Federalist No.16

The Same Subject Continued

(The Insufficiency of the Present Confederation to Preserve the Union)

Tuesday, December 4, 1787

Alexander Hamilton


16.1

This paper mostly extends arguments from the previous paper by further considering their implications. For instance, the idea that a constitutionally weak federal government – that is, one unable to enforce its laws through the agency of its States – would necessarily need to resort to force: in other words, civil war. Hamilton explores the dangers of this more fully in this paper. For a start, he points out that the armies of the Federal government would not necessarily win in a conflict against a State or States. What would that scenario mean for the Union? And the possibility that it might need to fight a conflict with more than one State is high, since more than one State might be motivated by similar ends, a large and influential State might influence others to join its cause or win their loyalty, as well taking into account the various human factors that see national concerns play out through the whims and peccadilloes of individuals. Once again, the possibility that foreign countries might find advantage in internal conflict is raised; that like neighbouring States, foreign forces might also be called upon in the event of a conflict with the Federal government.

16.2

All this would be leading to the violent death of the Confederacy. As it stands, Hamilton sees that they are currently heading towards a more natural death, presumably meaning the debt crisis and all that entails.

16.3

Hamilton points out the obvious in the scenario he discusses: that if a Federal government cannot implement legislation through the force of law, but instead must use force, then they would have a national Constitution which could only be kept in motion by the instrumentality of a large army continually on foot to execute the ordinary requisitions of decrees of the government. He paints a ludicrous picture of a nation continually on the brink of war in order to maintain its constitution and laws. But added to this seeming absurdity is the sobering thought: who would pay for and supply this army? The resources of the Union would not be equal enough to the maintenance of an army considerable enough to confine the larger States within the limits of their duty, he rightly points out. Implicitly, the Union would be forced to form an army by the largesse of the very States it would be seeking to control.

16.4

The whole scenario may seem exaggerated, except for the Civil War which was to occur just over seventy years later. Hamilton reflects that even at the distance of half a century (an almost prescient time frame) several States will have gained such power that one would:

dismiss as idle and visionary any scheme which aims at regulating their movements by laws to operate upon them in their collective capacities, and to be executed by a coercion applicable to them in the same capacities. A project of this kind is less romantic than the monster-taming which is attributed to the fabulous heroes and demi-gods of antiquity.
16.5

The later Civil War was an example of what Hamilton’s scaremongering might look like in reality: that when a group of States band together in common interest against that of the national government, an army, not the magistracy is needed. And the Civil War occurred despite the ratified Constitution.

16.6

The decline of the Roman Republic offers another example to this discussion, since the failure of that system was, in part, due to a constitution ill-adapted to Rome’s burgeoning territories and new citizens, as well as generals like Caesar whose personal interests conflicted with the state. While Sulla’s dictatorship went some way to reasserting conservative political processes, it was done at the expense of bloody proscriptions. It also paved the way for Caesar’s dictatorship, which began the final act that was the death of the Constitution. Rome was a prime example of what happens to a State ruled by various interests with their own armies. It seems to me that the later American Civil War and the long decline of Rome’s Republic show that Hamilton’s scenario was not fanciful.

16.7

In the last part of his paper, Hamilton returns to the problem of how laws are enforced. He addresses the issue of legal entities. Either a State could be directly responsible for the implementation of Federal laws under a system that denied a strong unified government, or a unified government could pass legislation which had a direct bearing on individuals. In the first instance, law is ultimately enforceable by conflict, and in the second, by the magistracy. This is discussed in the previous paper.

16.8

Hamilton now moves on to respond to a counterargument, that even under a ratified constitution, any state could obstruct the execution of laws. Hamilton answers this by clarifying the difference between non-compliance and direct and active resistance. The difference lies thus:

16.9

A system of States can obstruct federal laws merely through non-compliance. That is, frustrate the intent of legislation through various means that are not openly hostile. For instance, neglect, such as failing to provide adequate funds to enact a law.

16.10

Under a strong federal system, only direct and active resistance could obstruct laws: the particular governments could not interrupt their progress without an open and violent exertion of constitutional power. Yet federal laws under this system would make individuals responsible to the courts, and federal laws could not easily be usurped by States without effecting agreement across a range of government agencies – a collusion between the legislature and the courts, for instance – which is highly unlikely.

16.11

In short, individual wrongs would be dealt with in courts instead of State bodies being fought on the battlefield.

16.12

Lastly, Hamilton acknowledges the impossibility of any constitution being ble to prevent revolution or popular uprisings, so excludes them as irrelevant to his discussion. No form of government can always either avoid or control them, he says. Again, his words seem prescient, since the Civil War was fought, in a sense, to prevent a revolution – the succession of the South from the Union. The South even had their own president. This was the scale at which any constitution fails, Hamilton had intuited. Yet the Civil War is an interesting example of the kind of doomsday scenario Hamilton imagines – the breakdown of unity, not the issues specific to the Civil War – when he talks of the dangers of allowing the federal government’s power to legislate and collect taxes to remain weak.

17 March 2018