This penultimate Federalist Paper covers, as its title suggests, a number of different issues not formerly addressed. The main issues covered are criticisms involving:
This argument may seem irrelevant now, since America has a Bill of Rights which is constituted by the first ten Amendments to the Constitution, adopted in 1791. As a result, Hamilton’s assertions that a Bill of Rights was not needed for the new Constitution, since the Constitution itself embedded rights within it, was soon overturned. What follows, therefore, is the argument Hamilton made in 1788, without the consideration of this later development.
Hamilton says that several States have no Bill of Rights, including New York, which he says is praised by many of the new Constitution’s detractors. Hamilton outlines the basic argument of the Constitution’s detractors on this point. Their argument is that it has several rights embedded in the New York Constitution. They are also critical of the Constitution’s adoption of the common and statute law of Great Britain, which, Hamilton points out, also confers rights upon its people.
Hamilton responds to these arguments by pointing out that the new Federal Constitution also has rights embedded within it, and he quotes them with their specific sections and clauses. These rights include the establishment of the writ of habeas corpus, the prohibition of retrospective legislation and the prohibition against titles of nobility, which would undermine the assumption of the sovereignty of the people. As to the adoption of British common and statute law, he points out that they are subject to repeal by legislation and have no recognition under the Constitution, but were adopted in order to
recognize the ancient law, upon which much of the Constitution is still based.
Hamilton also attacks the notion of a Bill of Rights because these have historically been necessary as concessions, demanded from monarchy, sometimes by force. Magna Carta is the most obvious example, but Hamilton also cites other concessions forced from the English Monarchy over time. The difference in America is that the people are considered to be sovereign, a fact underlined by the opening of the Constitution,
We the People… The Constitution seeks to establish a government, not control people’s lives.
But Hamilton recognises that the Constitution’s silence on certain assumed rights is a matter of concern for many. He particularly discusses the freedom of the press. On this matter, Hamilton argues that a Bill of Rights might be dangerous:
Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? Hamilton suggests that the implications of this question are dangerous. If a right were explicitly given to the press, then an inference might be made that the government had a right
to prescribe proper regulations. In other words, an attempt to assure press freedom might ironically be the means by which to limit it. This extends to the problem of trying to define what press freedom is, since it would be necessary to do this in an attempt to protect those freedoms.
Hamilton feels that the Constitution is successful on the matter of citizen rights, because two things are assured by it: first, the political privileges of citizens and, second, that it defines
certain immunities and modes of proceeding, to which I assume he means things such as a right to trial by jury and habeas corpus.
Again, this is an argument based upon the realities of Hamilton’s time, rather than our own. The same criticism might be raised for other reasons in the modern world, but it would not be on the basis of geographical distance and the difficulties of communication which Hamilton’s period had to contend with. Nevertheless, this is a brief summary of Hamilton’s arguments against the assertion that the Federal government would be physically too remote to serve the people of all States.
Hamilton points out that government is not effective because it is physically proximate to those it serves, but because it relies upon information from State representatives, who receive information from people with whom they confide, from correspondence and public newspapers.
Added to this, the State governments will be
sentinels over the national administration. It will be in their interests to devise a system that oversees and reports the actions of the federal government, as well as to communicate the actions of the federal government to their people. Hamilton reasons that people will therefore have a better idea what is happening in their Federal government than their State governments.
Added to this, there is the reality that there will be citizens who are geographically close to the Federal government who will have the same stake in its good running as those who are geographically distant. It will be in their interests to keep others informed, too, and the use of public papers would help that.
Hamilton says that the Convention has been criticised for not making a provision that States must honour their debts to the Union; that by failing to do so they are tacitly encouraging States to default. Hamilton rejects this by saying that it is an established doctrine of political law that
States neither lose any of their rights, nor are discharged from any of their obligations.
Hamilton asserts that it is generally conceded there is a great need for a new Constitution which gives the Federal government the powers it needs. Yet governments are expensive, and not only does Hamilton say that the proposed government could not safely be made smaller, but that it will grow as the country grows. He answers the concerns that this reality raises by considering how the new government overlaps what already exists, as well as how it might relieve State government institutions from their current practices.
First, Hamilton points out that there are many roles which will need to be filled no matter what form of Constitution is adopted. These include Secretary of War, Secretary of Foreign Affairs, Secretary for Domestic Affairs, a Treasurer etc. These will not be additional expenses.
But the new plan requires more officers to collect taxes, which would be considered an expense. But this would be offset, Hamilton argues, by the fact that these officers could collect both State and Federal taxes, thereby helping to defray their expense.
Next, he turns to the matter of judges, especially since the new Constitution will require not only a Supreme Court but a series of District Courts, or something similar. Hamilton partially avoids this issue because the precise plan for the court system will rely upon legislation yet to be determined after the passing of the Constitution, but he argues it will not be a considerable expense.
Hamilton’s argument is far stronger on the next two points.
First, are the savings the position of the President might achieve. Hamilton argues that some of the business that keeps Congress in session for much of the year, including foreign negotiations, could be handled by the President, thereby achieving a saving. As to the future size of Congress, it would only increase its numbers as the population of the country increases, along with the country’s wealth.
The argument concerning the President’s potential to relieve the legislature extends the potential for the Federal legislature to relieve State legislatures which have previously had to deal with matters of federal import. As a result, their sitting times had to be greater than what they otherwise would be if there was a federal legislature to deal with these matters, instead. With a federal legislature in place, State governments need only deal with State affairs, and therefore there would be an accumulated cost in their shorter sitting times.
As a result of all this, Hamilton concludes that a Federal government would be sustainable since it would either adapt monies currently being spent to its own running, be able to adapt current practices more efficiently and could save on the overall replication of legislative effort across the States.
23 December 2019