In this Federalist Paper, Hamilton identifies what is probably at the very heart of the whole need for the new constitution: that laws are merely recommendations if a government does not have the means by which to enforce them.
He claims in the opening of this paper that even anti-Federalists acknowledge that the old Federal Constitution is a broken instrument:
… they appear to harmonize in this sentiment, at least, that there are material imperfections in our national system, and that something is necessary to be done to rescue us from impending anarchy. The facts that support this opinion are no longer objects of speculation.
Hamilton suggests that the general public might wonder why he continues to present his arguments for the new Constitution if the need for change is clear. But Hamilton portrays the anti-Federalist position as capricious in its nature. He characterises the obvious need for change with metaphors:
the road over which you will still have to pass,
the field through which you have to travel. The imagery of roads and fields is contrasted with the metaphor of
mazes with which sophistry has beset the way. In short, the anti-Federalist position, he argues, is not only in the way of progress, but is contradictory:
While they admit that the government of the United States is destitute of energy, they contend against conferring upon it those powers which are requisite to the supply of that energy. They seem still to aim at things repugnant and irreconcilable; at an augmentation of federal authority, without a diminution of State authority; at sovereignty in the Union, and complete independence in the members.
Hamilton employs the metaphor of a building: the old constitution has
fundamental errors in the structure of the building. Meanwhile, the anti-Federalists – to return to the idea of a journey – have conducted America to
the brink of a precipice [and] seem resolved to plunge us into the abyss.
This is all very dramatic, but Hamilton has a point. If the anti-Federalists were conceding that change was necessary, it would be a little perverse to refuse to concede State powers.
This is the very basis of Hamilton’s whole argument here. And it is predicated upon the belief that the States, operating without a strong federal government, are comparable to the independent countries of Europe. It’s an example that has been used in several papers so far. Hamilton points out that without a central government, agreements between States would be like treaties and agreements between European countries where the parties
hoped for benefits which were never realized [and were] scarcely formed before they were broken. Government is an attempt to bring order to the vagaries of human nature, but laws and agreements can only be enforced either through a judicial system or war.
Hamilton argues against the idealistic notion that
a sense of common interest would preside over the conduct of the respective members, and would beget a full compliance with all the constitutional requisitions of the Union. This has not worked under the old Constitution and is probably the most pressing problem the Union faces. The United States, Hamilton points out,
Has an indefinite discretion to make requisitions for men and money; but they have no authority to raise either, by regulations extending to the individual citizens of America. Without the ability to raise funds through taxes, the federal government can make laws, but has no means by which to implement them. As a result, each State must implement federal law, and while they are legally bound to do so, the reality is that States would implement laws
yielding to the persuasive voice of immediate interest or convenience. In other words, laws are enacted according to the vagaries of human nature, be they motivated by power, greed or jealousy, as well as the selfish motivations of individual States.
Hamilton presents a simple dichotomy: the magistracy or sword; the law or arms. These are the choices, he suggests, open to America. But if the Federal government’s power to exact taxes from the individual under the new Constitution is not upheld, a rogue State (presuming that separate States would be on par with independent European countries) could only be made to comply with the law through force of arms, whereas under the ratified Constitution, an individual could be made to comply with the law through the magistracy.
This is one of the longer papers, so far, but in the end the argument is simple: if the system is not working it must be fixed, and not through wishful appeals to the best in human nature, but through a strong Union in which the government has the means to raise revenue to enact its own laws across the nation and the legal means to prosecute, through the courts, individuals who break those laws.
15 March 2018