Zero Tolerance is a Failed Concept

"Zero tolerance" ideology has been a disaster. It has led to jails being filled up with people convicted of minor crimes, while major crimes continue to go unpunished. It also has impacted our education system awfully. I talked about fighting bullying in a previous post "Bullying and What to do about it". But that post only illustrated how much a loser zero tolerance education is. Further support comes from research.

Zero Tolerance Fails

Evidence shows that Zero Tolerance policies in schools have major issues.

[This section quote references a paper by the APA: [http://www.apa.org/pubs/info/reports/zero-tolerance-report.pdf ( "Are Zero Tolerance Policies Effective in the Schools? An Evidentiary Review and Recommendations" )]

Question: "Have zero tolerance policies made schools safer and more effective in handling disciplinary issues?"

"In general, data tended to contradict the presumptions made in applying a zero tolerance approach..."

The paper notes that most of Zero Tolerance concepts are based on faulty assumptions.

Faulty Assumption 1. Violence out of control

"School violence is at a serious level and increasing, thus necessitating forceful, no-nonsense strategies for violence prevention."

Reality:

"the evidence does not support an assumption that violence in schools is out-of-control."

Faulty Assumption 2. Zero Tolerance improves Discipline consistency

"Through the provision of mandated punishment for certain offenses, zero tolerance increases the consistency of school discipline and thereby the clarity of the disciplinary message to students."

Reality:

"The evidence strongly suggests, however, that zero tolerance has not increased the consistency of school discipline. Rather, rates of suspension and expulsion vary widely across schools and school districts. Moreover, this variation appears to be due as much to characteristics of schools and school personnel as to the behavior or attitudes of students. "

Faulty Assumption 3. Removal of Students will improve learning environment for remaining students.

"Removal of students who violate school rules will create a school climate more conducive to learning for those students who remain."

Reality:

"data ... have shown the opposite effect, ... schools with higher rates of school suspension and expulsion appear to have less satisfactory ratings of school climate, less satisfactory school governance structures, and to spend a disproportionate amount of time on disciplinary matters."

Worse:

"research indicates a negative relationship between the use of school suspension and expulsion and school-wide academic achievement..."

Not only are the expulsed impacted negatively, but the reality turns out that the remaining students also receive a poorer education than expected.

Faulty Assumption 4. Swift and certain punishments of zero tolerance is a deterrent

"The swift and certain punishments of zero tolerance have a deterrent effect upon students, thus improving overall student behavior and discipline"

Reality:

"Rather than reducing the likelihood of disruption however, school suspension in general appears to predict higher future rates of misbehavior and suspension among those students who are suspended. In the long term, school suspension and expulsion are moderately associated with a higher likelihood of school dropout and failure to graduate on time."

It doesn't work as intended.

Faulty Assumption 5: Parents Support Zero Tolerance and Students Feel Safer

"Parents overwhelmingly support the implementation of zero tolerance policies to ensure the safety of schools, and students feel safer knowing that transgressions will be dealt with in no uncertain terms."

Reality:

"The data regarding this assumption are mixed and inconclusive. Media accounts and some survey results suggest that parents and the community will react strongly in favor of increased disciplinary punishments if they fear that their children’s safety is at stake. "

But on the other hand:

"On the other hand, communities surrounding schools often react highly negatively if they perceive that students’ right to an education is being threatened. Although some students appear to make use of suspension or expulsion as an opportunity to examine their own behavior, the available evidence also suggests that students in general regard school suspension and expulsion as ineffective and unfair"

Question 2: What has been the impact of ZT on students of color and students with disabilities?

Part of the appeal of zero tolerance policies has been that, by removing subjective influences or contextual factors from disciplinary decisions, such policies would be expected to be fairer to students traditionally over-represented in school disciplinary consequences.

Reality about Minorities:

" Rather, the disproportionate discipline of students of color continues to be a concern and may be increasing; over-representation in suspension and expulsion has been found consistently for African American students and less consistently for Latino students. The evidence shows that such disproportionality is not due entirely to economic disadvantage, nor is there any data supporting the assumption that African American students exhibit higher rates of disruption or violence that would warrant higher rates of discipline. Rather, African American students may be disciplined more severely for less serious or more subjective reasons. Emerging professional opinion and qualitative research findings suggest that the disproportionate discipline of students of color may be due to lack of teacher preparation in classroom management or cultural competence."

Reality about children with disabilities:

"students with disabilities, especially those with emotional and behavioral disorders, appear to be suspended and expelled at rates disproportionate to their representation in the population. "

Question 3: To what extent are zero tolerance policies developmentally appropriate as a psychological intervention, taking into account the developmental level of children and youth?

Reality

"Children are not developmentally mature enough to respond to Zero Tolerance as ASSUMEd

"Research relevant to juvenile offending has found extensive evidence of developmental immaturity. Particularly before the age of 15, adolescents appear to display psychosocial immaturity in at least four areas:"

1. poor resistance to peer influence,
2. attitudes toward and perception of risk,
3. future orientation,
4. and impulse control.

Evidence from Neuroscience

"The case for psychosocial immaturity during adolescence is also supported by evidence from developmental neuroscience indicating that the brain structures of adolescents are less well-developed than previously thought. Developmental neuroscientists believe that if a particular structure of the brain is still immature, then the functions that it governs will also show immaturity; that is, adolescents may be expected to take greater risks and reason less adequately about the consequences of their behavior."

Secondary Schools have structural Challenges

"a growing body of developmental research indicates that certain characteristics of secondary schools often are at odds with the developmental challenges of adolescence, which include the need for close peer relationships, autonomy, support from adults other than one’s parents, identity negotiation, and academic self-efficacy."

And those Structural Challenges are Aggravated by Zero Tolerance, not moderated

"Used inappropriately, zero tolerance policies can exacerbate both the normative challenges of early adolescence and the potential mismatch between the adolescent’s developmental stage and the structure of secondary schools."

Zero Tolerance doesn't do justice to the learning ability of young people and their immaturity:

"There is no doubt that many incidents that result in disciplinary infractions at the secondary level are due to poor judgment on the part of the adolescent involved."

If we were dealing with adults "zero tolerance" might be more plausible, but we are dealing with children and:

But if that judgment is the result of developmental or neurological immaturity, and if the resulting behavior does not pose a threat to safety, it is reasonable to weigh the importance of a particular consequence against the long-term negative consequences of zero tolerance policies, especially when such lapses in judgment appear to be developmentally normative."

Instead of punitive, arbitrary enforcement of rules in an extreme manner. it looks like our High Schools ought to be using the Secondary School system as a means of coaching, mentoring and also leverage peer group influence by involving them in their own government and making htat a teaching opportunity. [See my post: Bullying and What to do about it (near end of post) where I talk about setting up courts in the High Schools. Given this reports recommendations that is not a crank idea.] Let the kids run their own justice and make it a teaching opportunity with some justice and forgiveness involved.

Question 4. How has zero tolerance affected the relationship between education and the juvenile justice system?

Reality:

"There is evidence that the introduction of zero tolerance policies has affected the delicate balance between the educational and juvenile justice systems.

Increased reiance on Security personnel, technology and profiling

Zero tolerance policies appear to have increased the use and reliance in schools on strategies such as security technology, security personnel, and profiling.

Reality:

"there is as yet virtually no empirical data examining the extent to which such programs result in safer schools or more satisfactory school climate."

Profiling

Zero tolerance may have also increased the use of profiling, a method of prospectively identifying students who may be at-risk of violence or disruption by comparison to profiles of others who have engaged in such behavior in the past. Studies by the U. S. Secret Service, the Federal Bureau of Investigation, and researchers in the area of threat assessment have consistently found that it is impossible to construct reliable profiles that can be of assistance in promoting school safety. Rather, best-evidence recommendations have consistently focused on the emerging technology of threat assessment, which can assist school personnel in determining the degree to which a given threat or incident constitutes a serious danger to the school"

Profiling has tended to be unprofessional (seems professional but is usually based on assumptions equally fallacious to those listed above) and discriminatory. Those engaging in it aren't always professional (or as professional as they think they are) and thus tend to behave in racist, xenophobic, religoiusly chauvinistic, or in other culturally biased ways. Talking about profiling has come to be seen as synonymous to racism in most quarters outside those wedded to these faulty ideas.

School to Prison Pipeline

Consequently the article notes:

"The increased reliance on more severe consequences in response to student disruption has also resulted in an increase of referrals to the juvenile justice system for infractions that were once handled in school."

This is "termed the school-to-prison pipeline.

"Research indicates that many schools appear to be using the juvenile justice system to a greater extent and, in a relatively large percentage of cases, the school-based infractions for which juvenile justice is called upon are not those that would generally be considered dangerous or threatening."

This has a number of issues;

"questions... about whether or not these referred youths’ constitutional rights have been respected fully."

The authors of course call for more research, but the impact of this is to damage the folks demonized by prison, and also lead to corruption of the system as some judges have been convicted of profiting from that "school to prison" pipeline through kickbacks or investments in privateering Prison Industries.

Question What has been the impact—both negative and positive—of zero tolerance policies on students, families and communities?

They believe that there is negative influence on the mental health of youth subject to Zero Tolerance:

"there are a number of reasons to be concerned that such policies may create, enhance, or accelerate negative mental health outcomes for youth."

Zero Tolerance is not cost effective:

"preliminary estimates suggest that the extensive use of suspension and expulsion and increased reliance on the juvenile justice system for school misbehavior may not be cost effective. To the extent that school infractions lead to increased contact with the juvenile justice system, the cost of treatment appears to escalate dramatically."

Question 6. What are the Alternatives to Zero Tolerance?

The report notes that there are a number of alternatives. And the authors recommend a "three level model of primary prevention"

1. Primary prevention strategies targeted at all students,
2. Secondary prevention strategies that are targeted at those students who may be at-risk for violence or disruption, and
3. Tertiary strategies that target those students who have already engaged in disruptive or violent behavior.

And three levels of intervention:

1. Bullying prevention (primary)
2. threat assessment (secondary)
3. restorative justice (tertiary)

I'll skip the Recommendations (they're at the end of this post). But essentially we need to fix the disciplinary system in our schools. I think this can be done in a way that makes discipline part of the education process. But most important that treats children with respect and understand that their personae and moral stance is not fixed and that they should not be judged in a prejudiced manner.

Study recommendation

"The accumulated evidence points to a clear need for a change in how zero tolerance policies are applied and toward the need for a set of alternative practices. It is time to make the shifts in policy, practice, and research to implement policies that can keep schools safe and preserve the opportunity to learn for all students."

Zero tolerance doesn't work.

Study suggestions

Read the report at: http://www.apa.org/pubs/info/reports/zero-tolerance-report.pdf

A. Reforming Zero Tolerance Policies
A.1 Practice
A.1.1 Apply zero tolerance policies with greater flexibility, taking context
and the expertise of teachers and school administrators into account.
A.1.2 Teachers and other professional staff who have regular contact with
students on a personal level should be the first line of communication with
parents and caregivers regarding disciplinary incidents.
A.1.3 Define all infractions, whether major or minor, carefully, and train all
staff in appropriate means of handling each infraction.
A.1.4 Evaluate all school discipline or school violence prevention strategies
to ensure that all disciplinary interventions, programs, or strategies are
truly impacting student behavior and school safety.
A.2. Policy
A. 2. 1 Reserve zero tolerance disciplinary removals for only the most
serious and severe of disruptive behaviors. Zero Tolerance Task Force Report 13
A.2.2 Replace one-size-fits all disciplinary strategies with graduated
systems of discipline, wherein consequences are geared to the seriousness
of the infraction.

A.2.3 Require school police officers who work in schools to have training in
adolescent development.
A.3 Research
A.3.1 Develop more systematic prospective studies on outcomes for
children who are suspended or expelled from school due to zero tolerance
policies.
A.3.2 Expand research on the connections between the education and
juvenile justice system and in particular empirically test the support for an
hypothesized school-to-prison pipeline.
A.3.3 Conduct research at the national level on disproportionate minority
exclusion, or the extent to which school districts' use of zero tolerance
disproportionately targets youth of color, particularly African American
males.
A.3.4 Conduct research on disproportionate exclusion by disability status,
specifically investigating the extent to which use of zero tolerance increases
the disproportionate discipline of students with disabilities, and explore the
extent to which differential rates of removal are due to intra-student factors
versus systems factors.
A.3.5. Conduct research to enhance understanding of the potential
differential effects of zero tolerance policies by student gender.
A.3.6 Conduct econometric studies or cost-benefit analyses designed to
explore the relative benefits of school removal for school climate as
compared to the cost to society of removal of disciplined students from
school.
B. Alternatives to Zero Tolerance
B.1 Practice
B.1.1 Implement preventive measures that can improve school climate and
improve the sense of school community and belongingness.
B.1.2 Seek to reconnect alienated youth and re-establish the school bond
for students at-risk of discipline problems or violence. Use threat
assessment procedures to identify the level of risk posed by student words.

B.1.3 Develop a planned continuum of effective alternatives for those
students whose behavior threatens the discipline or safety of the school. Zero Tolerance Task Force Report 14
B.1.4 Improve collaboration and communication between schools, parents,
law enforcement, juvenile justice and mental health professionals to
develop an array of alternatives for challenging youth.
B.2 Policy
B.2.1 Legislative initiatives should clarify that schools are encouraged to
provide an array of disciplinary alternatives prior to school suspension and
expulsion and, to the extent possible, increase resources to schools for
implementing a broader range of alternatives, especially prevention.
B.2.2 Increase training for teachers in classroom behavior management and
culturally-sensitive pedagogy.
B.2.3 Increase training for teachers, administrators and other school
personnel to address sensitivity related to issues of race.
B.2.4 Increase training on issues related to harassment and sexual
harassment for teachers, administrators and other school personnel.
B.3 Research
B.3.1 Conduct systematic efficacy research including quasi-experimental
and randomized designs to compare academic and behavioral outcomes of
programs with and without zero tolerance policies and practices.
B.3.2 Increase attention to research regarding the implementation of
alternatives to zero tolerance. What are the best and most logistically
feasible ways to implement alternative programs in schools?
B.3.3 Conduct outcome research focused on the effects and effectiveness
of various approaches to school discipline, not only for schools, but also for
families and the long-term functioning of children. 

A Democratic Process

The people who oversee elections are usually called "Election Judges" for a week. Elections have to be adjudicated by non-partisan, neutral, professional people who either have no stake in the outcome and can weigh facts or can set aside their feelings and behave judiciously. The problem with our current election systems is that the neutrality of this election process is often a sham. Not just between the parties in the main election but from beginning to end and top down. We use a privateering corporate approach to elections that subverts efforts to protect process and ensure that everyone in the country is represented. Our politicians are mostly in it for themselves, and that is okay. We who aren't running for office should provide the checks and balances on their behavior, because otherwise they'll fight about everything except when they pause to loot us.

I'm working on an alternative that will work. And I've examined the glossy offerings so far and see that none of them are adequate. I've got ideas for improving them, but if I have to I'll compete with them. One such offering is: http://interoccupy.net/. I'm looking for others, and allies. Potential allies would be Move On, Netroots, and other groups. I'm not interested in helping Republicans but we'd be better off if they did the same thing. We need communities with two way communication, regression in sub-chaptering, standardized charters and the ability to share information broadly and accurate.

Spencer versus Locke & Henry George

What we find are many folks in our history who paid lip service to John Locke's thinking but actually tried to subvert it. I wrote about Burke's subversion of Locke in "Burke Versus John Locke" a while ago. But I have Henry George to thank for attacking Spencer's attack on the notion of property as an equal right.

Attacking Locke

Herbert Spencer like many Cons before and after him, subverts the basic conception of human rights in property by first doing a linguistic shift that appears to affirm that right and then using sleight of hand to subvert it. In "A Perplexed Philosopher" by Henry George, in "Part I, Chapter IV: Mr. Spencer's Confusion as to Right" in Property ownership:

"in Section 5, he proposes to Proudhon; for if, as in this chapter he asserts [the strawman that] no one can equitably become the exclusive possessor of any natural substance or product until the joint rights of all the rest of mankind have been made over to him by some species of quit-claim" [Chapter 4]

Henry George then notes that Spencer uses this strawman to advance a reductio ad absurdum argument that because such clear title, or complete "quit claim" is an absurdity that can never be achieved so he finishes:

..."—has no more claim to his own limbs than he has to the limbs of another—and has as good a right to his neighbor's body as to his own!" [Ch 4 continued]

Spencer, Henry Notes is advancing a "joint property claim" in chapter 5. But his real purpose is to sabotage Locke's concept. Locke (and Henry George) advanced that people have an equal right to property but Spencer is taking aim at that because as he notes:

"That there is a difference may be seen at once. For joint rights may be and often are unequal rights." [Ch 4 continued]

George explains the distinction between Joint Rights and Equal Rights as follows:

"When men have equal rights to a thing, as for instance, to the rooms and appurtenances of a club of which they are members, each has a right to use all or any part of the thing that no other one of them is using. It is only where there is use or some indication of use by one of the others that even politeness dictates such a phrase as "Allow me!" or "If you please!"[Ch 4 continued]

Then in Chapter IX, section 1 George quotes Spencer directly contradicting Locke trying to nullify equal rights using his absolutist "joint right" argument:

"No amount of labor, bestowed by an individual upon a part of the earth's surface, can nullify the title of society to that part"..."whether by labor ... made his right to the thing ...greater than the preexisting rights of all other men" [Ch 4 continued]

Thus shifting the standard of right from an equal right to one requiring a burden of proof that few people can prove:

"unless he can prove that he has done this his title to possession cannot be admitted...but [only] conceded ground of convenience." [Ch 4 continued]

Henry George then cuts into this argument:

"Here the primary right—the right by which "each of them is free to use the earth for the satisfaction of his wants "—has been dropped out of sight, and the mere proviso has been swelled into the importance of the primary right, and has taken its place." [Ch 4 continued]

Henry George notes that Spencer was actually attacking John Locke's ideas:

"And, from this [] shifting of ground, he is led, not only into hypercritical questioning of Locke's derivation of the right of property, but into the assumption that a man can have no right to the wild berries he has gathered on an untrodden prairie, unless he can prove the consent of all other men to his taking them."

Reckless, Feckless but on purpose, I would say. But Henry George was politer and doesn't have my hindsight. And Henry George was making a larger point too. He restates the essential point of Locke's Two Treatises in [George's] own words:

"Locke was not in error. The right of property in things produced by labor—and this is the only true right of property—springs directly from the right of the individual to himself, or as Locke expresses it, from his "property in his own person." It is as clear and has as fully the sanction of equity in any savage state as in the most elaborate civilization. Labor can, of course, produce nothing without land; but the right to the use of land is a primary individual right, not springing from society, or depending on the consent of society, either expressed or implied, but inhering in the individual, and resulting from his presence in the world. Men must have rights before they can have equal rights. Each man has a right to use the world because he is here and wants to use the world. The equality of this right is merely a limitation arising from the presence of others with like rights. Society, in other words, does not grant, and cannot equitably withhold from any individual, the right to the use of land. That right exists before society and independently of society, belonging at birth to each individual, and ceasing only with his death." [Ch 4 continued]

Henry George also explains the role of Governments in all this:

"Society itself has no original right to the use of land. What right it has with regard to the use of land is simply that which is derived from and is necessary to the determination of the rights of the individuals who compose it. That is to say, the function of society with regard to the use of land only begins where individual rights clash, and is to secure equality between these clashing right of individuals." [Ch 4 continued]

He concludes:

"Thus, instead of there being no right of property until society has so far developed that all land has been properly appraised and rented for terms of years, an absolute right of property in the things produced by labor exists from the beginning—is coeval with the existence of man."

For more suggest you read his series. I just wanted to note that Right Wing folks only quote John Locke in order to subvert his writings. Even now Libertarians take the above quotes about individual rights to assert similar arguments to Herbert Spencer.

Subject continued:

The Target of progressive taxation and LVT is unearned land rents/income [http://holtesthoughts.blogspot.com/2015/03/the-target-of-progressive-taxation-and.html]

Further reading

http://www.grundskyld.dk/23-Perplex-Ch4.html

Common Property and the Commons [http://holtesthoughts.blogspot.com/2014/12/common-property-and-commons.html]

Related Articles Locke (and some Henry George References"

Commonwealth according to Locke [http://holtesthoughts.blogspot.com/2014/09/commonwealth-according-to-locke.html]

Locke on the importance of the Collective [http://holtesthoughts.blogspot.com/2014/12/locke-talked-of-importance-of-collective.html]

Progressive Taxation principles and Picketty [http://holtesthoughts.blogspot.com/2014/05/progressive-taxation-principles-and.html]

Postal Banking, Stamp Scripts and fixing our economic system [http://holtesthoughts.blogspot.com/2015/02/postal-banking-stamp-scripts-and-fixing.html]

Importance of "Ordinary magistracy"

In Federalist 27 I find the term "Ordinary Magistry" employed at the end of his paper:

"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." [Federalist 27]

This goes back to the question raised in my earlier post of whether the Federalist system was ever envisioned to be two separate governments or not. Clearly Hamilton thought not. he saw a fundamental principle of Federalism as being collaboration and the use of "ordinary magistracy" ("ordinary courts" is the term I hear from English legal experts). I don't think that Hamilton at least envisioned two separate court systems but rather a unified court system. As realistic as he was I don't think he'd have been surprised by what has actually happened but I think that all the founders would be dismayed, because there are huge benefits to collaboration and a need for a unified government that outweigh any supposed benefits from competition and rivalry:

Collaborative Government

"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."[Federalist 27]

In the Federal vision that we see here, it seems Hamilton at least, hoped that Federal Judges would also be State Judges and that State Judges would be able to weigh in on Federal Law. In this vision, only the clearly Federal only courts such as the Supreme Court and Federal Appellate courts would have been in separate bodies and functionally the court system would have been an integrated whole. In principle the courts were to be collaborative.

Integrated Government

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."[Federalist 27]

Now we know from history that elements of his vision ended up being in contravention to the vision of the early Republicans (Democratic-Republicans but often just plain Republicans). But these arguments were about the scope of Federal Power not this concept.

That the courts have evolved the way they did, originally could be excused by the vast distances between localities and central locations, and conflicts between State Law and Federal Law that reflected different interpretations of what the "enumerated and legitimate" objects of each should be. I don't believe however, that Hamilton's vision was too idealistic or radical not to inform our own times. I think he saw "constitutional" as being about the organization needed for good government and never expected it would be so hard to amend the constitution to keep the government well constituted. With a well constituted government one can pretty much agree:

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. " [Federalist 27]

I believe that one of the constitutional issues of our own time. Not from the perspective of being "unconstitutional" in the sense of the parsed and political interpretation of our current SCOTUS, but poorly constituted in the sense of our myriads of courts and local governments each with overlapping, duplicated, conflictive, and sometimes arbitrary laws, sometimes perched to prey on travellers, and sometimes set to exploit the peccadilloes of their own ordinary citizens. I think we need to reconstitute our court system to reflect this original vision. And also to once again separate "Judge, jury and executioner" and restore the role of "ordinary courts", "ordinary process" and citizens in their appropriate Judicial roles. Our current system, where it is illegal in some states to marry, smoke pot, or vote, in some states and legal in others, is crazy as much due to drift from the vision described here as from any deliberate insanity. Judges are professional Jurors who know the law well enough that they should be able to act as jurors about it's constitutionality and appropriateness in concert with legislature, executive and ordinary people-jurors. That is where we should be setting up processes for better adjudicating issues.

In this post I'm wearing my student hat.

A Toxic House of Bigots (Poem)

Strange fruit from all this hate,

can't swim, or run out the gate...

The more we hate, the more we fail.

The more we fail, the harder to heal.

 

The harder we get the less we deal,

and the poorer we deal the more we fail.

So if we are to heal we must break the cycle of hate

& we must do it before its too late!

https://www.youtube.com/watch?v=98CxkS0vzB8

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.

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.