24/7 Federalist Papers 

Should the headings prove useful – or time is tight – subheadings are surveillable on the Detailed Table of Contents page: 

Federalist 1-17:  Unity of the States Is Essential 

Federalist 1:  A Question for the Ages

THE FATE OF THE UNITED STATES OF AMERICA presents the most interesting and important question in the world:  whether societies of humans really are capable of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force. We have finally reached the era in which that decision can be made.

The Breadth of the Constitution 

The Constitution for the United States of America comprehends in its consequences nothing less than the existence of a nation, the safety and welfare of its parts, and the fate of its empire.  Its construction was directed by a judicious estimate of our true interests, unperplexed and unbiased by considerations unconnected to the public good. Its passage adds to the good fortune of mankind. To this philanthropic spirit we can add the spirit of patriotism that we and our posterity must all feel for the event.  

Some Invariably Oppose Change, Some Favor Confusion, and Some Hope for Impossible Alternatives 

The Constitution affected too many particular interests and local institutions for its opponents not to have raised issues foreign to its merits.  Their views, passions and prejudices little favored the discovery of truth. Resistance arose from those officeholders whose power, emolument, or consequence would be diminished. Some harbored the perverted ambition to aggrandize themselves by confusion of the issues.  Others flattered themselves with fairer prospect of elevation to higher positions in separate confederacies than from union under one Federal government. The design of these papers, however, is not to dwell upon observations of this nature.

*  *  *

The fate of the United States of America presents the most interesting and important question in the world:  whether societies of humans really are capable of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force. We have finally reached the era in which that decision can be made.

*  *  *

Minds Are often Led Astray by Preconceived Jealousies and Fears

It is unfair to question the motives of interested or ambitious individuals merely because their situations might subject them to suspicion.  Such individuals are frequently motivated by upright intentions.  Opposition often springs from the honest errors of minds led astray by preconceived jealousies and fears.  The causes of false bias to the judgment are so numerous and powerful that wise and good individuals are on the wrong as well the right side of questions of the first magnitude to society.  This circumstance furnishes a lesson of moderation to those who are ever so much persuaded of their being in the right in any controversy.  

Base Instincts Operate Alike on Those Who Support the Truth as well as Those Who Oppose It 

A further reason for caution is the uncertainty whether those who advocate the truth are influenced by purer principles than their antagonists.  Ambition, avarice, personal animosity, party opposition, and less laudable motives operate alike on those who support as well as those who oppose the right side of any question.  To these can be added the spirit of intolerance that political parties sometimes promote.  In politics as in religion, it is absurd to persuade by fire and sword.  Heresies in either can rarely be cured by persecution.

*  *  *

The causes of false bias to the judgment are so numerous and powerful that wise and good individuals are on the wrong as well the right side of questions of the first magnitude to society. This circumstance furnishes a lesson of moderation to those who are ever so much persuaded of their being in the right in any controversy. 

*  *  *

Be Wary of the Populist Who Jealously Champions the Rights of the People

A vigorous government is essential to liberty. In all cases of great national discussion, moderation is besieged with torrents of angry and malignant passions.  Each side evinces the justness of its opinions and seeks to increase converts by loudness of declamation and bitterness of invective. On the one hand, a zeal for energetic and efficient government will be branded the offspring of a despotic temperament. On the other hand, those who appear overly solicitous of the dangers to the rights of the People can be denounced as pretentious populists opposed to the public good.  Of the two, history teaches the more certain road to the introduction of despotism is paved by those who appear the most jealous of any danger to the rights of the People. 

Jealousy is a defect which results from intense love. It originates in the head rather than the heart. It can infect a noble enthusiasm for liberty with a narrow-minded spirit of distrust. A dangerous ambition for honor or preference can lurk behind the specious mask of zealous advocacy for the rights of the People. Of those who have overturned the liberties of republics, the greatest number began their careers paying obsequious court to the People. They commenced as demagogues, and ended as tyrants. 

*  *  *

But in the private circles of those who oppose the Constitution, we will always hear whispered how one part might be 'improved' – or even 'removed.' Doctrines like these are quietly propagated until they have enough votaries to countenance their open avowal. Such doctrines are calculated to fan dissension and promote dismemberment of the United States.  They are as clear in object as unsound in practice. 

*  *  *

Those Who Oppose the Constitution Are Subtle, So Be Wary of Any Campaign to “Improve” It 

It might now be thought superfluous to offer arguments to prove the utility of forming the United States. But in the private circles of those who oppose the Constitution, we will always hear whispered how one part might be “improved” – or even “removed.”  Doctrines like these are quietly propagated until they have enough votaries to countenance their open avowal. Such doctrines are calculated to fan dissension and promote dismemberment of the United States.  They are as clear in object as unsound in practice.   

The Objects of the 85 Papers   

Our Constitution plots the safest course for the liberty, dignity, and happiness of the People.  These papers will discuss the following particulars:

The utility of the Constitution to our political prosperity – 

The insufficiency of the Articles of Confederation to preserve that prosperity –  

The necessity of an energetic Federal government to attain this object – 

How the Constitution conforms to the true principles of republican government – 

How the Constitution is based on State constitutions – and lastly –  

The additional security its adoption affords to the preservation of republican government, liberty and prosperity.

In Federalist 2, I examine the advantages of creating the United States, and explain the evils and dangers to every State from its dissolution.

Hamilton

Federalist 2:  The Need for Government and a Single Union

WHENEVER OR HOWEVER INSTITUTED, government is indispensable.  And to vest it with the requisite powers, the People must cede some natural rights. This was done at a very early period in our history, when the value and blessings of a union of the States induced the People’s representatives to institute a Federal government to preserve and perpetuate those advantages. It was formed when homes were in flames and many were bloodied. It is therefore unsurprising the government they instituted was found greatly deficient, since time was insufficient to undertake a calm and mature reflection on what would constitute a wise and well balanced government for a free People. 

Here I respond to those who seek to divide  the States into distinct confederacies or sovereignties and thereby  forsake the safety and happiness of our constitutional union.    

A Single Union Is Greatly Preferable to Several

A multitude of circumstances favor a single union over several.  America consists of a single, connected, fertile, and expansive country, with a variety of soils and productions, watered by innumerable streams and navigable waters, forming natural highways for easy communication and the mutual transportation and exchange of various commodities.   

Providence also has given America one united People, who are descended from the same ancestors, speak the same language, profess the same religion, are attached to the same principles of government, and by their joint counsels, arms and efforts, fought side by side through a long and bloody revolutionary war, and nobly established general liberty and independence.

This country and this People seem to have been made for each other, and they should never be split into a number of unsocial, jealous, and alien sovereignties. Similar sentiments have hitherto prevailed among all orders and denominations of individuals among us.  We have uniformly been one People, with each individual citizen everywhere enjoying the same national rights, privileges, and protections. As a nation, we have made peace and war, vanquished our common enemies, formed alliances, and adopted treaties, compacts, and conventions with foreign states.

The Constitutional Convention Was the Greatest Ever Convened to Establish a Government 

The Constitutional Convention of 1787 was composed of intelligent people committed equally to union and liberty.  They were persuaded that security for both could only be found in a national government, wisely framed and articulated with one voice. The Convention itself was composed of individuals who possessed the confidence of the People. Many were highly distinguished by patriotism, virtue, and wisdom. They undertook the arduous task in the mild season of peace, with minds unoccupied by other subjects. They passed many months in cool, uninterrupted, and daily consultation. Without being awed by power or influenced by any passion except love of country, they finally presented and recommended to the People the constitutional plan produced by joint and unanimous councils.

The composition of the 1787 Constitutional Convention resembled that of the memorable Continental Congress of 1774, which the majority of citizens believed was composed of wise and experienced individuals who – being convened from different parts of the country – brought with them and communicated to each other a variety of useful information.  During the time shared together in the Congress – and inquiring into and discussing the true interests of the colonies – they undoubtedly acquired a very accurate knowledge of those interests.

Each member of the 1774 Congress was individually interested in public liberty and prosperity. Each was thus induced by inclination as much as by duty to recommend only those measures found prudent and advisable after the most mature of deliberations. These and similar considerations induced the People to rely greatly on the judgment and integrity of that Congress – and to follow its advice – although only a few of it members were generally known or fully tested – and notwithstanding the various arts and endeavors employed to defeat its proposals.

*  *  *

The Constitutional Convention, every Congress before it, and the People have invariably believed the prosperity of America depended upon its union. Those who deprecate its importance have no good purpose in mind.  Every citizen should see that this will be the end of our greatness. 

*  *  *

With even greater reason we can respect the judgment and advice of the 1787 Convention that composed the Constitution. Several of the most distinguished members of the 1774 Congress also served as members of the Constitutional Convention. Those individuals – who had proven their patriotism and ability – were familiar with the acquisition of political information, and they carried into the Convention their accumulated knowledge and experience.

Their plan was recommended only – and not imposed – so that it would receive neither blind approval nor blind disapproval, in the hope that it would encourage the sedate and candid consideration the magnitude and importance of the subject demand. But this was more of a wish or hope than an expectation, as shown by opposition to ratification of the Constitution. 

The People Ought to Reject Arguments Against the Constitution Just As They Rejected the Arguments Against the Proposals of the Congress of 1774  

The Continental Congress of 1774 recommended certain measures whose wisdom was ultimately proven true. But their proposals soon were attacked by the press, by officers of the government who obeyed the dictates of personal interest, and by others still – who from mistake, ambition, or the undue influence of former attachments – were  unstoppable in their efforts to persuade the People to reject the advice of that patriotic Congress. Although many were deceived and deluded, the great majority of the People reasoned and decided judiciously, to their happiness.  

The Constitutional Convention, every Congress before it, and the People have invariably believed the prosperity of America depended upon its union.  Those who deprecate its importance have no good purpose in mind.  Every citizen should see that this will be the end of our greatness. 

In Federalist 3, I explain why a Federal government will provide greater safety, less war, and more peace.  

Jay

Federalist 3: A Federal Government Will Provide Greater Safety, Less War, and More Peace

AN INTELLIGENT AND WELL-INFORMED PEOPLE seldom adopt and steadily persevere for many years in an erroneous opinion respecting their interests.  The People of America – intelligent and well-informed – have for a long period uniformly entertained the importance of their continuing firmly united under one Federal government vested with sufficient powers for all general and national purposes.  Their opinion merits great respect.

Here I examine whether a cordial union under one efficient Federal government affords the best security that can be devised against hostilities from abroad, or whether this can be more perfectly and punctually done by thirteen or more separate States or  by three or more distinct confederacies. 

A Federal Government Will Provide the Greatest Safety from All Sources of Conflict

The attention of wise and free individuals necessarily turns first to providing for their own safety. The safety of the People encompasses a great variety of circumstances and considerations, and naturally affords great latitude to those who wish to define it.  For the moment, I will limit myself to those aspects of safety bearing on the preservation of peace and tranquility against dangers from foreign arms and influence, as well as from dangers of the like kind arising from domestic causes.  As the dangers of foreign arms and influence comes first in order, it should be examined first, to ascertain whether the People are not right in their opinion that a cordial union – under an efficient national government – affords them the best security that can be devised against hostilities from abroad.   

The number of wars which have happened or will happen in the world will always be found to be in proportion to the number and weight of the causes – whether real or pretended – which provoke or invite them.  If it should turn out that the United States will give fewer just causes of war than a disunited America, the United States will tend most to preserve the People in a State of peace with other nations.

*  *  *

The People of America – intelligent and well-informed – have for a long period uniformly entertained the importance of their continuing firmly united under one Federal government vested with sufficient powers for all general and national purposes.  Their opinion merits great respect.

*  *  *

The just causes of war mostly arise from either a violation of treaties or direct violence. We have already formed treaties with no less than six foreign nations. Except for the one with Prussia, all the treaties are maritime, and thereby able to annoy and injure us. Our country also has extensive commerce with the countries of Portugal, Spain, and Britain, and we share borders with the territories of Spain and Britain. It is of high importance to the peace of America that she observe the laws of nations towards all these powers, and to me it appears evident this will be more perfectly and punctually done by one national government than it could be either by thirteen separate States or by three or four distinct confederacies.  

A Federal Government Will Have Wiser Counsel than States or Confederacies

   With the establishment of an efficient Federal government, the best individuals in the country will not only consent to serve, but also will generally be appointed to manage it.  Unlike assemblies, senates, courts of justice, and executive departments in the States – which can be filled with individuals of town, country, or other limited influence – more general and extensive reputation for talent and other qualifications will be necessary to recommend individuals to offices under the Federal government.  A national government will have the widest field for choice, and never experience a want of proper persons. The administration, political counsels, and judicial decisions of one Federal government will be more wise, systematical, and judicious than those of individual States, and consequently more satisfactory with respect to other nations, as well as more safe with respect to us.

A Federal Government Will Speak with One Voice

Under a Federal government for the United States, treaties, articles of treaties, and the laws of nations always will be expounded in one sense and executed in the same manner. Adjudications on the same points and questions by a number of different States or confederacies are less likely to be consistent or in accord, due to the variety of courts and judges that different and independent governments will appoint, and the influence local laws and interests will have on them. 

A Federal Government Will Be Less Affected by Local Circumstances

The prospect of present loss or advantage may often tempt the governing party in one or two States to swerve from good faith and justice.  Unless those temptations reach other States, they will have little or no influence on the Federal government. These temptations would prove fruitless, and good faith and justice be preserved, as shown the treaty of peace with Britain.  But even where the governing party in a State should be disposed to resist the temptation to swerve from good faith and justice, upon an actual or perceived loss or advantage affecting a great number of a State’s inhabitants, the governing party may find itself unable to prevent any injustice meditated, or to punish the aggressors.  The Federal government – not being affected by those local circumstances – will neither be induced to commit the wrong themselves, nor want power or inclination to prevent or punish its commission by others.

A Federal Government Will Provide Fewer Just Causes of War

Either designed or accidental violations of treaties or the laws of nations can afford just causes of war.  Such just causes are less to be apprehended under one general government than under several lesser ones, and in that respect the former most favors the safety of the People.

As to those just causes of war which proceed from direct and unlawful violence, one good national government affords vastly more security against dangers of that sort than can be derived from any other quarter.  Direct and unlawful violence is more frequently caused by the passions and interests of a part of a community rather than the whole; and by one or two States rather than an entire nation.  None of the wars with the preexisting tribes and nations of America has been occasioned by aggressions of the Federal government, feeble as it is.  But there are several instances where hostilities with these groups were provoked by the improper conduct of individual States, which were either unwilling or unable or to restrain or punish offenses, thereby occasioning the slaughter of many innocent inhabitants. The States bordering on foreign nations – acting under the impulse of sudden irritation and a quick sense of apparent interest or injury – will be most likely to excite war with these tribes and nations by direct violence.  Nothing can obviate that danger so effectively as a Federal government, whose wisdom and prudence will not be diminished by the passions which actuate the parties immediately interested.

A Federal Government Will Settle Wars More Easily 

Not only will fewer just causes of war be given by a Federal government, it will also be more in its power to accommodate and settle them amicably.  A national government will be more temperate and cool, and thus have more in capacity to act advisedly than an offending State.  The pride of States as well as of individuals naturally disposes them to justify all of their actions, and opposes their acknowledging, correcting, or repairing their errors and offenses. A Federal government will not be affected by this pride, but instead will proceed with moderation and candor to consider and decide on the means most proper to extricate them from the difficulties which threaten them. Besides, it is well known that acknowledgments, explanations, and compensations from a strong, united nation are often accepted as satisfactory, while such offers would be rejected as unsatisfactory if given by a state or confederacy of little consideration or power.

The Example of Genoa

In 1685, the state of Genoa offended Louis XIV and endeavored to appease him.  Louis demanded they should send their chief magistrate and four senators to France to ask his pardon and receive his terms.  Genoa was obliged to submit for the sake of peace.  Would Louis either have demanded or received a like humiliation from Spain, Britain, or any other powerful nation?

In Federalist 4, I explain why a disunited America will be subject to undue foreign influence.  

Jay

Federalist 4: A Unified Federal Government Will Give Fewer Causes for War

In Federalist 3, I explained why a Federal government would best secure the safety of the People against the dangers to which they would be exposed in the event a just cause for war was given to other nations. With a Federal government, not only would just cause be more rarely given, but if given, more easily accommodated than by individual State governments or confederacies of States.   

The safety of the People of America against dangers from foreign force depends not only on their forbearing to give just causes of war to other nations, but also on their placing and continuing themselves in such a situation as not to invite hostility or insult, since it is obvious there are pretended causes of war as well.

It is too true – however disgraceful it may be to human nature – that nations in general will make war whenever they have a prospect of getting anything by it.  And absolute monarchs will often make war when their nations are to get nothing by it, other than for purposes and objects merely personal, such as thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans. These and a variety of other motives affecting only the mind of the sovereign – especially an absolute sovereign – often lead such persons to engage in wars not sanctified by justice or the voice and interests of the People.   

Independently of these inducements to war, there are others which affect nations as often as monarchies, and which can grow out of relative situation and circumstances.

Commercial Rivalries Are Inducements to War

We are rivals with Britain, France and other European nations in navigation and the carrying trade. For instance, we can supply the markets of France and Britain with fish more cheaply than they can themselves, even with their duties on foreign fish.  We shall deceive ourselves if we suppose any of them will rejoice to see our trade flourish, since our carrying trade cannot increase without in some degree diminishing theirs. Thus it will be in their interest to adopt policies to restrain our trade rather than promote it.

*  *  *

It is too true – however disgraceful it may be to human nature – that nations in general will make war whenever they have a prospect of getting anything by it.

*  *  *

In the trade to China and India, we now have advantages which they had monopolized, by supplying ourselves with commodities which we used to purchase from them.  And the extension of our own commerce in our own vessels cannot give pleasure to any nation which possesses territory on or near this continent.  Spain thinks it convenient to shut the Mississippi against us on the one side, and Britain excludes us from the Saint Lawrence on the other.  Both nations also restrict use of the ocean between them and us in order to control mutual intercourse and traffic.  It is easy to see how jealousy and uneasiness may gradually slide into the minds and cabinets of other nations.  We should not expect they will regard with indifference and composure the advancement of our union in power and consequence by use of land and sea.

The value and excellence of our productions, the enterprise of our merchants and navigators, and the circumstance of vicinity give us a greater share in the advantages afforded by those territories, thereby interfering with the wishes or policy of these other sovereigns.

A Single Federal Government Provides Greater Strength, Safety, and Uniformity of Policy and Action with Respect to Other Nations

The People of America are aware that inducements to war may arise out of the circumstances described above, as well as from others not so obvious at present. Whenever such inducements may find fit time and opportunity for operation, pretenses to color and justify them will not be wanting.  A Federal government will tend to repress and discourage these pretenses for war rather than inviting them.  This is the best possible state of defense, and it necessarily depends on the unity of the government, arms, and resources of the entire country.

One Federal government is better than one composed of any number of States or confederacies. One government can collect and avail itself of the talents and experience of the ablest individuals, in whatever part of the United States they may be found. It can move on uniform principles of policy. It can harmonize, assimilate, and protect the several parts and members, and also extend the benefit of its foresight and precautions to each.  In the formation of treaties, it will regard the interest of the whole, and the particular interests of the parts as connected with the whole.

State Militias Under Presidential Control Will Be More Uniform 

A Federal government can apply the resources and power of the whole to the defense of any particular part more easily and expeditiously than State governments or separate confederacies could possibly do, due to their want of unity and concert of system. It also will place the State militias under one plan of discipline and – by putting their officers in a proper line of subordination to the President – consolidate them into one corps, thereby rendering them more efficient than if divided into thirteen State militias or three or four militias of separate confederacies.

The British Example of Unified Militias  

The case of Great Britain proves the point.  What would the militia of Britain be if the English militia obeyed the government of England, if the Scotch militia obeyed the government of Scotland, and if the Welsh militia obeyed the government of Wales? In the event of invasion, would those three governments be able – if they agreed at all – to operate with all their respective forces against the enemy so effectually as the single government of Britain?

The same is true of the British fleet.  We have heard much of the fleets of Britain, and the time may come when the fleets of America engage their attention.  If the national government had not so regulated the navigation of the constituent parts of Britain as to make it a nursery for seamen – nor called forth all the national means and materials for forming fleets – their prowess and thunder would never have been celebrated.  If England, Scotland, Wales and Ireland had their own fleets under four independent governments, it is easy to perceive how soon they would each dwindle into comparative insignificance.

Dividing the United States Will Result in Weakness and Uncertainty

If America is divided into any number of States or confederacies, what armies could they raise and pay, and what fleets could they ever hope to have? If one was attacked, would another spend its blood and money for the defense of another?  

It is far more likely these other States or confederacies would remain neutral, whether through the flattery of specious promises offered by the aggressor, the seduction of an untoward fondness for peace, or the jealousy to see their neighbor diminished.  Such conduct, though unwise, would nevertheless be natural. The history of the states of Greece and other countries abounds with such events.  What has so often happened before would – under similar circumstances here – happen again.

Even if we assume a neighbor might be willing to help the invaded State or confederacy, how, when, and in what proportion would the aids of money and men be afforded? Who would command the allied armies, and from which States shall he receive his orders?  Who would settle the terms of peace, and what umpire shall decide disputes between them and compel acquiescence?

Various difficulties and inconveniences would be inseparable from such a situation. One national government, by contrast, would be free from all these embarrassments, and be far more conducive to the safety of the People by watching over the general and common interests and combining and directing the powers and resources of the whole.

Other Nations Will See Our Situation for What It Is

One thing is certain: whatever our situation – whether firmly united under one national government or split into a number of confederacies –  foreign nations will see it exactly as it is, and they will act toward us accordingly.

If they see that our Federal government is efficient and well administered, our trade prudently regulated, our militias properly organized and disciplined, our resources and finances discreetly managed, our credit re-established, and our People free, united and contented, they will be much more disposed to cultivate our friendship than provoke our resentment.   

On the other hand, what a poor and pitiful figure would America be in their eyes if they should find us either destitute of an effectual government – with each State doing right or wrong as its rulers may deem convenient – or split into three or four independent and probably discordant republics or confederacies – with one inclining to Britain, another to France, a third to Spain, and perhaps played off against each other by the three.    

These confederacies would become liable to their contempt, and then their outrage. The costly experience would prove again that when a People or family so divide, it never fails to be against themselves.  In Federalist 5, I explain why a divided America would be more prone to foreign influence and strife.

Jay

Federalist 5: A Divided America Would Be Prone to Foreign Influence and Strife

A Divided America Would Be Prone to Foreign Influence and Strife

WEAKNESS AND DIVISIONS AT HOME WOULD INVITE DANGERS from abroad, and nothing would tend more to secure us from these dangers than union, strength, and good government within ourselves, as I noted in Federalist 4. 

This copious subject is not easily exhausted. Queen Anne, in her letter to the Scottish Parliament on the 1st of July 1706, observed the importance of the union then forming between England and Scotland, and it merits repeating:

   “An entire and perfect union will be the solid foundation of lasting peace: It will secure your religion, liberty, and property; remove the animosities amongst yourselves, and the jealousies and differences betwixt our two kingdoms. It must increase your strength, riches, and trade; and by this union the whole island, being joined in affection and free from all apprehensions of different interest, will be enabled to resist all its enemies.”   (Emphasis added.) 

She added: “We most earnestly recommend to you calmness and unanimity in this great and weighty affair, that the union may be brought to a happy conclusion, being the only effectual way to secure our present and future happiness, and disappoint the designs of our and your enemies, who will undoubtedly, on this occasion, use their utmost endeavors to prevent or delay this union.”  (Emphasis added.)

The Lessons from Great Britain

The history of Great Britain provides many profitable lessons for our use without payment of the price their experiences cost them. While it seems obvious to common sense that the people of such an island should be one nation, for ages they were divided into three, and almost constantly embroiled in quarrels and wars with one another. Even though their true interests with respect to the European mainland were really the same, the arts, policies, and practices of those continental nations kept the mutual jealousies of the three governments of the island perpetually inflamed. For a long series of years they were far more inconvenient and troublesome to each other than they were useful and assisting. 

The British Example Applied to a Divided America 

If the People of America divide themselves into three or four nations, would not the same thing happen? Would not similar jealousies arise, and be in like manner cherished? Instead of their being “joined in affection” and free from all apprehension of different “interests,” envy and jealousy would soon extinguish confidence and affection. Instead of pursuing the general interests of all of America, the partial interest of each confederacy would be the only objects of their policy and pursuits. Hence, like most other bordering nations, they would always be either involved in disputes and war, or living in the constant apprehension of them.

Superior policy and good management would probably distinguish the government of one above the rest. Their relative equality in strength and consideration would be destroyed. One cannot presume the same degree of prudence, foresight and sound policy would uniformly be observed by each of these confederacies for a long succession of years.

However it might happen – and happen it would – if any one of these nations or confederacies were to rise on the scale of political importance much above the degree of her neighbors, those neighbors would behold her with envy and fear.  Those passions would lead the neighbors to countenance and promote whatever might promise to diminish the importance of the prospering confederacy, and to restrain them from measures calculated to advance or even to secure her prosperity. The prospering confederacy would soon discern these unfriendly dispositions, and begin to lose confidence in her neighbors and to feel a disposition equally unfavorable to them.  Distrust naturally creates distrust, and by nothing is goodwill and kind conduct more speedily changed than by invidious jealousies and uncandid imputations, whether expressed or implied.

The Likely Conflict Between North and South

The North is generally the region of strength, and many local circumstances render it probable that in the near future the proposed northern confederacies unquestionably would be more formidable than any of the others. As soon as this became evident the young swarms of this northern hive might be tempted to gather honey in the more blooming fields and milder air of their luxurious and more delicate neighbors. The same ideas and sensations the northern islands formerly excited in the more southern parts of Europe would be aroused in the southern parts of America.  

The history of similar divisions and confederacies shows that northern and southern confederacies of States would be borderers rather than neighbors, who would neither love nor trust one another.  We would be prey to discord, jealousy, and mutual injuries.  We then would be formidable only to each other, a situation some other nations doubtless wish to see.  

Greatly mistaken are those who suppose alliances offensive and defensive might be formed between these confederacies, producing a union of wills, arms, and resources necessary to put and keep them in a formidable state of defense against foreign enemies.  Did the independent states into which Britain and Spain were formerly divided ever combine in such alliance, or unite their forces against a foreign enemy?

          The proposed confederacies would be distinct nations, each regulating its commerce with foreigners by distinct treaties. Since the productions and commodities are different and proper for different markets, so would those treaties be essentially different.  Different commercial concerns necessarily create different interests, with different degrees of political attachment to and connection with different foreign nations.  A foreign nation with whom a southern confederacy might be at war would be the one with whom a northern confederacy would be the most desirous of preserving peace and friendship. An alliance so contrary to the northern confederacy’s immediate interests would not be easily formed, and if formed, would not be observed or fulfilled with perfect good faith.

*  *  *

The history of similar divisions and confederacies showsthat northern and southern confederacies of States would be borderers rather than neighbors, who would neither love nor trust one another. We would be prey to discord, jealousy, and mutual injuries. We then would be formidable only to each other, a situation some other nations undoubtedly wish to see.

*  *  *

Alliances Between Distinct American Confederacies and Foreign Nations Would Destroy Unity 

It is far more probable that in America, as in Europe, neighboring nations – acting under the impulse of opposite interests and unfriendly passions – would frequently be found taking different sides. It would be more natural for these confederacies to apprehend danger from one another than from distant nations.

Each of them would be more desirous to guard against the others by the aid of foreign alliances, than to guard against foreign dangers by alliances between themselves. It would be natural to receive foreign fleets into their ports, and foreign armies into their lands. Lest we forget, it is far easier to receive foreign fleets and armies than to persuade or compel them to depart.  How many conquests did the Romans and others make by appearing as allies to the governments of those whom they pretended to protect?

Let candid persons judge, then, whether the division of America into any given number of independent sovereignties would tend to secure us against the hostilities and improper interference of foreign nations. 

In Federalist 6, I explain why republics are as subject as to rivalries, intrigues and wars as monarchies.

Jay

Federalist 6: The Causes of Human Hostility Are Innumerable

ONE MUST BE FAR GONE IN UTOPIAN SPECULATIONS to question whether the States of a disunited America would have frequent and violent contests with each other. We should not presume a lack of motives for such hostilities. Are not humans ambitious, rapacious, and vindictive? To anticipate harmony between a number of independent, unconnected sovereignties in the same neighborhood would be to disregard the uniform course of human events, and to set at defiance the accumulated experience of the ages.

In Federalist 3 through Federalist 5, I exposed the dangers a  disunited United States would suffer from the arms and arts of foreign nations. I now delineate dangers of a different and more alarming kind:  those which will flow from dissensions between the States themselves, and from domestic factions and convulsions.  

The Love and Jealousy of Power

The causes of hostility among nations are innumerable. Some have a general and almost constant operation upon the collective bodies of society.  One is the love of power: the desire for preeminence and dominion. Another is the jealousy of power:  the desire for equality and safety.  

The Commercial Rivalries of Nations

Other causes of hostility are more circumscribed – such as the rivalries and competitions between commercial nations – but these too maintain an equally operative influence within their spheres.  

The Rivalries of Passion

Still other causes of human hostility take their origin entirely in private passions, such as the attachments, enmities, interests, hopes and fears of leading individuals in their communities.  Individuals of this class – whether the favorites a king or a people – have in too many instances abused the confidence they possessed. They have assumed the pretext of some public motive, and sacrificed the national tranquility to personal advantage or personal gratification. More grounds of human hostility are discussed in Federalist 7. 

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The causes of hostility among nations are innumerable. Some have a general and almost constant operation upon the collective bodies of society. One is the love of power: the desire for preeminence and dominion. Another is the jealousy of power: the desire for equality and safety.

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The Case of Pericles and Athens

The celebrated Pericles of Athens attacked, vanquished, and destroyed another Greek city-state – at the expense of much of the blood and treasure of his countrymen – to satisfy the resentment of a woman. The same man was the primitive author of the famous and fatal Peloponnesian War which, after various vicissitudes, intermissions and renewals, terminated in the ruin of the Athenian commonwealth. 

The stimulus for his actions was either a private pique against another city-state, or to avoid his own prosecution for theft of public funds, or to eliminate accusations that he had dissipated the funds of the state to purchase popularity, or from a combination of all these causes.

Cardinal Wolsey and Charles V of Spain

The ambitious Cardinal Wolsey, the prime minister to Henry VIII,  permitted his vanity to aspire to the papacy – with the aid of Emperor Charles V of Spain.  To this end, Wolsey precipitated England into a war with France, contrary to the plainest dictates of policy, thereby hazarding the safety and independence of England and Europe. If ever there was a sovereign who bid fair to realize the project of universal monarchy, it was Charles V, of whose intrigues Wolsey was at once both instrument and dupe.

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If ever there was a sovereign who bid fair to realize the project of universal monarchy, it was Charles V of Spain, of whose intrigues Cardinal Wolsey was at once both instrument and dupe.

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Recent Examples, Including Shays of Massachusetts

More recently, the bigotry of Madame de Maintenon, the petulance of the Duchess of Marlborough, and the cabals of Madame de Pompadour have led to ferments and pacifications of a considerable part of Europe. 

It is unnecessary to multiply examples of the agency of personal considerations in the production of great national events. Even those only superficially acquainted with the sources from which they are drawn will themselves recollect a variety of similar instances.  

One has lately happened among ourselves. If the leader of Shays Rebellion had not been a desperate debtor, it is doubtful Massachusetts would have been plunged into a civil war.

Visionaries and Schemers Alike Will Advocate Dismemberment of the United States 

Notwithstanding the concurring testimony of experience, there are still to be found visionary or designing individuals who stand ready to advocate the paradox of perpetual peace among the States even though they be dismembered and alienated from each other.  The genius of republics (say they) is pacific; the spirit of commerce has a tendency to soften the manners of men, and to extinguish those inflammable humors which have so often kindled into wars. Commercial republics like ours, the argument proceeds, will never be disposed to waste themselves in ruinous contentions with each other. They will be governed by mutual interest, and will cultivate a spirit of mutual amity and concord.

But we may ask, is it not the true interest of all nations to cultivate the same benevolent and philosophic spirit?  And if this be their true interest, have they in fact pursued it? Or has it not invariably been found that momentary passions and immediate interests have a more active and imperious control over human conduct than those general or remote considerations of policy, utility and justice? In practice, have republics been less addicted to war than monarchies?  Both are administered by individuals. 

The aversions, predilections, rivalries and desires of unjust acquisitions affect nations as well as kings.  Are not popular assemblies frequently subject to the impulses of rage, resentment, jealousy, avarice and other irregular and violent propensities?  The decisions of popular assemblies are often governed by a few individual leaders whose passions and views have infected those of the body or assembly.   

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One must be far gone in utopian speculations to question whether the States of a disunited America would have frequent and violent contests with each other.

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Has commerce hitherto done anything more than change the objects of war? Is not the love of wealth as domineering and enterprising a passion as that of power or glory? Have there not been as many wars founded upon commercial motives since that has become the prevailing system of nations, as were before occasioned by the cupidity of territory or dominion? Has not the spirit of commerce, in many instances, administered new incentives to the appetite, both for the one and for the other?  Let experience – the least fallible guide of human opinions – be consulted for an answer to these inquiries.

Experience Proves Even Commercial Republics Are Fallible    

Sparta, Athens, Rome, and Carthage were all republics.  Sparta was little better than a well regulated camp, and Rome was never sated of carnage and conquest. Athens and Carthage were commercial republics, yet were they as often engaged in wars – offensive and defensive – as the neighboring monarchies of the same times. 

Although it was a commercial republic, Carthage was the aggressor in the very war that ended in her destruction. Hannibal carried her arms into the heart of Italy and to the gates of Rome, before Scipio, in turn, gave him an overthrow in the territories of Carthage, and made a conquest of that commonwealth.

Venice, in later times, figured more than once in wars of ambition, until it became an object to the other Italian states and the pope, who formed a league with the kingdoms of France and Aragon, which gave a deadly blow to the power and pride of the haughty Venetian republic.

The provinces of Holland took a leading and conspicuous part in the wars of Europe, until they were overwhelmed in debts and taxes.

Commerce has been for ages the predominant pursuit of Britain, but few nations have been more frequently engaged in war. Although the representatives of its People compose one branch of the national legislature, they have championed aggression in numerous instances. 

There have been almost as many popular wars as royal wars. The cries of a nation and the importunities of its representatives have dragged its monarchs into war upon various occasions, or continued them in it, contrary to the monarch’s inclinations – and sometimes contrary to the real interests of the state. In that memorable struggle for superiority between the rival houses of Austria and Bourbon, Europe was long kept in a flame by the antipathies of the English – stirred by the avarice of their favored leader, the Duke of Marlborough – who protracted the war beyond the limits marked out by sound policy, and for a considerable time in opposition to the views of the court.

The wars of England and France have in a great measure grown out of commercial considerations – the desire of supplanting and the fear of being supplanted – either in particular branches of traffic or in the general advantages of trade and navigation.

From this summary of situations nearest our own, what reason can seduce us into an expectation of peace and cordiality between the members of a confederacy in a state of separation?  Have we not already seen enough of the fallacy and extravagance of those idle theories which have amused us with promises of an exemption from the imperfections, weaknesses and evils incident to society in every shape? We must awaken from the deceitful dream of a golden age, and adopt as a practical maxim for the direction of our political conduct that we – as well as the other inhabitants of the globe – are yet remote from the happy empire of perfect wisdom and perfect virtue. 

We need look no further than the extreme depression to which our national dignity and credit have sunk, the lax and ill administration of government, the revolt in a part of North Carolina, the late menacing disturbances in Pennsylvania, and the actual insurrections and rebellions in Massachusetts.  

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We must awaken from the deceitful dream of a golden age, and adopt as a practical maxim for the direction of  our political conduct that we – as well as the other inhabitants of the globe – are yet remote from the happy empire of perfect wisdom and perfect virtue. 

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The Enmity which Naturally Arises from Close Physical Proximity Can Be Alleviated by a League of Confederate Republics 

From long observation of the progress of human society, it is an axiom in politics that vicinity or nearness of situation can render nations natural enemies. L’Abbé de Mably, an intelligent writer on this subject, explained how a joinder of neighboring weak confederacies can overcome this natural tendency to animosity:  “Neighboring nations are naturally enemies of each other unless their common weakness forces them to league in a confederate republic, and their constitution prevents the differences that neighborhood occasions, extinguishing that secret jealousy which disposes all states to aggrandize themselves at the expense of their neighbors.”  

This passage at once points out the evil and suggests the remedy.

Hamilton

Federalist 7: The Causes of War

WHAT INDUCEMENTS WOULD THE STATES of a disunited America have to make war upon each other? Precisely the same inducements which have deluged in blood all the nations of the world at various times.

Disputes Over Territory Can Cause War 

Territorial disputes have at all times been one of the most fertile sources of hostility among nations.  The greatest proportion of wars that have desolated the earth have sprung from this origin. This cause would exist among us in full force.  Disputes have already arisen concerning the rights to the “crown lands,” which had not been granted at the time of the Revolution.  Congress appeased this controversy by prevailing upon the States to cede territories to the United States for the benefit of the whole.  Dismemberment of the United States would revive these disputes.  

The wide field of western territory provides ample theater for hostile pretensions, absent any umpire or common judge to interpose between the contending parties. If the past guides the future, the sword would sometimes be appealed to as the arbiter of these differences.  

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What inducements would the States of a disunited America have to make war upon each other?  Precisely the same inducements which have deluged in blood all the nations of the world at various times.

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Commercial Competition Can Cause War 

The competitions of commerce would be another fruitful source of contention.  The States less favorably circumstanced would be desirous of escaping from the disadvantages of local situation, and of sharing in the advantages of their more fortunate neighbors. Each State or separate confederacy would pursue a system of commercial policy peculiar to itself.  This would occasion distinctions, preferences, and exclusions, which would beget discontent.  The habits of intercourse, on the basis of equal privileges, to which we have been accustomed since the earliest settlement of the country, would give a keener edge to those causes of discontent than they would naturally have independent of this circumstance.  We should be ready to denominate injuries those things which were in reality the justifiable acts of independent sovereignties consulting a distinct interest.  

Each State or separate confederacy would pursue a system of commercial policy peculiar to itself.  The unbridled spirit of American enterprise would pay little respect to a State trade regulation intended to secure exclusive benefits to its own citizens.  Infractions of such regulations by one side – and the efforts to prevent and repel them on the other – would naturally lead to outrages, reprisals and wars.

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There is nothing humans differ so readily about as the payment of money. There is nothing more likely to disturb the tranquility of nations than their being bound to mutual contributions for any common object that does not yield an equal and coincident benefit. 

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Nonpayment of Debts Can Cause War 

A further cause of collision between separate States or confederacies of States would arise from the retirement of the public debt of the expired Union under the Articles of Confederation. The apportionment of those debts in the first instance, and their progressive extinguishment afterward, would be productive alike of ill-humor and animosity.  Settling on a rule would be postponed by real differences of opinion. The citizens of the States would clamor; foreign powers would urge for the satisfaction of their just demands, and the peace of the States would be hazarded to the double contingency of external invasion and internal contention.

There is nothing more likely to disturb the tranquility of nations than their being bound to mutual contributions for any common object that does not yield an equal and coincident benefit.  There is nothing humans differ so readily about as the payment of money.

Contract Violations Can Cause War

Laws in violation of private contracts are aggressions on the rights of those States whose citizens are injured by them.  Such laws are another probable source of hostility.  In some circumstances, a war of parchment would give rise to one of the sword, in order to chastise such atrocious breaches of moral obligation and social justice.

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Divide and command must be the motto of every nation that either hates us or fears us.

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Political Machinations Can Cause War 

A disunited America gradually would become entangled in all the pernicious labyrinths of European politics and wars; and by the destructive contentions of the parts into which she was divided.  Divided states or confederacies would likely become a prey to the artifices and machinations of powers which are equally the enemies of them all.   

Divide and command must be the motto of every nation that either hates us or fears us.

Hamilton

Federalist 8: War Between the States Will Lead to Devastation 

A DISUNITED UNITED STATES would be subject to all those vicissitudes of peace and war – and of friendship and enmity with each other – that are the lot of all neighboring nations who are not united under one government.   

War between the States would be more devastating than in those European countries where regular military establishments have long existed. Although malignant to liberty and economy, the disciplined armies kept on foot in continental Europe have rendered sudden conquests impracticable, ending the rapid desolation which used to mark the progress of war there.  

The Deterrent Effect of Fortifications and Garrisons 

Extensive fortifications mutually obstruct invasion.  Frontier garrisons and similar impediments exhaust the strength and delay the progress of an invader.  In former times, an invading army could penetrate into the heart of a neighboring country almost as soon as intelligence of its approach could be received. Now a comparatively small force of disciplined troops – acting on the defensive and with the aid of posts – is able to impede and frustrate the invasions of much larger forces.  European history is no longer one of nations subdued and empires overturned, but of towns taken and retaken, of battles that decide nothing, of retreats more beneficial than victories, and of much effort and little acquisition.

In a Disunited America, the People’s Jealousy of Fortifications and Garrisons Would Deter Construction, Leaving Borders Open to Predators 

If the States were disunited, the scene would be altogether reversed.  The jealousy of military establishments would postpone their construction for as long as possible. The lack of fortifications would leave the frontiers of one State open to another. Populous States would overrun their less populous neighbors with little difficulty. War between States or confederacies would be desultory and predatory, since plunder and devastation ever march in the train of irregulars. Individual calamities would characterize our military exploits.

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European history is no longer one of nations subdued and empires overturned, but of towns taken and retaken, of battles that decide nothing, of retreats more beneficial than victories, and of much effort and little acquisition.

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Liberty Eventually Would Succumb to the Desire for Security 

Safety from external danger is the most powerful director of national conduct.  Even the ardent love of liberty will gave way to its dictates after a time.  The violent destruction of life and property incident to war – or the alarm attendant to a state of continual danger – compel all nations to resort to standing armies for security, even though they tend to destroy civil and political rights.  To be more safe, citizens will at length become willing to run the risk of being less free.

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War between States or confederacies would be desultory and predatory, since plunder and devastation ever march in the train of irregulars. 

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Frequent war and apprehension of war require a state of constant preparation, which infallibly produces standing armies.  Standing armies certainly would exist with a dissolution of the Union.  Weaker states or confederacies would establish a regular and effective system of defense – by disciplined troops and fortifications – in order to put themselves upon an equality with their more potent neighbors. Such actions would necessarily strengthen the executive arm of the government, because war naturally tends to increase the executive power at the expense of the legislative authority.  Over time, their constitutions and governments would acquire a progressive direction toward monarchy.   

Smaller states or confederacies using such expedients would soon be superior to their neighbors – even those with greater resources – since vigorous governments with disciplined armies have often triumphed over large states or states of greater natural strength that did not have these advantages.   

In response to such actions by smaller states, the pride and safety of the more important states or confederacies would not long submit to this mortifying and adventitious superiority. They would quickly resort to similar means to reinstate themselves. Thus in a little time we would see established in every part of this country the same engines of despotism which have been the scourge of the Old World.  

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The violent destruction of life and property incident to war – or the alarm attendant to a state of continual danger – compel all nations to resort to standing armies for security, even though they tend to destroy civil and political rights.  To be more safe, citizens will at length become willing to run the risk of being less free.

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The Absence of Standing Armies in the Greek Republics Was Specific to Their Circumstances  

It may be asked, by way of objection, why did not standing armies spring up out of the contentions which so often distracted the ancient republics of Greece?  Several equally satisfactory answers may be given to this question.  Those republics were nations of soldiers. In the present day, the industrious habits of the American people – absorbed in the pursuits of gain and devoted to the improvements of agriculture and commerce – are incompatible with the condition of a nation of soldiers. Our means of revenue – so greatly multiplied by the increase of gold, silver, the arts of industry, together with the new science of finance – have produced an entire revolution in the system of war. Disciplined armies distinct from the body of the citizens are required only when hostilities are frequent.  

The Constitution Permits the Federal Government to Create a Federal Standing Army  

Standing armies are not prohibited in the Constitution, from which it may be inferred they may exist under it, although their actual composition remains uncertain.   

A Small Federal Standing Army Is Consistent with Liberty

Military establishments are quite different between a country often exposed to invasions – and therefore more apprehensive of them – and a country that is geographically secure. The rulers of a relatively secure nation have little pretext to require more than a small standing army.  Such an army rarely would be called into activity for defense of the interior, and thus the citizens of that nation would be in no danger of being broken to military subordination. The laws in such a country would not be accustomed to relaxation in favor of military exigencies. The civil state would remain in full vigor, neither corrupted nor confounded with the principles or propensities of a true military state.  The natural strength of the People would overmatch the small army. Citizens would neither be habituated to look to the military power for protection, nor to submit to its oppressions.  Such a country would neither love nor fear the soldiery, but instead view them as a necessary evil, standing ready to resist a power which may be exerted to the prejudice of their rights. The army under such circumstances may usefully aid the magistrate to suppress a small faction, or an occasional mob, or insurrection; but it will be unable to enforce encroachments against the united efforts of the great body of the People.

A Large Federal Standing Army Would Undermine Liberty 

In a country with a large standing army, the contrary of all this happens.  The perpetual menacings of danger oblige the government to be always prepared to repel it; its armies must be numerous enough for instant defense.  The continual necessity for their services enhances the importance of the soldier, and proportionably degrades the condition of the citizen.  The military state becomes elevated above the civil. The inhabitants of territories, often the theater of war, are unavoidably subjected to frequent infringements on their rights, which serve to weaken their sense of those rights.  By degrees the People would come to consider the soldiery as their superiors as well as their protectors.  This transition of the soldiery from servants to masters in the minds of the citizenry is neither remote nor difficult, for a People subject to a constant threat rarely mount a bold or effectual resistance to usurpations supported by the military power.

The Benefits of Our Geographic Insularity 

The kingdom of Great Britain has no large standing army.  Its insular situation and a powerful marine guard against the possibility of foreign invasion, thus superseding the necessity of a numerous army within the kingdom.  A sufficient force to make head against a sudden descent, until the militia could have time to rally and embody, is all that is required.  Britain’s national policy has not demanded –  nor her public opinion tolerated – a large number of troops upon domestic establishment.  This peculiar felicity of situation has contributed to preserve the liberty which that country to this day enjoys, in spite of the prevalent venality and corruption.  If, on the contrary, had Britain been situated on the continent – and been compelled by that situation to make her military establishments at home coextensive with those of the other great powers of Europe – she, like them, would in all probability have fallen victim to the absolute power of a single individual.  It is possible the People of that island might be enslaved from other causes, but not by the prowess of a large standing army.  

If we are wise enough to preserve the United States we may for ages enjoy an advantage similar to that of an insulated situation.  Europe is at a great distance from us.  Her colonies in our vicinity will be likely to continue too much disproportioned in strength to be able to give us any dangerous annoyance. Extensive military establishments cannot, in this position, be necessary to our security.  But if we should be disunited –  and the integral parts should either remain separated – or should be thrown together into two or three confederacies (which is most probable) – in a short course of time we should be in the predicament of the continental powers of Europe – our liberties would be a prey to the means of defending ourselves against the ambition and jealousy of each other.

Hamilton

Federalist 9: Union Is a Safeguard Against Domestic Faction and Insurrection

A FIRM UNION IS THE ULTIMATE BARRIER against the forces that would overwhelm the peace and liberty of the States. Those forces – domestic faction, party rage, sedition and insurrection – led to a rapid succession of revolutions in the small republics of Greece and Italy. Those same forces – aided by the vices of their governments –  continually agitated and perverted the bright talents and exalted endowments for which these republics were otherwise justifiably renowned.  It is impossible to read their histories without feeling sensations of horror and disgust at the petty distractions which kept them in a state of perpetual vibration between the extremes of tyranny and anarchy.  

From the disorders of those republics, the advocates of despotism in America argue that all forms republican government – even the very principles of civil liberty – are inconsistent with the order of society. Happily for mankind, the few glorious instances of governments founded on liberty refute their gloomy sophisms.  

Modern Improvements to the Republican Form of Government Make It the Wisest Choice  

If the enlightened friends of liberty who assembled at the Constitutional Convention believed they could not devise a more perfect republican structure, they would have abandoned that species of government as indefensible.  The science of politics, however, has received great improvement in modern times, as have most other sciences.  Principles which were unknown or imperfectly known to the ancients are now well understood. Many new discoveries, or the perfection of old discoveries, include: the regular distribution of power into distinct departments, the introduction of legislative balances and checks, the institution of courts composed of judges holding their offices during good behavior, and the representation of the People in the legislature by deputies of their own election. To this catalogue of improvements a new one may be added: the enlargement of the geographical orbit within which such systems revolve, either in a single states, or a consolidation of several smaller states into one great confederacy.  

The utility of a confederacy is not really a new idea.  It has been practiced in different countries and ages, in order to suppress faction, guard the internal tranquility of states, and increase external forces and security.  The most esteemed writers on the subject of politics have approved its use.   

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Principles which were unknown or imperfectly known to the ancients are now well understood.  Many new discoveries, or the perfection of old discoveries, include: the regular distribution of power into distinct departments, the introduction of legislative balances and checks, the institution of courts composed of judges holding their offices during good behavior, and the representation of the People in the legislature by deputies of their own election.

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Critics of a Large Republic Misread Montesquieu 

The opponents of a united America have circulated the observations of the great Montesquieu to argue a republican government can succeed only in small geographical territories. Their arguments are drawn from a selective reading of the author’s works and disregard the experiences of our own republican States  –  Virginia, Massachusetts, Pennsylvania, New York, North Carolina, and Georgia – all of which are larger than the republics Montesquieu considered.  If the critics of the United States are correct, we should either take refuge at once in the arms of monarchy, or split ourselves into an infinity of tumultuous little commonwealths which would be the wretched nurseries of unceasing discord and the miserable objects of universal pity and contempt.  

Some writers have even boldly suggested a division of even the larger States is desirable. While such a desperate expedient might multiply the petty offices for individuals who possess no qualification to extend their influence beyond the narrow circles of personal intrigue, it could never promote the greatness or happiness of the People of America.

Montesquieu does not stand in opposition to a general union of states, as the critics of union would falsely have us believe. He explicitly treats a confederate republic as the expedient for extending the sphere of popular government to gain the internal advantages a republic and the external force of a monarchy.   

A republic of this kind is able to withstand an external force, and support itself without any internal corruptions. “If a single member should attempt to usurp the supreme authority,” the author writes, “he could not be supposed to have an equal authority and credit in all the confederate states.  Were he to have too great influence over one, this would alarm the rest. Were he to subdue a part, that which would still remain free might oppose him with forces independent of those which he had usurped and overpower him before he could be settled in his usurpation.”

The United States is a confederacy of States, and not a consolidation of States, as its misguided opponents have claimed. The definition of a confederate republic is simply “an assemblage of societies,'' or an association of two or more states into one state. The Constitution makes each State government a constituent part of the national sovereignty, with direct representation in the Senate.  Exclusive and very important portions of sovereign power are left in the possession of the States.  This fully corresponds with the idea of a Federal government.  The objects, extent, and modifications of the Federal authority are merely matters of discretion. Under the Constitution, the separate organizations of the member States – though subordinate to the general authority of the union – continue to exist for local purposes.

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If critics of the United States are correct, we should  either take refuge at once in the arms of monarchy, or split ourselves into an infinity of tumultuous little commonwealths which would be the wretched nurseries of unceasing discord and the miserable objects of universal pity and contempt.

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In ancient Lycia, twenty-three republican cities joined in a confederacy governed by a common council. The largest cites were entitled to three votes in the council, those of the middle to two, and the smallest to one.  The cities granted to the council the power to appoint all the judges and magistrates of the respective cities, even though the power to appoint its own officers is one which would seem exclusively appropriated to local jurisdictions. Yet Montesquieu cites the Lycian confederacy as the finest republic to date. From this we can see the critics of our union have misused Montesquieu to advance no more than novel refinements of their erroneous theories.

Hamilton

Federalist 10: Governments Are Formed to Protect Property Rights; a Republic Is Far Superior to a Democracy

ONE OF THE MOST IMPORTANT ADVANTAGES promised by a well-constructed Constitution is its tendency to break and control the violence of faction.  By “faction,” I mean a minority or majority of citizens who are united and motivated by some common impulse of passion or interest adverse either to the rights of other citizens or to the permanent and aggregate interests of the community.

Lessening the Instability, Injustice and Confusion Caused by Factions 

Popular governments have perished everywhere from the mortal diseases of instability, injustice, and confusion introduced into their public councils by factions.  Even with the valuable improvements made by State constitutions on ancient and modern models, we still hear complaints that issues related to the public good are decided by the superior force of an interested and overbearing majority rather than the rules of justice and the rights of the minor party.  These complaints – in some degree true – are chiefly the effects of the unsteadiness and injustice with which a factious spirit has tainted our public administrations.

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Popular governments have perished everywhere from the mortal diseases of instability, injustice, and confusion introduced into their public councils by factions. 

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Different Human Aptitudes and Abilities Result in the Unequal Ownership of Property, which Leads to Factions  

The creation or acquisition of property results from the diversity of human abilities and aptitudes sown into the nature of mankind. The first object of government is to protect those differing faculties and skills.  

Once a sovereign power extends physical protection to the different and unequal faculties of creating and acquiring property, the possession of different degrees and kinds of property immediately results.  

History has shown the most common and durable source of faction is the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors and those who are debtors fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest – with many lesser interests – necessarily arise in civilized nations, and divide them into different classes, motivated by different sentiments and views.

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Mankind’s propensity to fall into mutual animosities is so strong that the most frivolous and fanciful distinctions have sufficed to kindle their unfriendly passions and excite their most violent conflicts.

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The influence of property ownership on the sentiments and views of their proprietors ensure a division of society into different interests and parties, which can become factions. 

The regulation of these various and interfering interests is the principal task of modern legislation, and necessarily involves the spirit of party and faction in the ordinary operations of the government.  

The Diversity of Human Interests Is Visible Everywhere

We see the expression of these differing interests everywhere, from the variety of opinions concerning government, religion and the like, to attachments to different leaders who ambitiously contend for preeminence and power, and to persons whose fortunes have interested human passions. Mankind’s propensity to fall into mutual animosities is so strong that the most frivolous and fanciful distinctions have sufficed to kindle their unfriendly passions and excite their most violent conflicts.  These interests have divided mankind into parties, inflamed them with mutual animosity, and rendered them more disposed to vex and oppress each other than to cooperate for the common good.  

Factions Test Republics, and Can Control Governments 

It is an ancient rule that no man shall be judge in his own cause, because his interest would certainly bias his judgment, and probably corrupt his integrity.  Neither should a body of individuals be both judges and interested parties at the same time. Yet what are legislative acts but so many judicial determinations concerning the rights of persons and large bodies of citizens? Are not the different classes of legislators simply advocates and parties to the causes they determine?  

If a law is proposed concerning private debts, the creditors are parties on one side and the debtors on the other.  Justice ought to hold the balance between them, yet the parties are – and must be – themselves the judges. The most numerous party – the most powerful faction – must be expected to prevail.  

Even legislative acts which seem to require the most exact impartiality – such as the apportionment of taxes on property – can tempt the predominant party to trample the rules of justice.  Every penny by which they overburden the inferior number is a penny saved to their own pockets.

In cases where a faction consists of less than a majority, the republican principle of majority vote will defeat its sinister views by regular vote. On the other hand, when the faction is in the majority, both the public good and the rights of other citizens will be sacrificed to the majority passion or interest. The ultimate question is how to secure the public good and private rights against such a faction, while at the same time preserving the spirit and form of popular government.

Do Not Expect the Enlightened to Save the Day 

It is vain to hope enlightened statesmen will adjust these clashing interests and render them all subservient to the public good. Enlightened statesmen will not always be at the helm.  Moreover, their equitable arguments rarely will prevail over the immediate interest one party may find in disregarding the rights of another or the good of the whole.

Democracies Have Never Possessed the Cure for Faction 

A pure democracy – a society consisting of a small number of citizens who assemble and administer the government in person – can admit of no cure for the mischiefs of faction.  In almost every case, a common passion or interest will be felt by a majority of the whole.  The form of government itself leads to a communication of the passion and the resulting concert of action. There is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual.  Democracies can devolve into rule by mob. 

Democracies are incompatible with personal security or the rights of property.  They have forever been spectacles of turbulence and contention – usually as short in their lives as violent in their deaths.  Their histories prove wrong those theorists who suppose that reducing mankind to a perfect equality in political rights would perfectly equalize them in possessions, opinions, and passions.

The Only Cures for Factions Are Worse than the Disease 

To remedy the mischiefs of faction, we must either remove its causes or control its effects. As I will show, the causes cannot be removed, only the effects lessened.  

It is impossible to eradicate factions without also destroying the liberty that allows them to exist, or requiring every citizen to share the same passions and interests.  Destroying liberty is as unwise as forcing everyone to think alike is impractical. In scientific terms, the idea that liberty should be extinguished in order to prevent the creation of factions is as foolish as annihilating the air we breathe because it imparts to fire a destructive agency.  

As for uniformity of opinion, so long as the reason of man continues to prove fallible – and he is at liberty to exercise it – different opinions will be formed.  

As for uniformity of interests, the natural and acquired abilities of humans – from property rights originate – erect an impenetrable barrier to its attainment.  Human interests will never be uniform, nor will ownership of property.

* * *

It is impossible to eradicate factions without also destroying the liberty that allows them to exist, or requiring every citizen to share the same passions and interests. Destroying liberty is as unwise as forcing everyone to think alike is impractical.

* * *

The Only Relief from Faction Is to Limit its Effects Through Representative Government

There are two ways to manage factions, but only one will succeed.  The first is to prevent the same passion or interest from ever forming a majority. The second is to prevent the majority from executing its schemes of oppression.  To those who think the second option might suffice – blocking the execution of an oppressive scheme – it is well known that neither morals nor religion can reliably control the injustice and violence of individuals – let alone groups – should the impulse to passion and the opportunity to execute it be suffered to coincide.

That leaves the first option – preventing the same passion or interest from forming a majority – which is best accomplished through a republic in which the scheme of representation occurs. Compared to the passion of a democracy, the first great difference is that the citizens of a republic delegate control of the government to a small number of citizens elected by the rest.  The second is that a republic may be extended over a far greater sphere of country and citizens than a democracy. 

Representation Positively Refines and Enlarges the Viewpoints of the Representative and Represented Alike 

The election of representatives refine and enlarges the People’s views by passing them through the medium of a chosen body of citizens.  The collective wisdom of the representatives is best able discern the true interests of the country.  Their patriotism and love of justice should render them the least likely to sacrifice those ideals based on temporary conditions or a predisposition to favor one interest over another. 

So regulated, the public voice will be more consonant to the public good than if pronounced by the People themselves, should they be convened to decide a particular question.

The Proper Size of a Representative Body Lies Between Extremes 

Representative government creates the risk that individuals of factious tempers, local prejudices, or sinister designs might first obtain the votes of the citizens through intrigue, corruption or other means, and then betray those electors.  

Consequently, no matter how small a republic may be, its representatives must be raised to a certain number in order to guard against the cabals of a few. Conversely, no matter how large its size, the representatives must be limited to a certain number in order to guard against the confusion of a multitude.  

Deciding on the correct number of representatives does present obstacles. If the number of electors for an office is too large, the representatives will be too little acquainted with all their local circumstances and lesser interests.  If the number of electors is too small, representatives will be unduly attached to local circumstances and interests.  

The Constitution is a happy compromise of these extremes: the great and aggregate interests are referred to the Federal legislature, and the local and particular interests to the State legislatures.

The Larger the Republic, the Larger the Number of Suitable Candidates Available to the Electors

The number of potential suitable representatives should be greater in a large republic, thereby increasing the probability of a fit choice for office. This circumstance will make it more difficult for unworthy candidates to practice successfully the vicious arts by which elections are too often carried. The votes of the People – being less influenced by such arts – will more likely center on the individuals who possess the most attractive merit and the most diffusive and established characters.

* * *

A large republic with more citizens and territory renders factious combinations less likely than in a democracy. 

* * *

A Large Republic Provides a Better Guard Against Factions than a Small Republic, or a Democracy of Any Size

A large republic with more citizens and territory renders factious combinations less likely than in a democracy.  A small society is more likely composed of fewer distinct parties and interests. The fewer the distinct parties and interests, the more frequently the majority will be of the same party. The representatives – being fewer in number – can more easily work in concert to execute their plans of oppression.  

By contrast, a large republic – having a greater geographical sphere and larger number of citizens – will likely include a greater variety of parties and interests.  This will reduce the probability that a majority of the electors will have a common motive to invade the rights of other citizens.  And if such a common motive did exist, those who felt its strength would have difficulty communicating it to and acting in unison with others, since the communication of a consciously unjust or dishonorable purpose is always checked by distrust in proportion to the number whose concurrence is necessary.

The advantage a republic has over a democracy in controlling the effects of faction is the same as one enjoyed by a large over a small republic. Another advantage of a republic consists in the substitution of representatives whose enlightened views and virtuous sentiments should render them superior to local prejudices and schemes of injustice.  Yet another advantage will be the increased number of parties, which afford security against the event of any one party being able to outnumber and oppress the rest. Finally, a republic will erect greater obstacles to the execution of the secret wishes of an unjust and interested majority.

*  *  *

          Democracies are incompatible with personal security or the rights of property. They have forever been spectacles of turbulence and contention – usually as short in their lives as violent in their deaths. Their histories prove wrong those theorists who suppose that reducing mankind to a perfect equality in political rights would perfectly equalize them in possessions, opinions, and passions.

*  *  *

Factions Originate Locally, and Republican Government Is Best-Suited to Prevent their Spread Nationally 

While factious leaders may from time to time kindle a flame within their particular States, they will be unable to spread a general conflagration through the other States. A religious sect may degenerate into a political faction in one part of the United States, but the variety of sects dispersed over the entire face of it will secure the Federal government against any danger from that source.   

A rage for paper money, an abolition of debts, an unequal division of property – or any other improper or wicked project – will be less apt to pervade the whole body of States than a particular member of it, in the same way such maladies are more likely to infect a particular county or district than an entire State.

Thus in size and proper structure of the United States do we behold a republican remedy for the diseases most incident to republican government.

Madison

Federalist 11: A Unified Country Is the Wisest Choice for Protecting Our Trade from Foreign Interference

THE IMPORTANCE OF THE UNITED STATES to foster and improve commerce among the several States is indisputable. The same is true for our commercial intercourse with foreign countries.

The commercial character of the United States has already excited uneasy sensations in several of the maritime powers of Europe.  They are apprehensive that our union will interfere with their carry of trade, which supports their navigation and naval strength.  Those countries with colonies in America foresee the dangers to their American dominions from United States, which would have the disposition and means to create a powerful marine. The cabinet ministers of Europe already have in place policies designed to foster divisions among us, and to deprive us of an active commerce with our own ships. By dividing us, they seek to prevent our interference in their navigation, monopolize the profits of our trade, and clip the wings by which we might soar to a dangerous greatness.  

Methods to Counter Foreign Interference 

If we continue united, we may counteract these unfriendly policies in a variety of ways. By prohibitory regulations, we would oblige foreign countries to bid against each other for the privileges of our growing markets. Any manufacturing nation would discern the immense difference between using its own ships to trade directly with our union and the indirect conveyance of its products and returns to and from the United States in the ships of another country.  If we excluded Great Britain from our ports, would it not enable us to negotiate, with the fairest prospect of success, for commercial privileges of the most valuable and extensive kind, in the dominions of that kingdom?  Some have responded that such a prohibition on our part would produce no change in the system of Britain, because she could prosecute her trade with us through the medium of the Dutch, who would be her immediate customers and paymasters for those articles which were wanted for the supply of our markets.  But would not her navigation be materially injured by the loss of the important advantage of being her own carrier in that trade? Would not the principal part of its profits be intercepted by the Dutch, as a compensation for their agency and risk? Would not the mere circumstance of freight occasion a considerable deduction?  The price of British commodities in our markets would increase, and facilitate competition from other nations by transferring to other hands the management of British commerce.

* * *

The cabinet ministers of Europe already have in place policies designed to foster divisions among us, and to deprive us of an active commerce with our own ships. By dividing us, they seek to prevent our interference in their navigation, monopolize the profits of our trade, and clip the wings by which we might soar to a dangerous greatness.

* * *

The real disadvantages to Britain from such a state of things – together with the predispositions of its inhabitants in favor of trade with the United States, as well as the needs of its colonies in the West India islands – would relax her present system let us enjoy privileges in the markets of those islands and elsewhere, from which our trade would derive the most substantial benefits.  To gain such a point from the British government, of course, could not be expected without an equivalent in exemptions and immunities in our markets.  It would, however, improve the conduct of other nations, who would not be inclined to see themselves altogether supplanted in our trade.

Monroe Doctrine Suggested 

The establishment of a Federal navy would further improve the conduct of European nations toward our trade. The continuance of the Union under an efficient Federal government would soon put in our power the ability to create a navy which – if it could not vie with those of the great maritime powers – would at least be of respectable weight if thrown into the scale of either of two contending parties. This would be particularly true in the West Indies, where a few ships of the line, sent opportunely to the reinforcement of either side, would often be sufficient to decide the fate of a campaign.  Our position in this respect is a most commanding one.  If we add the usefulness of supplies from this country to the prosecution of military operations in the West Indies, we could bargain with great advantage for commercial privileges.  A price would be set not only upon our friendship, but upon our neutrality.  By a steady adherence to the Union we may hope soon to become the arbiter of Europe in America, and to be able to incline the balance of European competitions in this part of the world as our interest may dictate.

Should we fail to remain united, our commerce would be a prey to the wanton intermeddlings of all nations at war with each other, who, having nothing to fear from us, would with little scruple or remorse, supply their wants by depredations on our property as often as it fell in their way. The rights of neutrality will only be respected when they are defended by an adequate power. A nation that is despicable by its weakness forfeits even the privilege of being neutral.

Under a vigorous Federal government, the natural strength and resources of the country, directed to a common interest, would baffle all the combinations of European jealousy to restrain our growth. An active commerce, an extensive navigation, and a flourishing marine would then be the offspring of moral and physical necessity.  We might defy the little arts of little politicians to control or vary the irresistible and unchangeable course of nature.

Without a union, powerful maritime nations would avail themselves of our universal impotence to prescribe the conditions of our political existence, since they have a common interest in being our carriers, and still more in preventing our becoming theirs.  We would be confined to a passive commerce, compelled to content ourselves with the first price of our commodities, and to see the profits of our trade snatched from us to enrich our enemies and persecutors. That unequaled and inexhaustible American spirit of enterprise, exemplified by the genius of our merchants and navigators, would be stifled and lost, and poverty and disgrace would overspread a country which, with wisdom, might make herself the admiration and envy of the world.

* * *

Due to the length of her superiority, Europe has plumed herself the Mistress of the World. She considers the rest of mankind as created for her benefit.

* * *  

Our nation holds rights to coastal fisheries and navigation of the Great Lakes and Mississippi.  If the Union is dissolved, these rights would be open to question, and the European powers would hardly fail to solve those questions to our disadvantage. The rights of fishing and navigation are important to all navigating States, and would be more so with a  greater extension of mercantile capital.  The navigating States are a nursery of seamen, who in turn are indispensable to the establishment of a navy.  

Every institution will grow and flourish in proportion to the quantity and extent of the means concerted towards the formation and support of a navy. A navy of the United States - established from the resources of all - is far less remote than a navy of any single State or partial confederacy. Each region of America will contribute its own part. The more southern States furnish in greater abundance certain kinds of naval stores – tar, pitch, and turpentine – as well as wood of a more solid and durable texture.  Iron from the southern and middle States is plentiful and of better quality. Seamen must chiefly be drawn from the northern hive.  The necessity of naval protection to external or maritime commerce requires no elucidation. Similarly, the success of maritime commerce is conducive to the prosperity of a navy.

An unrestrained intercourse of trade between the States will advance the trade of each; first, by an interchange of their respective productions for the supply of reciprocal wants at home, and second, for export to foreign markets.   The diversity in the production of different States will give commercial enterprise a much greater scope, from the diversity in the productions of different States. When the staple of one fails from a bad harvest or unproductive crop, it can call to its aid the staple of another. The variety of products for export contributes as much as does their value to the activity of foreign commerce. Much better terms can be had with a large number of materials of a given value than with a small number of materials of the same value.  Particular articles may be in great demand at certain periods and unsalable at others.  The greater the variety of articles available for export, the lesser the chance the operations of merchants would stagnate.  The speculative trader will at once perceive the force of these observations.  A union is far more likely to command a fair price for its goods than single State or partial confederacy. 

Some might argue that an intimate intercourse between the States would exist with or without a union, thus achieving the same ends. To this we believe these papers show that such intercourse would be fettered, interrupted and narrowed by a multiplicity of causes.  A unity of commercial and political interests can result only from a unity of government.

The Hubris of Europe

Our situation invites and our interests prompt us to aim at an ascendant in the system of American affairs.  At present, the world is divided politically and geographically into four parts – Europe, Africa, Asia, and America – each having a distinct set of interests. Unhappily for the other three, Europe, by her arms and negotiations, by force and fraud, has by degrees extended her dominion over them all. Africa, Asia, and America have successively felt her domination.      

Due to the length of her superiority, Europe has plumed herself the Mistress of the World. She considers the rest of mankind as created for her benefit. Some philosophers actually have attributed to Europe’s inhabitants a physical superiority, and seriously asserted that all animals – and with them the human species – degenerate in America – so that even dogs cease to bark after having breathed awhile in our atmosphere.  Unfortunately, the facts have too long supported these arrogant pretensions. Therefore it falls to America to vindicate the honor of the human race, and to teach moderation to our pretentious European brethren.  A Federal union will enable us to do it. Disunion will add another victim to Europe’s triumphs. Let Americans disdain to be the instruments of European greatness!  Let the thirteen States – bound together in a strict and indissoluble union – concur in erecting one great American system, superior to the control of all transatlantic force or influence, and able to dictate the terms of the connection between the old world the new one!

Hamilton

Federalist 12: The Union Will Increase Commerce and Therefore Taxes

THE FORMATION OF THE UNITED STATES will increase the commercial prosperity of the States and revenues to their governments. The prosperity of commerce is the most useful and productive source of national wealth.  The introduction and circulation of precious metals – those darling objects of human avarice and enterprise – invigorate the channels of industry. The assiduous merchant, the laborious husbandman, the active mechanic, and the industrious manufacturer – all orders of individuals – look forward with eager expectation to this pleasing reward of their toils. 

Experience demonstrates the interest of agriculture and commerce are intimately blended and interwoven. Where commerce has flourished, land has risen in value. And how could it have happened otherwise? Commerce procures a freer vent for the products of the earth, and incites the cultivation of land, which is the most powerful instrument in increasing the quantity of money in a state.  The value of land, in turn, is augmented by labor and industry. It is astonishing that so simple a truth should ever have had an adversary.  It is but one example of how a spirit of ill-informed jealousy – or one of too great abstraction and refinement – can lead humans astray from the plainest truths of reason and conviction.

The ability of a country to pay taxes must in great degree be proportioned to the quantity of money in circulation, and to the celerity with which it circulates.  Since commerce contributes to both these objects, it necessarily renders the payment of taxes easier, to the benefit of the public treasury.  

Wealth without Commerce Reduces Tax Revenue

The hereditary dominions of the emperor of Germany consist of a fertile, cultivated, and populous territory, largely situated in mild climates, and with some of best gold and silver mines in Europe.  And yet revenues are slender due to a lack of commerce, resulting in borrowing from foreigners to preserve his essential interests, and an inability to sustain a long or continued war upon the strength of his own resources.

* * *

Experience demonstrates the interest of agriculture and commerce are intimately blended and interwoven. Where commerce has flourished, land has risen in value. And how could it have happened otherwise? Commerce procures a freer vent for the products of the earth, and incites the cultivation of land, which is the most powerful instrument in increasing the quantity of money in a state.

* * *

From experience we have discovered it is impracticable to raise any very considerable sums by direct taxation. Tax laws have in vain been multiplied; new methods to enforce the collection have in vain been tried; the public expectation has been uniformly disappointed; and the treasuries of the States have remained empty. Even in Britain, direct taxation is far exceeded by revenue of the indirect kind, such as imposts and excises, particularly duties on imported articles. 

In America, revenue must depend chiefly on import duties. Other excise taxes – which are imposed on a step in the production, manufacture, sale or distribution of goods – must be confined within a narrow compass in most parts of the country, since the genius of the People will ill brook the inquisitive and peremptory spirit of excise laws.  Impositions on houses and lands will yield but scanty supplies from the reluctant pockets of farmers. Personal property is too precarious and invisible a fund to be laid hold of in any other way than by the imperceptible agency of taxes on consumption.

A general union, being conducive to the interests of commerce, would tend to the extension of revenue drawn from that source, and contribute to rendering regulations for the collection of the duties more simple and efficacious. In making the same rate of duties more productive, governments would have the power to increase the rate without prejudice to trade.

In the absence of a union of States, a conspiracy of circumstances – the number of our rivers and bays, the facility of communication in every direction, the affinity of language and manners, and the familiar habits of intercourse – would render an illicit trade between the States a matter of little difficulty, and would insure frequent evasions of the commercial regulations of each other. To mitigate such trade, separate States or confederacies would forced to lower their duties. The temper of our governments would not likely countenance the rigorous precautions by which European nations guard the avenues of land and water into their respective countries, and which, even there, are found insufficient obstacles to the adventurous stratagems of avarice.

Wisely Guarding Our Coastlines Is Our Best Defense against Smugglers

In France, there is an army of patrols constantly employed to secure their fiscal regulations against the inroads of the dealers in contraband trade. Without a union, the States would be placed in a situation resembling that of France with respect to her neighbors, and armed patrols would necessarily arise.  The arbitrary and vexatious powers of such patrols would be intolerable in a free country.

With a union, we would have but to guard our coastlines, principally the Atlantic coast, which touches only one side of the union.  Foreign vessels would rarely choose to hazard transferring valuable cargoes prior to entering port.  They would dread the dangers of the coast and of detection upon entry.  A few armed vessels – judiciously stationed at the entrances of our ports – might at a small expense be made useful sentinels of the laws. Since a Federal government would have the same interest to prevent violations everywhere, uniform application of its measures in each State would render them effectual. 

By preserving the United States, we also preserve the advantage of geographical separation natural has accorded us. The United States lies at a great distance from Europe, and a considerable distance from all other areas with which we might have extensive foreign trade. It would be impractical to smuggle goods from these areas in a few hours or a single night, as happens between the coasts of France and Britain. This is a prodigious security against a direct contraband with foreign countries.  Without a union, a circuitous contraband to one State through the medium of another would be both easy and safe. The difference between a direct importation from abroad, and an indirect importation in small parcels through the channel of a neighboring State – according to time and opportunity, with the additional facilities of inland communication – must be palpable to everyone of discernment.

Duties on Imports Are a Sound Basis for Federal Revenue and Ought Not Be Neglected

A single Federal government would be able to extend the duties on imports, at much less expense, than would be practicable by separate States or partial confederacies. Hitherto these State duties have not exceeded three percent on average.  In France they average fifteen per cent, and in Britain twenty percent.  Thus, the United States reasonably could triple existing import duties of the several States.  The Federal regulation of a single article – ardent spirits – would furnish a considerable revenue.  Four million gallons are imported annually.  A duty of a shilling per gallon would produce revenue of two hundred thousand pounds. Liquor would well bear this duty, and if the duty diminishes consumption, the effect would be equally favorable to the agriculture, economy, morals, and health of society.  There is nothing so much a subject of national extravagance as these spirits.

What will be the consequences of not availing ourselves of these sources of revenue? A nation cannot long exist without revenue. Destitute of this essential support, it must resign its independence and sink into the degraded condition of a province. This is an extremity to which no government will of choice accede. Revenue, therefore, must be had at all events. 

Taxes on Commerce Must Be the Principal Source of Federal Revenue

In the United States, if the principal part be not drawn from commerce, it must fall with oppressive weight upon land. Excise taxes are too little in unison with the feelings of the People to admit of great use. Indeed, in the States where almost the sole employment is agriculture, the objects proper for excise are insufficiently numerous to permit very ample collections in that way.  Personal property, due to the difficulty in tracing it, cannot be subjected to large contributions, except by indirect taxes on consumption. In populous cities, perhaps, personal property taxes may more easily be collected – to the oppression of individuals – but beyond these circles, it will largely escape the eye and hand of the tax gatherer.  

This leaves the possessors of land as the principal source of revenue for the public treasury. Without having other sources of revenue available to maintain the government, we shall not even have the consolation of a full treasury to atone for the oppression of that valuable class of the citizens employed in cultivation of the soil.  Public and private distress will keep pace with each other in gloomy concert; and unite in deploring the infatuation of those counsels which led to disunion.  Taxation is discussed in greater detail in Federalist 30 through Federalist 36.  

Hamilton

Federalist 13: Our National Economy Will Prosper with Union 

THE SEPARATION OF THE STATES into thirteen unconnected sovereignties is a project too extravagant and too replete with danger to have many advocates. Having just discussed the revenue of the Federal government, we turn now turn to economy. The money saved from one object may be usefully applied to another, with so much the less drawn from the pockets of the People. The States united under one government would have but one national civil list to support.  If they are divided into several confederacies, there would be as many different national civil lists to be provided for, and each of them, as to the principal departments, coextensive with that which would be necessary for a government of the whole.   

Those who speculate upon the dismemberment of the empire generally envisage three confederacies – one consisting of the four northern States, another of the four middle States, and a third of the five southern States. According to this distribution, each confederacy would comprise an extent of territory larger than the kingdom of Great Britain. Proper regulation of each confederacy would require a government as comprehensive in its organs and institutions as that of the Federal government, for when the dimensions of a State attain to a certain magnitude, it requires the same energy of government and the same forms of administration which are requisite in one of much greater extent.  

By comparison, the measure the momentum of civil power necessary to the government of the United States – properly organized and exerted – would be capable of diffusing its force to a very great extent, and reproducing itself in every part of a great empire by a judicious arrangement of subordinate institutions.

Each imagined confederacy would require a government not less comprehensive than the government of the United States, particularly if we consider that in case of disunion they will most naturally league themselves under two governments. New York, Pennsylvania, and New Jersey, having active foreign commerce, would ally with the northern confederacy.  The more southern States, from various circumstances, may not think themselves much interested in the encouragement of navigation. They may prefer a system which would give unlimited scope to all nations to be the carriers as well as the purchasers of their commodities. 

* * *

Each imagined confederacy would require a government not less comprehensive than the government of the United States, particularly if we consider that in case of disunion they will most naturally league themselves under two governments.

* * * 

The thirteen States if united will be able to support a national government better than one half, or one third, or any number less than the whole. Aside from requiring multiple civil lists, separate confederacies will require additional personnel, both to guard the inland communication between the different confederacies against illicit trade, and to collect taxes. If we also take into view the military establishments which would unavoidably result from the jealousies and conflicts of the several confederacies, we discover that separation would be more injurious to the economy, tranquility, commerce, revenue, and liberty of every part.

Hamilton

Federalist 14: The Geographical Size of the United States Is No Detriment to Union

THE UNION OF THE UNITED STATES will be our bulwark against foreign danger, conservator of peace among ourselves, guardian of our commerce and other common interests, and as the only substitute for those military establishments which have subverted the liberties of the Old World.  

Union is the proper antidote for the diseases of faction, which have proved fatal to other popular governments, and of which alarming symptoms are present in our own.  All that remains within this branch of our inquiries is to take notice of an objection that may be drawn from the great extent of country which the union embraces. A few observations on this subject are proper to refute this objection, which is based on prejudice rather than fact.

The error of the objection results from confusing a republic with a democracy.  In a democracy, the people meet and exercise the government in person; in a republic, they assemble and administer it by their representatives and agents.  A democracy must be confined to a small spot, while a republic may be extended over a large region.

* * *

Union is the proper antidote for the diseases of faction, which have proved fatal to other popular governments, and of which alarming symptoms are present in our own.

* * *

To this confusion may be added the error of some celebrated authors whose writings informed the modern standard of political opinions. Since the subjects these authors studied were either absolute or limited monarchies, they endeavored to heighten the advantages – or palliate the evils of monarchical forms – by identifying the vices and defects of republican government, but citing as specimens the turbulent democracies of ancient Greece and modern Italy.  Their conclusions – republics can only be established among a small number of people living within a small compass of territory – are applicable to democracies only. 

The natural limit of a democracy is that distance from the central point which will just permit the most remote citizens to assemble as often as their public functions demand, and will include no greater number than can join in those functions.  So too the natural limit of a republic is that distance from the center which will barely allow the representatives to meet as often as may be necessary for the administration of public affairs.  

Can it be said that the limits of the United States exceed this distance? The size of the United States is commensurate with several European countries. At present it is not a great deal larger than Germany, where a diet representing the whole empire is continually assembled; or than Poland before the late dismemberment, where another national diet was the depositary of the supreme power.  In Great Britain, the representatives of the northern extremity of the island have as far to travel to the national council as will be required of those of the most remote parts of the present United States. 

Additional observations further ameliorate the objection based on the physical size of the union.  In the first place, the Federal government is not charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any.  The subordinate State governments, which can extend their care to all those other subjects which can be separately provided for, will retain their due authority and activity. 

A second observation, concerning expansion, is that the immediate object of the Federal Constitution is to secure the union of the thirteen original States, which we know to be practicable.  Further discoveries and experience will render the addition of new States equally practicable.

* * *

In the first place, the Federal government is not charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any. 

* * *

In the third place, intercourse throughout the union will be facilitated by new improvements. Roads will everywhere be shortened, and kept in better order; accommodations for travelers multiplied and ameliorated; and interior navigation on our eastern side opened throughout, or nearly throughout, the whole extent of the thirteen States, as demonstrated by those numerous canals which nature’s beneficence has intersected our country, and which are not difficult to connect and complete.

A fourth and still more important consideration is that those distant States bordering foreign nations should be willing to exchange the burden of traveling to the capital for the general protection of the union, of which they will have the greatest need. 

Hearken not to the unnatural voice which tells you the People of America, knit together as they are by so many cords of affection, can no longer live together as members of the same family, nor continue the mutual guardians of their mutual happiness, nor be fellow citizens of one great, respectable, and flourishing empire.  Hearken not to the voice which petulantly tells you the form of government recommended for your adoption is a novelty in the political world; that it has never yet had a place in the theories of the wildest projectors; that it rashly attempts what it is impossible to accomplish.  No, my countrymen, shut your ears against this unhallowed language, and shut your hearts against the poison it conveys.

Madison

Federalist 15: Our Former Government Was Fatally Flawed 

THE POINT NEXT TO BE EXAMINED is why the Articles of Confederation were insufficient to the preserve the Union of the States. Although no one has disputed the proposition, a few observations are in order, since we had reached almost the last stage of national humiliation under that Confederation.  

The Confederation violated contracts and defaulted on its war debts. It allowed Britain to remain in territories which – by express stipulations – ought long since to have been surrendered, to the prejudice of our interests and rights.  We were in no condition to resent or repel aggression because we had neither troops, nor a treasury, nor a government. We were not even in a condition to remonstrate with dignity.  We were entitled by nature and compact to a free participation in the navigation of the Mississippi, but Spain excluded us from it. Our public credit – an indispensable resource in time of public danger – was abandoned as desperate and irretrievable.  Our commerce – of great importance to national wealth – was at the lowest point of declension. Our former government was so imbecilic that no foreign power respected or would entreat with it, depriving us of a safeguard against foreign encroachments. Our ambassadors abroad were mere pageants of mimic sovereignty.  

We suffered a violent and unnatural decrease in the value of land, which surely was a symptom of national distress.  The price of improved land in most parts of the country was much lower than attributable to the quantity of wasteland at market.  It could only be fully explained by the alarmingly prevalent want of private and public confidence among all ranks, which has a direct tendency to depreciate property of every kind. Private credit – the friend and patron of industry – was reduced within the narrowest limits, more so from the prevailing opinion of insecurity than from scarcity of money. 

To this melancholy situation were we led by the very maxims and councils who also sought to deter us from adopting the Constitution. Not content with having conducted us to the brink of a precipice, our opponents were resolved to plunge us into the abyss that awaited us below.  

These facts produced a general assent to existence of material defects in our former national system. It was at that point where we stood firm for our safety, tranquility, dignity, and reputation – impelled by every motive that ought to influence an enlightened People.  We at last broke the fatal charm which too long seduced us from the paths of felicity and prosperity.

* * *

The great and radical vice of the Confederation was that it authorized Federal legislation directed at States and governments in their corporate or collective capacities, but did not authorize legislation directed at the individuals of whom they consisted.

* * *

The adversaries of the Constitution strenuously opposed conferring upon the United States the powers to remedy the deficiencies of the Confederation. These adversaries aimed at things repugnant and irreconcilable: augmentation of Federal authority without a diminution of State authority, and sovereignty in the Federal government but with complete independence in the States.  They cherished with blind devotion the political monster of an imperium in imperio – of individual sovereign States within a sovereign Federal government.  

Thus it becomes necessary to display fully the principal defects of the Confederation, in order to show the evils we experienced did not proceed from minute or partial imperfections, but from fundamental errors in the structure of the building, which could not be amended other than by altering its main pillars.

The Need to Extend Federal Governmental Control Over Individuals

The great and radical vice of the Confederation was that it authorized Federal legislation directed at States and governments in their corporate or collective capacities, but did not authorize legislation directed at the individuals of whom they consisted.  Although this principle does not run through all the powers delegated to the United States, it pervades and governs those on which the efficacy of the rest depends. Except as to the rule of appointment, the Confederation had an indefinite discretion to make requisitions for men and money from the States, but it lacked authority to raise either by the use of regulations extending to the individual citizens of the States. In theory the regulations of the Confederation concerning those objects were binding on the States, but in practice they were mere recommendations which the States observed or disregarded at their option.

The capriciousness of the human mind is singularly shown by those who insisted we could not abandon these weaknesses of the Confederation, even though all the evidence and experience demonstrated that these weaknesses undermined the idea and very foundation of government. In the end, these opponents would have substituted the violent and sanguinary agency of the sword to the mild influence of the magistracy.

Europe’s Experience with Treaties Dependent on Good Faith

There is nothing absurd or impracticable in the idea of a league or alliance between independent nations for certain defined purposes precisely stated in a treaty regulating all the details of time, place, circumstance, and quantity; leaving nothing to future discretion, and depending for its execution on the good faith of the parties. Compacts of this kind exist among all civilized nations – subject to the usual vicissitudes of peace and war (and of treaty observance and non-observance) – as the interests or passions of the contracting powers dictate.  

In the years after 1700 there was an epidemical rage in Europe for this species of compacts, from which the politicians of the times fondly hoped for benefits that never materialized. All the resources of negotiation were exhausted with a view to establishing the equilibrium of power and the peace of that part of the world.  Triple and quadruple alliances were formed upon the assumption that general considerations of peace and justice would check the impulse of immediate interest or passion. But these treaties were soon broken, giving an instructive but afflicting lesson to humanity of how little dependence is to be placed upon treaties having no other sanction than the obligations of good faith. 

* * *

In the Eighteen Century, triple and quadruple alliances were formed upon the assumption that general considerations of peace and justice would check the impulse of immediate interest or passion. But these treaties were soon broken, giving an instructive but afflicting lesson to humanity of how little dependence is to be placed upon treaties having no other sanction than the obligations of good faith.

* * *

Limited Treaties Between the States Are Insufficient 

If the particular States had been disposed to stand in a similar relation to each other – and to drop the project of a general discretionary superintendence – the scheme would have indeed been  pernicious, entailing upon us all the mischiefs that flow when the competing interests or passions if the contracting States conflicted. But at least such a plan would have had the merit of being consistent and practicable.  If we had abandoned all views towards a Federal government, it would have brought us to a simple alliance offensive and defensive, and placed us in a situation alternately to be friends and enemies of each other, as our mutual jealousies and rivalries – nourished by the intrigues of foreign nations – would have prescribed to us.

But we were unwilling to be placed in this perilous situation, and still desired to adhere to the superintending power of a Federal government under the direction of a common council.  We therefore resolved to incorporate into our plan those ingredients which distinguish a league from a government: we extended the authority of the United States to individual citizens – who are the only proper objects of government.

A Penalty for an Illegal Act Must Be Enforceable Against the Offending Individual 

The penalty, whatever it may be, can be inflicted in only two ways: by the agency of the courts and ministers of justice, or by military force; that is, by the coercion of the magistracy, or by the coercion of arms. Coercion by courts and justice ministers can apply only to individuals; coercion by military force must be employed against bodies politic, communities, or states.  

It must be evident there is no process of a court by which the observance of the laws can, in the last resort, be enforced.  Sentences may be pronounced for violations of their duty; but these sentences can only be carried into execution by the sword. In an association where the general authority is confined to the collective bodies of the communities that compose it, every breach of the laws must involve a state of war, and military execution must be the only instrument of civil obedience.  Such a state of things can certainly not deserve the name of government, nor would any prudent individual choose to commit personal happiness to it.

* * * 

The spirit of faction – which is apt to mingle its poison in the deliberations of all bodies of humans – will often hurry its constituent members into improprieties and excesses, for which they would blush in a private capacity.

* * *

There was a time when we were told that breaches of the regulations of the Federal authority by the States were not to be expected, and that a sense of common interest would preside over the conduct of the respective members, and beget a full compliance with all the constitutional requisitions of the Confederation.  Experience – the best oracle of wisdom – has proven these assurances to be as wild as those heard earlier in Europe and now in opposition to the Constitution.  

A viewpoint that relies on good faith alone for compliance betrays an ignorance of the true springs by which human conduct is actuated, and belies the original inducements to the establishment of civil power. Why has government been instituted at all? Because the passions of humans will  not conform to the dictates of reason and justice without constraint. Has it been found that bodies of individuals act with more rectitude or greater disinterestedness than single individuals?  Every accurate observer of the human conduct has concluded the opposite is true, and for obvious reasons.  When the infamy of a bad action is to be divided among a number of individuals rather than fall singly upon one, a sound regard for one’s reputation has a less active influence.  The spirit of faction – which is apt to mingle its poison in the deliberations of all bodies of humans – will often hurry its constituent members into improprieties and excesses, for which they would blush in a private capacity.

Subordinate Political Bodies Often Resist a Superior Sovereign Power

In addition to all this, the nature of sovereign power includes an impatience for control. All those who exercise sovereign power look with an evil eye upon any external attempt to restrain or direct its operation. In response to this spirit of control, every inferior political association formed upon the principle of uniting in a common interest will have a tendency to fly off from the common center of the ultimate sovereign.  This tendency is easily explained: its origin is the love of power. Power that is controlled or abridged is almost always the rival and enemy of that power by which it is controlled or abridged.  

This simple proposition teaches us how little reason there is to expect that persons entrusted with the administration of the affairs of a particular member of a confederacy will at all times be ready to execute – with perfect good-humor and an unbiased regard to the public weal – the resolutions or decrees of the general authority. The reverse results from the very constitution of human nature. 

If the measures of the Constitution cannot be executed without the intervention of each constituent State government, there will be little prospect of their being executed at all.  The rulers of each State – whether or not they have a constitutional right to do so – will themselves undertake to judge the propriety of the Federal measures.  They will naturally consider the conformity of the thing proposed or required to their immediate interests or aims, and the momentary conveniences or inconveniences that would attend its adoption.  All this will be done in a spirit of interested and suspicious scrutiny, with a strong predilection in favor of local objects. The knowledge essential to a right judgment – the national circumstances and reasons of state which led to an enactment – will be absent, and this can hardly fail to mislead the local decision.  Furthermore, the same process must be repeated in every State, and the execution of the plans, framed by the councils of the whole, will always fluctuate on the discretion of the ill-informed and prejudiced opinion of every part.  Anyone conversant in the proceedings of popular assemblies has seen how difficult it is to bring them to harmonious resolutions on important points, in the absence exterior pressure of circumstances.  From this one can readily conceive how impossible it would be to induce a number of such assemblies – deliberating at a distance from each other, at different times, and under different impressions – to cooperate in the same views and pursuits.

Under the Articles of Confederation, the concurrence of thirteen distinct sovereign wills was required to complete the execution of every important measure that proceeded from the Union. As we saw, the measures of that Confederation were not executed; the delinquencies of the States incrementally matured themselves to an extreme, which at length arrested all the wheels of the national government, and brought them to an awful stand. Until the States could agree upon a more substantial substitute for the shadow of a Federal government, its Congresses scarcely possessed the means of keeping up the forms of administration.  

* * *

If the measures of the Constitution cannot be executed without the intervention of each constituent State government, there will be little prospect of their being executed at all.

* * *

Things did not proceed to this desperate extremity all at once. At first there were only unequal and disproportionate degrees of compliance with the requisitions of the Confederation. The greater deficiencies of some States furnished the temptation to and pretext for lesser compliance by the least delinquent States:  why should they do more in proportion than those States who had embarked with them on the same political voyage, or consent to bear more than our proper share of the common burden? These were suggestions human selfishness could not withstand, especially since consequences for noncompliance were remote.  Yielding to the persuasive voice of immediate interest or convenience, each State successively withdrew its support of the Confederation, until the frail and tottering edifice seemed ready to fall upon our heads and  crush us beneath its ruins.

Hamilton  

Federalist 16: Anarchy Results When Federal Systems Lack Power Over Subordinate Individuals   

WHEN A CENTRAL AUTHORITY or government directs its legislation to lesser states or communities in their political capacities – as opposed to directing it to the individuals comprising those states or communities – the tendency is towards anarchy, as exemplified both  by the experiment we have made of it, and the events which have befallen all other federal governments in exact proportion to its prevalence in those systems. 

Legislation directed to states or communities invariably leads to delinquencies by one or more of its members.  The only constitutional remedy for such delinquencies is force, and the immediate effect of its use is civil war.

The Use of Force Is a Far from Certain Remedy for Breaches by Subordinate Governments

It was uncertain whether the use of force would even have remedied the ills which weakened our former confederacy of States. In the absence of a large army constantly at the disposal of the national government, force could not be employed at all. If an army could have been raised, it would have resulted in a war between parts of the former confederacy.  

* * *

   Legislation directed to states or communities invariably leads to delinquencies by one or more of its members. The only constitutional remedy for such delinquencies is force, and the immediate effect of its use is civil war.

* * *

In such a war,  the strongest combination would most likely have prevailed, whether consisting of those who supported or of those who resisted the general authority. Since the delinquencies to be redressed would not likely be confined to a single member, the similarity of situation among those who had neglected their duty would have induced them to unite for common defense.  Aside from this motive of sympathy, if a large and influential State should happen to have been the initial aggressor, it would likely have weight enough with its neighbors to win over some of them as associates.  It would have been easy to contrive specious arguments about dangers to the common liberty and invent plausible excuses for the delinquency, in order to alarm the apprehensions, inflame the passions, and conciliate the goodwill even of those States not chargeable with any violation or omission of duty.  

This would have been the more likely course of the larger members, perhaps motivated by the ambitious premeditation of its rulers to break free from all external control upon their designs of personal aggrandizement. To achieve this end, these rulers presumably would have pleaded beforehand with leading individuals of adjacent States. If associates to their scheme could not be found at home, recourse would be had to the aid of foreign powers, who would seldom be disinclined to encourage the dissensions of a confederacy they would otherwise rightly fear.  

Once the sword is drawn, the passions of humans observe no bounds of moderation. The States against which the arms of the union were exerted would have been carried by wounded pride and irritated resentment to any extreme necessary to avenge the affront or avoid the disgrace of submission. The first war of this kind would probably have terminated in a violent dissolution of the union.  

A more natural death of the former confederacy of States is what we now seem to be on the point of experiencing, unless the Federal system is speedily renovated in a more substantial form.  Considering the genius of this country, it would be improbable for complying States to support the authority of the Union by engaging in a war against the noncomplying States.  They would always be more ready to pursue the milder course of putting themselves upon an equal footing with the delinquent members by an imitation of their example. And the guilt of all would thus become the security of all.  

Our past experience has exhibited the operation of this spirit in its full light, due to the insuperable difficulty in ascertaining when force could with propriety be employed. In the case of pecuniary contribution to the national government – which was the most usual source of delinquency – it was often impossible to decide whether it had proceeded from disinclination or inability. The pretense of inability would always be advanced, and seldom refuted, except in cases where the fallacy was flagrant.  It is easy to see that this problem alone, as often as it should occur, would open a wide field for the exercise of factious views, partiality, and oppression, among any majority that happened to prevail in the national council.

* * *

Once the sword is drawn, the passions of humans observe no bounds of moderation.

* * *

  It requires no proof that States ought not to prefer a national Constitution which could only be kept in motion by the instrumentality of a large army continually on foot to execute the ordinary requisitions or decrees of the government.  And yet this is the plain alternative involved by those who wish to deny it the power of extending its operations to individuals. If such a scheme were even practicable, it would instantly degenerate into a military despotism. But such a scheme will be found in every light impracticable.  To begin with, the resources of the Union are not and would not be equal to the maintenance of an army considerable enough to confine the larger States within the limits of their duty. Nor would the means ever be furnished of forming such an army in the first instance.  Anyone who considers the populousness and strength of several of these States singly at the present juncture, and looks forward to what they will become, even at the distance of half a century, will at once dismiss as idle and visionary any scheme which aims at regulating their movements by laws to operate upon them in their collective capacities, and to be executed by a coercion applicable to them in the same capacities. 

The principle of legislation for sovereign states, supported by military coercion, has proven ineffectual even in those confederacies composed of members smaller than many of our counties. Military coercion has been rarely employed, and then only against the weaker members.  Such attempts to coerce the refractory and disobedient have been the signals of bloody wars, in which one half of the confederacy has displayed its banners against the other half.

Federal Law Must Extend to Individual Citizens 

From these observations, intelligent minds must conclude that a Federal government capable of regulating the common concerns and preserving the general tranquility must be founded upon the reverse of the principle upon which the opponents of the Constitution rely. The Federal government must carry its agency to the persons of the citizens.  It must stand in need of no intermediate legislation. It must itself be empowered to employ the arm of the ordinary magistrate to execute its own resolutions, and the majesty of the national authority must be manifested through the medium of the courts of justice. The government of the United States, like that of each State, must be able to address itself immediately to the hopes and fears of individuals; and to attract to its support those passions which have the strongest influence upon the human heart. The United States must possess all the means, and have a right to resort to all the methods, of executing the powers with which it is entrusted, that are possessed and exercised by the government of the particular States. 

Since Federal Law Applies to Individual Citizens, a Contrary State Law Would Be an Open and Violent Exertion of an Unconstitutional Power    

It may be asserted in response that any State disaffected to the authority of the United States could obstruct the execution of its laws and thereby bring the matter to the same issue of force. The objection itself loses force when we advert to the essential difference between a mere noncompliance and a direct and active resistance to the laws of the Federal government. Where the interposition of the State legislatures is necessary to give effect to a measure of the United States, those legislatures need only not act, or to act evasively, to defeat the measure. Such neglect of duty could be disguised under affected but unsubstantial provisions, so as not to appear to raise – and of course not excite – any alarm in the People for the safety of the Constitution. The State leaders may even claim their surreptitious invasions are justified on the ground of some temporary convenience, exemption, or advantage.

But if the execution of the laws of the national government should not require the intervention of the State legislatures, if they were to pass into immediate operation upon the citizens themselves, State governments could not interrupt their progress without an open and violent exertion of an unconstitutional power.  No omissions or evasions could prove otherwise. They would be obliged to act, and in such a manner as would leave no doubt that they had encroached on the national rights.  An experiment of this nature would always be hazardous in the face of (1) an existing Constitution that is in any degree competent to its own defense, and (2) of a People enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority.  The success of it would require not merely a factious majority in the legislature, but the concurrence of the courts of justice and of the body of the People.  If the judges were not embarked in a conspiracy with the legislature, they would pronounce the resolutions of such a majority to be contrary to the supreme law of the land, unconstitutional, and void. If the People were not tainted with the spirit of their State representatives, they – as the natural guardians of the Constitution – would throw their weight into the national scale and give it a decided preponderancy in the contest. Attempts of this kind would not often be made with levity or rashness, because they could seldom be made without danger to the authors, except perhaps in the case of a tyrannical exercise of the Federal authority.

Refractory and Seditious Leaders of State Governments Would Be Subject to Prosecution by the Federal Executive Branch 

If opposition to the national government should arise from the disorderly conduct of refractory or seditious individuals, it could be overcome by the same means which are daily employed against the same evil under the State governments. The executive magistracy – being equally the ministers of the law of the land, would doubtless be as ready to guard the national as the local regulations from the inroads of private licentiousness, from whatever source it might emanate. As to those partial commotions and insurrections, which sometimes disquiet society – from intrigues of an inconsiderable faction, or sudden or occasional ill humors that do not infect the great body of the community, the Federal government could command more extensive resources for the suppression of disturbances of that kind than would be in the power of any single State.  

* * *

It requires no proof that States ought not to prefer a national Constitution which could only be kept in motion by the instrumentality of a large army continually on foot to execute the ordinary requisitions or decrees of the government. 

* * *

A Civil War Usually Results in Revolution or Dismemberment of Empire

And as to those mortal feuds which, in certain conjunctures, spread a conflagration through a whole nation, or through a very large proportion of it – proceeding either from weighty causes of discontent given by the government or from the contagion of some violent popular paroxysm – they do not fall within any ordinary rules of calculation.  When they happen, they commonly amount to revolutions and dismemberment  of empire. No form of government can always either avoid or control them.  It is in vain to hope to guard against events too mighty for human foresight or precaution, and it is idle to object to a government because it could not perform impossibilities.

Hamilton

Federalist 17: Applying Federal Law to Individual State Citizens Will Not Result in an Unlimited Federal Government

ANOTHER OBJECTION made to the principle that Federal law ought  to apply to the individual citizens of America is that it would tend to render the government of the United States too powerful, and enable it to absorb those residual authorities which are properly left to the States for local purposes.

Those Without Federal Power Falsely Assume Those with Federal Power Will Abuse It

The objection assumes the persons entrusted with the administration of the general government would be tempted to divest the States of such residuary authorities.  Allowing the utmost latitude to the love of power any reasonable person can desire, the regulation of the mere domestic police of a State appears to hold out slender allurements to ambition.  The objects lodged in the national depository in the first instance – commerce, finance, negotiation, war, and the powers necessary thereto – comprehend all the objects which charm those minds governed by the passion for power.  The powers properly reserved for local legislation – the administration of private justice between the citizens of the same State, the supervision of agriculture, and other concerns of a similar nature – can never be desirable cares of general Federal power.   

Federal councils disposed to usurp and exercise these residual powers would find the task as troublesome as successful in negating those residual powers; and for this reason the possession of them would contribute nothing to the dignity, importance, or splendor of the national government or their persons. Even if I were to assume the existence base wantonness and lust of domination would beget such a disposition, the constituent body of the Congress – composed of representatives of all the States – would control the indulgence of so extravagant an appetite.  

States Pose Greater Threats to Federal Power than Vice-Versa

The objection that the Federal government will become too powerful disregards that State governments can encroach upon the national authorities with greater ease than the national government can encroach upon the State authorities. A State government will generally possess a greater degree of influence over the People if it administers its affairs with uprightness and prudence.  

* * *

Allowing the utmost latitude to the love of power any reasonable person can desire, the regulation of the mere domestic police of a State appears to hold out slender allurements to ambition. The objects lodged in the national depository in the first instance – commerce, finance, negotiation, war, and the powers necessary thereto – comprehend all the objects which charm those minds governed by the passion for power.  

* * *

Human affections are generally weaker in proportion to the distance or diffusiveness of the object. Just as one is more attached to family than to neighborhood, and to neighborhood than to the community at large, the People of each State would be apt to feel a stronger connection to their local governments than to the government of the United States (unless the latter has a much better administration).  As a consequence, there is an inherent and intrinsic weakness in all federal constitutions, requiring detailed attention to their organization, in order to give them all the force compatible with the principles of liberty.  

States Retain the Important Power and Control over the Ordinary Administration of Criminal and Civil Justice

While the diffusive construction of the Federal government partly contributes to the superiority of influence in favor of State governments, the chief cause of State superiority results from the nature of the objects to which the attention of the State administrations are directed. This strength of local administrations lies in their superintendence of minute interests, which form so many rivulets of influence, running through every part of the society, that they cannot be particularized without involving a detail too tedious and uninteresting to compensate for the instruction it might afford. There is, however, one transcendent advantage belonging to the province of the State governments which alone suffices to place the matter in a clear and satisfactory light:  the ordinary administration of criminal and civil justice, which is the most powerful, universal, and attractive source of popular obedience and attachment. 

The administration of criminal and civil justice – being the immediate and visible guardian of life and property – has its benefits and its terrors in constant activity before the public eye. In regulating all those personal interests and familiar concerns to which the sensibility of individuals is more immediately awake, the administration of criminal and civil justice contributes more than any other circumstance to impressing upon the minds of the People affection, esteem, and reverence towards the government. This great cement of society, diffused almost wholly through the channels of local governments, and independently of all other causes of influence), ensure them so decided an empire over their respective citizens as to render them at all times a complete counterpoise – and not infrequently – dangerous rivals to the power of the United States.  

The Federal Government Will Have Less Impact on Daily Lives than State Governments

On the other hand, the operations of the Federal government fall less immediately under the observation of the mass of the citizens. The benefits of such operations will chiefly be perceived and attended to by speculative individuals. Since the Federal operations will relate to more general interests, they will be less apt to come home to the feelings of the People; and, in proportion, less likely to inspire an habitual sense of obligation, and an active sentiment of attachment.  

The Examples of the Feudal System and Scotland 

The experience of all federal constitutions and analogous arrangements demonstrate exemplify these observations. For example, ancient feudal systems – although they were not, strictly speaking, confederacies – partook of the nature of that species of association.

There was a common head, chieftain, or sovereign, whose authority extended over the whole nation; and a number of subordinate vassals, or feudatories, who had large portions of land allotted to them, and numerous trains of inferior vassals or retainers, who occupied and cultivated that land upon the tenure of fealty or obedience, to the persons from whom they held it.  

Each principal vassal was a kind of sovereign within the area he controlled.  As a consequence there was a continual opposition to a general sovereign, resulting in frequent wars between the great barons or chief feudatories themselves. Since the power of the head of the nation was commonly too weak to preserve the public peace or protect the people against the oppressions of their immediate lords, feudal anarchy ensued.  

When the sovereign happened to have a vigorous, warlike temper and superior abilities, he would acquire a personal weight and influence, which answered, for the time, the purpose of a more regular authority, but generally the power of the barons triumphed over the power of the prince. In many instances his dominion was entirely thrown off, and the great fiefs were erected into independent principalities or states. In those instances in which the monarch finally prevailed over his vassals, his success was chiefly owing to the tyranny of those vassals over their dependents.  The barons or nobles – being equally the enemies of the sovereign and the oppressors of the common people – were dreaded and detested by both. The mutual danger and mutual interest of the prince and the people effected a union between them fatal to the power of the aristocracy. Had the nobles preserved the fidelity and devotion of their retainers and followers by a conduct of clemency and justice, their contests with the prince would almost always have ended in their favor, with the abridgment or subversion of royal authority.  

This assertion is not founded merely in speculation or conjecture, for the example of Scotland, among others, illustrates its truth. From that kingdom’s early days, the spirit of clanship united the nobles and their dependents as though they were kindred. These ties rendered the aristocracy a constant overmatch for the power of the monarch, until England subdued its fierce and ungovernable spirit, and subordinated it to a more rational and energetic system of civil polity.

States May Be Compared to Feudal Baronies

The separate governments in a confederacy may aptly be compared with feudal baronies.  They will generally possess the confidence and goodwill of the People, and be disposed to oppose all encroachments of the national government. In fact, the States would tend to counteract the legitimate and necessary Federal authority. Both State and Federal governments would rival for power, but the State has large portions of the strength of the community concentrated into particular deposits, in one case at the disposal of individuals, in the other case at the disposal of political bodies. 

Hamilton

Federalist 18-20: Review of Confederacies throughout History  

Federalist 18: Two Confederacies from Greece Offer Valuable Lessons to the United States

HERE I DISCUSS HISTORICAL CONFEDERACIES bearing closest resemblance to the former Confederation of the American States.  I will discuss the German, Polish and Swiss confederacies in Federalist 19, and the confederacy of the United Netherlands in Federalist 20. 

The Amphictyonic Council of Greece

The first instructive analogy is the confederacy of the Grecian republics of antiquity, associated under the Amphictyonic Council of Greece (“Council”). From the best accounts transmitted of this celebrated Council, its members retained the character of independent and sovereign states, and had equal votes in the Council.  The Council had a general authority to propose and resolve whatever it judged necessary for the common welfare of the confederacy, to declare and carry on war, to decide all controversies between the members (including imposing fines on the aggressing party and employing the whole force of the confederacy against the disobedient), and to admit new members. The Amphictyons were the guardian of religion and the immense riches belonging to the temple of Delphos, over which they had the right of jurisdiction to decide controversies between the inhabitants and those who came to consult the oracle.  To further the efficacy of the federal powers, a mutual oath was sworn to defend and protect the united cities, to punish the violators of this oath, and to inflict vengeance on sacrilegious despoilers of the temple.

Both in theory and writing, this apparatus of powers seemed amply sufficient for all general purposes.  In several material instances, though, the Council exceeded the powers enumerated in its articles of confederation. The Amphictyons had in their hands the superstition of the times – which was one of the principal engines by which their government was maintained. The Council also had a declared authority to use coercion against refractory cities, and the members were bound by oath to exert this authority on the necessary occasions.

The experiment proved very different from the theory. The Council’s powers were administered by deputies appointed by the cities wholly in their political capacities, and exercised over them in the same capacities.  This error was the same one we experienced under our former Articles of Confederation. From this error, weakness and disorder ensued, finally destroying the confederacy. The more powerful members – instead of being kept in awe of and subordinate to the Council – tyrannized successively over all the other members.  Athens was the arbiter of Greece for 73 years, followed by the Lacedaemonians, who governed for 29 years.  After the battle of Leuctra, the Thebans had their turn of domination.

The deputies of the strongest cities awed and frequently corrupted those of the weaker cities. The members never acted in concert, even in the midst of defensive and dangerous wars with Persia and Macedon. Some deputies were eternally the dupes or the hirelings of the common enemy. The intervals of foreign war were filled up by domestic vicissitudes, convulsions, and carnage.

* * *

Had the Greeks been as wise as they were courageous, they would have availed themselves of the peace which followed their success against Persian arms to establish a closer union. Instead, Athens and Sparta – inflated with the victories and the glory they had acquired – first became rivals and then enemies, causing each other infinitely more mischief than they had suffered from Xerxes.

* * *

After the war with the Persians (led by Xerxes) concluded, the Lacedaemonians demanded that a number of the cities be turned out of the confederacy, for their wartime unfaithfulness.  The Athenians saw that such a measure would lose them more allies than the Lacedaemonians, who would thereby become masters of the Council’s public deliberations. The Athenians thus vigorously opposed and defeated the attempt.  This history proves not only the inefficiency of the union, but the ambition and jealousy of its most powerful members, and the dependent and degraded condition of the rest. The smaller members – though entitled by the theory of their system to revolve in equal pride and majesty around the common center – had in fact become mere  satellites of the orbs of primary magnitude.

Had the Greeks been as wise as they were courageous, they would have availed themselves of the peace which followed their success against Persian arms to establish a closer union.  Instead, Athens and Sparta – inflated with the victories and the glory they had acquired – first became rivals and then enemies, causing each other infinitely more mischief than they had suffered from Xerxes.  Their mutual jealousies, fears, hatreds, and injuries culminated with the celebrated Peloponnesian war, which itself ended in the ruin and slavery of the Athenians, who had started it.

Philip of Macedon’s Successful Scheme to Control the Amphictyonic Council

When not at war, a weak government is ever agitated by internal dissensions. These in turn never fail to bring on fresh calamities from abroad.  For example, when the Phocians ploughed up some consecrated ground belonging to the temple of Apollo, the Amphictyon Council imposed a fine on the sacrilegious offenders.  The Phocians – being abetted by Athens and Sparta – refused to submit to the decree.  Other cities undertook to maintain the authority of the Council and avenge the violated god.  Being weaker, they invited the assistance of Philip of Macedon. Unbeknownst to the Amphictyons, Philip had instigated the controversy. He gladly seized the opportunity of executing the designs he had long planned against the liberties of Greece. By his intrigues and bribes he won over to his interests the popular leaders of several cities. By their influence and votes, he gained admission into the Council. By his arts and his arms, he made himself master of the Amphictyonic confederacy.

* * *

When not at war, a weak government is ever agitated by internal dissensions. These in turn never fail to bring on fresh calamities from abroad. 

* * *

Such were the consequences of the principle on which this league was founded, and which opponents of our Constitution would have us follow, to a similar end. Had Greece been united by a stricter confederation – and persevered in her union – she would never have worn the chains of Macedon, and might have proved a barrier to the vast projects of Rome.

The Achaean League 

Another society of Grecian republics – known as the Achaean league – supplies us with valuable instruction. That union was far more intimate, and its organization much wiser than in the Amphictyonic Council. The cities comprising the league retained their municipal jurisdiction, appointed their own officers, and enjoyed a perfect equality. The cities were represented in a senate, which had the sole and exclusive right of declaring peace and war, sending and receiving ambassadors, and entering into treaties and alliances.  The senate appointed a chief magistrate – or praetor, as he was called – who commanded their armies. With the advice and consent of 10 senators, the praetor administered the government while the senate was in recess, and when it was assembled, he had a great share in its deliberations.  (Their constitution initially designated two praetors would administer the league, but on trial, this was reduced to one.) 

The cities of the league apparently shared the same laws, customs, weights, measures, and money.  When Lacedaemon was brought into the league by Philopoemen, the institutions and laws of Lycurgus of Sparta were abolished, and replaced with those of the Achaeans.  Prior to its entry to the Achaean league, Lacedaemon had been a member of the Amphictyonic confederacy, which had left her in the full exercise of her government and legislation. This circumstance alone proves a very material difference in the genius of the two systems.

It is regrettable that only imperfect monuments remain of this curious political edifice.  If one could ascertain its interior structure and regular operation, its would contribute much to the science of operating a federal government. 

One important fact is known about the Achaean league: from its inception, through its renovation by Aratus, and prior to its dissolution by the arts of Macedon, there was infinitely more moderation and justice in the administration of its government – and less of violence and sedition in the people – than were to be found in any of the cities exercising singly all the prerogatives of sovereignty.  One of our contemporaries, the French philosopher Abbé de Mably, says the popular government caused no disorders within the members of the Achaean league because it was tempered by the general authority and laws of the confederacy.

Nevertheless, faction did agitate the particular cities to a certain degree, and a due subordination and harmony did not reign in the general system, which is sufficiently displayed in the vicissitudes and fate of the republic.  

The Achaean league arose while the Amphictyonic confederacy remained, but comprehended the less important cities only, and made little figure on the theater of Greece.  After the Amphictyonic confederacy became a victim to Macedon, the policies of Philip and Alexander spared the Achaean republic. The successors to these princes, however, practiced the arts of division among the Achaeans. Each city was seduced into a separate interest, and the union dissolved.  Some of the cities fell under the tyranny of Macedonian garrisons, while others under the tyranny of usurpers springing out of their own confusions.  

Before long, though, shame and oppression awakened the Achaean love of liberty.  A few cities reunited, and others followed, as opportunities were found of cutting off their tyrants. The league soon embraced almost the whole of Peloponnesus. Macedon witnessed this progress, but was hindered from stopping it by internal dissensions. All Greece caught the enthusiasm and seemed ready to unite in one confederacy, when the jealousy and envy of Sparta and Athens to the rising glory of the Achaeans threw a fatal damp on the enterprise.  

The dread of Macedonian power induced the Achaean league to court the alliance of the kings of Egypt and Syria, who as successors of Alexander were rivals of the king of Macedon.  This policy was defeated by Cleomenes, king of Sparta, whose ambition led him to make an unprovoked attack on the neighboring Achaeans. Sparta, as an enemy to Macedon, had interest enough with the Egyptian and Syrian princes to effect a breach of Achaean  engagements with the league.

The Achaeans were now reduced to the dilemma of submitting to Cleomenes of Sparta, or of supplicating the aid of Macedon, its former oppressor to the north.  The Achaeans chose the aid of Macedon, which was again pleased to intermeddle in the affairs of its southern neighbors. A Macedonian army quickly appeared, and Cleomenes was vanquished, but as so often happens, the Achaeans soon realized their victorious and powerful ally intended to be their master.  Philip – now on the throne of Macedon – no more than tolerated Achaean laws, and the Achaeans were soon provoked by his tyrannies, which led to fresh combinations among the Greeks.  Together with Aetolians and Athenians, the Achaeans erected the standard of opposition. Notwithstanding this new support, the Achaeans found themselves unequal to the undertaking. Once more the Achaeans resorted to the dangerous expedient of introducing the succor of foreign arms.  The Romans, to whom the invitation was made, eagerly embraced it. Philip was conquered, and Macedon subdued.  

A new crisis to the Achaean league ensued when dissensions broke out among it members, which the Romans fostered.  Inveigling their countrymen, popular leaders like Callicrates debased themselves to mere mercenary instruments of Rome.  To nourish further the discord and disorder, the Romans proclaimed universal liberty throughout Greece.  The Romans seduced members from the Achaean league by representing to their pride that league membership violated their sovereignty.  By these arts the Achaean union – the last hope of Greece and the last hope of ancient liberty – was torn into pieces. Such imbecility and distraction were introduced that the arms of Rome found little difficulty in completing the ruin their arts had commenced. The Achaeans were cut to pieces and Achaia was loaded with chains, under which it still groans. 

* * *

The Romans seduced members from the Achaean league by representing to their pride that league membership violated their sovereignty. By these arts the Achaean union – the last hope of Greece and the last hope of ancient liberty – was torn into pieces.

* * *

This important portion of history emphatically illustrates the tendency of federal bodies to induce anarchy among its members, than to impose tyranny from the head.  

Madison and Hamilton

Federalist 19: Examination of the German, Polish and Swiss Confederacies

SEVERAL EUROPEAN CONFEDERATIONS OFFER more recent evidence than the examples of ancient confederacies discussed in Federalist 18. 

Germany After Charlemagne 

In the early ages of Christianity, Germany was occupied by seven distinct nations, none of which had a common chief.  One of the seven – the Franks – conquered the Gauls and established the kingdom now known as France. In the ninth century, its warlike monarch – Charlemagne – carried his victorious arms in every direction, and Germany became a part of his vast dominions. His principal Germanic vassals, whose fiefs had become hereditary, were permitted to continue participation in their national political bodies.  

Charlemagne possessed the ensigns, dignity and reality of imperial power, but his sons dismembered the empire, and Germany was erected into a separate and independent empire.  Its leaders gradually threw off the yoke and advanced to sovereign jurisdiction and independence.  The force of imperial sovereignty was insufficient to restrain them, or to preserve the unity and tranquility of the empire. Furious private wars, accompanied with every species of calamity, were carried on between the different princes and states.  Unable to maintain the public order, the imperial authority declined by degrees until it was almost extinct in the anarchy which ensued during the long interval between the death of the last emperor of the Swabian line, and the accession of the first emperor of the Austrian lines, which arose to the southeast of Germany.  In the eleventh century the emperors enjoyed full sovereignty; but by the fifteenth they had little more than the symbols and decorations of power.

The Germanic Feudal System

Out of this feudal system (which itself has many of the important features of a confederacy) grew a federal system which constitutes the Germanic empire. Its powers are vested (1) in a formal deliberative assembly known as a diet, which represents the component members of the confederacy; (2) in the emperor, who is the executive magistrate, with a negative on the decrees of the diet;  and (3) in the imperial chamber and the aulic council, the two judicial tribunals having supreme jurisdiction in controversies which concern the empire, or which happen among its members.

Composition of the German Diet 

The German diet possesses the general power of legislating for the empire, making war and peace, contracting alliances, assessing quotas of troops and money, constructing fortresses, regulating coin, admitting new members, and subjecting disobedient members to the ban of the empire by degrading his sovereign rights and forfeiting his possessions. The members of the confederacy are expressly restricted from entering into compacts prejudicial to the empire, imposing tolls and duties on their mutual intercourse without the consent of the emperor and diet, altering the value of money, doing injustice to one another, or affording assistance or retreat to disturbers of the public peace. The ban applies to a violation of any of these restrictions. A member of the diet – in his capacity as a member – is subject in all cases to be judged by the emperor and diet. In his private capacity, jurisdiction  over a member of the dirt vests in the aulic council and imperial chamber.

Powers of the German Emperor

The prerogatives of the emperor are numerous, the most important being his exclusive right to make propositions to the diet and veto its resolutions, name ambassadors, confer dignities and titles, fill vacant electorates, found universities, grant privileges not injurious to the states of the empire, receive and apply the public revenues; and generally to watch over the public safety.  In certain cases, the electors form a council to him. As emperor, he possesses no territory within the empire, nor receives any revenue for his support, but his powers still constitute him one of the most powerful princes in Europe.

The Germanic Feudal System in Practice 

From this parade of constitutional powers, both in the representatives and head of this confederacy, one naturally would suppose it must form an exception to the general character which belongs to its kindred systems. Yet nothing would be further from reality.  The fundamental principles on which it rests – the empire is a community of sovereigns, the diet is a representation of those sovereigns, and the laws are addressed to sovereigns – renders the empire a nerveless body, incapable of regulating its own members, insecure against external dangers, and agitated with unceasing fermentations in its own bowels.

* * *

The history of Germany is a history of wars – wars between the emperor and the princes and states, and wars among the princes and states themselves – of the licentiousness of the strong and the oppression of the weak, of foreign intrusions and foreign intrigues, of requisitions of men and money disregarded in whole or in part, of attempts to enforce them which are either altogether abortive or attended  with slaughter and desolation of the innocent along with the guilty, and of general imbecility, confusion, and misery.

* * *

War in Germany

The history of Germany is a history of wars – wars between the emperor and the princes and states, and wars among the princes and states themselves – of the licentiousness of the strong and the oppression of the weak, of foreign intrusions and foreign intrigues, of requisitions of men and money disregarded in whole or in part, of attempts to enforce them which are either altogether abortive or attended with slaughter and desolation of the innocent along with the guilty, and of general imbecility, confusion, and misery.

In the sixteenth century, for example, the emperor, with one part of the empire on his side, was engaged against the other princes and states. In one of the conflicts, the emperor himself was put to flight and very near made a prisoner by the elector of Saxony.  A king of Prussia was more than once pitted against his imperial sovereign, and commonly proved an overmatch for him. Controversies and wars among the members themselves were so common that the German annals are crowded with the bloody pages which describe them. Previous to the peace of Westphalia, Germany was desolated by a war of thirty years, in which the emperor (with one half of the empire) was on one side, and Sweden (with the other half) on the opposite side. Peace was at length negotiated, and dictated by foreign powers; and the articles of it, to which foreign powers are parties, made a fundamental part of the Germanic constitution.

German Disunity Is the Norm 

Even if Germany happens to be more united by the emergency of self-defense, its situation remains deplorable.  Military preparations require tedious discussions arising from the jealousies, pride, separate views, and clashing pretensions of sovereign bodies. Before the diet can settle arrangements, the enemy is in the field, and before the federal troops are ready to take the field, they are retiring into winter quarters.  The small body of national troops – deemed necessary in time of peace – is not kept up, badly paid, infected with local prejudices, and supported by irregular and disproportionate contributions to the treasury.

The impossibility of maintaining order and dispensing justice among these sovereign subjects has produced the experiment of dividing the empire into nine or ten circles or districts, giving each an interior organization, and charging them with the military execution of the laws against delinquent and contumacious members.  This experiment has served only to demonstrate more fully the radical vice of the constitution. Each circle is the miniature picture of the deformities of this political monster. They either fail to execute their commissions, or they do it with all the devastation and carnage of civil war. Sometimes whole circles are defaulters, and then they increase the mischief which they were instituted to remedy. 

The Example of the Duchy of Swabia 

The scheme of military coercion is shown by the example of Donauwörth, a free and imperial city of the circle of Swabia, where its leader enjoyed certain immunities which had been reserved to him.  In the exercise of these, on some public occasions, outrages were committed on him by the people of the city.  The consequence was that the city was put under the ban of the empire, and the Duke of Bavaria, though director of another circle, obtained an appointment to enforce it.  He soon appeared before the city with a corps of ten thousand troops, and finding it a fit occasion (as he had secretly intended from the beginning), he revived an antiquated claim, on the pretext that his ancestors had suffered the place to be dismembered from his territory.  The duke took possession of the city in his own name, then disarmed and punished the inhabitants, and reannexed the city to his domains.

The Emperor Has Kept Germany Together 

One might inquire:  What has so long kept this disjointed machine from falling entirely to pieces?  The answers are obvious: most of the members are weak and unwilling to expose themselves to the mercy of foreign powers; most of the principal members also are weak in comparison to the formidable powers all around them; the vast weight and influence the emperor derives from his separate and hereditary dominions; and the interest he feels in preserving a system with which his family pride is connected, and which constitutes him the first prince in Europe.  

* * *

Foreign nations have long been interested in the events shaping Germany, occasionally even betraying their policy of perpetuating Germany’s anarchy and weakness.

* * *

All these causes support a feeble and precarious union. The principle of competing dual sovereignty continually repels the members from each other, and prevents any reform to be had with a proper consolidation. Even if a local sovereign chose to yield some sovereign powers to a central sovereign, it is unimaginable that the neighboring powers would suffer the revolution to their sovereignty if the empire were give the force and preeminence to which it is entitled.  

Foreign nations have long been interested in the events shaping Germany, occasionally even betraying their policy of perpetuating Germany’s anarchy and weakness.

The Example of Poland

If another example were needed of the calamities befalling central governments attempting to control local sovereigns, Poland provides striking proof.  This nation has found itself equally unfit for self-government and for self-defense – and long been at the mercy of its powerful neighbors, who recently annexed one third of its people and territories.

The Swiss Confederacy

Sometimes the Swiss cantons are cited as an instance of the stability of a confederacy, although it scarcely amounts to one. They have neither common treasury, common troops (even in war), common coin, common judicatory, nor any other common mark of sovereignty.  

The cantons are kept together by a catalogue of unusual circumstances, including the peculiarity of their topographical locations, their individual weakness and insignificancy, and their fear of powerful neighbors. There are few sources of contention among the simple and homogeneous people. They have a joint interest in their dependent possessions, and the mutual aid they offer and require for suppressing insurrections and rebellions. Further, there is need of some regular and permanent provision for accommodating disputes among the cantons.  

In such a dispute, the parties at variance each chooses four judges out of the neutral cantons, who (in case of disagreement) choose an umpire. This tribunal – under an oath of impartiality – pronounces a definitive sentence, which all the cantons are bound to enforce. 

Whatever efficacy the Swiss union may have had in ordinary cases, it appears the moment a cause of difference sprang up – capable of trying its strength – it failed.  The controversies on the subject of religion have in three instances kindled violent and bloody contests and eventually severed the league.  Thereafter the Protestant and Catholic cantons have had their separate diets, where all the most important concerns are adjusted, leaving to the general diet little other than commercial proceedings. 

The separation of the cantons had another consequence meriting attention: it produced opposite alliances with foreign powers.  Bern, at the head of the Protestant association, aligned with the United Provinces, while Lucerne, at the head of the Catholic association, sided with France.

Hamilton with the assistance of Madison

Federalist 20: The Confederacy of the United Netherlands

THE FINAL CONFEDERATION resembling the United States is the present-day United Netherlands. Its contemporary lessons confirm those derived from those confederacies we have already reviewed.  

United Netherlands

United Netherlands is a confederacy of republics (or more precisely aristocracies) consisting of seven coequal and sovereign states.  Each state (or province) is composed of equal and independent cities. The union requires that the states to be unanimous, and in important cases, the cities also must be unanimous.  The sovereignty of the union is represented by the States-General, consisting usually of about fifty deputies appointed by the provinces. Some hold their seats for life, others for six, three, or one year terms, and in two provinces their appointment is at will.

The Legislative Authority in the United Netherlands

The States-General has authority to enter into treaties and alliances, make war and peace, raise armies and equip fleets, ascertain quotas, and demand contributions.  In all these cases, unanimity and the sanction of their lesser constituents are requisite.  The States-General also has authority to appoint and receive ambassadors, execute treaties and alliances already formed, provide for the collection of duties on imports and exports, regulate the mint, and to govern as sovereigns their dependent territories.  Unless given general consent, the provinces are restrained from entering into foreign treaties, establishing imposts injurious to others, or charging their neighbors with higher duties than their own subjects.  The federal administration is aided and fortified by a council of state and a chamber of accounts, with five colleges of admiralty.

The Executive Authority in the United Netherlands 

The executive magistrate of the union is the stadtholder, who is now a hereditary prince.  His weight and influence in the republic are derived in part from this independent title, his great patrimonial estates, and his family connections with some of the chief potentates of Europe. Perhaps most important, however, is his status as stadtholder in the several provinces. As provincial stadtholder, he appoints town magistrates under certain regulations, executes provincial decrees, presides when he pleases in the provincial tribunals, and controls the power of pardon.

His prerogatives as stadtholder of the union are also considerable. In his political capacity, he has authority to settle disputes between the provinces when other methods fail, assist at the deliberations of the States-General and their particular conferences, give audiences to foreign ambassadors, and keep agents for his particular affairs at foreign courts.  

In his military capacity, he commands the federal troops, provides for garrisons, disposes of all appointments from colonel to ensign, selects the governments and posts of fortified towns, and generally regulates military affairs.

In his marine capacity (as admiral-general), he superintends and directs everything relative to naval forces and other naval affairs, presides in the admiralties in person or by proxy, appoints lieutenant-admirals and other officers, and establishes councils of war, whose sentences are not executed until he approves them.

His revenue (exclusive of his private income) amounts to 300,000 florins. The standing army which he commands consists of about 40,000 men.

The United Netherlands in Practice

Such is the nature of the celebrated union on parchment.  What are the characters which practice has stamped upon it?  Imbecility in the government; discord among the provinces, foreign influence and indignities, a precarious existence in peace, and peculiar calamities from war.

The esteemed Dutch jurist Hugo Grotius remarked long ago that nothing but the hatred of his countrymen to the house of Austria kept them from being ruined by the vices of their constitution.  Another respectable writer observed the union reposes in the States-General an authority seemingly sufficient to secure harmony, but that the practice is very different from the theory due to the jealousies in each province.  The same instrument, says another, obliges each province to levy certain contributions, but that this article will probably never be executed because the inland provinces cannot pay an equal quota on account of insufficient commerce.

It is the practice to waive the articles of the constitution in matters of contribution.  The danger of delay obliges the consenting provinces to furnish their quotas without waiting for the others, and then to obtain reimbursement from the others by deputations (which are frequent) or otherwise, as they can. The great wealth and influence of the province of Holland has enabled her to do both. More than once were the deficiencies ultimately collected at the point of the bayonet.  This is only possible in a confederacy where the force of one of the members exceeds all the rest, and where several of them are too small to meditate resistance.  It is utterly impracticable in a confederacy in which several of the members are equal to each other in strength and resources, and equal singly to a vigorous and persevering defense.

Foreign ministers, says Sir William Temple (who was himself a foreign minister), elude matters subject to finalization of details, by tampering with the provinces and cities.  In 1726, the treaty of Hanover was delayed by these means a whole year. Instances of a like nature are numerous and notorious.

* * *

Tyranny more often grows out of the demand for and assumption of power not authorized by a constitution – usually to respond to a pressing exigency – than from the full exercise of the largest constitutional authorities.

* * *

In critical emergencies, the States-General are often compelled to overleap their constitutional bounds.  In 1688, they concluded a treaty of themselves at the risk of their heads.  The treaty of Westphalia, in 1648 – by which their independence was formerly and finally recognized – was concluded without the consent of Zealand. Even as recently as the last treaty of peace with Great Britain, the States-General departed from the constitutional principle of unanimity.

A weak constitution necessarily terminates in dissolution, either from want of proper powers, or usurpation of the powers requisite for the public safety.  Whether the usurpation of powers – when once begun – will stop at the salutary point, or go forward to the dangerous extreme, depends on the contingencies of the moment. Tyranny more often grows out of the demand for and assumption of power not authorized by a constitution – usually to respond to a pressing exigency – than from the full exercise of the largest constitutional authorities.

The calamities just discussed have been produced as well as ameliorated by the stadtholdership. Without his influence in the individual provinces, the causes of anarchy manifest in the confederacy would long ago have dissolved it. “Under such a government,” says the Abbé de Mably, “the Union could never have subsisted, if the provinces had not a spring within themselves, capable of quickening their tardiness, and compelling them to the same way of thinking. This spring is the stadtholder.” During intermissions of the of the stadtholdership, Sir William Temple reports, Holland assumed the role “by her riches and her authority, which drew the others into a sort of dependence.”

In addition to the stadtholder, the strength of the surrounding powers has lessened the tendency to anarchy and dissolution, and practically imposed an absolute necessity of union. At the same time, by their intrigues these powers nourish the constitutional vices which keep the republic in some degree always at their mercy.

The true patriots of the United Netherlands have long bewailed the fatal tendency of these vices and sought to remedy them. They conceived a design to establish a general tax to be administered by the federal authority, but its adversaries defeated it. In no less than four instances, these patriots convened extraordinary assemblies for the special purpose of reforming the known, acknowledged, and fatal evils of the existing constitution. In as many instances has their laudable zeal found it impossible to unite the public councils. 

* * *

Experience is the oracle of truth. Where its responses are unequivocal, they ought to be conclusive and sacred. The important truths history unequivocally pronounces in the present case are these:  

a sovereignty over sovereigns, 

a government over governments, 

and a legislation for communities 

– as contrdistinguished from legislation for individuals – 

are subversive of the order and ends of civil polity. Ultimately they substitute violence in place of law.

* * *

These unhappy people seem to be now suffering from popular convulsions, dissensions among the states, and the actual invasion of foreign arms – which are crises destined by their defective constitution. All nations have their eyes fixed on the awful spectacle.  The first wish of humanity is this severe trial will cause such a revolution of their government so as to establish a union that will be the parent of tranquility, freedom, and happiness.  The next wish is the asylum under which the enjoyment of these blessings will speedily be secured in this country, to receive and console them for the catastrophe of their own.  The melancholy lesson of the United Netherlands causes a tear to drop for the calamities brought on mankind by their adverse opinions and selfish passions.  In contrast, we are grateful for the propitious concord which distinguished the consultations for political happiness our own representatives recently concluded.

The Laws of a Federal Government Must Be Directed Towards Its Citizens as Individuals 

I make no apology for having dwelt so long on the contemplation of these federal precedents. Experience is the oracle of truth. Where its responses are unequivocal, they ought to be conclusive and sacred. The important truths history unequivocally pronounces in the present case are these: a sovereignty over sovereigns, a government over governments, and legislation for communities – as contradistinguished from legislation for individuals – are subversive of the order and ends of civil polity. Ultimately they substitute violence in place of law.  To replace the destructive coercion of the sword with the mild and salutary coercion of the magistracy, the objects of the powers of the sovereign government must be individuals, not fellow sovereigns, governments, or communities.

Madison with the assistance of Hamilton 

Federalist 21 -23: The Articles of Confederation Were Inadequate  

Federalist 21:  Summary of the Defects of the Articles of Confederation

HAVING REVIEWED THE PRINCIPAL CIRCUMSTANCES and events which depict the genius and fate of other confederate governments – most notably the lack of  federal sovereignty over individuals rather than states (in Federalist 18-20) – I shall now enumerate the most important of those defects which have hitherto disappointed our hopes from the system we established among ourselves.  It is absolutely necessary that we should be well acquainted with the extent and malignity of the disease in order to form a safe and satisfactory judgment of the proper remedy.

The Federal Government Must Have Authority to Enforce Its Laws 

A palpable defect of the Confederation was the total want of a sanction to its laws.  The Confederation had no powers to exact obedience – or to punish disobedience – to its resolutions, whether by fines or taxes, suspension or divestiture of privileges, or any other constitutional mode. There was no express delegation of authority to use force against delinquent States, and inferring one would have required a construction that would have justified departure from second article of Confederation, which declared “that each State shall retain every power, jurisdiction, and right, not expressly delegated to the United States in Congress assembled.”  

We had either to contravene or explain away this provision or to embrace the absurdity that the Federal government had no right to compel obedience or sanction disobedience to its laws. If we were unwilling to impair the force of this provision, the United States would have presented the extraordinary spectacle of a government destitute even of the shadow of constitutional power to enforce the execution of its own laws. Even those defective republics I examined in the preceding three papers were not so destitute of power. 

The Federal Government Must Have the Power to Guarantee State Governments 

Another principal imperfection in the Articles of Confederation was the want of a Federal guarantee of the State governments. The Articles declared nothing of its kind. To have implied a tacit guarantee (from considerations of utility) would have marked a flagrant departure from the clause declaring “that each State shall retain every power, jurisdiction, and right, not expressly delegated to the United States in Congress assembled.”  An implied guarantee also would improperly imply a tacit power of coercion from like considerations.

Absent such a guarantee, the United States could provide no assistance in repelling those domestic dangers which may sometimes threaten the existence of the State constitutions. Usurpers might rear their crests in each State, and trample upon the liberties of the People, while the Federal government could legally do nothing more than behold its encroachments with indignation and regret. A successful faction may erect a tyranny on the ruins of order and law, while no succor could constitutionally be afforded by the Federal government to the friends and supporters of the State government.  

* * *

In a popular (representative) constitution, the natural cure for ill administration is a change of leaders. So long as the whole power of the government remains in the hands of the People, there seldom should be either need or pretense for the use of violent remedies in partial or occasional distempers of the state.

* * *

Dangers of this kind are not merely speculative, as evidenced recently by the tempestuous Shays’s rebellion in Massachusetts. Who can determine what might have been the issue of her late convulsions if the malcontents had been headed by a Caesar or a Cromwell?  Who could predict what effect a despotism established in Massachusetts would have upon the liberties of New Hampshire or Rhode Island, of Connecticut or New York?

Some have objected (out of inordinate pride) to the principle of a guarantee in the Federal government, on the ground it officiously interferes in State domestic concerns. The objection misapprehends the nature of the provision itself, and would deprive us of one of the principal advantages of a Federal government.  

The guarantee would only operate against changes to be effected by violence. The right to reform State constitutions and governments by a majority of the People in a legal and peaceable mode would remain undiminished.

In a popular (representative) constitution, the natural cure for ill administration is a change of leaders.  So long as the whole power of the government remains in the hands of the People, there seldom should be either need or pretense for the use of violent remedies in partial or occasional distempers of the state.  Since the peace of society and the stability of government depend absolutely on efficacious precautions against violent reforms, too many checks cannot be provided towards prevention such calamities.   A guarantee by the Federal government is one such necessary check.  Furthermore, this check equally would apply against the usurpations of rulers as against the ferments and outrages of faction and sedition in a State. 

Demanding Quotas from State Governments Has Proven Ineffectual

Another fundamental error of the Confederation was the use of quotas to regulate State contributions to the common treasury.  The trial we made of them sufficiently showed the repugnancy of quotas to an adequate treasury in cases of national exigency. 

There is no common standard (or barometer) by which the degrees of national wealth can be ascertained.  Neither the value of land nor the number of the people is a just representative. If I compare the wealth of the United Netherlands with that of Russia, Germany, or France – and if I at the same time compare the total value of the lands and the aggregate population of the small confederacy of the United Netherlands with the total value of the lands and the aggregate population of the immense regions of either Russia, Germany, or France – we shall at once discover there is no comparison between the proportion of land values or populations and the relative wealth of those nations.  

If the like parallel were to be run between several of the American States, it would furnish a like result.  If Virginia is contrasted with North Carolina, Pennsylvania with Connecticut, or Maryland with New Jersey, we would see the respective abilities of those States (in relation to revenue) bear little or no analogy to their comparative stock in lands or to their comparative population. The position also is illustrated by a similar process between the counties within the same State. No one acquainted with the State of New York doubts the active wealth of King’s County in lower Manhattan is greater than that of Montgomery County, which is north of Albany. The disparity equally would appear if I should use either the total value of the lands or the total number of the people of these counties as a criterion.

The wealth of nations depends upon an infinite variety of causes. Situation, soil, climate, the nature of the productions, the nature of the government, the genius of the citizens, the degree of information they possess, the state of commerce, of arts, of industry, these circumstances and many more, too complex, minute, or adventitious to admit of a particular specification, occasion differences hardly conceivable in the relative opulence and riches of different countries.  The clear consequence is there can be no common measure of national wealth, and no general or stationary rule by which the ability of a State to pay taxes can be determined.  The attempt to regulate the contributions of the members of a confederacy by any such rule cannot fail to produce glaring inequality and extreme oppression.

The Innate Inequality Caused Federal Requisitions Would Dismember the United States

Even assuming a mode of enforcing compliance with requisitions of the Federal government could be devised, the resulting inequality would itself be sufficient to work the eventual destruction of the United States. The suffering states would not long remain associated upon a principle which impoverishes and oppresses its citizens, while leaving others scarcely conscious of the small proportion of the weight they were required to sustain. This evil is inseparable from the principle of quotas and requisitions.

The Federal Government Must Be Empowered to Raise Its Own Revenue

The only method to steer clear of this inconvenience is to authorize the Federal government to raise its own revenues in its own way. Imposts, excises, and generally all duties upon articles of consumption will in time reach a balance with the means of paying them.  In some degree, each citizen will have the option to regulate his contribution, by an attention to his resources.  The rich may be extravagant, the poor frugal, or the reverse. Private oppression may always be avoided by a judicious selection of the objects proper for such impositions.  If inequalities should arise in some States from duties on particular objects, in all probability these will be counterbalanced by proportional inequalities in other States, from the duties on other objects.  In the course of time and things, an equilibrium – as far as it is attainable in so complicated a subject – will be established everywhere. To the extent inequalities should still exist, they would be less in degree, operation, and appearance than those which necessarily spring from quotas, upon any scale devised.

* * *

As the saying goes, “in political arithmetic, two and two do not always make four.”  Applied to taxes on consumption, the saying is as just as it is witty.

* * * 

Taxes on articles of consumption contain in their own nature the signal advantage of being a security against excess.  They prescribe their own limit, which cannot be exceeded without defeating the end of increasing the tax revenue.  If duties are too high, they lessen consumption, and hence collections.  The product to the treasury is less than when the taxes are confined within proper and moderate bounds. This forms a complete barrier against any material oppression of the citizens by taxes of this class.  The barrier is itself a natural limitation on the power of imposing taxes.  As the saying goes, “in political arithmetic, two and two do not always make four.”  Applied to taxes on consumption, the saying is as just as it is witty. 

* * *

Taxes on articles of consumption contain in their own nature the advantage of being a security against excess.  They prescribe their own limit, which cannot be exceeded without defeating the end of increasing the tax revenue.

* * *

Impositions of this kind are usually denominated indirect taxes. For the foreseeable future, indirect taxes must constitute the chief part of the revenue raised in the United States.  Taxes of the direct kind principally relate to the value of land and buildings.  These direct taxes may be apportioned based on either the value of land or the number of the people.  The value of land and the populousness of a country are closely connected with each other. Simplicity and certainty give a preference to taxation based on population. It is a herculean task to obtain a valuation of the land in any country. In a country imperfectly settled and progressive in improvement – like the United States – the difficulties are increased almost to impracticability.  An additional and formidable objection to the undertaking is the expense of an accurate valuation. Finally, there are no natural limits on the discretionary valuation of lands and buildings. It is better to establish a fixed rule (attended with fewer inconveniences) based on population, than to leave the discretion to tax land and buildings altogether at large.

Hamilton

Federalist 22:  The Need for a Power to Regulate Commerce, a National Court of Last Resort, and the Consent of a Majority of the People 

IN ADDITION TO THE DEFECTS already enumerated concerning the Federal system under the Articles of Confederation, others of equal importance concur in rendering it altogether unfit for the administration of the affairs of the United States. 

The Power to Regulate Commerce Is Indispensable

All agreed that a principal defect of the Articles of Confederation was the absence of a Federal power to regulate commerce. No objects more strongly demand a Federal superintendence than trade and finance. The absence of a Federal power to regulate commerce prevented formation of beneficial treaties with foreign powers and caused dissatisfaction between States.  No nation acquainted with the Confederation was unwise enough to agree to concede privileges of any importance, since these engagements could at any moment be violated by the individual States comprising it.  Experience has shown other nations they can enjoy every advantage they desire in our markets without granting us any return except what their momentary convenience might suggest. For instance, Great Britain consistently limited itself to temporary trade measures with us – and would have continued doing so – until it appeared to them that our government was likely to acquire a greater consistency.  

Several States have endeavored to influence trade with Britain through the use of prohibitions, restrictions, and exclusions.  All such efforts were frustrated, due either to the lack of concerted action among the States, or from clashing and dissimilar views within an individual State. These obstacles would remain unless there arose a general Federal authority to regulate commerce.

Some States (through regulation) had interfered with and been unneighborly to other States, contrary to a spirit of union. Their regulations gave just cause of umbrage for complaint.  Examples of this nature, unless restrained by the Federal government, likely would have multiplied and extended until they become injurious impediments to trade between different parts of the confederacy  Consider Germany, where commerce is continually trammeled due to the multiplicity of duties the several princes and states exact upon the merchandises passing through their territories, thus rendering its fine streams and navigable rivers almost useless.  One would hope the genius of our People will never permit this description to be strictly applicable to us. However, we may have reasonably expected the gradual conflicts of State regulation would at length have cause the citizens of each State to be considered and treated by the others no better than as foreigners and aliens.

Quota Systems for the Supply of Troops During the Revolutionary War Were Erratic and Unreliable

Under the Articles of Confederation, the power of raising armies was merely a power of making requisitions upon the States for quotas of men. During the Revolutionary War, this practice obstructed a vigorous and economical system of defense.  The States set up bounties for enlistment and competed with each other for recruits.  The result was an auction for men, with States outbidding each other until the bounties grew to be enormous and insupportable. Even those predisposed to serve procrastinated their enlistment, in the hope of a further increase.  The levies of men were slow and scanty even in the most critical times.  Short enlistments were had at unparalleled expense.  The continual fluctuations in troops was ruinous to their discipline, and frequently subjected the public safety to the perilous crisis of a disbanded army.  Irregular enlistment also led to the use of oppressive expedients for raising men, which nothing but the enthusiasm of liberty would have induced the People to endure.

A quota system of raising troops also resulted in an unequal distribution of the burden. The States near the seat of war – influenced by motives of self-preservation – made efforts to furnish their quotas in excess of their abilities. Those States at a distance from danger were generally as remiss in their exertions as the others were diligent.  The inequality in the supply of men was aided by the unlikelihood of a penalty at war’s end. At least with contributions of money, States which did not pay their proportions might be charged with their deficiencies. No account could be formed of the deficiencies in the supplies of men. And we have seen there is little prospect the most delinquent States will ever be able to make compensation for their pecuniary failures.  In short, the system of quotas and requisitions – whether applied to men or money – was a system of imbecility in the Union, and of inequality and injustice among the States.

The Articles Gave Smaller States Undue Influence in the National Council

Another defect in the Articles was the right of equal suffrage among the States.  It gave Rhode Island or Delaware an equal weight in the scale of power with Massachusetts, New York, or Virginia.  Equal suffrage among the States contradicts every idea of proportion and every rule of fair representation.  It also is contrary to the fundamental maxim of republican (representative) government that the majority should prevail.  

* * *

In situations where more than a majority is required for a decision, the minority is given a negative upon the majority. The will of the greater number is thus subjected to the will of the lesser. What at first sight seems fair and beneficial to the minority actually acts like a poison.

* * *

Some argued that sovereigns are equal, and a majority of the votes of the States was a majority of confederated America.  This kind of logical legerdemain will never counteract justice and common sense. Sometimes a majority of States constitutes a small minority of the People of America. New Hampshire, Rhode Island, New Jersey, Delaware, Georgia, South Carolina, and Maryland are a majority of the whole number of States, but they do not contain one third of its citizens.  Artificial distinctions and syllogistic subtleties will not long persuade two thirds of the People of America to submit their interests to the management and disposal of one third.  The love of power will not acquiesce in such a privation. The desire  for equality also would abhor the sacrifice of power. After a while, the larger States would revolt from the idea of receiving the law from the smaller. The smaller States – whose safety and welfare depend on union – ought readily to renounce a pretension which would prove fatal to its duration.

But this is not all. In situations where more than a majority is required for a decision, the minority is given a negative upon the majority.  The will of the greater number is thus subjected to the will of the lesser. What at first sight seems fair and beneficial to the minority actually acts like a poison. By the nonattendance of a few States delegations, a single vote has been sufficient to stop all movement in Congress. A sixtieth part of the Union – about the proportion of Delaware or Rhode Island – has several times been able to impose an entire bar to the operations of Congress.  

Requiring Unanimity Magnifies the Influence of the Minority

The necessity of unanimity in public bodies – or of something approaching unanimity – is founded on the supposition it would contribute to security. But in real operation it embarrasses the ruling administration and destroys the energy of the government, and substitutes the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt group into the regular deliberations and decisions of a respectable majority.  Unanimity or something approaching it is one of those refinements which has the reverse effect in practice of what was expected in theory. 

In the emergencies of a nation, there is commonly a necessity for action. In such times, the strength or weakness of the government is most apparent, and of greatest importance.  The public business must go forward in some way or another.  If a rigid minority can control the opinion of a majority respecting the best mode of conducting the public business, the majority must conform to the views of the minority, in order that something may be done.  The sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. This results in tedious delays, continual negotiations and intrigues, and contemptible compromises of the public good. On some occasions, a recalcitrant minority will refuse any accommodation, keeping the government in a state of inaction due to the impracticability of obtaining the concurrence of the necessary number of votes.  The measures of government are thus injuriously suspended or fatally defeated.  The situation savors of weakness, and sometimes borders on anarchy.

* * *

The necessity of unanimity in public bodies – or of something approaching unanimity – is founded on the supposition it would contribute to security. But in real operation it embarrasses the ruling administration and destroys the energy of the government, and substitutes the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt group into the regular deliberations and decisions of a respectable majority. Unanimity or something approaching it is one of those refinements which has the reverse effect in practice of what was expected in theory.

* * *

Requiring More than a Majority Also Magnifies the Influence of the Minority

Some mistakenly presume that a vote requiring more than a majority would lessen the effects of foreign corruption and domestic faction.  This mistake proceeds from overlooking or ignoring the mischiefs occasioned by obstructing the progress of government at certain critical seasons.  Some are apt to assume all is safe with a higher vote threshold, reasoning that nothing improper will be done.  Yet we forget how much good may be prevented, and how much ill may be produced, by the power of hindering the doing of what may be necessary. Such conduct keeps our affairs in the same unfavorable posture in which happen to stand at particular periods.

Provisions Requiring More than a Majority Make Corruption Easier

Suppose we and a foreign nation were engaged in a war against a third nation.  Suppose the necessity of our situation demanded peace, but the interest or ambition of our ally led it to continue prosecution of the war.  Suppose finally that our ally’s views justified us to make separate terms with the third nation. In such a state of things, this ally of ours would find it much easier – by bribes and intrigues – to tie the hands of government where a two-thirds vote was required, than where a simple majority would suffice.  In the case of a two-thirds requirement, our ally would have to corrupt a smaller number forestall action. If a simple majority could act, our ally would have to corrupt a larger number. For the same reasons, a foreign enemy could perplex our councils and embarrass our exertions with less effort.  

The same inconveniences would inure in the commercial sphere. If more than a majority vote is required, a nation with which we might enter a treaty of commerce could more easily prevent our forming a connection with her competitor in trade, though such a connection should be ever so beneficial to ourselves.

These evils are not imaginary. One weakness of republics is they afford too easy an inlet to foreign corruption.  Even a hereditary monarch – including one disposed to sacrifice his subjects to his ambition – has a great a personal interest in the continuance of the government and the external glory of the nation. Few foreign powers would be able to offer the monarch an equivalent for what he or she would sacrifice by treachery to the State. The world has accordingly been witness to few examples of this species of royal prostitution, although there have been abundant specimens of every other kind.

In republics, persons elevated by their fellow citizens to stations of great preeminence and power may find compensations for betraying their trust. To any but minds animated and guided by superior virtue, such betrayals may appear to exceed the proportion of interest they have in the common stock, and to overbalance the obligations of duty.  Hence it is that history furnishes us with so many mortifying examples of the prevalence of foreign corruption in republican governments. I have already delineated how much this contributed to the ruin of the ancient commonwealths.  In modern times, it is well known that the deputies of the United Provinces have been purchased by the emissaries of the neighboring kingdoms in various instances. In a letter to his court, the Earl of Chesterfield intimated his success in an important negotiation depended on obtaining a major’s commission for one of those deputies.  And in Sweden the parties were alternately bought by France and England. The purchase was so barefaced and notorious it excited universal disgust in the nation, and was a principal cause by which its limited monarch became one of Europe’s most absolute and uncontrolled in a single day, without tumult, violence, or opposition.

* * *

In order to avoid the confusion that unavoidably results from the contradictory decisions of a number of independent judicatories, all nations have found it necessary to establish one court paramount to the rest, possessing a general superintendence, and authorized to settle and declare in the last resort a uniform rule of civil justice.

* * *

A Supreme Judicial Tribunal Is Essential

The crowning defect of our Confederation was the want of a judiciary. Laws are a dead letter without courts to expound and define their true meaning and operation. For instance, the treaties of the United States must be considered as part of the law of the land if they are to have any force at all. Like all  other laws, the true import of such treaties – with respect to individuals – must be ascertained by judicial determinations. To produce uniformity in these determinations, in the last resort they ought to be submitted to one supreme tribunal.  And this tribunal ought to be instituted under the same authority which forms the treaties themselves.  Both ingredients are indispensable.  

If State courts of final resort were granted authority to have the last word on questions of Federal law, there may be as many different final determinations on the same point as there are courts, owing to the endless diversities in the opinions of judges.  How often have we seen different courts (including different judges of the same court) differing from each other?   In order to avoid the confusion that unavoidably results from the contradictory decisions of a number of independent judicatories, all nations have found it necessary to establish one court paramount to the rest, possessing a general superintendence, and authorized to settle and declare in the last resort a uniform rule of civil justice.

This is the more necessary due to the sheer number of State governments that could allow the laws of the parts to contravene the laws of the whole. Under the Articles of Confederation, the treaties of the United States were liable to the infractions of thirteen different legislatures, and as many different courts of final jurisdiction, acting under the authority of those legislatures. Nothing is more natural to individuals holding office than to look with peculiar deference towards that authority to which they owe their official existence. There would be much to fear from the bias of local views and prejudices and the interference of local regulations if State tribunals were invested with a right of ultimate jurisdiction on the general laws and treaties of the United States.  As frequently as permitted, the interference of particular local laws might be preferred to those of the general laws.  The faith, reputation, and peace of the United States would be continually at the mercy of the prejudices, passions, and interests of every State. Is it possible foreign nations would neither respect nor confide in such a government? Is it also possible the People of America would any longer consent to entrust their honor, happiness, and safety to a government constructed on so precarious a foundation?

My review of the Confederation has confined itself the most material defects. Individuals who reflected (divesting themselves of preconceived opinions) believed the former Articles Confederation were so radically vicious and unsound that no amendment could save them, and that an entire change in its leading features and characters was required. 

* * *

The fabric of American empire ought to rest on the solid basis of the consent of the People. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority.

* * *

The organization of the Congress under the Articles was utterly inadequate for the exercise of those powers necessary to be deposited in a union of the States. While this single assembly may have been a proper receptacle of those limited authorities heretofore delegated to the Federal head, it would be inconsistent with all of the principles of good government to entrust it with those additional powers which ought to reside in the government of the United States. If we had retained that structure, and merely conferred supplementary powers upon Congress, one of two outcomes was likely: (1) either the enfeebled structure would have mouldered into pieces despite our ill-judged efforts to prop it up, or (2) by successive augmentations of its force and energy, we would have finally have accumulated – in a single body – all of the most important prerogatives of sovereignty, and thus entailed upon our posterity one of the most execrable forms of government human infatuation ever contrived.  We would have created that very tyranny the adversaries of the new Constitution either are (or affect to be) solicitous to avert.

The Consent of the People Is the Fountainhead of Legitimate Authority  

A final infirmity of the Federal system under the Articles of Confederation was that it was never ratified by the People.  It rested on no better foundation than the consent of State legislatures.  It was has been exposed to frequent and intricate questions concerning the validity of its powers, which have given birth to the doctrine of the right of legislative repeal.  Owing its ratification to the law of a State, it has been contended that the same authority might repeal the law by which it was ratified.  However gross a heresy it may be to maintain that a party to a compact has a right to revoke that compact, the doctrine itself has had respectable advocates.  This theory contended that since ratification was based on the law of a State, the same authority may repeal the law by which it was ratified.  The possibility of a question of  this nature could arise proves the necessity of laying the foundations of our national government deeper than in the mere sanction of delegated authority.  The fabric of American empire ought to rest on the solid basis of the consent of the People.  The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority.

Hamilton

Federalist 23:  The Necessity of an Energetic Federal Government to Preserve the United States 

WE ARE NOW ARRIVED at the point of examining the necessity of a Constitution energetic enough to preserve the United States. This inquiry will naturally divide itself into three branches: (1) the principal objects of the Federal government, (2) the quantity of power necessary to accomplish those objects, and (3) the persons upon whom that power ought to operate. 

The principal objects of the Federal government are these:  (1) the common defense of the States; (2) the preservation of the public peace against internal convulsions as well as external attacks; (3) the regulation of commerce with other nations and between the States; and (4) the superintendence of our political and commercial intercourse with foreign countries.

The Common Defense of the States

The authorities essential to the common defense are these: to raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; and to provide for their support.  These powers ought to exist without limitation, because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them.  

The circumstances which can endanger the safety of nations are infinite. For this reason, it is unwise to impose constitutional shackles on the power to respond to these circumstances. The power must be coextensive with all of the possible combinations of circumstances, and ought to be under the direction of the same councils which are appointed to preside over the common defense.

To an unprejudiced mind, this truth carries its own evidence along with it. The truth may be obscured, but neither argument nor reasoning can make it plainer, for it rests on axioms as simple as they are universal:  the means ought to be proportioned to the end, and the persons from whose agency the attainment of any end is expected ought to possess the means by which it is to be attained.

* * *

The principal objects of the Federal government are these:  

(1) the common defense of the States; 

(2) the preservation of the public peace against internal convulsions as well as external attacks; 

(3) the regulation of commerce with other nations and between the States; and 

(4) the superintendence of our political and commercial intercourse with foreign countries.

* * *

Whether there ought to be a Federal government entrusted with the care of the common defense was a question that was open for discussion in the first instance.  But once decided in the affirmative, it necessarily follows that the Federal government ought to be clothed with all the powers requisite to complete execution of its trust. And in the absence of proof that the power to protect public safety can be reduced to certain determinate limits, it must be admitted that no limit can exist on the authority to provide for the defense and protection of the community – in any matter essential to its efficacy, that is, in any matter essential to the formation, direction, or support of the national forces.

The Articles of Confederation Recognized Broad Federal Powers Were Needed 

The care of the common defense was fully recognized by the framers of the Articles of Confederation, although they did not make a proper or adequate provision for its exercise. The powers granted to the Congress included an unlimited discretion to make requisitions of men and money, to govern the army and navy, and to direct their operations. Congressional requisitions were constitutionally binding upon the States, which were under the most solemn obligations to furnish the supplies required of them.  The evident intention of the Congress was that the Congress could command whatever resources it judged requisite to the “common defense and general welfare.” The framers of the Articles of Confederation presumed that the sense of a State as to true interests – and a regard to the dictates of good faith – would be sufficient pledges for the punctual performance of the duties of the States to the national government.  

The experiment proved this expectation was ill-founded and illusory, as quotas failed. Impartial and discerning readers of Federalist 21 and Federalist 22 were shown the absolute necessity for an entire change in the first principles of our former system.  In order to give the Federal government energy and duration, we must abandon the vain project of legislating upon the States in their collective capacities, and instead extend the laws of the Federal government to the individual citizens of America. We must discard the fallacious scheme of quotas and requisitions, as equally impracticable and unjust.  The United States must be invested with full power to levy troops, build and equip fleets, and raise the revenues required for the formation and support of an army and navy in the customary and ordinary modes practiced in other governments.

Once the members of the Constitutional Convention decided the circumstances of our country demand a compound government, not a simple one, it became essential to discriminate the objects which shall appertain to the different departments (or provinces) of power, and granting to each the most ample authority for fulfilling those objects.

A few issues will illustrate the manner of analysis used at the Convention. For instance, shall the Federal government be constituted the guardian of the common safety? Are fleets and armies and revenues necessary to this purpose?   Should the Federal government be empowered to pass all laws, and to make all regulations which have relation to them?  If so, the same must be the case in respect to commerce and every other matter to which its jurisdiction is permitted to extend.  Is the administration of justice between the citizens of the same State more properly the department of the local governments?  If so, the States must possess all the authorities connected with this object, along with every other that may be allotted to their cognizance and direction. A policy that fails to confer in each case a degree of power commensurate to the end would violate the most obvious rules of prudence and propriety, and entrust the great interests of the nation to hands which are disabled from managing them with vigor and success.

* * *

A government whose constitution renders it unfit to be entrusted with all the powers a free people ought to delegate to it would be an unsafe and improper depositary of the national interests. However, once these powers are properly delegated, coincident powers may safely accompany them.

* * *

The Federal Government Must Have the Power and the Means to Provide for a Common Defense

There is a manifest inconsistency in devolving upon the Federal government the care of the general defense, but leaving  in State governments the powers to provide for it.  The Federal government will make the most suitable provisions for the public defense, since it will be the body to which the guardianship of the public safety is confided. It will be the center of information, and will best understand the extent and urgency of the dangers that threaten.  As it will be the representative of the whole, it will feel itself most deeply interested in the preservation of every part. The responsibility implied from the duty assigned to it will most sensibly demand the necessity of proper exertions. By the extension of its authority throughout the States, it alone can establish uniformity and concert in the plans and measures to secure the common safety. To leave the State governments in control of the powers of providing for a defense will infallibly lead to a want of cooperation between the Federal and State governments, and among the separate State governments. Its natural and inevitable concomitants will be weakness, disorder, undue distribution of the burdens and calamities of war, and an unnecessary and intolerable increase of expense. We had unequivocal experience of these detrimental effects in the course of the Revolutionary War. 

Every view we take of the subject convinces us it is both unwise and dangerous to deny to the Federal government an unconfined authority over those objects entrusted to its management. (Of course, a most vigilant and careful attention of the structure of the Federal government is deserved to see it be modeled in such a manner as to admit of its being safely vested with the requisite powers.)  

A government whose constitution renders it unfit to be entrusted with all of the powers a free people ought to delegate to any government, would be an unsafe and improper depositary of the national interests. However, once these powers are properly delegated, coincident powers may safely accompany them.  

The adversaries of the Constitution failed to confine themselves to showing the internal structure of the Federal government rendered it unworthy of the confidence of the People. Instead they wandered into inflammatory declamations and senseless objections to the powers conferred. The powers granted are not too extensive for the objects of Federal administration, namely, the management of our national interests.  

Hamilton

Federalist 24-29: Federal Power to Create and Maintain Military Forces 

Federalist 24:  The Objections to a Standing Army Are Illusory

THE ONLY SPECIFIC OBJECTION raised with respect to the powers to be conferred upon the Federal government concerning the creation and direction of the national forces is that proper provision has not been made against the existence of standing armies in time of peace.  

The Objections to Standing Armies Are So Weak as to Betray Duplicity

The objection is brought forward in the most vague and general form, supported only by bold assertions, without the appearance of argument, and without even the sanction of theoretical opinion.  It contradicts the practice of other free nations as well as the general sense of the American People, as they expressed in most State constitutions. The objection is premised upon a supposed necessity of restraining the legislative authority (Congress) in the article of military establishments. But the objection is rejected in all State constitutions except two, which do not even prohibit them.

* * *

The American People – so jealous of their liberties – have declined to insert into their State constitutions the most precise and rigid precautions against standing armies.  Nonetheless, the same omission in the Federal Constitution gave birth to a torrent of apprehension and clamor.

* * *

A stranger to our politics might reasonably assume the argument against standing armies must have a foundation based on a positive constitutional injunction against maintaining standing armies in times of peace, or that the whole power of levying troops is vested in the executive without any legislative control.  Yet the Constitution contains neither.  First, it contains no provision in favor of standing armies.  Second, the whole power of raising armies is not lodged in the executive, but instead in the Congress, a popular legislative body consisting of the representatives of the People who are elected every two years.  Further, the proposed Constitution includes an important qualification on the legislative discretion. Section 8 of Article I provides: “The Congress shall have Power . . .  [¶]  To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years . . . .”  By forbidding the appropriation of money for the support of an army for any period longer than two years, the drafters have included a precaution that will be a great and real security against the keeping up of troops without evident necessity.

The vehement objections and pathetic declamation concerning standing armies are unsupported by a colorable pretext.  The American People – so jealous of their liberties – have declined to insert into their State constitutions the most precise and rigid precautions against standing armies. Nonetheless, the same omission in the Federal Constitution gave birth to a torrent of apprehension and clamor.

Only two of the several State constitutions contain an interdiction of standing armies in time of peace.  The other eleven State constitutions are silent on the subject, or have express terms admitting the right of the State legislature to authorize their existence.  

The two States purporting to interdict standing armies are Pennsylvania and North Carolina, whose constitutions provide:  “As standing armies in time of peace are dangerous to liberty, they ought not to be kept up.”  Upon inspection, the italicized words are more a caution than a prohibition. The constitutions of four other States – New Hampshire, Massachusetts, Delaware, and Maryland – formally admit the authority of their legislatures to maintain standing armies, using this language: “Standing armies are dangerous to liberty, and ought not to be raised or kept up without the consent of the legislature.”  The italicized language is a formal admission of the authority of the legislature. New York has no bill of rights, and her constitution says not a word about the matter.  No bill of rights appear annexed to the constitutions of any other State, and their constitutions are equally silent. Further, the Articles of Confederation imposed not a single restraint on a standing army in the United States.  

In the absence of a plausible foundation for the cry raised against standing armies, the objection is simply a dubious experiment on the public credulity, dictated by a deliberate deception or an excessive zeal too intemperate to be deceptive, effected by the dishonest artifices of a sinister and unprincipled opposition to the Constitution.  The allowance of standing armies conforms to the general sense of Americans as declared in their various constitutions, and adds a new and powerful guard unknown to any of them, namely, the requirement of review every two years.

A calm and dispassionate observer might indulge a sigh for the frailty of human nature, and lament that a matter so interesting to the happiness of millions – the adoption of the Constitution – should be perplexed and entangled by expedients so unfriendly to an impartial and right determination.  The conduct of its opponents has too much appears intended to mislead the People by alarming their passions, and to avoid convincing them with arguments addressed to their intellect. 

It is Foreseeable that a Military Force May Soon Be Required

Having set forth the artifice of the objections, I now review the facts concerning standing armies.  Restraints upon the discretion of the legislature in respect to military establishments in time of peace are improper. Even if restraints were imposed, they would not be observed due to the necessities of society.

Although a wide ocean separates the United States from Europe, various considerations warn us against an excess of confidence or security. The improvements in the art of navigation have rendered distant nations neighbors, at least as to facility of communication.  Britain and Spain are among the principal maritime powers of Europe.  A future concert of views between these nations is not improbable. In France and Spain, the increasing remoteness of consanguinity of their monarchs is every day diminishing the force of the family compact between these two kingdoms.  Further, politicians have with great reason always considered ties of blood as precarious links of political connection.  These combined circumstances admonish us not to be too sanguine in considering ourselves as entirely out of the reach of danger.

Regular Federal Troops on the Western Frontier Are Preferable to State Militias

To our north – and stretching far into our interior – are growing settlements subject to the dominion of Britain.  To our south – and extending to meet the British settlements – are colonies and establishments subject to the dominion of Spain. For now, it is wise to regard the native tribes on our western frontier as natural enemies – for they have the most to fear from us – and the most to hope from our enemies.  

Prior to the Revolution – and ever since the peace – there has been a constant necessity for keeping small garrisons on our western frontier. These will remain indispensable, if only to guard against the ravages and depredations of the native tribes.  Our garrisons must be furnished by occasional detachments from the militia or by permanent corps in the pay of the government.  If the garrisons are furnished by occasional detachments from the militia, it would prove impracticable.  Even if it were practicable, it would prove pernicious. Members of a militia would not long submit – if at all – to being dragged from their occupations and families to perform the disagreeable duty of attending forts, especially in times of profound peace. And even if they could be prevailed upon (or compelled) to do it, would be as burdensome and injurious to the public as ruinous to private citizens. The increased expense of a frequent rotation of service, the loss of labor, and the disruption of the industrious pursuits of individuals would conclusively doom the scheme.  The better resource is a permanent corps in the pay of the Federal government. It will be a standing army in time of peace:  a small one, indeed, but real nonetheless.  This view of the subject shows at once the impropriety of a constitutional interdiction of such establishments, and the necessity of leaving the matter to the discretion and prudence of the Congress. 

As the United States increases in strength, it is certain Britain and Spain would augment their military establishments in our neighborhood. Unless we are willing to be exposed – in a naked and defenseless condition – to their insults and encroachments, it will be expedient to increase our frontier garrisons in a ratio to the force by which our western settlements might be annoyed. Some of the particular posts will include the command of large districts of territory, and facilitate future expansion into the remainder. These posts also will be keys to trade with the native American nations. No one can think it wise to leave such posts in a situation at any instant to be seized by one or two formidable neighboring powers. The usual maxims of prudence and policy dictate otherwise. 

A Federal Navy Also is Required

If we are to be a commercial people – or only to secure our Atlantic side – we must have a navy as soon as possible. There must be dockyards and arsenals, with fortifications and garrisons to protect them. When a nation has become so powerful by sea that it can protect its dockyards by its fleets, the necessity of protective garrisons will be superseded. But where naval establishments are in their infancy, moderate garrisons will be an indispensable security against naval attacks on our arsenals and dockyards, and sometimes on the fleet itself.

Hamilton

Federalist 25:  The Utility of a Federal Standing Army 

A Federal Standing Army Must Be Controlled by the Federal Government, not State Governments 

THE ARGUMENT THAT STANDING ARMIES ought to be provided for by State governments under Federal direction is an inversion of the primary principle of our political association.  The project would be oppressive to some States, dangerous to all, and baneful to the United States.

Although the territories of Britain, Spain, and the native tribes do not border on particular States, they encircle the United States from Maine to Georgia. The danger is a common one, although in different degrees.  The means of guarding against it ought to be the objects of common councils and a common treasury.  Due to local situation, some States are more directly exposed, such as New York.  But if New York had to provide for its own defense, it would have to sustain not only the whole weight of establishments requisite to her own immediate safety, but also the protection of her neighbors. This would be both inequitable as to New York and unsafe as to her neighbors. Various inconveniences would attend such a system.  To those States required to support the necessary establishments, they would be unwilling and unable to bear the burden for a considerable in the future.  Further, the security of all would be subject to the parsimony, improvidence or inability of a part. Should the resources of one State become more abundant and extensive – and its provisions proportionally enlarged – the other States quickly would take alarm at seeing the whole military force of the United States in the hands of two or three States, which likely would be among the most powerful in the country. Every lesser State would choose some counterpoise. Pretenses easily could be contrived. The growth of competing military establishments – nourished by mutual jealousy – would be apt to swell beyond their natural or proper size.  Being at the separate disposal of the State, they would be engines for the abridgment or demolition of the national authority.

The People Will Keep a Warier Eye on the Representatives of the Federal Government

I have already given reasons why State governments will be naturally prone to a rivalry with the United States.  The foundation of the rivalry is the love of power. In any contest between the Federal government and one of the States, the citizens of that State would be most apt to unite with their local government.  The ambition of a State – stimulated by its separate and independent possession of military forces – would afford too strong a temptation (and too great a facility) to make enterprises upon and ultimately subvert the constitutional authority of the United States. In those circumstances, the liberty of the People would be less safe than if the national forces were left in the hands of the Federal government. Because an army may be considered a dangerous weapon of power, it ought to be in the hands of individuals of whom the People are most jealous (distant Federal representatives), rather than in the hands of those of whom the People are least jealous (State representatives).  The People are always most in danger when the means of injuring their rights are in the possession of those of whom they entertain the least suspicion.

The framers of our former Confederation were fully aware of the danger to the United States from the separate possession of military forces by the States.  They expressly prohibited the States from having either ships or troops without the consent of Congress.  A Federal government supported only by State military establishments will result in conflict between the States and the United States. 

Other reasons demonstrate the impropriety of restraining the discretion of Congress with respect to standing armies, as revealed by a cross-examination of potential objections.  Those opposed to standing army in times of peace never inform us how far the prohibition should extend. Does the prohibition extend to raising armies as well as keeping them up, whether the season be tranquil or not?  If it be confined to keeping them up, it will be imprecise, and thus ineffectual. What shall be denominated “keeping them up,” once armies are raised?  What date shall be designated to ascertain a violation? Shall it be a week, a month, a year?  

* * * 

The People are always most in danger when the means of injuring their rights are in the possession of those of whom they entertain the least suspicion.

* * *

Or shall we say they may be continued as long as the danger which occasioned their raising continues?  To admit this is to admit they might be kept up in time of peace, against threatening or impending danger. This would at once deviate from the literal meaning of the prohibition, and introduce an extensive latitude of construction. Who shall be the judge of the continuance of the danger?  That question undoubtedly must be submitted to the Federal government, where the matter would eventually be brought to the issue whether the Federal government, in order to provide against an apprehended danger, might in the first instance raise troops, and afterwards keep them on foot as long as the peace or safety of the community was in any degree of jeopardy. A discretion of such wide latitude would afford ample room for eluding the force of any paper prohibition of a standing army. 

The Only Reason to Limit a Standing Army Is the Possibility Congress and President Might Combine to Usurp Power

The utility of a provision against standing armies in times of peace can be founded only on the possibility of a combination between the executive and the legislative in some scheme of usurpation. If this should happen, they easily could fabricate pretenses of approaching danger.  Indian hostilities – instigated by Spain or Britain – would always be at hand.  Foreign powers could themselves stage provocations to produce the desired appearances, in exchange for Federal concessions.  If an army were raised in response, it easily could be applied to execute the project of usurpation. 

* * *

Some might respond the militia of the country is a natural bulwark against a standing army, and would be at all times equal to the national defense. This belief would have lost the Revolution.

* * *

Even in Circumstances of Attempted Usurpation, a Standing Army Will Still Prove Essential 

To obviate this possibility, one might argue the prohibition against a standing army ought be limited to the raising of armies in time of peace. But if this prohibition were added, the Constitution would incapacitate the nation from preparing a defense before it was actually invaded. This would be an extraordinary spectacle for the world to see. The Federal government would have to await the presence of an enemy within our territory to warrant the commencement of levies of men for the protection of the country.  We would have to await receipt of an actual blow before even preparing to return it, contrary to the policies by which nations anticipate distant danger to meet gathering storm.  We would thereby expose our property and liberty to the mercy of foreign invaders, and invite them by our weakness to seize us as naked and defenseless prey, based on the fear that our leaders – created by our choice and dependent on our will – might endanger our liberty, by an abuse of the means necessary to its preservation.

State Militias Are an Inadequate Substitute for a Standing Army

Some might respond the militia of the country is a natural bulwark against a standing army, and would be at all times equal to the national defense. This belief would have lost the Revolution.  The facts from our own experience are too recent to permit us to be the dupes of such a suggestion. The steady operations of war against a regular and disciplined army can only be successfully conducted by a force of the same kind.  Considerations of economy confirm this position.  During the Revolution, the valor of the American militia erected eternal monuments to their fame, but the bravest of them know the liberty of their country could not have been established by their efforts alone, however great and valuable they were.  Like most other things, war is a science to be acquired and perfected by diligence, perseverance, time, and practice.

The Recent Rebellions in Pennsylvania and Massachusetts Prove the Utility of a Standing Army

All policies based on violence defeat themselves, as they are contrary to the natural course of human affairs and experience. Recent events in Pennsylvania affords an example of the truth of this remark.  The bill of rights of that State declares that standing armies are dangerous to liberty, and ought not to be kept up in time of peace.  Nevertheless, in a time of profound peace, from the existence of partial disorders in one or two of her counties, Pennsylvania resolved to raise a body of troops; and in all probability will keep them up as long as there is any appearance of danger to the public peace. 

The conduct of Massachusetts also affords a lesson on the same subject, although on different ground.  That State (without waiting for the sanction of Congress, as the Articles of the Confederation required) was compelled to raise troops to quell a domestic insurrection, and still keeps a corps in pay to prevent a revival of the spirit of revolt.  The constitution of Massachusetts contained no obstacle to the measure; but the instance of its still instructs us that cases are likely to occur under our government, as well as under those of other nations, which will sometimes render a military force in time of peace essential to the security of the society, and that it is therefore improper in this respect to control the legislative discretion. It also teaches us – in its application to the United States – how little the rights of a feeble government are likely to be respected, even by its own constituents. And it teaches us, in addition to the rest, how unequal parchment provisions are to a struggle with public necessity.

The Example of Lysander

In the Lacedaemonian commonwealth, tradition held the post of admiral could not be conferred twice on the same person.  But when their Peloponnesian confederates suffered a severe defeat at sea from the Athenians, the confederates demanded that Lysander (who had before served with success in that capacity) command the combined fleets.  The Lacedaemonians agreed to gratify their allies – but to preserve the semblance of an adherence to their ancient institutions – resorted to the flimsy subterfuge of naming Lysander vice-admiral, although he actually was invested with the real power of an admiral. This example is selected from among a multitude that might be cited to confirm the truth already advanced and illustrated by domestic examples; which is: nations pay little regard to rules and maxims calculated to run counter to the necessities of society. Wise politicians are cautious about fettering the government with restrictions that cannot be observed, because they know that every breach of fundamental law – though dictated by necessity – impairs that sacred reverence rulers ought to maintain towards the constitution of their country, and sets a precedent for other breaches where the same plea of necessity does not exist at all, or is less urgent and palpable

Hamilton

Federalist 26:  The Constitution's Biennial Review of Standing Armies Is Salutary

The Balance of Power and Privilege

IT WAS HARDLY TO BE EXPECTED that the minds of individuals inspired by our popular revolution would stop at that happy median that combines the energy of government with the security of private rights. There is a salutary yet delicate boundary between power and privilege that can give rise to difficulties. Unless resolved as to standing armies, we will travel from one chimerical project to another, marking change upon change, but without any material change for the better.

* * *

Those who would restrict the Congress will combat the general consensus of America.  Instead of learning from experience – which counsels avoidance of extremes – the opponents of congressional authority would conduct us into more dangerous and extravagant extremities.

* * *

The idea of restraining the authority of Congress to provide for the national defense originates in a zeal for liberty more ardent than enlightened.  It found support only in Pennsylvania and North Carolina. Every other State refused to give it the least countenance – wisely judging  that the very act of delegating power requires we place confidence somewhere – and it is better to hazard an abuse of that confidence than to embarrass the government and endanger the public safety by impolitic restrictions on the legislative authority.  

Those who would restrict the Congress will combat the general consensus of America. Instead of learning from experience – which counsels avoidance of extremes – the opponents of congressional authority would conduct us into more dangerous and extravagant extremities. 

The doctrines they propound are calculated to induce us to depress or relax the tone of government by expedients that were condemned or forborne on other occasions.  But the citizens of America have too much discernment to be argued into anarchy. Experience has wrought a deep and solemn conviction in the public mind that greater energy of government is essential to the welfare and prosperity of the community.

Historical Restrictions on Funding Standing Armies Were Directed Principally at Hereditary Monarchs

The idea that aims to exclude military establishments in times of peace has its origins in the history of England, a land from which many of the inhabitants of our country have sprung. For a long time after the Norman Conquest, the authority of the monarch was almost unlimited  Inroads were gradually made upon the prerogative in favor of liberty – first by the barons and afterwards by the People – until the greatest part of its most formidable pretensions became extinct.  

English liberty was made complete with the glorious (or bloodless) revolution which elevated the Prince of Orange to the throne in 1688. Prior to that event, Charles II had kept on foot (in time of peace) a body of 5,000 regular troops, based on his own authority and incident to the undefined power of making war, which was an acknowledged prerogative of the British crown.  James II increased this number to 30,000, who were paid out of his civil list.   In order to abolish the exercise of so dangerous an authority, the Bill of Rights was amended after the revolution to declare “the raising or keeping a standing army within the kingdom in time of peace, unless with the consent of parliament, was against law.”

Thus when the pulse of liberty was at its highest pitch in that kingdom, no security against the danger of standing armies was thought requisite beyond a prohibition of their being raised or kept up based solely on the monarch’s authority alone. The British patriots who effected the memorable revolution were too temperate and well-informed to impose any restraint on legislative discretion.  They were aware a certain number of troops for guards and garrisons were indispensable, that no precise bounds could be set to national exigencies, and that a power equal to every possible contingency must exist somewhere in the government.  By referring the exercise of that power to the judgment of their legislature (the Parliament), they had arrived at the ultimate point of precaution that could be reconciled with the safety of the community.

The Fear of a Standing Army Should Not Exist when Authorized by Congress, which Represents the People

From this history, the People of America have developed a natural disposition to view standing armies in times of peace as a danger to liberty. The circumstances of our revolution have further quickened the public sensibility on every point connected with the security of popular rights. But the warmth of this zeal was raised beyond the degree consistent with the due temperature of the body politic with the attempts of Pennsylvania and North Carolina to restrict the authority of the legislature in the article on military establishments.  These States erroneously assumed that the reasons for being vigilant against misuse of this power by monarchs extended to the representatives of the People in their popular assemblies. Even in some States where this error was not expressly adopted, we find unnecessary declarations that standing armies ought not to be kept up, in time of peace, without the consent of the legislature.  Such declarations were unnecessary because the reason for introducing a similar provision into the English Bill of Rights is inapplicable to any of the State constitutions. Under all of those State constitutions, the power of raising armies resides in the legislature. It would superfluous – if not absurd – to declare that a matter should not be done without the consent of the body which alone had the power of doing it! 

No State Constitution Actually Prohibits a Standing Army

Even in the two states which seem to have meditated an interdiction of military establishments in time of peace, the mode of expression is merely cautionary, not prohibitory. The constitutions of Pennsylvania and North Carolina do not say standing armies shall not be kept up, but that they ought not to be kept up, in time of peace.  This ambiguity of terms appears to result from a conflict between jealousy and conviction, between the desire of excluding such establishments at all events, and the persuasion that an absolute exclusion would be unwise and unsafe.

In other State constitutions – including the celebrated constitution of New York – there is a total silence upon the subject.

Even If Standing Armies Were Disfavored on Paper, a Crisis Would Compel Their Existence

Can anyone doubt that a mere admonition against standing armies would yield to the necessities or supposed necessities of a state or nation when the People, through their representatives, demanded it?  What is the use of such a provision if it ceases to operate the moment there is an inclination to disregard it?

There can be no comparison between admonitions of State constitutions and the provision in the federal Constitution restraining the appropriations of money for military purposes to the period of two years.

Article I, section 8, clause 12, of the Constitution expressly  grants to Congress this power:  “To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; . . . .”  

The State constitutional provisions purporting to limit standing armies aim at too much, and effect nothing. The federal provision steers clear of this imprudent extreme and will have a salutary and powerful operation because it is perfectly compatible with a proper provision for the exigencies of the nation. 

At least once every two years, the legislature of the United States will be obliged to deliberate upon the propriety of keeping a military force on foot, come to a new resolution on the point, and declare their sense of the matter by a formal vote in the face of their constituents.  They are not at liberty to vest permanent funds with the executive for the support of an army, even if they were to act so incautiously.  

* * *

As the spirit of party infects all political bodies in different degrees, there will undoubtedly arise persons in the national legislature willing enough to advocate for providing permanent military funds to the executive department, and to label contrary views criminal.

* * *

As the spirit of party infects all political bodies in different degrees, there will undoubtedly arise persons in the national legislature willing enough to advocate for providing permanent military funds to the executive department, and to label contrary views criminal. However, the provision for limiting the support of a military force will always be a topic favored by those inclined to warn of the dangers to liberty.  If they be members of the party in opposition, they will arouse and attract public attention whenever the question comes forward.  Should the majority actually be disposed to exceed proper limits, the community will be warned of the danger, and have an opportunity of taking measures to guard against it. 

State Legislatures Will Be the Voice – and If Necessary – the Arm of the People’s Discontent   

And the State legislatures – being independent of parties in the national legislature – will always be vigilant, suspicious and jealous guardians of the rights of the citizens against encroachments from the Federal government. They will constantly be awake to the conduct of the national rulers, and if any thing improper appears, will be ready enough to sound the alarm to the People. The State legislatures will be the voice of the majority, and if necessary, the arm of their discontent.

Schemes to subvert the liberties of a great community to mature them for execution. An army so large as seriously to menace those liberties could only be formed by progressive augmentations. This would require a continued conspiracy over a period of time, not merely a temporary combination between the legislature and executive. Is it probable such a combination could exist at all, and then be persevered in and transmitted through all the successive variations of a representative body elected in whole or in part every two years?  Can we presume that the instant a representative took a seat in Congress that individual would commence as a traitor to constituents and country? Can it be supposed that not one representative would be discerning enough to detect so atrocious a conspiracy, or bold or honest enough to apprise constituents of their danger?  

If such a presumption can fairly be made, there ought at once to be an end of all delegated authority. The People would recall all the powers they have heretofore ceded, and to divide themselves into as many States as there are counties, in order that they may be able to manage their own concerns in person.  

Would Every Member of Congress Become a Traitor to a Conspiracy?

Even if we assume every representative made a pledge to become a traitor to constituents and country, still the concealment of the design would be impracticable for any duration. The very circumstance of greatly augmenting the army in times of profound peace would itself announce the conspiracy.  

What colorable reason could be assigned for such vast augmentations of the military force in a country situated like the United States?  It is impossible the People would be long deceived.  The destruction of the project – and of its progenitors – would quickly follow the discovery.

Some have suggested the executive branch could circumvent the two-year limit on appropriations because once possessed of a force large enough to awe the People into submission, the President would find resources in that very force sufficient to enable him to dispense with supplies from the Congress.  But upon what pretense could the executive be put in possession of a force of that magnitude in time of peace?  If the force were created as a result of some domestic insurrection or foreign war, then the objection thereto would not apply because it the objection is leveled against the power of keeping up troops in time of peace. Few persons could seriously contend military forces ought not to be raised to quell a rebellion or resist an invasion. 

  If defense of the community should require an army so numerous as to hazard its liberty, it is one of those calamities having neither prevention nor cure. No possible form of government can provide against it. It might even result from a simple league offensive and defensive with confederates or allies, should it be necessary to form an army for common defense. But it is an evil infinitely less likely to attend us in a united than a disunited state. And in a state of disunion (as discussed in Federalist 8), the evil of a standing army would become not only probable, but almost unavoidable.

It is not easy to conceive that dangers so formidable will assail the whole union as to demand a force considerable enough to place our liberties in the least jeopardy, especially if we take into our view the aid to be derived from the militia, which ought always to be counted upon as a valuable and powerful auxiliary. 

Hamilton

Federalist 27:  A Properly Administered Federal Government Will Not Require Force to Execute Its Laws

SOME HAVE ARGUED THE CONSTITUTION CANNOT OPERATE without the aid of a military force to execute its laws. The argument most likely originates in the assumption the People will be disinclined to the exercise of Federal authority on any internal State matter. 

Why should we presuppose the People will be disinclined to the exercise of Federal power on internal State issues? Unless we presume the powers of the Federal government will be worse administered than those of the State governments, we should not presume the People’s ill-will, disaffection, or opposition. As a general rule, the People’s confidence in and obedience to the Federal government will commonly be proportioned to the goodness or badness of its administration.  

We should not presuppose the Federal government will be worse administered than State governments.  Consider first the Senate of the United States, which will be comprised of individuals selected by the State legislatures, whose members themselves are composed of individuals selected by the People. The extension of the spheres of election will present a greater latitude of choice to the People.  If we should presuppose anything, it would be the Senate will be composed with peculiar care and judgment, with the promise of greater knowledge and more extensive information in the national councils.  As a result, the Senate would be less apt to be tainted by the spirit of faction. It would be more out of the reach of those occasional ill-humors or temporary prejudices and propensities which – in smaller societies –  frequently contaminate the public councils, beget injustice and oppression of a part of the community, and engender schemes which – though they gratify a momentary inclination or desire – terminate in general distress, dissatisfaction, and disgust.  

Unless someone can advance reasons why the Federal government will be so maladministered as to render it odious or contemptible to the People, the laws of the United States will neither meet with obstruction from the People, nor stand in need of any other methods to enforce their execution than the laws of the particular States. 

Extending Federal Law to Individuals Will Strengthen the United States 

The hope of impunity is a strong incitement to sedition, and the dread of punishment is a proportionably strong discouragement to it. Will not the Federal government – possessed of a due degree of power which can call to its aid the collective resources of the whole country – be more likely to repress the hope of impunity and to inspire the dread of punishment – than that of a single State, which can only command the resources within herself?  

A turbulent faction within a State might suppose itself able to contend with the opposition of the friends of the government in that State. Yet such a faction can hardly be so infatuated as to imagine itself a match for the combined efforts of the United States. If this be true, it also is true that irregular combinations of individuals opposed to the authority of the United States will pose less resistance to that authority than that of a single State. 

* * *

The hope of impunity is a strong incitement to sedition, and the dread of punishment is a proportionably strong discouragement to it.

* * *

The more that the operations of the Federal government are intermingled in the ordinary exercise of State governments, the more the People will be accustomed to meet with it in the common occurrences of their political life. The more the Federal Government is familiarized to the sight and feelings of the People – and the more it acts sensibly and puts in motion the most active springs of the human heart – the greater the probability it will earn the respect and attachment of the People.  

Man is very much a creature of habit. A thing that rarely strikes his senses will generally little influence his mind. A Federal government continually at a distance and out of sight will little interest the sensations of the People. The authority of the Federal government – and the affections of the People towards it – will be strengthened by its extension to internal State matters. The Federal government will have less occasion to resort to force in proportion to the familiarity and comprehensiveness of its agency.  The more the Federal government circulates through those channels and currents in which the passions of the People naturally flow, the less will it require the perilous expedient of violent compulsion.

One thing is certain. The Federal government as set forth in the Constitution will be less likely to need force to enforce the laws of the United States than a Federal authority which only operates on States in their political or collective capacities as States. As I explained in Federalist 15, in that type of league, the only sanction for disobedience of Federal law is force. Frequent delinquencies of the States would be the natural offspring of the very frame of the government.  As often as they happen, the only redress – if any – would be by violence and war. 

Extending the authority of the Federal government to the individual citizens of the several States will enable it to employ the ordinary administration of each State in the execution of its laws. In practice this will destroy all distinctions between the sources of governmental power. It will give the Federal government the same advantage for securing a due obedience to its authority now enjoyed by the government of each State. In addition to this influence on public opinion, the Federal government will benefit from the public knowledge that it has the power to call to its assistance and support the resources of the entire United States.  

The laws of the United States will become the supreme law of the land as to the enumerated and legitimate objects of its jurisdiction.  Every State officer – whether legislative, executive, or judicial – will be bound by the sanctity of oath to uphold those laws. All State legislatures, courts, and officers will be incorporated into the operations of the Federal government – as far as its just and constitutional authority extends – and thus be rendered auxiliary to the enforcement of its laws. To those who argue this will tend to the destruction of the State governments, Federalist 41 and Federalist 44 give a complete reply.

* * *

Extending the authority of the Federal government to the individual citizens of the several States will enable it to employ the ordinary administration of each State in the execution of its laws.  In practice this will destroy all distinctions between the sources of governmental power.

* * *

Anyone honestly reflecting on these circumstances will perceive the laws of the United States will be peacefully executed if its powers are administered with a common share of prudence.  If those laws be injudiciously administered, the best government that ever was or ever will be would provoke and precipitate the People into the wildest excesses. The adversaries of the Constitution presumed that the Federal rulers would be insensitive to the motives of public good or to the obligations of duty.  To them I would ask:  how can the interests of ambition or the views of encroachment be promoted by such a conduct?

Hamilton

Federalist 28:  A Federal Standing Army Can Quell Insurrections 

The Use of Force May Be Required to Quell Civil Disturbances 

SEDITIONS AND INSURRECTIONS are maladies that are as inseparable from the body politic as tumors and eruptions are from the natural body. Thus, the idea of governing at all times with the simple force of law exists only in the reveries of those political doctors whose sagacity disdains the admonitions of experimental instruction. Emergencies of this kind arise at times in all societies, no matter how they are constituted.  Our own experience corroborates the lessons taught by the examples of other nations. Should such an emergency arise under the Constitution, the only response must be by force, since an insurrection – whatever its immediate cause – eventually endangers all forms of government. 

State Militias are Adequate to Control Minor Disturbances

The means employed to respond to such an event must be proportional to the mischief. if it is but a slight commotion in a small part of a State, the militia of the other States would be adequate suppress it. The Federal government should presume that the State militias would be ready to do their duty, if only to preserve the public peace.  As for upholding the rights of the Federal government, it would be irrational to assume State militias would not assist – so long as the people find the practices of that government conducive to their prosperity and felicity. 

Larger Disturbances Require a Force Greater than State Militias

If an insurrection should pervade a whole or principal part of a State, it might be unavoidable to employ a different kind of force.  Massachusetts found it necessary to raise troops for repressing the disorders within its borders. Pennsylvania also thought it was proper to have recourse to the same remedy from the mere apprehension of commotions among a part of her citizens. If the State of New York had been inclined to reestablish her lost jurisdiction over the inhabitants of Vermont, could she have hoped for success from the efforts of her militia alone? Would she not have been compelled to raise and to maintain a more regular force for the execution of her design?

* * *

In the event the representatives of the People betray their constituents, the only resource left is the exercise of the right of self-defense, a right paramount to all positive forms of government. The right of self-defense against the usurpations of the Federal government can be exerted with infinitely better prospect of success than against an individual State government.

* * *

The recurring need to utilize a force greater than the militias in extraordinary cases within the States – as shown by these examples – negates the objection that the Federal government ought not to have the same power under a like necessity in similar extremities.  Is there anyone who would prefer not to have that option to respond to the unceasing agitations and frequent revolutions which are the continual scourges of petty republics?

Dividing the United States into Three, Four or Thirteen Separate Parts Is No Solution

Those who object to a standing army for the Federal government presumably would also object to the existence of a standing army for three or four confederacies of States.  Would not each of them be exposed to the same insurrections as a Federal government?  Would not each confederacy have recourse to the same expedients for upholding its authority which are objected to in a Federal government for all the States?  Would a militia be more ready or more able to support the Federal authority than in the case of the general union under the Constitution?  The principle of the objection applies equally in both cases.  Whether we have one government for all of the States, or different governments for different parcels of them – or even if there should be an entire separation of the States – it might become necessary to use a force constituted differently from the militias, in order to preserve the peace of the community and maintain the just authority of the laws against those violent invasions of them which amount to insurrections and rebellions.

To those who would require a more definite prohibition against military establishments in times of peace, it is a full answer to say that the whole power of the Federal government is to be in the hands of the representatives of the People.  This is the essential and only efficacious security for the rights and privileges of the People attainable in a civil society. 

* * *

It can be said without exaggeration that in a republican confederacy of State governments like ours, the People are entirely the masters of their own fate. Power is almost always the rival of power.  Just as the Federal government will at all times stand ready to check the usurpations of State governments, the State governments will have the same disposition towards the Federal government. By throwing themselves onto either scale, the People will infallibly tip those scales in their favor. If their rights are invaded by either the Federal or State governments, the People can make use of the other as the instrument of redress. 

* * *

The Innate Right of Self-Defense Is Available to Counter a Federal Usurpation

In the event the representatives of the People betray their constituents, the only resource left is the exercise of the right of self-defense, a right paramount to all positive forms of government.  The right of self-defense against the usurpations of the Federal government can be exerted with infinitely better prospect of success than against an individual State government.  If the persons entrusted with control of a State government become usurpers, the different parcels, subdivisions, and districts of the State – having no distinct government in each – can take no regular measure for defense.  The citizens must rush tumultuously to arms, without concert, system, or resource, except in their courage and despair.  The usurpers – clothed with the forms of legal authority – can too often crush the opposition in embryo. In smaller States, it will be more difficult for the People to form a regular or systematic plan of opposition.  Hence it will be easier to defeat their initial efforts.  It will be easier to obtain speedy intelligence of their preparations and movements.  Hence the military force in the possession of the usurpers can be more rapidly directed against the part where the opposition has begun.  In this situation there must be a peculiar coincidence of circumstances to insure success to the popular resistance.

The obstacles to usurpation – and the facilities of resistance – increase with the physical extent of a State, provided the individual citizens understand their rights and are disposed to defend them.  The natural strength of the People – compared to the artificial strength of a government – is greater in a large community than in a small, and of course more competent to a struggle with the attempts of any government to establish a tyranny. 

The People Can Tip the Balance against State or Federal Usurpations of Power

It can be said without exaggeration that in a republican confederacy of State governments like ours, the People are entirely the masters of their own fate. Power is almost always the rival of power.  Just as the Federal government will at all times stand ready to check the usurpations of State governments, the State governments will have the same disposition towards the Federal government.  By throwing themselves onto either scale, the People will infallibly tip those scales in their favor. If their rights are invaded by either the Federal or State governments, the People can make use of the other as the instrument of redress. 

By supporting the creation of the United States, the People have wisely preserved to themselves an advantage which can never be too highly prized! It may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the People’s liberty. The projects of usurpation by the Federal government cannot be masked under pretenses that would likely to escape notice by the select bodies of individuals in the State governments, nor by the People at large. The State legislatures will have access to more information regarding Federal plots to usurp power.  They can discover the danger at a distance.  Since State governments possess all the organs of civil power – as well as the confidence of the People – they can at once adopt a regular plan of opposition to the Federal government by combining all the resources of the community. They also can readily communicate with each other in the different States, and thereby unite their common forces for the protection of their common liberty.

The great extent of the country is a further security. We have already experienced its utility against the attacks of a foreign power.  And it would have precisely the same effect against the enterprises of ambitious rulers in the Federal government.  If the army of the Federal government should be able to quell the resistance of one State, it would be within the power of distant States to make head with fresh forces.  The Federal government would  have to abandon the advantages obtained in one State to subdue the opposition in other States. And upon the moment the State reduced to submission was left to itself, its efforts would be renewed, and its resistance revive.

In all events, the extent of a Federal military force is naturally limited by the resources of the States.  It will not be possible to create a large Federal army for many years, but as our means increase, so too will our means of increasing the Federal army.  Of course, this increase in means can grow only in proportion to the increase of the population and natural strength of the People and their communities. 

Will the time ever arrive when the Federal government can raise and maintain an army capable of erecting a despotism over the great body of the People of an immense empire?  Not so long as the People – through the medium of their State governments – take measures for their own defense, with all the celerity, regularity, and system of independent nations.  Those who fail to apprehend these facts may be viewed as suffering from a disease, for no cure can be found in the resources of argument and reasoning.

Hamilton

Federalist 29:  Congress Must Fund and the President Must Control State Militias

The Federal Government Should Regulate State Militias 

IF WELL-REGULATED MILITIAS are the most natural defenders of a free country, they certainly ought to be regulated by and be at the disposal of the Federal government, which the Constitution establishes as the guardian of the national security. The power of regulating State militias – and of commanding their services in times of insurrection and invasion – are natural incidents to the power and duty of the Federal government to superintend the common defense and watch over the internal peace of the United States. 

The State Militias Should Be Uniform and Ready to Defend

Even a person unskilled in the science of war can discern that uniformity in the organization and discipline of the militias naturally would lead to the most beneficial effects whenever it was called to serve for the public defense.  Uniformity in organization and discipline of the State militias would fit them much sooner to the degree of military proficiency needed to discharge the duties of the camp and field with mutual intelligence.

The Constitution Expressly Provides for the Congress to Fund and Arm State Militias and for the President to Lead Them 

Such uniformity can be accomplished only by confiding the regulation of the militia to the direction of the Federal government.  Thus, the Constitution empowers the Federal government “to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by congress.” Art. I, § 8, cl. 16 (emphasis added). 

And the President “shall” be their Commander in Chief, which is in accordance with an enumerated power:  “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.”  Art. II, § 2, cl. 1. 

State Militias Are a Natural Bulwark Against Federal Tyranny

Militias are the bodies to whom we commit the protection of the individual States. If standing armies are dangerous to liberty, a Federal power over the militias will lessen the inducement and the pretext to such armies.  If the Federal government cannot command the aid of State militias in those emergencies which call for military support of the President, it will more likely employ a different type of force, such as a standing army. The most certain method of preventing a standing army is to render its existence unnecessary – a method more sure than a thousand prohibitions on paper.

The Absence of a Posse Comitatus Provision Proves Nothing

Those opposed to a power in the Federal government to call forth the militia to execute the laws of the United States point to the absence of any constitutional provision granting a Federal power to summon the posse comitatus of able-bodied individuals to assist with the execution of the President’s duties. From this they infer the President’s only auxiliary is military force. 

There appears a striking incoherence to an argument that in one breath tells us the power of the Federal government will be despotic and unlimited due to its military force, and in the next that the same government has not authority sufficient even to call out the posse comitatus.

The right to pass all laws necessary and proper to execute the Federal government’s declared powers undoubtedly includes requiring citizens to assist the officers entrusted with the execution of those laws.  There is no reason to infer the expression of a power to use a military force includes an intent that such force be the sole instrument of authority.

* * *

To summarize: the most to be reasonably aimed at with respect to the People at large is to see that they are properly armed and equipped. So this is not neglected, it will be necessary to assemble them once or twice in the course of a year.

* * *

The Citizenry Should Be Armed and Equipped Annually

It is unlikely the Federal power to discipline the militia would extend in practice to all the individual citizens of the United States.  The project would be as futile as it would be injurious, even if it were capable of being carried into execution.  A tolerable expertness in military movements is a business that requires time and practice. Neither a day nor a week would suffice to attain it. It would be a real grievance to the People – and a serious public inconvenience and loss – to oblige all classes of citizens to be under arms for the purpose of going through military exercises and evolutions as often as necessary to acquire the degree of perfection that characterizes a well-regulated militia. Even to attempt the thing would abridge the mass of labor and industry so considerably as to be unwise. And if the experiment were made, it would fail as soon as endurance gave out. 

To summarize: the most to be reasonably aimed at with respect to the People at large is to see that they are properly armed and equipped.  So this is not neglected, it will be necessary to assemble them once or twice in the course of a year.

Misuse of State Militias to Execute Federal Tyranny Is Unlikely

Another improbable and exaggerated claim is the Federal government will march one or more State militias to a distant State or States. It is announced the militia of New Hampshire is to be marched to Georgia, of Georgia to New Hampshire, of New York to Kentucky, and of Kentucky to Lake Champlain.  It is said that even the wartime debts due the French and Dutch are not to be paid in their native currencies but instead with able-bodied American militiamen. At one moment the critics of the Constitution envisage a large army to lay prostrate the liberties of the People, and at another they foresee the militia of Virginia being dragged from their homes to tame that obstinate resistance to authority habitual to the citizens of Massachusetts.  And then again the militia of Massachusetts is to be transported an equal distance to subdue the refractory haughtiness of the aristocratic Virginians. Can such mad and delirious arguments be expected to persuade the People of America to abandon infallible truth?

* * *

Assuming a State militia were called to undertake a distant and hopeless Federal expedition to rivet the chains of slavery upon a part of their countrymen, said militia – properly irritated by the order of so foolish and wicked a project – would more likely direct its course to the seat of the tyrants, in order to crush their grasping and imagined power, and make them an example of the just vengeance of an abused and incensed People. 

* * *

A Misused Militia Would Probably First March on the Federal Capital

If a Federal standing army is to be made the engine of Federal despotism, what need is there of State militias to assist this scheme of tyranny? If there be no Federal standing army, the chances of oppression are even less. Assuming a State militia were called to undertake a distant and hopeless Federal expedition to rivet the chains of slavery upon a part of their countrymen, said militia – properly irritated by the order of so foolish and wicked a project – would more likely direct its course to the seat of the tyrants, in order to crush their grasping and imagined power, and make them an example of the just vengeance of an abused and incensed People. 

State Militias Should Have a Ready Body of Individuals Who Can Serve

As for the composition of State militias, they should have an excellent body of well-trained members ready to take the field whenever the defense of a State requires it. This will lessen the call for military establishments. If circumstances should oblige the Federal government to form an army of any magnitude, that army can never be formidable to the liberties of the People so long as a large body of individual citizens – little if at all inferior to the army in discipline and the use of arms – stand ready to defend their own rights and those of the People. Well-regulated State militias are the only substitutes for a Federal standing army, and the best possible security against such an army should it exist. 

* * *

 As for the far-fetched fear that conjures danger to liberty from militias, one is at a loss whether to treat it with gravity or raillery. Is the argument a mere trial of skill – like the paradoxes of rhetoricians – a disingenuous artifice to instill prejudices at any price?  Or is it simply the offspring of political fanaticism?

* * *

State Militias Must Be Available to Quell Neighboring Disturbances

When we finally arrive at the true facts, it would be natural and proper – in times of insurrection or invasion – for the militia of a State to be marched into a neighboring State in order to resist a common enemy or to guard the republic against the violence of faction or sedition.  Resisting a common enemy was frequently the case for utilizing State militias in the course of the Revolutionary War.  This mutual succor is indeed a principal end of our political association.   Placing the power over such forces in Federal hands will lessen the risk State governments will lapse into a listless inattention to the dangers of a neighboring force until its near approach had awakened the feeble impulses of duty and the urge to self-preservation. 

As for the far-fetched fear that conjures danger to liberty from militias, one is at a loss whether to treat it with gravity or raillery.  Is the argument a mere trial of skill – like the paradoxes of rhetoricians – a disingenuous artifice to instill prejudices at any price? Or is it simply the offspring of political fanaticism? 

The States Retain the Important Power of Appointing All Officers to Their Militias

In the name of common sense, where are our fears to end if we cannot  trust our sons, daughters, brothers, sisters, neighbors, and fellow-citizens? What shadow of danger can be cast from individuals daily mingling with the rest of their countrymen, and who experience the same feelings, sentiments, habits and interests?  How can the Federal power over State militias be a vehicle to tyranny while the particular States have the sole and exclusive appointment of its officers, as the Constitution declares?  The appointment of militia officers by the States should extinguish any fear the Federal government will establish tyranny by means of State militias.  By reserving to the States the sole and exclusive power to appoint officers, the States will always maintain a preponderating influence over their respective militias.

Hamilton

Federalist 30–36: Federal Taxation 

Federalist 30: The Federal Government Must Be Well-Funded  

THE FEDERAL GOVERNMENT WILL POSSESS THE POWER of providing for the support of the national forces, and with it the obligation to make expenditures for raising troops, building and equipping fleets, and any other expense in any way connected with military arrangements and operations.

   The Federal taxing power must also embrace a provision for the support of the operation of the national civil list, the payment of the national debts contracted, and in general for all those matters which will call for disbursements out of the national treasury.  In one shape or another, a general power of taxation must be interwoven into the frame of the Federal government.

* * *

If revenue is deficient, one of two evils must ensue: either the People must be subjected to continual plunder to supply the public wants, or the government must sink into a fatal atrophy and perish.

* * *

Federal Sources of Revenue Are Essential

Money is the vital principle of the body politic. It sustains its life and motion, which in turn enables it to perform its most essential functions. Thus an indispensable ingredient in every constitution must be the complete power to procure a regular and adequate supply of money so far as the resources of the community will permit.  

If revenue is deficient, one of two evils must ensue: either the People must be subjected to continual plunder to supply the public wants, or the government must sink into a fatal atrophy and perish.

The first evil is visible in the Ottoman empire, based in Turkey, where the sovereign – though in other respects absolute master of the lives and fortunes of his subjects – has no right to impose a new tax. To fund the government, the sovereign permits the leaders of provinces to pillage the people without mercy, and then squeezes out of these leaders the sums he needs to satisfy his own exigencies and those of the state.  

Likewise in America, under the Articles of Confederation, the national government gradually dwindled into a state of decay and near annihilation. No one can doubt the happiness of the People in both countries would be promoted by competent authorities in the proper hands to secure the revenues which the necessities of the public might require. 

It is true that the national government existing prior to ratification of the Constitution possessed an unlimited power of providing for its pecuniary wants.  But that government proceeded on an erroneous principle that entirely frustrated this intention. Congress was authorized to ascertain and call for any sums of money it deemed necessary to the service of the United States. Its requisitions – if conformable to the rule of apportionment – were in every constitutional sense obligatory upon the States.  In addition, the States had no right to question the propriety of the demand.  But the States thereafter exercised discretion – contrary to the tenor of the Articles of Confederation – in devising the ways and means of furnishing the sums demanded. Although this discretion was almost never avowedly claimed, in practice it was constantly exercised.  The untoward consequences of this system caused mortification to ourselves and triumph to our enemies, as I explained in Federalist 15 through Federalist 22.  So long as the revenues of the Federal government depend on the intermediate agency of State governments, nothing would change.   

The only remedy was to replace the fallacious system of quotas and requisitions. The Federal government must be allowed to raise its own revenues by the ordinary methods of taxation authorized in every well-ordered constitution of civil government.  No human ingenuity can identify any other expedient to rescue us from the inconveniences and embarrassments naturally resulting from defective supplies to the public treasury.

Sources of Federal Revenue Must Be Both Internal and External 

The more intelligent adversaries of the new Constitution admit the force of this reasoning, but they qualify their admission by a distinction between what they call internal and external taxation. External taxation – duties on imported articles – would be conceded to the Federal government. The remaining taxing power – internal taxation – would repose with the individual State governments.  

The distinction between internal and external taxes violates the maxim of good sense and sound policy which dictates every power ought to be in proportion to its object. Limiting the Federal government to external taxation would leave it in a kind of tutelage to the State governments, and be inconsistent with every idea of vigor or efficiency. No one can pretend that commercial imposts would equal the present and future exigencies of the United States.  Taking into the account the existing foreign and domestic debt, as well as the Federal establishments – which everyone agrees are necessary – we cannot flatter ourselves that external taxes alone would even suffice the current Federal necessities. As future necessities of the Federal government admit not of calculation or limitation, the power of making provision for them as they arise must be equally unconfined, since the history of mankind establishes the necessities of a nation will normally equal or exceed its resources at every stage of its existence. 

Relying Only on External Taxes Gives States Excessive Control 

If we limit the revenue of the Federal government to external taxes only, we will necessarily require it to rely upon State governments for any shortfall. The Federal government would again depend upon the failed system of requisitions from State governments. The inevitable tendency of such an approach would enfeeble the United States and sow the seeds of discord and contention between the Federal and State governments, and between the States themselves. 

The proponents of limiting the Federal taxing power to external taxes presumably believe there is a point in the economy of national affairs where one could safely stop and say:  We have given the Federal government all it needs to supply its wants and thereby advance the public happiness of the People, and all beyond this is unworthy of our care or anxiety.  

But how can a government that is always half-supplied and necessitous fulfill its purposes of providing for the security, advancing the prosperity, and supporting the reputation of the United States?  Can it ever possess energy and stability, dignity and credit, or confidence at home and respectability abroad? Its administration would be nothing else than a succession of temporizing, impotent and disgraceful expedients. It would make a frequent sacrifice of its engagements to immediate necessity.  It could not undertake or execute any liberal or enlarged plans of public good.  

And what would happen to such a government when it became engaged in its first war?  Prior to hostilities, it is fair to assume its revenues – limited to impost duties – would be sufficient to keep current payments on the public debt and to maintain peace establishments.  We will next assume the government would have learned from experience the futility of requisitions from the States. If the Federal government is limited in its power to tax – and thus unable by its own authority to lay hold of fresh resources – would not the government, fueled by considerations of national danger, be driven to the expedient of diverting the funds already appropriated from their proper objects to the defense of the United States?  

* * *

The Federal power of creating new funds upon new objects of taxation would enable the Federal government to borrow as far as its necessities might require.  

* * *

It would be difficult to avoid a step of this kind. Once taken, it would prove the destruction of the public credit. One must be deluded to imagine that at such a crisis the nation could dispense with credit. It would be the extreme of infatuation.  In the modern system of war, even the wealthiest nations are obliged to have recourse to large loans. A smaller country must feel this necessity in a much stronger degree. But who would lend to a government that prefaced its overtures for borrowing with an act demonstrating the unsteadiness of its revenue stream for repayment? What loans it might be able to procure would be as limited in their extent as burdensome in their conditions? They would be made upon the same principles that usurers commonly lend to bankrupt and fraudulent debtors:  with a sparing hand but at enormous premiums.

Due to the presently limited resources of the United States, it might seem impossible to avoid diverting established funds in the case of war, notwithstanding the Federal government’s unrestrained power of taxation. But two considerations will serve to quiet all apprehension on this head. First, I am sure the full resources of the community will be brought into activity for the benefit of the United States.  Second, any deficiency can without difficulty be supplied by loans.

The Federal power of creating new funds upon new objects of taxation would enable the Federal government to borrow as far as its necessities might require.  Foreigners – as well as the citizens of the United States – could then reasonably repose confidence in its engagements.  But the situation would be reversed if the Federal government were dependent upon the State governments for the means to fulfill its contracts. To believe otherwise would require a degree of credulity not often found in the pecuniary transactions of mankind, and little reconcilable with the usual sharp-sightedness of avarice.

We Must Act on the Assumption that the United States Will Suffer Its Fair Share of Reversals

The preceding reflections may have trifling weight with individuals who hope to see realized in the United States the halcyon scenes of a poetic or fabulous age. But to those who believe we are likely to experience a common portion of the vicissitudes and calamities which have fallen to the lot of other nations, my reflections are entitled to serious attention.  We must behold the actual situation of their country with painful solicitude, and deprecate the evils which ambition or revenge might, with too much facility, inflict upon it.

Hamilton

Federalist 31:  A General Federal Power of Taxation Is Required

Certain Primary Truths Are Indisputable

IN DISQUISITIONS OF EVERY KIND, certain primary truths contain internal evidence commanding the assent of the mind antecedent to all reflection. Upon these all subsequent reasonings must depend. Of this nature are the maxims in geometry, such as the whole is greater than a part, things equal to the same are equal to each other, two straight lines cannot enclose a space, and all right angles are equal to one another.  

The objects of geometrical inquiry are so far removed from those pursuits which stir and animate the unruly passions of the human heart that mankind has easily adopted even those abstruse paradoxes which seem at variance with the natural conceptions the mind would entertain in the absence of knowledge. For instance, the infinite divisibility of finite matter – extending even to the minutest atom – is a point agreed among scientists though it is no more comprehensible to common sense than any of those mysteries of religion so industriously assaulted by nonbelievers. 

Of the same nature are the accepted maxims of in ethics and politics, including there can be no effect without a cause, the means ought to be proportioned to the end, every power ought to be commensurate with its object, and there should be no limitation of a power destined to effect a purpose which is itself incapable of limitation.  

And besides these are other truths in the science of ethics and politics which – though not ranking in the class of axioms – are direct inferences from the first principles.  They are so obvious in themselves – and so agreeable to the natural and unsophisticated dictates of common sense – that they demand the assent of a sound and unbiased mind with a degree of force and conviction almost equally irresistible.

* * *

I do not pretend the principles of moral and political knowledge generally have the same degree of certainty as in mathematics. But when applied to the conduct of individuals in particular situations, these principles have more claim to truth than we are disposed to admit. If these principles seem obscure to an individual, much more often it is the fault of the passions and prejudices of the reasoner than in the subject being studied. 

* * *

Where these truths produce not these effects, the organs of perception must suffer from some defect or disorder, or be subject to the influence of some strong interest, passion, or prejudice. In the sciences of morals and politics, of course, humans are far less governable. To a certain degree, it is right and useful that this should be the case.  Caution and investigation are a necessary armor against error and imposition.  But intractability can be carried too far, and degenerate into obstinacy, perverseness, or disingenuity.  

I do not pretend the principles of moral and political knowledge generally have the same degree of certainty as in mathematics. But when applied to the conduct of individuals in particular situations, these principles have more claim to truth than we are disposed to admit.  If these principles seem obscure to an individual, much more often it is the fault of the passions and prejudices of the reasoner than in the subject being studied.  On too many occasions, individuals decline to give their own thoughts and knowledge fair play.  Instead, they yield these to some untoward bias, and thus entangle themselves in words and subtleties.

The Federal Government Requires a General Power of Taxation 

The natural human tendencies just described most likely explain why some oppose a general power of taxation in the Federal government. I will assume the objections are sincere, and answer first with a brief recapitulation of the need for a general Federal power of taxation. 

A government ought to contain in itself every power requisite to the full accomplishment of the objects committed to its care, and to the complete execution of the trusts for which it is responsible, free from every other control except a due regard to the public good and the sense of the People.

The duties of superintending the national defense and of securing the public peace against foreign or domestic violence require advance provisions for casualties and dangers.  The power of making these provisions can know no bounds other than the exigencies of the nation and the resources of the community.

Revenue is the essential engine to secure these provisions.  As there is no limitation on the Federal power to respond to such national exigencies, neither can there be a limitation on the means by which revenue is secured. The power to secure such revenue is necessarily contained within the power to answer such national exigencies.  

Theory and practice conspire to prove a Federal power of procuring revenue is unavailing when exercised over the States in their capacities as States. Thus the Federal government must of necessity be invested with an unqualified power of taxation in the ordinary modes.

While I believe the propriety of a general power of taxation in the Federal government can safely rest on the evidence of these propositions alone, the antagonists of that power most zealously oppose the Constitution on this point.  Their arguments are in substance these:  although the exigencies of the United States may prove unlimited, the Federal power of laying taxes ought to be confined because revenue is as critical to State governments as it is to the Federal government, and State governments are of equal or greater importance to the happiness of the People.  State governments therefore ought to command the means of supplying their needs with no less power than the Federal government possesses with respect to the needs of the United States.  An indefinite Federal power of taxation eventually might deprive State governments of the means of providing for their own necessities, and subject them entirely to the mercy of Congress.  Since the laws of the United States are the supreme law of the land – and the Congress has the power to pass all laws necessary and proper for carrying those laws into execution – the Federal government might at any time abolish the taxes imposed for State objects upon the pretense of an interference with its own.  Congress might allege a necessity of doing this in order to give efficacy to the national revenues, and by degrees all the resources of taxation might become the subjects of Federal monopoly, to the entire exclusion and destruction of State governments.

* * *

All observations founded upon the danger of usurpation ought  to be referred to the composition and structure of the Federal government, and not to the nature or extent of its powers.

* * *

These arguments spring from two sources, only one of which is grounded in the science of politics, to wit, the view that the structure and composition of the Federal government might gradually lead to a Federal monopoly on tax revenues.   The other objection surfaces from the depths of human passion and prejudice, and floods the minds of its adherents with supposed schemes of Federal usurpation. 

Those Who Would Limit the Federal Taxing Power Act Out of Jealousy or Timidity 

The moment we commence conjecturing about Federal usurpations, we descend into an unfathomable abyss and put ourselves out of the reach of all reason. Imagination can thus allow itself to range at will amidst the labyrinths of an enchanted castle – until the rash adventure bewilders the mind with limitless perplexities.  No matter what limits are erected against the powers of the Federal government, it is easy to imagine an endless train of possible dangers. By indulging an excess of jealousy and timidity, we may bring ourselves to a state of absolute skepticism and irresolution.  

All observations founded upon the danger of usurpation ought to be referred to the composition and structure of the Federal government, and not to the nature or extent of its powers.  

* * *

In republics, strength is always on the side of the People.

* * *

Are not State governments invested with complete sovereignty by virtue of their own constitutions? What security counters usurpation from that quarter? Without doubt the answer is found in the manner of their formation and a due reliance upon those who are to administer them upon the People.  If the Federal Constitution affords the same species of security, all apprehensions on the score of usurpation should be discarded.

A disposition in the Federal government to encroach upon the rights of State governments is no more probable than a disposition in State governments to encroach upon the rights of the Federal government. The prevailing party is such a contest would likely have the greater means of ensuring success. In republics strength is always on the side of the People.  As State governments will commonly possess the most influence over the People, the natural outcome of such contests would benefit State governments at the expense of the Federal government.  

But all conjectures of this kind are extremely vague and fallible: the safest course by far is to lay them altogether aside, and confine our attention wholly to the nature and extent of the powers as they are delineated in the Constitution. Every thing beyond this must be left to the prudence and firmness of the People. Since the People hold the scales of justice in their own hands, we must hope they will always take care to preserve the constitutional equilibrium between the Federal and State governments. Upon this truth, the objections to an indefinite power of taxation in the United States must collapse. 

Hamilton

Federalist 32: With the Sole Exception of Duties on Foreign Imports and Exports, States Retain Full Taxing Authority

SOME STATE GOVERNMENTS MISAPPREHEND A DANGER from a perceived power of the Federal government to control their levies of money.  A complete barrier to the oppressive use of such a power, however, exists due to the extreme hazard of (1) provoking the resentments of State governments, and (2) the sense of the People of the utility and necessity of local administrations for local purposes.  Individual States possess an independent and uncontrollable authority to raise their own revenues for the supply of their own wants.  Under the Constitution, the States retain that authority in the most absolute and unqualified sense, with the sole exception being duties on imports and exports. Any attempt on the part of the Federal government to abridge that right would be a violent assumption of power, unwarranted by any article or clause in the Constitution.

The Constitution has no aim towards an entire consolidation of the State governments into one complete national sovereignty.  Such a plan would imply an entire subordination of the States, with all remaining powers dependent on the general will.  But as the Constitution aims only at a partial union or consolidation, the State governments clearly retain all the rights of sovereignty they had before its adoption.  

The Three Areas in which the Federal Government Has Exclusive Authority

The only aspects of State governmental sovereignty passing to the Federal government are those rights the States have exclusively delegated to the United States. Viewed another way, this exclusive delegation amounts to an exclusive alienation of certain State rights.  It exists in three cases only:

1.   Where the Constitution in express terms grants an exclusive authority to the Federal government.  

2. Where the Constitution in one instance grants an authority to the Federal government, and in another prohibits State governments from exercising the like authority. 

3.  Where the Constitution grants an authority to the Federal government, to which a similar authority in State governments would be absolutely and totally contradictory and repugnant.  (This situation should be distinguished from those where the exercise of a concurrent federal and state jurisdiction might produce occasional interferences in the policy of any branch of administration, but not involve any direct contradiction or repugnancy in point of constitutional authority.)

These three cases of exclusive jurisdiction in the Federal government may be exemplified by the following instances:  

1.  Where the Constitution in express terms grants an exclusive authority to the Federal government. The Constitution expressly provides the Federal government shall exercise “exclusive legislation” over the district to be appropriated as the seat of government, to wit: the District of Columbia. Art. I, § 8, cl. 17. By this grant of exclusive authority, the States alienate any authority to legislate over the District of Columbia. 

2. Where the Constitution in one instance grants an authority to the Federal government, and in another prohibits the States from exercising the like authority.  For instance, the Constitution empowers the Federal government “to lay and collect Taxes, Duties, Imposts and Excises,” Art. I, § 8, cl. 1, while another clause declares: “No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection laws.” Art. I, § 10, cl. 2.  These clauses result in an exclusive Federal power to lay duties on imports and exports, with the particular exception of State inspection laws. This exclusive power in the Federal government to lay duties on imports and exports is abridged by another clause, which declares that no tax or duty shall be laid on articles exported from any State.  In consequence, the exclusive power in the Federal government to lay duties on imports and exports extends only to imports.  

3.  Where the Constitution grants an authority to the Federal government, to which a similar authority in State governments would be absolutely and totally contradictory and repugnant. This third case of an alienation of State sovereignty is found in that clause which declares the Federal government shall have power “to establish a uniform rule of Naturalization . . . throughout the United States.” This must necessarily be exclusive, for if each State government had the power to prescribe a distinct rule, there could be no uniform rule.

The Federal power “to lay and collect Taxes, Duties, Imposts and Excises” Art. I, § 8, cl. 1, also raises the distinct concept of dual Federal and State sovereignty with respect to that power. This is manifestly a concurrent and coequal authority in the Federal government and State governments. The power “to lay and collect taxes, duties, imposts and excises” contains no expression making that power exclusive in the Federal government, aside from taxes on imports and exports. Nor does the Constitution include any independent clause or sentence prohibiting State governments from laying and collecting taxes on items other than imports or exports. The inclusion of a restriction on imports and exports implicitly admits that State governments would otherwise possess the power the restriction excludes. It further implies the authority of State governments to impose all other taxes remains undiminished. The restriction in question amounts to a negation of one thing, and an affirmance of another.  It is a negation of the authority of State governments to impose taxes on imports and exports, and an affirmance of their authority to impose them on all other articles. 

The Federal and State Powers of Taxation Are Complementary 

There is no repugnancy between the Federal and State powers of taxation. No construction of the Constitution would work an exclusion on State governments. It is possible a State government might lay a tax on a particular article which might render it inexpedient that a further tax should be laid on the same article by the Federal government, but it would not imply the constitutional inability to impose a further tax. The quantity of the imposition – and the expediency or inexpediency of an increase on either side – would be questions of mutual prudence, but there would be no direct contradiction of power. The particular policy of the Federal and State systems of finance might now and then not exactly coincide, and might require reciprocal forbearance, but the mere possibility of inconvenience in the exercise of powers cannot alienate and extinguish a pre-existing right of sovereignty. Only an immediate constitutional repugnancy can by implication alienate and extinguish a preexisting right of sovereignty.

* * *

The Federal power “to lay and collect taxes, duties, imposts and excises” also raises the distinct concept of dual Federal and State sovereignty with respect to that power. This is manifestly a concurrent and coequal authority in the Federal government and State governments. The power “to lay and collect taxes, duties, imposts and excises” contains no expression making that power exclusive in the Federal government, aside from taxes on imports and exports. Nor does the Constitution include any independent clause or sentence prohibiting State governments from laying and collecting taxes on items other than imports or exports.

* * *

Dual (Concurrent) Sovereignty Can and Will Exist between the Federal Government and State Governments 

The necessity of a concurrent jurisdiction in certain cases results from the division of the sovereign power. Any State authority which the Constitution does not explicitly divest in favor of the Federal government remains with the State governments in full vigor. This is not a theoretical consequence of that division, but is clearly admitted by the whole tenor of the Constitution. We there find – in those cases where it was deemed proper to have exclusive Federal authority – the most pointed care was expended to insert negative clauses prohibiting the exercise of those authorities by the States. Article I, section 10, consists altogether of such provisions.  Its three paragraphs provide: 

“No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

“No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress.

“No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”

These expressions are clear indications of the sense of the Constitutional Convention.  It furnishes a rule of interpretation which justifies the position I have advanced and refutes every hypothesis to the contrary.

Hamilton

Federalist 33:  The Plain Meanings of the Necessary and Proper Clause and the Supremacy Clause 

The Plain Meanings of the Necessary and  Proper Clause and the Supremacy Clause 

THE REMAINING ARGUMENTS against the Federal power to tax focus on two clauses that allegedly will harm the States irremediably.  

The first clause – the Necessary and Proper Clause – authorizes  the Federal legislature “to make all laws which shall be necessary and proper for carrying into execution the powers by that Constitution vested in the government of the United States, or in any department or officer thereof.”  Art. I, ¶8, cl. 18, emphasis added.  

The second– the Supremacy Clause – declares “that the Constitution and the laws of the United States made in pursuance thereof, and the treaties made by their authority shall be the supreme law of the land, any thing in the constitution or laws of any State to the contrary notwithstanding.”  Art. I, cl. 2, emphasis added. 

The Two Clauses Are Neither Extraordinary Nor Harmful 

State and local governments have in some instances misrepresented these powers as pernicious engines that will destroy their governments and exterminate the liberties of the People.  Some describe a hideous monster whose devouring jaws would spare neither sex nor age, high nor low, sacred nor profane.  And yet, after all this clamor, it may be affirmed with perfect confidence that the constitutional operation of the Federal government would be precisely the same whether these clauses were entirely obliterated or repeated in every article.  

The clauses simply declare a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a Federal government and vesting it with certain specified powers. The proposition is so clear that moderation itself can scarcely listen to the copious railings vented against it. 

* * *

The first clause– known as the Necessary and Proper Clause – authorizes the Federal legislature “to make all laws which shall be necessary and proper for carrying into execution the powers by that Constitution vested in the government of the United States, or in any department or officer thereof.”  

Art. I, ¶8, cl. 18.

* * * 

The Necessary and Proper Clause Explained

What is a power but the ability or faculty of doing a thing?  

What is the ability to do a thing but the power of employing the means necessary to its execution? 

What is a legislative power but a power of making laws? 

What are the means to execute a legislative power but laws?

What is the power of laying and collecting taxes, but simply a legislative power – a power of making laws – to lay and collect taxes? 

What are the proper means of executing such a power, but necessary and proper laws?

A power to lay and collect taxes must be a power to pass all laws necessary and proper for the execution of that power. The clause under attack does no more than declare the same truth, to wit, that the Federal government – to whom the power of laying and collecting taxes has been given – might pass all laws necessary and proper to carry into effect the execution of that power.

The Power to Tax Is the Most Important Delegated Power   

I have explained the meaning of the Necessary and Proper Clause as applied to the power of taxation because it is the most important of the authorities conferred upon the Federal government.  The logic supporting its use inexorably lead to the same result in relation to all other powers declared in the Constitution. And it is expressly to execute those powers that the Constitution authorizes the national legislature to pass all necessary and proper laws. Any objection to this clause ought to be referred to the specific power to which it applies. The Necessary and Proper Clause is itself perfectly harmless.

The Necessary and Proper Clause Was Added to Refute Those Who Would Contend Such Power Does Not Exist 

But suspicion might ask:  Why was the Necessary and Proper Clause introduced? The answer is: for greater caution to guard against the caviling refinements by those who would curtail and evade the legitimate authorities of the Federal government.  

The Convention foresaw the greatest threat to our political welfare would be the resistance of State governments to Federal authority, and that nothing should be left to construction on so cardinal a point. But whatever the inducement to it, the wisdom of the precaution is evident from the cry raised against it. 

Congress Shall Have the Initial Say on What Is Necessary and Proper

It also may be asked: Who is to judge the necessity and propriety of the laws to be passed for executing the powers of the Federal government?  

In the first instance, the Federal government – like every other – must judge the proper exercise of its own powers.  

The People Have the Ultimate Say on What Is Necessary and Proper

In the last instance, the power rests with its constituents. If the Federal government should overpass the bounds of its just authority and make a tyrannical use of its powers, the People – whose creature it is – must take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.  

The propriety of a law – in a constitutional light – must always be determined by the nature of the powers upon which it is founded.  If the Federal legislature attempted to vary the law of descent in any State, it would be evident it had exceeded its jurisdiction and infringed upon the jurisdiction of that State. If the Federal government (upon the pretense of an interference with its revenues) should undertake to abrogate a land tax imposed by the authority of a State government, said abrogation would be an invasion of the concurrent jurisdiction over this species of tax, which the Constitution assumes exist in State governments? Should there ever be a doubt in this type of case, it would be entirely due to those have labored to envelop the plainest and simplest of truths in a cloud of obscurities. 

* * *

The second– known as the supremacy clause – declares “that the Constitution and the laws of the United States made in pursuance thereof, and the treaties made by their authority shall be the supreme law of the land, any thing in the constitution or laws of any State to the contrary notwithstanding.”  Art. VI, cl. 2. 

* * *

The Supremacy Clause Is a Logical Statement of Supreme Authority  

What inference shall be drawn from the clause stating the laws of the Federal government are to be the supreme law of the land? What would such laws amount to if they were not the supreme law of the land?  They would amount to nothing.  

A law  – by the very meaning of the term, includes supremacy. It is a rule which those to whom it is prescribed are bound to observe. This results from every political association.  If individuals enter into a state of society, the laws of that society must be the supreme regulator of their conduct.  If a number of political societies enter into a larger political society, the laws the larger may enact – pursuant to the powers entrusted to it by its constitution – must necessarily be supreme over those societies, and the individuals of whom they are composed.  

If the laws of the larger society were not supreme, each law would be a mere treaty between the larger and smaller society – dependent on the good faith of the parties – and not a government, which is only another word for political power and supremacy.

The Supremacy Clause Extends to Constitutional Acts Only

It does not follow from the doctrine of supremacy that acts of the large society which are not pursuant to its constitutional powers – but which are invasions of the residuary authorities of the smaller societies – will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such.  

Like the clause authorizing necessary and proper laws, the clause which declares the supremacy of the laws of the United States only declares a truth which flows immediately and necessarily from the institution of a Federal government.  It expressly confines this supremacy to laws made pursuant to the Constitution. This is another instance of caution in the Convention, by including in express terms a limitation that would otherwise be necessarily implied.

A new law laying a tax for use by the Federal government would be supreme in its nature, and could not legally be opposed or controlled. But a law abrogating or preventing the collection of a tax laid by a State (aside from imports and exports) would not be the supreme law of the land, but a usurpation of power not granted by the Constitution. As far as an improper accumulation of State and Federal taxes on the same object might tend to render the collection difficult or precarious, this would be a mere mutual inconvenience. It would arise from a superiority or defect of power on either side, but from an injudicious exercise of power by one or the other, in a manner equally disadvantageous to both. I would hope and presume that mutual interest would dictate a concert in this respect which would avoid any material inconvenience.  

Under the Constitution, State governments retain an independent and uncontrollable authority to raise revenue to any extent of which they may stand in need – by every kind of taxation – except duties on imports and exports. In Federalist 34, I will show this concurrent jurisdiction was the only possible substitute for an entire subordination of State taxation authority to that of the Federal government

Hamilton

Federalist 34:  Concurrent Federal and State Power to Tax 

The Federal and State Powers to Tax Are Almost Identical, Allowing Both to Satisfy Their Needs 

UNDER THE CONSTITUTION, EACH STATE GOVERNMENT has coequal authority with the Federal government to lay and collect taxes, except as to duties on imports. The greatest part of local resources are open to taxation for supplying revenues for the States. The States therefore possess means as abundant as could be desired for the supply of their own wants. 

Coequal Taxing Authority Already Exists and Works Well 

Relying upon abstract principles, some argue such coequal taxing authority cannot exist. Their suppositions and theories fail when measured against fact and reality.  Abstract principles are proper enough to show a thing ought not to exist. But when a thing already exists in fact and reality, and abstract principles are summoned to prove it cannot exist, fact and reality must triumph. 

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Abstract principles are proper enough to show a thing ought not to exist. But when a thing already exists in fact and reality, and abstract principles are summoned to prove it cannot exist, fact and reality must triumph.

* * *

The Dual Roman Legislatures Proved Coequal Authority Can Work 

In the Roman republic, the legislative authority of last resort resided in two distinct and independent legislatures.  Each had the power to annul or repeal the acts of the other. I allude to the comitia centuriata – the Century Assembly – and the comitia tributa – the Tribal Assembly. In the Century Assembly the people voted through representatives known as centuries.  It was so arranged to give a superiority to the patrician interest. In the Tribal Assembly numbers prevailed, so the plebian interest was entirely predominant.   It would be easy in the abstract to prove the unfitness of granting each the seemingly contradictory authority to annul or repeal the acts of the other, but an inhabitant of ancient Rome who undertook such an exercise would have been regarded as a lunatic. These two legislatures coexisted for ages, and the Roman republic attained to the utmost height of human greatness.

Neither the Federal Nor State Governments Can Annul the Acts of the Other 

In the case of coequal authority of the Federal government and State governments to lay and collect taxes, neither side has the power to annul the acts of the other. And in practice there is little reason to apprehend any conflict.  In the course of time, the wants of the States will naturally reduce themselves within a very narrow compass.  In the interim, the United States will probably find it convenient to abstain wholly from those objects to which the particular States would be inclined to resort.

* * *

We cannot leave the Federal government entrusted with the care of the national defense without the capacity to provide for the protection of the community against future invasions of the public peace by foreign war or domestic convulsions. 

* * *

We can form a more precise judgment of the true merits of this question by comparing the proportion of Federal to State objects requiring taxes to sustain them.  We shall discover the Federal objects are altogether unlimited, and the State objects circumscribed within very moderate bounds. While pursuing this inquiry, one must look beyond the present to the future, to our posterity. Constitutions of civil governments are framed not upon a calculation of existing exigencies, but upon a combination of these with the probable exigencies of ages, according to the natural and tried course of human affairs. One cannot gauge the extent of any power lodged in a national government by estimating its immediate necessities.  There ought to be a capacity to provide for future contingencies as they may happen. Since future contingencies are unlimited by nature, the capacity to respond to such contingencies must also be unlimited.  

It is possible that a sufficient computation might be had of the quantity of revenue requisite to discharge the subsisting engagements of the Federal government, and to maintain those establishments in times of peace. While peace is a useful starting point, it would be the extreme of folly to stop there.  

We cannot leave the Federal government entrusted with the care of the national defense without the capacity to provide for the protection of the community against future invasions of the public peace by foreign war or domestic convulsions.  And once we commence that undertaking, can we stop at anything less than an indefinite power in the Federal government to provide for emergencies as they may arise?  

* * *

Judging from the history of mankind, the fiery and destructive passions of war reign more powerfully in the human breast than the mild and beneficent sentiments of peace.  To model our political systems upon speculations of lasting tranquility is to calculate on the weaker springs of the human character.

* * *

Some assert it is easy to form a rational judgment of a proper provision against probable dangers.  To these individuals we may safely issue a challenge:  bring forward your data, so we can confirm your facts are as vague and uncertain as any that could be produced to establish the probable duration of the planet.

Observations confined merely to the prospects of internal attacks deserve no weight.  If we mean to be a commercial people, our policy must be to defend that commerce. he support of a navy and of naval wars involve contingencies which baffle all political arithmetic.  To its benefit, our Constitution undertakes the novel – and some would say absurd – approach of tying up the hands of government from engaging in an offensive war founded upon reasons of state. Clouds of war have hovered over parts of Europe and the Mediterranean for centuries.  If they should again break forth into a storm, who but we can ensure our own safety?  Even if the storm fails to reach us, what security have we that our tranquility will remain undisturbed from some other cause or quarter? Peace or war will not always be left to our option, even if we were to practice complete moderation and forsake ambition. Who could have imagined at the conclusion of the Revolutionary War that France and Britain – wearied and exhausted as they both were – would have looked so soon at each other with so hostile an aspect?  

The Instinct to Fight Is More Powerful than the Instinct for Peace 

Judging from the history of mankind, the fiery and destructive passions of war reign more powerfully in the human breast than the mild and beneficent sentiments of peace.  To model our political systems upon speculations of lasting tranquility is to calculate on the weaker springs of the human character.

The Greatest Expense of Any Government Is Preparing for War

In every government, the chief sources of expense are wars, rebellions, and the enormous debts they cause.  War and rebellion are the two most mortal diseases of society. The expenses necessary to guard the body politic against them dwarf those relative to the mere domestic police of a state, the support of its legislative, executive, and judicial departments (along with their different appendages), and the encouragement of agriculture and manufactures (which comprehend almost all the objects of state expenditure). 

In the kingdom of Great Britain, not above a fifteenth part of its annual income is appropriated to agriculture and manufactures.  The rest is absorbed in the payment of the interest of debts contracted for carrying on its wars and maintaining its fleets and armies.  

* * *

Peace or war will not always be left to our option,  even if we were to practice complete moderation and forsake ambition. Who could have imagined at the conclusion of the Revolutionary War that  France and Britain – wearied and exhausted as they both were – would have looked so soon at each other with so hostile an aspect? 

* * *

Some might say the necessary expenses of a republic cannot be compared to the expenses incurred in a monarch’s prosecution of ambitious enterprises and vainglorious pursuits. But if we put aside the extra domestic expenses an ostentatious monarchy entails, the expenses it devotes to war would be proportional to those incurred in the defense of a republic. 

In Order to Defend against War and Rebellion, the Expenses of the Federal Government Will Exceed Those of State Governments 

Even if the United States endures only a common share of the events which disturb the peace of nations, the objects of Federal expenditures will always far exceed the objects of State and local expenditures. As proof, one need consider only the enormous debts incurred by the States to complete our revolutionary war for independence. Once these debts are discharged and the Federal government assumes the burdens of defense, the only call for revenue of any consequence from State governments will be for the sums appropriated annually to pay its own civil list of appointees to the Federal government. 

The Potential Expenses of the Federal Government Are Unlimited 

We have framed a government for posterity as well as ourselves. For those provisions designed to be permanent, we ought to calculate permanent causes of expense, not temporary ones.  If this principle be just, a provision in favor of State governments for an annual sum of about 200,000 British pounds would be proper.  The exigencies of the Federal government, on the other hand, are susceptible of no limitation, even in imagination.  

In response, some contend State governments ought to command – in perpetuity – an exclusive power to levy taxes to secure revenue for State expenditures beyond the sum of £200,000 needed to pay for their civil lists. But extending the power of the States to the exclusion of the Federal government would unwisely divert the resources of the community away from those most in need of them to secure the public welfare.  Such a limitation also ignores the potentially unlimited needs of the Federal government. 

It Would Be Improper to Divide Sources of Taxation Based on the Comparative Needs of Governments

If the authors of the Constitution had been inclined to divide the sources of taxation between the State and Federal governments in proportion to their comparative needs, all of the available tax sources would have been either been too much or too little for their present needs, and too much for their future needs.  If States were given authority over import duties, they would command two thirds of the resources of the nation to defray from a tenth to a twentieth part of its expenses.  The Federal government would be left with one third of the nation’s resources to defray 9/10ths to 19/20ths of its expenses. 

* * *

The Constitutional Convention decided concurrent jurisdiction was the only admissible substitute for an entire subordination of State authority to Federal authority in the article of taxation. Had there been any separation of the objects of taxation, the great interests of the United States would have been sacrificed of the great power of the individual States.

* * *

Even if the Constitution granted State governments exclusive power of taxing houses and lands, it would not eliminate the shortage of the means supplied to achieve the end envisioned. State governments would possess one third of the resources of the community to supply one tenth of its wants. If some other fund could have been selected and appropriated, it still would have been inadequate to discharge the existing debts of the particular State governments, leaving them dependent on the Federal government. 

The Constitutional Convention decided concurrent jurisdiction was the only admissible substitute for an entire subordination of State authority to Federal authority in the article of taxation. Had there been any separation of the objects of taxation, the great interests of the United States would have been sacrificed of the great power of the individual States. Concurrent jurisdiction was thought preferable to subordination. Concurrent power over taxation reconciles the need for an indefinite constitutional power of taxation in the Federal government with an adequate and independent power in the States to provide for their own necessities. 

Hamilton

Federalist 35:  Import and Manufacturing Taxes; the Likely and Proper Composition of the House of Representatives

          HERE I SHALL DEMONSTRATE why limiting the federal taxing authority to import duties is unwise.  I also respond to the sentiment that calls for equal representation of all classes in the national popular assembly.  

Federal Tax Revenues Must Not Be Limited to Duties on Imports

Restricting the Federal government’s power of taxation to particular objects would naturally cause an undue proportion of the public burdens to fall upon those objects.  Such a restriction also would oppress particular branches of industry and lead to an unequal distribution of taxes among the several States as well as among the citizens of the same State.  

The federal power of taxation is indefinite.  If that power were confined to duties on imports, the Federal government would extend those duties to an injurious excess due to its inability to command other resources. 

Duties Must Be Kept Sufficiently Low to Prevent the Smuggling that Will Undermine Tax Revenue

Some say duties can never be too high because they tend to discourage extravagant consumption, produce a favorable balance of trade, and promote domestic manufactures.  The argument favors an extreme – and like all extremes – it tends towards ruin.  Exorbitant duties on imported articles naturally beget a general spirit of smuggling. Smuggling always undermines the fair trader, and eventually the tax revenue itself.

High Duties Protect the Manufacturing Classes and Oppress Merchants

High duties result in an improper form of community tribute to the manufacturing classes, who benefit the most from the monopoly of markets excessive tariffs foster.  High duties result in artificial price inflation, which oppresses the merchant, who often must pay the duty just to make the sale. While the consumer generally pays the duty when demand equals supply at market, when markets are overstocked, most of the duty falls upon  the merchant, who is sometimes forced to exhaust profits and even break in on capital.  A division of an import duty between buyer and seller happens more often than commonly imagined. Sometimes it is impossible to raise the price of a commodity in exact proportion to each additional imposition laid upon it.  The merchant – especially in a country of small commercial capital – must often keep prices down to expedite a sale.  When the merchant is forced to pay the duty to complete a sale, the duty acts as an additional tax upon the importing State.  

States Importing Little Would Contribute Less to the National Treasury in Proportion to their Abilities 

High duties produce inequalities between States importing much and States importing little, for the citizens of States importing little pay fewer duties, and thereby contribute less to the national treasury in a ratio to their abilities. The higher the duties, the greater the inequality.  

Manufacturing States Also Pay Less than their Share Because They Import Less, so Excise Taxes on Their Manufactures Is Appropriate 

Confining the federal taxing power to duties or imports only would foster inequality between those States with manufacturing resources and those without.  States with manufacturing facilities consume fewer imported articles and thereby contribute less to the public treasury in a ratio to their abilities.  To eliminate this disparity, recourse must be had to excises, the proper objects of which are particular kinds of manufactures.  

New York is more deeply interested in these considerations than her citizens may be aware. New York, an importing state, is not likely speedily become a manufacturing state. She would suffer doubly by limiting to commercial imposts the jurisdiction of the Federal government.  

Necessity often Occasions False Hopes, False Reasoning, and a System of Measures Correspondingly Erroneous  

High duties depress consumption and thus the revenue of the taxing authority.  This serves as a natural brake on any tendency to raise import duties to an injurious extreme.  While this is readily true so as long as other sources of taxation remain open, should those sources be closed – hope – stimulated by necessity, would beget experiments. Fortified by rigorous precautions and additional penalties, these might work at first.  But with time comes leisure enough to contrive expedients to elude these new precautions.  The first success would be apt to inspire false opinions, requiring a long course of subsequent experience to correct.  And the inequalities mentioned above would still ensue even if duties are not raised to injurious excess.  

Import Duties Should Be Administered as a Federal Common Fund 

My final point regarding duties is they should be shared among the States. As noted above, where duties are normal, the ultimate purchaser usually pays, whether or not said buyer is situated in the importing State. Thus it is far more equitable that the duties on imports to go into a common stock, than to redound them to the exclusive benefit of the importing State.  

And now I turn to the important question of the likely composition of the House of Representatives, and whether there ought to be any quotas or restrictions imposed to ensure the body is fairly representative of the People. 

For Good Reasons, the House of Representatives Will Never Include Citizens from Every Class  

We often hear the House of Representatives is insufficiently numerous to receive all the different classes of citizens. Those who would increase its size – or require representatives from every class – believe the interests and feelings of every part of the community should be combined, thereby producing a due sympathy between the representative body and its constituents. 

This argument is seductive initially but ultimately specious. It is well calculated to lay hold of the prejudices of those to whom it is addressed. If one dissects the argument, it vanishes into nothing but fair sounding words.  

To begin with, all that can be reasonably meant by a knowledge of the interests and feelings of the People is an acquaintance with the general genius, habits, and modes of thinking of the citizenry at large, and with the resources of the country. In any other sense the proposition has no meaning at all, or an absurd one.  

Freedom of electoral choice naturally leads to the selection of landholders, merchants, and those of the learned professions to representative assemblies, with too few exceptions to have any influence on the spirit of the government.  

* * *

As for the noble goal of a due sympathy between the represented and the representative, the composition of popular assemblies always tends toward the merchant by the natural choice of those of the lesser arts.

* * * 

The idea that all classes of the People should be represented in the House of Representatives by actual members from each of the classes is altogether visionary. For one thing, it would never take place in practice, unless the Constitution expressly required it.   

Its object also is impracticable, for it is impossible to construct or enforce a plan to require a representative from each of the classes.

Merchants Are Natural Representatives of their Own Class, and of the Manufacturing and Mechanical Arts as Well 

As for the noble goal of a due sympathy between the represented and the representative, the composition of popular assemblies always tends toward the merchant by the natural choice of those of the lesser arts.  

Mechanics and manufacturers will almost always be inclined to give their votes to merchants rather than persons of their own professions or trades. Mechanics and manufacturers furnish the materials of mercantile enterprise and industry. Many are immediately connected with the operations of commerce. They know the merchant is their natural patron and friend, and will more effectually promote their interests than they would themselves. And in a deliberative assembly, the talents of the mechanic and manufacturer are little in demand. The arguments of merchants carry more weight and influence, rendering them more equal in a contest should any spirit unfriendly to their interests infuse itself into the public councils.  Our own experience confirms that both artisans and manufacturers commonly bestow their votes upon merchants and those whom they recommend. We must therefore consider merchants as the natural representatives of all these classes of the community.

* * *

The arguments of merchants carry more weight and influence, rendering them more equal in a contest should any spirit unfriendly to their interests infuse itself into the public councils. Our own experience confirms that both artisans and manufacturers commonly bestow their votes upon merchants and those whom they recommend. We must therefore consider merchants as the natural representatives of all these classes of the community.

* * *

The Landed Interests Will Represent All Landholders 

The landed interests will be perfectly united from the wealthiest landlord to the poorest tenant, particularly in relation to taxes. Any tax laid on land affects the proprietor of millions of acres down to the proprietor of one. Since common interest is the surest bond of sympathy, every landholder desires to keep the taxes on land as low as possible. Even if we suppose the interests the opulent landholder and the middling farmer are distinct, is there any reason to conclude one would stand a better chance than the other of being elected  to the Congress?  If we look at the legislature of New York, moderate proprietors of land prevail in both its assembly and senate. Those inspiring the greatest confidence naturally receive the most votes, whether they be individuals of large fortunes, moderate property, or no property at all.

Those of the Learned Professions Will Be Elected According to their Skills  

All that remain are members of the learned professions, who truly form no distinct interest in society. They will have confidence in and be the choice of each other – and the community – according to their situation and talents. 

Requiring Representatives from Every Class Is Unnecessary,  for the Most Likely to Be Elected Will Best Serve the Nation’s Interests 

The argument in favor of a system or quota to diversify representation of the various classes in Congress assumes in error that merchants, landholders and the learned professions will not understand or attend to the feelings and interests of the community.   

Where is the danger that the interests and feelings of the different classes of citizens will not be understood or attended to by these classes of likely representatives, landholders, and the learned professions? 

* * *

The argument in favor of a system or quota to diversify representation of the various classes in Congress assumes in error that merchants, landholders and the learned professions will not understand or attend to the feelings and interests of the community.  Where is the danger that the interests and feelings of the different classes of citizens will not be understood or attended to by these classes of likely representatives, landholders, and the learned professions?

* * *

Will not the landholder know and feel whatever will promote or insure the interest of landed property?  The landholder is imbued with a self-interest prone to resist every attempt to prejudice or encumber that species of property. The merchant, too, will be disposed to understand and cultivate the interests of the mechanic and manufacturing arts, for their commerce is closely allied. And those representatives drawn from the learned professions will likely prove themselves impartial arbiters of the rivalries among industries, standing ready to promote one or the other as shall appear conducive to the general interests of society.

The individual whose situation leads to extensive inquiry and information is more likely to be a competent judge of the nature, extent, and foundation of the momentary humors and dispositions prevailing in particular parts of the society than one whose observation travels not beyond the circle of neighbors and acquaintances. 

A candidate for the favor of the People depends upon the votes of fellow citizens for election to and continuance in office. Such an individual naturally takes care to become informed of the dispositions and inclinations of the citizens, and allows them their proper degree of influence upon his or her conduct. This dependence of the representative upon the constituent – plus their mutual obligation to obey the laws to which the representative gives assent – are the only true and strong chords of sympathy between the electors and the elected. 

Proper Administration of the Federal Power to Tax Demands that Representatives Be Chosen from the Citizenry at Large 

Finally, no part of the administration of government requires more extensive information and thorough knowledge of the principles of political economy than the business of taxation. The representative who understands that the most productive system of finance is the least burdensome will be the least likely to resort to oppressive expedients or to sacrifice any particular class of citizens to the procurement of revenue. Such individuals are more likely to be drawn from citizenry at large than from a particular class or group.  

* * *

The representative who understands that the most productive system of finance is the least burdensome will be the least likely to resort to oppressive expedients or to sacrifice any particular class of citizens to the procurement of revenue. 

* * *

For a discussion of the related objection based upon the supposedly insufficient number of members in the House or Representatives, I direct the reader to Federalist 55.

Hamilton

Federalist 36: The Power of Taxing within States Is One of the Most Important Powers of the Federal Government 

Representation in Congress will consist almost entirely of proprietors of land, of merchants, and of members of the learned professions, all of whom will truly represent the different interests and views of the various classes of the community, as I explained in Federalist 35.  While variations do exist in local legislatures, they are exceptions to the rule, and not in sufficient number to influence the general complexion or character of the government.

There are strong minds in every walk of life that rise above the disadvantages of situation. They will command the tribute due to their merit, not only from the classes to which they belong, but from the society in general.  The door ought to be equally open to all. To the credit of human nature, I trust we shall see examples of such vigorous plants flourishing in the soil of Federal as well as of State legislation. Occasional instances of this sort, though, do not render less conclusive the reasoning founded upon the general course of things. 

Merchants Will Well Represent Manufacturers and Mechanics

Even if the subject of representations is viewed in different lights, the same aspect appears.  There is no greater affinity or relation of interest between the carpenter and blacksmith, the linen manufacturer or stocking weaver, than there is between the merchant and all of them. It is well known there are great rivalries between different branches of the mechanic or manufacturing arts as there are between any of the departments of labor and industry.  Unless the representative body of Congress were to be far more numerous than would be consistent with any idea of regularity or wisdom in its deliberations, it is impossible that representation of all classes would ever be realized in practice.  Those who suggest or demand otherwise have fitted their argument with too loose a garb to admit even of an accurate inspection of its real shape or tendency.

* * *

There are strong minds in every walk of life that rise above the disadvantages of situation.  They will command the tribute due to their merit, not only from the classes to which they belong, but from the society in general. The door ought to be equally open to all.

* * *

Congress Will Comprehend the Nuances of State Tax Matters 

The word “tax” appears several times in the Constitution, with two of the most prominent occasions in Article I, governing the power of Congress. 

Article I, section 2, clause 3, provides that “direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, . . . .”       

Section 8 of the same article adds:  “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for  the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States . . . .”

Opponents of the Constitution asserted the Federal power of internal taxation cannot be exercised with advantage, from a supposed lack of sufficient knowledge of local circumstances, as well as an interference between the revenue laws of the United States and of the particular States.  

The supposition of a want of proper knowledge in the Federal legislature is entirely destitute of foundation.  If a State legislature demands a knowledge of local details, undoubtedly it acquires the information from county or municipal members. A like knowledge will be obtained in Congress from the representatives of each State.  We ought to presume the individuals sent to Congress will be possessed of the necessary degree of intelligence to be able to communicate that information. As applied to taxation, the knowledge of local circumstances does not require a minute topographical acquaintance with all the mountains, rivers, streams, highways, and bypaths in each State. It more properly requires a general acquaintance with situation and resources of a State, its agriculture, commerce, manufactures, with the nature of its products and consumptions, and the different degrees and kinds of its wealth, property, and industry. 

Committees or Individuals Compose Most Initial Taxation Plans

Nations in general – even under governments of the more popular kind – usually commit the administration of their finances to a single individual or to boards composed of a few individuals, who initially digest and prepare the plans of taxation, which are afterwards passed into laws by the authority of the sovereign or legislature.

* * *

The supposition of a want of proper knowledge in the Federal legislature is entirely destitute of foundation. If a State legislature demands a knowledge of local details, undoubtedly it acquires the information from county or municipal members.  A like knowledge will be obtained in Congress from the representatives of each State. We ought to presume the individuals sent to Congress will be possessed of the necessary degree of intelligence to be able to communicate that information.

* * *

Inquisitive and enlightened statesmen are everywhere deemed the best qualified to make a judicious selection of the objects proper for revenue.  This is a clear indication – as far as the sense of mankind can have weight in the question – of the extent of knowledge of national and local circumstances requisite to the purposes of taxation.

The Power to Impose Federal Taxes within States Is Essential 

Federal taxes imposed within States are both direct and indirect. As for indirect taxes – that is, duties and excises on articles of consumption – I am at a loss to conceive the nature of any perceived difficulties.  The knowledge relating to these items is of a kind suggested by the nature of the article itself, or which can easily be procured from any well-informed individual, especially of the mercantile class.  

The circumstances that distinguish one State’s situation from another are few, simple, and easily comprehended.  The principal thing to attend to would be avoiding those articles which had been previously appropriated as a revenue source by a particular State. These items are determinable by ascertaining the revenue system of each State, it code of laws, and from information of the members from the several States.  Direct taxes seemed to draw the most opposition.  

Taxation of Realty and Structures

The objection based on lack of knowledge of local circumstances initially appears to have more foundation when applied to real property or to houses and lands, but even in this view it does not bear a close examination.  Land taxes are commonly laid in one of two modes.  The first is by actual valuations, either permanent or periodical.  The second is by occasional assessments, at the discretion (or according to the best judgment) of officers whose duty it is to make them.  In either case, the execution of the business must be devolved upon persons in the character of commissioners or assessors, elected by the people or appointed by the government for the purpose.  All that the law can do is to name the persons or to prescribe the manner of their election or appointment, to fix their numbers and qualifications, and to draw the general outlines of their powers and duties.  There is nothing in all this that cannot be performed by Congress as by a State legislature. The attention of either can only reach to general principles.  As just noted, local details must be referred to those who are to execute the plan.

Congress Can Use State Systems to Collect Federal Taxes

A complete answer to all objections based on want of local knowledge is that Congress can lay and collect this species of taxes within each State by using the system of each State within that State. 

Federal Taxes Will Be Collected Proportionally from Each State

The proportion of taxes collected within each State is not left to the discretion of Congress.  It will be determined by the numbers of each State, based on the actual census (or enumeration) of the People. Art. I, § 2, cl. 3.  Guarded circumspection guided the Convention to shut the door to partiality, oppression, or abuse.  In addition to this precaution, there is the provision that ‘all duties, imposts, and excises shall be uniform throughout the United States.”  Art. I, § 8, cl. 1. 

Congress Can Adjust Ineffective Taxation

Those in favor of the Constitution very properly observed in speech and by pen that the system of requisitions from States could be revived if the use of internal taxation of State citizens proved ineffective.  As if admitting the existence of a fallback fortress amounts to a concession of anything, opponent of the Constitution triumphantly asked, “Why not omit the power to tax within States in the first instance, and rely solely upon requisitions?”  First, as these papers frequently note, the former system of Federal requisitions from States as States almost failed during the Revolution.  The power of taxing individual State citizens also will be preferable because it will be more effectual. Furthermore, the existence of such a power in the Constitution will have a strong influence in giving efficacy to requisitions should they be needed. When each State knows the United States may apply itself without their agency, it will be a powerful motive for exertion on their part.

The Interaction of Federal and State Taxation

We have already seen there can be no clashing or repugnancy of authority between the revenue laws of the United States and of its members. In a strictly legal sense, their laws cannot interfere with each other.  It also is far from impossible to avoid an interference even in the policy of their different systems. An effective expedient for this purpose will be the mutual abstention from those objects to which either side may have had recourse to first.  As neither  can control the other, each will have an obvious and sensible interest in this reciprocal forbearance. And where there is an immediate common interest, we may safely count upon its operation. When the particular debts of the States are paid, and their expenses come to be limited within their natural compass, the possibility of interference almost will vanish. A small land tax will answer the purpose of the States, and will be their most simple and most fit resource.

Double Taxation of the Same Revenue Is Unlikely

To excite the apprehensions of the People, many specters were raised out of the power of internal taxation.  Double sets of revenue officers, a duplication of their burdens by double taxation, and the frightful forms of odious and oppressive poll-taxes, have been played off with all the ingenious dexterity of political legerdemain.  I will expose the fallacious phantoms in turn. 

Double Sets of Officers Collecting the Same Revenue Is Unlikely 

There are two cases in which there can be no room for double sets of officers: where the right of imposing the tax is exclusively vested in the United States (which applies to the duties on imports), and where the object has not fallen under any State regulation or provision (which may be applicable to a variety of objects).  In all other cases, the probability is that the United States will either wholly abstain from the objects preoccupied for local purposes, or will make use of the State officers and State regulations for collecting an additional imposition. This practice will save expense of collection, and best avoid any occasion of disgust to the State governments and to the People. It is a practicable expedient for avoiding these inconveniences, and nothing more can be required than to show that the predicted evils do not necessarily result from the Constitution itself.  

State Revenue Officers Can Collect Federal Taxes 

As to any argument derived from a supposed system of Federal influence over the States, it is sufficient to say that it ought not to be presumed. And if such a spirit should infest the councils of the United States, its most certain road to success would be employment of State officers as much as possible, and to attach them to the Federal government by an accumulation of their emoluments. This would result turn the tide of State influence into the channels of the Federal government, instead of making Federal influence flow in an opposite and adverse current.  All suppositions of this kind are invidious, however, and answer no other end than to cast a mist over the truth.

Double Taxation Is Illusory

As to the suggestion of double taxation, the answer is plain. The revenue needs of the United States will be supplied in one way or another. If done by the authority of the Federal government, it will not be done under the authority of State governments.  The quantity of taxes to be paid by the community will be the same in either case. The capital resource of commercial imposts and duties – the most convenient branch of revenue – can be prudently improved to a much greater extent under Federal than State regulation.  This will render it less necessary to recur to more inconvenient methods, like requisitions from States.  A further advantage is its tendency towards a disposition of greater care in the choice and arrangement of taxation. Commercial imposts are a rich tributary to the public treasury, and will diminish the necessity of those impositions which might create dissatisfaction in the poorer and most numerous classes of the society.  Happy it is when the interest the government has in the preservation of its own power coincides with a proper distribution of the public burdens, and tends to guard the least wealthy part of the community from oppression!

Poll Taxes Are an Anachronism, though Lawful

I, without scruple, confess my disapprobation of poll taxes, which are typically collected on adults prior to voting.  As a government revenue stream, they have prevailed from an early period in the States of New England, which have uniformly been most tenacious in defense of their rights. Every State has power to impose taxes of this kind, although in several States poll taxes are unknown in practice.  State governments are not stigmatized as tyrannies because they possess this power.  

I should lament to see them introduced into practice under the Federal government, but the power ought to exist. If they are lawful in the States, with what propriety can a like power in the Federal government be urged as an obstacle to its adoption?  

There are certain emergencies of nations – in which expedients that in the ordinary state of things ought to be forborne – become essential to the public weal.  From the possibility of such emergencies, the government always ought to have the option of using them. At present, there is a real scarcity of objects in this country which may be considered as productive sources of revenue. This circumstance is reason enough not to abridge the discretion of the Federal government in this respect. As I know of nothing exempting this portion of the globe from the common calamities that have befallen other parts of it, a poll tax may become an inestimable resource during certain critical and tempestuous conjunctures. 

I acknowledge my aversion to every project calculated to disarm the Federal government of a single weapon which might be usefully employed for the general defense and security in any possible contingency.

The Judiciary Will Be Examined Separately, in Federalist 79 through Federalist 81 

I have now completed examination of the powers vested in the United States which may be considered as having an immediate relation to the energy of the government, and endeavored to answer the principal objections made to them. I have passed over in silence those minor contentions either too inconsiderable to have been thought worthy of hostilities by the opponents of the Constitution, or of too manifest propriety to admit of controversy.  

The mass of judicial power might have claimed an investigation under this heading, but its organization and extent may be more advantageously considered separately, in Federalist 78 through Federalist 81.

Hamilton

The Brilliance of Constitutional Convention (Federalist 37-40)

Federalist 37: The Considerations Moving the Constitutional Convention 

AS THE ULTIMATE OBJECT OF THESE PAPERS is to determine clearly and fully the merits of the Constitution, the plan cannot be complete without taking a more critical and thorough survey of the work of the Constitutional Convention, in which I examine all its sides, compare all its parts, and calculate its probable effects. So that this remaining task is executed under impressions conducive to a just and fair result, some reflections must be indulged. 

Public Measures Are Rarely Examined with Moderation 

Inseparable from human affairs is the misfortune that public measures are rarely investigated with that spirit of moderation which is essential to a just estimate of their real tendency to advance or obstruct the public good. This spirit is more apt to be diminished than promoted on those occasions which require an unusual exercise of it.

* * *

As evidenced in their own publications, some scanned the Constitution – not only with a predisposition to censure – but with a predetermination to condemn.  Others betrayed the opposite predetermination or bias, which rendered their opinions also of little moment in the question.

* * *

The Constitution Was Not Excepted from Unjustified Criticism

To those who have experienced the tendency to abandon moderation with respect to public measures, it is unsurprising the Constitution excited dispositions unfriendly to a fair discussion and accurate judgment of its merits, both by its opponents and proponents. The Constitution recommended so many important changes and innovations – which could be viewed in many lights and relations – that it touched upon the springs of many passions and interests.  

As evidenced in their own publications, some scanned the Constitution – not only with a predisposition to censure – but with a predetermination to condemn. Others betrayed the opposite predetermination or bias, which rendered their opinions also of little moment in the question.  

In placing these different characters on a balance with respect to the weight of their opinions, I do not insinuate there was no material difference in the purity of their intentions. The predetermined patron of what has been actually done may have taken his bias from the weight of the considerations that our situation was universally admitted to be peculiarly critical, and to require indispensably that something should be done for our relief.  Such a person also may have been motivated by considerations of a sinister nature. The predetermined adversary, however, cannot claim that blind opposition was justified as an innocent mistake.  

These Papers Are Directed to Impartial Readers, not Partisans

The truth is these papers are not addressed to persons falling under either of these characters. My writings solicit the attention only of those having a sincere zeal for the happiness of our country, and a temper favorable to a just estimate of the means of promoting it.

Persons of this character will proceed to an examination of the Constitution without having a predisposition to find or to magnify faults, but with the understanding that a faultless plan was not to be expected. These persons will not assign liability for errors stemming from the fallibility of a convention of individuals, of which the Convention was one. Rather, they will also keep in mind that they themselves are but individuals, and ought not to assume an infallibility in reexamining the fallible opinions of others.

The Convention Was Novel Historically 

Aside from the difficulties just discussed, many allowances ought to be made for the difficulties inherent in the very nature of the undertaking referred to the Convention.

I am immediately struck by the novelty of the undertaking. The then-existing Confederation of States was founded on principles proven to be fallacious. Consequently, it was necessary to rebuild this first foundation, and the superstructure resting upon it.  

Other confederacies had been governed by or experienced the same erroneous principles.  These historical precedents were but beacons – giving warning of the course to be shunned, but without pointing out the course to be pursued.  In such a situation, the most the Convention could do was to avoid the errors suggested by the past experience of other countries, as well as of our own; and to provide a convenient mode of rectifying their own errors, as future experiences unfold them.

* * *

Energy in government is essential to that security against external and internal danger, and to that prompt and salutary execution of the laws which are the very definition  of good government.

* * *

Reconciling Energy versus Stability in Government 

A very important difficulty encountered by the Convention was combining the requisite stability and energy in government, with the inviolable attention due to liberty and to the republican form.  Without substantially accomplishing this part of their undertaking, the representatives would have very imperfectly fulfilled the object of their appointment, or the expectation of the public. That this was not easily accomplished is denied only by those willing to betray ignorance of the subject. 

Energy in government is essential to that security against external and internal danger, and to that prompt and salutary execution of the laws which are the very definition of good government.  

Stability in government is essential to national character and to the advantages annexed to it, as well as to that repose and confidence in the minds of the People, which are among the chief blessings of civil society.

Irregular and mutable legislation is more odious than evil to the People. It may be pronounced with assurance that the People of this country – enlightened as they are with regard to the nature – and interested in the effects of good government (as the great body of them are) – will never be satisfied until a good remedy is applied to the vicissitudes and uncertainties which characterize the State administrations.  

* * *

Stability in government is essential to national character and to the advantages annexed to it, as well as to that repose and confidence in the minds of the People, which are among the chief blessings of civil society.

* * *

Liberty Is Maintained by Comparatively Short Terms 

Mingling the valuable ingredients of stability and regard for human nature in due proportion with the vital principles of republican liberty discloses two complementary views.  A republican government – composed of representatives – demands that all power should be derived from the People. But liberty insists that those entrusted with the power should be kept in independence from the People.  This can be done by limiting the duration of appointments to a relatively short period – and that even during this short period the trust should be placed in a number of hands, not a few.  

Stability requires that the hands in which power is lodged should continue for the same length of time, while energy in government requires a certain duration of power, and the execution of it by a single hand. A frequent change of representatives results from frequent elections, and a frequent change of measures results from a frequent change of representatives.  

The Convention Undertook an Arduous Endeavor

How far the Convention succeeded in this part of their work  will better appear on a more accurate view of it.  From the cursory one here taken, it clearly appears it was an arduous effort. Not less arduous was the task of marking the proper line of partition between the authority of the Federal government and that of the State governments. Every person will be aware of the difficulties in proportion to being accustomed to contemplate and discriminate objects extensive and complicated in their nature.

The Workings of the Human Mind Are Not Easily Classified  

The faculties of the mind itself have not yet been distinguished and defined, with satisfactory precision, by all the efforts of the most acute and metaphysical philosophers.  Sense, perception, judgment, desire, volition, memory, and imagination are found to be separated by such delicate shades and minute gradations that their boundaries have eluded the most subtle investigations, and remain a pregnant source of ingenious disquisition and controversy. The boundaries between the great kingdom of nature, and still more, between the various provinces, and lesser portions, into which they are subdivided, afford another illustration of the same important truth.  The most sagacious and laborious naturalists have never yet succeeded in tracing with certainty the line which separates the district of vegetable life from the neighboring region of unorganized matter, or which marks the termination of vegetable life and the commencement of the animal empire. A still greater obscurity lies in the distinctive characters by which the objects in each of these great departments of nature have been arranged and assorted.

When we pass from the works of nature – in which all the delineations are perfectly accurate and appear to be otherwise only from the imperfection of the eye which surveys them – to the institutions of humans, in which the obscurity arises from the object itself as from the organ by which it is contemplated – we must perceive the necessity of moderating still further our expectations and hopes from the efforts of human sagacity.  

Experience has instructed us that no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces the legislative, executive, and judicial; or even the privileges and powers of the different legislative branches. Questions daily occur in the course of practice, which prove the obscurity which reins in these subjects, and which puzzle the greatest adepts at political science.

The Changing Limits of the Law Present their Own Difficulties 

The experience of ages has been equally unsuccessful in delineating the several objects and limits of different codes of laws and different tribunals of justice, despite the continued and combined labors of the most enlightened legislatures and jurists.  The precise extent of the common law, statutory law, maritime law, ecclesiastical law, the law of corporations, and other local laws and customs, remains still to be clearly and finally established in Great Britain, where accuracy in such subjects has been more industriously pursued than in any other part of the world. The jurisdiction of her general and local courts – whether of law, equity, admiralty, and others – is not less a source of frequent and intricate discussions, which denotes the indeterminate limits by which they are respectively circumscribed. All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning is liquidated and ascertained by a series of particular discussions and adjudications.  

Aside from the obscurity arising from the complexity of objects, and the imperfection of the human faculties, the medium through which the conceptions of men are conveyed to each other adds a fresh embarrassment. The use of words is to express ideas.  Perspicuity thus requires not only that the ideas be distinctly formed, but they be expressed by words distinctly and exclusively appropriate to them.  But no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocal words denoting different ideas.  Hence it must happen that however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered. And this unavoidable inaccuracy is greater or less according to the complexity and novelty of the objects defined.  

When the Almighty Himself condescends to address mankind in their own languages, His meaning – luminous as it must be – is rendered dim and doubtful by the cloudy medium through which it is communicated.

* * *

Some features of the Constitution reflect these compromises, showing the Convention was compelled to sacrifice theoretical propriety to the force of extraneous considerations.

* * *

The Three Main Sources of Ambiguity in Conveying Meaning 

Here, then, are three sources of vague and incorrect definitions: (1) indistinctness of the object, (2) imperfection of the organ of conception, and (3) inadequateness of the vehicle of ideas.  

Any one of these must produce a certain degree of obscurity. The Convention experienced the full effect of them all in delineating the boundary between the Federal and State jurisdictions. 

The Inherent Conflict Between Large and Small States 

To the foregoing we may add the pretensions of the larger and smaller States.  We cannot err in supposing the larger States contended for a participation in the government fully proportioned to their superior wealth and importance, while smaller States were not less tenacious of the equality they enjoyed.  Neither side would entirely yield to the other, and consequently the struggle was terminated only by compromise.  

And once the States agreed a ratio of representation, that very compromise produced a fresh struggle between the same parties concerning the organization of the Federal government and the distribution of its powers among the branches, with each State seeking to increase its importance and influence. 

Some features of the Constitution reflect these compromises, showing the Convention was compelled to sacrifice theoretical propriety to the force of extraneous considerations.

Nor were disputes limited to the large and the small. Combinations of States marshaled themselves in opposition to each other on various points. Other combinations – resulting from a difference of local position and policy – created additional difficulties.  Just as every State may be divided into different districts, and its citizens into different classes, which give birth to contending interests and local jealousies, so the different parts of the United States are distinguished from each other by a variety of circumstances, which produce a like effect on a larger scale.  And although this variety of interests may have a salutary influence on the administration of a government once formed, they were disruptive in the task of forming it.

* * *

Here, then, are three sources of vague and incorrect definitions: (1) indistinctness of the object, (2) imperfection of the organ of conception, and (3) inadequateness of the vehicle of ideas.

* * *

Providence Rescued the Convention More than Once 

It would have been wonderful if, under the pressure of all of these difficulties, the Convention had been forced into some deviations from that artificial structure and regular symmetry which an abstract view of the subject might lead an ingenious theorist to bestow on a Constitution planned in his closet or in his imagination.  

* * *

The real wonder is that so many difficulties were surmounted, and surmounted with a unanimity almost as unprecedented as it was unexpected.  It is impossible for any individual of candor to reflect on this circumstance without astonishment. No person of pious reflection failed to perceive in it a finger of that Almighty Hand was so frequently and signally extended to our relief in the critical stages of the Revolution.

* * *

In Federalist 20, I took notice of the repeated trials unsuccessfully made in the United Netherlands for reforming the baneful and notorious vices of their constitution. Indeed, the histories of almost all the great councils and consultations held among mankind for reconciling their discordant opinions, assuaging their mutual jealousies, and adjusting their respective interests, is an account of factions, contentions, and disappointments.  They may be classed among the most dark and degraded pictures which display the infirmities and depravities of the human character.  If, in a few scattered instances, a brighter aspect is presented, they serve only as exceptions to admonish us of the general truth; and by their luster to darken the gloom of the adverse prospect to which they are contrasted. 

In revolving the causes from which these exceptions result, and applying them to the particular instances before us, we are necessarily led to two important conclusions.  The first is the Convention enjoyed a singular exemption from the pestilential influence of party animosities, a disease most incident to deliberative bodies, and most apt to contaminate their proceedings.  The second conclusion is that all the deputations composing the Convention were satisfactorily accommodated by the final act, or were induced to accede to it by a deep conviction of the necessity of sacrificing private opinions and partial interests to the public good, and by a despair of seeing this necessity diminished by delays or by new experiments.

The real wonder is that so many difficulties were surmounted, and surmounted with a unanimity almost as unprecedented as it was unexpected. It is impossible for any individual of candor to reflect on this circumstance without astonishment.  No person of pious reflection failed to perceive in it a Finger of that Almighty Hand was so frequently and signally extended to our relief in the critical stages of the Revolution.

Madison

Federalist 38:  The States Wisely Deputized Their Wisest Citizens to Form the Constitution

ANCIENT HISTORY REPORTS that in every case where a government was formed with deliberation and consent, the task was undertaken by some individual citizen of preeminent wisdom and approved integrity, rather than an assembly of individuals. 

Minos founded the government of Crete, as Zaleucus did for the Locrians. Theseus first – and after him Draco and Solon – instituted the government of Athens.  Lycurgus was the lawgiver of Sparta.  The foundation of the original government of Rome was laid by Romulus, and the work completed by two of his elective successors, Numa and Tullius Hostilius. Upon the death of Julius Caesar, Brutus had the senate and people ratify a civil administration allegedly designed by Tullius Hostilius.  

The same is true for confederate governments. Amphictyon was the author of that which bore his name, and the Achaean league received its first birth from Achaeus, and its second from Aratus.

Throughout History, the Individuals Asked to Draft Plans for a Government often Represented the People

It is less certain whether all of these reputed lawgivers were clothed with the legitimate authority of the people, but in some cases there is no doubt. Draco was entrusted by the people of Athens with indefinite powers to reform its government and laws.  The historian Plutarch reports the citizens of that city gave Solon the sole and absolute power to remodel their constitution. The advocates for a regular reform in Sparta all turned toward the singular efforts of the celebrated patriot and sage Lycurgus, instead of seeking to bring about a revolution by the intervention of a deliberative body of citizens.

How could a people as jealous of their liberty as the Greeks abandon the rules of caution as to place their destiny in the hands of a single citizen? How could the Athenians – a people who required at least ten generals to command its army – consider one illustrious citizen as a more eligible depositary of the fortunes of themselves and their posterity, rather than a select body of citizens, from whose common deliberations more wisdom, as well as more safety, might have been expected?  

These questions cannot be fully answered without supposing that the fears of discord and disunion among a number of counselors exceeded the apprehension of treachery or incapacity in a single individual.  

* * *

These lessons teach us, on one hand, to admire the improvement made by America on the ancient mode of preparing and establishing regular plans of government. On the other hand, these lessons admonish us of the hazards and difficulties incident to such experiments, and of the great imprudence of unnecessarily multiplying them.

* * *

History also informs us of the difficulties encountered by these celebrated reformers, and the expedients employed in order to carry their reforms into effect. Solon, who indulged a more temporizing policy, confessed that he had not given to his countrymen the government best suited to their happiness, but most tolerable to their prejudices. And Lycurgus, more true to his object, was under the necessity of mixing a portion of violence with the authority of superstition. He secured a final success by a voluntary renunciation, first of his country, and then of his life.  

These lessons teach us, on one hand, to admire the improvement made by America on the ancient mode of preparing and establishing regular plans of government.  On the other hand, these lessons admonish us of the hazards and difficulties incident to such experiments, and of the great imprudence of unnecessarily multiplying them.

Almost All of the Proposed Amendments to the Former Articles of Confederation Overlooked Its Foundational Problem  

It is reasonable to assume any arguable error in the new Constitution resulted from a defect of antecedent experience on this complicated and difficult subject, rather than a want of accuracy or care in the investigation of it, and that we must we await an actual trial before any error appears. 

This assumption is rendered probable by the particular case of the Articles of Confederation, as well as by many considerations of a general nature. Among the numerous objections and amendments suggested by the several States when the Articles were submitted for their ratification, not one alluded to the great and radical error that became apparent on actual trial. 

As immaterial as the objections were, there is abundant reason to suppose they would have been adhered to with a very dangerous inflexibility in some States, had not a zeal for their opinions and supposed interests been stifled by the more powerful sentiment of self-preservation. Maryland persisted for several years in refusing her concurrence, although for the whole period the enemy remained in the very bowels of our country. In the end, Maryland’s pliancy was effected by the fear of being chargeable with protracting the public calamities, and endangering the Revolution. 

Under the Articles of Confederation, the United States Faced a Grave Disorder

Imagine the situation where a patient finds his disorder is daily growing worse and that an efficacious remedy can no longer be delayed without extreme danger. After coolly reviewing his situation with different physicians, he selects and calls in those he judges most capable of administering relief, and best entitled to his confidence.  The physicians attend, the patient is carefully examined, a consultation is held, and they unanimously agree that the symptoms are critical, but that a proper and timely remedy may improve his constitution.  

But the prescription is no sooner made known, than a number of persons (who do not deny the danger of the disorder) interpose and assure the patient that the prescription will be poison to his constitution, and forbid him to make use of it.  

Might not the patient reasonably demand that the authors of this advice at least agree among themselves on some other remedy? If they differed from one another as much as from his first physicians, he would act prudently in rejecting their advice. 

The United States was the patient in such a situation before the Constitution was adopted. She was sensible of her malady, and obtained a regular and unanimous advice from persons of her own deliberate choice.  She was warned by others against following this advice under pain of the most fatal consequences. 

The Objections to the New Constitution Were Numerous and Contradictory

The objectors did not deny the reality of her danger or the necessity of some speedy and powerful remedy, but they could not agree on a substitute remedy. One told us the Constitution ought to be rejected because it is not a confederation of the States, but a government over individuals. Another admitted that there ought to be a government over individuals to a certain extent, but by no means to the extent proposed.  A third did not object to government over individuals, or to the extent proposed, but that a bill of rights was needed. A fourth concurred in the absolute necessity of a bill of rights, but argued it ought not be declaratory of the personal rights of individuals, but of the rights reserved to the States in their political capacity. A fifth argued a bill of rights of any sort would be superfluous and misplaced, but that a fatal flaw was allowing States to regulate the times and places of election.  

An objector in a large State exclaimed loudly that equal representation in the Senate was unreasonable, while an objector in a small State complained equally loudly against a dangerous inequality in the House of Representatives. From one quarter, we were alarmed with the amazing expense of the number of persons to administer the new government. From another quarter – and sometimes from the same quarter – we heard cries that Congress would be but a shadow of a proper representation, and that the government would be far less objectionable if the number and the expense were doubled.  

A patriot from a State that does not import or export discerned insuperable objections against the power of direct taxation. A patriotic adversary in a State of great exports and imports was equally dissatisfied that the whole burden of taxes could be thrown on consumption.  

* * *

As each delegate came forward with particular explanations, scarcely any two exactly agreed on the same subject.

* * *

One politician discovered in the Constitution a direct and irresistible tendency to monarchy, with a second convinced it surely will end in aristocracy, and a third was puzzled to say which of these shapes it will ultimately assume, but that clearly it must be one or other of them, while a fourth with no less confidence affirmed that the Constitution is so far from having a bias towards either of these dangers that it will be insufficient to keep it upright and firm against its opposite propensities.  Another class of adversaries asserted that the intermixing of the legislative, executive, and judicial departments contradicted all ideas of regular government and the requisite precautions in favor of liberty.

As each delegate came forward with particular explanations, scarcely any two exactly agreed on the same subject. In the eyes of one, the junction of the Senate with the President in appointing offices was erroneous, and should be vested in the executive alone. To another, the exclusion of the House of Representatives was equally obnoxious, as its numbers would be a due security against corruption and partiality in the exercise of such a power.  With another, the admission of the President into any share of the appointment power would be a dangerous engine in the hands of an executive magistrate, and an unpardonable violation of the maxims of republican jealousy. According to some, no part of the arrangement was more improper than the trial of impeachments by the Senate, for this power clearly belonged to the judicial department. Others purported to “fully concur,” but disagreed that a reference of impeachments to the judiciary would cure the error, due to the extensive powers already lodged in that department.  

Even among the zealous patrons of a council of state, the most irreconcilable variances were discovered concerning the mode in which it ought to be constituted.  One person demanded that the council should consist of a small number to be appointed by the most numerous branch of Congress, while another would prefer a larger number, with a fundamental condition that the appointment should be made by the President alone. 

Would a New Convention Draft a Better Constitution? 

Let us suppose the most zealous (and impliedly the most sagacious) adversaries of the Constitution think the delegates to Constitutional Convention were unequal to the task assigned them, and that a wiser and better plan might and ought to be substituted. Let us further suppose the States concurred in their unfavorable opinion of the Constitutional Convention, and proceeded to form a second convention, with full powers, and for the express purpose of revising and remolding the work of the first.  Were the experiment to be seriously made – in light of the discord and ferment of the deliberations described above – would the new delegates depart so widely from the old?  

I submit the Constitution as actually drafted by the Convention stands as fair a chance for immortality as the laws Lycurgus gave to Sparta before his departure.  

The Adversaries of the Constitution Have Overlooked What Preceded It 

It causes both wonder and regret that those opposed to the Constitution never call to mind the defects of that which it replaced. The Constitution need not be perfect. It is sufficient that the Articles of Confederation were more imperfect.  

No person refuses to trade brass for silver or gold just because the latter has some alloy in it.  No person would refuse to quit a shattered and tottering habitation for a firm and commodious building, on the ground that the stronger structure had no porch, or because some of the rooms might be a little larger or smaller, or ceilings a little higher or lower than the person would have planned them. Putting these illustrations aside, it is clear the main objections urged against the Constitution lie with tenfold weight against the Articles of Confederation.  

* * *

I submit the Constitution as actually drafted by the Convention stands as fair a chance for immortality as the laws Lycurgus gave to Sparta before his departure. 

* * * 

Is an indefinite power to raise money dangerous in the hands of a Federal government? Under the Articles, Congress could make requisitions of any amount it pleased, and the States were bound to furnish them. Congress also could emit bills of credit and borrow both at home and abroad, as long as a shilling would be lent.  

Is an indefinite power to raise troops dangerous?  The Confederation gave to Congress that power also, which made use of it.  

Is it improper and unsafe to intermix the different powers of government in the same body of individuals? Congress under the Confederation was the sole depositary of all Federal powers.  

Is it particularly dangerous to give the keys of the treasury, and the command of the army, into the same hands?   The Confederation placed them both in the hands of Congress.  

Is a bill of rights essential to liberty?  The Articles of Confederation had no bill of rights.  

Is it a valid objection against the new Constitution, that it empowers the Senate, with the concurrence of the executive, to make treaties which are to be the laws of the land?  Under the Articles, Congress could make treaties which they declared to be the supreme law of the land, and which most of the States recognized.

Is the importation of slaves by the Constitution limited to twenty years? By the old it was permitted forever.

* * *

Is the importation of slaves by the Constitution limited to twenty years?  By the old it was permitted forever.

* * *

I am told that however dangerous in theory the mixture of powers was under the Articles of Confederation, it was rendered harmless by the dependence of Congress on the States for the means of carrying them into practice.  

I respond in the first place that the Articles were chargeable with the still greater folly of declaring certain powers in Congress to be absolutely necessary, while at the same time rendering them absolutely nugatory. In the next place, if no better government had been substituted, effective powers must either have been granted to (or assumed by) the Congress under the Articles.  

But this is not all. Out of the lifeless mass of the former Congress had already grown a power tending toward all the dangers that could arise from a defective national government.   

It is now no longer a point of speculation or hope that our Western territory is a mine of vast wealth to the United States.  Although it is not of such a nature as to extricate us from our present distresses, or to yield any regular supplies for the public expenses for some time to come, under proper management it will effect a gradual discharge of the domestic debt and furnish liberal tributes to the Federal treasury.  A very large proportion of this fund has been already surrendered by individual States, and it reasonably may be expected that the remaining States will not persist in withholding similar proofs of their equity and generosity.  Therefore, we may calculate a rich and fertile country of an area equal to the inhabited extent of the United States will soon become a national stock. From before adoption of the Constitution, Congress had assumed the administration of this stock and begun to render it productive. Congress also proceeded to form new States, to erect temporary governments, appoint officers for them, and prescribe the conditions on which such States shall be admitted into the United States.  

All this was done without the least color of constitutional authority. Yet no blame has been whispered, nor alarm sounded.  A great and independent fund of revenue was passing into the hands of a single body of men, who could raise troops to an indefinite number, and appropriate money to their support for an indefinite period of time.

And yet there were men who were not only silent spectators of this prospect, but who were advocates for the system which caused it; while at the same time urging objections against the Constitution as proposed. They would have acted with more consistency in advocating for the proposed Constitution as a necessary guard against the future powers and resources of the former Congress, than to save it from the dangers threatened by the impotency of that Assembly.

I mean not to throw censure on the measures which have been pursued by the former Congress  by any thing here said. I am sensible they could not have done otherwise.  The public interest and the necessity of the case imposed upon them the task of overleaping their constitutional limits. But are not these facts an alarming proof of the dangers resulting when a government does not possess regular powers commensurate to its objects?  A dissolution or usurpation was the dreadful dilemma to which it was continually exposed.

Madison

Federalist 39:  The Government of the United States Has Both Federal and National Characteristics, and Is Republican 

Characteristics of Republican Governments 

WHAT ARE THE DISTINCTIVE CHARACTERISTICS of republican government?  No satisfactory answer can be found in the application of the term by political writers to the constitutions of foreign governments. Holland is almost universally denominated a republic, yet no particle of its supreme authority is derived from its People. The same title is bestowed on Venice, but the absolute power over the great body of the people is exercised – in the most absolute manner – by a small body of hereditary nobles.  Poland has been dignified with the same appellation, though it is a mixture of aristocracy and monarchy in their worst forms. With equal impropriety the government of England is frequently listed as a republic, though it has but one republican branch, combined with a hereditary aristocracy and monarchy.   These examples – as dissimilar to each other as to a genuine republic – show the extremely inaccurate use of the term in political disquisitions.  A far better definition of a republic is found by resorting to the different principles on which different forms of government are established.

The Best Definition of a Republic

A republic is a government deriving all its powers directly or indirectly from the great body of the People, and administered by persons holding their offices at the pleasure or the People, for either a limited period or during good behavior.  

To qualify as a republic, it is essential the government must be derived from the great body of the society, and not from a limited proportion or a favored class of it.  Were it otherwise, a handful of tyrannical nobles – exercising their oppressions by a delegation of their powers – might claim for their government the honorable title of republic.  

The People Must Be the Ultimate Source of Power 

Whether directly or indirectly, the People must appoint the persons who are to administer the government, and whose tenures must be limited to fixed periods or during good behavior.  Were it otherwise, every popular government organized on republican principles would eventually be degraded.

* * *

A republic is a government deriving all its powers directly or indirectly from the great body of the People, and administered by persons holding their offices at the pleasure or the People, for either a limited period or during good behavior.  

* * *

The constitutions of every one of the States require at least some of the officers of government be appointed by the People alone, albeit indirectly. In most of the States, the chief executive is so appointed.  At least one state constitution extends this mode of appointment to a coordinate branch of the legislature.  According to all the constitutions, the tenure of the highest offices is limited to a definite period. Appointments in the legislative and executive departments in many are limited to a period of years.  And in most, the members of the judiciary are to retain their offices by the firm tenure of good behavior, a practice condoned by the most respectable and well-received opinions on the subject. 

The Constitution Meets Republican Standards 

On examining the Constitution, we at once perceive it conforms to the standards here stated. The House of Representatives is elected directly by the great body of the People, as is true in at least one branch of all the State legislatures. The Senate derives its appointment indirectly from the People. The President also is indirectly derived from the choice of the People, as is true with the executive magistrates in most States.  Even the judges of the United States – along with all the other officers of the United States – will be the choice – though remote – of the People themselves.  

* * * 

To qualify as a republic, the government must be derived from the great body of the society, and not from a limited proportion or a favored class of it.  Were it otherwise, a handful of tyrannical nobles – exercising their oppressions by a delegation of their powers – might claim for their government the honorable title of republic. 

* * * 

All Appointments Are for Limited Terms

The duration of their appointments is equally conformable to the republican standard as well as the model of State constitutions. The House of Representatives is periodically elective, as are the popular assemblies in all States.  The terms of representatives are limited to two years, as in South Carolina.  

Senators are elected to six-year terms, only one more than in the senate of Maryland, and two more than in the senates of New York and Virginia.  

The President is to continue in office for the period of four years. In New York and Delaware, the chief executive is elected for three years, in South Carolina two, and in the other States annually. 

* * *

Whether directly or indirectly, the People must appoint the persons who are to administer the government, and whose tenures must be limited to fixed periods or during good behavior.  Were it otherwise, every popular government organized on republican principles would eventually be degraded.

* * *

Impeachment 

Several of the States have no constitutional provision for impeachment of the chief executive, and in Delaware and Virginia the chief executive cannot be impeached until out of office. The President of the United States is impeachable at any time during his continuance in office, thereby more strongly advancing the republican principle that the People control their government. 

Judges

Judges of the United States are to hold their places during good behavior, as unquestionably must be the case. The tenure of the ministerial offices in general will be a subject of legal regulations that conform to the reason of the case and the example of the State constitutions.

The Prohibition of Titles of Nobility Is a Republican Principle

If any further proof were required our republican form of government, the most decisive are the absolute prohibition of titles of nobility by both the Federal and State governments, and the Constitution’s express guaranty that every State enjoy a republican form of government.  

The Government the Constitution Creates Is Both Federal and National 

Adversaries of the Constitution say its adherence to the republican form of government is inadequate because it fails to preserve with equal care the federal form, which regards the United States as a confederacy of the sovereign States. They argue it frames a national government, which regards the United States as an impermissible consolidation of the sovereign States. And they ask:  By what authority was this bold and radical innovation undertaken?  

The objection requires a precise examination to form a just estimate of its force:  first, to ascertain the real character of the government in question; second, to inquire how far the Constitutional Convention was authorized to propose such a government, and third, how far the duty they owed to their country could supply any defect of regular authority.   The instant paper conducts the first inquiry.  Federalist 40 conducts the other two inquiries. 

In order to ascertain the real character of the government United States government, I will consider its relationship to the foundation on which it is established, the sources from which its ordinary powers are drawn, the operation and extent of those powers, and the authority by which future changes in that government are to be introduced.

As to the relationship of the government to its foundation, on the one hand it is founded on the assent and ratification of the People of America, given by their deputies elected for the special purpose. On the other hand, the People’s assent and ratification is given not as individuals composing one entire nation, but as individuals composing the distinct and independent States to which they belong. The Constitution Was Established as a Federal Act 

The ultimate assent and ratification of the Constitution is by the several States, whose authority is in turn derived from the People themselves.  Therefore, the act of establishing the Constitution is a federal act, not a national one.  That ratification is a federal rather than national act is obvious upon viewing the requirement that ratification requires the unanimous assent of the several States that are parties to it. Ratification cannot result from either the decision of a majority of the People of the union or a majority of the States.  

If in this transaction the People themselves were regarded as forming one nation, the will of the majority of the whole People of the United States would bind the minority, just as the majority in each State would bind the minority, with that national will being determined by the majority of individual votes or by the majority of States.  But both of these approaches were rejected.  In ratifying the Constitution, each State acts as a sovereign body – independent of all the others – and is bound only by its own voluntary act.  Thus the Constitution is a federal one, not a national one.

The House of Representatives Is a National Body

The sources of the ordinary powers of the Constitution are both national and federal.  The House of Representatives will derive its powers from the People of America. The People will be represented in the same proportion –  and on the same principle – as they are in the legislature of each particular State. The House of Representatives will therefore be a national body rather than a federal one.  

The Senate Is a Federal Body

The Senate, on the other hand, will derive its powers from the States as political and coequal societies.  Each State will be represented on the principle of equality in the Senate.  The Senate will therefore be a federal body rather than a national one. 

Selection of a President Is Both Federal and National 

The executive power embodied in the President will be derived from a compound of sources.  The immediate election of the President is to be made by the States in their political characters.  The votes allotted to each State will be the sum of the equal number of senators and unequal number of representatives to which each is entitled in the Congress.  This compound ratio considers each State partly as distinct and coequal societies, and partly as unequal members of the same society.  The eventual election of the President is in turn to be made by the national House of Representatives, but in this particular act they are to be thrown into the form of individual delegations, from so many distinct and coequal bodies politic.  The selection of the President is therefore of a mixed character, presenting at least as many federal as national features.

Federal and National Attributes in the Operation and Extent of the Federal Government 

With respect to the operation of the government, it is federal to the extent its powers operate on the States in their capacities as political bodies, yet it is national to the extent its powers operate on the citizens of the United States in their individual capacities. In several cases – particularly the trial of controversies to which States may be parties – it may be viewed as federal, since such actions involve States  in their collective and political capacities only. But on the whole, the operation of the government in its ordinary and most essential proceedings is upon the People in their individual capacities. Therefore, as to the operation of the government, the Constitution has almost exclusively a national character.   

But this national aspect is reversed when we contemplate the extent of the government’s powers.  The idea of a national government involves not only an authority over individual citizens, but an indefinite supremacy over all persons and things so far as they are objects of lawful government. Among a People consolidated into one nation, this supremacy is completely vested in the national legislature, in our case the Congress. 

* * *

In this relation, the United States Government cannot be deemed a national one. Its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. The only real exception to this residuary sovereignty of the States involves controversies relating to the boundary between two States. 

* * *

Federal Authority Is Limited to Enumerated Powers

Among communities united for particular purposes  – such as States and local (county and municipal) governments – governmental power is vested partly in the State legislatures and partly in the local legislatures.  Where certain powers are vested in lawful State legislatures, all local authorities are subordinate to the supremacy of the State legislatures, and may be controlled, directed, or abolished by those State legislatures at their pleasure. Conversely, where the local municipal authorities retain distinct and independent portions of the supremacy, they are not subject to State supremacy within those spheres.  In this relation, the United States Government cannot be deemed a national one.  Its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.  

The only real exception to this residuary sovereignty of the States involves controversies relating to the boundary between two States. In those disputes the tribunal ultimately deciding the question – the Supreme Court of the United States – derives its authority from the general government of the United States established pursuant to the Constitution.  But this does not transform the United States government into a national one. The decision in such disputes is to be impartially made according to the rules of the Constitution, with all the usual and effectual precautions taken to secure this impartiality. Clearly some such tribunal is essential to prevent an appeal to the sword and a dissolution of the Constitution, and no one disputes the decision can be safely made under the national authority alone. 

* * *

But amendment of the Constitution is founded on neither of these principles.  An amendment requires more than a majority, and it determines that majority by the votes of the States, rather than by the votes of individual citizens.  In these respects it departs from the national and advances towards the federal character.

* * *

Amendments Will Be Neither Wholly Federal nor National 

Finally, if we examine the how the Constitution may be amended, we find it neither wholly national nor wholly federal.  

Were it wholly national, the supreme and ultimate authority would reside in the majority of the People of the United States, and this authority would be competent at all times to alter or abolish its established government, as can be accomplished by a majority of every national society.  

Were it wholly federal, the concurrence of all of the States would be essential to every alteration that would be binding on all.  

But amendment of the Constitution is founded on neither of these principles. An amendment requires more than a majority, and it determines that majority by the votes of the States, rather than by the votes of individual citizens.  In these respects it departs from the national and advances towards the federal character.  Yet an amendment does not require a unanimous consent of all of the States to be binding upon all.  In this respect it loses again the federal and partakes of the national character.

Therefore, the Constitution is neither a national nor a federal Constitution, but a composition of both. In its foundation it is federal, not national. In the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national. In the operation of these powers, it is national, not federal. In the extent of those powers, it is again federal, not national.  And in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national.

Madison

Federalist 40:  The Convention Was Authorized to Propose a New Constitution

THE SECOND POINT to be examined is whether the Convention was authorized to frame and propose the Constitution. The powers of the Convention are best determined by an inspection of the commissions given to the members by their respective constituents.  All of the commissions made reference either to the recommendations from the meeting of State delegates at Annapolis in September 1786, or from the Congress at Philadelphia in February 1787.  Thus it is sufficient to refer to these particular acts. 

The Annapolis Resolution (September 1786)

The act from Annapolis recommended the “appointment of commissioners to take into consideration the situation of the United States; to devise such further provisions as shall appear to them necessary to render the Constitution of the federal government adequate to the exigencies of the Union; and to report such an Act for that purpose, to the United States in Congress assembled, as when agreed to, by them, and afterwards confirmed by the legislatures of every State, will effectually provide for the same.”  (In the preceding and following excerpts I have added the emphasis for the benefit of the reader.)   

The Philadelphia Congressional Resolution (February 1787)

The recommendatory act of Congress stated in part: “Whereas there is provision in the Articles of Confederation & perpetual Union, for making alterations therein by the assent of a Congress of the United States, and of the legislatures of the several States; and whereas experience hath evinced, that there are defects in the present Confederation, as a mean to remedy which, several of the Statezs, and particularly the State of New York, by express instructions to their delegates in Congress, have suggested a convention for the purposes expressed in the following resolution and such convention appearing to be the most probable mean of establishing in these States a firm national government:  

“Resolved that in the opinion of Congress it is expedient, that on the second Monday of May next a convention of delegates, who shall have been appointed by the several States, be held at Philadelphia for the sole and express purpose of revising the Articles of Confederation, and reporting to Congress and the several legislatures such alterations and provisions therein as shall when agreed to in Congress and confirmed by the States, render the federal Constitution adequate to the exigencies of government and the preservation of the Union.” 

The Principal Directives from the Annapolis and Philadelphia Resolutions

From these two acts, it appears:

1st.  The object of the Constitutional Convention was to establish, in these States, a firm national government; 

2d.  This government was to be such as would be adequate to the exigencies of government and the preservation of the Union; 

3d.  These purposes were to be effected by alterations of provisions in the Articles of Confederation, as it is expressed in the act of Congress, or by such further provisions as should appear necessary, as it stands in the recommendatory act from Annapolis; and 

4th.  The alterations and provisions were to be reported to Congress, and to the States, in order to be agreed to by the Congress and confirmed by the States. 

From a comparison and fair construction of these several modes of expression, is to be deduced the authority under which the Convention acted. It was to frame a national government, adequate to the exigencies of government, and of the Union; and to reduce the articles of Confederation into such form as to accomplish these purposes.

Our Inquiry Is Aided by Common Sense Legal Maxims

There are several applicable rules of construction dictated by plain reason and legal axioms.  One is that every part of an expression ought, if possible, to be allowed some meaning, and be made to conspire to some common end. Another is that – where several parts cannot be made to coincide – the less important should give way to the more important part. In other words, the means should be sacrificed to the end, rather than the end to the means. 

* * *

The delegates were deeply and unanimously impressed with the crisis. With almost one voice, the country had made a singular and solemn experiment to correct the errors of the system.  The delegates were no less deeply and unanimously convinced that the Constitution they proposed was absolutely necessary to effect the purposes of their appointment.  

* * *

The Convention’s View of Its Charge

The Convention formed the judgment that the expressions defining its authority appeared irreconcilably at variance with each other, since a national and adequate government could not possibly be effected by altering or adding provisions to the Articles of Confederation.

In these circumstances, which part of its directive ought the Convention have embraced, and which rejected?  Which was the more important part, and which was the less important?  Which part was the end, and which part the means?

Some contended alterations of and additions to the Articles of Confederation could have molded an adequate national government, and that the Articles themselves were originally aimed at the end of national happiness.  

Can the adversaries of the Constitution answer whether it was more conducive to the happiness of the People of America to preserve the Articles of Confederation and thereby omit an adequate government, or to disregard the Articles and provide for an adequate government? Was preserving the Articles the end, and a reform of the government the means, or was the establishment of a government adequate to the national happiness the true end, for which the Articles – as an insufficient means – ought to have been sacrificed? 

The title of the document upon which the delegates agreed – the “Constitution for the United States of America” – does not, by itself, demonstrate the exercise of a power that was not granted. The Articles of Confederation expressly authorized alterations, as well as new provisions. Here then existed a power to change the title, to insert new articles, and to alter old ones. 

Were those powers infringed, so long as a part of the old articles remained? Those who allege infringement at least ought to mark the boundary between authorized and usurped innovations, between the degree of change which lies within the compass of alterations and further provisions, and that which amounts to a transmutation of the government. 

Will it be said that any alteration ought not to have touched the substance of the Articles of Confederation?  If so, the States never would have appointed a Convention with such solemnity – nor described its objects with so much latitude – if some substantial reform had not been contemplated. 

Will it be said that the fundamental principles of the Confederation were not within the purview of the Convention, and ought not to have been varied? I ask:  What are these principles? 

Did the fundamental principles of the Confederation require the States should be regarded as distinct and independent sovereigns? They are so regarded by the Constitution. 

Did principles require that members of the government derive their appointment from the State legislatures, and not from the People of the States?  One branch of the new government – the Senate – is to be appointed by these legislatures. Even under the Confederation, all of the delegates to Congress could have been appointed immediately by the People, and actually were so appointed in Connecticut and Rhode Island. 

Did the fundamental principles of the Confederation require the powers of the Federal government act on the States, but not immediately on individuals? In some instances, the powers of the Federal government under the Constitution will act on the States in their collective characters.  In other instances – even under the Articles of Confederation – the powers of the government acted immediately on the persons and interests of individual citizens: in cases of capture; of piracy; of the post office; of coins, weights, and measures; of trade with the native tribes; of claims under grants of land by different States; and, above all, in the case of trials by courts-marshal in the army and navy, by which death could be inflicted without the intervention of a jury, or even of a civil magistrate. 

Did fundamental principles require that no tax should be levied without the intermediate agency of the States? The Confederation itself authorized a direct tax, to a certain extent, on the post office. The power of coinage has been so construed by Congress as to levy a tribute immediately from that source.  

Putting aside these instances, it was an acknowledged object of the Convention – and universal expectation of the People – that the regulation of trade should be submitted to the general government in such a form as would render it an immediate source of general revenue.

The Congress under the Articles did not consider such a measure as inconsistent with the fundamental principles of the Confederation. Every State but one had recognized the principle of the innovation.  

Finally, did the fundamental principles of the Confederation require that the powers of the general government have a fixed limit, beyond which the States should be left in possession of their sovereignty and independence? We have seen that in the new government, as in the old, the general powers are limited; and that the States, in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdiction. 

The truth is, that the great principles of the Constitution proposed by the Convention may be considered less as absolutely new, than as the expansion of principles which are found in the Articles of Confederation. 

The misfortune under the Articles was that its principles were so feeble and confined as to justify all the charges of inefficiency urged against them. It was the degree of necessary enlargement which has given the new system the aspect of an entire transformation of the old. 

The Constitution Is to Be Approved by the People Directly, rather than by the States 

I admit the Convention departed from the tenor of its commission in several particulars. Instead of reporting a plan requiring the confirmation of the legislatures of all the States, it reported a plan which was to be confirmed by the People, and could be carried into effect through ratification by only nine States. An objection on these grounds would have been the most plausible, but was the least urged in the publications which swarmed against the Convention. This forbearance must have proceeded from an irresistible conviction of the absurdity of subjecting the fate of twelve States to the perverseness or corruption of a thirteenth, Rhode Island, which inflexibly opposed any changes to the Articles. This objection to the Constitution consisted of a “majority” of one sixtieth of the People of America to a measure approved and called for by the voice of twelve States, comprising fifty-nine sixtieths of the People of America. Rhode Island’s recalcitrance is still fresh in the memory and indignation of every citizen who has felt for the wounded honor and prosperity of this country. 

Since any objection to the manner in which the Constitution was approved was in effect waived by those who criticized the powers of the Convention, I dismiss it without further observation. 

The Extent of Implied Authority of the Convention

The third inquiry to which I alluded in Federalist 39 is how far considerations of duty arising out of the case itself could have supplied any defect of regular authority of the Convention.

In the preceding two inquiries – to ascertain the real character of the government in question and how far the Convention was authorized to propose such a government – the powers granted to the Convention have been analyzed and tried with the same rigor and by the same rules as if they had been real and final powers delegated for the establishment of a Constitution. 

We have seen in what manner they have borne the trial on that supposition.  But we must recollect that the powers were merely advisory and recommendatory.  The Convention understood this, and accordingly planned and proposed a written Constitution which was to have no consequence unless stamped with the approval of those to whom it was addressed. 

This reflection places the subject in an altogether different point of view. It enables us to judge with propriety of the course taken by the Convention, and to view the ground upon which the delegates stood. The delegates were deeply and unanimously impressed with the crisis.  With almost one voice, the country had made a singular and solemn experiment to correct the errors of the system. The delegates were no less deeply and unanimously convinced that the Constitution they proposed was absolutely necessary to effect the purposes of their appointment.  

The hopes and expectations of the great body of citizens throughout this empire were turned with the keenest anxiety to the event of the deliberations.  The delegates had every reason to believe that the contrary sentiments of every external and internal foe to the liberty and prosperity of the United States was agitating the minds and bosoms of its citizens.  

The delegates had seen that just a few deputies from just a few States who convened in Annapolis had assumed the liberty of recommending a great and critical object – ostensibly outside the scope of their commission – which was approved by public opinion and actually carried into effect by twelve of the thirteen States in Congress. The delegates also were cognizant that Congress had assumed both recommendatory and operative powers which were warranted, in the public estimation, by occasions and objects infinitely less urgent than those by which their conduct was to be governed. The delegates also had seen the introduction and rapid progress of the plan Virginia introduced during the Convention, towards a partial amendment of the Confederation.   

Upon reflection, the delegates must have concluded – as is the case in all great changes of established governments – that forms ought to give way to substance.  Rigid adherence to forms would render nominal and nugatory the transcendent and precious right of the People to “abolish or alter their governments as to them shall seem most likely to effect their safety and happiness,” as a famous Congress declared in 1776.  The delegates knew it would be impossible for the People spontaneously and universally to move in concert towards their object.  Therefore, it became essential that such changes be initiated by some informal propositions made by some patriotic and respectable citizen or citizens.

* * *

Upon reflection, the delegates must have concluded – as is the case in all great changes of established governments – that forms ought to give way to substance. Rigid adherence to forms would render nominal and nugatory the transcendent and precious right of the People to “abolish or alter their governments as to them shall seem most likely to effect their safety and happiness,” as a famous Congress declared in 1776.

* * * 

The delegates recollected that it was by this irregular and assumed privilege of proposing to the People plans for their safety and happiness that the States had first united against the dangers Britain had threatened to their ancient government, which stimulated formation of committees and congresses to concentrate their efforts and defend their rights, and to elect conventions to establish their constitutions.  No ill-timed scruples or zeal for adhering to ordinary forms was anywhere seen among the delegates, except in those who wished to indulge their secret enmity to the substance of reform under these specious masks. 

The delegates bore in mind that the Constitution they framed was to be submitted to the People themselves.  The People’s disapproval would thereby destroy forever this potentially supreme authority. Approval, on the other hand, would blot out antecedent errors and irregularities. 

Even in those delegates whose disposition to debate was dominant, there resided an awareness that neglecting to execute the degree of power vested in the Convention – and still more the failure to recommend any measure whatever – was unwarranted by their commission.  Neglect of duty would excite no less criticism than recommending a measure fully commensurate to the national exigencies. 

In the midst of all these considerations, had the Convention taken the cold and sullen resolution of sacrificing substance to form and committing the dearest interests of their country to the uncertainties of delay and the hazard of events, instead of pointing out a system capable of securing its happiness, what judgment ought to have been pronounced by the impartial world, by the friends of mankind, by every virtuous citizen, on the conduct and character of this assembly? 

Even if I grant that the delegates were neither authorized by their commission nor justified by circumstances in proposing a Constitution for their country, does it follow that the Constitution ought to be rejected? If, according to the noble precept, it is lawful to accept good advice even from an enemy, shall we set the ignoble example of refusing such advice even when it is offered by our friends? 

In all cases, the prudent inquiry ought surely to be, not so much from whom the advice comes, as whether the advice be good.  The charge against the Convention of exceeding its powers has no foundation to support it, except in the instance little urged by the objectors.  If the delegates exceeded their powers, they were warranted and arguably required – as the  confidential servants of their country and by the circumstances – to exercise the liberty which they assumed.  

Finally, even if the delegates violated both their powers and their obligations in proposing a Constitution, the result ought nevertheless be embraced as calculated to accomplish the views and happiness of the People of America.  How far this character is due to the Constitution, is the subject under investigation.

Madison

Federalist 41-44: Powers Granted to the Federal Government 

Federalist 41: Constitutional Powers Provide Security against Foreign Danger

THE CONSTITUTION MAY BE CONSIDERED under two general points of view.  The first relates to the sum or quantity of power which it vests in the Federal government, including the restraints imposed on the States. The second relates to the particular structure of the government, and the distribution of this power among its several branches.

Under the first view of the subject – the sum of power vested in the Federal government – two important questions arise:

1.  Whether any part of the powers transferred to the general government are unnecessary or improper?

2.  Whether the entire mass of them be dangerous to the portion of jurisdiction left in the several States?

The Aggregate Power of Federal Government Is Does Not Exceed What Ought to Have Been Vested in It  

The authors of arguments against the extensive powers granted to the Federal government very little considered how far these powers were the necessary means of attaining a necessary end.  The authors instead chose to dwell on the inconveniences which are unavoidably blended with all political advantages, and on the potential abuses which are incident to every power or trust of which a beneficial use can be made.

This method of handling the subject cannot affect the good sense of the People of America.  The method may display the subtlety of the writer, open a boundless field for rhetoric and declamation, inflame the passions of the unthinking, or confirm the prejudices of the misthinking, but cool and candid individuals will immediately reflect that the purest of human blessings have a portion of alloy in them, and that the choice must always be made – if not of the lesser evil – at least of the greater good, which need not be perfect. 

In every political institution, a power to advance the public happiness involves a discretion which may be misapplied and abused.  Thus in all cases where power is to be conferred, the point first to be decided is whether such a power is necessary to the public good, as the next point will be – in case of an affirmative decision – to guard as effectually as possible against a perversion of the power to the public detriment.

To form a correct judgment on this subject, it is proper to review the several powers conferred on the Federal government. This is most conveniently done by reducing these powers into different classes as they relate to the different objects:

1. Security against foreign danger;

2. Regulation of the intercourse with foreign nations;

3. Maintenance of harmony and proper intercourse among the States;

4. Certain miscellaneous objects of general utility;

5. Restraint of the States from certain injurious acts;

6. Provisions for giving due efficacy to all these powers.

These powers are discussed in this paper and Federalist 42 through Federalist 46. 

Security Against Foreign Danger

The first class of powers are those of declaring war and granting letters of marque, of providing armies and fleets, of regulating and calling forth the militia, and of levying and borrowing money.  

Security against foreign danger is one of the primitive objects of civil society.  It is an avowed and essential object of the United States.  The powers requisite for attaining it must be effectually confided to the Federal councils.  

Is the power of declaring war necessary?  No one will answer this question in the negative. Therefore it would be superfluous to enter into a proof of the affirmative. The Articles of Confederation established this power in the most ample form.  

* * *

The first class of powers are those of declaring war and granting letters of marque, of providing armies and fleets, of regulating and calling forth the militia, and of levying and borrowing money.  Security against foreign danger is one of the primitive objects of civil society.  It is an avowed and essential object of the United States. The powers requisite for attaining it must be effectually confided to the Federal councils.

* * *

Is the power of raising armies and equipping fleets necessary? This power arises from the power to declare war, which necessarily includes the power of self-defense.  Further, the Convention believed it necessary to give the Federal government an indefinite power of raising troops as well as providing fleets, and to maintain both in peace as well as in war.  The need for these powers was discussed at length in Federalist 24 through Federalist 28. 

Peaceful Nations as well as Strong Prepare for War

The force necessary for defense cannot be limited by those who lack the power to limit the force of offense.  The Constitution might prudently chain the discretion of its own government and set bounds to the exertions for its own safety only if it could also chain the ambition or set bounds to the exertions of all other nations, which it cannot.  How could a readiness for war in time of peace be safely prohibited unless we could prohibit the preparations and establishments of every hostile nation?  Our means of security can be regulated only by the means and danger of attack.  Security will be ever determined by these rules, and by no others.  

It is in vain to impose constitutional barriers to the impulse of self-preservation.  Indeed, it is worse than vain because it would plant in the Constitution itself a need to usurp power for self-defense. Every usurpation would be a precedent leading to unnecessary and multiplied repetitions. If one nation constantly maintains a disciplined army – ready for the service of ambition or revenge – it obliges the most pacific nations who may be within the reach of its enterprises to take corresponding precautions.

The Example of Military Establishments in Europe

The fifteenth century was the unhappy epoch of military establishments in the time of peace. They were introduced by Charles VII of France. All of Europe followed or was forced to follow the example.  Had other nations not followed the example, all of Europe would long ago have worn the chains of a universal monarch.  The same event might follow if every nation except France disbanded its peace establishments.  

The Example of Rome

The veteran legions of Rome were an overmatch for the undisciplined valor of all other nations.  Rome’s forces rendered her the mistress of the world. Not less true is that the liberties of Rome proved the final victim to her military triumphs.  The liberties of Europe – so far as they ever existed – have been the price of her military establishments, with few exceptions.  A standing force is therefore dangerous at the same time that it may be a necessary.  On the smallest scale it has its inconveniences.  On an extensive scale its consequences may be fatal. On any scale it is an object of laudable circumspection and precaution.

* * *

It is in vain to impose constitutional barriers to the impulse of self-preservation.  Indeed, it is worse than vain because it would plant in the Constitution itself a need to usurp power for self-defense.  Every usurpation would be a precedent leading to unnecessary and multiplied repetitions.  If one nation constantly maintains a disciplined army – ready for the service of ambition or revenge – it obliges the most pacific nations who may be within the reach of its enterprises to take corresponding precautions.

* * *

The Constitution Includes Precautions against the Ill Effects of Military Establishments

A wise nation will combine all of the foregoing considerations. It does not rashly preclude itself from any resource which may become essential to its safety.  A wise nation will exert all its prudence in diminishing both the necessity and the danger of resorting to a resource that may be inauspicious to its liberties.  

The clearest marks of this prudence are stamped on the Constitution. The union of States it cements and secures, destroys every pretext for a military establishment which could be dangerous.  A united America with a handful of troops exhibits a more forbidding posture to foreign ambition than would a disunited America with a hundred thousand veterans ready for combat.

The want of the pretext for military establishments saved the liberties of one nation in Europe. Being rendered by her insular situation and her maritime resources impregnable to the armies of her neighbors, the rulers of Great Britain have never been able to cheat the public into an extensive peace establishment, whether by real or artificial dangers.  

The distance of the United States from the powerful nations of the world gives us the same happy security. A dangerous establishment can never be necessary or plausible so long as we continue a united People. But it can never be forgotten that the People are indebted for this advantage by our union alone.  The moment the union dissolved will be the date of a new order of things.  The fears of the weaker States or the ambition of the stronger States (or confederacies) will set the same example in the New World as Charles VII did in the Old World.  The example will be followed here from the same motives which produced universal imitation there. Instead of deriving from our situation the precious advantage Great Britain has derived from hers, the face of America will copy that of the continent of Europe.  It will present liberty everywhere crushed between standing armies and perpetual taxes.

The fortunes of a disunited America will be even more disastrous than those of Europe. The sources of evil in Europe are confined to her own limits.  No superior powers of another quarter of the globe intrigue among her rival nations, inflame their mutual animosities, and render them the instruments of foreign ambition, jealousy, and revenge.  

In America, the miseries springing from her internal jealousies, contentions, and wars would form only a part of her lot.  A plentiful addition of evils would have their source in that relation in which Europe stands to this quarter of the earth, and which no other quarter of the earth bears to Europe. The picture of the consequences of disunion cannot be too highly colored or too often exhibited.  The image ought ever to be in sight before the eyes of every person who loves peace, the nation, and liberty, in order to cherish a heartfelt attachment to the United States and set a due value on the means of preserving it.

A Steady But Circumscribed Source of Revenue Will Maintain the Military

Next to a union, the best possible precaution against danger from standing armies is the two-year limitation of the term for which revenue may be appropriated to their support.  I will not repeat here the observations made in Federalist 24 and Federalist 26 which placed this subject in a just and satisfactory light.  

But we saw advanced an argument drawn from the policy and practice of Great Britain.  It was said the continuance of an army in that kingdom requires an annual vote of the legislature, while our Constitution has lengthened this period to two years.  The argument was presented to the public is the form just stated, but is it a fair comparison?  Its authors knew it was a fallacy because the British Constitution fixes no limit whatever to the discretion of the legislature, while the American limit ties down Congress to a two-year appropriation.  

Had the argument from the British example been truly stated, it would have stood thus:  The term for which supplies may be appropriated to the army establishment – though unlimited by the British Constitution – has in practice been limited by parliamentary discretion to a single year. In Great Britain, the House of Commons is elected for seven years. A great proportion of its members are elected by a small proportion of the People, and those electors are often corrupted by the representatives, and the representatives corrupted by the Crown.  The representative body – the House of Commons of Great Britain – possesses a power to make appropriations to the army for an indefinite term, but it neither desires or dares to extend the term beyond a single year. Suspicion herself blushes to pretend the members of the House of Representatives of the United States – freely elected by the whole body of the People every two years – cannot safely be entrusted with the discretion over military appropriations, when it is expressly limited to the same short two-year period.  A bad argument, case, or cause seldom fails to betray itself. 

* * *

Next to a union, the best possible precaution against danger from standing armies is the two-year limitation of the term for which revenue may be appropriated to their support.

* * *

The Opponents of Standing Armies Exaggerated their Concerns to the Point of Drawing Attention to the Efficacy of the Power Attacked

Among all the blunders committed by the opponents of a military force, none is more striking than their attempt to enlist support from the prudent jealousy the People have of standing armies.  The attempt awakened fully the public attention to that important subject. It led to investigations which terminated in a thorough and universal conviction that the Constitution has provided the most effectual guards against danger from that quarter. 

Nothing short of a Constitution fully adequate to the national defense and the preservation of union will save America from of as many standing armies as states or confederacies that would exist if we were to divide. The progressive augmentation of these establishments also would render them burdensome to the properties and ominous to the liberties of the People. A military establishment that becomes necessary under the united and efficient government set forth in the Constitution will be tolerable to property owners and safe to the liberties of the People.  

The Importance of the United States Navy 

The palpable necessity of the power to provide and maintain a navy protected its inclusion in the Constitution, from the spirit of censure which has spared few other parts.  Art. I, § 8, cl. 13.  It must be numbered among the greatest blessings of the United States that her union will be the only source of her maritime strength.  It will be a principal source of her security against danger from abroad.  In this respect our situation bears another likeness to the insular advantage of Great Britain.  The batteries most capable of repelling foreign enterprises on our safety are happily such as can never be turned against our liberties by a perfidious government.

The Benefits of a Federal Navy to the Atlantic Frontier

The inhabitants of the Atlantic frontier are deeply interested in this provision for naval protection. Hitherto their maritime towns and property have remained safe against the predatory spirit of licentious adventurers who could compel ransom from the terrors of a conflagration, or the exactions of daring and sudden invaders. But these instances of good fortune could not have been ascribed to the capacity of the then-existing government for the protection of those from whom it claimed allegiance, but to causes that are fugitive and fallacious.

The Benefits of a Federal Navy to the State of New York 

Excepting perhaps Virginia and Maryland – which are peculiarly vulnerable on their eastern frontiers – no part of the United States ought to feel more anxiety on this subject than New York. Her seacoast is extensive.  A very important district of the State is an island.  The State itself is penetrated by a large navigable river for more than fifty leagues. The great emporium of its commerce and great reservoir of its wealth lies every moment at the mercy of events, and may almost be regarded as a hostage for ignominious compliance with the dictates of a foreign enemy, or even with the rapacious demands of pirates and barbarians.  

Should a war be the result of a precarious situation of European affairs – and all the unruly passions attending it be let loose on the ocean – an escape from all the insults and depredations accompanying it will be truly miraculous.

Under the Confederation, those States more immediately exposed to these calamities had nothing to hope from what was the phantom of the general government.  Even if a State’s resources were equal to fortifying itself against the danger, the objects protected would be almost consumed by the costs of protecting them.  

Congressional power to maintain a navy adds to the power of regulating and calling forth the militia, and to the power of levying and borrowing money, which is the sinew of that which must be exerted in the national defense.

* * *

Congressional power to maintain a navy adds to the power of regulating and calling forth the militia, and to the power of levying and borrowing money, which is the sinew of that which must be exerted in the national defense.

* * *

Federal Taxes Cannot Be Limited to Duties on Imported Items

I will address one additional reflection to those who contend the power to tax ought to have been restrained to external taxation, that is, taxes on articles imported from other countries.  It cannot be doubted this will always be a valuable source of revenue; that for a considerable time it must be a principal source; and that at this moment it is an essential one.  

But we may form very mistaken ideas of this subject if our calculations do not call to mind that the extent of revenue drawn from foreign commerce will be variable. Revenue from duties will fluctuate, both in the extent and the kind of imports, since revenue will not correspond to increases in population, which usually is the general measure of public demand.  At present agriculture is the sole field of labor, but importation of manufactures will increase as consumers multiply. As soon as domestic manufactures use the hands not needed by agriculture, imported manufactures will decrease as the numbers of people increase.

Farther in the future our imports may consist in large part of raw materials, which will be wrought into articles for exportation.  Importation of raw materials ought to be encouraged through economic incentives, rather than loaded with discouraging duties. A system of government which is meant to endure ought to contemplate these revolutions and be able to accommodate itself to them.

* * *

A bad argument, case, or cause seldom fails to betray itself.

* * *

Opponents of the Constitution Purposefully Ignored the Limits It Places on Taxation 

Some writers (who conceded the necessity of the power to tax) launched a very fierce attack against the Constitution by taking its language out of context. It was urged and echoed that the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” amounted to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare.  

No stronger proof of the distress under which these writers labored for objections than their stooping to such a misconstruction.  The objection might have had some color if no other enumeration of the powers of the Congress  been found in the Constitution.  

But what color can the objection have when a specification of the objects alluded to by these general terms immediately follows, separated only by a semicolon?  Different parts of the same instrument ought to give meaning to every part which will bear it.  Shall one part of a sentence be excluded altogether from a share in the meaning of the rest of the sentence?  Shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever?  For what purpose could the enumeration of particular powers have been inserted if these and all others were meant to be included in the preceding general power?  Nothing is more natural nor common at law than first to use a general phrase, and then to explain and qualify it by a recital of particulars.

* * *

No stronger proof of the distress under which these writers labored for objections than their stooping to such a misconstruction.  The objection might have had some color if no other enumeration of the powers of the Congress been found in the Constitution.  But what color can the objection have when a specification of the objects alluded to by these general terms immediately follows, separated only by a semicolon?

* * * 

The idea of an enumeration of particulars which neither explains nor qualifies the general meaning has no other effect than to confound and mislead.  It is an absurdity concocted by the authors of the objection.  It is even more extraordinary because it is based on language the Convention copied from the Articles of Confederation.  The third article thereof described the objects of the union of the States as “their common defence, the security of their Liberties, and their mutual and general welfare.”  The eighth article is the same: “All charges of war, and all other expenses that shall be incurred for the common defence or general welfare, and allowed by the united states in congress assembled, shall be defrayed out of a common treasury . . . .” Similar language again occurs in the ninth article.  If these articles were construed by the rules the objectors would apply to the Constitution, the Congress would have had a power to legislate in all cases whatsoever.

What would have been thought of that Congress if had attached itself to these general expressions and exercised an unlimited power of providing for the common defense and general welfare, while disregarding the specifications limiting their import?  I ask whether the objectors would have employed the same reasoning in justification of that Congress as they now use against the Convention.  How difficult it is for error to escape its own condemnation!

Madison

Federalist 42: Exclusive Federal Powers Regulating Relations with Foreign Powers and Among States Foster Harmony 

THE SECOND AND THIRD CLASSES OF POWERS lodged in the Federal government consist of those which regulate our relations with foreign nations, and those which provide for the harmony of intercourse among the States. 

Exclusive Federal Powers Are Necessary to Regulate Our Relations with Foreign Nations

If we are to be one nation in any respect, it ought to be in respect to other nations. This class of powers forms an obvious and essential part of the Federal government. 

These include the powers to:

(1) make treaties, 

(2) send and receive ambassadors and other public ministers and consuls, 

(3) define and punish piracies and felonies committed on the high seas and offenses against the law of nations, and

(4) regulate foreign commerce, including a power to prohibit the importation of slaves after the year 1808, and to lay an intermediate duty of ten dollars per head as a discouragement to such importations. 

* * *

The second and third classes of powers lodged in the Federal government consist of those which regulate our relations with foreign nations, and those which provide for the harmony of intercourse among the States. 

* * *

The Power to Make Treaties and Send and Receive Ambassadors and Counsels 

The powers to make treaties and to send and receive ambassadors need no explanation, for both were contained in the Articles of Confederation. These powers are continued in the Constitution, with two essential differences. 

With respect to the power to make treaties, the Constitution removes the former limitations on that power, which had allowed State regulations to frustrate treaties to a substantial degree. 

With respect to the power to send and receive ambassadors, the Constitution adds the power of appointing and receiving “other public ministers and consuls.” Formerly, the power was limited to appointing and receiving ambassadors, but Congress has found it expedient to adopt the practice of employing grades of public ministers inferior to ambassadors, and sending and receiving consuls.  The Constitution validates this practice. 

Gradual and Incremental Usurpations of Power Occur in the Details 

The most minute provisions become important when they tend to obviate the necessity or the pretext for gradual and unobserved usurpations of power.  Under the Articles of Confederation, the Congress had in many instances exceeded its chartered authority by appointing lesser grades of public ministers. Rectifying the omission regarding consuls is itself no inconsiderable argument in favor of the Constitution, which corrects the more obvious and striking defects of the old while no less studiously correcting the lesser defects as well.

Felonies on the High Seas and Offenses Against the Law of Nations 

A still greater improvement on the Articles of Confederation is the creation of a Federal power to define and punish piracies and felonies committed on the high seas, including offenses against the law of nations. The Articles did not provide for the case of offenses against the law of nations, making it possible for a single State to embroil the Confederacy in disputes with foreign nations. 

The expanded Federal power on the subject of piracies and felonies extends no further than to the establishment of courts for the trial of these offenses.  The definition of piracies can be left to the laws of nations, although a legislative definition of them is found in most municipal codes.

A definition of felonies on the high seas is required.  Felony is a term of loose signification in both the common and statutory law of England, making them dishonorable and illegitimate guides to a proper definition. When one looks to the word as defined in the codes of the several States, a common definition seems impractical.  “Felony” is not precisely defined the same way in any two of the States.   Further variations appear in each State with every revision of its criminal laws.  For the sake of certainty and uniformity, the power of defining felonies in this case was in every respect necessary and proper.

Submitting the regulation of foreign commerce to the Federal government was explained in Federalist 11 and Federalist 22 and thus needs no additional proof.

* * *

It would be a happy event for the unfortunate Africans to have laid before them the prospect of freedom from the oppressions of their European brethren that is equal to what the colonists so recently experienced.

* * *

The Prohibition on the Importation of Slaves Is Postponed for One Generation, so the Barbarous Trade May Be Abolished Forever 

The exercise of Federal power to prohibit the importation of slaves is postponed until the year 1808.  Preferably there should be no delay, but existing practices explain this temporal restriction on the power of the Federal government to discourage this unnatural and barbaric trade. It will be a great point gained in favor of humanity if – during a period of twenty years – the slave trade in the States terminates forever.  Within that generation it will receive a considerable discouragement from the Federal government, and may be totally abolished during that period with the concurrence of the few States which continue the traffic.  It would be a happy event for the unfortunate Africans to have laid before them the prospect of freedom from the oppressions of their European brethren that is equal to what the colonists so recently experienced. 

* * *

The exercise of Federal power to prohibit the importation of slaves is postponed until the year 1808.  Preferably there should be no delay, but existing practices explain this temporal restriction on the power of the Federal government to discourage this unnatural and barbaric trade.  It will be a great point gained in favor of humanity if – during a period of twenty years – the slave trade in the States terminates forever.

* * *

The Third Class of Federal Powers Will Provide for Harmony and Proper Intercourse among the States 

The restraints against State authority that will advance the harmony and proper intercourse among the States are discussed in Federalist 44. Certain aspects of judicial power will promote the same end, but these are discussed when we arrive at the structure and organization of the Federal judiciary in Federalist 80 and Federalist 81.  Presently we confine ourselves to a cursory review of the other powers that will provide for an harmonious intercourse among the States, namely, the powers: 

(1) to regulate commerce among the several States and the Indian tribes, 

(2) to coin money, regulate the value thereof, and of foreign coin, 

(3) to provide for the punishment of counterfeiting the current coin and securities of the United States, 

(4) to fix the standard of weights and measures, 

(5) to establish a uniform rule of naturalization, 

(6) to enact uniform laws of bankruptcy, 

(7) to prescribe the manner in which the public acts, records, and judicial proceedings of each State shall be proved, and the effect they shall have in other States, and 

(8) to establish post offices and post roads. 

The Power to Regulate Interstate Commerce Is Intended to Restrict Injurious Duties 

“The Congress shall have the Power . . . [¶] To regulate Commerce . . . among the several States, . . . .” Art. I, § 8, cl 3.  

Experience highlights the inadequacy of the prior Federal authority to regulate the commerce among the States. The grant of supplemental power to regulate commerce among the States remedies this defect, and ensures the great and essential power of regulating foreign commerce is no longer incomplete and ineffectual. 

One very material object of conferring this power was to relieve States which import and export through other States from the improper contributions levied for the mere transport of goods.  If States were at liberty to regulate trade between State and State, one can easily foresee how articles of import and export passing through a State would be loaded with duties which would fall both on the consumers of the imports and the makers of the exports. 

* * *

Experience highlights the inadequacy of the prior Federal authority to regulate the commerce among the States. The grant of supplemental power to regulate commerce among the States remedies this defect, and ensures the great and essential power of regulating foreign commerce is no longer incomplete and ineffectual.

* * *

Allowing Duties on Interstate Transport Stimulates Passion rather than Reason 

If duties for the mere passage were allowed, experience advises  that such practices would be introduced by future contrivances. A common knowledge of human passions and interests further counsels that such contrivances would nourish unceasing animosities. Not improbably such animosities would terminate in serious interruptions of the public tranquility. 

Indirect Taxation of the Citizens of Other States Is Improper 

The desire of commercial States to collect – in any form – an indirect revenue from their uncommercial neighbors is as impolitic as it is unfair.  It would stimulate the injured parties – by resentment as well as interest – to resort to less convenient channels for their foreign trade. In the end, the mild voice of reason – pleading before public bodies the cause of a permanent national interest greater than revenue – is too often drowned by the clamors of an impatient avidity for immediate and immoderate gain. 

Foreign Experience with Interstate Duties Demonstrates the Need for Federal Control 

Other examples demonstrate the necessity of a superintending authority over the reciprocal trade of confederated unions like the United States. The Swiss Union of confederated cantons obliges on each the free passage of goods among them, without an augmentation of the tolls. The Union of the Netherlands requires its members to obtain permission before establishing imposts disadvantageous to their neighbors.  In the German empire, there is a law that princes and states shall not lay tolls or customs on bridges, rivers, or passages, without the consent of the emperor and the general assembly of imperial estates. Unfortunately, as I observed in Federalist 19, that empire has not followed the written law, thereby producing mischiefs similar to those we experienced under the Articles of Confederation. 

Regulating Commerce with the Native Tribes 

The Constitution delegates to the Congress the power:  “To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Art. I, § 8, cl. 3.  By this provision the Federal government is entrusted with the sovereign power to regulate commerce with the Indian tribes. The power is very properly unfettered from two obscure and contradictory limitations in the Articles of Confederation, which had granted Congress “the sole and exclusive right and power of . . . regulating the trade and managing all affairs with the Indians, not members of any of the States, provided that the legislative right of any State within its own limits be not infringed or violated.” Articles of Confederation of 1781, art. IX, ¶ 4. 

This provision has resulted in much contention, confusion and perplexity in Federal councils, particularly concerning what Indians should be deemed “members of a State.” And it is absolutely incomprehensible how the trade with Indians – though not members of a State, yet residing within its legislative jurisdiction – can be regulated by an external authority like the United States without intruding on the internal rights of States to enact legislation.

* * *

It is a mathematical impossibility to reconcile a complete sovereignty in State governments with a partial sovereignty in the Federal government.  One cannot take away a part and yet let the whole remain.  If the whole remains, nothing has been taken away.

* * *

It Is Impossible to Grant a Partial Sovereignty to the Federal Government, Yet Retain a Complete Sovereignty with the States 

The immediately-preceding example was not the only case in which the Articles of Confederation inconsiderately endeavored to accomplish impossibilities.  It is a mathematical impossibility to reconcile a complete sovereignty in State governments with a partial sovereignty in the Federal government.  One cannot take away a part and yet let the whole remain. If the whole remains, nothing has been taken away.

The Exclusive Federal Power to Coin and Regulate the Value of Money 

Only one thing need be said on the powers to coin money, to regulate its value, and to regulate the value of foreign coin. Congressional authority pursuant to the Articles of Congress was restrained to the regulation of coin struck by their own authority, or that of the respective States.  The exclusive Federal power to regulate the value of foreign coin is new. It was added because the uniformity in the value of the current coin might be destroyed by subjecting that of foreign coin to the different regulations of the different States. 

The Power to Punish Counterfeiting Is Properly Vested in the Federal Government

The punishment for counterfeiting the public securities and the current coin is naturally submitted to that authority which is to secure the value of both. 

The Regulation of Weights and Measures

The regulation of weights and measures is transferred from the Articles of Confederation, and is founded on like considerations with the preceding power of regulating coin.

The Rules of Naturalization Must Be under Federal Control 

The dissimilarity in the rules of naturalization were long considered a fault in the prior system, as laying a foundation for intricate and delicate questions. In the fourth article of the Confederation, with my emphasis, it was declared “that the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice, excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall, in every other, enjoy all the privileges of trade and commerce . . . .”  Articles of Confederation of 1781, art. IV, ¶ 1 (emphasis added). 

The confusion of language here is remarkable. Why were the terms free inhabitants are used in one part of the article, free citizens in another, and people in another?  What was intended by superadding the phrases “all privileges and immunities of free citizens” and “all the privileges of trade and commerce”?  Read literally, the article provides that the free inhabitants of a State – although not citizens of such State – are nonetheless entitled to all the privileges of free citizens while in any other State. These free inhabitants would thus have greater privileges in other States than they may be entitled to in their own State. In order to eliminate these and other disparities, the Constitution has authorized the Federal government to establish a uniform rule of naturalization throughout the United States.

The Power to Regulate Bankruptcies Must Be Federal 

The power of establishing uniform laws of bankruptcy is also committed to the Federal government.  Art. I, § 8,  cl. 4.  This power is intimately connected with the regulation of commerce and is necessary to prevent the fraudulent movement of property between States to disadvantage creditors.  No one questions its expediency. 

The Federal Government Is Properly Granted the Power to Prescribe How the Public Acts, Records and Judicial Proceedings May Be Proved in Another State 

The Constitution provides: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.  And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”  Art. IV, § 1. 

The power of prescribing by general laws, the manner in which the public acts, records and judicial proceedings of each State shall be proved, and the effect they shall have in other States, is an evident and valuable improvement on its indeterminate counterpart in the Articles of Confederation. The power here established may be rendered a very convenient instrument of justice.  It will be particularly beneficial on the borders of contiguous States, where the property and effects liable to justice may be suddenly and secretly removed to the foreign jurisdiction at any stage of the process. 

The Power to Establish Post Offices and Post Roads Will Benefit Everyone 

Nothing which tends to facilitate the intercourse between the States can be deemed unworthy of the public care.  The power of establishing post offices and post roads, Art. I, § 8, cl. 7, is not only a harmless power, but one that will produce many improvements – if judiciously managed. 

Madison 

Federalist 43: Miscellaneous Powers Examined

THE FOURTH CLASS OF POWERS lodged in the Federal government comprises several miscellaneous powers I now examine.   

The Power to Issue Patents and Copyrights

Congress is granted the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.  Art. I, § 8, cl. 8. The utility of this power will scarcely be questioned. In Great Britain, the copyright of authors has been solemnly adjudged to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. Protecting the claims of individual authors and inventors fully coincides with the public good. The States acting alone would be unable to make effectual provisions for the protection of either.

* * *

In Great Britain, the copyright of authors has been solemnly adjudged to be a right of common law.  The right to useful inventions seems with equal reason to belong to the inventors. Protecting the claims of individual authors and inventors fully coincides with the public good.

* * *

The Power to Establish the District of Columbia

The next miscellaneous power allows Congress “[t]o exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings.” Art. I, § 8, cl. 19.  

The indispensable necessity of complete authority at the seat of government carries its own evidence. It is a power exercised by every legislature in the United States – I might say of the world – by virtue of its general supremacy.  Without it, the public authority might be insulted and its proceedings interrupted with impunity. Further, the members of the Federal government would depend on the State comprehending the seat of the government for protection in the exercise of their duty, thereby imputing an influence over the national councils, which would be dishonorable to the Federal government and dissatisfactory to the other States. 

This consideration carries more weight as public improvements gradually accumulate at the stationary residence of the government. It both would be too great a public pledge left in the hands of a single State, and create many obstacles to a removal of the government.  

The extent of this Federal district is sufficiently circumscribed to satisfy every jealousy of an opposite nature. It is to be appropriated to this use with the consent of the State or States ceding it. As each ceding State will no doubt provide in the compact for the rights and the consent of the citizens inhabiting it, the inhabitants will find sufficient inducements of interest to become willing parties to the cession. A municipal legislature for local purposes – derived from their own votes – will of course be allowed its citizens, and thus they will have their voice in the election of the government which is to exercise authority over them.  Since the authority for the cession will be derived from the whole people of the State by their ratification of the Constitution, and the both the legislature of the ceding State and the inhabitants of the ceded part will concur in the cession, every imaginable objection seems to be obviated.  

The necessity of a similar authority over forts, magazines, and the like is not less evident.  The public money expended on such places, and the public property deposited in them, requires that they should be exempt from the authority of the particular State.  It would be improper for the places on which the security of the entire United States may depend to in any degree be dependent on a particular member of it. All objections and scruples are here also obviated by requiring the concurrence of the States concerned in every such establishment.   

The Power to Declare the Punishment for Treason Does Not Extend to Descendants

“The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.” Art. III, § 4, cl 2. 

As treason may be committed against the United States, the authority of the United States ought to be enabled to punish it. But as novel and artificial treasons have been the great engines by which violent factions – the natural offspring of free government – have alternatively wreaked their malignity on each other, the Convention imposed a barrier to this peculiar danger by inserting a constitutional definition of the crime, fixing the proof necessary for conviction of it, and restraining the Congress in punishing it beyond the consequence of the guilt of its author. 

The Power to Admit New States

“New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.” Art. IV, § 3, cl 1. 

The Articles of Confederation had no provision on this important subject. Canada was to be admitted of right, on her joining in the measures of the United States. Other colonies – by which were evidently meant the other British colonies – were could be admitted the discretion of nine States. The eventual establishment of new States seems to have been overlooked by the compilers of that instrument. We have seen the inconvenience of this omission, and the assumption of power into which the Congress was led by it.  With great propriety, therefore, has the new system supplied the defect.

The general precaution that no new States shall be formed without the concurrence of Congress and the States concerned is consonant to the principles which ought to govern such transactions. The inclusion of the precaution against the erection of a new State by partitioning an existing one without its consent quiets the jealousy of the larger States, just as jealousy of the smaller States is quieted by a like precaution against a junction of States without their consent. 

* * *

As treason may be committed against the United States, the authority of the United States ought to be enabled to punish it.  But as novel and artificial treasons have been the great engines by which violent factions – the natural offspring of free government – have alternatively wreaked their malignity on each other, the Convention imposed a barrier to this peculiar danger by inserting a constitutional definition of the crime, fixing the proof necessary for conviction of it, and restraining the Congress in punishing it beyond the consequence of the guilt of its author. 

* * * 

The Power to Regulate the Territories and Property of the United States 

“The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.”  Art. IV, § 3, cl. 2.

This is a power of very great importance and required by considerations similar to concerning formation of new States. The proviso was rendered absolutely necessary by jealousies and questions concerning the Western territory sufficiently known to the public.  

The Guaranty of Republican Government and Protection from Invasion

“The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”  Art. IV, § 4.  

In a confederacy founded on republican principles and composed of republican members, the superintending government ought clearly to possess authority to defend the system against aristocratic or monarchical innovations. The more intimate the nature of a confederacy may be, the greater interest have the members in the political institutions of each other, and the greater right to insist that the forms of government under which the compact was entered into should be substantially maintained.  

A right implies a remedy, and where else could the remedy be deposited than the Constitution?  Governments composed dissimilar principles and forms have proven less adapted to a federal coalition of any sort, than have those of a kindred nature. “As the confederate republic of Germany,” says Montesquieu, “consists of free cities and petty states, subject to different princes, experience shows us that it is more imperfect than that of Holland and Switzerland. Greece was undone,” he adds, “as soon as the king of Macedon obtained a seat among the Amphictyons.” In the case of Macedon, the disproportionate force – as well as the monarchical form of the new confederate – undoubtedly had its share of influence on the events.

Some might question the need of a guarantee of a republican government.  But if the interposition of the Federal government should not be needed, the provision for such an event in the Constitution will be a harmless superfluity.  But who can say what experiments may be produced by the caprice of particular States, the ambition of enterprising leaders, or the intrigues and influence of foreign powers?  

To those who say a guarantee may become a pretext for Federal alterations to a State government without the concurrence of the other States, it may be answered that if the Federal government should interpose by virtue of this constitutional authority, it will be bound to pursue the authority. But the authority extends no further than to a guaranty of a republican form of government.  This supposes a preexisting government of the form which is to be guaranteed.  As long as the existing republican forms are continued by the States, they are guaranteed by the Federal Constitution. Whenever a States chooses to substitute another republican form, they have a right to do so, and to claim the Federal guaranty for the latter. The only restriction imposed on the States is that they shall not exchange republican for antirepublican Constitutions. This restriction will hardly be considered a grievance.

* * *

Some might question the need of a guarantee of a republican government.  But if the interposition of the Federal government should not be needed, the provision for such an event in the Constitution will be a harmless superfluity. But who can say what experiments may be produced by the caprice of particular States, the ambition of enterprising leaders, or the intrigues and influence of foreign powers?

* * *

A protection against invasion is due from every society to the parts composing it. The latitude of the expression here secures each State against foreign hostility as well as against ambitious or vindictive enterprises of its more powerful neighbors.  The history of ancient and modern confederacies proves the weaker members of a confederate union ought not be insensible to the policy of this article.  It follows that protection against domestic violence is added with equal propriety.  

Even among the Swiss cantons – although technically not under one government – provision is made for this object.  The history of that league informs us mutual aid is frequently claimed and afforded. A recent and well-known event among ourselves has warned us to be prepared for emergencies of a like nature.  

From a theoretical republican perspective, a majority has not the right – or a minority the force – to subvert a government, so Federal interposition should never be required. But theoretical reasoning – in this as in most cases – must be qualified by the lessons of practice. Illicit combinations for purposes of violence can be formed in a majority of a county or a district of a State. Similarly, an illicit combination also can form a majority of an entire State, especially a smaller one. Just as the authority of the State ought to protect a municipal government in the case of a local combination, the Federal government ought to support the State in the case of a larger one. Besides, certain parts of State constitutions are so interwoven with the Federal Constitution that a violent blow to one communicates the wound to the other.

* * *

From a theoretical republican perspective, a majority has not the right – or a minority the force – to subvert a government, so Federal interposition should never be required. But theoretical reasoning – in this as in most cases – must be qualified by the lessons of practice.

* * *

Insurrections in a State will rarely induce a Federal interposition unless their number threatens the friends of government. It is much better that the violence in such cases be repressed by the superintending State government than letting the majority maintain their cause by a bloody and obstinate contest. The mere existence of a Federal right to interpose will generally prevent the necessity of exerting it. It is not always true that force and right are necessarily on the same side in republican governments. The minor party may possess such a superiority of pecuniary resources, military talents and experience, or secret succors from foreign powers as to render it superior in an appeal to the sword. A more compact and advantageous position can turn the scale against a superior number that is less capable of a prompt and collected exertion of its strength.  In a trial of actual force, nothing is more chimerical than to imagine victory may be calculated by the rules governing a census of inhabitants or the outcome of an election!

* * *

Insurrections in a State will rarely induce a Federal interposition unless their number threatens the friends of government.  It is much better that the violence in such cases be repressed by the superintending State government than letting the majority maintain their cause by a bloody and obstinate contest.  

* * *

It may happen that a minority of citizens may become a majority of persons by the accession of alien residents, and the casual concourse of adventurers and those unauthorized to vote. And in some of the States there is an unhappy species of population who are sunk below the level of men during the calm of regular government, but who emerge into the human character in the tempestuous scenes of civil violence, and give a superiority of strength to any party with which they may associate themselves.  In a case of two violent factions flying to arms and tearing a State to pieces – and there is doubt on which side justice lies – there are no better umpires than the representatives of States not heated by the local flame. The impartiality of neighbors would unite the affection of friends within the affected State. It would be a happy day if all free governments could enjoy such a remedy for its infirmities. Perhaps a project equally effectual could be established for the universal peace of mankind.  

In the case of an insurrection pervading all the States with superiority of an entire force, it would be without the compass of human remedies, so fortunately it is not within the compass of human probability.  It is a sufficient recommendation of the Constitution that it diminishes the risk of a calamity for which no possible constitution can provide a cure. Among the advantages of a confederate republic enumerated by Montesquieu, an important one is “that should a popular insurrection happen in one of the States, the others are able to quell it. Should abuses creep into one part, they are reformed by those that remain sound.  

The Power to Pay Antecedent Debts 

“All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.” Art. VI, cl. 1.  This can only be considered as a declaratory proposition inserted primarily for the satisfaction of the foreign creditors of the United States, to dispel doubts that we will adhere to the pretended doctrine that a change in the political form of civil society has the magical effect of dissolving its moral obligations.  

In the spirit which usually characterizes little critics, it was argued the validity of debts and engagements in favor of the United States also ought to have been included. Its omission has been transformed and magnified into a plot against the national rights. These small critics feign ignorance of the well-known principle that engagements are in their nature reciprocal, and an assertion of their validity on one side necessarily involves a validity on the other side. Since the article is merely declaratory, the establishment of the principle in one case is sufficient for every case. Every constitution must limit its precautions to dangers that are not altogether imaginary. No real danger can exist that the Federal government would even dare to cancel the debts justly due to the public on the pretext here condemned.  

The Power to Provide for Amendments to the Constitution 

Article V sets forth the methods by which the Constitution may be amended:  “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” 

The Convention saw that useful alterations will be suggested by experience, and therefore provided a mode for introducing them, which is stamped with every mark of propriety. By requiring the two-thirds of both chambers of the Congress or two-thirds of State legislatures to initiate the process, Article V guards equally against that extreme facility which would render the Constitution too mutable, and that extreme difficulty which might perpetuate its discovered faults. It equally enables the Federal and the State governments to originate the amendment of errors as may be pointed out by the experience on one side or the other.  

The exception in favor of the equality of suffrage in the Senate was inserted as a palladium to the smaller States to secure their residuary sovereignty that is implied and secured by that principle of coequal representation in one branch of the legislature. The other exception was admitted on the same considerations which produced the privilege defended by it.  

* * *

The Convention saw that useful alterations will be suggested by experience, and therefore provided a mode for introducing them, which is stamped with every mark of propriety. By requiring the two-thirds of both chambers of the Congress or two-thirds of State legislatures to initiate the process, Article V guards equally against that extreme facility which would render the Constitution too mutable, and that extreme difficulty which might perpetuate its discovered faults.

* * *

Initial Ratification of the Constitution by Nine States 

Article VII provides:  “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.”  This article speaks for itself.

Only the express authority of the People through their State Conventions could give due validity to the Constitution. To have required the unanimous ratification of the thirteen States would have subjected the essential interests of the whole to the caprice or corruption of a single member. It would have marked an inexcusable want of foresight in the Convention. 

Two questions of a very delicate nature presented themselves on the occasion of the ratification of the Constitution. The first inquires into the basis for superseding the Confederation – a solemn form of a compact among the States – without the unanimous consent of the parties to it. This is answered at once by recurring to the absolute necessity of the case, the great principle of self-preservation, and the transcendent law of nature and of nature’s God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed. An answer also appears in the manner by which the Articles of Confederation were ratified.  In many States, the Articles received no higher approval than a mere legislative ratification. Under the principle of reciprocity, the obligations of the other States should be reduced to the same standard. A compact between independent sovereigns founded on ordinary acts of legislative authority can pretend to no higher validity than a league or treaty between the parties.  It is an established doctrine on the subject of treaties that all the articles are mutually conditioned on each other, and that a breach of any one article is a breach of the whole treaty. A breach by one of the parties absolves the others, and authorizes them to pronounce the compact violated and void. The Articles were subject to multiple and important infractions. 

The second inquiry focuses on the relationship between the States ratifying the Constitution and a State which chooses not to become a party to it. Although no political relation can subsist between the assenting and dissenting States, moral relations will remain uncancelled. Claims of justice will remain in force on both sides, and must be fulfilled. The rights of humanity must in all cases be duly and mutually respected.  It is hoped that considerations of a common interest, the remembrance of the endearing scenes of the past, and the anticipation of a speedy triumph over the obstacles to reunion, will not urge in vain moderation on one side and prudence on the other.

Madison

Federalist 44:  Restrictions on the Authority of the Several States; the Necessary and Proper Clause and the Supremacy Clause Explained

The Fifth Class of Powers:  Prohibition of Certain State Activities

A FIFTH CLASS OF PROVISIONS in favor of the Federal authority consists of the following restrictions on the authority of the several States: “No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.”  Art. I, § 10, cl 1. 

Prohibition of Any State Entering into Any Treaty, Alliance or Confederation

The first clause – the prohibition against any treaty, alliance or confederation – needs no explanation.  

Prohibition of Any State Granting Letters of Marque

The prohibition of letters of marque was included in the Articles of Confederation, and is extended in the Constitution. According to the old system, letters of marque could be granted by a State after a declaration of war. Under the new system, these licenses must be obtained from the government of the United States both before war and after its declaration. This alteration is fully justified by the advantage of uniformity in all points which relate to foreign powers. It also is fully justified by the liability of the nation for all those whose conduct the nation itself will bear responsibility.  

Prohibition of States Coining Money, and Issuing Bills of Credit or Paper Money

The Constitution takes the right of coining money from the States. It was formerly left in their hands by the Confederation – as a concurrent right with that of Congress – with an agreed exclusive right of Congress to regulate the alloy and value. This new provision is an improvement on the old. The only effect of a right of coinage in States has been multiplication of expensive mints with diversified forms and weights of the circulating pieces. Diversification of forms and weights of circulating pieces defeats one of the purposes why the power was originally submitted to the Federal government.  So long as the authority to regulate the alloy and value of coins tends to prevent an inconsistent remittance of gold and silver to the central mint for recoinage, the end can be as well attained by local mints established under the Federal government.  

The Constitution also prohibits States from emitting bills of credit. Since the peace, America’s losses from the pestilent effects of paper money have constituted an enormous debt against the States chargeable with these imprudent measures. It undermines the necessary confidence between human beings and their confidence in the public councils. It also undermines the industry and morals of the People, and even the character of republican government.  The States will never satisfy these debts, for they are based on no more than an accumulation of guilt. The debt holders must expiate them by a voluntary sacrifice on the altar of justice, which expiation must include the power which has been the instrument of it.  

Just as we must deny to States the power to regulate coin, we must deny to them the power to issue paper money in place of coin. If every State had a right to regulate the value of its coin, there would be as many different currencies as States. Intercourse would be impeded, and retrospective alterations in value would be made, leading to injuries among the citizens of the issuing States and the kindling of animosities among the States themselves. Foreign powers also might suffer from any debasement, and hence the United States would be discredited and embroiled by the indiscretion of a single member. These mischiefs are as incident to a power in the States to coin gold or silver as a power to emit paper money.  The power to make any thing but gold and silver a tender in payment of debts is withdrawn from the States on the same principle with that of issuing a paper currency.  

Prohibition of Bills of Attainder, Ex Post Facto Laws, and Laws Impairing the Obligation of Contracts

Bills of attainder, ex post facto laws, and laws impairing the obligation of contracts are contrary to the first principles of the social compact and to every principle of sound legislation. The declarations prefixed to some State constitutions expressly prohibit bills of attainder and ex post facto laws. The spirit and scope of the other constitutions implicitly prohibit them. Moreover, our own experience has taught us we must erect additional fences against these dangers.  The Convention very properly added this constitutional bulwark in favor of personal security and private rights.  The People of America are weary with fluctuating policies emanating from public councils. The People regret and are indignant with sudden changes and legislative interferences – particularly in those cases affecting personal rights – where they become mere jobs in the hands of enterprising and influential speculators, who are but snares to the more industrious (though less informed) members of the community. The People have also seen that a single legislative interference can be but the first link of a long chain of repetitions, with every subsequent interference being naturally produced by the effects of the preceding. From this they very rightly infer that thorough reform is needed to banish speculations on public measures, and to inspire the general prudence and industry which will give a regular course to the business of society. 

Prohibition of Titles of Nobility

The prohibition with respect to titles of nobility, copied from the Articles of Confederation, needs no comment.  

Prohibition of State Duties on Imports and Exports 

The Constitution provides: “No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.” Art. I, § 10, cl. 2. 

The restraint on the power of the States over imports and exports is enforced by all the arguments which prove the necessity of submitting the regulation of trade to the Federal councils. Therefore, it is needless to remark further on this head, other than to note the manner in which the restraint is qualified seems well calculated at once both to secure to the States a reasonable discretion in providing for the convenience of their imports and exports, and to secure to the United States a reasonable check against an abuse of this discretion. (The remaining particulars of this clause fall are either so obvious to reason or have been so fully developed that they may be passed over without remark.)

The Sixth Class of Powers Granted to the Federal Government   

The sixth and last class of powers granted to the Federal government consists of the several powers and provisions by which efficacy is given to all the rest.     

The Necessary and Proper Clause Is Unassailable 

Of these the first is the “power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.” Few parts of the Constitution were assailed with more intemperance than this. Yet no part appears more completely invulnerable upon a fair investigation.  Without the substance of this power, the whole Constitution would be a dead letter.  Those who object to the article as a part of the Constitution can only mean the form of the provision is improper.  

The Four Alternatives to the Necessary and Proper Clause

Was there a better solution?  The Constitutional Convention considered four alternatives. First, the Convention could have copied the second article of the existing Confederation – which would have prohibited the exercise of any power not expressly delegated.  Second, the Convention might have attempted a positive enumeration of the powers comprehended under the general terms “necessary and proper.” A third option might have attempted a negative enumeration of them, by specifying the powers excepted from the general definition.  And finally, the Convention might have been altogether silent on the subject, leaving these necessary and proper powers to construction and inference. 

(1)  The Possibility of Prohibiting the Exercise of Any Power Not Expressly Delegated

Had the Convention adopted the first method  – prohibiting the exercise of any power not expressly delegated – the Congress would be continually exposed to the alternative of construing the term “expressly” with so much rigor as to disarm the government of all real authority, or with so much latitude as to destroy altogether the force of the restriction. As with the experience under the Articles of Confederation, none of the important powers delegated to Congress could have been executed by that body without resorting more or less to the doctrine of construction or implication.  Since the powers delegated under the new system are more extensive, the government administering it would find itself still more distressed with the alternatives of betraying the public interest by doing nothing, or of violating the Constitution by exercising powers indispensably necessary and proper, but at the same time not expressly granted.  

(2)  The Possibility of Enumerating Necessary and Proper Powers  

Had the Convention chosen the second alternative – a positive enumeration of the powers necessary and proper for carrying their other powers into effect – the attempt would have involved a complete digest of laws on every subject to which the Constitution relates, with accommodation not only to the existing state of things, but to all the possible changes futurity may produce. With every new application of a general power, the  particular powers – the means of attaining the object of the general power – would necessarily vary depending on the object, and also vary even when the object remains the same.

(3)  The Possibility of Excepting Certain Powers from Those which Are Necessary and Proper 

The third option would have been a negative specification of the powers excepted from the general authority to make laws necessary and proper. Of course, every deficiency in the list of excepted powers would be taken as equivalent to a positive grant of authority to the Congress.

To avoid this consequence, the Convention could have attempted a partial enumeration of exceptions, and described the residue by the general terms “not necessary or proper.”  Such a partial list naturally would be composed of only the least necessary or proper powers.  As a result, the residuum would be less forcibly excepted than if no partial enumeration had been made at all. 

(4)  The Possibility of Remaining Silent  

Finally, had the Constitution been silent on this head, by unavoidable implication all the particular powers requisite to executing the general powers would rest with the Federal government.  No axiom is more clearly established in law or reason that wherever a general power to do a thing is given, every particular power necessary for doing it is included. To put it more succinctly: wherever the end is required, the means are authorized. Had the Convention pursued this last method, every objection now urged against the proposed Constitution would remain fully plausible. In times of crisis, these objections would offer a pretext to those who oppose the essential powers of the United States.

The Remedy for Federal Use of Unauthorized Powers Ultimately Rests with the People

One might reasonably ask what consequence would attend if Congress were exercise powers not warranted the true meaning of this clause.  The answer would be the same as if the Congress should misconstrue or enlarge any other power vested in it, as if a State legislature should violate its constitutional authority, and as if any legislative body were to violate a general power that had been reduced to particulars.  

* * *

The sixth and last class of powers granted to the Federal government consists of the several powers and provisions by which efficacy is given to all the rest. Of these the first is the “power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.” Few parts of the Constitution were assailed with more intemperance than this. Yet not part appears more completely invulnerable upon a fair investigation. Without the substance of this power, the whole Constitution would be a dead letter.  

* * *

  In the first instance, the success of the usurpation will depend on the executive and judicial departments, which are to expound and give effect to legislative acts.  In the last resort a remedy lies with the People, who can annul the acts of the usurpers by the election of more faithful representatives. In truth, this ultimate redress is more effective against unconstitutional acts of the Federal government than would a similar act by a State legislature. Every such act of the Federal government will be an invasion of the rights of the States, whose officials will be ever ready to mark the innovation, sound the alarm to the People, and to exert their local influence in replacing their Federal representatives. By comparison, there is no intermediate body between the People and a State legislature, so constitutional violations are more likely to remain unnoticed and unredressed.  

* * *

In the last resort a remedy lies with the People, who can annul the acts of the usurpers by the election of more faithful representatives. 

* * *

The Supremacy Clause Gives Force to the Constitution’s Provisions 

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Art. VI, cl. 2.  

The Constitution’s adversaries – betrayed by the indiscreet zeal of their opposition – attacked this provision, even though without it the Constitution would be evidently and radically defective. To prove this, one need only suppose for a moment that the Convention had included a provision in favor of the supremacy of the State constitutions.  In the first place, each of those constitutions had invested their State legislatures with absolute sovereignty in all cases not excepted by the Articles of Confederation. Without this new provision, all the authorities contained in the Constitution – so far as they exceeded those enumerated in the Articles of Confederation – would have been annulled, thus reducing the Congress to the same impotent condition as its predecessors. In the second place, the constitutions of some of the States did not even expressly and fully recognize the powers of the Congress under the Articles of Confederation.  In those States, the inclusion of a Federal provision expressly saving of the supremacy of State constitutions would bring into question every power contained in the Constitution. And since State constitutions differ much from each other, it might happen that a treaty or national law of great and equal importance to all the States would interfere with some State constitutions but not others, leaving such treaty or law valid in some States but without effect in others. For the first time in history, the world would have witnessed a system of government founded on an inversion of the fundamental principles of all government: the authority of the whole society everywhere subordinated to the authority of the parts.  The Convention would have created a monster, in which the head was under the direction of its members.

The Oath to Support the Constitution Is Important 

The third (and final) paragraph of article VI provides: “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”  

Some have asked why the Convention thought it necessary to bind by oath State magistrates to support the Federal Constitution, but not to bind the officers of the United States by like oath in favor of the State constitutions. The most obvious and conclusive reason is that members of the Federal government will have no agency in carrying the State constitutions into effect. The members and officers of the State governments, on the contrary, will have an essential agency in giving effect to the Federal Constitution.  

The election of the President and Senate will depend in all cases on the legislatures of the several States. And the election of the House of Representatives will equally depend on State legislatures in the first instance, and probably will forever be conducted by the officers and according to the laws of the States.  

Other provisions for giving efficacy to the Federal powers belong to the executive and judicial departments, but these are reserved for particular examination in later papers.

We have now reviewed in detail all the articles composing the sum or quantity of power delegated by the Constitution to the Federal government, and we are brought to the undeniable conclusion that no part of the power is unnecessary or improper for accomplishing the necessary objects of the union of the United States.  

Madison

Federalist 45-46: Relationships Between the People, the States, and the Federal Government 

Federalist 45: The Federal Government Will Be Less Dangerous to State Governments than Vice-Versa

THAT THE POWERS TRANSFERRED to the Federal government are necessary and proper was shown in Federalist 33 and Federalist 44. Now I turn to a secondary issue: whether the whole mass of those Federal powers will be dangerous to that portion of authority left in the States. Opponents of the Constitution tend to exhaust  themselves in this secondary inquiry, thereby overlooking or confusing the principal goal, which is to ensure the Constitution has invested the Federal government with the minimum degree of power absolutely necessary for it to function successfully.  

I have already shown that the Federal government is essential to the security of the People of America against (1) foreign dangers, (2) contentions and wars among the different States, (3) violent and oppressive factions, which embitter the blessings of liberty, and (4) military establishments, which gradually poison the very fountain of liberty.  

In a word, the Federal government is essential to the happiness of the People of America. It is preposterous object to a Federal government because it may lessen the importance of individual State governments.  

We Fought the Revolution for Peace, Liberty and Safety, Not to Protect State Officers  

Was the precious blood of thousands spilt and the hard-earned substance of millions lavished in the Revolution – not so the People of America should enjoy peace, liberty, and safety – but that State and local governments might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty?

We have heard of the impious doctrine of the Old World, that the people were made for kings, and not kings for the people. Is the same doctrine to be revived in the New World in another shape?  Must the solid happiness of the People be sacrificed to the views of political institutions?  Should politicians presume we will forget that the public good – which is the real welfare of the great body of the People – is the supreme object to be pursued?  

* * *

Was the precious blood of thousands spilt and the hard-earned substance of millions lavished in the Revolution – not so the People of America should enjoy peace, liberty, and safety – but that State and local governments might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty?

* * *

The Public Good and Happiness Must Be the Goals of Any Sound Government

No form of government has any value other than as it is fitted for attainment of the public good. I would have rejected the Constitution and the United States if either had been adverse to the public happiness. If the sovereign powers of the States cannot be reconciled to the happiness of the People, the sovereign powers must be sacrificed. 

The Extent of the Federal Government Will Not Endanger the Unsacrificed Residue of State Sovereignty

I have in the course of these papers touched upon important considerations which discountenance the supposition that the operation of the Federal government will by degrees prove fatal to the State governments. The more I resolve the subject, the more fully I am persuaded that the balance of sovereignty is much more likely to be disturbed by the States rather than by the Federal government.

Historical Examples Demonstrate the Disruptive Power of Subordinate States 

In all the examples of ancient and modern confederacies I have studied, the member states themselves continually demonstrated the strongest tendency to despoil the authority of the general governments, which lacked the capacity to defend themselves against the encroachments. Since the States retain a very extensive portion of active sovereignty under the Constitution, we should not disregard these historical examples.  

 * * *

We have heard of the impious doctrine of the Old World, that the people were made for kings, and not kings for the people.  Is the same doctrine to be revived in the New World in another shape?  Must the solid happiness of the People be sacrificed to the views of political institutions? Should politicians presume we will forget that the public good – which is the real welfare of the great body of the People – is the supreme object to be pursued? 

* * *

The Achaean League and Lycian Confederacy  

In the Achaean league, for instance, the federal head probably had a degree and species of power which gave it a considerable likeness to the government framed by our Constitutional Convention. The Lycian Confederacy bears a still greater analogy to it. Yet history does not inform us that either of these federal leagues ever degenerated – or tended to degenerate – into a single consolidated government, even though external forces pressing the component parts together were much more numerous and powerful than in our case.  On the contrary, we know that the ruin of one of them proceeded from the incapacity of the federal authority to prevent the dissensions – and finally the disunion – of its subordinate governments. 

The Feudal System Failures 

We have seen a similar propensity exemplified in the feudal system. Even with the want of proper sympathy in every instance between the local sovereigns and the people, and in some instances between the general sovereign and the people, the local sovereigns usually prevailed in the rivalry for encroachments.  Had the local sovereigns possessed the affections of the people, the great kingdoms in Europe would today consist of as many independent princes as there were formerly feudatory barons.

State Governments Have Multiple Advantages over the Federal Government 

In the United States, State governments have advantages over the Federal government, whether I compare them in respect to: (1) the immediate dependence of the one on the other, (2) the weight of personal influence which each side will possess, (3) the powers respectively vested in them, (4) the predilection and probable support of the People, and (5) the disposition and faculty of resisting and frustrating the measures of each other.  The State governments will be regarded as constituent and essential parts of the Federal government, while the Federal government will in no way be essential to the operation or organization of the State governments. 

For example, without the intervention of the State legislatures, the President of the United States cannot be elected at all.  State governments must in all cases have a great share in his appointment, and in most cases they will themselves determine it. The Senate will be elected absolutely and exclusively by the State legislatures. Even the House of Representatives, though drawn immediately from the People, will be chosen very much under the influence of that class of individuals whose influence over the People obtains for themselves an election into the State legislatures.  Thus, each of the principal branches of the Federal government will owe its existence more or less to the favor of the State governments. It follows that each branch of Federal government will feel a dependence on State governments, and that dependence will likely beget a disposition that is more obsequious than overbearing towards the State governments.  

* * *

Due to the number and proximity of State government employees, there will be more personal influence on the side of the States than on the side of Federal government.

* * *

On the other side, the component parts of the State governments will in no instance be indebted for their appointment to the direct agency of the Federal government, and very little, if at all, to the local influence of its members.  The number of individuals employed under the Constitution of the United States will be much smaller than the number employed under the particular States.

Personal Influence with the People Favors State Officials 

Due to the number and proximity of State government employees, there will be more personal influence on the side of the States than on the side of Federal government.  The members of the legislative, executive, and judicial departments of the States, together with the State justices of peace, officers of militia, ministerial officers of justice, as well as all the county, corporation, and town officers, will intermix with and have particular acquaintance with every class and circle of persons. They must therefore exceed – beyond all proportion, both in number and influence – those of every description who will be employed in the administration of the Federal system. If we compare the number of members of the legislative, executive and judicial departments of the States with the members of the corresponding departments of the United States, and also compare the number of State militia officers with the number of Federal military officers established now and in futurity, the advantage of the States is decisive.

States Will Have More Revenue Collectors  

If the Federal government is to have collectors of revenue, the State governments will have theirs also.  Since the Federal collectors of revenue will be principally on the seacoast, and not very numerous, and State collectors of revenue will be spread over the face of the country and much more numerous, the advantage lies with the States.  

It is true the Federal government will possess, and may exercise, the power of collecting internal as well as external taxes throughout the States. Resort to this power is improbable except for supplemental purposes of revenue. An option will then be given to the States to supply their quotas by previous collections of their own. The power of taxation will, for the most part, be connected with the power to regulate foreign commerce.  The actual collection of revenue pursuant to the immediate authority of the United States will generally be made by officers appointed by the several States.   

* * *

The powers reserved to the States will extend to all the objects which – in the ordinary course of affairs – concern the lives, liberties, and properties of the People, and the internal order, improvement, and prosperity of each State.

* * *

State Officers Will Be Clothed with Federal Authority 

Just as the exercise of Federal authority by State officers appears in the organization and exercise of the judicial power – where the officers of the States will be clothed with the correspondent authority of the United States – the influence of the whole number of collectors of internal revenue appointed by the Federal government would not compare with that exercised by the multitude of corresponding State officers. For every Federal collector allotted to a district, there would be at least 30 officers of different descriptions – many of them persons of character and weight – whose influence would lie on the side of the State. The powers delegated by the Constitution to the Federal government are few and defined.  Those which are to remain in the State governments are numerous and indefinite. The Federal power will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce.  

The Powers Reserved to the States Are Substantial

The powers reserved to the States will extend to all the objects which – in the ordinary course of affairs – concern the lives, liberties, and properties of the People, and the internal order, improvement, and prosperity of each State.  The operations of the Federal government will be most extensive and important in times of war and danger, and those of State governments in times of peace and security.  Since times of war and danger will probably bear a small proportion to times of peace and security, the State governments will here enjoy another advantage over the Federal government. Assuming adequate Federal powers are rendered to the national defense, then less frequently will appear those scenes of danger which might favor the ascendancy of the Federal government over the governments of the particular States.     

* * *

The changes the new Constitution proposes consist much less in the addition of new powers to the Union than in the invigoration of its original powers.

* * *

The Constitution Reinvigorates the Powers the People Originally Granted

The changes the new Constitution proposes consist much less in the addition of new powers to the Union than in the invigoration of its original powers.  While the regulation of commerce is a new power, it seems to be an addition few oppose, and from which no apprehensions are entertained.  The powers relating to war and peace, armies and fleets, and treaties and finance were all vested in the existing Congress by the former Articles of Confederation.  The proposed changes do not enlarge these powers; they merely substitute a more effectual mode of administering them.    

Direct Taxation of Individuals Is Authorized

The changes relating to taxation are the most important, yet the Congress under our former government had complete authority to require of the States indefinite supplies of money for the common defense and general welfare, and so too will future Congresses have to same power over individuals.  Had the States complied punctually with the Articles of Confederation – or their obligations enforced through peaceable collection from individuals – it is highly doubtful State governments would have thereby lost their constitutional powers and gradually undergone an entire consolidation, as opponents assert will happen to the Federal government. To make such an argument is to say the existence of State governments is incompatible with any system whatever that accomplishes the essential purposes of the United States.

Madison

Federalist 46: The Ultimate Authority Rests with the People, Not Federal or State Governments

RESUMING THE SUBJECT OF FEDERALIST 45, I now inquire whether  the predilection and support of the People will lie with the Federal government or with State governments. Although appointed differently, both governments are substantially dependent on the great body of the citizens of the United States. In fact, the adversaries of the Constitution omitted the People altogether in their reasonings on this topic, thereby ignoring that ultimate authority resides in the People alone.  The Federal and State governments are not mutual rivals and enemies, as some contended.  The Federal and State governments are but different agents and trustees of the People, constituted with different powers, and designed for different purposes.  Thus, the authorities of the Federal and State governments do not depend merely on the comparative ambition or location of each, or whether one will enlarge its sphere of jurisdiction at the expense of the other. Truth and decency require the event in every case will depend on the sentiments and sanction of their common constituents. 

The People Will Naturally Favor State Governments 

The first and most natural attachment of the People will be to the governments of their respective States.  A greater number of individuals will rise into the administration of State governments – and from these a greater number of offices and emoluments will flow – and by the superintending care of these individuals the domestic and personal interests of the People of each State will be provided for and regulated.  The People will be more familiar and minutely conversant with the affairs of State officials, with whom they will share greater ties of personal acquaintance, friendship, family and party attachment, than with Federal officials.  Therefore the popular bias may well be expected most strongly to incline the People to favor State officials.

Experience speaks the same language. During the Revolutionary War, the Federal administration had as great an activity and importance as it can have in any future circumstance whatever. It was engaged in a course of measures whose object was the protection of everything that was dear, and the acquisition of everything that could be desirable to the People at large.  Nevertheless, after the transient enthusiasm for the early Congresses was over, it was invariably found the attention and attachments of the People turned anew to their own State governments.  The Federal council was at no time the idol of popular favor.  In practice, those who sought to build their political futures on the prepossessions of their fellow-citizens usually opposed enlargement of the Federal sphere. 

* * *

The Federal and State governments are not mutual rivals and enemies, as some contended.  The Federal and State governments are but different agents and trustees of the People, constituted with different powers, and designed for different purposes.

* * *

If the Federal Government Becomes More Popular than State Governments, It Would Be Due to a Better Administration 

If in the future the People should overcome all their antecedent propensities and become more partial to the Federal government than to their State governments, the change could only have resulted from the manifest and irresistible proofs of a better Federal administration. Should that occur, the People ought not be precluded from giving most of their confidence where they discover it is most due.  But even in that event, the State governments would have little to apprehend, due to the limited sphere in which the Federal power can be administered advantageously.

State Governments May More Easily Frustrate the Laws of the Federal Government than vice versa

The remaining points of comparison between the Federal and State governments are the disposition and faculty they respectively possess to resist and frustrate the measures of each other.  I have already proven the members of the Federal government will be more dependent on the members of the State governments, than vice versa.  Furthermore, the prepossessions of the People – on whom both the Federal and State governments depend – will be more on the side of the State governments. 

* * *

If in the future the People should overcome all their antecedent propensities and become more partial to the Federal government than to their State governments, the change could only have resulted from the manifest and irresistible proofs of a better Federal administration.

* * *

The prepossessions the members themselves will carry into the Federal government also will be more favorable to the States, while rarely will members of State governments carry into the public councils a bias in favor of the Federal government.  Further, a spirit in favor of the States among members of Congress will infallibly exceed a spirit in favor of the Federal government among the legislatures of the States.  So far as the disposition of each towards the other may be influenced by these causes, the State governments must clearly have the advantage.  

Everyone knows most of the errors committed by the members of State legislatures proceed from the disposition of the members to sacrifice the comprehensive and permanent interest of their State to the particular and separate views of the counties or districts in which they reside. And if such members cannot sufficiently enlarge their policy to embrace the collective welfare of their particular State, how will they make the aggregate prosperity of the United States and the dignity and respectability of its government the objects of their affections and consultations?  For the same reason members of State legislatures cannot attach themselves sufficiently to State and Federal objects, so too will members of Congress attach themselves too much to local objects. The States will be to the Federal members what counties and towns are to the State members.  Measures will too often be decided according to their probable effect on the prejudices, interests, and pursuits of the governments and people of the individual States, rather than on the national prosperity and happiness. 

What is the spirit that has in general characterized the proceedings of Congress? Their journals – as well as the candid acknowledgments of those who have been seated there – inform us the members have but too frequently displayed the character of partisans of their respective States rather than impartial guardians of a common interest.  For every occasion when improper sacrifices were made of local considerations to the aggrandizement of the Federal government, the great interests of the nation have suffered a hundred losses from an undue attention to the local prejudices, interests, and views of the particular States.  These reflections are not intended to insinuate the new Federal government will not embrace a more enlarged plan of policy than the existing government has pursued, or that its views will be as confined as those of the State legislatures. I imply only that the Federal government will partake sufficiently of the spirit of both State and Federal interests, and be disinclined to invade the rights of the individual States, or the prerogatives of their governments. In short, the motives on the part of the State governments to augment their prerogatives by misappropriating Federal powers will not be overruled by reciprocal predispositions in the Federal members.  

Even if the Federal government may feel an equal disposition with the State governments to extend its power beyond the due limits, the State governments would still have the advantage in the means of defeating such encroachments. For instance, if a generally popular State action became effective immediately – and should not too grossly violate the oaths of the State officers – it would be enforced on the spot according to State rules, even though the act was unfriendly to the national government.  The opposition of the Federal government – or the interposition of Federal officers – would but inflame the zeal of all parties on the side of the State. Federal opposition could neither prevent nor repair the evil, except by the use of means which must always be resorted to with reluctance and difficulty.

On the one hand, should an unwarrantable measure of the Federal government be unpopular in particular States (which would seldom fail to be the case) – or even a warrantable measure of the Federal government be so unpopular (which may sometimes be the case), the means of opposition to it are powerful and at hand: (1) the disquietude of the People and their repugnance and possible refusal to cooperate with the officers of the United States, (2) the frowns of the executive magistracy of the State, and (3) the embarrassments created by legislative devices which would often be added on such occasions.  In a large State – particularly where the sentiments of several adjoining States happened to be in unison – these interests would present very serious obstructions the Federal government would hardly be willing to encounter.  

* * *

Even if the Federal government may feel an equal disposition with the State governments to extend its power beyond the due limits, the State governments would still have the advantage in the means of defeating such encroachments.

* * *

On the other hand, ambitious encroachments of the Federal government on the authority of State governments would be signals of general alarm in all the States.  Every government would espouse the common cause. A correspondence would be opened, plans of resistance concerted, and one spirit would animate and conduct the whole. The same combinations that were produced previously by the dread of a foreign yoke would result from an apprehension of a Federal yoke. Unless the projected Federal innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other.  

What degree of madness could ever drive the Federal government to such an extremity?  In the contest with Great Britain, one part of the empire was employed against the other.  The more numerous part invaded the rights of the less numerous part.  The attempt was unjust and unwise, but it was not in speculation absolutely chimerical.  What would be the contest in the case we are supposing?  Who would be the parties?  A few Federal representatives of the People would be opposed to the People themselves.  More precisely, one set of Federal representatives would be contending against thirteen sets of state representatives, with the whole body of their common constituents on the side of the State governments.

The Right to Bear Arms and Maintain State and Local Governments Are the Best Defenses to Federal Tyranny   

The only refuge left for those who prophesy the downfall of State governments is the visionary supposition that the Federal government may accumulate a military force for its projects of ambition.  These papers will have been useless indeed if it is now necessary now to disprove the reality of this danger.  To imagine the People and the States would elect a sufficiently uninterrupted succession of individuals ready to betray both; that the traitors should uniformly and systematically pursue some fixed plan for the extension of the military establishment throughout this period; that the State governments and the People of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to everyone more like the incoherent dreams of a delirious jealousy or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism.

Extravagant as the supposition is, however, let it be made.  If we assume a regular army fully equal to the resources of the country is formed entirely at the devotion of the Federal government, then State governments – with the People on their side – would be able to repel the danger. According to the best computation, the highest number to which a standing army can be carried in any country does not exceed one hundredth part of the whole number of souls, or one quarter of the number able to bear arms. In the United States, this proportion would not yield an army of more than 25 or 30 thousand men.  To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It is doubtful whether a militia thus circumstanced could ever be conquered by such a proportion of regular Federal troops.  Those who are best acquainted with the last successful resistance of this country against the British arms will be most inclined to deny the possibility of it.  

First, unlike the People of almost every other nation, Americans have the advantage of being armed. Further, the existence of State and local governments to which the People are attached – and by which the militia officers are appointed – forms a nearly insurmountable barrier against the enterprises of Federal ambition. Consider the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear. Their governments are afraid to trust their inhabitants with arms. But even armed, it is uncertain whether this aid alone would allow them to shake off their yokes. But if those inhabitants possessed the additional advantages of local governments chosen by them – governments which could collect the national will, direct the national force, and appoint militia officers attached both to them and to the militia – the throne of every tyranny in Europe would be speedily overturned notwithstanding the legions surrounding it.  

The free and gallant citizens of America would be no less able would than these debased subjects of arbitrary power to defend their rights, particularly since our citizens already will be in actual possession of those rights.  Let us no longer insult the People of America with the supposition that they will ever reduce themselves to the use of force as a result of their blind and tame submission to a long train of insidious measures which must precede and produce it.  

Either the mode in which the Federal government is constructed will render it sufficiently dependent on the People, or it will not.  If dependent on the People, it will be restrained thereby from forming schemes obnoxious to their constituents.  If independent of the People, the Federal government will not possess their confidence, and its schemes of usurpation will be easily defeated by the State governments, who will be supported by the People.

* * *

Either the mode in which the Federal government is constructed will render it sufficiently dependent on the People, or it will not. If dependent on the People, it will be restrained thereby from forming schemes obnoxious to their constituents. If independent of the People, the Federal government will not possess their confidence, and its schemes of usurpation will be easily defeated by the State governments, who will be supported by the People.

* * * 

The powers to be lodged in the Federal government are as little formidable to those reserved to the individual States, as they are indispensably necessary to accomplish the purposes of the United States.  All those alarms sounded about of the eventual annihilation of State governments must be ascribed to the chimerical fears of their authors. 

Madison

Federalist 47-51: Separation of Powers and Constitutional Amendments

Federalist 47: "Separation of Powers" Defined and Examined 

THE ACCUMULATION of the legislative, executive, and judicial powers in the same hands – whether of one, a few, or many, and whether hereditary, self-appointed, or elective – may justly be pronounced the very definition  of tyranny.  

No political truth is certainly of greater intrinsic value – or is stamped with the authority of more enlightened patrons of liberty – than the doctrine of separation of powers. This political maxim holds that the legislative, executive, and judicial departments ought to be separate and distinct. 

* * *

Even the slightest view of the British Constitution discloses the legislative, executive, and judicial departments are by no means totally separate and distinct from each other. 

* * *

Separation of Powers as Described by Montesquieu

This invaluable precept in the science of politics was principally recommended to the attention of mankind by the Montesquieu, who is celebrated as the oracle on the subject.  Just as the didactic writers on epic poetry considered the immortal bard Homer as the perfect model from which the principles and rules of the epic art were to be drawn – and by which all similar works were to be judged – so did Montesquieu view the Constitution of England as the standard – or to use his own expression – “the mirror of political liberty.” From the several characteristic principles of that particular system, he deduced several elementary truths, of which the separation of powers is one.  To be sure not to mistake his meaning, I refer to the British Constitution, the  source from which the maxim was drawn.  

The Constitution of Great Britain Intermingles Powers

Even the slightest view of the British Constitution discloses the legislative, executive, and judicial departments are by no means totally separate and distinct from each other.  The king – who is the sole executive magistrate – forms an integral part of the legislative authority. The king alone has the prerogative of making treaties with foreign sovereigns, which when made have the force of legislative acts, with certain limitations. All the members of the judiciary are appointed by this magistrate, who can remove them on the address of the two Houses of Parliament, and can form – when the king pleases to consult them –  one of the magistrate’s constitutional councils.  In the legislative department, one of its branches is the sole depositary of judicial power in cases of impeachment, and is invested with the supreme appellate jurisdiction in all other cases.  The judges, again, are so far connected with the legislative department as often to attend and participate in its deliberations, though not admitted to a legislative vote.  

Separation of Powers Requires Only that One Department Does Not Wholly Control Another, Not that Departments Be Wholly Separate 

When Montesquieu wrote there can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates, and that the power of judging needs be separated from the legislative and executive powers, he did not mean that the three departments ought to have no partial agency in – or no control over – the acts of each other. As shown by his words and illustrated by the example in his eye, his meaning amounts to no more than this:  Where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted.

In the case of Great Britain, a true violation of separation of powers would exist if the king (as the sole executive magistrate) also possessed the complete legislative power, or the supreme administration of justice. A violation also would occur if the entire legislative body possessed either the supreme judicial authority or the supreme executive authority.  These, however, are not among the vices of that constitution.  

The king (in whom the whole executive power resides) cannot of himself make a law, although he can put a negative on every law the legislature passes. The king also cannot administer justice in person, although he has the power of appointment of those who do administer it. The judges can exercise no executive prerogative, although though they are shoots from the executive stock.  Nor do judges perform any legislative function, although they may offer advice to the legislative councils.  The entire legislature can perform no judicial act, although by the joint act of two of its branches a judge may be removed from office, and one of its branches (the House of Lords) is possessed of the judicial power of last resort, as with our Supreme Court. The entire legislature, again, can exercise no executive prerogative, although one of its branches constitutes the supreme executive magistracy, and another, on the impeachment of a third, can try and condemn all the subordinate officers in the executive department. 

The reasons on which Montesquieu grounds his maxim are a further demonstration of his meaning.  “When the legislative and executive powers are united in the same person or body,” says he, “there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner.” Again:  “Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator.  Were it joined to the executive power, the judge might behave with all the violence of an oppressor.”  These brief passages (to which I have added emphasis) sufficiently establish the meaning which we have put on this celebrated maxim of this celebrated author.

Separation of Powers Applied to the Constitution

Some opposed to the Constitution argued no regard was paid to this essential precaution in favor of liberty in the structure of the Federal government, since the several departments of power are so distributed and blended as to destroy all symmetry and beauty of form, and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of other parts.  

Were the federal Constitution really chargeable with such an accumulation of power – or with a mixture of powers having a dangerous tendency toward such an accumulation – no further arguments would be necessary to inspire a universal reprobation of the system.  The charge is unsupported, though, and the maxim on which it relies has been totally misconceived and misapplied.  

Separation of Powers in State Constitutions

Furthermore, if we look into the constitutions of the several States, I find there is not a single instance in which the several departments of power have been kept absolutely separate and distinct.  

New Hampshire

New Hampshire, whose constitution was the last formed, seems to have been fully aware of the impossibility and inexpediency of avoiding any mixture whatever of these departments, and has qualified the doctrine by declaring, with my emphasis, “that the legislative, executive, and judiciary powers ought to be kept as separate from, and independent of, each other as the nature of a free government will admit; or as is consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of unity and amity.” 

Her constitution accordingly mixes these departments in several respects. The senate – a branch of the legislative department – is also a judicial tribunal for the trial of impeachments.  The president – who is the head of the executive department – is the presiding member also of the senate, and has an equal vote in all cases as well as a casting vote in the case of a tie.  The executive head is elected every year by the legislative department, and his council is every year chosen by and from the members of the same department.  Several of the officers of the State are also appointed by the legislature. And the members of the judicial department are appointed by the executive department.  

Massachusetts 

The constitution of Massachusetts has observed a sufficient, though less pointed caution, in expressing this fundamental article of liberty.  It declares “that the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them.”  This declaration corresponds precisely with the doctrine of Montesquieu, and is not violated by the plan of the Convention on any single point. The Massachusetts constitution goes no farther than to prohibit any one of the entire departments from exercising the powers of another department. The same constitution admits  a partial mixture of powers.  The executive magistrate has a qualified negative on the legislative body, and the Senate, which is a part of the legislature, is a court of impeachment for members both of the executive department and the judiciary.  The members of the judicial department are appointed by the executive department, and removable by the same authority on the address of the two legislative branches. Lastly, a number of governmental officers are annually appointed by the legislative department.  Since the power to appoint to offices – particularly executive offices – is in its nature an executive function, the compilers of the Massachusetts constitution have in this respect violated the rule established by themselves.  

* * *

Furthermore, if we look into the constitutions of the several States, I find there is not a single instance in which the several departments of power have been kept absolutely separate and distinct. 

* * *

Rhode Island and Connecticut

I pass over the constitutions of Rhode Island and Connecticut because they were formed prior to the Revolution, before the principle under examination had even become an object of political attention.  

New York

The constitution of New York contains no declaration on this subject, but it appears very clearly to have been framed with an eye to the danger of improperly blending the different departments. Nevertheless, it gives the executive magistrate a partial control over the legislative department; moreover, it gives a like control to the judicial department, and even blends the executive and judicial departments in the exercise of this control. In its council of appointment, members of the legislative are associated with the executive authority in the appointment of both executive and judicial officers, and its court for the trial of impeachments and correction of errors consists of one branch of the legislature and the principal members of the judiciary.  

New Jersey

The constitution of New Jersey has blended the different powers of government more than any of the preceding. The governor, who is the executive magistrate, is appointed by the legislature.  He is chancellor and surrogate of the State, a member of the supreme court of appeals, and president (with a deciding vote) of one of the legislative branches. The same legislative branch acts again as executive council of the governor, and with him constitutes the court of appeals. The members of the judicial department are appointed by the legislative department and removable by one branch of it, on the impeachment of the other.Pennsylvania

According to the constitution of Pennsylvania, the president – who is the head of the executive department – is annually elected by a vote in which the legislative department predominates. In conjunction with an executive council, the president appoints the members of the judiciary, and forms a court of impeachment for trial of all judicial and executive officers. The judges of the supreme court and justices of the peace seem also to be removable by the legislature, and the executive power of pardoning in certain cases is to be referred to the same department. The members of the executive council are made ex officio justices of peace throughout the State.

Delaware 

In Delaware, the chief executive magistrate is annually elected by the legislative department.  The speakers of the two legislative branches are vice-presidents in the executive department. The supreme court of appeals is composed of the executive chief and six others, with three appointed by each of the two legislative branches. The executive is joined with the legislative department in the appointment of the other judges.  The members of the executive council and one branch of the legislature are ex officio justices of the peace.  (Indeed, throughout the States it appears members of the legislature may at the same time be justices of the peace.)  The principal officers of the executive department are appointed by the legislature, and one of its branches forms a court of impeachments. All officers may be removed on address of the legislature.

* * *

Maryland has adopted the maxim in the most unqualified terms, declaring that the legislative, executive, and judicial powers of government ought to be forever separate and distinct from each other.  Notwithstanding this declaration, her constitution gives to the legislative department he power to appoint the executive magistrate, and the executive department the power to appoint members of the judiciary.

* * *

Maryland  

Maryland has adopted the maxim in the most unqualified terms, declaring that the legislative, executive, and judicial powers of government ought to be forever separate and distinct from each other.  Notwithstanding this declaration, her constitution gives to the legislative department the power to appoint the executive magistrate, and the executive department the power to appoint members of the judiciary.  

Virginia

The language of Virginia is still more pointed on this subject. Her constitution declares “the legislative, executive, and judiciary departments shall be separate and distinct; so that neither exercise the powers properly belonging to the other; nor shall any person exercise the powers of more than one of them at the same time, except that the justices of county courts shall be eligible to either House of Assembly.”  Besides this express exception with respect to the members of the county courts, we also find the chief magistrate and executive council are appointed by the legislature, which also fills all the offices of the executive and judicial, and exercises the executive prerogative of pardon. 

North Carolina

The constitution of North Carolina declares “the legislative, executive, and supreme judicial powers of government ought to be forever separate and distinct from each other.”  Yet in that State the legislative department appoints not only the chief executive chief, but all of the executive offices, as well as those of the judiciary.  

South Carolina

Under South Carolina’s constitution, the legislative department selects the executive magistrate, and appoints officers in the executive department all the way down to captains in the State army and navy. The legislature also appoints members of the judicial department, including even justices of the peace and sheriffs.  

Georgia

The constitution of Georgia declares “that the legislative, executive, and judiciary departments shall be separate and distinct, so that neither exercise the powers properly belonging to the other.” Yet we find the executive department is filled by appointments of the legislature, which also exercises the executive prerogative of pardon. Even justices of the peace are appointed by the legislature.  

While Many State Constitutions Declare in Favor of Separation of Powers, in Practice Powers Are Often Mixed 

In citing these cases in which the legislative, executive, and judicial departments have not been kept totally separate and distinct, I should not be regarded as an advocate for the particular organizations of the several State governments. Although the State constitutions cite many excellent principles, they seemed to have been framed by inexperienced hands moving hastily.  In some instances the fundamental principle under consideration has been violated by too great a mixture – even an actual consolidation – of the different powers.  And in no instance has a competent provision been made for maintaining in practice the separation delineated on paper.  These facts disprove the charge that the proposed Constitution violates the sacred maxim of free government based on the separation of powers. The charge is warranted neither by the real meaning annexed to that maxim by its author, nor by the sense in which it has hitherto been understood in America.  This interesting subject will be resumed in Federalist 48. 

Madison

Federalist 48: In a Republic, the Legislative Branch Is the Most Likely to Usurp Power

I EXAMINED THE THEORETICAL DIFFERENCES between the legislative, executive and judicial classes of power in Federalist 47, and showed that a wise adherence to the separation of powers doctrine actually does not require the respective departments be wholly unconnected with each other.  In fact, the maintenance of a free government requires the separate powers be so far connected and blended as to give to each a constitutional control over the others.  (See Federalist 51 and following.)  

The Constitutional Convention unanimously concluded that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. Nor should one possess direct or indirect influence to overrule the others in the administration of their respective powers. But how were we to provide some practical security for each against the invasion of the others? The question posed a most difficult problem to solve.  

Power Usually Seeks More Power  

Power, by its nature, tends to encroach beyond its assigned limits, and thus it must be restrained. Will it be sufficient merely to mark precisely the boundaries of these departments in the Constitution, and then to trust the strength of these parchment barriers against this encroaching spirit of power? 

The compilers of most of the State constitutions chose this method, but experience assures us their solution was greatly overrated, and that a more adequate defense is indispensably necessary to protect the more feeble against the more powerful members of the government.  

To be sure, the founders of our State governments never for a moment turned their eyes from the danger to liberty created by the overgrown and all-grasping prerogative of a hereditary magistrate, supported and fortified by a hereditary branch of the legislature. But in their zeal against executive usurpations, the State founders never recalled the danger from legislative usurpations. Assembling all power in the same hands always leads to the same tyranny, whether perpetrated by the right of birth, the legislature, the executive, or the judiciary.

* * *

Power, by its nature, tends to encroach beyond its assigned limits, and thus it must be restrained. Will it be sufficient merely to mark precisely the boundaries of these departments in the Constitution, and then to trust the strength of these parchment barriers against this encroaching spirit of power?

* * *

Executive Tyranny Is More Likely in Monarchies and Democracies 

In a government where numerous and extensive prerogatives are placed in the hands of a hereditary monarch, the executive department is very justly regarded as the source of danger, and watched with all the jealousy a zeal for liberty ought to inspire.  

Likewise in a democracy, tyranny may well be apprehended – on some favorable emergency – to start up in the executive quarter. The ambitious intrigues of executive magistrates can interfere with a multitude of individuals exercising legislative functions because they lack capacity for regular deliberation and concerted measures. 

The Main Engine of Tyranny in a Republic Is the Legislative Authority 

In a republic, the People ought to indulge all their jealousy and exhaust all their precautions against the enterprising ambitions of the legislative department.  The legislative power is exercised by an assembly, whose members can feel mutual intrepid confidence in their own strength, usually inspired by a supposed influence over the People.  

A representative assembly is generally sufficiently numerous to feel all the passions that can actuate a multitude, yet not so numerous as to be incapable of rationally pursuing the objects of its passions.  

The Legislative Vortex 

A representative legislature may everywhere extend its sphere of activity and thereby draw all power into its impetuous vortex.  This is so because its superiority is derived from many sources.  The legislature’s constitutional powers are both more extensive and less susceptible of precise limits than those of the executive or judiciary. Therefore, it can more easily mask – under complicated and indirect measures – the encroachments it makes on the coordinate departments.   Nor is this all: the legislative department alone has access to the pockets of the People.  In addition, in every State constitution, the legislative power has a prevailing influence – and in some a full discretion – over the pecuniary rewards of those who fill the other departments.  The executive and judiciary are thus dependent on the legislature, facilitating its encroachments.  

On the other side, executive power is restrained within a narrower compass. By its nature executive power is simpler than legislative power, and its duration is a further limit. Judicial power is limited by landmarks even more easily visible.  Projects of usurpation by either of these departments would immediately betray and defeat themselves. 

* * *

A representative legislature may everywhere extend its sphere of activity and thereby draw all power into its impetuous vortex. This is so because its superiority is derived from many sources. 

* * *

Experience verifies the truth of my observations.  Were it necessary to advance particular proofs, they might be multiplied without end.  I would certainly find a witness in every citizen who has taken note of the course of our public administrations.  I might collect vouchers in abundance from the records and archives of every State in the union.  But a more concise and equally satisfactory evidence exists in the example of two States, attested to by unassailable authorities.  The first example is from Virginia, whose constitution expressly declares the three great departments ought not to be intermixed.  The second example, from Pennsylvania, highlights that legislative tyranny knows no bounds.   

Virginia’s Example of Legislative Tyranny Explained by Jefferson 

I consider Virginia first because the report is from the pen of Jefferson, who was the Governor of that great Commonwealth, giving him a unique perspective into its legislative maneuvers.  To convey fully the ideas his experience impressed upon him, I must quote at length a passage from his very interesting Notes on the State of Virginia, which explain fully the example and include my italics: 

“All the powers of a government – legislative, executive, and judicial – concentrated the same hands is precisely the definition of despotic government.  That these powers will be exercised by a plurality of hands rather than a single hand is no alleviation.  Several hundred despots would surely be as oppressive as one.  Let those who doubt it turn their eyes on the republic of Venice.  

“It little avails us that our despots are chosen by ourselves, for we did not fight for a government of elective despotism.  (Emphasis added.)  We fought for a government founded on free principles, with its powers so divided and balanced among several bodies of magistracy that no one could transcend their legal limits without being effectually checked and restrained by the others.

“For this reason, the convention which founded the government for Virginia declared the legislative, executive, and judicial departments should be separate and distinct, so that no person could exercise the powers of more than one of them at the same time.  But no barrier was provided between these several powers.  (Rmphasis added,)  The judiciary and executive were left dependent on the legislature for their subsistence in office, and in some cases for their continuance in it. If the legislature were to assume executive and judicial powers, no opposition would likely be made – nor if made, be effectual – because their proceedings could be put into the form of Acts of the Assembly, rendering them obligatory on the other branches.  Accordingly, the legislative body has in many instances decided rights in controversies which should have been left to a judicial controversy, and habitually directed the executive during the whole time of their session.”  (Emphasis added.)  

Governor Jefferson’s observations confirm our own regarding the inefficacy of written admonitions alone to counterbalance the power of faction. 

Pennsylvania’s Legislative Tyranny 

The second proof of the danger of legislative despotism comes from Pennsylvania, and is recorded by its Council of Censors, which was created by their constitution. It was assembled in the years 1783 and 1784, and entrusted “to inquire whether the constitution had been preserved inviolate in every part; and whether the legislative and executive branches of government had performed their duty as guardians of the People, or assumed to themselves, or exercised, other or greater powers than they are entitled to by the constitution.” 

The council compared the legislative and executive proceedings with the constitutional powers of these departments, and concluded the constitution had been flagrantly violated by the legislature.  

For instance, the State constitution’s chief precaution against improper acts of legislature was a requirement that all bills of a public nature be previously printed for the consideration of the People, yet without any apparent necessity the legislature passed many laws without printing them beforehand. Powers also were assumed which had not been delegated by the constitution, and the constitutional right to trial by jury violated.  Executive powers were usurped.  Judicial salaries – which their constitution expressly required to be fixed – were occasionally varied; and cases belonging to the judicial department frequently were drawn within legislative cognizance and determination.  While some of these actions may be imputable to peculiar circumstances connected with the Revolutionary War, most were the spontaneous outgrowths of an ill-constituted government.  

Tyranny Hides More Easily under Many Hands 

It also appears that Pennsylvania’s executive department was not innocent of frequent breaches of their constitution (although most were either produced by the necessities of the War or upon the recommendations of the Congress or the commander-in-chief).  In most of the other instances, the constitutional violations conformed to the declared or known sentiments of the legislative department.  It should be noted Pennsylvania’s executive department differs from those of other States because it is composed a number of members, rather than one. In this respect, it has more affinity to a legislative assembly or an executive council.  Being at once exempt from the restraint of an individual responsibility for the acts of the body – and deriving confidence from mutual example and joint influence – unauthorized measures are more freely hazarded than where the executive department is administered by a single hand, or by a few hands.

The People Cannot Solely Rely on Written Prohibitions to Restrain Tyranny   

From these observations I must reaffirm that mere the demarcation on parchment of the constitutional limits of the several departments is insufficient guard against the encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.

Madison

Federalist 49: A Convention of States Is Far More Likely to Exacerbate Constitutional Errors than Correct Them 

Jefferson’s Proposal to Rectify Constitutional Errors and Abuses by Appealing to the People Is Brilliant in Theory, but Defective in Practice 

Jefferson’s Notes on the State of Virginia appends the draft he prepared in 1783 for a convention to establish a constitution for that Commonwealth. Like everything from the same pen, the plan marks a turn of thinking that is at once original, comprehensive, and accurate.  It is even more worthy of attention as it displays a fervent attachment to representative government and an equally enlightened view of the dangerous propensities against which it ought to be guarded.

His ultimate palladium to the weaker departments of power against the invasions of the stronger is this:  “Whenever any two of the three branches of government shall concur in opinion, each by the voices of two thirds of their whole number, that a convention is necessary for altering the constitution, or correcting breaches of it, a convention shall be called for the purpose.”

Under the representative theory of government, he reasons, the People are the only legitimate source of power, and the several branches of government derive and hold their power from the constitutional charter approved by them. Since the several departments are perfectly coordinate by the terms of their common commission, none of them can pretend to an exclusive or superior right of settling the boundaries between their respective powers. Returning to the original authority of the People is thus necessary not only to enlarge, diminish, or remodel the powers of the government, but also when any one of the departments commits encroachments on the chartered authorities of the others.  How else are the encroachments of the stronger to be prevented – or the wrongs of the weaker to be redressed – without an appeal to the People themselves – the original grantors of the commissions – who alone can declare its true meaning, and enforce its observance? 

There is great force in this reasoning.  A constitutional road to the decision of the People ought to be marked out and kept open for use on certain great and extraordinary occasions.  But there are fatal objections against returning to the People in all cases in order to keep the several departments of power within their constitutional limits. 

* * *

The reason of man – like man himself – is timid and cautious when left alone.  The strength of each man’s opinion – and its practical influence on his conduct – depends on how many he supposes entertain the same opinion. When the examples which fortify an opinion are ancient as well as numerous, their effects are even greater. 

* * *

Jefferson’s Plan Would Allow Two Departments to Conspire Successfully Against the Third 

In the first place, the provision will not apply where two of the departments combine against the third. The legislative authority possesses many means of operating on the motives of the other departments.  (See Federalist 48.)  Should it be able to gain the interest of only one of the other two – or even one third of its members – the remaining department could not utilize this remedial provision. 

Any Appeal to the People Implies a Constitutional Defect, and Frequent Appeals Will Undermine Public Faith in and Support for the Federal Government 

The reason of man – like man himself – is timid and cautious when left alone.  The strength of each man’s opinion – and its practical influence on his conduct – depends on how many he supposes entertain the same opinion. When the examples which fortify an opinion are ancient as well as numerous, their effects are even greater. 

All governments ultimately depend upon opinion. Every appeal to the People would imply some defect in the Federal government, and frequent appeals would greatly deprive it of that veneration which time bestows on everything, and without which the wisest and freest governments would not possess the requisite stability. 

In a nation of philosophers, we could disregard this consideration. A nation inculcated with a reverence for the law would be guided by the voice of an enlightened reason. But a nation of philosophers is as unlikely as Plato’s philosophical race of kings. In all other nations, even the most rational  government finds it advantageous to have the prejudices of the community on its side. 

Frequent Referrals to the People Would Stir Passions, Embolden Factions, and Threaten Public Tranquility 

A still more serious objection against frequently referring constitutional questions to the whole society is the danger to public tranquility arising from public passions too strongly stirred.

The Constitution for the United States – like the several State constitutions – was created in circumstances which repressed those passions most unfriendly to order and concord.  A universal resentment and indignation against the old governments produced a universal ardor for new and opposite forms. An enthusiastic confidence of the People in their patriotic leaders stifled the diversity of opinions ordinarily expressed on great national questions.   The spirit of party was unconnected to the changes to be made and the abuses to be reformed, and thus did not mingle its leaven in the preparation. The virtue and intelligence of the People of America triumphed. 

No equivalent security against these dangers is likely to exist in future situations where revisions to this ingenious agreement are proposed.

 * * *

A nation inculcated with a reverence for the law would be guided by the voice of an enlightened reason. But a nation of philosophers is as unlikely as Plato’s philosophical race of kings.  In all other nations, even the most rational government finds it advantageous to have the prejudices of the community on its side. 

* * *

Rather than Hindering a Majority Faction, Referrals to the People Would Probably Aid It 

The greatest objection to referring any constitutional question to the People is that it would fail to restore the constitutional equilibrium of the government. 

In representative governments, the legislature – in our case the Congress  – tends to aggrandize the powers of the executive and judicial departments, as I explained in Federalist 48.  Appeals to the People would therefore usually be made by the executive and judicial departments. Would either enjoy equal advantages with the legislature on the issue referred? Let us view their different situations. 

Congress Has More Influence than the President or the Courts 

The members of the executive and judicial departments are few in number and personally known only to a small part of the People.  Judicial members – by the mode and permanency of their appointment – are too far removed from the People to share much in their prepossessions. Executive officers are generally the objects of jealousy, and their administration is always liable to be discolored and rendered unpopular.   

On the other hand, the members of legislative department are numerous. They are distributed and dwell among the People at large.  Their connections of blood, friendship, and acquaintance embrace a great proportion of the most influential part of the society.  The nature of their public trust creates a personal influence among the People, who generally view them as the immediate and confidential guardians of their rights and liberties.  With such advantages, the executive or judiciary would have less than an equal chance for a favorable outcome. 

A Convention Would Likely Consist of Those Whose Errors Were Being Reviewed 

Aside from being able to plead their cause most successfully with the People, members of Congress would themselves probably be constituted the judges. The same influence which had gained them an election into the Congress would gain them a seat in the convention. This would be the case with many representatives and senators, and certainly with those leading characters on whom everything depends in such bodies. Any convention would be chiefly composed of individuals who had been, actually were, or expected to be members of Congress, the same department whose conduct was challenged.  They would thus be parties to the very question to be decided by them.

Even in Cases of Clear Constitutional Error, Parties and Factions Would Infect Any Convention 

It might sometimes happen that appeals would be made under circumstances less adverse to the executive and judicial departments. The usurpations of the Congress might be so flagrant and so sudden as to admit of no specious coloring. A strong party in the Congress might side with the other branches. The executive power might be in the hands of a popular favorite of the People.  In such a posture of things, the public might be less swayed by arguments in favor of the dominant congressional party. Even so, we can never expect that any constitutional convention would turn on the true merits of the question.  It would inevitably be connected with the spirit of preexisting parties, or of parties springing out of the question itself.  It would be connected with persons of distinguished character and extensive influence in the community.  It would be pronounced by the very persons who were the agents or opponents of the measures under review.

The passions of the People would sit in judgment, not its reason. The government ought to be controlled by the reason of the People, not its passions. For its part, the government ought to temper the passions of the People. 

* * *

Any convention would be chiefly composed of individuals who had been, actually were, or expected to be members of Congress, the same department whose conduct was challenged.  They would thus be parties to the very question to be decided by them.

* * *

In Federalist 48, I explained why mere declarations in written constitutions are insufficient to restrain the several departments within their legal rights.  I explained why occasional appeals to the People would be neither proper nor effectual. As for the other provisions of Mr. Jefferson’s draft constitution, some are unquestionably founded on sound political principles, and all of them are framed with singular ingenuity and precision.

Madison 

Federalist 50: Periodical Constitutional Conventions Will Prove as Ineffectual as Occasional Ones 

Revision of the Constitution at Fixed Periods Is Unwise 

I DEMONSTRATED in Federalist 49 that a constitutional convention would not likely rectify a faction’s current transgression of the Constitution. Now I consider whether periodical appeals to the People are the proper and adequate means of preventing and correcting constitutional infractions. I will confine myself to the utility of a convention assembled to enforce the Constitution by keeping the several departments of power within their due bounds.  

I also observed in Federalist 49 that the unique circumstances culminating with the issuance of the Constitution for the United States would not present themselves again.  I described the pervasive and inclusive spirit of equanimity which permeated the Constitutional Convention.   The spirit and leaven of faction were absent from those proceedings, thus permitting construction of the thoughtful and detailed plan of self-government for ourselves and our posterity.  

Appeals to the People at fixed periods will be nearly as ineffectual as occasional appeals for preventing and correcting constitutional infractions. If the periods are separated by short intervals, the measures under review will be of recent date.  All the circumstances tending to vitiate and pervert the results of occasional revisions will apply with equal force.  If the periods of fixed review be distant from each other, the measures to be reviewed and rectified will range from the most recent to the most distant.  Review of the most recent measures will suffer from the same infirmities afflicting appeals to the People as the occasion may demand.  Review of older measures will be more dispassionate, but this advantage is counterbalanced by disadvantages. 

 A Faction Will Not Be Dissuaded from Its Goal by Fear of Future Punishment  

In the first place, a distant prospect of public censure is a very feeble restraint on those excesses of power to which a faction might be urged by the force of present motives.  Would a legislative assembly consisting of one or two hundred members, eagerly bent on some favorite object – and breaking through the restraints of the Constitution to pursue it – be arrested in their career by considerations drawn from a censorial revision of their conduct at the future distance of 10, 15, or 20 years?  In the next place, the abuses would often have completed their mischievous effects before the remedial provision would be applied. And in the last place, abuses which were not complete would still be of long standing, have taken deep root, and not easily be extirpated.  

The Pennsylvania Example Proves that an Oppressive Faction or Party Likely Will  Dominate Any Convention

As I observed in Federalist 48, the scheme of revising a constitution in order to correct recent breaches was actually tried in Pennsylvania, where its Council of Censors met in 1783 and 1784 to inquire “whether the constitution had been violated, and whether the legislative and executive departments had encroached upon each other.” This important and novel experiment in politics merits very particular attention as applied to the case under consideration, since it involves some facts which completely illustrate our reasoning.  

First, some of its most active members had also been active and leading characters in the State’s pre-existing parties.  

Second, the same active and leading members of the council had been active and influential members of the legislative and executive branches within the period to be reviewed, and some patrons or opponents of the very measures to be tested against their constitution.  In the seven years preceding the convention, two of its members had been vice-presidents of the State, and several others members of the executive council. Within the same period, one had been speaker of the legislative assembly, and a number of others distinguished members of that body.  

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In the first place, a distant prospect of public censure is a very feeble restraint on those excesses of power to which a faction might be urged by the force of present motives.  Would a legislative assembly consisting of one or two hundred members, eagerly bent on some favorite object – and breaking through the restraints of the Constitution to pursue it – be arrested in their career by considerations drawn from a censorial revision of their conduct at the future distance of 10, 15, or 20 years?

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Third, every page of their proceedings witnesses the effect of all these circumstances on the temper of their deliberations. The council was split into two fixed and violent parties for its duration, a fact they themselves acknowledged and lamented. The face of their proceedings exhibits an equally satisfactory proof.  In all questions – however unimportant in themselves or unconnected with each other – the same names stand invariably contrasted in opposite columns. Without impugning either party or its individual members, every unbiased observer unfortunately must infer that passion –  not reason – presided over their decisions.  When individuals exercise their reason coolly and freely on a variety of distinct questions, they inevitably fall into different opinions on some of them.  When they are governed by a common passion, their opinions – if they can be so called – will be the same.  

Fourth, the decisions of this body in several instances appeared to misconstrue the limits prescribed for the legislative and executive departments, rather than reducing and limiting them within their constitutional boundaries.  

Fifth, whether rightly or erroneously formed, the decisions of the council on constitutional questions had little effect on changing legislative practices, and in one instance the dominant faction in the legislature simply rejected the constructions of the council, thereby solidifying its control.  

In summary, by its researches, this censorial body proved the existence of the disease, and by its example, the inefficacy of its remedy.  

Despite Their Flaws, Opposing Parties Are Preferable to Conformity

These conclusions are not weakened by the assertion that Pennsylvania had long been violently heated and distracted by the rage of party.  Is it to be presumed the same or some other State will be free from parties at some future interval?   Such an event ought not to be presumed or desired.  An extinction of parties necessarily implies either a universal alarm for the public safety or the absolute end of liberty.  

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An extinction of parties necessarily implies either a universal alarm for the public safety or the absolute end of liberty.  

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Excluding Interested Individuals from a Constitutional Convention Would Lead to the Selection of Their Agents, Who Would Know Less than Their Principals 

Nor would difficulties encountered by assemblies elected by the People to revise the preceding administration of the government be obviated by the precaution of excluding all persons who should have been concerned with the government within the given period. The important task would then devolve to persons with inferior capacities who were no more qualified. While they might not have been personally concerned in the administration – and therefore not immediately agents in the measures to be examined – they would have been involved in the parties connected with these measures, and been elected under their auspices.

Madison or Hamilton

Federalist 51:  The Structure of the Federal Government Will Furnish Proper Checks and Balances Between the Different Departments

The Structure of the Constitution Incorporates Internal Controls on the Federal Government

TO WHAT EXPEDIENT shall we finally resort for maintaining in practice the necessary partition of power among the several departments as laid down in the Constitution?  Since all exterior methods are inadequate, the only answer can be to contrive the interior structure of the government in a way that its several constituent parts keep each other in their proper places.  

The Legislative, Executive and Judicial Departments Each Must Have a Will of Its Own 

A few general observations will enable us to form a more correct judgment of the principles and structure of the government planned by the Convention. It is admitted to a certain extent by all that a separation of powers is the essential foundation to preserving liberty. In laying this foundation for the separate and distinct exercise of the different powers of government, it is evident each department should have a will of its own. Therefore, each department should have as little agency as possible in the appointment of the members of the others.  

It is equally evident the members of each department should be as little dependent as possible on the other departments for the salaries annexed to their offices. Were the executive or judiciary dependent on the Congress in this particular, in every other particular their independence would be merely nominal.

A Complete Separation of Powers Is Not Required in All Instances  

Rigorous adherence to the principle of separation of powers would require all appointments to the magistracies of the executive, legislative, and judicial branches be drawn from the same fountain of authority – the People – through channels having no communication whatsoever with one another.  

Such a plan would be less difficult in practice than it appears in contemplation.  Some deviations from the principle are warranted, however, due to particular circumstances or the expense attending execution of a complete separation of powers.  

The Judiciary Would Not Benefit from a Complete Separation of Powers  

It would be inexpedient to insist rigorously on a complete separation of powers in constituting the judicial department. Since it is essential that members of the judiciary be particularly qualified, the process of appointment must be one that best secures these qualifications.  For instance, judicial appointments under the Constitution are made by the executive with the consent of the Senate, which is one branch of the legislative authority. This is justified because it will best secure qualified appointees, whose permanent tenure upon approval will destroy all sense of dependence on the authorities conferring nomination and approval. 

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The greatest security against a gradual concentration of several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. 

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Each Department Must Have the Means to Resist Encroachments from the Others 

The greatest security against a gradual concentration of several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. As in all other cases, the provision for defense must be commensurate to the danger of attack. Ambition must counteract ambition.  The interest of individual officials must be connected with the constitutional rights of the place.  

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The People themselves are without doubt the primary control on government. Experience, though, has taught mankind the necessity of auxiliary precautions.  Therefore, we must remedy the lack of better motives by supplying opposite and rival interests. 

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Human Nature Requires Built-in Defense Mechanisms to Encroachers 

That such devices are necessary to control the abuses of government is a reflection on human nature.  But what is government itself, but the greatest of all reflections on human nature?  If men were angels, no government would be necessary. If angels were to govern men, no controls on government would be necessary.  But in framing a government to be administered by men over men, we must first enable the government to control the governed, and then oblige the government to control itself.  

The People Cannot Rely Upon Their Powers Alone 

The People themselves are without doubt the primary control on government. Experience, though, has taught mankind the necessity of auxiliary precautions.  Therefore, we must remedy the lack of better motives by supplying opposite and rival interests.  

This remedy can be witnessed in the whole system of human affairs, both public and private.  We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other. The private interest of every individual can be a sentinel over the public rights. These inventions of prudence are no less requisite in the distribution of the supreme powers of the state.  

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