Concerning the Defects of the Present Confederation, Based on How State Interests Interact Collectively
by Alexander Hamilton
Generated summaryHamilton diagnoses the Confederation's core flaw: it makes laws for states as collective bodies instead of for individual citizens, so it can never enforce those laws without resorting to war between the states.
Federalist 15
Generated summaryThe Confederation’s deep flaw is that it makes law for states, not for citizens, so its orders are only requests the states may ignore. The result is broken treaties, unpaid debts, territory still in foreign hands, and a government at a standstill.Key points
The Confederation’s radical vice is legislating for states, not individuals, so its laws are mere recommendations.
We have reached the last stage of national humiliation: broken engagements, unpaid debts, posts still held against us, commerce and credit collapsed.
Opponents admit the defects yet chase an impossibility: full Union sovereignty alongside full state independence, a government within a government.
If we mean a real government, its authority must reach the persons of citizens, the only proper objects of government.
A law needs a sanction; it is enforced over individuals by courts, over states only by the sword, which means war.
Government exists because men’s passions will not bow to reason without constraint; bodies of men are no more virtuous than individuals.
Jealous of their power, the member states strain to fly off from the common center and judge each federal demand by their own interest.
So thirteen sovereign wills must concur, and each has withdrawn by the others’ example, until the machine has stalled.
In the preceding papers, my fellow citizens, I have shown what the Union means to your safety and happiness. I have laid out the dangers if ambition, greed, jealousy, or misrepresentation cuts the sacred knot that binds America. The next point in order is the insufficiency of the present Confederation to preserve the Union. Why prove what no one disputes? Friends and opponents of the Constitution agree at least in this: our national system has serious defects, and something must be done to save us from approaching anarchy. The facts are no longer speculation. They have wrung a reluctant confession even from those whose mistaken policy did most to bring us here.
OriginalIN THE course of the preceding papers, I have endeavored, my fellow citizens, to place before you, in a clear and convincing light, the importance of Union to your political safety and happiness. I have unfolded to you a complication of dangers to which you would be exposed, should you permit that sacred knot which binds the people of America together be severed or dissolved by ambition or by avarice, by jealousy or by misrepresentation. In the sequel of the inquiry through which I propose to accompany you, the truths intended to be inculcated will receive further confirmation from facts and arguments hitherto unnoticed. If the road over which you will still have to pass should in some places appear to you tedious or irksome, you will recollect that you are in quest of information on a subject the most momentous which can engage the attention of a free people, that the field through which you have to travel is in itself spacious, and that the difficulties of the journey have been unnecessarily increased by the mazes with which sophistry has beset the way. It will be my aim to remove the obstacles from your progress in as compendious a manner as it can be done, without sacrificing utility to despatch. In pursuance of the plan which I have laid down for the discussion of the subject, the point next in order to be examined is the "insufficiency of the present Confederation to the preservation of the Union."
It may perhaps be asked what need there is of reasoning or proof to illustrate a position which is not either controverted or doubted, to which the understandings and feelings of all classes of men assent, and which in substance is admitted by the opponents as well as by the friends of the new Constitution. It must in truth be acknowledged that, however these may differ in other respects, they in general appear to harmonize in this sentiment, at least, that there are material imperfections in our national system, and that something is necessary to be done to rescue us from impending anarchy. The facts that support this opinion are no longer objects of speculation. They have forced themselves upon the sensibility of the people at large, and have at length extorted from those, whose mistaken policy has had the principal share in precipitating the extremity at which we are arrived, a reluctant confession of the reality of those defects in the scheme of our federal government, which have been long pointed out and regretted by the intelligent friends of the Union.
We have reached almost the last stage of national humiliation. There is scarcely anything that wounds the pride of an independent nation which we do not suffer. Solemn engagements are broken without a blush. Debts contracted to save our political existence go unpaid. A foreign power still holds territories and posts long due us, and we can neither resent nor repel it: we have no troops, no treasury, no government. Spain shuts us out of the Mississippi. We have given up public credit as hopeless, and commerce is at its lowest ebb. Our ambassadors abroad are the mere shadows of a pretended sovereignty. What mark of national disorder, poverty, and insignificance is missing from this dark catalogue?
OriginalWe may indeed with propriety be said to have reached almost the last stage of national humiliation. There is scarcely anything that can wound the pride or degrade the character of an independent nation which we do not experience. Are there engagements to the performance of which we are held by every tie respectable among men? These are the subjects of constant and unblushing violation. Do we owe debts to foreigners and to our own citizens contracted in a time of imminent peril for the preservation of our political existence? These remain without any proper or satisfactory provision for their discharge. Have we valuable territories and important posts in the possession of a foreign power which, by express stipulations, ought long since to have been surrendered? These are still retained, to the prejudice of our interests, not less than of our rights. Are we in a condition to resent or to repel the aggression? We have neither troops, nor treasury, nor government. Are we even in a condition to remonstrate with dignity? The just imputations on our own faith, in respect to the same treaty, ought first to be removed. Are we entitled by nature and compact to a free participation in the navigation of the Mississippi? Spain excludes us from it. Is public credit an indispensable resource in time of public danger? We seem to have abandoned its cause as desperate and irretrievable. Is commerce of importance to national wealth? Ours is at the lowest point of declension. Is respectability in the eyes of foreign powers a safeguard against foreign encroachments? The imbecility of our government even forbids them to treat with us. Our ambassadors abroad are the mere pageants of mimic sovereignty. Is a violent and unnatural decrease in the value of land a symptom of national distress? The price of improved land in most parts of the country is much lower than can be accounted for by the quantity of waste land at market, and can only be fully explained by that want of private and public confidence, which are so alarmingly prevalent among all ranks, and which have a direct tendency to depreciate property of every kind. Is private credit the friend and patron of industry? That most useful kind which relates to borrowing and lending is reduced within the narrowest limits, and this still more from an opinion of insecurity than from the scarcity of money. To shorten an enumeration of particulars which can afford neither pleasure nor instruction, it may in general be demanded, what indication is there of national disorder, poverty, and insignificance that could befall a community so peculiarly blessed with natural advantages as we are, which does not form a part of the dark catalogue of our public misfortunes?
This plight is the work of the very maxims that would now deter us from adopting the Constitution. Let us make a firm stand for our safety, our peace, our dignity, our reputation. The old opponents of federal measures grant that the government lacks energy, then deny it the powers that would supply it. They aim at things that cannot be reconciled: more federal authority with no loss of state authority; sovereignty in the Union with full independence in its members. This is the political monster of a government within a government. Our evils come not from small flaws but from fundamental errors in the structure. Only a change in its first principles and main pillars can cure them.
OriginalThis is the melancholy situation to which we have been brought by those very maxims and councils which would now deter us from adopting the proposed Constitution; and which, not content with having conducted us to the brink of a precipice, seem resolved to plunge us into the abyss that awaits us below. Here, my countrymen, impelled by every motive that ought to influence an enlightened people, let us make a firm stand for our safety, our tranquillity, our dignity, our reputation. Let us at last break the fatal charm which has too long seduced us from the paths of felicity and prosperity.
It is true, as has been before observed that facts, too stubborn to be resisted, have produced a species of general assent to the abstract proposition that there exist material defects in our national system; but the usefulness of the concession, on the part of the old adversaries of federal measures, is destroyed by a strenuous opposition to a remedy, upon the only principles that can give it a chance of success. While they admit that the government of the United States is destitute of energy, they contend against conferring upon it those powers which are requisite to supply that energy. They seem still to aim at things repugnant and irreconcilable; at an augmentation of federal authority, without a diminution of State authority; at sovereignty in the Union, and complete independence in the members. They still, in fine, seem to cherish with blind devotion the political monster of an imperium in imperio. This renders a full display of the principal defects of the Confederation necessary, in order to show that the evils we experience do not proceed from minute or partial imperfections, but from fundamental errors in the structure of the building, which cannot be amended otherwise than by an alteration in the first principles and main pillars of the fabric.
The Confederation’s great and radical vice is making law for states, not for the individuals composing them. It does not reach every power given the Union, only those the rest depend on. The United States may requisition men and money without limit, yet cannot raise either from the citizens. Its resolutions are laws in theory, but in fact mere requests the states obey or ignore at will. A league of independent nations for purposes stated in a treaty is not absurd. It rests on the good faith of the parties, kept or broken as interest dictates. Were our states content with that, the plan would be pernicious but at least consistent: a simple alliance leaving us alternate friends and enemies.
OriginalThe great and radical vice in the construction of the existing Confederation is in the principle of LEGISLATION for STATES or GOVERNMENTS, in their CORPORATE or COLLECTIVE CAPACITIES, and as contradistinguished from the INDIVIDUALS of which they consist. Though this principle does not run through all the powers delegated to the Union, yet it pervades and governs those on which the efficacy of the rest depends. Except as to the rule of appointment, the United States has an indefinite discretion to make requisitions for men and money; but they have no authority to raise either, by regulations extending to the individual citizens of America. The consequence of this is, that though in theory their resolutions concerning those objects are laws, constitutionally binding on the members of the Union, yet in practice they are mere recommendations which the States observe or disregard at their option. It is a singular instance of the capriciousness of the human mind, that after all the admonitions we have had from experience on this head, there should still be found men who object to the new Constitution, for deviating from a principle which has been found the bane of the old, and which is in itself evidently incompatible with the idea of GOVERNMENT; a principle, in short, which, if it is to be executed at all, must substitute the violent and sanguinary agency of the sword to the mild influence of the magistracy. 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, of observance and non-observance, as the interests or passions of the contracting powers dictate. In the early part of the present century there was an epidemical rage in Europe for this species of compacts, from which the politicians of the times fondly hoped for benefits which were never realized. With a view to establishing the equilibrium of power and the peace of that part of the world, all the resources of negotiation were exhausted, and triple and quadruple alliances were formed; but they were scarcely formed before they were broken, giving an instructive but afflicting lesson to mankind, how little dependence is to be placed on treaties which have no other sanction than the obligations of good faith, and which oppose general considerations of peace and justice to the impulse of any immediate interest or passion. If the particular States in this country are disposed to stand in a similar relation to each other, and to drop the project of a general DISCRETIONARY SUPERINTENDENCE, the scheme would indeed be pernicious, and would entail upon us all the mischiefs which have been enumerated under the first head; but it would have the merit of being, at least, consistent and practicable Abandoning all views towards a confederate government, this would bring us to a simple alliance offensive and defensive; and would place us in a situation to be alternate friends and enemies of each other, as our mutual jealousies and rivalships, nourished by the intrigues of foreign nations, should prescribe to us.
If we still mean a national government, we must add what separates a government from a league. Its authority must reach the persons of the citizens, the only proper objects of government. Government means the power to make laws, and a law needs a penalty; without one, commands are only advice. A penalty comes from the courts of justice, which reach individual men, or from arms, which must be used against states. No court can compel a state; the sword alone executes judgment against it. Where the general authority reaches only the collective bodies, every breach of law means a state of war. Military execution becomes the only path to civil obedience. That does not deserve the name of government.
OriginalBut if we are unwilling to be placed in this perilous situation; if we still will adhere to the design of a national government, or, which is the same thing, of a superintending power, under the direction of a common council, we must resolve to incorporate into our plan those ingredients which may be considered as forming the characteristic difference between a league and a government; we must extend the authority of the Union to the persons of the citizens,--the only proper objects of government.
Government implies the power of making laws. It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation. This penalty, whatever it may be, can only be inflicted in two ways: by the agency of the courts and ministers of justice, or by military force; by the COERCION of the magistracy, or by the COERCION of arms. The first kind can evidently apply only to men; the last kind must of necessity, be employed against bodies politic, or communities, or States. It is evident that there is no process of a court by which the observance of the laws can, in the last resort, be enforced. Sentences may be denounced against them 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 become the only instrument of civil obedience. Such a state of things can certainly not deserve the name of government, nor would any prudent man choose to commit his happiness to it.
We were once told the states would never breach the regulations of the federal authority, that a sense of common interest would produce full compliance. That language sounds wild today, and so will much of what we now hear from the same quarter, once experience, the best oracle of wisdom, has taught us more. Why is government instituted at all? Because the passions of men will not bow to reason and justice without constraint. Do bodies of men act with more virtue and less self-interest than individuals? Every careful observer concludes the opposite. Shame has less force divided among many, and a spirit of faction drives a body into excesses at which its members would blush as private men.
OriginalThere was a time when we were told that breaches, by the States, of the regulations of the federal authority were not to be expected; that a sense of common interest would preside over the conduct of the respective members, and would beget a full compliance with all the constitutional requisitions of the Union. This language, at the present day, would appear as wild as a great part of what we now hear from the same quarter will be thought, when we shall have received further lessons from that best oracle of wisdom, experience. It at all times betrayed an ignorance of the true springs by which human conduct is actuated, and belied the original inducements to the establishment of civil power. Why has government been instituted at all? Because the passions of men will not conform to the dictates of reason and justice, without constraint. Has it been found that bodies of men act with more rectitude or greater disinterestedness than individuals? The contrary of this has been inferred by all accurate observers of the conduct of mankind; and the inference is founded upon obvious reasons. Regard to reputation has a less active influence, when the infamy of a bad action is to be divided among a number than when it is to fall singly upon one. A spirit of faction, which is apt to mingle its poison in the deliberations of all bodies of men, will often hurry the persons of whom they are composed into improprieties and excesses, for which they would blush in a private capacity.
In sovereign power there is an impatience of control, which makes those who hold it resent every outside attempt to restrain them. So in every union of lesser sovereignties, each member strains to fly off from the common center. The origin of this is the love of power. Power that is checked is almost always the rival and enemy of the power checking it. Will those who administer the separate members always carry out the decrees of the general authority with perfect good humor? We have little reason to expect it. Human nature bids us expect the reverse.
OriginalIn addition to all this, there is, in the nature of sovereign power, an impatience of control, that disposes those who are invested with the exercise of it, to look with an evil eye upon all external attempts to restrain or direct its operations. From this spirit it happens, that in every political association which is formed upon the principle of uniting in a common interest a number of lesser sovereignties, there will be found a kind of eccentric tendency in the subordinate or inferior orbs, by the operation of which there will be a perpetual effort in each to fly off from the common centre. This tendency is not difficult to be accounted for. It has its origin in the love of power. Power controlled or abridged is almost always the rival and enemy of that power by which it is controlled or abridged. This simple proposition will teach us how little reason there is to expect, that the persons intrusted with the administration of the affairs of the particular members of a confederacy will at all times be ready, with perfect good-humor, and an unbiased regard to the public weal, to execute the resolutions or decrees of the general authority. The reverse of this results from the constitution of human nature.
If the measures of the confederacy must pass through the state governments, there is little prospect of their being carried out at all. The rulers of each member, entitled or not, will judge each measure by how well it suits their immediate interests. They judge in a spirit of suspicious scrutiny, without the knowledge of national circumstances that a right judgment needs. A local bias can hardly fail to mislead them. This repeats in every member, so the plans of the whole hang on each part’s prejudiced opinion. Bringing one popular assembly to a harmonious decision is hard enough; many, meeting far apart and under different impressions, can never long cooperate in the same pursuits.
OriginalIf, therefore, the measures of the Confederacy cannot be executed without the intervention of the particular administrations, there will be little prospect of their being executed at all. The rulers of the respective members, whether they have a constitutional right to do it or not, will undertake to judge of the propriety of the measures themselves. They will consider the conformity of the thing proposed or required to their immediate interests or aims; the momentary conveniences or inconveniences that would attend its adoption. All this will be done; and in a spirit of interested and suspicious scrutiny, without that knowledge of national circumstances and reasons of state, which is essential to a right judgment, and with that strong predilection in favor of local objects, which can hardly fail to mislead the decision.
The same process must be repeated in every member of which the body is constituted; 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. Those who have been conversant in the proceedings of popular assemblies; who have seen how difficult it often is, where there is no exterior pressure of circumstances, to bring them to harmonious resolutions on important points, will readily conceive how impossible it must be to induce a number of such assemblies, deliberating at a distance from each other, at different times, and under different impressions, long to co-operate in the same views and pursuits.
Under the Confederation, thirteen distinct sovereign wills must agree to execute every important measure. What was to be expected has happened. The measures went unexecuted, and the failures of the states ripened step by step until they stopped every wheel of the national government. Congress can now scarcely keep up the forms of administration. This did not come at once. The greater deficiencies of some states became an example and a temptation to the more compliant. Why should we bear more than our fair share of the common burden? Human selfishness could not resist. Each state, yielding to immediate interest, has withdrawn its support in turn, till the frail and tottering structure seems ready to fall on our heads.
OriginalIn our case, the concurrence of thirteen distinct sovereign wills is requisite, under the Confederation, to the complete execution of every important measure that proceeds from the Union. It has happened as was to have been foreseen. The measures of the Union have not been executed; the delinquencies of the States have, step by step, matured themselves to an extreme, which has, at length, arrested all the wheels of the national government, and brought them to an awful stand. Congress at this time scarcely possess the means of keeping up the forms of administration, till the States can have time to agree upon a more substantial substitute for the present shadow of a federal government. Things did not come to this desperate extremity at once. The causes which have been specified produced at first only unequal and disproportionate degrees of compliance with the requisitions of the Union. The greater deficiencies of some States furnished the pretext of example and the temptation of interest to the complying, or to the least delinquent States. Why should we do more in proportion than those who are embarked with us in the same political voyage? Why should we consent to bear more than our proper share of the common burden? These were suggestions which human selfishness could not withstand, and which even speculative men, who looked forward to remote consequences, could not, without hesitation, combat. Each State, yielding to the persuasive voice of immediate interest or convenience, has successively withdrawn its support, till the frail and tottering edifice seems ready to fall upon our heads, and to crush us beneath its ruins. PUBLIUS
Federalist 16
Generated summaryCoercing disobedient states by force would mean civil war, and would likely dissolve the union. The only workable federal government acts directly on citizens, through its own courts and officers, without waiting on the state legislatures.Key points
Coercing states by military force is unworkable and means civil war; a real government must instead act directly on individuals.
Delinquency is never one state alone, so coercion becomes war between combinations, and foreign powers would gladly fan the divisions.
The first such war would dissolve the union; and complying states, given this country’s temper, would sooner imitate the delinquents than fight them.
A government run only by a standing army would become a military despotism, and could never confine the greater states anyway.
The remedy is a government that reaches citizens directly, executing its own laws through the ordinary magistrate and the courts.
A state can quietly defeat a measure needing its legislature, but cannot obstruct laws upon individuals without open, self-condemning rebellion.
Such rebellion would need courts and people both; the judges would void it, and the people, guardians of the Constitution, would side with the nation.
Feuds that spread through a whole nation lie beyond any government’s control; no plan can do the impossible.
Our experiment has exposed the tendency of legislating for states in their collective capacity. Every other confederacy attests the same. The principle may truly be called the parent of anarchy. Delinquencies among the members of the union are its natural and necessary offspring. Whenever they happen, the only constitutional remedy is force, and force means civil war.
OriginalTHE tendency of the principle of legislation for States, or communities, in their political capacities, as it has been exemplified by the experiment we have made of it, is equally attested by the events which have befallen all other governments of the confederate kind, of which we have any account, in exact proportion to its prevalence in those systems. The confirmations of this fact will be worthy of a distinct and particular examination. I shall content myself with barely observing here, that of all the confederacies of antiquity, which history has handed down to us, the Lycian and Achaean leagues, as far as there remain vestiges of them, appear to have been most free from the fetters of that mistaken principle, and were accordingly those which have best deserved, and have most liberally received, the applauding suffrages of political writers.
This exceptionable principle may, as truly as emphatically, be styled the parent of anarchy: It has been seen that delinquencies in the members of the Union are its natural and necessary offspring; and that whenever they happen, the only constitutional remedy is force, and the immediate effect of the use of it, civil war.
Could so odious an instrument even work among us? Without a large standing army, the national government could not use force at all. Where it could, the war would be between parts of the confederacy, and the strongest combination would prevail. Delinquency would rarely stop at one state. Fellow defaulters would unite, a large aggressor would win over neighbors, and foreign powers would supply the rest. The first such war would probably dissolve the union.
OriginalIt remains to inquire how far so odious an engine of government, in its application to us, would even be capable of answering its end. If there should not be a large army constantly at the disposal of the national government it would either not be able to employ force at all, or, when this could be done, it would amount to a war between parts of the Confederacy concerning the infractions of a league, in which the strongest combination would be most likely to prevail, whether it consisted of those who supported or of those who resisted the general authority. It would rarely happen that the delinquency to be redressed would be confined to a single member, and if there were more than one who had neglected their duty, similarity of situation would induce them to unite for common defense. Independent of this motive of sympathy, if a large and influential State should happen to be the aggressing member, it would commonly have weight enough with its neighbors to win over some of them as associates to its cause. Specious arguments of danger to the common liberty could easily be contrived; plausible excuses for the deficiencies of the party could, without difficulty, be invented to alarm the apprehensions, inflame the passions, and conciliate the good-will, even of those States which were not chargeable with any violation or omission of duty. This would be the more likely to take place, as the delinquencies of the larger members might be expected sometimes to proceed from an ambitious premeditation in their rulers, with a view to getting rid of all external control upon their designs of personal aggrandizement; the better to effect which it is presumable they would tamper beforehand with leading individuals in the adjacent States. If associates could not be found at home, recourse would be had to the aid of foreign powers, who would seldom be disinclined to encouraging the dissensions of a Confederacy, from the firm union of which they had so much to fear. When the sword is once drawn, the passions of men observe no bounds of moderation. The suggestions of wounded pride, the instigations of irritated resentment, would be apt to carry the States against which the arms of the Union were exerted, to any extremes necessary to avenge the affront or to avoid the disgrace of submission. The first war of this kind would probably terminate in a dissolution of the Union.
That would be the confederacy’s violent death. Its natural death we now seem about to face, unless the federal system is soon rebuilt. Given this country’s temper, complying states would rarely make war on the delinquent. They would sooner copy them, so the guilt of all becomes the security of all. Nor could anyone fix when force was proper. Nonpayment may come from unwillingness or from real inability, and the plea of inability is always at hand. That doubt opens a wide field for faction and oppression in the ruling majority.
OriginalThis may be considered as the violent death of the Confederacy. Its more natural death is what we now seem to be on the point of experiencing, if the federal system be not speedily renovated in a more substantial form. It is not probable, considering the genius of this country, that the complying States would often be inclined to support the authority of the Union by engaging in a war against the non-complying 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. There would, in fact, be an insuperable difficulty in ascertaining when force could with propriety be employed. In the article of pecuniary contribution, which would be the most usual source of delinquency, it would often be impossible to decide whether it had proceeded from disinclination or inability. The pretense of the latter would always be at hand. And the case must be very flagrant in which its fallacy could be detected with sufficient certainty to justify the harsh expedient of compulsion. 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, of partiality, and of oppression, in the majority that happened to prevail in the national council.
Those who deny the union power over citizens leave one alternative: a constitution kept in motion by a standing army. Such a scheme, if workable at all, would soon become a military despotism, and it cannot work besides. The union could never raise an army able to hold the larger states to their duty. Half a century will only make them stronger. In confederacies smaller than ours, forcing sovereign states never worked; it only brought bloody wars.
OriginalIt seems to require no pains to prove that the 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. Such a scheme, if practicable at all, would instantly degenerate into a military despotism; but it will be found in every light impracticable. The resources of the Union 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. Whoever 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. A project of this kind is little less romantic than the monster-taming spirit which is attributed to the fabulous heroes and demi-gods of antiquity.
Even in those confederacies which have been composed of members smaller than many of our counties, the principle of legislation for sovereign States, supported by military coercion, has never been found effectual. It has rarely been attempted to be employed, but against the weaker members; and in most instances 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.
If a federal government able to manage the common concerns and keep the peace can be built at all, it must reverse the principle its opponents urge. It must carry its agency to the persons of the citizens, needing no law in between. It must use the ordinary magistrate to enforce its own orders, and the courts to show its authority. Like each state government, it must reach the hopes and fears of individuals.
But might not a state at odds with the union block its laws at will, bringing on the same issue of force? The objection fails on the difference between mere non-compliance and direct, active resistance. Where a measure needs the state legislatures to act, they need only not act, or act evasively, and it fails. Such neglect hides behind hollow provisions and raises no alarm.
OriginalThe result of these observations to an intelligent mind must be clearly this, that if it be possible at any rate to construct a federal government capable of regulating the common concerns and preserving the general tranquillity, it must be founded, as to the objects committed to its care, upon the reverse of the principle contended for by the opponents of the proposed Constitution. It must carry its agency to the persons of the citizens. It must stand in need of no intermediate legislations; but must itself be empowered to employ the arm of the ordinary magistrate to execute its own resolutions. The majesty of the national authority must be manifested through the medium of the courts of justice. The government of the Union, 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. It must, in short, possess all the means, and have aright to resort to all the methods, of executing the powers with which it is intrusted, that are possessed and exercised by the government of the particular States.
To this reasoning it may perhaps be objected, that if any State should be disaffected to the authority of the Union, it could at any time obstruct the execution of its laws, and bring the matter to the same issue of force, with the necessity of which the opposite scheme is reproached.
The plausibility of this objection will vanish the moment we advert to the essential difference between a mere NON-COMPLIANCE and a DIRECT and ACTIVE RESISTANCE. If the interposition of the State legislatures be necessary to give effect to a measure of the Union, they have only NOT TO ACT, or TO ACT EVASIVELY, and the measure is defeated. This neglect of duty may be disguised under affected but unsubstantial provisions, so as not to appear, and of course not to excite any alarm in the people for the safety of the Constitution. The State leaders may even make a merit of their surreptitious invasions of it on the ground of some temporary convenience, exemption, or advantage.
But laws that reach the citizens directly cannot be stopped without an open, violent use of unconstitutional power. That is hazardous against a people who know lawful power from usurpation. Success would need not merely a factious majority in the legislature, but the courts and the people with it. Unless the judges joined the plot, they would pronounce such acts void. Unless the people caught the same spirit, they, as guardians of the Constitution, would throw their weight into the national scale. Such attempts endanger their authors, and would seldom be made except against tyrannical federal power.
OriginalBut 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, the particular governments could not interrupt their progress without an open and violent exertion of an unconstitutional power. No omissions nor evasions would answer the end. 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 a constitution in any degree competent to its own defense, and 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, unless in cases of a tyrannical exercise of the federal authority.
Seditious men can be put down by the means the states use every day. The magistrates serve the law of the land, whatever its source. Against insurrections from a faction or a sudden ill humor, the general government has wider means than any state. But mortal feuds that spread through a whole nation lie outside all reckoning; they commonly end in revolutions, which no government can always control. It is idle to fault a government for not doing the impossible.
OriginalIf 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 magistracy, being equally the ministers of the law of the land, from whatever source it might emanate, would doubtless be as ready to guard the national as the local regulations from the inroads of private licentiousness. As to those partial commotions and insurrections, which sometimes disquiet society, from the intrigues of an inconsiderable faction, or from sudden or occasional illhumors that do not infect the great body of the community the general government could command more extensive resources for the suppression of disturbances of that kind than would be in the power of any single member. 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 dismemberments 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 would be idle to object to a government because it could not perform impossibilities. PUBLIUS
