Federalist 17: Applying Federal Law to Individual State Citizens Will Not Result in an Unlimited Federal Government

ANOTHER OBJECTION made to the principle that Federal law ought  to apply to the individual citizens of America is that it would tend to render the government of the United States too powerful, and enable it to absorb those residual authorities which are properly left to the States for local purposes.

Those Without Federal Power Falsely Assume Those with Federal Power Will Abuse It

The objection assumes the persons entrusted with the administration of the general government would be tempted to divest the States of such residuary authorities.  Allowing the utmost latitude to the love of power any reasonable person can desire, the regulation of the mere domestic police of a State appears to hold out slender allurements to ambition.  The objects lodged in the national depository in the first instance – commerce, finance, negotiation, war, and the powers necessary thereto – comprehend all the objects which charm those minds governed by the passion for power.  The powers properly reserved for local legislation – the administration of private justice between the citizens of the same State, the supervision of agriculture, and other concerns of a similar nature – can never be desirable cares of general Federal power.   

Federal councils disposed to usurp and exercise these residual powers would find the task as troublesome as successful in negating those residual powers; and for this reason the possession of them would contribute nothing to the dignity, importance, or splendor of the national government or their persons. Even if I were to assume the existence base wantonness and lust of domination would beget such a disposition, the constituent body of the Congress – composed of representatives of all the States – would control the indulgence of so extravagant an appetite.  

States Pose Greater Threats to Federal Power than Vice-Versa

The objection that the Federal government will become too powerful disregards that State governments can encroach upon the national authorities with greater ease than the national government can encroach upon the State authorities. A State government will generally possess a greater degree of influence over the People if it administers its affairs with uprightness and prudence.  

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Allowing the utmost latitude to the love of power any reasonable person can desire, the regulation of the mere domestic police of a State appears to hold out slender allurements to ambition. The objects lodged in the national depository in the first instance – commerce, finance, negotiation, war, and the powers necessary thereto – comprehend all the objects which charm those minds governed by the passion for power.  

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Human affections are generally weaker in proportion to the distance or diffusiveness of the object. Just as one is more attached to family than to neighborhood, and to neighborhood than to the community at large, the People of each State would be apt to feel a stronger connection to their local governments than to the government of the United States (unless the latter has a much better administration).  As a consequence, there is an inherent and intrinsic weakness in all federal constitutions, requiring detailed attention to their organization, in order to give them all the force compatible with the principles of liberty.  

States Retain the Important Power and Control over the Ordinary Administration of Criminal and Civil Justice

While the diffusive construction of the Federal government partly contributes to the superiority of influence in favor of State governments, the chief cause of State superiority results from the nature of the objects to which the attention of the State administrations are directed. This strength of local administrations lies in their superintendence of minute interests, which form so many rivulets of influence, running through every part of the society, that they cannot be particularized without involving a detail too tedious and uninteresting to compensate for the instruction it might afford. There is, however, one transcendent advantage belonging to the province of the State governments which alone suffices to place the matter in a clear and satisfactory light:  the ordinary administration of criminal and civil justice, which is the most powerful, universal, and attractive source of popular obedience and attachment. 

The administration of criminal and civil justice – being the immediate and visible guardian of life and property – has its benefits and its terrors in constant activity before the public eye. In regulating all those personal interests and familiar concerns to which the sensibility of individuals is more immediately awake, the administration of criminal and civil justice contributes more than any other circumstance to impressing upon the minds of the People affection, esteem, and reverence towards the government. This great cement of society, diffused almost wholly through the channels of local governments, and independently of all other causes of influence), ensure them so decided an empire over their respective citizens as to render them at all times a complete counterpoise – and not infrequently – dangerous rivals to the power of the United States.  

The Federal Government Will Have Less Impact on Daily Lives than State Governments

On the other hand, the operations of the Federal government fall less immediately under the observation of the mass of the citizens. The benefits of such operations will chiefly be perceived and attended to by speculative individuals. Since the Federal operations will relate to more general interests, they will be less apt to come home to the feelings of the People; and, in proportion, less likely to inspire an habitual sense of obligation, and an active sentiment of attachment.  

The Examples of the Feudal System and Scotland 

The experience of all federal constitutions and analogous arrangements demonstrate exemplify these observations. For example, ancient feudal systems – although they were not, strictly speaking, confederacies – partook of the nature of that species of association.

There was a common head, chieftain, or sovereign, whose authority extended over the whole nation; and a number of subordinate vassals, or feudatories, who had large portions of land allotted to them, and numerous trains of inferior vassals or retainers, who occupied and cultivated that land upon the tenure of fealty or obedience, to the persons from whom they held it.  

Each principal vassal was a kind of sovereign within the area he controlled.  As a consequence there was a continual opposition to a general sovereign, resulting in frequent wars between the great barons or chief feudatories themselves. Since the power of the head of the nation was commonly too weak to preserve the public peace or protect the people against the oppressions of their immediate lords, feudal anarchy ensued.  

When the sovereign happened to have a vigorous, warlike temper and superior abilities, he would acquire a personal weight and influence, which answered, for the time, the purpose of a more regular authority, but generally the power of the barons triumphed over the power of the prince. In many instances his dominion was entirely thrown off, and the great fiefs were erected into independent principalities or states. In those instances in which the monarch finally prevailed over his vassals, his success was chiefly owing to the tyranny of those vassals over their dependents.  The barons or nobles – being equally the enemies of the sovereign and the oppressors of the common people – were dreaded and detested by both. The mutual danger and mutual interest of the prince and the people effected a union between them fatal to the power of the aristocracy. Had the nobles preserved the fidelity and devotion of their retainers and followers by a conduct of clemency and justice, their contests with the prince would almost always have ended in their favor, with the abridgment or subversion of royal authority.  

This assertion is not founded merely in speculation or conjecture, for the example of Scotland, among others, illustrates its truth. From that kingdom’s early days, the spirit of clanship united the nobles and their dependents as though they were kindred. These ties rendered the aristocracy a constant overmatch for the power of the monarch, until England subdued its fierce and ungovernable spirit, and subordinated it to a more rational and energetic system of civil polity.

States May Be Compared to Feudal Baronies

The separate governments in a confederacy may aptly be compared with feudal baronies.  They will generally possess the confidence and goodwill of the People, and be disposed to oppose all encroachments of the national government. In fact, the States would tend to counteract the legitimate and necessary Federal authority. Both State and Federal governments would rival for power, but the State has large portions of the strength of the community concentrated into particular deposits, in one case at the disposal of individuals, in the other case at the disposal of political bodies. 

Hamiltonoriginal Federalist 17