by Martin

That’s a pretty audacious statement and definitely needs some elaboration, but that is after all, the purpose of headlines. Now that we have your attention …

We’ve already looked at Federalist No. 15, which is the first in a series of 6 on the same topic, namely the inherent incapacity of the Confederation based government to hold the Union together. Hamilton was dead on – the government under the Articles of Confederation was a non-starter. It wasn’t going to work, there really wasn’t any fixing it. Even its own Congress recognized that fact. There were still some opponents of the proposed Constitution who evidently thought it could be salvaged, however, and these folk were presumably the targets of Hamilton’s arguments in Federalists 15 – 21.

So, what did Hamilton “get wrong?” Well, his errors lie in some of the arguments he used to bolster his primary assertion “The Insufficiency of the Present Confederation to Preserve the Union.” It’s almost like voting for the right person for the wrong reason.

Let’s start with Federalist No. 16, in which Hamilton talks about the primacy of legislation by the federal government over that of the states, and the need of the federal government to legislate directly over the people. He starts out reasonably enough and rmarshals his remarkable knowledge of classical history to support his contentions. He makes the point that legislation for states may be styled the parent of anarchy. He suggests that if left to the states, they may choose not to implement the edicts of the federal government, and therein lies chaos. The only way to make such a system work is through the use of force, which may lead to civil war because,

When the sword is once drawn, the passions of men observe no bounds of moderation.

Furthermore, if the Confederacy didn’t resort to the use of force (which would result in its destruction), it would either fall apart, or those members in compliance might be compelled to band together to exert their energies against the members not in compliance. This would lead to the same end – civil war. So far, so good. His arguments about large powerful states pushing around smaller states, the likelihood of a foreign alliance and the dissolution of the Union are all things touched upon before. It’s in this paragraph that he starts to go adrift.

The result of these observations to an intelligent mind (only an idiot would disagree!) must be clearly this, that if it be possible at any rate to construct a federal government capable of regulating the common concerns and preserving the general tranquillity, it must be founded, as to the objects committed to its care, upon the reverse of the principle contended for by the opponents of the proposed Constitution. It must carry its agency to the persons of the citizens. It must stand in need of no intermediate legislations; but must itself be empowered to employ the arm of the ordinary magistrate to execute its own resolutions. The majesty of the national authority must be manifested through the medium of the courts of justice. The government of the Union, like that of each State, must be able to address itself immediately to the hopes and fears of individuals; and to attract to its support those passions which have the strongest influence upon the human heart. It must, in short, possess all the means, and have a right to resort to all the methods, of executing the powers with which it is intrusted, that are possessed and exercised by the government of the particular States.

An awful lot could be read into these sentences. The 10th Amendment in the Bill of Rights (which wasn’t yet part of the Constitution that was being debated) explicitly states that the federal government is one of enumerated powers and that those not explicitly delegated to it are reserved to the States or people respectively.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

While it is true that this essay is largely a reasonable argument against relying on the state legislatures to be the agents of the federal government, it is the interpretation of: “the powers with which it is entrusted, that are possessed and exercised by the government of the particular States,” which gives one pause. The modern reader has the benefit of knowing how Hamilton would use the “necessary and proper” clause to claim implied powers. Hamilton and Jefferson debated the meaning of “necessary and proper” with Hamilton viewing it as authorizing Congress to exercise a broad range of powers and Jefferson arguing that “necessary” was intended to be restrictive and meant “essential.” Right now Jefferson’s interpretation looks really good.

Moving on to Federalist No. 17, which is on the same topic, Hamilton poo-poohs the danger of an overly powerful central government.

Hamilton says that he can’t see any reason why the federal government would ever desire to overstep its authority and stick its nose into things that are clearly the jurisdiction of the states. (He also continues his slightly insulting habit of belittling those who might disagree – e.g. anybody “reasonable” should be able to understand the terms of his argument.)

AN OBJECTION, of a nature different from that which has been stated and answered, in my last address, may perhaps be likewise urged against the principle of legislation for the individual citizens of America. It may be said that it would tend to render the government of the Union too powerful, and to enable it to absorb those residuary authorities, which it might be judged proper to leave with the States for local purposes. Allowing the utmost latitude to the love of power which any reasonable man can require, I confess I am at a loss to discover what temptation the persons intrusted with the administration of the general government could ever feel to divest the States of the authorities of that description. The regulation of the mere domestic police of a State appears to me to hold out slender allurements to ambition. Commerce, finance, negotiation, and war seem to comprehend all the objects which have charms for minds governed by that passion; and all the powers necessary to those objects ought, in the first instance, to be lodged in the national depository. The administration of private justice between the citizens of the same State, the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction. It is therefore improbable that there should exist a disposition in the federal councils to usurp the powers with which they are connected; because the attempt to exercise those powers would be as troublesome as it would be nugatory; and the possession of them, for that reason, would contribute nothing to the dignity, to the importance, or to the splendor of the national government.

It just goes to show you, no one gets it right all the time.