctrine, but argued that the conferral of revenue-raising authority on the Constitutional Congress did not violate that doctrine. Part III discusses the aftermath of the speech, which ended in the failure of the impost proposal and the movement toward the Convention that produced the U.S. Constitution. Even there, nondelegation concerns were raised, because critics of the Convention argued that the delegates to the Convention had violated their mandates by exceeding the authority vested in them by the New York legislature. All of these concerns were specifically raised during the events leading up to the epic Poughkeepsie Convention that ratified the Constitution in New York. (27) Part IV concludes with implications for our understanding of the Constitution's drafting and ratification, the nondelegation doctrine, and the separation of powers more generally.

In broad strokes, the debate in New York over the delegation of an impost to the federal government--which occurred just a few months before the writing of the Constitution--provides new evidence on how Article I's authors might have understood the federal Legislative Vesting Clause. While perhaps not conclusive, it is certainly relevant that, to my knowledge, the principal participants to the New York debate accepted the existence of a nondelegation doctrine under the New York Constitution. The debate over the impost, which "begat" (28) the Constitution, and the debate over the Constitution itself, were in no small part debates over the contours of delegation.

1. THE IMPOST CRISIS OF THE 1780S

   The impost crisis was one of the most significant political issues of the period between the end of the American Revolution and the writing of the Constitution. In this Part, I provide a brief timeline of the issue, beginning first with the legal backdrop for the crisis and a description of those who participated in the debate within New York. I then turn to the several impost proposals between 1781 and 1787, highlighting the legal, nondelegation arguments made against such proposals. (29)

   1. The Nature of--and Participants...