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Saturday, November 22, 2014

Benefits of Federalism Federalist 23 to 26

The Last post (http://holtesthoughts.blogspot.com/2014/11/benefits-of-federalism-survey-of.html) contains numerous quotes from Federalist papers 1-27. Most of those quotes are gems from the wisdom of Jay, Hamilton and Madison in their efforts to justify a Federal Union, but I'm not quoting those things for my own sake. I'm trying to extract from their discussion what they thought the benefits and principles of Federalism should be, and also to extract some universal principles from their efforts. I haven't simply cherry picked the quotes. I picked illustrative ones, and skipped some real gems because they were either illustrative of something demonstrated elsewhere. May have missed some real gems, but I'm continuing my review. Federalist papers 23 to 28 continue Hamilton's exposition of the value of Union to the common defense, and also discuss the fears of anti-Federalists that the Federation could (one day) be an autocratic instrument for repressing the people with a standing army. Hamilton certainly did not believe the authorities of this power should be limited. He notes:

“The authorities essential to the common defense are these: to raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their support. These powers ought to exist without limitation, BECAUSE IT IS IMPOSSIBLE TO FORESEE OR DEFINE THE EXTENT AND VARIETY OF NATIONAL EXIGENCIES, OR THE CORRESPONDENT EXTENT AND VARIETY OF THE MEANS WHICH MAY BE NECESSARY TO SATISFY THEM. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be coextensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils which are appointed to preside over the common defense.”

Hamilton isn't talking about unlimited power to the executive, but to the national Congress. But he's also indicating the powers of the executive to respond to diplomatic and military events. This was a rational argument:

“This is one of those truths which, to a correct and unprejudiced mind, carries its own evidence along with it; and may be obscured, but cannot be made plainer by argument or reasoning. It rests upon axioms as simple as they are universal; the MEANS ought to be proportioned to the END; the persons, from whose agency the attainment of any END is expected, ought to possess the MEANS by which it is to be attained.”

Once we agreed together to act together to defend ourselves and put a prohibition on use of arms (see previous post) against each other, Hamilton notes that it follows that:

“Whether there ought to be a federal government [e]ntrusted with the care of the common defense, is a question in the first instance, open for discussion; but the moment it is decided in the affirmative, it will follow, that that government ought to be clothed with all the powers requisite to complete execution of its trust. And unless it can be shown that the circumstances which may affect the public safety are reducible within certain determinate limits; unless the contrary of this position can be fairly and rationally disputed, it must be admitted, as a necessary consequence, that there can be no limitation of that authority which is to provide for the defense and protection of the community, in any matter essential to its efficacy that is, in any matter essential to the FORMATION, DIRECTION, or SUPPORT of the NATIONAL FORCES.” [Federalist 23]

And the defense of the nation isn't just military, we found out starting with the civil war and reinforced by the lessons of the Panama Canal that a top rated Health Service and Health Service infrastructure is as important to the National Defense as armies. Without a functional and well commanded health service the country is vulnerable to epidemics and disease with related impacts to the readiness and productivity of our workforce and armed forces. Hamilton clearly (as does every patriotic leader since) places the scope of the Federal Government in any area of governance that is within the “NATIONAL INTEREST”Fed 23 And in Federalist 24 Hamilton emphasizes the importance of vesting the raising and provisioning of troops in the Legislature, a responsibility Congress has abrogated recently. He summarizes in a footnote citing several State Constitutions:

“Standing armies are dangerous to liberty, and ought not to be raised or kept up WITHOUT THE CONSENT OF THE LEGISLATURE.”Fed 24

He then notes notes that “This is, in truth, rather a CAUTION than a PROHIBITION.” And quotes 4 State Constitutions that clarify:

“Standing armies are dangerous to liberty, and ought not to be raised or kept up WITHOUT THE CONSENT OF THE LEGISLATURE'”Fed 24

When they talk about "the legislature" they are talking in general. And the reason things in the National Interest should be under the control of the National Legislature is as he explained previously. Duty, responsibility and capability have to go together in order for a system to be functional.

Monopoly of Force

Hamilton reemphasizes the importance of the Federal Government having a monopoly of Military Force in Federalist 25:

“The framers of the existing Confederation, fully aware of the danger to the Union from the separate possession of military forces by the States, have, in express terms, prohibited them from having either ships or troops, unless with the consent of Congress. The truth is, that the existence of a federal government and military establishments under State authority are not less at variance with each other than a due supply of the federal treasury and the system of quotas and requisitions.” Fed 25

In Federalist 26 Hamilton talks about the necessity and limitations of restraining the "legislative authority" with regards to the power of the legislature to provide for the common defense. The reason for this he describes in the eliptical language of the 19th century:

“IT WAS a thing hardly to be expected that in a popular revolution the minds of men should stop at that happy mean which marks the salutary boundary between POWER and PRIVILEGE, and combines the energy of government with the security of private rights. A failure in this delicate and important point is the great source of the inconveniences we experience, and if we are not cautious to avoid a repetition of the error, in our future attempts to rectify and ameliorate our system, we may travel from one chimerical project to another; we may try change after change; but we shall never be likely to make any material change for the better.”

Power corrupts, and power has privileges that go with it, so this boundary between power and privilege is always subject to assault by those whose hunger for power is matched by a hunger for privilege and the powers that enable such privilege; private fortune, private advantage, etc... Locke identified such corruption with tyranny itself ("Private, separate Advantage" [199])] Recognizing the risk of corruption, arrogation of power and tyranny, that comes with provisioning or maintaining standing armies Hamilton continues the assertion in Federalist 26 that this authority has to be under the control of a representative legislation to control such risks. And he associates it with the requirement that Congress should not appropriate money for hte Army for more than 2 years at a time. But the issue is how to avoid the dangers of Standing armies assaulting the People's liberty. Sadly, he doesn't provide a remedy, just a warning:

“It has been said that the provision which limits the appropriation of money for the support of an army to the period of two years would be unavailing, because the Executive, when once possessed of a force large enough to awe the people into submission, would find resources in that very force sufficient to enable him to dispense with supplies from the acts of the legislature. But the question again recurs, upon what pretense could he be put in possession of a force of that magnitude in time of peace? If we suppose it to have been created in consequence of some domestic insurrection or foreign war, then it becomes a case not within the principles of the objection; for this is levelled against the power of keeping up troops in time of peace. Few persons will be so visionary as seriously to contend that military forces ought not to be raised to quell a rebellion or resist an invasion; and if the defense of the community under such circumstances should make it necessary to have an army so numerous as to hazard its liberty, this is one of those calamaties for which there is neither preventative nor cure. It cannot be provided against by any possible form of government; it might even result from a simple league offensive and defensive, if it should ever be necessary for the confederates or allies to form an army for common defense.”[Federalist 26]

Sadly this anticipates both the exigensies of the Civil War, when the South raised their own army against the North. And Iran Contra, when Ronald Reagan in a flagrant example of high crimes and misdemeanors privately funded his CIA operations in defiance of the Boland Amendment. In the Iran Contra situation the real crime was that Reagan (and maybe renegade elements in the CIA from before his time) found their own source of funds for their program to destroy Communism and human rights around the world in the name of "Democracy" and "Capitalism".

But he also explains why we had to do it anyway.

“But it is an evil infinitely less likely to attend us in a united than in a disunited state; nay, it may be safely asserted that it is an evil altogether unlikely to attend us in the latter situation. It is not easy to conceive a possibility that dangers so formidable can assail the whole Union, as to demand a force considerable enough to place our liberties in the least jeopardy, especially if we take into our view the aid to be derived from the militia, which ought always to be counted upon as a valuable and powerful auxiliary. But in a state of disunion (as has been fully shown in another place), the contrary of this supposition would become not only probable, but almost unavoidable.”[Federalist 26]

Hamilton is warning us that we are more likely to get tyrants out of constant infighting and disunion than from our common and united efforts. Our history has born out that when we have a clear sense of a common enemy we unite. When we don't we divide into petty conflicts.

When I started this survey I was just going to share a couple of quotes. But I see now this is going to be a longer series and I'll probably have to edit and break up the previous post into smaller ones.

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