Tag Archive for: Federalist No. 16

The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union
From the New York Packet.
Tuesday, December 4, 1787.

Author: Alexander Hamilton

To the People of the State of New York:

THE tendency of the principle of legislation for States, or communities, in their political capacities, as it has been exemplified by the experiment we have made of it, is equally attested by the events which have befallen all other governments of the confederate kind, of which we have any account, in exact proportion to its prevalence in those systems. The confirmations of this fact will be worthy of a distinct and particular examination. I shall content myself with barely observing here, that of all the confederacies of antiquity, which history has handed down to us, the Lycian and Achaean leagues, as far as there remain vestiges of them, appear to have been most free from the fetters of that mistaken principle, and were accordingly those which have best deserved, and have most liberally received, the applauding suffrages of political writers.

This exceptionable principle may, as truly as emphatically, be styled the parent of anarchy: It has been seen that delinquencies in the members of the Union are its natural and necessary offspring; and that whenever they happen, the only constitutional remedy is force, and the immediate effect of the use of it, civil war.

It remains to inquire how far so odious an engine of government, in its application to us, would even be capable of answering its end. If there should not be a large army constantly at the disposal of the national government it would either not be able to employ force at all, or, when this could be done, it would amount to a war between parts of the Confederacy concerning the infractions of a league, in which the strongest combination would be most likely to prevail, whether it consisted of those who supported or of those who resisted the general authority. It would rarely happen that the delinquency to be redressed would be confined to a single member, and if there were more than one who had neglected their duty, similarity of situation would induce them to unite for common defense. Independent of this motive of sympathy, if a large and influential State should happen to be the aggressing member, it would commonly have weight enough with its neighbors to win over some of them as associates to its cause. Specious arguments of danger to the common liberty could easily be contrived; plausible excuses for the deficiencies of the party could, without difficulty, be invented to alarm the apprehensions, inflame the passions, and conciliate the good-will, even of those States which were not chargeable with any violation or omission of duty. This would be the more likely to take place, as the delinquencies of the larger members might be expected sometimes to proceed from an ambitious premeditation in their rulers, with a view to getting rid of all external control upon their designs of personal aggrandizement; the better to effect which it is presumable they would tamper beforehand with leading individuals in the adjacent States. If associates could not be found at home, recourse would be had to the aid of foreign powers, who would seldom be disinclined to encouraging the dissensions of a Confederacy, from the firm union of which they had so much to fear. When the sword is once drawn, the passions of men observe no bounds of moderation. The suggestions of wounded pride, the instigations of irritated resentment, would be apt to carry the States against which the arms of the Union were exerted, to any extremes necessary to avenge the affront or to avoid the disgrace of submission. The first war of this kind would probably terminate in a dissolution of the Union.

This may be considered as the violent death of the Confederacy. Its more natural death is what we now seem to be on the point of experiencing, if the federal system be not speedily renovated in a more substantial form. It is not probable, considering the genius of this country, that the complying States would often be inclined to support the authority of the Union by engaging in a war against the non-complying States. They would always be more ready to pursue the milder course of putting themselves upon an equal footing with the delinquent members by an imitation of their example. And the guilt of all would thus become the security of all. Our past experience has exhibited the operation of this spirit in its full light. There would, in fact, be an insuperable difficulty in ascertaining when force could with propriety be employed. In the article of pecuniary contribution, which would be the most usual source of delinquency, it would often be impossible to decide whether it had proceeded from disinclination or inability. The pretense of the latter would always be at hand. And the case must be very flagrant in which its fallacy could be detected with sufficient certainty to justify the harsh expedient of compulsion. It is easy to see that this problem alone, as often as it should occur, would open a wide field for the exercise of factious views, of partiality, and of oppression, in the majority that happened to prevail in the national council.

It seems to require no pains to prove that the States ought not to prefer a national Constitution which could only be kept in motion by the instrumentality of a large army continually on foot to execute the ordinary requisitions or decrees of the government. And yet this is the plain alternative involved by those who wish to deny it the power of extending its operations to individuals. Such a scheme, if practicable at all, would instantly degenerate into a military despotism; but it will be found in every light impracticable. The resources of the Union would not be equal to the maintenance of an army considerable enough to confine the larger States within the limits of their duty; nor would the means ever be furnished of forming such an army in the first instance. Whoever considers the populousness and strength of several of these States singly at the present juncture, and looks forward to what they will become, even at the distance of half a century, will at once dismiss as idle and visionary any scheme which aims at regulating their movements by laws to operate upon them in their collective capacities, and to be executed by a coercion applicable to them in the same capacities. A project of this kind is little less romantic than the monster-taming spirit which is attributed to the fabulous heroes and demi-gods of antiquity.

Even in those confederacies which have been composed of members smaller than many of our counties, the principle of legislation for sovereign States, supported by military coercion, has never been found effectual. It has rarely been attempted to be employed, but against the weaker members; and in most instances attempts to coerce the refractory and disobedient have been the signals of bloody wars, in which one half of the confederacy has displayed its banners against the other half.

The result of these observations to an intelligent mind must be clearly this, that if it be possible at any rate to construct a federal government capable of regulating the common concerns and preserving the general tranquillity, it must be founded, as to the objects committed to its care, upon the reverse of the principle contended for by the opponents of the proposed Constitution. It must carry its agency to the persons of the citizens. It must stand in need of no intermediate legislations; but must itself be empowered to employ the arm of the ordinary magistrate to execute its own resolutions. The majesty of the national authority must be manifested through the medium of the courts of justice. The government of the Union, like that of each State, must be able to address itself immediately to the hopes and fears of individuals; and to attract to its support those passions which have the strongest influence upon the human heart. It must, in short, possess all the means, and have aright to resort to all the methods, of executing the powers with which it is intrusted, that are possessed and exercised by the government of the particular States.

To this reasoning it may perhaps be objected, that if any State should be disaffected to the authority of the Union, it could at any time obstruct the execution of its laws, and bring the matter to the same issue of force, with the necessity of which the opposite scheme is reproached.

The pausibility of this objection will vanish the moment we advert to the essential difference between a mere NON-COMPLIANCE and a DIRECT and ACTIVE RESISTANCE. If the interposition of the State legislatures be necessary to give effect to a measure of the Union, they have only NOT TO ACT, or to ACT EVASIVELY, and the measure is defeated. This neglect of duty may be disguised under affected but unsubstantial provisions, so as not to appear, and of course not to excite any alarm in the people for the safety of the Constitution. The State leaders may even make a merit of their surreptitious invasions of it on the ground of some temporary convenience, exemption, or advantage.

But if the execution of the laws of the national government should not require the intervention of the State legislatures, if they were to pass into immediate operation upon the citizens themselves, the particular governments could not interrupt their progress without an open and violent exertion of an unconstitutional power. No omissions nor evasions would answer the end. They would be obliged to act, and in such a manner as would leave no doubt that they had encroached on the national rights. An experiment of this nature would always be hazardous in the face of a constitution in any degree competent to its own defense, and of a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority. The success of it would require not merely a factious majority in the legislature, but the concurrence of the courts of justice and of the body of the people. If the judges were not embarked in a conspiracy with the legislature, they would pronounce the resolutions of such a majority to be contrary to the supreme law of the land, unconstitutional, and void. If the people were not tainted with the spirit of their State representatives, they, as the natural guardians of the Constitution, would throw their weight into the national scale and give it a decided preponderancy in the contest. Attempts of this kind would not often be made with levity or rashness, because they could seldom be made without danger to the authors, unless in cases of a tyrannical exercise of the federal authority.

If opposition to the national government should arise from the disorderly conduct of refractory or seditious individuals, it could be overcome by the same means which are daily employed against the same evil under the State governments. The magistracy, being equally the ministers of the law of the land, from whatever source it might emanate, would doubtless be as ready to guard the national as the local regulations from the inroads of private licentiousness. As to those partial commotions and insurrections, which sometimes disquiet society, from the intrigues of an inconsiderable faction, or from sudden or occasional illhumors that do not infect the great body of the community the general government could command more extensive resources for the suppression of disturbances of that kind than would be in the power of any single member. And as to those mortal feuds which, in certain conjunctures, spread a conflagration through a whole nation, or through a very large proportion of it, proceeding either from weighty causes of discontent given by the government or from the contagion of some violent popular paroxysm, they do not fall within any ordinary rules of calculation. When they happen, they commonly amount to revolutions and dismemberments of empire. No form of government can always either avoid or control them. It is in vain to hope to guard against events too mighty for human foresight or precaution, and it would be idle to object to a government because it could not perform impossibilities.

PUBLIUS.

Thursday, May 20th, 2010

A big thank you to our guest blogger Marc Lampkin! Marc, thank you for guiding us today!

I so appreciate all of you who take the time to comment.  You often see nuggets of wisdom in these papers that I have glossed over on my first reading, and your posts send me scrambling back to find the phrases you elaborate on.

Two phrases jumped out at me upon my first reading of Federalist 16, though, and they are the same mentioned by Nickie and Carolyn:

An experiment of this nature would always be hazardous in the face of a constitution in any degree competent to its own defense, and of a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority. The success of it would require not merely a factious majority in the legislature, but the concurrence of the courts of justice and of the body of the people. If the judges were not embarked in a conspiracy with the legislature, they would pronounce the resolutions of such a majority to be contrary to the supreme law of the land, unconstitutional, and void. If the people were not tainted with the spirit of their State representatives, they, as the natural guardians of the Constitution, would throw their weight into the national scale and give it a decided preponderancy in the contest. Attempts of this kind would not often be made with levity or rashness, because they could seldom be made without danger to the authors, unless in cases of a tyrannical exercise of the federal authority.

“A people enlightened,”  ”natural guardians of the Constitution”

“We the people,” are the natural guardians of the Constitution, because as our country drifts from the Constitution, it is “We the people,” who have the most to lose.  If we are not “enlightened,” to understand what we had, and have, we will certainly not know what we have lost, and are losing.  And our children will understand even less than us. We must not only enlighten ourselves, but enlighten our children, so the torch of freedom may be passed to the next generation of Americans.  Watch Janine’s Behind The Scenes Videos starting today, as she teaches her daughter about the Constitution in a several part series!  Janine Turner Short Film Part 1 Constituting America

I am both amazed, and a bit embarrassed to admit how much I am learning through this exercise. I graduated from Texas A&M University with a B.A. in political science, yet I don’t recall ever picking up the Federalist in college.  This reading is my first time through these prescient papers.   Tonight, I feel empowered that I am becoming “enlightened,” and that the founding fathers considered us – ‘we the people” – to be the guardians of the Constitution.   The more I learn, the better I can guard it!  And the more I can teach my children! On to Federalist No. 17!

Good night and God Bless,

Your fellow guardian of the Constitution,

Cathy Gillespie

2 Responses to “May 19, 2010 – Federalist No. 16 – Cathy Gillespie”

Mark Hansbauer says:
May 20, 2010 at 3:30 am
The people must be “enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority. . . .”
The distinction between a “legal exercise” and an “illegal usurpation of authority” implies knowledge of the difference between “legal” and “illegal.” Is a governmental action “legal” simply because it follows precedent or is based on a plausible interpretation of the Constitution? Is such action “illegal” when it contravenes precedent or is based on a novel interpretation of the Constitution? These questions bring out the possibility that it is not sufficient for the people to understand the Constitution merely at the textual level. There has to be knowledge of standards that ‘stand above’ the Constitution, not to usurp it, but through which we arrive at the fullest and most just construction of the document.

Dave says:
May 20, 2010 at 11:30 am
Mark, good observation. The Constitution did not come complete with a rule book for construction or, as we would say, interpretation. Who is to decide what is constitutional? How are they to go about the process of deciding? And on what are they relying? It seems to me that the approach to the Constitution has become one of avoidance. Interested parties have an agenda or result in mind and then scour through the case law to find any little precedent they can hang their hat on to nudge the law incrementally toward their desired result.
Each incremental step away from the Constitution seems completely innocuous, plausible and reasonable. But after 230+ years, the “constitution” they are interpreting is strikingly different from the one the framers put their name on. Others have likened it to generations of judges and legal scholars attempting to improve an Old Master painting with a brush stroke here and a brush stroke there. Hubristic acts of defacement and vandalism are what I call those narrow-minded, agenda-driven improvements. Want a different constitution?–AMEND IT! There are, after all, amendment provisions.
Some legal minds get it. Justice Scalia and Justice Thomas come to mind. There are others:
“I claim the right to look at the Constitution itself, stripped of judicial encrustations, as the index of constitutional law.”–Justice Jackson
A judge “remembers above all that it is the Constitution which he swore to support and defend, not the gloss which his predecessors may have put upon it.”–Justice Douglas
“The ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it.”–Justice Frankfurter
The Founders did not suffer from delusions of grandeur; Hamilton says it was never about “the chimerical pursuit of a perfect plan. I never expect to see a perfect work from imperfect man.” (No. 85) They did give us constitutional means to make it “more perfect.” I wish we would use those means instead of unconstitutional ones which rely on the arbitrary policy preferences of unelected judges with lifetime tenure.
We have ended up with, as other Constituting America contributors have mentioned, the Orwellian doublespeak of engaging in commerce by not engaging in commerce. (see Wickard v. Filburn, 317 U. S. 11 (1942))
Mark, sometimes what I see is not a question of knowledge of what’s “legal” or “illegal.” They have the knowledge; they just want a different outcome. Thanks for getting me to think about these ideas.

Wednesday, May 19th, 2010

I want to let you know that I have begun a short film with my daughter for my “Daily Behind the Scenes Videos.” Tonight is Part 1. Check it out. The link is on the website on the home page or the link to the YouTube version is on the Constituting America Facebook Page. It’s going to be fun! I direct these and edit them on my computer nightly – with the help of my daughter, of course. The goal of these videos is to enlighten American citizens about our great United States Constitution, our “90 in 90” and our “We the People 9.17 Contest” so, spread the word!

Here we are at Federalist Paper No. 16!  I want to thank Marc S. Lampkin for joining us again today. We are so lucky to have your scholarly insights, Mr. Lampkin!

Alexander Hamilton’s quote, “When the sword is once drawn, the passions of men observe no bounds of moderation,” speaks volumes. First of all, it is how Alexander Hamilton died, in a dual of passionate discord with Aaron Burr. Secondly, I can’t help but find relevance in these words regarding the situation in Arizona. The more I read, absorb and learn about our United States Constitution, the more I start seeing all aspects of our current political environment through Publius’ eyes –their reasoning, their framework – which, of course, is the whole point of our “90 in 90.”

“When the sword is once drawn, the passions of men observe no bounds of moderation,” starts to make more and more sense to me when I witness, with the rest of America, the friction between our “United States”, Arizona and California. It was experienced over two hundred years ago, has happened throughout our history and it is happening today – “faction.” What we are experiencing as a country is a sample of what would have happened if we had not ratified our Constitution. There would have been no way to keep the peace and find a unity in vision and mutuality of purpose.

Thus, my current assessment is that the cohesiveness of a Federal government served and should continue to serve its purpose in certain areas – one of those areas is the defense and protection of her states.

Thus, the question begs the answer. Why hasn’t the Federal government protected her border states? Yes, states have rights, and yes, the Federal government has grown way beyond our founding father’s intentions but in this instance regarding defense, the federal government should have stepped up to the plate. Arizona has been left to fend for herself and is getting abuse from all angles.

Consequentially, we are witnessing state against state – accusations, misinterpretations – faction. Will California boycott her ally? Will Arizona turn her brother’s  lights?

“When the sword is once drawn, the passions of men observe no bounds of moderation.”

Let us experience the freedom, uniqueness and independence as individual states yet, the unity of brotherhood as a country. Once the sword is drawn where will the passions end? Discourse is an enticement. United we stand. Divided we fall. Has this not been the theme of these Federalist Papers?

God bless,

Janine Turner

 

Guest Blogger: Marc S. Lampkin, partner at Quinn Gillespie and Associates LLC and graduate of Boston College Law School

Wednesday, May 19th, 2010

Federalist #16

In Federalist #16, Alexander Hamilton continues to outline the deficiencies of the present system of government authorized under the Articles of Confederation.  It is Hamilton’s view that the loose confederation will lead to lawlessness and ultimately anarchy once the inability to enforce its own laws becomes apparent.

This exceptionable principle may, as truly as emphatically, be styled the parent of anarchy: It has been seen that delinquencies in the members of the Union are its natural and necessary offspring; and that whenever they happen, the only constitutional remedy is force, and the immediate effect of the use of it, civil war.

The system that was in place had two important facets:  it was a voluntary association of the states and secondly it was in most respects a government whose actions were non-binding. The fact that the Articles of Confederation were voluntary meant that the Congress ruled with the consent of the governed and therefore exercised their authority lawfully.  However, the fact the government could not enforce its dictates meant that ultimately festering conflicts could result in armed conflict among the several states as the enforcement mechanism of last resort.  Furthermore, due to the differences between the size and influence of some of the states, the confederation was particularly ill suited for America.  With no enforcement power, the confederation created asymmetric power centers encouraging large and powerful states to see national policies for their benefit while disregarding the needs of the smaller and less powerful states.  In the unlikely circumstance wherein the Congress adopted a policy that might benefit small states, larger states might ignore them with impunity.  Such a circumstance potentially leads to civil war.

In fact, Hamilton observes that this asymmetric distribution of authority had other problems unrelated to the tendency towards internal armed conflict.  Even when faced with exogenous threats, because the states view themselves as sovereigns — motivated primarily by their own self preservation — the national government would either not have access to the resources necessary to prevent an attack from a foreign enemy or perhaps simply not respond to an attack if the attack was perceived as being against one of the states rather than the nation as a whole.

If there should not be a large army constantly at the disposal of the national government it would either not be able to employ force at all, or, when this could be done, it would amount to a war between parts of the Confederacy concerning the infractions of a league, in which the strongest combination would be most likely to prevail, whether it consisted of those who supported or of those who resisted the general authority. It would rarely happen that the delinquency to be redressed would be confined to a single member, and if there were more than one who had neglected their duty, similarity of situation would induce them to unite for common defense.

On the other hand, since the Articles of Confederation do not give Congress the power to lay and assess the taxes without consent or to compel the armies necessary to stave off attacks, the weakness that the American government presents to other nations would appear quite provocative.  Hamilton complains that by their nature, the states as sovereigns are not transparent entities and therefore even assessing duties or raising armies is unduly difficult.  Does a state refuse to pay up its share because of actual shortages it is experiencing or because its support for the cause identified is lackluster?

If there were a national government like the one described in the Constitution, it would already have the authority to defend itself — recognizing that an attack on one part was an attack on all.

Even if the conflict from foreigners is not the result of a coordinated assault i.e. a war, foreign governments would still be tempted to sow dissension among the states, Hamilton argues.  As long as the states themselves are complete sovereigns, they have every incentive to evaluate foreign relations, trade, and even aid solely in terms of its impact on them as sovereigns and not on the nation as a whole.  Hamilton calls this “Its more natural death is what we now seem to be on the point of experiencing, if the federal system be not speedily renovated in a more substantial form.”

Nevertheless, even if the states were to voluntarily provide the resources for an army, would the force be used to intimidate would be attackers or instead to enforce through intimidation its policies among the states themselves?

It remains to inquire how far so odious an engine of government, in its application to us, would even be capable of answering its end. If there should not be a large army constantly at the disposal of the national government it would either not be able to employ force at all, or, when this could be done, it would amount to a war between parts of the Confederacy concerning the infractions of a league, in which the strongest combination would be most likely to prevail, whether it consisted of those who supported or of those who resisted the general authority.

Then this would present concerns that are even more troublesome.  Wouldn’t it be the case that what Hamilton calls the “delinquency” (meaning the failure of compliance) would occur not just among one state but also likely among several?  In addition, wouldn’t powerful states attempt to align themselves in ways to avoid suffering the consequences of their delinquencies?  If so using the military to enforce compliance begins to look a lot like civil conflict or civil war now that the states joined together in alliances are using enforcement of national policies as a tool of enforcing their perceived advantages.

Hamilton writes, “It would rarely happen that the delinquency to be redressed would be confined to a single member, and if there were more than one who had neglected their duty, similarity of situation would induce them to unite for common defense. Independent of this motive of sympathy, if a large and influential State should happen to be the aggressing member, it would commonly have weight enough with its neighbors to win over some of them as associates to its cause.”

A final critique that Hamilton makes of the Articles of Confederation stems from the notion that it would be beneficial that states would affirmatively approve most of the policies adopted by the national government.  While on its face, it might appear that requiring a second step in order to assure that a given statute must go into effect would be good for liberty, Hamilton argues that it was more likely to lead to anarchy or civil conflict.

Under the U.S. Constitution many checks and balances were already put in place, which acted in many ways as hurdles to excessive, or passion based legislation.  The new Constitution by its design sought to encourage greater deliberation leading to legislation that is more necessary and weeded out that which was frivolous.  Forcing the additional step of state approval would be needlessly limiting the flexibility of the national government while sowing seeds for conflict.

Hamilton asserts, If it be possible at any rate to construct a federal government capable of regulating the common concerns and preserving the general tranquillity, it must be founded, as to the objects committed to its care, upon the reverse of the principle contended for by the opponents of the proposed Constitution. It must carry its agency to the persons of the citizens. It must stand in need of no intermediate legislations; but must itself be empowered to employ the arm of the ordinary magistrate to execute its own resolutions. The majesty of the national authority must be manifested through the medium of the courts of justice. The government of the Union, like that of each State, must be able to address itself immediately to the hopes and fears of individuals; and to attract to its support those passions which have the strongest influence upon the human heart. It must, in short, possess all the means, and have aright to resort to all the methods, of executing the powers with which it is intrusted, that are possessed and exercised by the government of the particular States. To this reasoning it may perhaps be objected, that if any State should be disaffected to the authority of the Union, it could at any time obstruct the execution of its laws, and bring the matter to the same issue of force, with the necessity of which the opposite scheme is reproached.

Hamilton reveals himself to be quite alarmed by the potential threats posed by the Articles of Confederation.  While he may not see the U.S. Constitution as a panacea to all problems that the young nation might  face, he believes that by its design, it is far better able to prevent conflict, or in the event that conflict occurs, it would be able to see that the nation was ultimately able to survive it.

Marc S. Lampkin, partner at Quinn Gillespie and Associates LLC is a graduate of Boston College Law School

18 Responses to “May 19 – Federalist No. 16 – The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union, From the New York Packet (Hamilton) – Guest Blogger: Marc S. Lampkin, partner at Quinn Gillespie and Associates LLC and graduate of Boston College Law School”

Susan Craig says:
May 19, 2010 at 9:03 am
The more I read and study what transpired between the Declaration of Independence and the end of George Washington’s second term the more I find myself squarely between the two factions. I see the deficiencies of the Articles of Confederation but seeing how some of the programs that were darlings of the Federalists have developed I think I would have fought to caveat the Federal Government a little more strictly and defined the relationship of State to Federal a little more clearly.

Charles Babb says:
May 19, 2010 at 11:55 am
How would we ever make any sense of these writings, were it not for the wise interpretation and guidance of our special guest bloggers? Thank you.
I would like to explore Mr. Lampkin’s thoughts in the following observation;
“Under the U.S. Constitution many checks and balances were already put in place, which acted in many ways as hurdles to excessive, or passion based legislation. The new Constitution by its design sought to encourage greater deliberation leading to legislation that is more necessary and weeded out that which was frivolous. Forcing the additional step of state approval would be needlessly limiting the flexibility of the national government while sowing seeds for conflict.”
Do we not see a design fault here, resulting in excessive legislation, happening today? Is this one of the areas where you, Susan, would like to have seen greater clarification?
I shudder to think what the volume of legislation is that has been passed over the years. And yet in November we will elect, or re-elect, representatives who will go to Washington and pass more confusing and conflicting legislation, largely because (1) they try to hide the intent of their proposed legislation through volume and “legalize” and (2) our representatives are too lazy to read it.
How can you “deliberate” that which you do not comprehend?
And once it becomes the law of the land, if they do not enforce it, are they not in violation of their “Oaths of Office”?
What recourse then do “we the people” have?
We have November.
MAY GOD BLESS AMERICA

Nickie Summers says:
May 19, 2010 at 12:47 pm
Two thoughts come to mind reading the founding papers:
First, it is crystal clear to me how far our country has moved away from the Constitution (defining principles and the relationship between the federal government and the states/citizens.) The Federalist/founding papers are redundant making the case to caution people of an ‘over reaching’ government. Hamilton says in No.15, and I’m paraphrasing, the idea of the Constitution is incompatible with the idea of government and therefore a Republic is the only safeguard against an unruly government. No. 16 expands on that and much more. Federal government has to remain small and ‘in check’ to their boundaries/responsibilities….that brings me to my second thought…’The People’….
Second, the founding papers completely empower each citizen – they own the begining and the end of the political process. Our political leaders are turned around in that thinking today. Americans are engaged and ‘owning’ their role to govern…we can/will change the political mindset and landscape in DC and around this great country.
Go Team USA!!

Susan Craig says:
May 19, 2010 at 1:57 pm
That is a symptom, Charles. What I would have liked defined was that rather vague commerce clause that has allowed the Fed to homogenize what was potpourri. Before if you did not like the way Massachusetts regulated its business, you could choose from any of the established States or explore into the territories. Now its Massachusetts or Massachusetts lite.
I would have liked a more elaborated upon clause. My suggestion, States may order commerce within their borders as they see fit. Should disagreements arise between States in the conduct business the Federal will act as Good Faith arbiter to facilitate and promote the smooth conduct throughout the country. Not exactly a legal beagle but I think something like this would have kept the SCOTUS from declaring wheat grown on private property for private consumption under the jurisdiction of the Federal Government by virtue of the Commerce Clause in the Constitution.

Ron Meier says:
May 19, 2010 at 3:59 pm
Too bad the creators of the EU didn’t read the first 20 or so FP before creating the EU. Had they done so, they wouldn’t have let some members in and they would have instituted some kind of enforcement mechanism. More likely, the EU would not have been created, since the prospective initial members would not have approved the sanctions for misbehavior.
re Charles’ comment about the sheer volume of legislation, to say nothing of the thickness of each individual piece, when our legislators run for reelection, they have to demonstrate that they were in attendance for xx% of all votes, the higher the better. If someone has a lower than acceptable percentage, then the opponent runs negative campaign ads demonstrating that the legislator is not doing his or her job. I submit that it might be better if our legislators would spend more time deliberating on the really important legislation and skip showing up to vote for legislation that they know nothing about and that is not critical to survival of our nation. As our Attorney General and Director of Homeland Security have just demonstrated, they don’t even have time to read a simple 10 page piece of legislation (Arizona’s law), yet they feel qualified to speak authoratatively on the law they haven’t read. Our legislators are in similar constraints and likely have staff read certain portions and give them briefings; I doubt they even read legislation they propose.

Carolyn Attaway says:
May 19, 2010 at 4:04 pm
Nickie, I too picked up on the citizen empowerment theme toward the end of this paper. There were several parts that begged to be read out loud, but two statements caught my eye, and I had to read them several times to absorb the impact of their words: “An experiment of this nature would always be hazardous in the face of a constitution in any degree competent to its own defense, and of a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority . . . . If the people were not tainted with the spirit of their State representatives, they, as the natural guardians of the Constitution, would throw their weight into the national scale and give it a decided preponderancy in the contest.”
The first statement contained the sentence a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority. I find this choice of words interesting given that enlightened means to have intellectual or spiritual light; and usurpation of authority means illegal seizure and occupation of a throne. How true do these words ring today that the people must remain vigilant of their government and the laws that are passed unto the citizens themselves less they become subjects to the throne of government through unconstitutional laws and practices? Are we not experiencing a degree of this usurpation of authority today? Is one of the main reasons we gather daily on this web-site is to renew our vigilance and become enlightened with our founding documents?
The second statement reiterates this theme with the words as the natural guardians of the Constitution would throw their weight into the national scale and give it a decided preponderancy in the contest. In Paper 15 Hamilton tells us that the only proper objects of government are the persons of the citizens, so it stands to reason that they would be the natural guardians of the Constitution. And being guardians they would have the decided preponderancy; superiority in weight; power, to defend the Constitution against illegal practices on either State or Federal levels to ensure its authority. We, as citizens of the United States, are charged with this duty.
I find these words amazing.

yguy says:
May 19, 2010 at 4:55 pm
“What I would have liked defined was that rather vague commerce clause that has allowed the Fed to homogenize what was potpourri.”
However vague it may be, there is no way it can be reconciled with Wickard v. Filburn (1942), wherein SCOTUS held that a person not engaging in commerce could be penalized under color of the commerce clause.

Jimmy Green says:
May 19, 2010 at 5:34 pm
Interesting that Hamilton’s belief of state delinquencies in a confederacy would result in civil war.
Yet less than a century latter a civil war between the states would arise under a constitution that Hamilton felt would prevent it.
I believe Hamilton’s desire for a constitution that must be able to legislate over the state and citizens is an implicit understanding of the nature of any true Federal System. The problem is the balancing act between a sovereign state jealously protecting its states rights and an federal government with certain enumerated powers over the sovereign states. Hamilton’s view of the powers of the federal government often seem like a dark cloud on the horizon. Granted the federal government in order to maintain the union has to exercise a degree of control over the states and citizenry.
However this is done via our elected officials in the congress. The States and peoples views are expressed through them such that hopefully any federal legislation is not unseemly harsh on the state or citizens as if they were blindsided. Hamilton’s writings seem somewhat of a dark nature and come across to me as someone who places state sovereignty a distant second to federal prerogatives. However reading the founding documents will show that states vigorously enforcing state rights its necessary to prevent that which Hamilton believes will occur under a confederacy.
Its good that Hamilton recognizes that the states should definitely intervene if the feds legislation becomes a “tyrannical exercise of the federal authority”.
However that’s an extreme viewpoint with most government tyrannies today being a rather long affair that slowly change the country with most of the citizens unaware of the slo-mo tyrannical creep. Interesting read.

Andy Sparks says:
May 19, 2010 at 7:29 pm
Jimmy, I think you hit the nail on the head with Hamilton. Remember he was born and grew up in the British West Indies. He didn’t come to America until he was 17, so he had no loyalty to any particular state. While he was educated and settled in New York, he joined the Continental Army only a few years later. What better place to gain an interstate perspective than in the army. Under Washington’s tutelage, he quickly learned about the deficiencies of the Congress under the AOC during the war in regards to raising troops, supplies, and other necessaries to keep the army going. I think any reference he makes to state power is so to appear not too enthusiastic for a national government. After all, he is trying to convince those moderate anti-federalists to vote for ratification. If it were up to him, he would have preferred a British style government; in fact his detractors referred to him as a monarchist while he headed the Federalist party.

Barb Zakszewski says:
May 19, 2010 at 8:59 pm
Both Hamilton and Madison seemed to have crystal balls at times, with their keen ability to look 100-200 years into the future. Hamilton argued that the Articles of Confederation could eventually set of a “civil war”..Yet 75-80 years after Ratification of the Constitution, the United states was involved in a “Civil War”…the War for Southern Independence. Although this war was considered to be chiefly over slavery, it was a war also for States Rights, for the 10th Amendment..Many of the things Hamilton predicted in Federalist 16 actually came to pass, by then, and that is what got things started.
As for comments made towards the end of the paper, Hamilton is saying that citizens will tolerate a lot from their government, unless government evolves into a tyranny, similar to what is happening today with the Socialist President and Congress we seem to find ourselves with. I believe there is a tie in to what Hamilton says here and the part in the Declaration of Independence that warns when government sinks to absolute despotism, it is our right and duty to throw off such government and provide new guards for our future security.
The more involved I become in this project, the more I can see where the Nation is going now; we must educate ourselves our families and our friends so that we can fight this and reclaim our Great Country!! The Founding Fathers, rather than being irrelevant as many Liberals think, are becoming more relevant with each passing day. We MUST listen to what they have to say.
God Bless this Great Nation!!

William Matthews says:
May 19, 2010 at 8:59 pm
No one has mentioned this, but under the Constitution Senators were selected by their states not like they are elected today. Before a bill could become a law, each of the states two senators had a chance to weigh in on it. In essence the states had actual representatives in the national government and states could actually control much more how their Senators voted. So perhaps when Hamilton is referring to the Constitution being superior he’s also meaning that states get to exercise their influence without needing to individually approve each law?

Jimmy Green says:
May 19, 2010 at 9:00 pm
Thanks for the input Andy. I plan on reading Hamilton’s autobiography in the near future to gain a better insight on him. Sadly as I’m living in the peoples republic of California, the founding fathers and the founding documents are not rated very highly. But there is hope that one day it will.

Susan Craig says:
May 19, 2010 at 9:14 pm
I think we have a lot to thank or accuse Rhode Island for. If they had not refused to consider ratifying any and I do mean any amendment to the Articles of Confederation how different a picture this would be.

Constituting America says:
May 19, 2010 at 11:45 pm
I want to let you know that I have begun a short film with my daughter for my “Daily Behind the Scenes Videos.” Tonight is Part 1. Check it out. The link is on the website on the home page or the link to the YouTube version is on the Constituting America Facebook Page. It’s going to be fun! I direct these and edit them on my computer nightly – with the help of my daughter, of course. The goal of these videos is to enlighten American citizens about our great United States Constitution, our “90 in 90” and our “We the People 9.17 Contest” so, spread the word!
Here we are at Federalist Paper No. 16! I want to thank Marc S. Lampkin for joining us again today. We are so lucky to have your scholarly insights, Mr. Lampkin!
Alexander Hamilton’s quote, “When the sword is once drawn, the passions of men observe no bounds of moderation,” speaks volumes. First of all, it is how Alexander Hamilton died, in a dual of passionate discord with Aaron Burr. Secondly, I can’t help but find relevance in these words regarding the situation in Arizona. The more I read, absorb and learn about our United States Constitution, the more I start seeing all aspects of our current political environment through Publius’ eyes –
their reasoning, their framework – which, of course, is the whole point of our “90 in 90.”
“When the sword is once drawn, the passions of men observe no bounds of moderation,” starts to make more and more sense to me when I witness, with the rest of America, the friction between our “United States”, Arizona and California. It was experienced over two hundred years ago, has happened throughout our history and it is happening today – “faction.” What we are experiencing as a country is a sample of what would have happened if we had not ratified our Constitution. There would have been no way to keep the peace and find a unity in vision and mutuality of purpose.
Thus, my current assessment is that the cohesiveness of a Federal government served and should continue to serve its purpose in certain areas – one of those areas is the defense and protection of her states.
Thus, the question begs the answer. Why hasn’t the Federal government protected her border states? Yes, states have rights, and yes, the Federal government has grown way beyond our founding father’s intentions but in this instance regarding defense, the federal government should have stepped up to the plate. Arizona has been left to fend for herself and is getting abuse from all angles.
Consequentially, we are witnessing state against state – accusations, misinterpretations – faction. Will California boycott her ally? Will Arizona turn her brother’s lights?
“When the sword is once drawn, the passions of men observe no bounds of moderation.”
Let us experience the freedom, uniqueness and independence as individual states yet, the unity of brotherhood as a country. Once the sword is drawn where will the passions end? Discourse is an enticement. United we stand. Divided we fall. Has this not been the theme of these Federalist Papers?
God bless,
Janine Turner
May 19, 2010

Roger Jett says:
May 19, 2010 at 11:45 pm
As I have been reading day-to-day the many comments posted to this wonderful forum, I’ve come to appreciate how well read many of you are. It challenges me to study, learn and evaluate how our nation’s Founders strove to provide us with the best government possible. It was not easy for them to establish it, nor will it be easy for us to do our part to restore what has been largely lost. I too find myself at that point that Susan Craig described earlier today, after having read a lot of the writings from the time of the “Declaration of Independence” through the second term of George Washington’s Presidency, she finds herself squarely between the two factions on the issues of the day. As I have read a number of the arguments presented by Jefferson, Mason and Henry, I find myself influenced by points that they made. I don’t find that troublesome …. I do find it most helpful in obtaining a more balanced understanding and more informed opinion. I don’t always find myself agreeing with all that gets said on this forum, but I believe that the process has challenged me to evaluate what I think is right, true and has caused me to grow a little more strong and firm. Thank you Janine, Cathy and all the rest of you who participate. May God bless you all !

Constituting America says:
May 20, 2010 at 1:35 am
May 19, 2010 – Federalist No. 16 – Cathy Gillespie
A big thank you to our guest blogger Marc Lampkin! Marc, thank you for guiding us today!
I so appreciate all of you who take the time to comment. You often see nuggets of wisdom in these papers that I have glossed over on my first reading, and your posts send me scrambling back to find the phrases you elaborate on.
Two phrases jumped out at me upon my first reading of Federalist 16, though, and they are the same mentioned by Nickie and Carolyn:
An experiment of this nature would always be hazardous in the face of a constitution in any degree competent to its own defense, and of a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority. The success of it would require not merely a factious majority in the legislature, but the concurrence of the courts of justice and of the body of the people. If the judges were not embarked in a conspiracy with the legislature, they would pronounce the resolutions of such a majority to be contrary to the supreme law of the land, unconstitutional, and void. If the people were not tainted with the spirit of their State representatives, they, as the natural guardians of the Constitution, would throw their weight into the national scale and give it a decided preponderancy in the contest. Attempts of this kind would not often be made with levity or rashness, because they could seldom be made without danger to the authors, unless in cases of a tyrannical exercise of the federal authority.
“A people enlightened,” ”natural guardians of the Constitution”
“We the people,” are the natural guardians of the Constitution, because as our country drifts from the Constitution, it is “We the people,” who have the most to lose. If we are not “enlightened,” to understand what we had, and have, we will certainly not know what we have lost, and are losing. And our children will understand even less than us. We must not only enlighten ourselves, but enlighten our children, so the torch of freedom may be passed to the next generation of Americans. Watch Janine’s Behind The Scenes Videos starting today, as she teaches her daughter about the Constitution in a several part series! http://www.youtube.com/watch?v=XGpmqkx1_JQ
I am both amazed, and a bit embarrassed to admit how much I am learning through this exercise. I graduated from Texas A&M University with a B.A. in political science, yet I don’t recall ever picking up the Federalist in college. This reading is my first time through these prescient papers. Tonight, I feel empowered that I am becoming “enlightened,” and that the founding fathers considered us – ‘we the people” – to be the guardians of the Constitution. The more I learn, the better I can guard it! And the more I can teach my children! On to Federalist No. 17!
Good night and God Bless,
Your fellow guaridan of the Constitution,
Cathy Gillespie

Dave says:
May 20, 2010 at 1:41 am
Here’s how I see No. 15 and No. 16. Hamilton is laying the foundation of his argument for ratification and basing it on man’s actual experience through history of forming civil governments, human nature, and most importantly for his argument, the actual experience the Americans had with the government under the Articles of Confederation. I need not repeat his parade of horribles here. He had to convince the New Yorkers that the current system was making their lives miserable whether they knew it or not, and that a strong, energetic, centralized, national government was the answer to all their prayers. If they would just stop being so biased towards their narrow, local interests. He assures them that the states will retain their due sovereignty, but the national government will be the supreme sovereign concerning the national objects under its authority.
The new plan would be different in significant ways from the failed confederations of the past. Those alliances always broke down in predictable ways because they were not consonant with human nature. If I may jump ahead an essay, in No. 17 Hamilton tells us:
“It is a known fact in human nature, that its affections are commonly weak in proportion to the distance or diffusiveness of the object. Upon the same principle that a man is more attached to his family than to his neighborhood, to his neighborhood than to the community at large, the people of each State would be apt to feel a stronger bias towards their local governments than towards the government of the Union; unless the force of that principle should be destroyed by a much better administration of the latter.”
We care more about that which is close to us, and we should. Hamilton wants us to give up some of that local care and concern and cede it to the national government in our own enlightened self-interest. And up to a point I think he’s right.
I would caution vigilance for the corrupting influence of power, for the tendency to be profligate with other people’s money, and mission creep. If the national government had stuck to the plan of being a limited government of enumerated powers, and if it had not spent decades and decades trying, and failing, to be all things to all people, we might not be in the sorry state we are in now.
The Founders saw the states within the new plan as laboratories of democracy. Some states’ experiments would be successful and emulated; other states’ experiments would be colossal failures and be rejected, or at least should be rejected (think CA, MI, and NJ.) In this way, mistakes would stay local and not doom the entire republic. The fiscal black hole some states, cities, and corporations are in has been caused almost exclusively by bad legislative, economic, and business decisions. Bailouts using taxpayer dollars to reward imprudent local decisions creates what economists call a moral hazard and offers exactly the wrong kind of incentives with other people’s money, our money.

Dave says:
May 20, 2010 at 3:15 am
Andy, good points about Hamilton the man. I tend to bask in the glow of his brilliance and genius (he was only 30 or so in the summer of 1787,) but then I force myself to consider what aspects of his psychology and life experiences could be influencing his thoughts on government. Madison’s notes of the Federal Convention have Hamilton laying out his plan on June 18. An executive elected for life with supreme veto power? How could he think that was a good idea?
Jimmy, you had written yesterday, “I would be more interested in Hamilton’s views on what should occur if the Federal government fails to uphold its enumerated powers.” That’s exactly what I’ve been wondering. The three branches of our federal government seem to have come to the conclusion that it’s just too much trouble to get the people to act in their constituent role as the “natural guardians of the Constitution” and amend the Constitution; they, our “agents and trustees” (No. 46) just ignore the Constitution and work their way around it, but they do make sure to pay it lip service at the appropriate times.
With the benefit of hindsight, I am amazed at how often in the papers, Publius warns us of what, to him, was the major threat to liberty. He thought the abuse of power would come from the states. After all, the federal government is a creature of the states or a servant of the states. It could never be the case that the creature would supplant the creator or the master would become the servant. Oh really? And something else that still troubles me in the federal system that they were proposing, with its dual sovereignty in different spheres and even with its guarantee of republican government in the states—What is to be done when a state exhibits tyrannical tendencies and is technically not in violation of the Constitution, but is in violation of the founding principles located in the Declaration of Independence? How was the slavery issue to be resolved? Abortion?
Last thought: For the new federal plan to work, the Framers had to have some presuppositions in mind about man and about the world. Were any of the presuppositions necessary for the perpetual success of the union under the constitution to be ratified? And would it be the case that any state of affairs not including those requirements would spell doom for the union.

Thursday, May 20th, 2010

Where did we go wrong as a country that we let the Federal government overtake the states? This was obviously not the intent of our founding fathers. As explained in Federalist Paper No. 16, the communities and local passions were to always be the stronghold against the homogeneous nature that springs from a Federal formation.

Obviously, Alexander Hamilton could envision great commerce and industry from such a fastidious people as Revolutionary Americans, but how could he see the vast transformation of communication and transportation? From his post in the 18th century, the local influences and perspectives were dominant, and the national sways were secondary.

He could not imagine the amazing feats in engineering that would revolutionize transportation broadening the horizons of the people. Nor could he foresee the formidable transformations resulting from the inventions of the telephone, radio and television. With this occurrence, the states lost their uniqueness, the people their distinctness and the federal government gained power – a shift occurred.

But was this enough to open the door for the Federal government to eat away at the core of the states’ powers?
What gave the Federal Government the power to encroach? Perhaps it was the Constitutional Amendment XVI – Income Taxes. What was the incentive that enticed the people to forfeit their individuality and their rights? Subsidies – the spoon-feeding mentality that usurped the American “can do” spirit.

The slippery slope began. Alexander Hamilton stated in Federalist No. 15, “When the sword is once drawn, the passions of men observe no bounds of moderation.”
Perhaps it should be, “When the sword of taxes is drawn, the passions of government observe no bounds of moderation.”

Knowledge is power. With the awareness and education of the true intention of our United States Constitution, the American spirit will be revived and the people will recognize the power of their vote. Our Republican form of government offers the way to rectify.

To quote Alexander Hamilton, “There is one transcendent advantage belonging to the province of state governments, which alone suffices to place the matter in a clear and satisfactory light.. I mean the ordinary administration of criminal and civil justice.”

The criminal and civil justice belong to the states.. something to ponder.

God Bless,

Janine Turner
May 20, 2010
P.S. I thank William C. Duncan for joining us today and for his insightful essay!  Thank you, Mr. Duncan!

2 Responses to “May 20, 2010 – Federalist No. 17 – Janine Turner”

Susan Craig says:
May 20, 2010 at 9:35 pm
While I don’t agree with the founding fathers, that only those who own property should have the vote, I see where it has led to some of today’s ills. I think it was Benjamin Franklin who said the republic would be in trouble once people discovered that they could vote themselves other peoples money.

Tim Shey says:
July 21, 2010 at 5:13 pm
If a man abuses his power, the people rise up and fight against that man. If the Federal Government is too powerful and abuses its power, then the people rise up and fight against it (e.g. King George III and Great Britain in 1776).
This Christian lady told me that there was a prophecy given a while back and the prophecy said that “the South shall rise again.” I am sure that it does not mean that the Confederacy will rise again, but that the issue of States’ Rights will rise again. This is happening right now with the Tea Party Movement and all the other people sick and tired of our over-reaching Federal Government.
When the Germans counter-attacked in the Ardennes Forest in December 1944, many people were alarmed and there was general panic. But General Eisenhower saw it as an opportunity for ultimate victory. If Jimmy Carter was a gift to Ronald Reagan, then Barack Obama will be a gift to the Republican who takes the White House in 2012.
Have faith in God and we will see victory.

“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”Article II, Section 2, Clause 3 of the United States Constitution.

Hello from Mt. Vernon Virginia!  In Federalist No. 67, Publius vigorously defends the above sentence in the U.S. Constitution, and uses the anti-federalists’ arguments against it as an example of their distortion of the powers of the presidency.

It is appropriate I should be writing from Mt. Vernon, Virginia today, as President George Washington made the first use of the power of the recess appointment in 1789, to fill several federal district court judgeships.  On July 1, 1795 President Washington made a recess appointment to appoint John Rutledge as Chief Justice of the United States Supreme Court, upon Chief Justice John Jay’s resignation to become Governor of New York.   Within 15 days of Chief Justice Rutledge’s recess appointment, Rutledge made a controversial speech attacking the Jay Treaty, saying he would rather see President Washington die, than sign the treaty! Chief Justice Rutledge’s tirade led many to believe he was mentally ill or intoxicated when he made the speech.  (for more on this story, see my source: http://www.senate.gov/reference/resources/pdf/RL31112.pdf, page 17).

Consequently, when Chief Justice Rutledge was nominated by President Washington for a full life term in December of 1795, Rutledge’s nomination was rejected by the Senate five days later by a vote of 10-14,  making him the shortest serving Chief Justice in United States History!

From the moment of its inception, the United States Constitution went to work. The checks and balances and separation of powers delineated in this great document provided boundaries even on our first and revered President, George Washington.  Imagine if the 24 hour news cycle had existed in President Washington’s time.  The story of Chief Justice Rutledge would have been covered non-stop, and his speech would have certainly been all over You Tube!  But despite the difference in technology, and the span of hundreds of years, our United States Constitution works much the same today as it worked at the time of its birth, like gears in a machine, steadily providing a check to one branch, and then another, with our liberty delicately balanced.

To the extent that one branch goes too far, and encroaches on another, or provides a check where none should be, it is not a failure of the machine, it is a failure of the energy behind the machine – “We the people.”   Our knowledge is power, and our power translated to action is energy!

Thank you Troy Kickler for your brilliant essay, and your continued participation in our 90 in 90 History Holds the Key to the Future project.

And thank you to our fellow Patriots and “guardians of the Constitution,” (Federalist No. 16) for participating in our blog!

On to Federalist No. 68,

Cathy Gillespie

Thursday, July 29th, 2010