The American Founding is the gift that keeps on giving. Generations of historians, political scientists, and popular writers have mined this seemingly bottomless quarry to investigate the sources of American political thought, to trace the development of American ideas and institutions over time, and to glean lessons for the present. Given how much of the Founding has already been surveyed, one might be forgiven for thinking that there is little left to unearth. Fortunately, both Kate Elizabeth Brown’s Alexander Hamilton and the Development of American Law and Jack N. Rakove’s A Politician Thinking provide fresh insights into two founders who have already attracted a great deal of attention. However, they do so by taking very different approaches to their respective subjects. Whereas Brown maps out territory that has gone largely unexplored in Hamilton scholarship and leads to striking new discoveries, Rakove excavates terrain that has already been well traversed by students of Madison in order to reach a deeper understanding of his mode of reasoning. The result in the first case is a panoramic view of Hamilton’s achievements that offers glimpses at his lasting influence on American law. The result in the second is a cross-sectional view of major shifts in Madison’s thinking that reveals the process through which he arrived at his ideas.

Brown’s meticulously researched book will be of interest to scholars of American political thought, Hamilton specialists, and students of American political development. The author presents plentiful evidence to support her proposition that “Hamilton deserves to be remembered as a father of American law” (p. 2). Despite the political losses that he and other Federalists suffered at the hands of Jeffersonian Republicans, she contends that Hamilton ultimately prevailed over his rivals in establishing a system of law that structured norms of legal interpretation, encouraged interbranch cooperation, shaped relations between the federal and state governments, and informed judicial reasoning well into the nineteenth century. So far-reaching was his influence that even attorneys working for the Jefferson and Jackson administrations invoked his ideas on the discretionary powers of the executive, and lawyers on both sides of court cases—including McCulloch v. Maryland—relied on them.

Brown’s examination of Hamilton’s careers as a lawyer and an administrator expertly guides the reader through technical points of law concerning real property, admiralty, marine insurance, and commerce. One of the rewards of this tour through his work as secretary of the treasury and as an attorney is a wealth of new information about Hamilton’s behind-the-scenes activities, from his staging of court cases to his handling of petitions involving various financial claims against the federal government originating from the Revolutionary War. Brown provides a richly detailed account of the day-to-day decisions facing a conscientious administrator who exploited silences and gaps in the law to develop standardized and reasonable administrative rules and practices that would guide his subordinates in the Treasury Department, whether they involved the collection of customs fees or the inspection of distilleries. But it would be a mistake to conclude from this that Hamilton was single-mindedly focused on expanding executive power. A revealing episode described by Brown involves a customs inspector who petitioned Washington for a pardon after he unwittingly violated a recently passed customs law stipulating that informants were entitled to receive half of any fines owed to the federal government. The account of this incident illustrates how diligently Hamilton sought to balance competing interests (including the property rights of the informant, justice toward the customs officer who acted in ignorance of the law, and the need to uphold the president’s pardon power) in a manner consistent with statutory and constitutional law.

In addition to expanding knowledge of Hamilton’s efforts to establish a more coherent system of law, Brown deepens and complicates our understanding of Hamilton’s views on the relationship between the branches of the federal government and between the states and the federal government. In the author’s view, Hamilton’s promotion of what she calls “functional concurrence” and “federal concurrence” constitutes his “most profound influence on American law” (p. 10).

Brown joins many others in noting that Hamilton sought to enlarge the role of the executive branch in American politics by exploiting its capacity to act with energy and discretion. However, she argues, Hamilton believed that discretion was always to be “guided and constrained by the law” (p. 22). In making full use of his existing authority as secretary of the treasury, Hamilton also sought—and received—additional discretionary powers from Congress (e.g., to grant relief from penalties incurred from inadvertent violations of the law). She argues that statutes such as the Remitting Act helped Hamilton achieve his overarching policy goal of maximizing revenue collection by creating a more streamlined and standardized process that relied on “invert[ing] and entwin[ing] the typical functions of executive and judiciary” (p. 62). Moreover, Hamilton’s envisioned role for the executive allowed for and encouraged “interbranch cooperation” (p. 66). Brown shows that Hamilton promoted a collaborative relationship between executive and judicial officials that resulted in the blurring and sharing of their largely discretionary powers. Not only did he frequently look to federal judges for assistance in administering the law, but he also played a critical and ultimately influential role in construing the meaning of various federal statutes and of numerous provisions in the Constitution.

Alexander Hamilton and the Development of American Law also adds complexity and nuance to understandings of Hamilton’s views on the powers and responsibilities of the states. Contrary to scholars who have suggested that his aggressive defense of federal powers entailed the erosion if not the dissolution of state power, Brown claims that he sought to harmonize the established powers and institutions of the states with the still largely “inchoate powers” (p. 11) of the federal government in pursuit of commonly shared constitutional ends. Working from a theory of federal concurrence that he articulated as early as the ratification debates, the treasury secretary defended the right of both the state and federal governments to tax many—though certainly not all—of the same objects, and employed the fiscal powers of the national government in ways that provided significant benefits to the states. Moreover, he contributed to a system of concurrent jurisdiction in which state and federal courts increasingly cited each other’s opinions.

Despite the examples of state and federal cooperation cited by Brown, the evidence presented will likely do little to alter Hamilton’s reputation as a nationalist. The states still come across as means toward the achievement of national ends determined mainly at the national level and directed by national magistrates. For instance, Brown’s fascinating discussion of Hamilton’s efforts to attract foreign investment through trusts, equitable arrangements, and other legal tools specific to the states will do little to dispel the impression that the states were convenient instruments rather than respected and autonomous partners. Indeed, when seen in the context of his shrewd and inventive efforts on behalf of a diverse array of clients, the safest conclusion is not that Hamilton was committed to federalism on principled grounds but that he was an astute lawyer ready to use whatever legal means were available (e.g., dilatory strategies, change of jurisdiction, settling out of court, use of technicalities, petitions to the legislature) in pursuit of his cause.

If Brown’s Hamilton comes across as a confident political actor who modified the means he used in specific circumstances to achieve relatively fixed ends, Rakove’s Madison appears as a theorist who adapted his ideas on fundamental political and constitutional questions to meet changing circumstances. The “thinking” in the title of Rakove’s book refers to an uncertain activity, rather than a finished—let alone polished—product.

Focusing on the period between Madison’s entry into public service and the formation of the party system during the Washington administration, A Politician Thinking presents the Virginian as a theoretical problem solver wrestling with the major political challenges of the day. Rakove contends that Madison’s reflections on the country’s problems forced him to reconsider regnant republican ideas regarding the role of public opinion and to rethink the essential role of rights (e.g., as protections against government or intended to protect one part of the community from another). As a result, Madison ended up rebutting Montesquieu’s pronouncements on the separation of powers, the optimal size of a republic, and other bits of conventional wisdom that could stand in the way of desperately needed changes.

Madison’s contributions to The Federalist get their fair share of attention, but Rakove argues that the Virginian produced his best thinking not when he was trying to persuade others but, rather, when he was reasoning through problems in writings that were meant to remain private, most notably “The Vices of the Political System of the United States,” a memorandum that Madison wrote in preparation for the Constitutional Convention. This memorandum, which has received considerable attention in previous studies, exemplifies Madison’s efforts to develop innovative diagnoses and prescriptions for the political ailments that afflicted the fledgling republic, including the problems of federalism and the “multiplicity,” “mutability,” and “injustice” of state legislation. According to Rakove, the hallmarks of Madison’s thinking include the ability to draw relevant lessons from history, the capacity to modify ideas based on his own experience, “moderation” in approaching vexing questions, and a faculty for “reason[ing] in recognizably game-theoretical terms” (p. 46).

Rakove attributes Madison’s dramatic shift from a fervent nationalist in the 1780s to the leading advocate of strict constructionism in the House during the 1790s to a deeply empirical and pragmatic disposition that made him receptive to new evidence. The importance of history and lived experience for understanding the Founders (either collectively or as individuals) has been well recognized in scholarship for decades, but the suggestion that Madison was an early practitioner of game-theoretic reasoning is a surprising claim. Using Madison’s reflections on the federal system to illustrate his point, Rakove argues that he examined the calculations that politicians made concerning the preferences and incentive structures facing interested parties to understand why it was so difficult to secure compliance with national laws aimed at the common good. Described in such broad and general terms, however, this label does little to set Madison apart from many other thinkers in the history of political thought (including Hobbes, Bernard Mandeville, and Hume) or even some of his contemporaries.

Far more compelling than Rakove’s assertions about the originality of Madison’s contributions to political thought (e.g., the claim that he discovered “the ease with which economic interests capture the legislative process” [p. 55]) is the way that he carefully charts shifts in Madison’s views on various political and constitutional questions. The most significant shift concerns his assessment of the leading threat to liberty in the American system. Throughout the 1780s and during the first few years under the Constitution, Madison believed that the legislature’s “impetuous vortex” constituted the most dangerous feature of a republican form of government. But after the fierce debate over Washington’s power to issue a proclamation of neutrality in 1793, the perils of executive power began to loom larger in his mind.

Like many other recent books on Madison, A Politician Thinking presents this Founder as a deeply undemocratic thinker who was skeptical about the quality of public opinion, held a “bleakly conservative . . . view of the political intelligence of ordinary citizens” (p. 102), sought to limit popular participation in constitution making, and consistently favored the interests of his own privileged class against the aspirations of those below it. Indeed, in the years leading up to the Constitutional Convention, Madison had reached the sobering conclusion that the misbehavior of lawmakers on everything from the issuance of paper money to the pursuit of sectarian policies could be blamed on the vices of the people themselves. However, Rakove detects a significant shift in Madison’s thinking about the role of public opinion after 1788. The constitutional ratification debates revealed that it was possible to shape—and thereby improve—public opinion. He also came around to Jefferson’s way of thinking about the pedagogical benefits of a bill of rights as a result of their epistolary exchanges. As illustrated by his party press essays from the early 1790s, Madison ended up believing that (presumably under his tutelage) the people could be turned “into constitutional monitors” (p. 160).

Not all of Madison’s views changed for the better. For example, his thinking about slavery—which receives very little attention in Rakove’s book—reveals the limits of Madison’s intellectual dexterity when his personal interests were directly implicated. Nevertheless, Rakove’s discussion provides a much-needed reminder about the importance of a politician’s mode of thinking. Despite their differences, both books suggest that what made Hamilton and Madison such effective politicians at particular points in their respective careers was their willingness to engage in evidence-based thinking free of the dogmatism that has become endemic to the party politics they helped create. In short, these books show that how a politician thinks matters just as much as what he or she thinks.