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Thursday, November 20, 2014

Benefits of Federalism -- Survey of the Federalist Papers 1-27

Utility of Federalism

The concept of Federalism is very old. It is the means for implementing the concept of a "Union" between people who aren't always the same and who are separated by vast distances as well as local and widespread differences in culture. Federations of all kind have demonstrated their utility over the centuries. Alexander Hamilton expressed the reason for implementing Unions under Federalist Principles in his Federalist papers and specifically in Federalist 1.

"It may perhaps be thought superfluous to offer arguments to prove the utility of the UNION, a point, no doubt, deeply engraved on the hearts of the great body of the people in every State, and one, which it may be imagined, has no adversaries. But the fact is, that we already hear it whispered in the private circles of those who oppose the new Constitution, that the thirteen States are of too great extent for any general system, and that we must of necessity resort to separate confederacies of distinct portions of the whole." [[Federalist 1]

It is still as necessary today as it was in his day for us to assert the utility of Federation. Hamilton saw it as of such importance that he put the following in All Caps in his First writing in the Federalist papers:

"THE UTILITY OF THE UNION TO YOUR POLITICAL PROSPERITY THE INSUFFICIENCY OF THE PRESENT CONFEDERATION TO PRESERVE THAT UNION THE NECESSITY OF A GOVERNMENT AT LEAST EQUALLY ENERGETIC WITH THE ONE PROPOSED, TO THE ATTAINMENT OF THIS OBJECT THE CONFORMITY OF THE PROPOSED CONSTITUTION TO THE TRUE PRINCIPLES OF REPUBLICAN GOVERNMENT ITS ANALOGY TO YOUR OWN STATE CONSTITUTION and lastly, THE ADDITIONAL SECURITY WHICH ITS ADOPTION WILL AFFORD TO THE PRESERVATION OF THAT SPECIES OF GOVERNMENT, TO LIBERTY, AND TO PROPERTY."[[Hamilton, Federalist 1]

The Ancient Kingdom of Israel started out as essentially a Federation of 12 Tribes, bound together by a common founding myth (Jacob/Israel). The foundation of Federations, of Unions, is safety from foreign invasions and depredations. That has certainly been the case with the United States. John Jay authored Federalist 2-5 to argue that there is safety in unity. "E Pluribus Unum" was the motto of the founders, because as Jay and the others noted we would have been in deep kimchee with foreign adventurers otherwise.

"by this union the whole island, being joined in affection and free from all apprehensions of different interest, will be ENABLED TO RESIST ALL ITS ENEMIES."[Jay, Federalist 5]

Introduction

The constitution states in Amendment 10:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."[http://www.historylearningsite.co.uk/fed.htm]

The author first claims that the tenth amendment sets the principles of the constitution. But then he notes that the limitations on the Federal Government and the author notes:

"In 1985, in the case Garcia v San Antonio Metropolitan Transit Authority, the Supreme Court essentially concluded that "the only limits upon the power of the Federal Government are political, and that any attempt to place constitutional limits upon the power of the Federal Government is unrealistic." (Vile)

I noted that Calhoun, the author of "nullification arguments" when he was younger made essentially the same point. Then changed his mind when circumstances changed. Our constitution gives the Federal Government primacy when it elects to enter a legal issue. Article 6 of the Constitution pretty much says that:

"The states must observe the Constitution of the United States of America and they must obey valid laws of the federal government made under the Constitution."[http://www.historylearningsite.co.uk/fed.htm]

But the issue ought not to be whether the Federal Government is authorized under the constitution or not to do a thing, but whether it is good practice to do that thing. That is not whether the Government is behaving constitutionally or not, but whether it is well constituted. The Brit article also lists some ideas for principles. And notes that:

"America has throughout its history seen federalism defined in a variety of patterns."
"Co-operative federalism: this assumes that the two levels of government are essentially partners."
"Dual federalism: this assumes that the two levels are functioning separately."
"Creative federalism: this involves common planning and decision making"
"Horizontal federalism: this involves interactions and common programmes among the 50 states."
"Marble-cake federalism: this is characterised by an intermingling of all levels of government in policies and programming."
"Picket-fence federalism: this implies that bureaucrats and clientele groups determine intergovernmental programmes."
"Vertical federalism: this is viewed as the traditional form of federalism as it sees the actions of the national government as supreme within their constitutional sphere."

Survey of the Federalist Papers

In Federalist 6, Publius (Hamilton) notes the purpose of a unified Federation is to prevent war between States, quoting Abbe de Mably:

"An intelligent writer expresses himself on this subject to this effect: 'NEIGHBORING NATIONS (says he) are naturally enemies of each other unless their common weakness forces them to league in a CONFEDERATE REPUBLIC, and their constitution prevents the differences that neighborhood occasions, extinguishing that secret jealousy which disposes all states to aggrandize themselves at the expense of their neighbors.' This passage, at the same time, points out the EVIL and suggests the REMEDY."[http://avalon.law.yale.edu/18th_century/fed06.asp]

This was certainly a risk in the pre Constitutional USA republic. My State, Maryland, would have long ago been fought over by Pennsylvania and Virginia were it not for the constitution. A Federation avoids the kind of warfare that would have made the existing rivalries between our states fatal to their own independence. Indeed the country did have a war between the states that eerily is related to Hamilton's comment in Federalist 7:

"Laws in violation of private contracts, as they amount to aggressions on the rights of those States whose citizens are injured by them, may be considered as another probable source of hostility. We are not authorized to expect that a more liberal or more equitable spirit would preside over the legislations of the individual States hereafter, if unrestrained by any additional checks, than we have heretofore seen in too many instances disgracing their several codes. We have observed the disposition to retaliation excited in Connecticut in consequence of the enormities perpetrated by the Legislature of Rhode Island; and we reasonably infer that, in similar cases, under other circumstances, a war, not of PARCHMENT, but of the sword, would chastise such atrocious breaches of moral obligation and social justice."[Federalist 7]

The Dred Scott Decision which declared both Federal Law and State Law null and void because they violated the property rights (5th amendment) of slave owners was such an "atrocious breach[] of moral obligation." Without a Federation there would have been many such wars, many of them far more petty. Indeed the warnings about the consequences of internal strife between the States in Federalist 7, 8, and in Federalist 9. Hamilton notes that:

"When Montesquieu recommends a small extent for republics, the standards he had in view were of dimensions far short of the limits of almost every one of these States. Neither Virginia, Massachusetts, Pennsylvania, New York, North Carolina, nor Georgia can by any means be compared with the models from which he reasoned and to which the terms of his description apply. If we therefore take his ideas on this point as the criterion of truth, we shall be driven to the alternative either of taking refuge at once in the arms of monarchy, or of splitting ourselves into an infinity of little, jealous, clashing, tumultuous commonwealths, the wretched nurseries of unceasing discord, and the miserable objects of universal pity or contempt. "[[Federalist 9]]

Indeed, had it been in the reach of the authors, they probably would have wanted to accommodate that notion. Each State would further subdivide into Municipalities, Counties, Towns and Cities. With time some of those urban areas would come to traverse multiple States. Hamilton anticipates that, but applying Montesquieu during Hamilton's lifetime was beyond his ability. Though you can see in this reference that he was contemplating it.

"So far are the suggestions of Montesquieu from standing in opposition to a general Union of the States, that he explicitly treats of a CONFEDERATE REPUBLIC as the expedient for extending the sphere of popular government, and reconciling the advantages of monarchy with those of republicanism."[[Federalist 9]]

Hamilton Continues to quote Montesquieu:

"This form of government is a convention by which several smaller STATES agree to become members of a larger ONE, which they intend to form. It is a kind of assemblage of societies that constitute a new one, capable of increasing, by means of new associations, till they arrive to such a degree of power as to be able to provide for the security of the united body."[[Federalist 9]]

And as we see from examples all around the world, a Union enables the various subdivisions to leverage their wealth, treasure and military power to better protect themselves and also to provide for the welfare of each part.

"A republic of this kind, able to withstand an external force, may support itself without any internal corruptions. The form of this society prevents all manner of inconveniences."[[Federalist 9]]

Or at least can, if constituted in a integral manner and run by virtuous officers and representatives. But the confederation of them makes the jealousy of the several states to stop combinations of the others or individual demagogues.

"If a single member should attempt to usurp the supreme authority, he could not be supposed to have an equal authority and credit in all the confederate states. Were he to have too great influence over one, this would alarm the rest. Were he to subdue a part, that which would still remain free might oppose him with forces independent of those which he had usurped and overpower him before he could be settled in his usurpation."[[Federalist 9]]

And of course as so many of our States have discovered. The Union is better than a treaty of mutual defense:

"Should a popular insurrection happen in one of the confederate states the others are able to quell it. Should abuses creep into one part, they are reformed by those that remain sound. The state may be destroyed on one side, and not on the other; the confederacy may be dissolved, and the confederates preserve their sovereignty."

Indeed States like Switzerland and the Netherlands have survived because they could hold their own against large autocratic monarchies like France or Prussia.

"As this government is composed of small republics, it enjoys the internal happiness of each; and with respect to its external situation, it is possessed, by means of the association, of all the advantages of large monarchies."[[Federalist 9]]

The advantage of the Constitution of 1789 was that it avoided the need to consolidate or remove excessive power from the States. Instead it allowed them to work together:

"The definition of a CONFEDERATE REPUBLIC seems simply to be "an assemblage of societies,'' or an association of two or more states into one state. The extent, modifications, and objects of the federal authority are mere matters of discretion. So long as the separate organization of the members be not abolished; so long as it exists, by a constitutional necessity, for local purposes; though it should be in perfect subordination to the general authority of the union, it would still be, in fact and in theory, an association of states, or a confederacy. The proposed Constitution, so far from implying an abolition of the State governments, makes them constituent parts of the national sovereignty, by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of sovereign power. This fully corresponds, in every rational import of the terms, with the idea of a federal government."[Federalist 9]

Madison would go on to talk about the dangers of Faction (Federalist 10). And seems to have seen the concept of E Pluribus Unum as mitigating the power of factionalism to drive people to act like Lemmings or religious extremism. One principle of Federalism is that it limits states from giving in to Demagoguery by holding them to majority rule. Federalism provides checks and balances to local Republican mob rule and other factional risks. Indeed in Federalist 15 notes that without a strong Union, confederations and treaties amount to "discretionary superintendence" which would lead to, in Hamilton's words:

"There is nothing absurd or impracticable in the idea of a league or alliance between independent nations for certain defined purposes precisely stated in a treaty regulating all the details of time, place, circumstance, and quantity; leaving nothing to future discretion; and depending for its execution on the good faith of the parties. Compacts of this kind exist among all civilized nations, subject to the usual vicissitudes of peace and war, of observance and non-observance, as the interests or passions of the contracting powers dictate. In the early part of the present century there was an epidemical rage in Europe for this species of compacts, from which the politicians of the times fondly hoped for benefits which were never realized. With a view to establishing the equilibrium of power and the peace of that part of the world, all the resources of negotiation were exhausted, and triple and quadruple alliances were formed; but they were scarcely formed before they were broken, giving an instructive but afflicting lesson to mankind, how little dependence is to be placed on treaties which have no other sanction than the obligations of good faith, and which oppose general considerations of peace and justice to the impulse of any immediate interest or passion."

This would have happened. In Governance as Hamilton says the choice is either:

"COERCION of the magistracy, or by the COERCION of arms."[Federalist 15]

When the magistry has the power of coercion the parties have the power to appeal mistakes or pernicious decisions, the magistrate is required to justify his decisions and rule of law is substituted for the "coercion of Arms". Union makes wars unnecessary unless the rule of law breaks down and States, locals, or institutions subvert rule of law and take matters in their own hands. And then the moral reality of that decision stands in stark relief and any war that does occur to restore rule of law has a clear purpose. As happened in our own Civil war. Note, this is also an argument for reforming and reconstituting the UN as a real world government with checks and balances. Hamilton continues this theme in Federalist 16 and 17, and in Federalist 17 he notes:

" But in general, the power of the barons triumphed over that of the prince; and in many instances his dominion was entirely thrown off, and the great fiefs were erected into independent principalities or States. In those instances in which the monarch finally prevailed over his vassals, his success was chiefly owing to the tyranny of those vassals over their dependents. The barons, or nobles, equally the enemies of the sovereign and the oppressors of the common people, were dreaded and detested by both; till mutual danger and mutual interest effected a union between them fatal to the power of the aristocracy. Had the nobles, by a conduct of clemency and justice, preserved the fidelity and devotion of their retainers and followers, the contests between them and the prince must almost always have ended in their favor, and in the abridgment or subversion of the royal authority."[Federalist 17]

Hamilton notes that a strong Federation, with an effective magistrate and centralization of power over the subdivisions is necessary to avoid the feudalism of a weak Federal Government. Hamilton also notes, referring to Scottland:

"The spirit of clanship which was, at an early day, introduced into that kingdom, uniting the nobles and their dependants by ties equivalent to those of kindred, rendered the aristocracy a constant overmatch for the power of the monarch, till the incorporation with England subdued its fierce and ungovernable spirit, and reduced it within those rules of subordination which a more rational and more energetic system of civil polity had previously established in the latter kingdom." [federalist 17]

Hamilton continues the same theme in Federalist 18. And concludes, referring to the Achaean league:

"I have thought it not superfluous to give the outlines of this important portion of history; both because it teaches more than one lesson, and because, as a supplement to the outlines of the Achaean constitution, it emphatically illustrates the tendency of federal bodies rather to anarchy among the members, than to tyranny in the head."[Federalist 18]

Hamilton and Madison would concur together in Federalist 19 about the weaknesses of the Swiss Cantons of their times. Noting that:

separation had another consequence, which merits attention. It produced opposite alliances with foreign powers: of Berne, at the head of the Protestant association, with the United Provinces; and of Luzerne, at the head of the Catholic association, with France.[Federalist 19]

In Federalist 20 he concludes:

"I make no apology for having dwelt so long on the contemplation of these federal precedents. Experience is the oracle of truth; and where its responses are unequivocal, they ought to be conclusive and sacred. The important truth, which it unequivocally pronounces in the present case, is that a sovereignty over sovereigns, a government over governments, a legislation for communities, as contradistinguished from individuals, as it is a solecism in theory, so in practice it is subversive of the order and ends of civil polity, by substituting VIOLENCE in place of LAW, or the destructive COERCION of the SWORD in place of the mild and salutary COERCION of the MAGISTRACY." [Federalist 20]

Hamilton will hammer this point over and over again. A week confederation, without the power to enforce the law on States and individuals, is subject to more tyranny and more internal strife, than one with a strong magistrate. He also stresses the importance of rule of law and checks and balances, noting:

"In republics, persons elevated from the mass of the community, by the suffrages of their fellow-citizens, to stations of great pre-eminence and power, may find compensations for betraying their trust, which, to any but minds animated and guided by superior virtue, may appear to exceed the proportion of interest they have in the common stock, and to overbalance the obligations of duty. Hence it is that history furnishes us with so many mortifying examples of the prevalency of foreign corruption in republican governments. How much this contributed to the ruin of the ancient commonwealths has been already delineated. It is well known that the deputies of the United Provinces have, in various instances, been purchased by the emissaries of the neighboring kingdoms. The Earl of Chesterfield (if my memory serves me right), in a letter to his court, intimates that his success in an important negotiation must depend on his obtaining a major's commission for one of those deputies. And in Sweden the parties were alternately bought by France and England in so barefaced and notorious a manner that it excited universal disgust in the nation, and was a principal cause that the most limited monarch in Europe, in a single day, without tumult, violence, or opposition, became one of the most absolute and uncontrolled."

A strong Federation must have a strong Supreme Court:

"A circumstance which crowns the defects of the Confederation remains yet to be mentioned, the want of a judiciary power. Laws are a dead letter without courts to expound and define their true meaning and operation. The treaties of the United States, to have any force at all, must be considered as part of the law of the land. Their true import, as far as respects individuals, must, like all other laws, be ascertained by judicial determinations. To produce uniformity in these determinations, they ought to be submitted, in the last resort, to one SUPREME TRIBUNAL. And this tribunal ought to be instituted under the same authority which forms the treaties themselves. These ingredients are both indispensable. If there is in each State a court of final jurisdiction, there may be as many different final determinations on the same point as there are courts. There are endless diversities in the opinions of men. We often see not only different courts but the judges of the came court differing from each other. To avoid the confusion which would unavoidably result from the contradictory decisions of a number of independent judicatories, all nations have found it necessary to establish one court paramount to the rest, possessing a general superintendence, and authorized to settle and declare in the last resort a uniform rule of civil justice."[Federalist 22]

And:

"The fabric of American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority."[Federalist 22]

Collaborative Government

Hamilton and the other Framers clearly saw a collaborative structure for the Federal Government, not dual Federalism. In Federal 27 he writes:

"The plan reported by the convention, by extending the authority of the federal head to the individual citizens of the several States, will enable the government to employ the ordinary magistracy of each, in the execution of its laws. It is easy to perceive that this will tend to destroy, in the common apprehension, all distinction between the sources from which they might proceed; and will give the federal government the same advantage for securing a due obedience to its authority which is enjoyed by the government of each State, in addition to the influence on public opinion which will result from the important consideration of its having power to call to its assistance and support the resources of the whole Union."[Federal 27]

It is pretty clear, that at least in Hamilton's mind, a collaborative structure was envisioned:

"It merits particular attention in this place, that the laws of the Confederacy, as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land; to the observance of which all officers, legislative, executive, and judicial, in each State, will be bound by the sanctity of an oath. Thus the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS; and will be rendered auxiliary to the enforcement of its laws."[Federal 27]

I think he envisioned the ordinary courts of the States to have the deputization to carry out Federal Law, and that States would be integrated into this national Government. I doubt any of the Framers envisioned the combative, dual, rivalrous and separate governments we have now where there are dual circuit courts, arguments over which court to try cases and where the Federal government has laws that are at odds with those of the States. Thus Federalist 27 seems almost Ironic when it says:

"Any man who will pursue, by his own reflections, the consequences of this situation, will perceive that there is good ground to calculate upon a regular and peaceable execution of the laws of the Union, if its powers are administered with a common share of prudence.[Federal 27]"

Hamilton was overoptimistic when his footnote to the above states:

"The sophistry which has been employed to show that this will tend to the destruction of the State governments, will, in its will, in its proper place, be fully detected."[Federal 27]

Reading these papers for yourself will give you an idea of what the framers really wanted with the constitution. Not what the cherry picker cons would have you believe about our Federation. They clearly wanted a collaborative Federal Government where counties, states and the Feds would work together, and also check each other's excesses. From these readings a lot of analysis and principles can be drawn. But first we need to read what the Framers (and the anti-Federalists) had to say. For ourselves.

Most quotes in this post are from the Avalon Website:

http://avalon.law.yale.edu/subject_menus/fed.asp

All other quotes sourced from various websites, John Lockes Twin Treatises or my Handy Dandy pocket constitution. Eventually this will be part of the appendix to a book I'm working on.

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