Other Defects of the Present Confederation (continued)
New York Packet
Friday, December 14, 1787
In addition to the defects of the existing federal system that I discussed in my last paper, there are others which are just as important, and that also make this current system of ours incapable of administering the affairs of the Union.
All parties agree that the lack of a power to regulate commerce is one of these defects. The usefulness of such a power has already been discussed in earlier papers (Nos. 11-13), and for this reason, as well as the universal agreement on this subject, not much else needs to be said. Even the most casual observer will see that that whether it is trade or finance, nothing else clearly demands Federal oversight more than commerce.
The lack of this power has already kept us from signing treaties with foreign powers that would have been beneficial, and has also caused friction between the states. No nation that is familiar with our current political system would be unwise enough to make any binding agreements with the United States because those agreements would concede important privileges to us, as any agreements on behalf of the Union could be broken at any time by one of the states.
Also, they have found that they are able to enjoy every advantage our markets provide them without granting us anything in return, except when it may be convenient for them. It is therefore not surprising that when Mr. Jenkins introduced a bill to the House of Commons (Great Britain) that would regulate all the temporary interaction between our two countries. He introduced it by declaring that previous bills had been able to achieve all the goals of British commerce, and that it would be wise to continue this policy until it became clearer whether or not the American government would become more stable.
Several states have tried to influence the actions of Great Britain in this regard by enacting their own bans, restrictions, and exclusions. But the lack of coordination, which itself comes from a lack of a general authority, not to mention the different views of the states, has thwarted every similar attempt, and will continue to do so as long as the obstacles which prevent us from implementing a uniform commercial policy remain the same.
Contrary to the spirit of the Union, the meddlesome and un-neighborly regulations of some states have sometimes given other nations good reason to be offended and complain about us. I fear that if examples like this are not restrained by a national authority, they will not only happen more often but will become more widespread until they become very serious sources of animosity and conflict, which may even obstruct the commerce between different parts of the Confederacy itself.
“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 American people may never permit this to happen, we can reasonably expect that conflicts between the regulations of each state will gradually cause the citizens of each to be regarded and treated by the others as no better than foreigners or aliens.
Under the Articles of Confederation, the power of raising armies amounts to not much more than the congress being able to require from the states certain quotas of men. As the Revolutionary war showed, this system has been found to be full of obstacles to a strong and effective system of defense. The states began to compete with each other in a sort of auction for men. In order to provide the quotas required of them, they outbid each other until their bounties became so large that they could no longer support them. Those who were more willing to serve began to procrastinate and stopped sending their men into battles as often because they continued to hope that the bounties would become even larger.
What resulted was a slow stream of very few men during our most desperate emergencies, short enlistments (to our great loss), and continuous fluctuations in the number of troops, which proved disastrous for their discipline and also constantly put the public safety in danger of the crisis of a disbanded army. This also forced us to occasionally use harsh methods to recruit and keep men in the army, which were only put up with because of the People’s enthusiasm for liberty.
This method of recruiting troops is just as unfriendly to the economy and our national vitality as it is to an equal sharing of the burdens of war. The states near the front lines, in the interests of self-preservation, made the necessary effort to supply their quotas of men (which was often more than they could truly afford), while the states at a greater distance were just as negligent in their efforts as the others were diligent in theirs. The immediate pressures that were felt from all of this was not eased by the hope that some of the negligent states would come clean (as was the case with financial contributions). The states which did not pay their fair share of money could at least be charged with that, but it wasn’t possible to keep track of all the shortages of men. There is really no reason to regret this however, since there is a very small chance that delinquent states will ever be able to provide compensation for their financial failures anyway. The system of quotas and requisitions, whether it regards money or men, is in every way a stupid system for the Union, and one which results in inequality and injustice amongst the states.
Giving each state the exact same voting power is another horrible part of the Confederation. Every idea of fair representation condemns this principle that gives Rhode Island the same voting power as Massachusetts, or Connecticut the same as New York, and gives Delaware just as much influence over national debates as Pennsylvania, or Virginia, or North Carolina. Its very nature contradicts the fundamental principle of republican government, which requires that the majority should prevail.
Arguments that sound good but that lack substance could be made in support of the idea that sovereigns are equal, and that a majority of the votes of the states will be a majority of Confederated America. But this sort of logical game will never replace what fairness and common sense tell us is correct. Under this principle, it would be possible for a majority of the states to only include a minority of the People (New Hampshire, Rhode Island, New Jersey, Delaware, Georgia, South Carolina, and Maryland are a majority of the states, but they are not even a third of the total population of the United States). Two thirds of the People of America will not be persuaded by fancy arguments or fancier speech to allow their interests to be governed at will by the other third. The larger states would sooner or later revolt against the idea of having to live under the laws which came out of the smaller states. If they were to give up their rightful political importance in this country, it would not only require giving up the love of power, but also even the love of equality. It is neither rational to expect the first, or moral to require the second. Considering how much the smaller states rely on the Union for their protection and welfare, they would be wise to drop this claim to equal voting power which, if not given up, would prove fatal to the existence of the Union.
It could be argued that since under the Articles of Confederation nine states (two thirds of the states), not seven, are required to agree on the most important decisions, then those nine states will always include a majority of the citizens of the Union. But this doesn’t even address the unfairness of an equal vote between states that are completely different sizes and have very unequal populations. Nor is it even accurate to say this: by simply adding New York and Connecticut to our previous list and bringing it to a total of nine states, we still don’t have a majority of the People. Besides, there are very important matters which can be decided by a bare majority, while there are others about which doubts have been raised which, if we say that seven votes are enough to make a decision about them, would end up affecting some of our most important interests. It should also be pointed out that while it is likely that the number of states will increase, there is currently nothing in the Articles of Confederation which will provide for a proportional rise in the ratio of votes required to pass resolutions.
But this is not all: what at first may seem like a cure is in fact a poison. To give a minority the power to override a majority (which is always the case when more than a majority is required to make a decision) essentially subjects the views of the greater number to those of the lesser. Because some states’ representatives have not even been present, congress, like the Polish Diet, has been frequently brought to a complete halt because of a single VETO. Delaware and Rhode Island, which represent a full 1/60 of the population of the Union, have been able to bring congress to a complete standstill several times. This is one of those things which sound good in theory, but whose actual result is quite the opposite. The idea that the important decisions of any public body should be unanimous was originally coined because of a desire for greater security. But what has actually happened has resulted in the embarrassment of the administration, the destruction of the energy of government, and the replacement of the regular debates of a respectable majority with the capricious desires of an insignificant, turbulent, or corrupt junta. It is during national emergencies when the goodness or badness, weakness or strength of a government becomes extremely important because of the necessity for action.
The public business must, in some way or another, go forward. If a stubborn minority can control the opinion of the majority, then the majority will be forced, in order to move public business forward, to conform to the views of the minority, and thus the views of the smaller will ultimately overrule the views of the larger. This causes tedious delays, constant negotiation and intrigue, and as such will disgracefully compromise the public good. And yet, in such a system, it is fortunate that a compromise can even be made in the first place, since coming to any sort of agreement will not even occur on other occasions, which would put the functions of government on hold, or even fatally stop them. In this system, it is often impractical to obtain the necessary number of votes, and so the government is constantly very busy doing nothing. Its situation will always be one of weakness, or even borderline anarchy.
It is not difficult to see how the rule of the minority would help facilitate foreign intrusions into our country, as well as a greater amount of domestic factions than the rule of the majority would, despite the fact that the opposite is the common assumption. The biggest source of the mistake behind this assumption would be, and has been, not enough attention being paid to those problems which would result from the work of government being obstructed during certain critical periods. When the agreement of a large number is required by the constitution to do anything at the national level, then we can at least rest peacefully knowing that at least nothing inappropriate will likely be done. But we forget how much good could be prevented, and how much bad could result from keeping the government in this straitjacket, and from doing what is necessary.
Suppose, for example, that we were in an alliance with one foreign nation in a war against another, and let’s say that our situation demanded peace, while the interests or ambition of our ally leaned towards continuing the war, a situation which would justify us in seeking a separate peace treaty. In this situation, this ally of ours would find it much easier to tie up the hands of our government, which requires two thirds of the vote instead of a simple majority to negotiate peace, by their scheming and bribes. In the first case, he would have to corrupt a smaller portion of our government, and in the second, a much larger portion. Based on the same principle, it would be even easier for a foreign nation we were actually at war with to confuse our congress and make a mockery of our war effort. Similar things would happen economically as well. A nation with whom we had a treaty of commerce could very easily prevent us from negotiating a similar treaty with one of their competitors, even though such a treaty would be beneficial to us.
These evils that I have described are by no means simply imaginary. Despite the many advantages, one of the weaknesses of a republic is that it is too easy for a foreign power to corrupt. A hereditary monarch, though he may often sacrifice his subjects for the sake of his own ambition, has such a great personal interest in the government and the external glory of his nation that it would be very difficult for a foreign power to offer him anything which would make him willing to commit treason against his own state. There have been very few examples of this type of royal prostitution, though there have been many examples of all sorts of other kinds.
In republics, people who are elevated above the rest of the community to prestigious and powerful positions by the votes of their fellow citizens, may find that it is worth it (unless they are exceptionally virtuous) to take a bribe which seems to outweigh their obligations and duty to the public. Hence the reason why history provides us with so many mortifying examples of foreign corruption taking place in republics! I have already discussed how this has led to the downfall of many of the ancient confederacies (Nos. 18). It is a well-known fact that some of the representatives of the United Provinces (United Netherlands) have been bought off by the representatives of the neighboring kingdoms. If my memory serves me correctly, the Earl of Chesterfield (Great Britain) wrote in a letter to his court that his success in some important negotiations with the United Netherlands was because he was able to obtain a Major’s commission (military rank) for one of their representatives. And in Sweden, the rival parties were both alternately bought by France and England in such a shameless and notorious manner that it aroused universal disgust throughout that nation, and was also the main reason behind how the most limited monarch in Europe became in a single day, without any uproar, violence, or opposition, one of the most absolute and uncontrolled monarchs in Europe.
I have yet to mention the defect which tops off all of the defects of the Confederacy: the lack of a judiciary power. Laws are worthless words on paper without courts to interpret and define their true meaning and function. If the treaties of the United States are to have any force at all, they must be considered part of the law of the land. Their true significance, as far as individuals are concerned, must, like all other laws, be determined by the judiciary. To make sure that these determinations remain uniform, there ought to be a body which has the last word on all of them, a SUPREME COURT, which should be given the same degree of authority as that which negotiates the treaties in the first place. Both of these ingredients are absolutely necessary. If each state has its own supreme court, a court which would have the last word for that individual state, then there may be as many legal determinations as there are courts. There is an infinite amount of diverse opinions among men, as we see when not only different courts, but judges on even the same courts disagree with each other. To avoid the confusion that would come from multiple courts making contradictory decisions on multiple laws, all nations have found it necessary to establish one Supreme Court that is above all the others and which has the final say on all judicial determinations, so that the rules of civil justice remain uniform throughout the land.
This is even more important in a situation like ours, where the laws of the whole are in danger of being overridden by the laws of the parts. If each state’s court is allowed to make its own final decisions, other than the contradictions which are sure to come up between the states, it is likely that each court’s decision will be strongly affected by local views, prejudices, and laws. As far as such interference is concerned, it is more likely that the provisions of the local laws will be preferred more than the national laws, simply because of the greater respect that men in public office give to the authority to which they owe their existence. The treaties of the United States can currently be broken by thirteen difference legislatures, as well as by all the different courts which act under the authority of those legislatures. The good faith, reputation, and peace of the entire Union are thus always at the mercy of all the prejudices, passions, and interests of each of the states. Is it possible for foreign nations to respect or trust such a government? Is it even possible that the People of America will continue to trust their honor, happiness, and safety to such an unstable foundation?
In this overview of the Confederation, I have only focused on its most obvious defects, and temporarily ignored the many imperfections that can be found in the details, imperfections which render all the powers given to the Confederacy dead on arrival. It must be obvious at this point to all wise and unbiased men that this system is so radically flawed and unsound that it must not merely be amended, but must have its main features and characteristics completely changed.
The very organization of congress is utterly incapable of exercising the powers which are necessary for the Union to have. A single legislature may be the proper receptacle of those small, extremely restricted powers which the current federal government has, but it would be contrary to good government to entrust it with those additional powers which even the more moderate and rational opponents of the Constitution agree the United States should have. If the proposed Plan is not accepted, but the Union is still able to survive the schemes of men who wish to profit from its dissolution, then we should probably give the congress, as it is currently structured, several supplementary powers. Either the machine will completely fall apart because of how weak it is, or it will have its force and energy gradually increased in the future (as necessary) until it finally has gathered unto itself, and in a single body (congress) all the important rights and powers of sovereignty, leaving to our posterity one of the most hideous forms of government ever imagined by man. Thus, we would actually create the very tyranny which the opponents of the Constitution wish to avoid!
The fact that the existing federal system was never ratified by the PEOPLE has contributed more than just a little bit to its infirmity. Resting on no better foundation than the consent of the legislatures of the states, many frequent and detailed questions about the validity of its powers have been raised, and have even (in some cases) given birth to the dangerous idea of a right to legislative repeal. Since the Confederacy owes its existence to the law of a state, it has been argued that the same power which established this central government (the individual states) could also repeal the law which it itself passed. No matter how profane it is to say that a party which has made an agreement has a right to break that agreement, this doctrine has found some respectable supporters. The mere fact that this has even come up should prove to us the necessity of providing our national government with a stronger foundation than the one which simply relies on authority delegated from some other authority. The fabric of American empire should rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of National power should flow directly from this pure, original fountain of all legitimate authority.
United States Constitution: Article I, Section 8, clause 3
“Encyclopedia, article ‘Empire’” [sic]
Junto: “A self-appointed committee, especially one with political aims.”
United States Constitution: Article III, Section 1
United States Constitution: Article VI, clause 2
The description of the Judicial Branch under the Constitution is contained in Article III, while the description of Congress and the President (“… [the] same authority as that which negotiates the treaties in the first place”) is mostly found in Article I and Article II, with several miscellaneous powers of Congress existing throughout the Constitution.
Nullification Doctrine: This is the doctrine, or principle which said that the states were individually capable of declaring Federal laws unconstitutional, and therefore had the right to repeal them (for that state). It was also very closely related to the idea of secession, which was the idea that the states had the right to leave the Union. Historically, there seems to be at least a tacit acknowledgement of this doctrine’s legitimacy by both Thomas Jefferson and James Madison. Jefferson wrote in the Kentucky Resolutions (1798):
“…that in cases of an abuse of the delegated powers, the members of the general government, being chosen by the people, a change by the people would be the constitutional remedy; but, where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non fœderis) to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them: that nevertheless, this commonwealth, from motives of regard and respect for its co-States, has wished to communicate with them on the subject: that with them alone it is proper to communicate, they alone being parties to the compact, and solely authorized to judge in the last resort of the powers exercised under it…”
Madison wrote in the Virginia Resolutions (1799), which are typically paired with the Kentucky Resolutions:
“The resolutions, having taken this view of the Federal compact, proceed to infer that, in cases of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the States, who are parties thereto, have the right, and are in duty bound to interpose to arrest the evil, and for maintaining, within their respective limits, the authorities, rights, and liberties appertaining to them. ...The Constitution of the United States was formed by the sanction of the States, given by each in its sovereign capacity. It adds to the stability and dignity, as well as to the authority of the Constitution, that it rests on this solid foundation. The States, then, being parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal above their authority to decide, in the last resort, whether the compact made by them be violated; and, consequently, as parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition.”
United States Constitution: Preamble