In Federalist 20 Madison wraps up the argument of the last three papers, that a confederation of states would not work, by discussing the governmental system in the Netherlands at the time. That country consisted of seven co-equal states that each had the power to negotiate their own treaties and to collect tariffs, “In all important cases, not only the provinces but the cities must be unanimous.”[1]
This system is similar to that proposed by the opponents of the constitution of the United States who wished to preserve the independence of the states, or confederacies of groups of states. Madison goes into great detail about the structure of this country’s government, which I will not detail, in order to show that it is truly a group of independent states with no single federal authority. That country is paralyzed by the inability to make decisions, a situation that Madison calls, “Imbecility in the government; discord among the provinces; foreign influence and indignities; a precarious existence in peace, and peculiar calamities from war.” This harkens back to the earlier objections that both Madison and Hamilton argued were the natural result of such an arrangement.
Of particular interest to me was Madison’s quote that, because of this structure, “In critical emergencies, the States-General are often compelled to overleap their constitutional bounds.” It should be noted that Madison here is saying that one of the key deficiencies of the system in the Netherlands is that it routinely violates its own rules during times of emergencies. The proposed constitution of the United States, by contrast, is stronger, thus preventing the situation that Madison and the founders feared. He points out that, “Tyranny has perhaps oftener grown out of the assumptions of power, called for, on pressing exigencies, by a defective constitution, then out of the full exercise of the largest constitutional authorities.” Even then, the founders feared that emergencies, combined with a faulty (or ignored) constitution, would result in tyranny.
And finally, Madison does an excellent job of pointing out why it is both important that articles such as the one you are reading get written, and that you read and understand them. He says, “I make no apology for having dwelt so long on the contemplation of these federal precedents. Experience is the oracle of truth; and where its responses are unequivocal, they ought to be conclusive and sacred.”
In Federalist 21 Hamilton addresses two concerns.
The first is that the current Articles of Confederation have no power to enforce anything that is enacted, and that the other states therefore have no way of resolving conflicts between them other than by war. The current Articles of Confederation state that, “each State shall retain every power, jurisdiction, and right, not EXPRESSLY delegated to the United States in Congress assembled.” This language is not far from the 9th amendment in the proposed constitution, but a truly United States would be better able to enforce its own laws.
Hamilton puts forward the hypothetical where a single state falls under tyrannical rule. In that scenario, “A successful faction may erect a tyranny on the ruins of order and law, while no succor could constitutionally be afforded by the Union to the friends and supporters of the government.” A tyranny in one state could possibly spread to others and there would be no chance of a united response. Hamilton acknowledges that some might object to the federal government usurping the power of individual states, but Hamilton replies that “It could be no impediment to reforms of the State constitution by a majority of the people in a legal and peaceable mode. This right would remain undiminished.” This would only apply to changes effected by violence.
The second is the inability of the current arrangement to raise funds. It should again be pointed out that the funds Hamilton is referring to here would be collected in the form of tariffs. The idea of an income tax is a relatively new development. The Articles of Confederation collected money by way of quotas that were assigned to individual states. Here Publius acknowledges the difficulty in collecting taxes based on things like land or number of people. Even back then there were large disparities in the value of the lands between states like Virginia and the Carolinas.
Hamilton points out that inequalities in wealth are a result of numerous factors like, “Situation, soil, climate, the nature of the productions, the nature of the government, the genius of the citizens, the degree of information they possess, the state of commerce…” etc. He believed that, because of these natural disparities, there is no way to create a just and uniform system based on wealth. He believes that tariffs will naturally balance out between the states and that the advantage of such a tax on consumption is that, “they contain in their own nature a security against excess.”
A national sales tax (which is what a tariff really is) self-limits because if the tax gets too high people would stop consuming that which is taxed. The advantage of such a system is that it, “forms a complete barrier against any material oppression of the citizens by taxes of this class, and is itself a natural limitation of the power of imposing them.” Hamilton understood that the power to tax would be something that the citizens of the individual states would naturally, and rationally, fear.
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Madison did not fully appreciate the powers of the federal government, specifically the presidency and Congress, would grow to what we have today. Hamilton understood that the power of the federal government and presidency would grow.
Madion at first did not believe we needed the Bill of Rights because he believed that it was understood and implied that the feds would not infringe upon the rights guaranteed in the Bills of Rights. Jefferson and the anti-federalists finally persuadeed Madison to include the Bill of Rights. Imagine the Constitution without a Bill of Rights.
Both Madison and Hamilton believed that the Supreme Court would be the “least dangerous branch.”
Difficult to predict the future, but they missed on the powers of the Supreme and federal courts.
This series of articles have been great. It’s important to go back to first principles, or in this case, the original data used to formulate the solution so that we can better understand why the system was designed the way that it was designed.
One thing though is that, no matter how skillfully the founders did their jobs in designing this system of government, their design was based on historical successes and failures in creating, using, and failures of these systems.
Today, we have almost 250 years of experience with our system of government and if we include those experiences over that time, including both the successes and failures in governance in government and in the non-governmental world (something the founders didn’t have to work with when they did their work).
Anyway… our system of governance has been tested and weaknesses have been found. We can make changes, not necessarily big changes but consequential changes to the governance structure that mitigates these emerging problems. Some of them may be Constitutional amendments but unless we do our research and coalition building comparable to what the Founders did we don’t really know what problems require which solutions.