Federalist Nos. 21-22

Further Defects of the Current Articles of Confederation

by Alexander Hamilton

Generated summaryHamilton catalogs the Confederation's structural failures: no way to enforce federal law or shield states from internal revolt, an unfair tax formula, no power over trade, deadlock-prone voting rules, no shared court, and a founding that never won direct popular consent.

Federalist 21

Generated summaryThe Confederation cannot punish states that break its rules and does not promise to protect state governments from internal uprisings, and it divides tax burdens by land value or population, a measure with no real link to a state's actual wealth or ability to pay.

Key points

The Confederation’s chief defect is the want of a sanction: it can neither punish nor coerce a delinquent state.
The second article, which the opposition praises, reserves every power not expressly delegated, leaving the Union no shadow of authority to enforce its laws.
A further capital defect is the lack of any mutual guaranty: should usurpation seize a state, as it nearly did in Massachusetts, the Union could only look on.
State pride calls such a guaranty officious meddling, but it would bar only violent change, never lawful, peaceable reform.
Apportioning each state’s contribution by quota is a fundamental error, for neither land nor population measures a state’s real wealth.
That inequality would in time dissolve the Union; the true cure is to let the government raise its own revenue by taxes on consumption.
Consumption taxes carry their own check: set too high, they curb consumption and yield less, a natural barrier against oppression.

In the last few papers we reviewed the genius and fate of other confederate governments. I shall now describe the most important of their defects. To understand the fix we must understand the problem.

OriginalHAVING in the three last numbers taken a summary review of the principal circumstances and events which have depicted the genius and fate of other confederate governments, I shall now proceed in the enumeration of the most important of those defects which have hitherto disappointed our hopes from the system established among ourselves. To form a safe and satisfactory judgment of the proper remedy, it is absolutely necessary that we should be well acquainted with the extent and malignity of the disease.

The current system of government among the United States is not effective because it lacks the ability to enforce its own laws. It has no power to punish disobedient states, and no express authority to use force against them. Any such right would have to be inferred against the second article, which declares that each state keeps every power not expressly delegated to the United States in Congress. The opponents of the new Constitution have lately praised that very clause; yet if we honor it, we must admit that the United States has no shadow of constitutional power to enforce its own laws. In this respect our confederacy stands apart from every other institution of its kind, a new and unmatched spectacle in the political world.

OriginalThe next 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. There is no express delegation of authority to them to use force against delinquent members; and if such a right should be ascribed to the federal head, as resulting from the nature of the social compact between the States, it must be by inference and construction, in the face of that part of the second article, by which it is declared, "that each State shall retain every power, jurisdiction, and right, not EXPRESSLY delegated to the United States in Congress assembled." There is, doubtless, a striking absurdity in supposing that a right of this kind does not exist, but we are reduced to the dilemma either of embracing that supposition, preposterous as it may seem, or of contravening or explaining away a provision, which has been of late a repeated theme of the eulogies of those who oppose the new Constitution; and the want of which, in that plan, has been the subject of much plausible animadversion, and severe criticism. If we are unwilling to impair the force of this applauded provision, we shall be obliged to conclude, that the United States afford the extraordinary spectacle of a government destitute even of the shadow of constitutional power to enforce the execution of its own laws. It will appear, from the specimens which have been cited, that the American Confederacy, in this particular, stands discriminated from every other institution of a similar kind, and exhibits a new and unexampled phenomenon in the political world.

There is also a problem with the current system because it does not offer mutual protection for the state governments. This means that if one state’s government is in danger, the national government cannot legally help. While this may endanger the union, it is not so immediately harmful as the union’s inability to enforce its own laws.

OriginalThe want of a mutual guaranty of the State governments is another capital imperfection in the federal plan. There is nothing of this kind declared in the articles that compose it; and to imply a tacit guaranty from considerations of utility, would be a still more flagrant departure from the clause which has been mentioned, than to imply a tacit power of coercion from the like considerations. The want of a guaranty, though it might in its consequences endanger the Union, does not so immediately attack its existence as the want of a constitutional sanction to its laws.

An uprising could take control of a state and harm the freedoms of the people living there, and the national government would have no legal recourse but to watch regretfully. This has already nearly happened in Massachusetts and shows that these dangers are real. Had those malcontents been led by a Caesar or a Cromwell, who could say how their recent uprising would have ended? And who can predict what a despotism in Massachusetts would mean for the liberties of New Hampshire, Rhode Island, Connecticut, or New York?

OriginalWithout a guaranty the assistance to be derived from the Union in repelling those domestic dangers which may sometimes threaten the existence of the State constitutions, must be renounced. Usurpation may rear its crest in each State, and trample upon the liberties of the people, while the national government could legally do nothing more than behold its encroachments with indignation and regret. A successful faction may erect a tyranny on the ruins of order and law, while no succor could constitutionally be afforded by the Union to the friends and supporters of the government. The tempestuous situation from which Massachusetts has scarcely emerged, evinces that dangers of this kind are not merely speculative. Who can determine what might have been the issue of her late convulsions, if the malcontents had been headed by a Caesar or by a Cromwell? Who can predict what effect a despotism, established in Massachusetts, would have upon the liberties of New Hampshire or Rhode Island, of Connecticut or New York?

Some people object to federal protection due to their state pride. This type of objection would deprive us of one of the main benefits of a union in the first place, and must be due to misunderstanding. It would not impede the legal and peaceful reforms of the state constitutions, that right would remain. The protection could only operate against reforms instigated by violence, and against dangers of this kind too many protections can never be provided. The peace of society depends on it. In a government where the power is in the hands of the people, it is usually enough to just change the leaders if the government is not being run well. Federal protection would also protect the people against these leaders taking too much power.

OriginalThe inordinate pride of State importance has suggested to some minds an objection to the principle of a guaranty in the federal government, as involving an officious interference in the domestic concerns of the members. A scruple of this kind would deprive us of one of the principal advantages to be expected from union, and can only flow from a misapprehension of the nature of the provision itself. It could be no impediment to reforms of the State constitution by a majority of the people in a legal and peaceable mode. This right would remain undiminished. The guaranty could only operate against changes to be effected by violence. Towards the preventions of calamities of this kind, too many checks cannot be provided. The peace of society and the stability of government depend absolutely on the efficacy of the precautions adopted on this head. 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. A guaranty by the national authority would be as much levelled against the usurpations of rulers as against the ferments and outrages of faction and sedition in the community.

The current system of dividing the states’ contributions to the national treasury based on quotas is another fundamental problem. It does not fill the national demand nor accurately reflect the wealth of each state. No standard has been determined to guide proportions either; factors like the value of land or the number of people do not give an accurate picture of a state’s wealth. Compare the United Netherlands with Russia, Germany, or even France: neither its land nor its population bears any real relation to the relative wealth of those nations. The same holds between American states: contrast Virginia with North Carolina, Pennsylvania with Connecticut, or Maryland with New Jersey, and it is plain that their abilities to raise revenue bear little relation to their land or their population. The same holds within a state’s counties: the active wealth of King’s County in New York is far greater in proportion to that of Montgomery County than the value of its land or the number of its people would suggest.

OriginalThe principle of regulating the contributions of the States to the common treasury by QUOTAS is another fundamental error in the Confederation. Its repugnancy to an adequate supply of the national exigencies has been already pointed out, and has sufficiently appeared from the trial which has been made of it. I speak of it now solely with a view to equality among the States. Those who have been accustomed to contemplate the circumstances which produce and constitute national wealth, must be satisfied 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. If we compare the wealth of the United Netherlands with that of Russia or Germany, or even of France, and if we at the same time compare the total value of the lands and the aggregate population of that contracted district with the total value of the lands and the aggregate population of the immense regions of either of the three last-mentioned countries, we shall at once discover that there is no comparison between the proportion of either of these two objects and that of the relative wealth of those nations. If the like parallel were to be run between several of the American States, it would furnish a like result. Let Virginia be contrasted with North Carolina, Pennsylvania with Connecticut, or Maryland with New Jersey, and we shall be convinced that the respective abilities of those States, in relation to revenue, bear little or no analogy to their comparative stock in lands or to their comparative population. The position may be equally illustrated by a similar process between the counties of the same State. No man who is acquainted with the State of New York will doubt that the active wealth of King's County bears a much greater proportion to that of Montgomery than it would appear to be if we should take either the total value of the lands or the total number of the people as a criterion!

The wealth of nations depends on many different factors such as geography, climate, resources, government, education, economy, arts, industry, and more. Because of this, it is not possible to have a general rule for determining the wealth of a nation or state. Using such a rule to divide the states’ contributions to the national government would lead to inequality and unfairness.

OriginalThe wealth of nations depends upon an infinite variety of causes. Situation, soil, climate, the nature of the productions, the nature of the government, the genius of the citizens, the degree of information they possess, the state of commerce, of arts, of industry, these circumstances and many more, too complex, minute, or adventitious to admit of a particular specification, occasion differences hardly conceivable in the relative opulence and riches of different countries. The consequence clearly is that 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.

Such inequality would eventually cause the breakdown of the union, as states would not want to be part of a system that is unfair and burdensome to some while barely affecting others. This problem is inherent in the current system of using quotas to divide contributions.

OriginalThis inequality would of itself be sufficient in America to work the eventual destruction of the Union, if any mode of enforcing a compliance with its requisitions could be devised. The suffering States would not long consent to remain associated upon a principle which distributes the public burdens with so unequal a hand, and which was calculated to impoverish and oppress the citizens of some States, while those of others would scarcely be conscious of the small proportion of the weight they were required to sustain. This, however, is an evil inseparable from the principle of quotas and requisitions.

The best way to avoid the problems caused by quotas is to allow the national government to raise its own money through taxes on consumption, such as import and excise taxes. The amount contributed will depend on each citizen regulating their own consumption. The rich may be extravagant and the poor frugal, and private oppression can always be avoided by choosing carefully which goods to tax. If there are inequalities between states due to these taxes, they will likely be balanced out by inequalities in other states. In time, an equilibrium will be reached, or at least the inequalities will not be as extreme as they would be under the current system of quotas.

OriginalThere is no method of steering clear of this inconvenience, but by authorizing the national government to raise its own revenues in its own way. Imposts, excises, and, in general, all duties upon articles of consumption, may be compared to a fluid, which will, in time, find its level with the means of paying them. The amount to be contributed by each citizen will in a degree be at his own option, and can be regulated by an attention to his resources. The rich may be extravagant, the poor can be frugal; and private oppression may always be avoided by a judicious selection of objects proper for such impositions. If inequalities should arise in some States from duties on particular objects, these will, in all probability, be counterbalanced by proportional inequalities in other States, from the duties on other objects. In the course of time and things, an equilibrium, as far as it is attainable in so complicated a subject, will be established everywhere. Or, if inequalities should still exist, they would neither be so great in their degree, so uniform in their operation, nor so odious in their appearance, as those which would necessarily spring from quotas, upon any scale that can possibly be devised.

A major advantage of taxes on consumption is that they carry, in their own nature, a security against excess.

Such taxes set their own limit, which cannot be crossed without defeating the very purpose of raising more revenue. The saying here is as true as it is witty: “in political arithmetic, two and two do not always make four.” If duties are set too high, people buy less, the collection is evaded, and the treasury takes in less than it would at moderate rates. This forms a complete barrier against any serious oppression of citizens by taxes of this kind, and is itself a natural limit on the government’s power to impose them.

OriginalThey 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. This forms a complete barrier against any material oppression of the citizens by taxes of this class, and is itself a natural limitation of the power of imposing them.

Indirect taxes, such as those on consumption, will probably be the main source of revenue for a long time. Direct taxes, which are based on things like land and buildings, can be divided using a standard like the value of land or the number of people. It is difficult to accurately value land, especially in a country that is not fully settled and improving. It is also expensive. It may be easier to use a simple rule, like the number of people, rather than leaving it up to the government’s discretion.

OriginalImpositions of this kind usually fall under the denomination of indirect taxes, and must for a long time constitute the chief part of the revenue raised in this country. Those of the direct kind, which principally relate to land and buildings, may admit of a rule of apportionment. Either the value of land, or the number of the people, may serve as a standard. The state of agriculture and the populousness of a country have been considered as nearly connected with each other. And, as a rule, for the purpose intended, numbers, in the view of simplicity and certainty, are entitled to a preference. In every country it is a herculean task to obtain a valuation of the land; in a country imperfectly settled and progressive in improvement, the difficulties are increased almost to impracticability. The expense of an accurate valuation is, in all situations, a formidable objection. In a branch of taxation where no limits to the discretion of the government are to be found in the nature of things, the establishment of a fixed rule, not incompatible with the end, may be attended with fewer inconveniences than to leave that discretion altogether at large. PUBLIUS

Federalist 22

Generated summaryThe Confederation cannot regulate foreign or interstate trade, its quota system for money and troops breeds unfairness, and its equal-state votes and supermajority rules let a small minority block the whole government. It also lacks any national court to keep the laws uniform, and it rests on approval by state legislatures rather than by the people directly.

Key points

Still graver defects remain, and together they show the Confederation cannot be repaired, only replaced.
It cannot regulate commerce: no nation will bargain with a Union whose engagements any member may break, and which already grants every advantage for nothing.
Raising armies by requisition set the states bidding against each other for men, yielding a costly, fluctuating force and an unequal burden.
Equal voting among the states defies the republican maxim of the majority, for a majority of states may be a small minority of the people.
Requiring a supermajority poisons the government: like a Polish diet, a fraction the size of Delaware or Rhode Island can halt everything.
Unanimity, meant for safety, saps all energy and invites the foreign corruption and domestic faction to which republics are already prone.
The Confederation has no judiciary: without courts to expound them, laws are a dead letter, and treaties lie at the mercy of thirteen courts.
The system was never ratified by the people but only by the legislatures; national power must instead flow directly from the people themselves.

There are other problems with the current system of government besides those already mentioned.

One major issue is the lack of power to regulate commerce, which makes it difficult to make beneficial trade agreements with other countries. No nation will grant the United States real privileges while the Union’s promises can be broken at any moment by any member, and while it already enjoys every advantage it wants in our markets without giving us anything in return. Mr. Jenkinson, introducing such a bill in the House of Commons, said plainly that these terms had answered every purpose of British commerce, and that Britain should keep to them until the American government showed more consistency.

OriginalThe want of a power to regulate commerce is by all parties allowed to be of the number. The utility of such a power has been anticipated under the first head of our inquiries; and for this reason, as well as from the universal conviction entertained upon the subject, little need be added in this place. It is indeed evident, on the most superficial view, that there is no object, either as it respects the interests of trade or finance, that more strongly demands a federal superintendence. The want of it has already operated as a bar to the formation of beneficial treaties with foreign powers, and has given occasions of dissatisfaction between the States. No nation acquainted with the nature of our political association would be unwise enough to enter into stipulations with the United States, by which they conceded privileges of any importance to them, while they were apprised that the engagements on the part of the Union might at any moment be violated by its members, and while they found from experience that they might enjoy every advantage they desired in our markets, without granting us any return but such as their momentary convenience might suggest. It is not, therefore, to be wondered at that Mr. Jenkinson, in ushering into the House of Commons a bill for regulating the temporary intercourse between the two countries, should preface its introduction by a declaration that similar provisions in former bills had been found to answer every purpose to the commerce of Great Britain, and that it would be prudent to persist in the plan until it should appear whether the American government was likely or not to acquire greater consistency.

Some states have tried to influence trade with other countries through their own separate laws and regulations, but this has not been successful because there is no national authority to ensure that all the states are working together.

OriginalSeveral States have endeavored, by separate prohibitions, restrictions, and exclusions, to influence the conduct of that kingdom in this particular, but the want of concert, arising from the want of a general authority and from clashing and dissimilar views in the State, has hitherto frustrated every experiment of the kind, and will continue to do so as long as the same obstacles to a uniformity of measures continue to exist.

Some state laws have interfered with trade of other states, and there is a fear that these problems will continue and even increase if there is no national control. The numerous and repeated duties that different states can place on merchandise passing through their territories can make trade difficult, like in the German empire. While this may not specifically mirror itself in our country, if similar conflicts between states continue, the citizens of each state may eventually be treated like foreigners by the others.

OriginalThe interfering and unneighborly regulations of some States, contrary to the true spirit of the Union, have, in different instances, given just cause of umbrage and complaint to others, and it is to be feared that examples of this nature, if not restrained by a national control, would be multiplied and extended till they became not less serious sources of animosity and discord than injurious impediments to the intercourse between the different parts of the Confederacy. "The commerce of the German empire is in continual trammels from the multiplicity of the duties which the several princes and states exact upon the merchandises passing through their territories, by means of which the fine streams and navigable rivers with which Germany is so happily watered are rendered almost useless." Though the genius of the people of this country might never permit this description to be strictly applicable to us, yet we may reasonably expect, from the gradual conflicts of State regulations, that the citizens of each would at length come to be considered and treated by the others in no better light than that of foreigners and aliens.

The current system for raising armies in the United States, which relies on states providing a certain number of troops, has caused problems in the past. It led to competition between states, which caused them to offer large bonuses to attract soldiers. This resulted in short-term enlistments and a constantly changing army, which was harmful to discipline and put the country at risk.

OriginalThe power of raising armies, by the most obvious construction of the articles of the Confederation, is merely a power of making requisitions upon the States for quotas of men. This practice in the course of the late war, was found replete with obstructions to a vigorous and to an economical system of defense. It gave birth to a competition between the States which created a kind of auction for men. In order to furnish the quotas required of them, they outbid each other till bounties grew to an enormous and insupportable size. The hope of a still further increase afforded an inducement to those who were disposed to serve to procrastinate their enlistment, and disinclined them from engaging for any considerable periods. Hence, slow and scanty levies of men, in the most critical emergencies of our affairs; short enlistments at an unparalleled expense; continual fluctuations in the troops, ruinous to their discipline and subjecting the public safety frequently to the perilous crisis of a disbanded army. Hence, also, those oppressive expedients for raising men which were upon several occasions practiced, and which nothing but the enthusiasm of liberty would have induced the people to endure.

The system has high cost, yields a poor army, and does not manage the equal distribution of the burden between states well. The states near the seat of war made much greater efforts to provide troops than those farther away. This unfair burden cannot be settled among the states, unlike balancing a debt with money. The system of quotas and requisitions, whether applied to men or to money, is in every respect a source of weakness in the Union and of inequality and injustice among its members.

OriginalThis method of raising troops is not more unfriendly to economy and vigor than it is to an equal distribution of the burden. The States near the seat of war, influenced by motives of self-preservation, made efforts to furnish their quotas, which even exceeded their abilities; while those at a distance from danger were, for the most part, as remiss as the others were diligent, in their exertions. The immediate pressure of this inequality was not in this case, as in that of the contributions of money, alleviated by the hope of a final liquidation. The States which did not pay their proportions of money might at least be charged with their deficiencies; but no account could be formed of the deficiencies in the supplies of men. We shall not, however, see much reason to regret the want of this hope, when we consider how little prospect there is, that the most delinquent States will ever be able to make compensation for their pecuniary failures. The system of quotas and requisitions, whether it be applied to men or money, is, in every view, a system of imbecility in the Union, and of inequality and injustice among the members.

The current system of equal voting power among states is unfair because it doesn’t reflect the number of people in each state. This means that smaller states have the same influence as larger ones, even though they have fewer people. This goes against the fundamental idea of a republican government. Some may reply that sovereigns are equal, but this twisted logic contradicts justice and common sense. It also means that the larger states may eventually revolt against the smaller states because they don’t want to be controlled by them. The smaller states should give up this unfair advantage in order to keep the union together.

OriginalThe right of equal suffrage among the States is another exceptionable part of the Confederation. Every idea of proportion and every rule of fair representation conspire to condemn a principle, which gives to Rhode Island an equal weight in the scale of power with Massachusetts, or Connecticut, or New York; and to Delaware an equal voice in the national deliberations with Pennsylvania, or Virginia, or North Carolina. Its operation contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail. Sophistry may reply, that sovereigns are equal, and that a majority of the votes of the States will be a majority of confederated America. But this kind of logical legerdemain will never counteract the plain suggestions of justice and common-sense. It may happen that this majority of States is a small minority of the people of America; and two thirds of the people of America could not long be persuaded, upon the credit of artificial distinctions and syllogistic subtleties, to submit their interests to the management and disposal of one third. The larger States would after a while revolt from the idea of receiving the law from the smaller. To acquiesce in such a privation of their due importance in the political scale, would be not merely to be insensible to the love of power, but even to sacrifice the desire of equality. It is neither rational to expect the first, nor just to require the last. The smaller States, considering how peculiarly their safety and welfare depend on union, ought readily to renounce a pretension which, if not relinquished, would prove fatal to its duration.

Some may say that nine, or two-thirds of the states, must consent to the most important resolutions and thus that those two-thirds would always have a majority of the union's population. But this does not solve the problem of votes not well-representing their constituents. Additionally, it is just factually incorrect, as we can list nine states that contain less than a majority of the people. There are some very important matters determinable by a bare majority. It is also possible that the number of states may increase in the future, but there will be no change in the voting ratio to reflect this.

OriginalIt may be objected to this, that not seven but nine States, or two thirds of the whole number, must consent to the most important resolutions; and it may be thence inferred that nine States would always comprehend a majority of the Union. But this does not obviate the impropriety of an equal vote between States of the most unequal dimensions and populousness; nor is the inference accurate in point of fact; for we can enumerate nine States which contain less than a majority of the people; and it is constitutionally possible that these nine may give the vote. Besides, there are matters of considerable moment determinable by a bare majority; and there are others, concerning which doubts have been entertained, which, if interpreted in favor of the sufficiency of a vote of seven States, would extend its operation to interests of the first magnitude. In addition to this, it is to be observed that there is a probability of an increase in the number of States, and no provision for a proportional augmentation of the ratio of votes.

What at first may seem a solution to this problem is actually itself a poison. Congress has often been in the position of a Polish diet, where a single vote has been enough to stop all its movements. A sixtieth part of the Union, about the proportion of Delaware and Rhode Island, has several times been able to block everything the rest of the government tried to do. It is assumed that unanimity in government leads to security. But in reality, it saps the energy of government and substitutes the chaos of a small, corrupt group for the respectable majority. We are lucky if compromises can be made, as sometimes the productive administration of government is defeated. It’s so hard to get the necessary votes that the government is left in a state of inaction that borders on anarchy.

OriginalBut this is not all: what at first sight may seem a remedy, is, in reality, a poison. To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser. Congress, from the nonattendance of a few States, have been frequently in the situation of a Polish diet, where a single VOTE has been sufficient to put a stop to all their movements. A sixtieth part of the Union, which is about the proportion of Delaware and Rhode Island, has several times been able to oppose an entire bar to its operations. This is one of those refinements which, in practice, has an effect the reverse of what is expected from it in theory. The necessity of unanimity in public bodies, or of something approaching towards it, has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority. In those emergencies of a nation, in which the goodness or badness, the weakness or strength of its government, is of the greatest importance, there is commonly a necessity for action. The public business must, in some way or other, go forward. If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good. And yet, in such a system, it is even happy when such compromises can take place: for upon some occasions things will not admit of accommodation; and then the measures of government must be injuriously suspended, or fatally defeated. It is often, by the impracticability of obtaining the concurrence of the necessary number of votes, kept in a state of inaction. Its situation must always savor of weakness, sometimes border upon anarchy.

It’s not surprising to learn that this kind of government gives greater power to foreign corruption and domestic faction than majority rule, although some have assumed the opposite. This mistake proceeds from not recognizing the harm that comes with obstructing the process of government at critical times. When it takes a large concurrence to do a national act, we will feel safe because it’s unlikely something improper will be enacted, but we forget how much good will be prevented by inaction.

OriginalIt is not difficult to discover, that a principle of this kind gives greater scope to foreign corruption, as well as to domestic faction, than that which permits the sense of the majority to decide; though the contrary of this has been presumed. The mistake has proceeded from not attending with due care to the mischiefs that may be occasioned by obstructing the progress of government at certain critical seasons. When the concurrence of a large number is required by the Constitution to the doing of any national act, we are apt to rest satisfied that all is safe, because nothing improper will be likely TO BE DONE, but we forget how much good may be prevented, and how much ill may be produced, by the power of hindering the doing what may be necessary, and of keeping affairs in the same unfavorable posture in which they may happen to stand at particular periods.

Imagine we are in a war with another country and we are working with another foreign nation to fight against them. If we need to make peace, but our ally wants to continue the war for their own interests, it would be easier for them to stop us from making peace if they only have to sway a minority of votes rather than a majority. This is because they would have to bribe or manipulate fewer people. The same idea applies to foreign countries trying to mess with our decisions or to a nation trying to stop us from trading with their competitor, even if it would be good for us.

OriginalSuppose, for instance, we were engaged in a war, in conjunction with one foreign nation, against another. Suppose the necessity of our situation demanded peace, and the interest or ambition of our ally led him to seek the prosecution of the war, with views that might justify us in making separate terms. In such a state of things, this ally of ours would evidently find it much easier, by his bribes and intrigues, to tie up the hands of government from making peace, where two thirds of all the votes were requisite to that object, than where a simple majority would suffice. In the first case, he would have to corrupt a smaller number; in the last, a greater number. Upon the same principle, it would be much easier for a foreign power with which we were at war to perplex our councils and embarrass our exertions. And, in a commercial view, we may be subjected to similar inconveniences. A nation, with which we might have a treaty of commerce, could with much greater facility prevent our forming a connection with her competitor in trade, though such a connection should be ever so beneficial to ourselves.

This should not be considered a hypothetical. One weakness of republics is that they are more vulnerable to foreign corruption than other forms of government. In a monarchy, the ruler has a personal interest in the country and its reputation, so it is difficult for a foreign power to bribe them to betray their own nation. There are few examples of monarchical prostitution of this kind.

OriginalEvils of this description ought not to be regarded as imaginary. One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption. An hereditary monarch, though often disposed to sacrifice his subjects to his ambition, has so great a personal interest in the government and in the external glory of the nation, that it is not easy for a foreign power to give him an equivalent for what he would sacrifice by treachery to the state. The world has accordingly been witness to few examples of this species of royal prostitution, though there have been abundant specimens of every other kind.

In republics, politicians may find that the payment for betraying the people’s trust outweighs their sense of duty. This is why history gives us so many humiliating examples of foreign corruption in republican governments. How much it ruined the ancient commonwealths has already been described. It is well known that the deputies of the United Provinces have often been bought by agents of neighboring kingdoms. The Earl of Chesterfield, if I remember correctly, wrote to his court that his success in an important negotiation depended on securing a major’s commission for one of those deputies. And in Sweden the parties were bought by turns by France and England, so openly that it disgusted the whole nation, and was a chief reason that the most limited monarch in Europe became, in a single day and without violence, one of the most absolute.

OriginalIn republics, persons elevated from the mass of the community, by the suffrages of their fellow-citizens, to stations of great pre-eminence and power, may find compensations for betraying their trust, which, to any but minds animated and guided by superior virtue, may appear to exceed the proportion of interest they have in the common stock, and to overbalance the obligations of duty. Hence it is that history furnishes us with so many mortifying examples of the prevalency of foreign corruption in republican governments. How much this contributed to the ruin of the ancient commonwealths has been already delineated. It is well known that the deputies of the United Provinces have, in various instances, been purchased by the emissaries of the neighboring kingdoms. The Earl of Chesterfield (if my memory serves me right), in a letter to his court, intimates that his success in an important negotiation must depend on his obtaining a major's commission for one of those deputies. And in Sweden the parties were alternately bought by France and England in so barefaced and notorious a manner that it excited universal disgust in the nation, and was a principal cause that the most limited monarch in Europe, in a single day, without tumult, violence, or opposition, became one of the most absolute and uncontrolled.

Another defect remains to be mentioned: the United States lacks a proper judicial system. Without the courts to decide their meaning and use, laws are just words on a page. Without a national court system, there can be different interpretations of the same laws in different states. All nations have found it necessary to establish a Supreme Court to be a judge-of-last-resort.

OriginalA circumstance which crowns the defects of the Confederation remains yet to be mentioned, the want of a judiciary power. Laws are a dead letter without courts to expound and define their true meaning and operation. The treaties of the United States, to have any force at all, must be considered as part of the law of the land. Their true import, as far as respects individuals, must, like all other laws, be ascertained by judicial determinations. To produce uniformity in these determinations, they ought to be submitted, in the last resort, to one SUPREME TRIBUNAL. And this tribunal ought to be instituted under the same authority which forms the treaties themselves. These ingredients are both indispensable. If there is in each State a court of final jurisdiction, there may be as many different final determinations on the same point as there are courts. There are endless diversities in the opinions of men. We often see not only different courts but the judges of the came court differing from each other. To avoid the confusion which would unavoidably result from the contradictory decisions of a number of independent judicatories, all nations have found it necessary to establish one court paramount to the rest, possessing a general superintendence, and authorized to settle and declare in the last resort a uniform rule of civil justice.

This is even more necessary with the possibility of local laws conflicting with national laws. Where lower courts are the current arbiters, there will be much to fear from the bias of local views and prejudices. Whenever this happens, there may be reason to prefer the local laws to the national ones and ignore proper authority. The current treaties of the United States are liable to the infractions of thirteen different legislatures and as many courts. The faith, reputation, and peace of the union are thus continually at the mercy of local passions. How can a foreign nation respect such a government? Will the people of America trust their lives on so precarious a foundation?

OriginalThis is the more necessary where the frame of the government is so compounded that the laws of the whole are in danger of being contravened by the laws of the parts. In this case, if the particular tribunals are invested with a right of ultimate jurisdiction, besides the contradictions to be expected from difference of opinion, there will be much to fear from the bias of local views and prejudices, and from the interference of local regulations. As often as such an interference was to happen, there would be reason to apprehend that the provisions of the particular laws might be preferred to those of the general laws; for nothing is more natural to men in office than to look with peculiar deference towards that authority to which they owe their official existence. The treaties of the United States, under the present Constitution, are liable to the infractions of thirteen different legislatures, and as many different courts of final jurisdiction, acting under the authority of those legislatures. The faith, the reputation, the peace of the whole Union, are thus continually at the mercy of the prejudices, the passions, and the interests of every member of which it is composed. Is it possible that foreign nations can either respect or confide in such a government? Is it possible that the people of America will longer consent to trust their honor, their happiness, their safety, on so precarious a foundation?

In this review of the confederation, I have shown its most important problems. It should now be clear to all thoughtful people who are not biased that the system is so flawed that it cannot be fixed without major changes.

OriginalIn this review of the Confederation, I have confined myself to the exhibition of its most material defects; passing over those imperfections in its details by which even a great part of the power intended to be conferred upon it has been in a great measure rendered abortive. It must be by this time evident to all men of reflection, who can divest themselves of the prepossessions of preconceived opinions, that it is a system so radically vicious and unsound, as to admit not of amendment but by an entire change in its leading features and characters.

The current system for governing the United States is flawed and cannot be fixed. It is not set up to handle the powers that need to be given to the federal government. If the new constitution is not adopted, there is a risk that we will try to give more power to the current congress, which will likely lead to the government collapsing or becoming a tyranny.

OriginalThe organization of Congress is itself utterly improper for the exercise of those powers which are necessary to be deposited in the Union. A single assembly may be a proper receptacle of those slender, or rather fettered, authorities, which have been heretofore delegated to the federal head; but it would be inconsistent with all the principles of good government, to intrust it with those additional powers which, even the moderate and more rational adversaries of the proposed Constitution admit, ought to reside in the United States. If that plan should not be adopted, and if the necessity of the Union should be able to withstand the ambitious aims of those men who may indulge magnificent schemes of personal aggrandizement from its dissolution, the probability would be, that we should run into the project of conferring supplementary powers upon Congress, as they are now constituted; and either the machine, from the intrinsic feebleness of its structure, will moulder into pieces, in spite of our ill-judged efforts to prop it; or, by successive augmentations of its force an energy, as necessity might prompt, we shall finally accumulate, in a single body, all the most important prerogatives of sovereignty, and thus entail upon our posterity one of the most execrable forms of government that human infatuation ever contrived. Thus, we should create in reality that very tyranny which the adversaries of the new Constitution either are, or affect to be, solicitous to avert.

The current federal system was never ratified by the people. Resting only on the consent of the state legislatures, it has faced frequent questions about the validity of its powers, and has even given rise to the doctrine that a legislature may repeal its own act of ratification. However gross a heresy it is to hold that a party to a compact may revoke that compact, the doctrine itself has had respectable supporters. This proves the need to lay the foundations of our national government deeper than in the mere sanction of delegated authority. The power of government should rest directly on the consent of the people, and the streams of national power ought to flow immediately from that original fountain of all legitimate authority.

OriginalIt has not a little contributed to the infirmities of the existing federal system, that it never had a ratification by the PEOPLE. Resting on no better foundation than the consent of the several legislatures, it has been exposed to frequent and intricate questions concerning the validity of its powers, and has, in some instances, given birth to the enormous doctrine of a right of legislative repeal. Owing its ratification to the law of a State, it has been contended that the same authority might repeal the law by which it was ratified. However gross a heresy it may be to maintain that a PARTY to a COMPACT has a right to revoke that COMPACT, the doctrine itself has had respectable advocates. The possibility of a question of this nature proves the necessity of laying the foundations of our national government deeper than in the mere sanction of delegated authority. The fabric of American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority. PUBLIUS