Federalist 15: Our Former Government Was Fatally Flawed
THE POINT NEXT TO BE EXAMINED is why the Articles of Confederation were insufficient to the preserve the Union of the States. Although no one has disputed the proposition, a few observations are in order, since we had reached almost the last stage of national humiliation under that Confederation.
The Confederation violated contracts and defaulted on its war debts. It allowed Britain to remain in territories which – by express stipulations – ought long since to have been surrendered, to the prejudice of our interests and rights. We were in no condition to resent or repel aggression because we had neither troops, nor a treasury, nor a government. We were not even in a condition to remonstrate with dignity. We were entitled by nature and compact to a free participation in the navigation of the Mississippi, but Spain excluded us from it. Our public credit – an indispensable resource in time of public danger – was abandoned as desperate and irretrievable. Our commerce – of great importance to national wealth – was at the lowest point of declension. Our former government was so imbecilic that no foreign power respected or would entreat with it, depriving us of a safeguard against foreign encroachments. Our ambassadors abroad were mere pageants of mimic sovereignty.
We suffered a violent and unnatural decrease in the value of land, which surely was a symptom of national distress. The price of improved land in most parts of the country was much lower than attributable to the quantity of wasteland at market. It could only be fully explained by the alarmingly prevalent want of private and public confidence among all ranks, which has a direct tendency to depreciate property of every kind. Private credit – the friend and patron of industry – was reduced within the narrowest limits, more so from the prevailing opinion of insecurity than from scarcity of money.
To this melancholy situation were we led by the very maxims and councils who also sought to deter us from adopting the Constitution. Not content with having conducted us to the brink of a precipice, our opponents were resolved to plunge us into the abyss that awaited us below.
These facts produced a general assent to existence of material defects in our former national system. It was at that point where we stood firm for our safety, tranquility, dignity, and reputation – impelled by every motive that ought to influence an enlightened People. We at last broke the fatal charm which too long seduced us from the paths of felicity and prosperity.
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The great and radical vice of the Confederation was that it authorized Federal legislation directed at States and governments in their corporate or collective capacities, but did not authorize legislation directed at the individuals of whom they consisted.
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The adversaries of the Constitution strenuously opposed conferring upon the United States the powers to remedy the deficiencies of the Confederation. These adversaries aimed at things repugnant and irreconcilable: augmentation of Federal authority without a diminution of State authority, and sovereignty in the Federal government but with complete independence in the States. They cherished with blind devotion the political monster of an imperium in imperio – of individual sovereign States within a sovereign Federal government.
Thus it becomes necessary to display fully the principal defects of the Confederation, in order to show the evils we experienced did not proceed from minute or partial imperfections, but from fundamental errors in the structure of the building, which could not be amended other than by altering its main pillars.
The Need to Extend Federal Governmental Control Over Individuals
The great and radical vice of the Confederation was that it authorized Federal legislation directed at States and governments in their corporate or collective capacities, but did not authorize legislation directed at the individuals of whom they consisted. Although this principle does not run through all the powers delegated to the United States, it pervades and governs those on which the efficacy of the rest depends. Except as to the rule of appointment, the Confederation had an indefinite discretion to make requisitions for men and money from the States, but it lacked authority to raise either by the use of regulations extending to the individual citizens of the States. In theory the regulations of the Confederation concerning those objects were binding on the States, but in practice they were mere recommendations which the States observed or disregarded at their option.
The capriciousness of the human mind is singularly shown by those who insisted we could not abandon these weaknesses of the Confederation, even though all the evidence and experience demonstrated that these weaknesses undermined the idea and very foundation of government. In the end, these opponents would have substituted the violent and sanguinary agency of the sword to the mild influence of the magistracy.
Europe’s Experience with Treaties Dependent on Good Faith
There is nothing absurd or impracticable in the idea of a league or alliance between independent nations for certain defined purposes precisely stated in a treaty regulating all the details of time, place, circumstance, and quantity; leaving nothing to future discretion, and depending for its execution on the good faith of the parties. Compacts of this kind exist among all civilized nations – subject to the usual vicissitudes of peace and war (and of treaty observance and non-observance) – as the interests or passions of the contracting powers dictate.
In the years after 1700 there was an epidemical rage in Europe for this species of compacts, from which the politicians of the times fondly hoped for benefits that never materialized. All the resources of negotiation were exhausted with a view to establishing the equilibrium of power and the peace of that part of the world. Triple and quadruple alliances were formed upon the assumption that general considerations of peace and justice would check the impulse of immediate interest or passion. But these treaties were soon broken, giving an instructive but afflicting lesson to humanity of how little dependence is to be placed upon treaties having no other sanction than the obligations of good faith.
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In the Eighteen Century, triple and quadruple alliances were formed upon the assumption that general considerations of peace and justice would check the impulse of immediate interest or passion. But these treaties were soon broken, giving an instructive but afflicting lesson to humanity of how little dependence is to be placed upon treaties having no other sanction than the obligations of good faith.
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Limited Treaties Between the States Are Insufficient
If the particular States had been disposed to stand in a similar relation to each other – and to drop the project of a general discretionary superintendence – the scheme would have indeed been pernicious, entailing upon us all the mischiefs that flow when the competing interests or passions if the contracting States conflicted. But at least such a plan would have had the merit of being consistent and practicable. If we had abandoned all views towards a Federal government, it would have brought us to a simple alliance offensive and defensive, and placed us in a situation alternately to be friends and enemies of each other, as our mutual jealousies and rivalries – nourished by the intrigues of foreign nations – would have prescribed to us.
But we were unwilling to be placed in this perilous situation, and still desired to adhere to the superintending power of a Federal government under the direction of a common council. We therefore resolved to incorporate into our plan those ingredients which distinguish a league from a government: we extended the authority of the United States to individual citizens – who are the only proper objects of government.
A Penalty for an Illegal Act Must Be Enforceable Against the Offending Individual
The penalty, whatever it may be, can be inflicted in only two ways: by the agency of the courts and ministers of justice, or by military force; that is, by the coercion of the magistracy, or by the coercion of arms. Coercion by courts and justice ministers can apply only to individuals; coercion by military force must be employed against bodies politic, communities, or states.
It must be evident there is no process of a court by which the observance of the laws can, in the last resort, be enforced. Sentences may be pronounced for violations of their duty; but these sentences can only be carried into execution by the sword. In an association where the general authority is confined to the collective bodies of the communities that compose it, every breach of the laws must involve a state of war, and military execution must be the only instrument of civil obedience. Such a state of things can certainly not deserve the name of government, nor would any prudent individual choose to commit personal happiness to it.
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The spirit of faction – which is apt to mingle its poison in the deliberations of all bodies of humans – will often hurry its constituent members into improprieties and excesses, for which they would blush in a private capacity.
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There was a time when we were told that breaches of the regulations of the Federal authority by the States were not to be expected, and that a sense of common interest would preside over the conduct of the respective members, and beget a full compliance with all the constitutional requisitions of the Confederation. Experience – the best oracle of wisdom – has proven these assurances to be as wild as those heard earlier in Europe and now in opposition to the Constitution.
A viewpoint that relies on good faith alone for compliance betrays an ignorance of the true springs by which human conduct is actuated, and belies the original inducements to the establishment of civil power. Why has government been instituted at all? Because the passions of humans will not conform to the dictates of reason and justice without constraint. Has it been found that bodies of individuals act with more rectitude or greater disinterestedness than single individuals? Every accurate observer of the human conduct has concluded the opposite is true, and for obvious reasons. When the infamy of a bad action is to be divided among a number of individuals rather than fall singly upon one, a sound regard for one’s reputation has a less active influence. The spirit of faction – which is apt to mingle its poison in the deliberations of all bodies of humans – will often hurry its constituent members into improprieties and excesses, for which they would blush in a private capacity.
Subordinate Political Bodies Often Resist a Superior Sovereign Power
In addition to all this, the nature of sovereign power includes an impatience for control. All those who exercise sovereign power look with an evil eye upon any external attempt to restrain or direct its operation. In response to this spirit of control, every inferior political association formed upon the principle of uniting in a common interest will have a tendency to fly off from the common center of the ultimate sovereign. This tendency is easily explained: its origin is the love of power. Power that is controlled or abridged is almost always the rival and enemy of that power by which it is controlled or abridged.
This simple proposition teaches us how little reason there is to expect that persons entrusted with the administration of the affairs of a particular member of a confederacy will at all times be ready to execute – with perfect good-humor and an unbiased regard to the public weal – the resolutions or decrees of the general authority. The reverse results from the very constitution of human nature.
If the measures of the Constitution cannot be executed without the intervention of each constituent State government, there will be little prospect of their being executed at all. The rulers of each State – whether or not they have a constitutional right to do so – will themselves undertake to judge the propriety of the Federal measures. They will naturally consider the conformity of the thing proposed or required to their immediate interests or aims, and the momentary conveniences or inconveniences that would attend its adoption. All this will be done in a spirit of interested and suspicious scrutiny, with a strong predilection in favor of local objects. The knowledge essential to a right judgment – the national circumstances and reasons of state which led to an enactment – will be absent, and this can hardly fail to mislead the local decision. Furthermore, the same process must be repeated in every State, and the execution of the plans, framed by the councils of the whole, will always fluctuate on the discretion of the ill-informed and prejudiced opinion of every part. Anyone conversant in the proceedings of popular assemblies has seen how difficult it is to bring them to harmonious resolutions on important points, in the absence exterior pressure of circumstances. From this one can readily conceive how impossible it would be to induce a number of such assemblies – deliberating at a distance from each other, at different times, and under different impressions – to cooperate in the same views and pursuits.
Under the Articles of Confederation, the concurrence of thirteen distinct sovereign wills was required to complete the execution of every important measure that proceeded from the Union. As we saw, the measures of that Confederation were not executed; the delinquencies of the States incrementally matured themselves to an extreme, which at length arrested all the wheels of the national government, and brought them to an awful stand. Until the States could agree upon a more substantial substitute for the shadow of a Federal government, its Congresses scarcely possessed the means of keeping up the forms of administration.
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If the measures of the Constitution cannot be executed without the intervention of each constituent State government, there will be little prospect of their being executed at all.
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Things did not proceed to this desperate extremity all at once. At first there were only unequal and disproportionate degrees of compliance with the requisitions of the Confederation. The greater deficiencies of some States furnished the temptation to and pretext for lesser compliance by the least delinquent States: why should they do more in proportion than those States who had embarked with them on the same political voyage, or consent to bear more than our proper share of the common burden? These were suggestions human selfishness could not withstand, especially since consequences for noncompliance were remote. Yielding to the persuasive voice of immediate interest or convenience, each State successively withdrew its support of the Confederation, until the frail and tottering edifice seemed ready to fall upon our heads and crush us beneath its ruins.
Hamilton original Federalist 15