Federalist No.22

The Same Subject Continued

(Other Defects of the Present Confederation)

Friday, December 14, 1787

Alexander Hamilton


22.1

The 22nd Federalist Paper continues a theme common to previous papers, the potential of separate States under the old federal model to become like foreign States to each other, with all the chaos and potential for conflict that that implies. The main argument relating in this paper is that the notion of equality between States, which sounds ideal, has the potential to undermine political decision making, especially in times of crisis, and is a potential trojan horse for foreign interference.

The Power of Raising Armies

22.2

The notion of equality between States has both the potential to unfairly benefit as well as unfairly burden smaller States. Hamilton uses the example of the army quota during the War of Independence against Britain. The idea that a small State – in revenue or population, and perhaps both – can supply the same number of men as richer more populated States, is one flaw Hamilton points out in the notion of equality.

22.3

The other issue that the War of Independence raised was that of accountability. Hamilton argues that States closest to the threat of war were most motivated to provide a fighting force. Others, for whom there appeared no apparent or immediate threat, were, for the most part, as remiss as the others were diligent, in their exertions. Under the current constitution (the constitution that Federalist seek to replace) these States are unlikely to ever suffer consequences for this neglect or pay reparation.

The right of equal suffrage among the States

22.4

Hamilton attacks the notion that States should have equal suffrage for several reasons.

22.5

First, is the issue of State populations and fair representation:

Every idea of proportion and every rule of representation conspire to condemn a principle, which gives Rhode Island an equal weight in the scale of power with Massachusetts, or Connecticut, or New York; and to Delaware an equal voice in the national deliberations with Pennsylvania, or Virginia, or North Carolina.
22.6

Hamilton argues that this situation, contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail. Hamilton makes the point that if smaller States support a law which some larger States oppose, there is the potential for a law to be passed which is against the intentions of the representatives of a majority of the American population. In his endnotes, Hamilton claims that even by adding New York and Connecticut’s vote to that of the seven smallest states – a two third majority was required – a majority representation would not be reached in the population. For this reason, equal representation between states is actually a form of inequality through disproportionate representation.

22.7

Hamilton also addresses the issue of the current two thirds majority vote, since critics would claim that this balances the problem of disproportionate representation. First, there is the point Hamilton makes in his endnote (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 the people). He also points out that in the past, due to non-attendance in Congress, a single vote has been enough to overturn needed laws, where that vote represented one sixtieth of the American population. And looking to the future, Hamilton raises concerns about the effect on the country if the number of States increases beyond its current thirteen without the issue of disproportionate representation being addressed by a new constitution.

22.8

Further to the question of the two third majority needed to pass laws, Hamilton argues, we forget how much good may be prevented, and how much ill may be produced, by the power of hindering what may be necessary. Hamilton is attacking the complaisant belief in the altruism of States under a system that he and Madison have shown through their previous arguments would sow discord and self-interest, particularly in the case of emergency measures, which, if defeated, would have the greatest harm.

22.9

This is where his argument takes a turn that has uncanny contemporary overtones. Hamilton argues that with all States having equal suffrage, but not equal means or populations, and with a system that requires a two thirds majority vote, there is the potential for American trade and its politics to come under the influence of foreign players. Hamilton argues that susceptibility to foreign interference is one of the weaknesses of republics, as opposed to a hereditary monarchy, where the monarch and his family have a long-term vested interest in the future of the country. The argument might well be applied to the modern world where Russia is deemed to have interfered in the American election of 2016, with or without Trump’s collusion. Hamilton argues for the possible susceptibility of State representatives to be influenced by foreign overtures, whether it be in times of war or merely for personal gain or aggrandizement. Smaller States, independent but with an equal vote, who serve their own interests through ties with a foreign power, potentially might turn America’s Constitution against the interests of its people.

Judicial Power

22.10

Hamilton next discusses the need for a central judicial authority – a Supreme Court – to interpret laws, rather than leaving the power to interpret laws with the States, which could result in a situation in which there may be as many different final determinations on the same point as there are courts. This is central to Hamilton’s argument, it seems to me, since there is an implicit argument that the law is sovereign in a republic – to which politicians and individuals answer, a point made in previous papers – which is the stabilising and guiding principle of not only commerce but political discourse and action. This is implied by Hamilton’s question regarding the potential mess of independent courts: Is it possible that foreign nations can either respect or confide in such a government?

22.11

Finally, Hamilton addresses the issue of legitimacy. The current constitution was ratified not by the people but by State legislatures. Hamilton argues that the new constitution will gain true legitimacy by ratification by the people: The fabric of American empire ought to rest on the solid basis of the consent of the people.

2 May 2018