MAY 8, 2021
“THE 10-DOLLAR founding father / got a lot farther by working a lot harder / by being a lot smarter / by being a self-starter.” “We’re gonna rise up! Rise up!” “Just you wait.” “The room where it happens.” “Immigrants: we get the job done!” “History has its eyes on you.” “I’m not throwin’ away my shot.” “But we’ll never be truly free / until those in bondage have the same rights / as you and me.” “I’m ’a compel him to include women in the sequel!” “And when my time is up, have I done enough?”
These ear-catching lyrics from the Tony Award– and Pulitzer Prize–winning Hamilton: An American Musical, whose cast album went platinum faster than any album in the history of Broadway, are among the most memorable from any American musical. But what is even more remarkable is that for many, they are as memorable as “We hold these truths to be self-evident, that all men are created equal,” or “that government of the people, by the people, and for the people, shall not perish from the earth,” or “Ask not what your country can do for you, but what you can do for your country.”
In her intriguing new book, Hamilton and the Law: Reading Today’s Most Contentious Legal Issues Through the Hit Musical, Lisa A. Tucker has succeeded in using the innovation and exuberance of Lin-Manuel Miranda’s ground-breaking musical to explore a wide range of legal, social, and historical issues. In turn, the 33 essays she has collected help us better understand and more deeply appreciate the complexity and sophistication of this historical hip-hop musical.
Tucker, associate professor of law at the Thomas R. Kline School of Law at Drexel University and author of the novel Called On, writes, “There is simply no question that Hamilton has captured the American imagination in a way that no lesson on civics, government, the Founding of the nation, and the development of the U.S. Constitution has ever achieved.”
The very first essay, “Lin-Manuel Miranda and the Future of Originalism,” by Richard Primus, professor of law, theory, and history of the US Constitution at the University of Michigan Law School, exemplifies the best of this thought-provoking collection. Primus reminds us that Hamilton opened on Broadway in the summer of 2015, just when Donald Trump announced his candidacy for the Republican presidential nomination. “The birther-in-chief’s campaign for high office and Lin-Manuel Miranda’s rap opera about the man behind the Federalist Papers,” Primus writes, “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.” He adds that Trump sought “to protect an America that was still mostly white and Christian against Mexicans, Muslims, and other outsiders deemed dangerous,” while Hamilton “was so confident in the multiracial future that it rewrote the American past in its image.”
Primus uses Hamilton to outline a new progressive approach to the theory of “originalism” in interpreting the Constitution, which for decades has been employed by conservatives to maintain the status quo, retard the expansion of civil rights, and uphold broad executive authority, all the while claiming that this was the single-minded “intent” of the Founders. Primus posits that what shapes constitutional law is not the actual original meaning of the Constitution but instead “the original meaning as understood by judges and other officials at any given time.” Therefore, “how judges imagine the original meaning of the Constitution depends on their intuitions — half-historical, half-mythical — about the Founding narrative.” If you change the myth, you can change the Constitution, and “Hamilton is changing the myth.”
To shift the conservative legal trends on the Supreme Court (now dominated by six Republican-appointed Justices) and among lower federal judges (226 of whom were appointed by Trump), Primus argues that progressives need to do what many conservatives were doing in the 1960s when they began promoting a constitutional interpretation that conserved the world as it is or once was. As Primus puts it, progressives need to “tell stories about the Founding that vindicate their values.” To that end, millions of Americans who have seen Hamilton or listened to the cast album have been “absorbing a new vision of the Founding” which retells “America’s origin story as the tale of a heroic immigrant with passionately progressive politics on issues of race and issues of federal power.” Primus offers what he cleverly calls a “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.”
Hamilton’s larger enterprise, as Primus sees it, “is exploding the politics of racial memory that have, in recent decades, made liberals queasy about embracing the Founding too closely” out of fear “that one cannot celebrate those dead white men without risking complicity in the continued marginalization of nonwhites.” Hamilton attempts “nothing less than regime change.” The question for Primus “is then not whether Hamilton does justice to the past by depicting it accurately but whether Hamilton builds justice in the present by reallocating the ownership of the republic.” If future generations can embrace the Enlightenment values of the Founding and the Constitution, they can rescue it from the grip of conservative thinking. Hamilton sheds light on a Founder who was an immigrant, an opponent of slavery, a city dweller, and a passionate advocate of a strong central government building a “more perfect Union.”
By “offering a version of the Founding that resonates with liberals today, Hamilton will encourage them to embrace the Founding rather than run away from it,” Primus writes. He adds that “the meanings that liberals give to the Founding, once they are inclined to play the game of originalism, will be liberal-leaning meaning, just as the meanings that conservatives have given the Founding have mostly leaned conservative.” In other words, for Primus, “What matters is who tells the story.” Or as Hamilton puts it: “Who lives, / Who dies, / Who tells your story?”
Hamilton and the Law is full of thought-provoking essays like this. Take “‘The World Turned Upside Down’: Employment Discrimination, Race, and Authenticity in Hamilton,” in which Marcia L. McCormick, professor of law and women’s and gender studies at Saint Louis University, confronts the legal implications of casting actors of color in the roles of the white Founders from the standpoint of employment discrimination. Following the phenomenal success of the Broadway show, casting for the touring companies begin in May 2016. The casting call read in part: “HAMILTON is holding OPEN AUDITIONS for SINGERS who RAP! Seeking NON-WHITE men and women, ages 20s to 30s for Broadway and upcoming Tours! No prior theater experience necessary.” Did this casting call violate Title VII, the federal law that prohibits race discrimination in employment? The issue was never tested in court because the producers quickly replaced “NON-WHITE” with “all ethnicities,” but McCormick uses the controversy to explore Hamilton’s unorthodox casting.
Title VII has an exception for “bona fide occupational qualification[s] reasonably necessary to the normal operation of that particular business or enterprise.” But that exception only applies to sex, religion, or national origin, not race or color. In 1964, the drafters of Title VII opined that “a director of a play or movie who wished to cast an actor in the role of a Negro, could specify that he wished to hire someone with the physical appearance of a Negro.” But in the case of Hamilton the situation is complicated, because Hamilton, Washington, Jefferson, and Madison were all white, yet the characters representing them on stage were intentionally written for actors of color.
Here the “authenticity” exception comes into play. The law provides that sex, religion, and national origin may be legally considered where it is “necessary for the purpose of authenticity or genuineness, […] e.g., an actor or actress.” But McCormick admits that if the authenticity exception to discrimination were applied to Hamilton, it would sit “at an uneasy intersection” for the very fact that “the musical has been criticized as reinforcing racial hierarchies and hiding the role that race played in the Founding.”
It is here that McCormick invokes the lyric “the world turned upside down.” In Hamilton, the authenticity question is reversed. The whole point of Hamilton is that the “music used to tell the stories of these long-dead white guys comes from a primarily African American cultural tradition.” The claim to authenticity is different. As Miranda himself noted: “I wanted to write a hip-hop, R&B musical about the life of Alexander Hamilton. […] If it had been an all-white cast, wouldn’t you think I messed up?” McCormick adds that “if the way of telling the story is what matters for the authenticity claim, then surely Hamilton would call for performers of color.”
And then there is the issue of authorial intent. “Seeing oneself in the role of people who are considered central to America’s Founding,” McCormick explains, “makes the struggles of that Founding more relatable and puts today’s social challenges in context.” There is often a lot of talk about the “ideals” of “liberty and justice for all” embedded in the Constitution, despite the fact that it was written by white men who owned slaves. Hamilton does more than simply breathe new life into a Constitution that begins with the words “We the people” and a Declaration of Independence which declares that “all men are created equal.” It eliminates the cruel hypocrisy these words have represented for so much of American history by literally casting those Founders to look more like the multiracial society America has always been.
All of the essays reflect this kind of fresh thinking. John Q. Barrett, professor of law at St. John’s University School of Law, asks whether Miranda’s creation will increase the impact of Hamiltonian thinking on Supreme Court Justices. Anthony Paul Farley, professor of jurisprudence at Albany Law School, describes the musical as “a history and a prophesy, a public memory of the America that will be,” as if “to reimagine the Founders, to see them from the inside out and illuminate our beginning by our cosmopolitan present.” Rosa Frazier, who served as a supervising attorney for the Domestic Violence Immigration Clinic at the University of Wisconsin Law School before she began writing romance novels under a pseudonym, explores how the musical offers “a romantic view of war, marriage, and the process of establishing a new nation,” in which even “the Constitution is sexy and stimulating.”
Hamilton and the Law features essays like these, brimming with insight and originality. In “Hamilton: Child Laborer and Truant,” Paul M. Secunda, professor of law and director of the Labor and Employment Law Program at Marquette University Law School, uses Hamilton’s work as a child, without attending primary or secondary school, to examine issues of child labor under the Fair Labor Standards Act. In his provocative essay “Hamilton’s America — and Ours,” Kermit Roosevelt III, professor of law at the University of Pennsylvania, acknowledges that Hamilton has been criticized for overstating the antislavery and feminist attitudes of several of its principal characters, most notably Hamilton and Angelica Schuyler. But he argues that “locating modern contested values in the past as a way of buttressing their authority” is a staple of American political argument, citing Abraham Lincoln’s Gettysburg Address and Dr. Martin Luther King Jr.’s “I Have a Dream” speech.
In “Hamilton and the Power of Racial Fables in Examining the U.S. Constitution,” Danielle Holley-Walker, dean and professor of law at Howard University School of Law, describes how she uses Hamilton in her classroom as a helpful thought experiment in the tradition of racial fables such as Native Son, Beloved, and Invisible Man. Because Miranda has “cast Founders as members of racial and ethnic minority groups,” Holley-Walker writes, “the audience is invited to reexamine the origins of America without the taint of white supremacy and racism, to focus on the aspirational values of the Constitution, such as freedom, justice, and equality for all persons.”
In “Alexander Hamilton’s ‘One Shot’ Before the U.S. Supreme Court,” Gregory G. Garre, who has himself argued 44 cases before the Supreme Court, vividly describes Hamilton’s one appearance before the High Court, which lasted three hours and was said to have showcased “the talents of this great orator and statesman.”
In a charming and compassionate essay, Neal Katyal, former acting solicitor general of the United States, whom American Lawyer in 2017 named Litigator of the Year, describes how Hamilton was “the soundtrack” frequently played during the 500 days while he and his team, on behalf of the State of Hawaii, fought Trump’s Muslim Ban(s). As he entered the Supreme Court chamber on April 25, 2018, Katyal’s headphones were playing “Immigrants (We Get the Job Done)” and “My Shot,” while his family and Lin-Manuel Miranda were driving together to court to witness the historic oral argument. In a 5-4 decision, the conservative majority upheld the third version of the ban over vehement dissents (including one by Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, which pointed out the “stark parallels” between the majority opinion and the infamous Korematsu decision upholding the internment of Japanese Americans). To Katyal, Hamilton “can be understood as an even stronger dissent,” because it “helps pave the way toward reconceptualizing (or restoring) our political system and reminding us of the dignity and promise of America at its best.”
In “‘Cabinet Battle #1’: The Structure of Federalism,” Erwin Chemerinsky, dean and Jesse H. Choper Distinguished Professor at Law at the University of California Berkeley School of Law, examines what was at stake during the dramatic debate over the creation of a new Bank of the United States. Hamilton argued in favor and Jefferson argued against. In the end, with the Hamilton chorus singing, “It must be nice, it must be nice / to have Washington on your side,” the first president of the United States supported Hamilton. Congress created the Bank, which would exist for 20 years until its charter expired. It was recreated in 1816 during Madison’s presidency.
When the State of Maryland attempted to tax the Bank, it triggered what Chemerinsky calls “the most important Supreme Court decision in American history defining the scope of Congress’s power and the relationship between the federal government and the states.” Chief Justice John Marshall used his opinion in that case, McCulloch v. Maryland (1819), to broadly construe Congress’s powers and narrowly limit the authority of state governments to impede the federal government, echoing the views Hamilton had presented in the Federalist Papers 32 years earlier. In response to the argument that the Supreme Court was overreaching in its expansive interpretation of congressional power, Chief Justice Marshall held, in what Chemerinsky calls “some of the most famous words in United States law,” that in “considering this question, then, we must never forget that it is a constitution we are expounding.” Hamilton, who had been tragically killed by Aaron Burr 15 years earlier, would have been delighted to see the vindication of his vision of the American government.
Other intriguing essays explore the decline of dueling in favor of libel suits; the conflict between Jefferson’s agrarian, aristocratic, and feudal economic model and Hamilton’s more modern market economy; Hamilton’s celebration of the right to protest; Hamilton’s interplay with issues of copyright law, fair use, and the nature of transformative works of art; the interpretation of Hamilton through Jacques Derrida’s theory of deconstruction; Hamilton and development of corporate boards of directors; and, fittingly as the last essay, Hamilton and death.
Tucker has created a marvelous collection of essays. Bret D. Asbury, a professor of law and Tucker’s colleague at the Drexel University Thomas R. Kline School of Law, captures the theme of many of them. “At its best,” Asbury writes, “the inversion of hierarchies causes audiences to rethink familiar tropes and promote intellectual discovery.” He suggests that “Miranda invites us to reimagine the nation’s Founding through a series of different lenses, inverting multiple hierarchies (rich/poor, native born/immigrant, legitimately/illegitimately born, white/nonwhite, man/woman, high/low culture, and other Founders/Hamilton).” Acting together, these inversions “ensure that few leave Hamilton regarding the period and characters depicted in the same way as when they entered.” The same can well be said of this smart and original book.