May 26, 2010 – Federalist No. 21 – Other Defects of the Present Confederation, For the Independent Journal (Hamilton) – Guest Blogger: Horace Cooper, Director of the Institute for Liberty’s Center for Law and Regulation

Wednesday, May 26th, 2010

The Federalist #21: In Defense of Politics

Hamilton opens Federalist #21 with a continuation of a theme:  it will be easier to understand the need to adopt the new Constitution if the defects of the old Articles of Confederation are better understood.  He embarks on an effort to outline what he calls the “enumeration of the most important of those defects which have hitherto disappointed our hopes from the system established among ourselves.”

He starts with the fact that under the Articles of Confederation, the federal government had no power to enforce its rulings.  He sees this as an almost fatal flaw.  He complains that the “most palpable defect of the subsisting Confederation, is the total want of a SANCTION to its laws. The United States, as now composed, have no powers to exact obedience, or punish disobedience to their resolutions, either by pecuniary mulcts, by a suspension or divestiture of privileges, or by any other constitutional mode.” In addition to the hardships  that beset any government incapable of enforcing its on rules and laws, Hamilton explains that such a posture is certainly unique among nations.  He argues that there are no nations — kingdoms or any other kinds of governments which operate without the fundamental ability to carry out its interests.

A second flaw in the present system is that in almost all respects the states are left to fend for themselves.  In one crucial way, Hamilton points out this isn’t even in the interest of states.  What happens in the event there is a local insurrection?  There is no ability for the governor of one state to enlist the citizens of another state to step in and offer assistance.  Thus, there is the potential that states would have to devote significant resources solely for domestic armies that would lay in wait for an uprising meanwhile draining the treasury.  Collectively one might imagine this duplicative waste across the several states equaling more than the amount that a federal government would use to handle the same concerns.  Additionally, the mere fact that the federal government could respond to an internal insurrection could be sufficient to prevent one from forming altogether.  Hamilton further points out that the Constitution’s guarantee that all its citizens would have a “republican” form of government means that in the event the leaders of a state attempt to declare a dictatorship or otherwise suspend democratic control the Federal government could intervene to return liberty back to the hands of the people.

Hamilton turns next to the taxation system set up under the Articles of Confederation.  The “quotas” system that he derides essentially assessed the states themselves instead of having direct taxing authority.  Hamilton explains that a system based on state assessments would fundamentally fail to meet the needs of the American government.  It would be insufficient and in his view significantly inequitable in that it simply presumed that all states were equal in most respects financially.  Hamilton explains that “there is no common standard or barometer by which the degrees of it can be ascertained. Neither the value of lands, nor the numbers of the people, which have been successively proposed as the rule of State contributions, has any pretension to being a just representative.” Furthermore he explains, “there can be no common measure of national wealth, and, of course, no general or stationary rule by which the ability of a state to pay taxes can be determined. The attempt, therefore, to regulate the contributions of the members of a confederacy by any such rule, cannot fail to be productive of glaring inequality and extreme oppression.” While making his argument for a federal consumption tax, Hamilton demonstrates a degree of clarity about the consequences of tax rates being too high that many modern leaders would do well to recall.  If you tax too high, you get less.   Hamilton explains, “It is a signal advantage of taxes on articles of consumption, that they contain in their own nature a security against excess. They prescribe their own limit; which cannot be exceeded without defeating the end proposed, that is, an extension of the revenue. When applied to this object, the saying is as just as it is witty, that, “in political arithmetic, two and two do not always make four.” If duties are too high, they lessen the consumption; the collection is eluded; and the product to the treasury is not so great as when they are confined within proper and moderate bounds.

With the three defects that Hamilton identifies by implication the answers provided in the U.S. Constitution are clearer and more readily understood.  The Federal government in the Constitution has the power to enforce its rules, defend each of the states individually and collectively and finally assess taxes directly rather than through the states.  Prior to this change the Federal government was indebted, powerless and in many ways so weak, it threatened the liberty of all Americans because it was unable to defend them against most threats.

Horace Cooper is the Director of the Institute for Liberty’s Center for Law and Regulation

12 Responses to “May 26, 2010Federalist No. 21Other Defects of the Present Confederation, For the Independent Journal (Hamilton) – Guest Blogger: Horace Cooper, Director of the Institute for Liberty’s Center for Law and Regulation

  1. Ron Meier says:

    Cathy has called us to encourage children to participate in this project and contest. I’ve forwarded the link to a principal of a Christian school, but it then occurred to me that schools will be closed for the next several months. So, I sent a link to the woman at my church who runs the Children’s ministry; Sunday schools and Vacation Bible Schools will continue to operate all summer, so they are a good source to get children involved with Constituting America. If we all contact our church children’s ministers, we might get more kids involved.

  2. Maggie says:

    That’s a fantastic idea Ron. I’ll be sending a link to my church’s youth leaders.

  3. Charles Babb says:

    Good move Ron; It is frustrating, to me, to see how easy it is to acquire this information, and to realise that many of our leaders don’t seem to possess it. We have a mid-term election this year and I decided to send the following email to a candidate for Congress from my District.

    “I would sure feel more comfortable casting my vote for you, if I saw that you were participating in this program.

    http://www.constitutingamerica.org/

    It appears that too many of our leaders have not made a commitment to understanding our Constitution and why it developed as it did.

    Knowing that those who seek leadership roles are truly committed to preserving that which has made US the greatest Nation in existence, is important to all voters.

    You cannot preserve it, if you don’t understand and live it.

    Seeing your name in our daily blogs would mean to me that you truly do understand and that you are truly committed to preserving our way of life.”

  4. Susan Craig says:

    With the first flaw identified in #21 has merit I don’t think the power of enforcing unfunded mandates was something the founders envisioned. Unfunded mandates in many ways contribute in major ways to not only State budget woes but to the health care costs problem.
    With the second expounded, we see an abrogation of that in the current illegal alien situation. The invasion of our country by people who start off their residency demonstrating a disrespect for our laws is compounded by the movement for boycotts between neighboring states.
    Problem 3 is a well duh! I find the counter-intuitive fact that the more you tax the less you get one of the things that I can not understand how the people in politics do not see it.

  5. Chuck Plano, Tx says:

    Susan people in politics do see it and they ignore it. It is all about the next election cycle and what will get them reelected. When politics became a very profitable profession with life time benifits and very little service is when “We” the people started loosing control of our government and as the number of citizens grew that do not have an investment (income tax) in our government they demand more and more and politicins are all the more ready to give it to them to insure their election to office.

  6. Susan Craig says:

    I suppose I sort of knew that. But being the pie-eyed optimist I hoped that it was not across the board.

  7. Roger Jett says:

    With much insight and skill, Horace Cooper has expounded upon the increased focus that Hamilton has placed toward the “defects” and shortcomings of that form of government prescribed under the old Articles of Confederation. In my post, I ask to be allowed to take a bit of a light-hearted yet I hope pertinent look at that process that we as a nation went through as we debated, charted and then negoitiated our course by which we arrived at a newly designed and better government.

    I begin by confession to the fact (as my family will verify), that I have this tendancy to reduce and relate many things (for which I devote much time), to either an episode of the old Andy Griffith Show, or to a scene from the movie “O Brother Where Art Thou”. Well today’s epiphany was inspired by the afore mentioned movie and it helped me grasp a better understanding of how things were for our young country during that time that we were linked together under the “Articles of Confederation”. If you are familiar with this movie, let me direct you to a scene that appeared early on. The main characters, Everett, Pete and Delmar while in prison have formed a “confederacy” with the common goal of achieving freedom. While they are able to escape the chain gang, they are still hindered by the fact that they are in shackles and chains that link them together. As they make their awkward and laborious run for freedom, they must work as a unit because they are literally bound to each other. Necessarily, a joint and coordinated effort must be made in order to put distance between them and the pursuers hounding them. Disaster strikes as they attempt to hop a freight train and it is quickly revealed that there are serious “defects” in their newly formed confederacy. The outside viewer quickly realizes even if Everett, Pete and Delbert fail to fully do so, that this small confederacy, as it is currently formed, is in great danger of not surviving. As they made their run to hop the train, Everrett manages to make it inside the freight car, but fails to remember that his success as an individual is linked to the rest of the confederacy. Delmar only makes it halfway in and Pete after running too great of a distance, falls down and of course Delmar and then Everrett are pulled from the train. After this debacle they individually arrive at the conclusion that a convention is needed in order to review and reconsider the the current form of government for this “outfit” and debate what changes are needed.

    The individual wills are causing division and friction within the group. Also, it has become clear that there has been a failure to determine and define definite lines of authority by which effective leadership can be achieved and maintained. Pete is especially unhappy with Everett’s presumption of a leadership position. Everett makes the case that he, because of his superior intellect should lead. SORRY! I’ve apparently exceeded an allotted amount of space. Hope to finish in another pos

  8. Roger Jett says:

    This is a continuation of my earlier post at 4:20pm. Everett makes the case that he, because of his superior intellect should lead. However, the viewer has already witnessed Everett’s failure to help Delmar and Pete succeed in getting into the freight car ….. a failure that caused the whole confederation to fall off the train in defeat. Self proclamations and self appointments do not make leaders “bona fide”. Later scenes give us further reason to question the ability of Everett to act in the best interest of the others. Everett is determined at all cost to hold his position as “pater-familias”, but finds himself in grave danger of losing his headship over his seven young daughters. If a man fails his wife and daughters, can he then be trusted to be the “bona fide” leader of our little confederacy? Oh constant sorrows!
    Pete displays that he is independent minded and strongly stands up to argue and vie for the leadership role. He has common sense, is committed to duty and loyal (especially to kinfolk). Pete will not be railroaded (though he might fall down while catching a train), but does he have vision and the overall capacity to lead?
    Delmar is the valley of humility in between the two mountains of self-interest. Instead of siding with one faction over another he simply takes the diplomatic position of ” I’m with you fellars”. We chuckle, but that individual quality was greatly needed during the time of transition from the old way to the new. Delmar best represents the many who are first and formost self-governed by the “golden rule” and they serve to be cohesive for the group at large. They hold us together during times of heated debate so that the debate can be completed and hopefully the best interest served. Thankfully, our Founders were successful in their great endeaver to bring about a strong constitutional republic. A government that has enabled us to protect our persons, our property and our freedoms. Thankfully, long after they lost their chains and shackles, Everett, Pete and Delmar also went on to form a more perfect union ….the “Soggy Bottom Boys”.

  9. Carolyn Attaway says:

    Thank you Mr. Cooper for your insightful analysis of Paper 21.

    The 3 flaws that Hamilton describes are indeed matters of grave importance for the reasons he mentions, as well as National Security beyond invasion by a foreign power.

    In the second flaw Hamilton points out that States are left to defend themselves, and the trouble the States incur may be too large for them to handle alone.

    Today, many States have to fend for themselves because the Federal Government won’t help them whether by choice or oversight, many speculate on the reasons, but the fact remains that many States are without federal assistance. Border States have to deal with illegal immigration relying on their own resources to guard against illegal entry and activity. Gulf States have to direct their own cleanup efforts from the BP oil spill because of the absence of Federal help; and then on the other hand the Federal Government criticizes them for taking action.

    I believe we as a country are at the point where Hamilton states “The natural cure for an ill-administration, in a popular or representative constitution, is a change of men.”

    The third flaw is very present in our Congress today. Hamilton states “If duties are too high, they lessen the consumption; the collection is eluded; and the product to the treasury is not so great as when they are confined within proper and moderate bounds.” My daughter and I were discussing our economy today, and how that states compared to each other.

    On average, the northern states are heavy laden with unions and high taxes, whereas the western states are quickly becoming bankrupt because of their liberal policies. Yesterday the headlines disclosed the following: Paychecks from private business shrank to their smallest share of personal income in U.S. history during the first quarter of this year, a USA TODAY analysis of government data finds. At the same time, government-provided benefits — from Social Security, unemployment insurance, food stamps and other programs — rose to a record high during the first three months of 2010.

    According to news reports, most states in the Sunbelt have the lowest taxes and largest amount of private businesses. Even though all states are struggling to balance their budgets, and are having to make major cuts in state programs, the Sunbelt states are generally faring better than their sister states. This example tends to support Hamilton’s third flaw and should give high tax states and the Federal Government pause.

  10. Susan Craig says:

    2nd attempt. Chuck, I sort of knew that but being a wild-eyed optimist did not wish to believe it was deliberate.

  11. Yesterday, May 25, 2010, marked the 223 anniversary of the convening of the Constitutional Convention in Philadelphia. The National Constitution Center is sponsoring an innovative Twitter program which Constituting America is promoting: http://www.twitter.com/secretdelegate .

    The premise is that a rogue delegate is secretly “tweeting” from the Constitutional Convention and giving us “the inside scoop.” It is fun! If you are on Twtter, check it out! If you aren’t on Twitter, consider signing up! It is vital that we utilize “new media,” to spread the word about the Constitution and the founding principles of our country.

    Thank you to all of you who participate in this blog, follow Constituting America on Facebook (www.facebook.com/constitutingamerica), and Twitter (www.twitter.com/constituteUS) , and forward emails out to your friends! A big thank you, also, to Horace Cooper for sharing your insights on Federalist 21 with us!

    In Federalist 21, Publius begins an itemization of the weaknesses of the Articles of Confederation in order to build a case for the proposed Constitution. The Articles of Confederation were clearly not taking the country in the direction the founding fathers hoped it would go. Imagine what shape the country must have been in, in 1787, for our founders to have undertaken the monumental task of travelling to Philadelphia, and spending over three months in the oppressive summer heat crafting the Constitution.

    From Hamilton’s writings, it seems the national government did not have enough funds to operate, the states were not being adequately protected from domestic uprisings such as Shays Rebellion in Massachusetts, and the founders foresaw long term problems in the unequal way taxes were being collected from the states through quotas.

    How are these Federalist Papers relevant today? The United States of 2010 is again in a period of challenging times. A shaky economy, threats from our borders, and protesters from groups such as SEIU that are increasingly bold and unruly. Most recently to the point that Nina Easton, a member of the media who would normally support the rights of protesters, has openly condemned a group of over 500 who showed up next door to her home, on the lawn of her neighbor, Greg Baer.

    All the while, the national government seems to be ever growing and reaching, employing the “Star Trek” principle: Boldly Going Where No United States Government Has Gone Before – running our auto companies, our health care system, and even trying to dictate what types of food we eat!

    For those who are unhappy with the course of our country, there is solace in Alexander Hamilton’s words:

    Where the whole power of the government is in the hands of the people, there is the less pretense for the use of violent remedies in partial or occasional distempers of the State. The natural cure for an ill-administration, in a popular or representative constitution, is a change of men.

    Thanks to our Constitution, and our republican form of government, there is a structure in place to change the course of the country, and get back onto the path envisioned by our founders, the path of individual liberty, limited government, and free enterprise.

    Tough times in 1787 sparked an amazing document that has guided our country for over 200 years, now the oldest federal constitution in existence.

    What positive outcome will the tough times of 2010 produce? I am praying it will be a rekindled passion for the United States Constitution, and the founding principles of our country – the principles that have allowed us to be, in Janine Turner’s words, “America the beautiful, America the hope.”

    Good night and God Bless!

    Cathy Gillespie

  12. Debbie Bridges says:

    I was really surprised when I read the argument for the Consumption Tax. We have this same idea being raised and fought for today with the Fair Tax. The IRS has become way to powerful and invasive and the tax system in our country is broken just as it was back when we were under the Articles of Confederacy. I have been learning so much from these posts and will continue to read and eventually catch up with everyone.

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