The Same Subject Continued (The Insufficiency
of the Present Confederation to Preserve the Union)
From the New York Packet. Tuesday, December 4, 1787.
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 a right 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 plausibility 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 ill humors 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
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