FReeper Book Club: The Debate over the Constitution, Federalist #46

In this, one of the most important papers by Madison, he explains the means and mechanisms by which the states can resist a federal government that has escaped its constitutional prison.

² Resuming the subject of the last paper, I proceed to inquire whether the federal government or the state governments will have the advantage with regard to the predilection and support of the people.

³ Notwithstanding the different modes in which they are appointed, we must consider both of them as substantially dependent on the great body of the citizens of the United States.

⁴ I assume this position here as it respects the first, reserving the proofs for another place.

⁵ The federal and state governments are in fact but different agents and trustees of the people, constituted with different powers and designed for different purposes.

⁶ The adversaries of the Constitution seem to have lost sight of the people altogether in their reasoning on this subject and to have viewed these different establishments, not only as mutual rivals and enemies, but as uncontrolled by any common superior in their efforts to usurp the authorities of each other.

⁸ They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone, and that it will not depend merely on the comparative ambition or address of the different governments whether either, or which of them, will be able to enlarge its sphere of jurisdiction at the expense of the other.

⁹ Truth, no less than decency, requires that the event in every case should be supposed to depend on the sentiments and sanction of their common constituents.

¹⁰ Many considerations, besides those suggested on a former occasion, seem to place it beyond doubt that the first and most natural attachment of the people will be to the governments of their respective states.

¹¹ Into the administration of these a greater number of individuals will expect to rise.

¹² From the gift of these a greater number of offices and emoluments will flow.

¹³ By the superintending care of these, all the more domestic and personal interests of the people will be regulated and provided for.

¹⁴ With the affairs of these, the people will be more familiarly and minutely conversant.

¹⁵ And with the members of these will a greater proportion of the people have the ties of personal acquaintance and friendship and of family and party attachments; on the side of these, therefore, the popular bias may well be expected most strongly to incline.

¹⁷ The federal administration, though hitherto very defective in comparison with what may be hoped under a better system, had, during the war, and particularly [while] the independent fund of paper emissions was in credit, an activity and importance as great as it can well have in any future circumstances whatever.

¹⁸ It was engaged, too, in a course of measures which had for their object the protection of everything that was dear, and the acquisition of everything that could be desirable to the people at large.

¹⁹ It was, nevertheless, invariably found, after the transient enthusiasm for the early Congresses was over, that the attention and attachment of the people were turned anew to their own particular governments, that the federal council was at no time the idol of popular favor, and that opposition to proposed enlargements of its powers and importance was the side usually taken by the men who wished to build their political consequence on the prepossessions of their fellow citizens.

²⁰ If, therefore, as has been elsewhere remarked, the people should in future become more partial to the federal than to the state governments, the change can only result from such manifest and irresistible proofs of a better administration as will overcome all their antecedent propensities.

²¹ And in that case, the people ought not surely to be precluded from giving most of their confidence where they may discover it to be most due, but even in that case the state governments could have little to apprehend, because it is only within a certain sphere that the federal power can, in the nature of things, be advantageously administered.

²² The remaining points on which I propose to compare the federal and state governments are the disposition and the faculty they may respectively possess to resist and frustrate the measures of each other.

²³ It has been already proved that the members of the federal will be more dependent on the members of the state governments than the latter will be on the former.

²⁴ It has appeared also that the prepossessions of the people, on whom both will depend, will be more on the side of the state governments than of the federal government.

²⁵ So far as the disposition of each towards the other may be influenced by these causes, the state governments must clearly have the advantage.

²⁶ But in a distinct and very important point of view, the advantage will lie on the same side.

²⁷ The prepossessions which the members themselves will carry into the federal government will generally be favorable to the states, [while] it will rarely happen that the members of the state governments will carry into the public councils a bias in favor of the general government.

²⁸ A local spirit will infallibly prevail much more in the members of Congress than a national spirit will prevail in the legislatures of the particular states.

²⁹ Every one knows that a great proportion of the errors committed by the state legislatures proceeds from the disposition of the members to sacrifice the comprehensive and permanent interest of the state to the particular and separate views of the counties or districts in which they reside.

³⁰ And if they do not sufficiently enlarge their policy to embrace the collective welfare of their particular state, how can it be imagined that they will make the aggregate prosperity of the Union and the dignity and respectability of its government the objects of their affections and consultations?

³¹ For the same reason that the members of the state legislatures will be unlikely to attach themselves sufficiently to national objects, the members of the Federal Legislature will be likely to attach themselves too much to local objects.

³² The states will be to the latter what counties and towns are to the former.

³³ Measures will too often be decided according to their probable effect, not on the national prosperity and happiness, but on the prejudices, interests and pursuits of the governments and people of the individual states.

³⁴ What is the spirit that has in general characterized the proceedings of Congress?

³⁵ A perusal of their journals, as well as the candid acknowledgments of such as have had a seat in that assembly, will inform us that the members have but too frequently displayed the character, rather of partisans of their respective states, than of impartial guardians of a common interest; that where on one occasion improper sacrifices have been made of local considerations to the aggrandizement of the federal government, the great interests of the nation have suffered on a hundred from an undue attention to the local prejudices, interests and views of the particular states.

³⁶ I mean not by these reflections to insinuate that the new federal government will not embrace a more enlarged plan of policy than the existing government may have pursued, much less that its views will be as confined as those of the state legislatures, but only that it will partake sufficiently of the spirit of both to be disinclined to invade the rights of the individual states or the prerogatives of their governments.

³⁷ The motives on the part of the state governments to augment their prerogatives by defalcations from the federal government will be overruled by no reciprocal predispositions in the members.

³⁸ Were it admitted, however, that the federal government may feel an equal disposition with the state governments to extend its power beyond the due limits, the latter would still have the advantage in the means of defeating such encroachments.

³⁹ If an act of a particular state, though unfriendly to the national government, be generally popular in that state and should not too grossly violate the oaths of the state officers, it is executed immediately and of course by means on the spot and depending on the state alone.

⁴⁰ The opposition of the federal government, or the interposition of federal officers, would but inflame the zeal of all parties on the side of the state, and the evil could not be prevented or repaired, if at all, without the employment of means which must always be resorted to with reluctance and difficulty.

⁴¹ On the other hand, should an unwarrantable measure of the federal government be unpopular in particular states, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand.

⁴² The disquietude of the people, their repugnance and perhaps refusal to cooperate with the officers of the Union, the frowns of the executive magistracy of the state, the embarrassments created by legislative devices which would often be added on such occasions, would oppose in any state difficulties not to be despised, would form in a large state very serious impediments, and where the sentiments of several adjoining states happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter.

⁴³ But ambitious encroachments of the federal government on the authority of the state governments would not excite the opposition of a single state or of a few states only.

⁴⁹ The same combinations, in short, would result from an apprehension of the federal, as was produced by the dread of a foreign, yoke, and unless the projected innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other.

⁵⁰ But what degree of madness could ever drive the federal government to such an extremity.

⁵¹ In the contest with Great Britain, one part of the empire was employed against the other.

⁵³ The attempt was unjust and unwise, but it was not in speculation absolutely chimerical.

⁵⁶ A few representatives of the people would be opposed to the people themselves, or rather one set of representatives would be contending against thirteen sets of representatives, with the whole body of their common constituents on the side of the latter.

⁵⁷ The only refuge left for those who prophesy the downfall of the state governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition.

⁵⁸ The reasoning contained in these papers must have been employed to little purpose indeed if it could be necessary now to disprove the reality of this danger.

⁵⁹ That the people and the states should, for a sufficient period of time, elect an uninterrupted succession of men ready to betray both, that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment, that the governments and the people of the states should silently and patiently behold the gathering storm and continue to supply the materials until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism.

⁶¹ Let a regular army, fully equal to the resources of the country, be formed, and let it be entirely at the devotion of the federal government, still it would not be going too far to say that the state governments with the people on their side would be able to repel the danger.

⁶² The highest number to which, according to the best computation, a standing army can be carried in any country does not exceed one hundredth part of the whole number of souls or one twenty-fifth part of the number able to bear arms.

⁶³ This proportion would not yield in the United States an army of more than twenty-five or thirty thousand men.

⁶⁴ To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence.

⁶⁵ It may well be doubted whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops.

⁶⁶ Those who are best acquainted with the last successful resistance of this country against the British arms will be most inclined to deny the possibility of it.

⁶⁷ Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments to which the people are attached and by which the militia officers are appointed, forms a barrier against the enterprises of ambition more insurmountable than any which a simple government of any form can admit of.

⁶⁸ Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.

⁶⁹ And it is not certain that with this aid alone they would not be able to shake off their yokes.

⁷⁰ But were the people to possess the additional advantages of local governments chosen by themselves who could collect the national will and direct the national force, and of officers appointed out of the militia by these governments and attached both to them and to the militia, it may be affirmed with the greatest assurance that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.

⁷¹ Let us not insult the free and gallant citizens of America with the suspicion that they would be less able to defend the rights of which they would be in actual possession than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors.

⁷² Let us rather no longer insult them with the supposition that they can ever reduce themselves to the necessity of making the experiment by a blind and tame submission to the long train of insidious measures which must precede and produce it.

⁷³ The argument under the present head may be put into a very concise form which appears altogether conclusive.

⁷⁴ Either the mode in which the federal government is to be constructed will render it sufficiently dependent on the people or it will not.

⁷⁵ On the first supposition, it will be restrained by that dependence from forming schemes obnoxious to their constituents.

⁷⁶ On the other supposition, it will not possess the confidence of the people, and its schemes of usurpation will be easily defeated by the state governments who will be supported by the people.

⁷⁷ On summing up the considerations stated in this and the last paper, they seem to amount to the most convincing evidence that the powers proposed to be lodged in the federal government are as little formidable to those reserved to the individual states as they are indispensably necessary to accomplish the purposes of the Union, and that all those alarms which have been sounded of a meditated and consequential annihilation of the state governments must, on the most favorable interpretation, be ascribed to the chimerical fears of the authors of them.

Madison's intention in this, the second part of the second item in his analysis of the proposed Constitution, is to assure the voting public against the notion of the federal government stepping in and simply taking over. It is the culmination of his sober, no-nonsense approach to the matter that is intended to act as a counterweight to what the Federalists felt was unreason, even hysteria, on the part of those who were predicting dire results should the Constitution be ratified. This is not the case, he has argued. There are sufficient reasons for the powers given the federal government and sufficient safeguards against abuses by those in it.

Suddenly the reader finds himself navigating very different waters indeed, and it is a credit to Madison that he dares even to enter them. It is, after all, a cardinal sin of political theorists in general to become so enamored of their own models that they begin to speak as if there were no possibility of behavior outside them. Marx was particularly prone to this. One sees evidence in the speculation that is inherent in the extrapolation of the model; suddenly the terms “would” and “will” start flying as if the author has glimpsed the unalterable future path of history.

Madison has not avoided that unavoidable aspect of political theorizing. Within this very essay, the word “will” occurs some 42 times, the word “would” 34. But he does something else that indicates that he takes the objections of the anti-Federalists seriously, that he is not so captured by his own political model that he cannot envision behavior outside it. Suddenly the reader finds him speaking approvingly of armed resistance to the very government he is proposing.

It is, to say the least, a little jarring. The political world of America at that time was considerably less stable and arguably quite a bit more violent than that of today, and the government of the Confederation had already witnessed two significant disturbances against it. The new federal one would shortly experience a third. One successful insurrection does tend to spawn successors, as the French would soon learn to their eventual dismay. The Founders understood this point perfectly well. One of the principal functions of the proposed federal government was, as has been cited in nearly all of the early Federalist essays, the suppression of riot and rebellion in the interest of “insuring domestic tranquility” as stated in the Preamble. One might perceive that as a one-way street in the view of the proponents of that Constitution, and up to this point in the Federalist essays it had been.

Yet there were signs that Madison, at least, appreciated that all might not go well. In Federalist #43, he admitted that a large insurrection “pervading all the states and comprising a superiority of the entire force” would be quite outside the scope of the Constitution to cure, the best guard against such a thing being prevention (73). He lights, as well, on the “very delicate” matter of compulsion: “what relation is to subsist between the nine or more states ratifying the Constitution and the remaining few who do not become parties to it?” (93) There is no good answer. That exact, and very dangerous, proportion would arise once more when, some 75 years later, one-third of the country opted for secession, and the other two-thirds opposed it. There would be no answer there either – short of the force of arms.

It is, however, more than a little ironic that while the Articles of Confederation were justly criticized in Federalist #42 for failing to provide for the admission of new states to the Union, those very critics failed to address the issue of states departing it in the Constitution they were proposing. These are, Madison hopes, borderline cases to be avoided rather than problems to be solved within the Constitution. It may be helpful to review his case to this point to understand how he came to this last unsettling contingency.

There is one overweening principle that explains it: that the authority for all government – local, state and federal – must stem from the citizens.

⁸ They [the critics] must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone, and that it will not depend merely on the comparative ambition or address of the different governments whether either, or which of them, will be able to enlarge its sphere of jurisdiction at the expense of the other.

Madison has already stated that he would personally oppose any government at any level that acted outside this principle (Federalist #45, 9-11). It is, rather, the responsibility of the governments themselves to act within it. That means all of the governments, including the federal one.

That government will likely be smaller than those of the states (11), whose respective governments, being closer to the people, will tend to command their affections proportionately (15). This is not merely an anticipation of theory but an observed fact under the Confederation (16-19). The federal government may only overcome this by being better administered than those of the states (20); in short, the federal government must prove itself to the people.

The federal government will be more dependent on those of the states than the reverse (23). In fact, the general trend of all governments within America up to Madison’s time is for each to emphasize the concerns of its subordinates over its own interests (24-37). So much for reassurance. Now Madison drops a bombshell.

³⁸ Were it admitted, however, that the federal government may feel [a] disposition...to extend its power beyond the due limits, the latter [the state governments] would still have the advantage in the means of defeating such encroachments.

These means are, of course, forcible coercion. But surely Madison must only be imagining an illegal takeover of some sort? No, he is not.

⁴¹ On the other hand, should an unwarrantable measure of the federal government be unpopular in particular states, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand.

This must be repeated so that no misunderstanding is possible. Madison is speaking openly of a federal government taking a course of action that is warrantable – legal – but unacceptable. He is speaking openly of its rejection, and not merely through the ballot box. To be sure, by preference the means are non-violent.

Hardly, indeed, but not unimaginably. A federal government sufficiently imbued of folly might well risk this level of resistance – in which case the means of addressing the matter will not be non-violent.

Let the reader pause for a moment to consider that the source of this bloodcurdling pronouncement was not the occasionally overwrought Patrick Henry, but the sober, rational Madison – and he meant every word.

But would such resistance be likely to enjoy success? Madison answers in the affirmative. No imaginable federal army could be supported that could compare in size to the militias of the respective states (61). Here Madison offers one of those throwaway comments that pique the modern reader’s interest more than that of his contemporaries. It is the assertion that the maximum number of troops to be supported in a standing army “in any country” is one for each hundred citizens, an unattributed maxim that remains curiously accurate. The present United States military stands at roughly one-half of that proportion; the standing armed forces of the Soviet Union, just before its fall, roughly double it.

⁶⁸ Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.

This, then, is no wild fantasy on the part of hysterical gun-fondling malcontents. It is, on the contrary, a foundational principle of American government described and justified in detail by one of its Founders, and not by any means one of the wilder ones. It is simply that the last recourse of an armed and free people must be the employment of the former in the defense of the latter, against its own government if necessary. One senses no more reluctance from Madison on this account than regret for having employed it himself against the British.

From this thunderous climax there is a return to a restatement of the theme, but underneath the soothing tones of reassurance there is, and always has been within American society, the rumbling of a beast who is best left unprovoked.

Even after two centuries of steady encroachment on the part of the federal government, the power of resistance remains formidable. The state governments remain, if attenuated, the citizens remain armed, if threatened occasionally with disarmament. These, Madison states, are the guarantors of liberty, and they have been from the very beginning.

In America after the Constitution was ratified, the organized militia consisted of people who volunteered to serve. Officers paid for – and often designed – their uniforms, and enlisted men did or did not have uniforms, depending on the state. In an era when weapons were more standardized than today, the governor of the state was responsible for providing powder and shot; the men provided their own weapons as specified by the Second Amendment. The governor was in charge of the militia, unless called up for service by the federal government under provisions under the Constitution; in those situations, the militia unit would be attached to the regular army.

The unorganized militia, as defined by Congress in 1792, consisted of all able-bodied white males between the ages of 18 and 45. They often elected their own officers, and the tendency over time for uniforms was “come as you are”. Unorganized militia units would be attached to organized militia units for service to avoid the possibility of the unorganized militia unit becoming a vigilante mob. The same arrangements were operative as to who would provide the weapons and who would provide the powder and shot.

The militias of America were a rather haphazard lot, and eventually even Madison endorsed the existence of a standing army. It was not until the acrimony following the Compromise of 1850 that the states of the South began to take the role of the militia seriously.

The state militias were folded into the National Guard in 1903, although some states, such as New York, maintain their own militias separate from the Guard.

Discussion Topics

At 20, Madison argues that the people’s primary affinity will be to the state governments unless the federal government is better at administration. That turned out to be wrong. It became a matter of money and largesse, not able administration. Where, when and how did it all go wrong?
At 21, Madison points out that the federal government has only limited power. Trace the steps by which this failed.
At 36 through 42, Madison shows how the states could resist a tyrannical move from the federal government. Yet by 1865, this was no longer operative. What means do the states have today to resist federal encroachment?
At 57 through 72, Madison argues that the states have the raw military power to resist federal encroachment. He did not foresee the establishment of a standing army and weapons of mass destruction. At 59, he failed to see that the process of accumulating power would take centuries, not one or two presidential terms. Why did he get this one so wrong?

Key paragraphs (to me):

20 If, therefore, as has been elsewhere remarked, the people should in future become more partial to the federal than to the state governments, the change can only result from such manifest and irresistible proofs of a better administration as will overcome all their antecedent propensities.

21 And in that case, the people ought not surely to be precluded from giving most of their confidence where they may discover it to be most due, but even in that case the state governments could have little to apprehend, because it is only within a certain sphere that the federal power can, in the nature of things, be advantageously administered.

Key point I want to argue with:

One sees evidence in the speculation that is inherent in the extrapolation of the model; suddenly the terms "would" and "will" start flying as if the author has glimpsed the unalterable future path of history.

I’m not sure that he becomes enamored with his own ideas. I think he is arguing on thin ice here and he knows it. He knows that the House and the President will be chosen according to popular will. He knows the President will appoint a Supreme Court that is sympathetic to things Presidents like to do and have the power of the Necessary and Proper Clause to enable the National Government. Never once does he mention the Senate, which is supposed to be a check on national popular will. (My strong sense reading through this and other documents is that the Senate was never meant to be a strong body.) He knows that the USSC will be the court of last resort, even for the states and that the national government will be able to do as it pleases baring popular revolts.

No, I think he is arguing by assertion, not objectively, and knows that he is saying it simply isn’t practical for the Federal Government to replace the state governments. Since these arguments were made, we have found that the National Government has grown into every nook and cranny of state government using them as a sort of ManPower Services to carry out federal mandates. In fact, it is the practicality of the state governments that enables the federal government to be so intrusive.

That’s my response to the Discussion Topics. The Founders knew that the National Government would be supreme and knew that the state governments would be lower and as "the people should in future become more partial to the federal than to the state governments," the state governments would lose legitimacy. I think this Federalist Paper #46 is written in a disingenuous spirit.

Note that at the time state governments were not held in high regard. The founders had to co-opt them but that was a practical, not a philosophical, issue.

PS - Props to central_va for making a negative reference to Hamilton and the Whiskey Rebellion! (I think)

If it was, he was incorrect. The idea of the Supremacy of the National Government was made clear in 1794.

On Hamilton,

In his book on the insurrection, Findley—a bitter political foe of Hamilton—maintained that the treasury secretary had deliberately provoked the uprising by issuing the subpoenas just before the law was made less onerous.[46] In 1963, historian Jacob Cooke, an editor of Hamilton's papers, regarded this charge as "preposterous", calling it a "conspiracy thesis" that overstated Hamilton's control of the federal government.[47] In 1986, historian Thomas Slaughter argued that the outbreak of the insurrection at this moment was due to "a string of ironic coincidences", although "the question about motives must always remain".[48] In 2006, William Hogeland portrayed Hamilton, Bradford, and Rawle as intentionally pursuing a course of action that would provoke "the kind of violence that would justify federal military suppression".[49] According to Hogeland, Hamilton had been working towards this moment since the Newburgh Crisis in 1783, where he conceived of using military force to crush popular resistance to direct taxation, for the purpose of promoting national unity and enriching the creditor class at the expense of common taxpayers.[50]

I have a history book from 1932 that says Hamilton was picking a fight.

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