Publius [Hamilton]: Federalist Number 22.
Publius here concludes his critique of the old constitution, the Articles of Confederation, a critique he began with Federalist #15, immediately following his introductory consideration of the proposed new regime—a popularly-based, commercial republic—and federal state of extensive territory and population. To understand this critique, we need to step back and consider the problem the founders intended to solve: Can modern states practice politics? Can residents of modern states be citizens, not subjects? This seems an odd question. There seems to be no shortage of politics in the modern world. And why should politics—messy compromising, frustrating, roiling politics—be something anyone would want to encourage, anyway?
Undeniably, politics has aroused the interests of the greatest minds: Plato titles his most famous dialogue Politeia, which means “regime”; Aristotle devotes an entire book to politics. In that book, Aristotle points to the family as the embryo of politics; in the household we can see the DNA of political life. Aristotle identifies three kinds of rule within every family: the rule of master over slave, whereby the rulers commands the ruled for the benefit of the ruler; the rule of parent over child, whereby the ruler commands the ruled for the benefit of the ruled; and the reciprocal rule of husband and wife, in its proper form a consensual rule animated by discussion and compromise—”ruling and being ruled,” as Aristotle puts it. An overbearing spouse acts like a master or parent toward one who does not by nature deserve to be treated like a slave or a child. Genuinely political rule consists of this consensual rule, rule along the marital rather than the masterly or parental model. In human societies only tyrants attempt masterly rule, only kings attempt to rule as if they were the fathers of their countrymen.
The small, ancient polis and the larger feudal community lent themselves readily to political rule. In a polis, where everyone knows everyone else, unquestioned rule of one over many seldom lasts. Under feudalism, the presence of numerous titled aristocrats, each with his own independent source of revenue and of military recruits, will not submit to tyranny forever, as King John of England should have learned at Runnymede, but didn’t.
By contrast, the political engine of the modern world, the state, threatens to put an end to political rule, to make all rulers rule in masterly/tyrannical or parental/authoritarian modes. Large and centralized, the state can mortally compromise all independent bases of authority in its domain, repressing any need to discuss or compromise. At the same time, the very power the modern state marshals requires all neighboring societies to institute states of their own, upon pain of conquest.
The founders thus attempted something that seemed impossible: To constitute a modern state that is sufficiently powerful to defends itself against other states but nonetheless political, not masterly or tyrannical. they solved the problem in principle by adopting and refining the idea of federalism. A single, centralized state stunts political life, but if that state can be made to consist of a set of smaller communities, each with governing to do—townships, counties, and smaller states, all with their own responsibilities, and their own elected representatives—then politics can continue to flourish in the modern world.
Why should we want it to? Because, as Aristotle argues, human beings differ from all the other animals in their capacity to speak and reason: If I say ‘Jump’ and allow you to say nothing more than, ‘How high?’ you may be speaking but you are not reasoning—or, at least, you are not reasoning with me. In political life, you can talk back. To be sure, at some point, you will run up against the ‘being ruled’ side of the Aristotelian equation. But so will everyone else.
The Articles constitution tried to protect political life by keeping most of the American states small enough to feature political life but strong enough to be sovereign—even as, in federating, they multiplied their strength to fend off enemy states. As Publius argues earlier in this series, however, the Articles constitution contradicted itself. The general or federal government could only raise revenues and soldiers with the consent of the member states. But there can be no “sovereignty over sovereigns.” Disunion threatened. Foreigners sneered and circled for the kill.
Publius lists seven additional defects of the Articles, all of them flowing from this overarching defect. As seen in Federalist #21, the first three of these defects are the lack of sanctions for violations of federal law; the lack of any guarantee of mutual aid in case of usurpation within any one state; and the lack of any common standard for determining the revenues each state owes to the general government that protects them.
Publius now turns to the remaining defects, both material and moral. Materially, the structure of government under the Articles constitution impedes national commerce by allowing members states to enact protective tariffs against one another. Morally, this inclines each state to treat others as “foreigners and aliens”—the way Europeans do. Materially, the federal government also wields inadequate military strength, as states remote from the battlefields have little incentive to contribute men or materiel; morally, this leads to “inequality and injustice among the members.”
Speaking of inequality and injustice, equal representation of each state in the unicameral Articles Congress “contradicts that fundamental maxim of republican government, which requires that the sense of the majority should prevail.” Why will—why should—New York and Virginia long tolerate a government that allows tiny Delaware or Rhode Island to hamstring it? Especially if the legislatures of the small states were to fall under the influence of foreign powers, not republican ones.
To these economic, military, and political defects of the existing government, Publius adds another problem with its legal system. Not only does it have no power to enforce Congressional laws, it lacks a federal judiciary to oversee “a uniform rule of civil justice.” Without a federal judiciary, encroachment of federal authority by the states can find no defenders beyond the military; force, not law, will rule.
The Articles government has only one ruling institution, the Congress. The absence of other independent but complementary branches of government might have undermined genuinely political life in the United States, except that the framers of the articles made the Congress more or less impotent vis-à-vis the member states. But this causes another problem. Unqualifiedly sovereign member states will incline to violate the fundamental law of contract, of government by consent: That no party to any contract may excuse himself from the terms of the contract without the consent of the other parties.
All of this has suggested to many commentators that the Articles of Confederation didn’t really amount to a constitution at all, only a treaty. Although its framers did seem to be attempting to constitute a government of some sort, in effect it might as well be a treaty, however one wishes to understand it formally.
Therefore, the new constitution will require ratification not by the governments of the states but by the people of each state, and moreover by the people of states now to be united by the only true rulers of a republican regime. This new governing contract, “flow[ing] from that pure, original source of all legitimate authority,” will supply the national means needed to secure the national ends listed in the Preamble. Therefore, also, the new and more powerful wielder of those means, the federal government, can no longer rest in the hands of one ruling institution, but in the tripartite structure of legislative, executive, and judicial branches. This newly-devised institutional structure for American self-government can preserve politics, reciprocal ruling-and-being-ruled, at the highest level of American government without necessarily exposing Americans to conquest by imperial monarchies.
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