May 27, 2010 – Federalist No. 22 – The Same Subject Continued: Other Defects of the Present Confederation, From the New York Packet (Hamilton) – Guest Blogger: Dr. Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

Thursday, May 27th, 2010

The Federalist #22: In Defense of Politics

Publius here concludes his critique of the old constitution, the Articles of Confederation, a critique he began with Federalist #15.  To understand this critique, we need to step back and consider the problem the Founders intended to solve: Can modern states practice politics?  This seems an odd question.  There seems to be no shortage of politics in the modern world.  And why should politics—messy, compromising, frustrating, roiling politics—be something anyone would want to encourage, anyway?

Undeniably, politics has aroused the interest of the greatest minds: Plato titles his most famous dialogue Politeia, which means “regime”; Aristotle devotes an entire book to politics.  In that book, Aristotle points to the family as the embryo of politics; in the household we can see the DNA of political life.  Aristotle identifies three kinds of rule within every family: the rule of master over slave, whereby the ruler commands the ruled for the benefit of the ruler; the rule of parent over child, whereby the ruler commands the ruled for the benefit of the ruled; and the reciprocal rule of husband and wife, in its proper form a consensual rule animated by discussion and compromise—“ruling and being ruled,” as Aristotle puts it.  An overbearing spouse acts like a master or parent toward one who does not by nature deserve to be treated like a slave or a child.  Genuinely political rule consists of this consensual rule, rule along the marital rather than the masterly or parental model.  In human societies only tyrants attempt masterly rule, only kings attempt to rule as if they were fathers of their countrymen.

The small, ancient polis and the larger feudal communities lent themselves readily to political rule.  In a polis, where everyone knows everyone else, unquestioned rule of one over many seldom lasts.  Under feudalism, the presence of numerous titled aristocrats, each with his own independent source of revenue and of military recruits, will not submit to tyranny forever, as King John of England should have learned at Runnymede, but didn’t.

By contrast, the political engine of the modern world, the state, threatens to put an end to political rule, to make all rulers rule in masterly/tyrannical or parental/ authoritarian modes.  Large and centralized, the state can mortally compromise all independent bases of authority in its domain, repressing any need to discuss or compromise.  At the same time, the very power the modern state marshals requires all neighboring societies to institute states of their own, upon pain of conquest.

The Founders thus attempted something that seemed impossible: To constitute a modern state that is sufficiently powerful to defend itself against other states but nonetheless political, not masterly or tyrannical.  They solved the problem in principle by adopting and refining the idea of federalism.  A single, centralized state stunts political life, but if that state can be made to consist of a set of smaller communities, each with governing to do—townships, counties, and smaller states, all with their own responsibilities, and their own elected representatives—then politics can continue to flourish in the modern world.

Why should we want it to?  Because, as Aristotle argues, human beings differ from all the other animals in their capacity to speak and reason: If I say `Jump’ and allow you to say no more than, `How high?’ you may be speaking but you are not reasoning.  Your character as a human being suffers.  In political life, you can talk back. To be sure, at some point, you will run up against the `being ruled’ side of the Aristotelian equation.  But so will everyone else.

The Articles constitution tried to protect political life by keeping most of the American states small enough to feature political life but strong enough to be sovereign—even as, in federation, they multiplied their strength to fend off enemy states.  As Publius has argued in this series, however, the Articles constitution contradicted itself.  The general or federal government could only raise revenues and soldiers with the consent of the member states.  But there can be no “sovereignty over sovereigns.”  Disunion threatened.  Foreigners sneered and circled for the kill.

Publius lists seven additional defects of the Articles, all of them flowing from this overarching defect.  As seen in #21, the first three of these defects are the lack of sanctions for violations of federal law; the lack of any guarantee of mutual aid in case of usurpation within any one state; and the lack of any common standard for determining the revenues each state owes to the general government that protects them.

Publius now turns to the remaining defects, both material and moral.  Materially, the structure of government under the Articles constitution impedes national commerce by allowing member states to enact protective tariffs against one another.  Morally, this inclines each state to treat others as “foreigners and aliens”—the way Europeans do. Materially, the federal government also wields inadequate military strength, as states remote from the battlefields have little incentive to contribute men or material; morally, this leads to “inequality and injustice among the members.”

Speaking of inequality and injustice, equal representation of each state in the unicameral Articles Congress “contradicts that fundamental maxim of republican government, which requires that the sense of the majority should prevail.”  Why will—why should—New York and Virginia long tolerate a government that allows tiny Delaware or Rhode Island to hamstring it?  Especially if the legislatures of the small states were to fall under the influence of foreign powers, and not republican ones.

To these economic, military, and political defects of the existing government, Publius adds another problem with the legal system.  Not only does it have no power to enforce Congressional laws, it lacks a federal judiciary to oversee “a uniform rule of civil justice.”  Without a federal judiciary, encroachment of federal authority by the states can find no defenders beyond the military; force, not law, will rule.

The Articles government has only one ruling institution, the Congress.  The absence of other independent but complementary branches of government might have undermined genuinely political life in the United States, except that the framers of the Articles made the Congress more or less impotent vis-à-vis the member states.  But this caused another problem.  Unqualifiedly sovereign member states will incline to violate the fundamental law of contract, of government by consent: That no party to any contract may excuse himself from the terms of the contract without the consent of the other parties.

Therefore, the new constitution will require ratification not by the governments of the states but by the people of each state, and moreover by the people of states now to be united by the only true rulers of a republican regime.  This new governing contract, “flow[ing] from that pure, original source of all legitimate authority,” will supply the national means needed to secure the national ends listed in the Preamble.  Therefore, also, the new and more powerful wielder of those means, the federal government, can no longer rest in the hands of one ruling institution, but in the tripartite structure of legislative, executive, and judicial branches.  This newly-devised institutional structure for American self-government can preserve politics, reciprocal ruling-and-being-ruled, at the highest level of American government without necessarily exposing Americans to conquest by imperial monarchies.

Will Morrisey is William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College.

14 Responses to “May 27, 2010Federalist No. 22 – The Same Subject Continued: Other Defects of the Present Confederation, From the New York Packet (Hamilton) – Guest Blogger: Dr. Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

  1. Shannon Castleman says:

    There are some people who condemn people like Hamilton for being the “first types of big government politicians, because of the desire for a National Bank, and stronger central government.

    In my opinion, these groups of Federalist essays proves those naysayers wrong.

    The “Federalists” didn’t want BIGGER goverment, they wanted a WORKABLE governmet. We need to put ourselves in Hamilton’s shoes, where we see a government not even strong enough to raise revenues, or strong enough t raise a military. Of course we needed a “bigger” government a that time, or we woul have gone the way of Europe.

    Hamilton would in no way support “bigger” government if he awakened in 2010 America.

  2. Susan Craig says:

    Genuinely political rule consists of this consensual rule, rule along the marital rather than the masterly or parental model.  While Publius makes a great argument against the Articles of Confederation, I seriously doubt that he wanted the political pendulum to have swung so far that the power to exercise it in a paternalistic manner [such as today]. Professor Morrissey is profound when he points out that A single, centralized state stunts political life, but if that state can be made to consist of a set of smaller communities, each with governing to do—townships, counties, and smaller states, all with their own responsibilities, and their own elected representatives—then politics can continue to flourish in the modern world.
    American states small enough to feature political life but strong enough to be sovereign—even as, in federation, they multiplied their strength to fend off enemy states.

  3. Charles Babb says:

    Hamilton seems to be saying that, if the proposed new constitution is not adopted and if the existing foundation of government (Articles of Confederation) can survive the aggression of greedy, self serving men, it will evolve, bit-by-bit, into a structure of government not desirous by anyone.

    Is this not exactly what has happened to our Constitution? Have not (career) politician’s ignored the obvious wishes of the electorate, hiding behind (and serving instead) the power of political parties. No longer do they just overstep Constitutional authority, they thumb their noses at us and stomp all over it.

    If this were not so, why would an elected official have to hide what goes on in her office from view of the “public” she (or he) swore an oath to serve.

    Few of them today, would acknowledge that “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.”

  4. Sorry guys, I thought I posted this last night.. I’ll check in later on Federalist Paper No. 22 :)

    Well, small business profits are on the decline and government provided benefits are on the rise. Carolyn, I read your blog and I also heard about these frightening statistics today. Socialism is rearing its ugly head. Next will be the general demise of spirit and motivation in our country. This exact scenario was predicted by Samuel Adams in his warning over two hundred years ago, “The pooling of property and redistributing of wealth are both despotic and unconstitutional.”

    As duly noted in last night’s reading of Federalist No. 20. We must learn from the experience of history. It makes no sense, and has been proven by history, that if a country becomes a nanny state and feeds the people’s every whim, punishes the hard working enterprising people, snuffs the spirit of business by taking over their free enterprise then the country and her citizens become mired down with a lack of motivation.

    If motivation is at a minimum, productivity ceases to prevail and if productivity ceases to prevail then there is no money for the nanny. If the nanny does not provide then the people rebel. When the people rebel then there is a need for a strong force to control. Enter Tyranny. Good-bye Democracy. Good-bye Republic.

    Carpe Diem. We must seize the day and reverse course while we can. This begins with knowledge and fortification. Wisdom whispers in the words of Publius.
    The answers are in the United States Constitution.
    Spread the word.

    God Bless,

    Janine Turner
    P.S. I thank you Horace Cooper for joining us today and for your brilliant insights

  5. Susan Craig says:

    Power corrupts, the founders tried to hedge the access to power so that absolute power could not be concentrated to corrupt absolutely.

  6. marjay says:

    The problem with the National Bank is that when it was created in 1913, it was privatized. Jefferson warned again that. The Federal Reserve Bank is not an entity of the federal government at all. It is a privately owned and operated business. This fact is not commonly known. The bankers who own it have benefit of the interest derived therefrom, coming from loans to the federal government, using money the bank has CREATED. That interest money belongs in the nations coffers, not in the hands of the bankers. Article 1, Section 8, gives CONGRESS the power to coin money and determine its value, not private BANKERS, which is how Lincoln financed the Civil War, after private bankers refused to loan him money. Giving congress that power was a marvelous arrangement, subject to voter approval every two years at election time. That power was delivered up to what I would call “tyrants” when my grandparents were children. The Federal Reserve has never been audited. No doubt such an audit, which should be mandatory, would reveal an amazing history.

  7. Roger Jett says:

    Charles Babb, While I can readily agree with much of what you said in your post earlier today, I have to ask you to rethink on a couple of things. First of all, I wished you had worded a little differently your phrases, ” The fabric of the American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to to flow immediately from that pure, original fountain of all legitimate authority”. Some might think that I’m arguing semantics , but I don’t think that the two words, “American” and
    “empire” should ever fall side by side when the subject is regarding our government. Empires have a single sovereign ruler and they are usually referred to as an “emperor”. I believe what you are saying …. the point that you are emphasizing is that ” the people” are the legitimate authority upon which our elected government officials gain their powers. As Dr. Morrisey points out as he quotes Hamilton, that it is fundamental to a republican form of government which “requires that the sense of the majority should prevail.” However, I’d like to emphasize that under our Constitution there are protections of unalienable rights for the individual as well as rights to the minorities, that government must respect. What may become deemed as the “CONSENT OF THE PEOPLE”, is not necessarily a determinant of what is fair and in the interest of justice. Under that concept, a majority of my neighbors might up and decide to take some of my property for public benefit without making effort to give me just compensation. Fortunately the Constitution even protects us from ourselves in that sense. The stream you speak of is in reality not that pure.

  8. Charles Babb says:

    @Roger Jett; I certainly can’t argue that point; that was just a copy and paste of Mr. Hamilton’s words. That’s why I included the quotation marks.

  9. Carolyn Attaway says:

    I find it amazing that with all the writing of how America should form a Federal Government to ensure commerce and national security, the founders wanted to keep the integrity of the free market system sound and thriving. If we travel back to Jamestown, many historians debate that with the Virginia Company being a publically traded company, English America was a corporation before it was a country. Our roots are founded in the entrepreneurial spirit of risk, hard work, and reward.

    To borrow the words from the novel “Love and Hate in Jamestown” by David A. Price: In their war for independence and their struggle to create a constitution, the Founders themselves had shown the same pragmatic qualities of mind that rendered Smith a hero. The actions of Smith, like the actions of the Founders, also point to a shared outlook on life; one in which a person does not look inward and wait for life to reveal its answers, for life itself is the one carrying out the interrogation. More than most people, Smith and the Founders attempted to answer the questions that life was constantly asking them-or, rather, the single question it asked them, and asks us, over and over. Life presented them with a series of astonishing possibilities and all-engulfing obstacles, all the while whispering to them:
    What are you going to do?
    What are you going to do?
    What are you going to do?

    Have we come to that place in history again?

    One has to wonder when our country is being invaded by illegal immigrants of many nationalities by crossing the southern border, and you hear news like this:

    “US National Guard troops being sent to the Mexican border will be used to stem the flow of guns and drugs across the frontier and not to enforce US immigration laws, the State Department said Wednesday. The clarification came after the Mexican government urged Washington not to use the additional troops to go after illegal immigrants. President Barack Obama on Tuesday authorized the deployment of up to 1,200 additional troops to border areas but State Department spokesman Philip Crowley told reporters, “It’s not about immigration.” Link: http://www.breitbart.com

  10. Jimmy Green says:

    Hamilton’s desire to have a Federal Government regulate commerce between the states seems reasonable at first, forgetting momentarily of the disaster this has lead to today. It would I think allow developing a more standard set of trade rules and I suppose it would give foreign nations more confidence in one regulated system instead of dealing with thirteen colonies, or would it. I would almost suggest that left alone the states would develop a set of mutually advantageous trade rules to simply improve trade. Although still for foreign nations it is easier to negotiate one treaty not thirteen.

    I think more insightful of weakness in a confederacy is as Hamilton states “want of a judiciary power”. A federal court system with a Supreme Court that unifies and enforces the states with a uniform set of laws is paramount. Again momentarily forgetting the disaster those unelected oracles in robes unleashed on the states via the commerce act among others. It seems obvious any united anything requires a federal court system, or does it.

    On the issue of “equal suffrage among the states” it seems correct that in the Union through representation by numbers it would be better balanced. The state with a larger population would have more house members then a state of lesser population. However Hamilton’s belief that giving the minority the ability to stop or hinder the majority is wrong is not always practiced. In the legislature the filibuster by a single congressman is used to delay or obstruct a vote on some proposal or bill.

    Interestingly in the U.N. the Security Council is comprised of 5 countries but India with the second largest population after China is not one of them. I’m not sure how the U.N. would be classified. It’s a bizarre organization of the worst kind more akin to a dysfunctional feudal system then anything else.

    Many of Hamilton’s beliefs were correct in theory. With hindsight we can trace many of the losses of state sovereignty back directly to these arguments that Hamilton would have not imagined. However the expansion of the Federal Government is, I believe, a simple result of the complacency of the states and people resulting in a power vacuum the Feds were more then happy to fill.

  11. Roger Jett says:

    Charles Babb, Please accept my apology for the earlier post. As Andy Griffith once said, “the rest of the family is eating chicken for supper, but I’m having crow.” Also, just in case you are wondering, my foot size is a twelve and yes it was a tight fit even in my big mouth.

  12. Kay says:

    Thank you Dr. Morrissey for walking us through Federalist No. 22! Publius certainly covers a lot of ground in this Federalist Paper! If only our current elected officials would take the time to methodically explain major proposed legislation in this manner. Our “sound bite” culture and collective short attention span does not lend itself to deeply and thoroughly understanding the many issues facing us.

    The weaknesses of the Articles of Confederation were many: lack of federal regulation of commerce, including foreign commerce and interstate commerce; the weakness of the state quota system for raising armies; problems of equal suffrage among the states; the weaknesses of the 2/3 majority requirement for important resolutions ; lack of “one Supreme Tribunal,” and overall so many problems with the Articles of Confederation that they were not deemed fixable by amendment. Publius goes on to point out the weakness of a Congress with only one legislative body, and the final and most important flaw: The people never ratified the Articles of Confederation. It is with this final point that my favorite quote from Federalist 22 appears:

    “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.”

    One of the things I have enjoyed most about reading The Federalist are the quotes like the one above, that leap off the page, and speak to us so clearly, 223 years later. They encapsulate principles that our country has drifted from, and remind us of the intent of the founders. When these principles are followed, our country flourishes. When we drift from them, we stagnate.

    If only our founding fathers could come back today, and write a series of Federalist Papers where they analyze our current governmental structure in the same manner they analyze the Articles of Confederation, and methodically itemize all the places our country has deviated from their original founding principles. I have a feeling they would have a hard time confining their essays to 85!

    Good night and God Bless!

    Cathy Gillespie

  13. Why write many paragraphs when a few lines will do, three lines to be exact, from Alexander Hamilton’s Federalist No. 22?

    1. Though the genius of the people of this country..

    2. Its opposition contradicts that fundamental maxim of Republican government, which requires that the sense of the majority shall prevail.

    3. The fabric of American empire out to rest on the solid basis of THE CONSENT OF THE PEOPLE.

    Are these words being honored in our American government today?

    God Bless,

    Janine Turner
    May 27, 2010
    I thank our guest scholar, Dr. Will Morrisey, for joining us today!

  14. Jesse Stewart says:

    Shannon – thanks for your insight re: “big government Hamilton”; it helps to put it in perspective!

    What a wonderful group of commenters, what a wonderful exercise! I’m telling everyone I know about Constituting America.

 

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