Federalist 22: The Need for a Power to Regulate Commerce, a National Court of Last Resort, and the Consent of a Majority of the People
IN ADDITION TO THE DEFECTS already enumerated concerning the Federal system under the Articles of Confederation, others of equal importance concur in rendering it altogether unfit for the administration of the affairs of the United States.
The Power to Regulate Commerce Is Indispensable
All agreed that a principal defect of the Articles of Confederation was the absence of a Federal power to regulate commerce. No objects more strongly demand a Federal superintendence than trade and finance. The absence of a Federal power to regulate commerce prevented formation of beneficial treaties with foreign powers and caused dissatisfaction between States. No nation acquainted with the Confederation was unwise enough to agree to concede privileges of any importance, since these engagements could at any moment be violated by the individual States comprising it. Experience has shown other nations they can enjoy every advantage they desire in our markets without granting us any return except what their momentary convenience might suggest. For instance, Great Britain consistently limited itself to temporary trade measures with us – and would have continued doing so – until it appeared to them that our government was likely to acquire a greater consistency.
Several States have endeavored to influence trade with Britain through the use of prohibitions, restrictions, and exclusions. All such efforts were frustrated, due either to the lack of concerted action among the States, or from clashing and dissimilar views within an individual State. These obstacles would remain unless there arose a general Federal authority to regulate commerce.
Some States (through regulation) had interfered with and been unneighborly to other States, contrary to a spirit of union. Their regulations gave just cause of umbrage for complaint. Examples of this nature, unless restrained by the Federal government, likely would have multiplied and extended until they become injurious impediments to trade between different parts of the confederacy Consider Germany, where commerce is continually trammeled due to the multiplicity of duties the several princes and states exact upon the merchandises passing through their territories, thus rendering its fine streams and navigable rivers almost useless. One would hope the genius of our People will never permit this description to be strictly applicable to us. However, we may have reasonably expected the gradual conflicts of State regulation would at length have cause the citizens of each State to be considered and treated by the others no better than as foreigners and aliens.
Quota Systems for the Supply of Troops During the Revolutionary War Were Erratic and Unreliable
Under the Articles of Confederation, the power of raising armies was merely a power of making requisitions upon the States for quotas of men. During the Revolutionary War, this practice obstructed a vigorous and economical system of defense. The States set up bounties for enlistment and competed with each other for recruits. The result was an auction for men, with States outbidding each other until the bounties grew to be enormous and insupportable. Even those predisposed to serve procrastinated their enlistment, in the hope of a further increase. The levies of men were slow and scanty even in the most critical times. Short enlistments were had at unparalleled expense. The continual fluctuations in troops was ruinous to their discipline, and frequently subjected the public safety to the perilous crisis of a disbanded army. Irregular enlistment also led to the use of oppressive expedients for raising men, which nothing but the enthusiasm of liberty would have induced the People to endure.
A quota system of raising troops also resulted in an unequal distribution of the burden. The States near the seat of war – influenced by motives of self-preservation – made efforts to furnish their quotas in excess of their abilities. Those States at a distance from danger were generally as remiss in their exertions as the others were diligent. The inequality in the supply of men was aided by the unlikelihood of a penalty at war’s end. At least with contributions of money, States which did not pay their proportions might be charged with their deficiencies. No account could be formed of the deficiencies in the supplies of men. And we have seen there is little prospect the most delinquent States will ever be able to make compensation for their pecuniary failures. In short, the system of quotas and requisitions – whether applied to men or money – was a system of imbecility in the Union, and of inequality and injustice among the States.
The Articles Gave Smaller States Undue Influence in the National Council
Another defect in the Articles was the right of equal suffrage among the States. It gave Rhode Island or Delaware an equal weight in the scale of power with Massachusetts, New York, or Virginia. Equal suffrage among the States contradicts every idea of proportion and every rule of fair representation. It also is contrary to the fundamental maxim of republican (representative) government that the majority should prevail.
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In situations where more than a majority is required for a decision, the minority is given a negative upon the majority. The will of the greater number is thus subjected to the will of the lesser. What at first sight seems fair and beneficial to the minority actually acts like a poison.
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Some argued that sovereigns are equal, and a majority of the votes of the States was a majority of confederated America. This kind of logical legerdemain will never counteract justice and common sense. Sometimes a majority of States constitutes a small minority of the People of America. New Hampshire, Rhode Island, New Jersey, Delaware, Georgia, South Carolina, and Maryland are a majority of the whole number of States, but they do not contain one third of its citizens. Artificial distinctions and syllogistic subtleties will not long persuade two thirds of the People of America to submit their interests to the management and disposal of one third. The love of power will not acquiesce in such a privation. The desire for equality also would abhor the sacrifice of power. After a while, the larger States would revolt from the idea of receiving the law from the smaller. The smaller States – whose safety and welfare depend on union – ought readily to renounce a pretension which would prove fatal to its duration.
But this is not all. In situations where more than a majority is required for a decision, the minority is given a negative upon the majority. The will of the greater number is thus subjected to the will of the lesser. What at first sight seems fair and beneficial to the minority actually acts like a poison. By the nonattendance of a few States delegations, a single vote has been sufficient to stop all movement in Congress. A sixtieth part of the Union – about the proportion of Delaware or Rhode Island – has several times been able to impose an entire bar to the operations of Congress.
Requiring Unanimity Magnifies the Influence of the Minority
The necessity of unanimity in public bodies – or of something approaching unanimity – is founded on the supposition it would contribute to security. But in real operation it embarrasses the ruling administration and destroys the energy of the government, and substitutes the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt group into the regular deliberations and decisions of a respectable majority. Unanimity or something approaching it is one of those refinements which has the reverse effect in practice of what was expected in theory.
In the emergencies of a nation, there is commonly a necessity for action. In such times, the strength or weakness of the government is most apparent, and of greatest importance. The public business must go forward in some way or another. If a rigid minority can control the opinion of a majority respecting the best mode of conducting the public business, the majority must conform to the views of the minority, in order that something may be done. The sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. This results in tedious delays, continual negotiations and intrigues, and contemptible compromises of the public good. On some occasions, a recalcitrant minority will refuse any accommodation, keeping the government in a state of inaction due to the impracticability of obtaining the concurrence of the necessary number of votes. The measures of government are thus injuriously suspended or fatally defeated. The situation savors of weakness, and sometimes borders on anarchy.
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The necessity of unanimity in public bodies – or of something approaching unanimity – is founded on the supposition it would contribute to security. But in real operation it embarrasses the ruling administration and destroys the energy of the government, and substitutes the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt group into the regular deliberations and decisions of a respectable majority. Unanimity or something approaching it is one of those refinements which has the reverse effect in practice of what was expected in theory.
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Requiring More than a Majority Also Magnifies the Influence of the Minority
Some mistakenly presume that a vote requiring more than a majority would lessen the effects of foreign corruption and domestic faction. This mistake proceeds from overlooking or ignoring the mischiefs occasioned by obstructing the progress of government at certain critical seasons. Some are apt to assume all is safe with a higher vote threshold, reasoning that nothing improper will be done. Yet we forget how much good may be prevented, and how much ill may be produced, by the power of hindering the doing of what may be necessary. Such conduct keeps our affairs in the same unfavorable posture in which happen to stand at particular periods.
Provisions Requiring More than a Majority Make Corruption Easier
Suppose we and a foreign nation were engaged in a war against a third nation. Suppose the necessity of our situation demanded peace, but the interest or ambition of our ally led it to continue prosecution of the war. Suppose finally that our ally’s views justified us to make separate terms with the third nation. In such a state of things, this ally of ours would find it much easier – by bribes and intrigues – to tie the hands of government where a two-thirds vote was required, than where a simple majority would suffice. In the case of a two-thirds requirement, our ally would have to corrupt a smaller number forestall action. If a simple majority could act, our ally would have to corrupt a larger number. For the same reasons, a foreign enemy could perplex our councils and embarrass our exertions with less effort.
The same inconveniences would inure in the commercial sphere. If more than a majority vote is required, a nation with which we might enter a treaty of commerce could more easily prevent our forming a connection with her competitor in trade, though such a connection should be ever so beneficial to ourselves.
These evils are not imaginary. One weakness of republics is they afford too easy an inlet to foreign corruption. Even a hereditary monarch – including one disposed to sacrifice his subjects to his ambition – has as great a personal interest in the continuance of the government and the external glory of the nation. Few foreign powers would be able to offer the monarch an equivalent for what he or she would sacrifice by treachery to the State. The world has accordingly been witness to few examples of this species of royal prostitution, although there have been abundant specimens of every other kind.
In republics, persons elevated by their fellow citizens to stations of great preeminence and power may find compensations for betraying their trust. To any but minds animated and guided by superior virtue, such betrayals 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 prevalence of foreign corruption in republican governments. I have already delineated how much this contributed to the ruin of the ancient commonwealths. In modern times, it is well known that the deputies of the United Provinces have been purchased by the emissaries of the neighboring kingdoms in various instances. In a letter to his court, the Earl of Chesterfield intimated his success in an important negotiation depended on obtaining a major’s commission for one of those deputies. And in Sweden the parties were alternately bought by France and England. The purchase was so barefaced and notorious it excited universal disgust in the nation, and was a principal cause by which its limited monarch became one of Europe’s most absolute and uncontrolled in a single day, without tumult, violence, or opposition.
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In order to avoid the confusion that unavoidably results 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.
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A Supreme Judicial Tribunal Is Essential
The crowning defect of our Confederation was the want of a judiciary. Laws are a dead letter without courts to expound and define their true meaning and operation. For instance, the treaties of the United States must be considered as part of the law of the land if they are to have any force at all. Like all other laws, the true import of such treaties – with respect to individuals – must be ascertained by judicial determinations. To produce uniformity in these determinations, in the last resort they ought to be submitted to one supreme tribunal. And this tribunal ought to be instituted under the same authority which forms the treaties themselves. Both ingredients are indispensable.
If State courts of final resort were granted authority to have the last word on questions of Federal law, there may be as many different final determinations on the same point as there are courts, owing to the endless diversities in the opinions of judges. How often have we seen different courts (including different judges of the same court) differing from each other? In order to avoid the confusion that unavoidably results 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 the more necessary due to the sheer number of State governments that could allow the laws of the parts to contravene the laws of the whole. Under the Articles of Confederation, the treaties of the United States were liable to the infractions of thirteen different legislatures, and as many different courts of final jurisdiction, acting under the authority of those legislatures. Nothing is more natural to individuals holding office than to look with peculiar deference towards that authority to which they owe their official existence. There would be much to fear from the bias of local views and prejudices and the interference of local regulations if State tribunals were invested with a right of ultimate jurisdiction on the general laws and treaties of the United States. As frequently as permitted, the interference of particular local laws might be preferred to those of the general laws. The faith, reputation, and peace of the United States would be continually at the mercy of the prejudices, passions, and interests of every State. Is it possible foreign nations would neither respect nor confide in such a government? Is it also possible the People of America would any longer consent to entrust their honor, happiness, and safety to a government constructed on so precarious a foundation?
My review of the Confederation has confined itself the most material defects. Individuals who reflected (divesting themselves of preconceived opinions) believed the former Articles Confederation were so radically vicious and unsound that no amendment could save them, and that an entire change in its leading features and characters was required.
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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.
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The organization of the Congress under the Articles was utterly inadequate for the exercise of those powers necessary to be deposited in a union of the States. While this single assembly may have been a proper receptacle of those limited authorities heretofore delegated to the Federal head, it would be inconsistent with all of the principles of good government to entrust it with those additional powers which ought to reside in the government of the United States. If we had retained that structure, and merely conferred supplementary powers upon Congress, one of two outcomes was likely: (1) either the enfeebled structure would have mouldered into pieces despite our ill-judged efforts to prop it up, or (2) by successive augmentations of its force and energy, we would have finally have accumulated – in a single body – all of the most important prerogatives of sovereignty, and thus entailed upon our posterity one of the most execrable forms of government human infatuation ever contrived. We would have created that very tyranny the adversaries of the new Constitution either are (or affect to be) solicitous to avert.
The Consent of the People Is the Fountainhead of Legitimate Authority
A final infirmity of the Federal system under the Articles of Confederation was that it was never ratified by the People. It rested on no better foundation than the consent of State legislatures. It was has been exposed to frequent and intricate questions concerning the validity of its powers, which have given birth to the doctrine of the 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. This theory contended that since ratification was based on the law of a State, the same authority may repeal the law by which it was ratified. The possibility of a question of this nature could arise 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.
Hamiltonoriginal Federalist 22