In their dissent on June 28, 2012, they wrote: “If Congress can reach out and command even those furthest removed from an interstate market to participate in the market, 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.’” They footnoted Hamilton’s Federalist Paper No. 33.
That sounded pretty authoritative. After all, Hamilton was one of the strongest advocates for the federal powers in the Constitution and here he was offering a prescient warning about “Obamacare” from the distant past of 1788. The only problem was that Scalia and his cohorts were turning Hamilton’s words inside out.
In Federalist Paper No. 33, Hamilton was not writing about the Commerce Clause. He was referring to clauses in the Constitution that grant Congress the power to make laws that are “necessary and proper” for executing its powers and that establish federal law as “the supreme law of the land.”
And Hamilton wasn’t condemning those powers, as Scalia’s opinion would have you believe. Hamilton was defending the two clauses by poking fun at the Anti-Federalist alarmists who had stirred up opposition to the Constitution with warnings about how it would trample America’s liberties. In the cited section of No. 33, Hamilton is saying the two clauses had been unfairly targeted by “virulent invective and petulant declamation.”