He applied the “Page 99 Test” to his latest book, Hamilton versus Jefferson in the Washington Administration: Completing the Founding or Betraying the Founding?, and reported the following:Hamilton versus Jefferson in the Washington Administration passes the “page 99 test.” The book is a detailed account of the political disputes between Alexander Hamilton and Thomas Jefferson while both served in George Washington’s cabinet—Hamilton as the nation’s first secretary of the treasury and Jefferson as its first secretary of state. The book focuses especially on these two great men’s disagreements about the meaning of the Constitution and the scope of the power it bestows on the federal government, questions that are still very much with us today.Learn more about Hamilton versus Jefferson in the Washington Administration at the Cambridge University Press website.
As it happens, page 99 is part of a discussion of Hamilton’s understanding of the Necessary and Proper Clause of the Constitution. Such a discussion is an excellent window on the book as a whole because this is the most famous debate between Hamilton and Jefferson.
The public policy measure that provoked this argument was Hamilton’s plan for a national bank. Jefferson argued that the bank was unconstitutional. Since the Constitution does not mention any express power to create such an institution, the bank could only be authorized by the Necessary and Proper Clause, which empowers Congress to make any law “necessary and proper” to the execution of its expressly granted powers. Jefferson, however, insisted that “necessary” here meant “absolutely necessary.” A bank might make it easier for the government to exercise its taxing, spending, and borrowing powers, but it could not be said to be absolutely necessary to them. Therefore, according to Jefferson, it was unconstitutional.
In reply, Hamilton suggested that Jefferson was inventing a new interpretation of the Constitution in order to block a public policy—the bank—that he just did not like. Thus page 99 of my book begins as follows:The unsoundness of Jefferson’s restrictive interpretation was further indicated, Hamilton argued, by its novelty. Such a conception had “never before” been “entertained” and was in fact inconsistent with the previously established practice of the government. As an example he pointed to the “act concerning light houses, beacons, buoys and public piers.” That act could only be “referred” to Congress’s enumerated power of “regulating trade,” according to Hamilton, and was in fact “fairly relative to it.” It was therefore constitutional according to Hamilton’s standards. Yet the act was certainly not “strictly necessary,” as Jefferson’s interpretation demanded. No one could contend that the Commerce power would be “nugatory” without the Congressional provision of such facilities. Hamilton suggested by this example that Jefferson’s was not the theory on which the government had in fact operated up to the time the bank became controversial and its opponents sought a constitutional argument against it.Hamilton won this round. President Washington, persuaded by Hamilton’s arguments, signed the bank bill into law. But there were many more clashes to come—clashes that became more bitter and angry as Hamilton and Jefferson began to suspect each other of trying to undermine the Constitution and destroy the new republic.
--Marshal Zeringue
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