Concerning the Defects of the Present Confederation, Based on How State Interests Interact Collectively

In the preceding papers, my fellow citizens, I have tried to show you clearly how important the Union is to your political safety and happiness. I have laid before you the many dangers you would face if you let the sacred knot that binds the people of America be cut or dissolved by ambition, greed, jealousy, or misrepresentation. As the inquiry goes on, the truths I mean to press will gain further support from facts and arguments not yet noticed. If the road ahead seems in places tedious, remember that you are seeking knowledge on the most important subject a free people can consider, that the field is genuinely wide, and that its difficulties have been needlessly increased by the mazes with which clever sophistry has beset the way. I will try to clear the obstacles as briefly as I can, without sacrificing usefulness to speed. The next point in order is the insufficiency of the present Confederation to preserve the Union.

It may be asked what need there is to prove a point that no one disputes, that all classes of men feel, and that the opponents of the new Constitution admit as fully as its friends. It must indeed be granted that, however they differ elsewhere, they generally agree at least in this: that our national system has serious defects, and that something must be done to save us from approaching anarchy. The facts behind this opinion are no longer matters of speculation. They have forced themselves on the feelings of the whole people, and have at last wrung even from those whose mistaken policy did most to bring us to this extremity a reluctant confession of the very defects that the intelligent friends of the Union have long pointed out and lamented.

We may fairly be said to have reached almost the last stage of national humiliation. There is scarcely anything that can wound the pride or lower the character of an independent nation which we do not now suffer. Are there engagements that every honorable tie binds us to keep? They are constantly and shamelessly broken. Do we owe debts to foreigners and to our own citizens, contracted in a time of great danger to save our political existence? They go unpaid, with no proper provision for discharging them. Are valuable territories and important posts held by a foreign power that was bound long ago to surrender them? They are still held, against our interests and our rights. Can we resent or repel this? We have neither troops, nor treasury, nor government. Are we even able to protest with dignity? First the just charges against our own faith under the same treaty would have to be removed. Are we entitled by nature and by compact to navigate the Mississippi freely? Spain shuts it against us. Is public credit an essential resource in danger? We seem to have given ours up as hopeless. Does commerce matter to national wealth? Ours is at its lowest ebb. Does the respect of foreign powers guard us against their encroachments? The weakness of our government even keeps them from dealing with us; our ambassadors abroad are the mere shadows of a pretended sovereignty. Is a violent, unnatural fall in the value of land a sign of national distress? The price of improved land is far lower across the country than the amount of vacant land for sale can explain, and it can be accounted for only by the lack of public and private confidence now so alarmingly widespread. Is private credit the friend of industry? The most useful kind, the borrowing and lending of money, is squeezed into the narrowest limits, more from a sense of insecurity than from any scarcity of money. In short, what mark of national disorder, poverty, and insignificance could befall a people so blessed with natural advantages as we are, that does not belong to the dark catalogue of our public misfortunes?

This is the melancholy situation into which we have been led by the very maxims and counsels that would now deter us from adopting the proposed Constitution, counsels that, not content with bringing us to the edge of a precipice, seem resolved to plunge us into the abyss below. Here, my countrymen, urged by every motive that ought to move an enlightened people, let us make a firm stand for our safety, our peace, our dignity, our reputation. Let us at last break the fatal spell that has too long lured us from the paths of prosperity and happiness.

It is true, as noted before, that facts too stubborn to resist have produced a kind of general agreement that our national system has serious defects. But the concession of the old opponents of federal measures is made useless by their strong opposition to the only kind of remedy that can possibly work. While they admit that the government of the United States lacks energy, they resist giving it the powers needed to supply that energy. They still seem to aim at things that cannot be reconciled: greater federal authority without any loss of state authority; full sovereignty in the Union together with complete independence in its members. They still, in short, cling blindly to the political monster of a government within a government. This makes it necessary to display the chief defects of the Confederation fully, and to show that the evils we feel come not from small or partial flaws, but from fundamental errors in the very structure of the building, which can be mended only by changing its first principles and main pillars.

The great and radical vice in the construction of the present Confederation is the principle of legislating for states or governments in their collective capacities, rather than for the individuals of whom they are composed. This principle does not run through all the powers given to the Union, but it governs those on which the effectiveness of the rest depends. The United States may make unlimited requisitions for men and money, but it has no authority to raise either by rules reaching the individual citizens of America. So although in theory its resolutions on these objects are laws that constitutionally bind the members, in practice they are mere recommendations that the states obey or ignore as they please. It is a strange thing that, after all the warnings experience has given us, there should still be men who object to the new Constitution for departing from a principle that has been the ruin of the old, a principle plainly incompatible with the very idea of government. Such a principle, if it is to be carried out at all, must replace the mild influence of the magistrate with the violent and bloody agency of the sword. There is nothing absurd in a league between independent nations for certain defined purposes, spelled out precisely in a treaty and depending for its execution on the good faith of the parties. Compacts of this kind exist among all civilized nations, kept or broken as interest or passion dictates. Early in this century Europe had a rage for such treaties, and the politicians of the day hoped for benefits from them that were never realized. Triple and quadruple alliances were formed to balance power and keep the peace, and were scarcely formed before they were broken, teaching mankind how little can be built on treaties that have no sanction but good faith. If our states are willing to stand in that same loose relation, dropping every idea of a general governing power, the plan would be pernicious, but it would at least be consistent: a simple alliance, offensive and defensive, leaving us alternate friends and enemies as our jealousies and rivalries, fed by foreign intrigue, should direct.

But if we are unwilling to be placed in that perilous situation, if we still mean to have a national government, or, what is the same thing, a supervising power directed by a common council, then we must build into our plan the ingredient that marks the real 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 means the power to make laws. It is essential to the idea of a law that it carry a sanction, a penalty for disobedience. Without a penalty, commands that pretend to be laws are in fact no more than advice. A penalty can be inflicted in only two ways: by the courts and officers of justice, or by military force; by the coercion of the magistrate, or by the coercion of arms. The first can apply only to individual men; the second must be used against political bodies, communities, or states. There is no court process by which the observance of the laws can in the last resort be forced on a state. Judgments may be pronounced against it, but they can be carried out only by the sword. In an association where the general authority reaches only the collective bodies that compose it, every breach of the laws means a state of war, and military execution becomes the only means of civil obedience. Such a state of things does not deserve the name of government, and no prudent man would trust his happiness to it.

There was a time when we were told that the states would not breach the regulations of the federal authority, that a sense of common interest would guide each member and produce full compliance with all the lawful requisitions of the Union. That language would sound as wild today as much of what we now hear from the same quarter will sound once experience, the best oracle of wisdom, has taught us more. It always betrayed an ignorance of the true springs of human conduct and of the very reasons for setting up civil power. 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 of mankind has concluded the opposite, and for plain reasons. Concern for reputation has less force when the shame of a bad act is divided among many than when it falls on one. And a spirit of faction, apt to poison the deliberations of any group, will often drive its members into excesses at which they would blush as private men.

Besides all this, there is in the nature of sovereign power an impatience of control, which disposes those who hold it to resent every outside attempt to restrain or direct it. From this spirit it happens that in every political body formed by uniting a number of smaller sovereignties, the lesser members show a kind of outward-pulling tendency, a constant effort in each to fly off from the common center. This is not hard to explain. Its origin is the love of power. Power that is checked or reduced is almost always the rival and enemy of the power that checks or reduces it. This simple truth shows how little reason we have to expect that those who administer the affairs of the separate members of a confederacy will always be ready, with perfect good humor and an unbiased regard for the public good, to carry out the decrees of the general authority. Human nature leads us to expect the reverse.

If, then, the measures of the confederacy cannot be carried out except through the separate state administrations, there is little prospect of their being carried out at all. The rulers of each member, whether they have any right to or not, will set themselves up to judge whether a measure is proper. They will weigh how well the thing required suits their immediate interests and aims, and the passing conveniences or inconveniences of adopting it. All this they will do in a spirit of suspicious, self-interested scrutiny, without the knowledge of national circumstances that a right judgment requires, and with a strong bias toward local objects that can hardly fail to mislead them.

The same process must be repeated in every member of the body, so that the plans framed by the councils of the whole will always depend on the ill-informed and prejudiced opinion of each part. Anyone who has watched popular assemblies, and has seen how hard it often is, even without outside pressure, to bring one of them to a harmonious decision on important points, will readily grasp how impossible it must be to make many such assemblies, meeting far apart, at different times, and under different impressions, cooperate for long in the same views and pursuits.

In our case, under the Confederation, the agreement of thirteen distinct sovereign wills is needed to fully execute every important measure that comes from the Union. What was to be expected has happened. The measures of the Union have not been carried out, and the failures of the states have step by step ripened to an extreme that has at last stopped all the wheels of the national government and brought them to a dead halt. Congress can now scarcely keep up the forms of administration until the states find time to agree on something more substantial than the present shadow of a federal government. Things did not reach this desperate point all at once. The causes I have named produced at first only unequal degrees of compliance with the requisitions of the Union. The greater deficiencies of some states became both an example and a temptation to the more compliant ones. Why should we do more, in proportion, than those embarked with us on the same political voyage? Why bear more than our fair share of the common burden? Human selfishness could not resist these suggestions, and even far-sighted men could not easily answer them. Each state, yielding to the persuasive voice of immediate interest, has in turn withdrawn its support, until the frail and tottering structure seems ready to fall on our heads and crush us beneath its ruins.

Our own experiment has exposed the tendency of legislation for states, or communities, in their political capacities. Every other confederate government we know of attests the same tendency, in exact proportion to how far the principle prevailed in each system. Those confirmations deserve a distinct examination of their own. Here I will only observe that among the confederacies of antiquity, the Lycian and Achaean leagues appear most free from this mistaken principle, and political writers have accordingly praised them most liberally.

This faulty principle may truly be called the parent of anarchy. We have seen that delinquencies among the members of the union are its natural and necessary offspring, and that whenever they occur, the only constitutional remedy is force, whose immediate effect is civil war.

It remains to ask whether so odious an instrument of government as military coercion could even accomplish its end among us. Without a large army constantly at its disposal, the national government could not employ force at all. Where it could, the contest would become a war between parts of the confederacy, and the strongest combination would prevail, whether it supported or resisted the general authority. The delinquency would rarely be confined to a single state, and states that had neglected the same duty would unite for common defense. A large and influential state that was itself the aggressor would usually carry enough weight with its neighbors to win some of them over as allies. Plausible-sounding but false arguments of danger to the common liberty, and plausible excuses for the offenders, could easily alarm even the states guilty of no violation. This is the more likely because the larger states’ delinquencies might proceed from ambitious premeditation in their rulers, who wish to escape all external control and would tamper beforehand with leading men in adjacent states. If allies could not be found at home, foreign powers would supply them, since they would gladly encourage divisions in a confederacy whose firm union they fear. Once the sword is drawn, the passions of men observe no bounds of moderation. Wounded pride and resentment would carry the attacked states to any extreme to avenge the affront or avoid the disgrace of submission. The first war of this kind would probably end in the dissolution of the union.

War among the states would be the confederacy’s violent death. Its more natural death is what we now seem about to experience, unless the federal system is speedily rebuilt in a more substantial form. Given the temper of this country, the complying states would rarely support the union by making war on the non-complying ones. They would rather put themselves on an equal footing with the delinquents by imitating their example, and the guilt of all would thus become the security of all. Our past experience has shown this spirit in full operation. Deciding when force could properly be used would also present an insuperable difficulty. Failure to pay money, the most usual delinquency, could proceed from unwillingness or inability; it would often be impossible to tell which, and the pretense of inability would always be at hand. Only a very flagrant case could be exposed with enough certainty to justify the harsh expedient of compulsion. This problem alone would open a wide field for factious views, partiality, and oppression in whatever majority prevailed in the national council.

It needs no proof that the states ought not to prefer a constitution kept in motion only by a large army constantly on foot to execute the government’s ordinary decrees. Yet that is the plain alternative embraced by those who would deny the union the power of acting directly on individuals. Such a scheme, if practicable at all, would instantly degenerate into a military despotism; and it is in every light impracticable. The union could never maintain an army large enough to confine the greater states to their duty, nor raise one in the first place. Whoever considers how populous and strong several of these states already are, and what they will become within half a century, will at once dismiss the scheme as idle and visionary. Regulating such members by laws and coercion aimed at their collective capacities is a project little less fanciful than the monster-taming spirit ascribed to the fabulous heroes and demigods of antiquity.

Even in confederacies whose members were smaller than many of our counties, legislating for sovereign states by military coercion has never proved effectual. It has rarely been attempted except against the weaker members, and in most instances the attempt to coerce the disobedient has been the signal for bloody wars, one half of the confederacy raising its banners against the other.

The conclusion is plain. If a federal government capable of regulating the common concerns and preserving the general tranquillity can be constructed at all, it must rest on the reverse of the principle urged by the opponents of the proposed Constitution. It must carry its agency to the persons of the citizens, and it must need no intermediate legislation; it must itself be empowered to employ the ordinary magistrate to execute its own resolutions. The majesty of the national authority must show itself through the courts of justice. Like each state government, it must address itself directly to the hopes and fears of individuals, and enlist the passions that move the human heart most strongly. In short, it must possess every means of executing its entrusted powers that the state governments possess.

It may be objected that a state disaffected to the union’s authority could still obstruct the execution of its laws whenever it chose. The matter would then come to the same issue of force with which the opposite scheme is reproached.

The objection loses its plausibility the moment we notice the essential difference between mere non-compliance and direct, active resistance. If a union measure requires the state legislatures to act, they need only fail to act, or act evasively, and the measure is defeated. That neglect can hide behind hollow provisions and excite no alarm for the safety of the Constitution. State leaders may even claim credit for these covert invasions of it, pleading some temporary convenience, exemption, or advantage.

But if the national laws pass into immediate operation upon the citizens, a state could not interrupt them without an open and violent exertion of unconstitutional power. No omission or evasion would answer; the state would have to act openly, leaving no doubt that it had encroached on national rights. Such an experiment would always be hazardous against a constitution competent to its own defense and a people able to tell a legal exercise of authority from an illegal usurpation. Success would require not merely a factious majority in the state legislature, but the concurrence of the courts and of the people. Unless the judges joined the conspiracy, they would pronounce the acts of such a majority contrary to the supreme law of the land, unconstitutional, and void. Unless the people were tainted with the spirit of their state representatives, they, as the natural guardians of the Constitution, would throw their decisive weight into the national scale. Such attempts would seldom be made lightly, for they could seldom be made without danger to their authors, except against a tyrannical exercise of federal authority.

If opposition to the national government comes from refractory or seditious individuals, the same means the states employ daily against that evil will overcome it. The magistrates are ministers of the law of the land, whatever its source, and will guard national regulations from private lawlessness as readily as local ones. As for the insurrections that a small faction or a sudden ill humor may provoke without infecting the whole community, the general government can command more extensive resources to suppress them than any single state. There remain the mortal feuds that spread a conflagration through a whole nation, whether from weighty grievances against the government or from the contagion of some violent popular frenzy. Such convulsions fall outside ordinary calculation; when they happen, they commonly amount to revolutions and dismemberments of empire. No form of government can always avoid or control them. It is vain to guard against events too mighty for human foresight, and idle to object to a government because it cannot perform impossibilities.