FReeper Book Club: The Debate over the Constitution, Federalist #17

Hamilton gets to the meat of his argument that the federal government has more to fear from the states than the other way around – but he carefully hedges his arguments.

² An objection of a nature different from that which has been stated and answered in my last address may perhaps be likewise urged against the principle of legislation for the individual citizens of America.

³ It may be said that it would tend to render the government of the Union too powerful and to enable it to absorb those residuary authorities which it might be judged proper to leave with the states for local purposes.

⁴ Allowing the utmost latitude to the love of power which any reasonable man can require, I confess I am at a loss to discover what temptation the persons entrusted with the administration of the general government could ever feel to divest the states of the authorities of that description.

⁵ The regulation of the mere domestic police of a state appears to me to hold out slender allurements to ambition.

⁶ Commerce, finance, negotiation and war seem to comprehend all the objects which have charms for minds governed by that passion, and all the powers necessary to those objects ought in the first instance to be lodged in the national depository.

⁷ The administration of private justice between the citizens of the same state, the supervision of agriculture and of other concerns of a similar nature, all those things in short which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction.

⁸ It is therefore improbable that there should exist a disposition in the federal councils to usurp the powers with which they are connected because the attempt to exercise those powers would be as troublesome as it would be nugatory, and the possession of them for that reason would contribute nothing to the dignity, to the importance, or to the splendor of the national government.

⁹ But let it be admitted, for argument's sake, that mere wantonness and lust of domination would be sufficient to beget that disposition; still it may be safely affirmed that the sense of the constituent body of the national representatives, or in other words the people of the several states, would control the indulgence of so extravagant an a appetite.

¹⁰ It will always be far more easy for the state governments to encroach upon the national authorities than for the national government to encroach upon the state authorities.

¹¹ The proof of this proposition turns upon the greater degree of influence which the state governments, if they administer their affairs with uprightness and prudence, will generally possess over the people, a circumstance which at the same time teaches us that there is an inherent and intrinsic weakness in all federal constitutions, and that too much pains cannot be taken in their organization to give them all the force which is compatible with the principles of liberty.

¹² The superiority of influence in favor of the particular governments would result partly from the diffusive construction of the national government, but chiefly from the nature of the objects to which the attention of the state administrations would be directed.

¹³ It is a known fact in human nature that its affections are commonly weak in proportion to the distance or diffusiveness of the object.

¹⁴ 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.

¹⁵ This strong propensity of the human heart would find powerful auxiliaries in the objects of state regulation.

¹⁶ The variety of more minute interests, which will necessarily fall under the superintendence of the local administrations, and which will form so many rivulets of influence running through every part of the society, cannot be particularized without involving a detail too tedious and uninteresting to compensate for the instruction it might afford.

¹⁷ There is one transcendent advantage belonging to the province of the 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.

¹⁸ This, of all others, is the most powerful, most universal and most attractive source of popular obedience and attachment.

¹⁹ It is that which, being the immediate and visible guardian of life and property, having its benefits and its terrors in constant activity before the public eye, regulating all those personal interests and familiar concerns to which the sensibility of individuals is more immediately awake, contributes more than any other circumstance to impressing upon the minds of the people, affection, esteem and reverence towards the government.

²⁰ This great cement of society, which will diffuse itself almost wholly through the channels of the particular governments, independent of all other causes of influence, would insure them so decided an empire over their respective citizens as to render them at all times a complete counterpoise and not unfrequently dangerous rivals to the power of the Union.

²¹ The operations of the national government on the other hand, falling less immediately under the observation of the mass of the citizens, the benefits derived from it will chiefly be perceived and attended to by speculative men.

²² Relating to more general interests, they will be less apt to come home to the feelings of the people and in proportion less likely to inspire a habitual sense of obligation and an active sentiment of attachment.

²³ The reasoning on this head has been abundantly exemplified by the experience of all federal constitutions with which we are acquainted and of all others which have borne the least analogy to them.

²⁴ Though the ancient feudal systems were not, strictly speaking, confederacies, yet they partook of the nature of that species of association.

²⁵ There was a common head, chieftain, or sovereign, whose authority extended over the whole nation, and a number of subordinate vassals, or feudatories, who had large portions of land allotted to them, and numerous trains of inferior vassals or retainers, who occupied and cultivated that land upon the tenure of fealty or obedience to the persons of whom they held it.

²⁶ Each principal vassal was a kind of sovereign within his particular demesnes.

²⁷ The consequences of this situation were a continual opposition to authority of the sovereign and frequent wars between the great barons or chief feudatories themselves.

²⁸ The power of the head of the nation was commonly too weak, either to preserve the public peace, or to protect the people against the oppressions of their immediate lords.

²⁹ This period of European affairs is emphatically styled by historians, the times of feudal anarchy.

³⁰ When the sovereign happened to be a man of vigorous and warlike temper and of superior abilities, he would acquire a personal weight and influence which answered for the time the purpose of a more regular authority.

³¹ But in general, the power of the barons triumphed over that of the prince, and in many instances his dominion was entirely thrown off, and the great fiefs were erected into independent principalities or states.

³² In those instances in which the monarch finally prevailed over his vassals, his success was chiefly owing to the tyranny of those vassals over their dependents.

³³ The barons or nobles, equally the enemies of the sovereign and the oppressors of the common people, were dreaded and detested by both, till mutual danger and mutual interest effected a union between them fatal to the power of the aristocracy.

³⁴ Had the nobles, by a conduct of clemency and justice, preserved the fidelity and devotion of their retainers and followers, the contests between them and the prince must almost always have ended in their favor and in the abridgment or subversion of the royal authority.

³⁶ Among other illustrations of its truth which might be cited, Scotland will furnish a cogent example.

³⁷ The spirit of clan-ship which was at an early day introduced into that kingdom, uniting the nobles and their dependants by ties equivalent to those of kindred, rendered the aristocracy a constant overmatch for the power of the monarch till the incorporation with England subdued its fierce and ungovernable spirit and reduced it within those rules of subordination which a more rational and more energetic system of civil polity had previously established in the latter kingdom.

³⁸ The separate governments in a confederacy may aptly be compared with the feudal baronies; with this advantage in their favor, that from the reasons already explained, they will generally possess the confidence and goodwill of the people, and with so important a support, will be able effectually to oppose all encroachments of the national government.

³⁹ It will be well if they are not able to counteract its legitimate and necessary authority.

⁴⁰ The points of similitude consist in the [rivalry] of power applicable to both and in the concentration of large portions of the strength of the community into particular deposits, in one case at the disposal of individuals, in the other case at the disposal of political bodies.

⁴¹ A concise review of the events that have attended confederate governments will further illustrate this important doctrine, an inattention to which has been the great source of our political mistakes and has given our jealousy a direction to the wrong side.

The most cogent argument the anti-Federalists had been able to muster to date was the prediction that the establishment of a strong federal government would mean either that it would overtly take over the functions of the state governments immediately, or over time slowly subordinate them until they acquired a vestigial status. In this essay Hamilton attempts to reassure that not only is such a thing unlikely, it is virtually impossible.

It was not, however, unintended. In his Federalist #15 of only four days earlier, Hamilton had stated that to expect the states to retain full independence was quite impossible.

⁴³ They [the anti-Federalists] seem still to aim at things repugnant and irreconcilable: at an augmentation of federal authority without a diminution of state authority, at sovereignty in the Union and complete independence in the members.

It was not a point that had escaped Cato, for one. Hamilton’s task was to couch it in the least threatening terms possible. In order to do so he restates his own admission in slightly stronger terms.

It certainly might; he’d just said something like that himself. One now descends into overuse of the favorite word of the political theorist: “would.” It is prediction, not speculation, and if one’s entire model of government depends on it, Hamilton’s would now find itself on very thin ice indeed, for his own predictions were systematically and relentlessly falsified by history.

First, there is a list of those aspects of government not only better done by the states, but that no “reasonable man” (4) could imagine the federal government desiring. The domestic police of a state (5), the administration of private justice and agriculture (7): these are matters in which local knowledge is indispensable, placing a distant federal government at a distinct disadvantage. Hamilton continues: even if some insanely power-mad federal government should desire to replace the states in these functions:

⁹ …still it may be safely affirmed that the sense of the constituent body of the national representatives, or in other words the people of the several states, would control the indulgence of so extravagant an appetite.

Hamilton tactfully does not specify their means of doing so, for his arguments in the previous essay imply that the only means of dealing with a collective entity such as a federal government would be those of force. The states do not, after all, have a means of bringing such an entity to any court of law outside itself. Here Hamilton finds himself trapped on the horns of his own political theory. He continues in some detail as to the superiority of the states to functions that require local awareness and then returns to legal matters.

Thus the subsequent history of some two centuries has proven, and the basic judicial setup of the United States remains. But Hamilton does not address the tendency of the federal government to wish to take over these functions despite its admitted inferiority in competence. That also has been a characteristic of those two centuries of history. There has been, in fact, a steady encroachment, and by the mid-20th Century a citizen could find himself tried for the same crime both in state and federal courts. The real difficulty with Hamilton’s thesis is to be found in a single false premise.

That temptation is not only obvious to the student of history but nearly ubiquitous – it is the conviction on the part of individuals who enjoy a concentration of power that their opinions in the matter of its exercise are infallible, and the application of those opinions rightfully ought to be universal. Further, it is that the objective of the politically ambitious is to attain a position most capable of the widest exercise of that power, in this case, the federal government of the proposed United States of America.

Clearly Hamilton understood this. Just as clearly, he felt the dangers to his country from failing to approve the Constitution outweighed the dangers for a dangerous accretion of power to the center. Thus he filled his function as an advocate by minimizing the latter danger. One enjoys two centuries of hindsight in the matter and so perhaps tends to be more condemnatory than a person of Hamilton’s time might think fair, but he was, in the final analysis, underestimating the seduction of power.

In fact, at no point does Hamilton explain what in the proposed Constitution would prohibit such an accretion of power, largely because there is precious little that does so. What there exists is in the form of checks and balances between the three branches of the federal government, not between the federal and the state governments. This couldn’t be entirely concealed and was one of the major contentions of the anti-Federalists who would continue to insist that a bill of rights would be necessary to safeguard both citizen and state government against the encroachments of the federal.

What Hamilton does offer is considerably less persuasive – an argument from historical analogy. The remainder of the essay consists of a strained comparison between the relationship of the state governments to the federal and that of feudal barons toward the Crown. It is an attempt to reassure the historically minded, but not historically educated, reader that in fact, the barons retained the advantage in power over the Crown and lost it only when they fell prey to “the tyranny of those vassals over their dependents.” (32) By analogy, the states, so long as they did not oppress their citizens, would enjoy a similar advantage over the federal government.

That is simply not the case. The history of Europe from the fall of the Roman Empire through the rise of its children, the feudal manors, to the accession of kings, tells a different story. In fact, the tendency of power to accrete was a central factor in that history, from Pepin and Charlemagne, Frederick Barbarossa, William the Conqueror, to contemporaries of Hamilton such as the ill-fated Louis XVI. The notable exception of King John being forced by his fief-holders to sign the Magna Carta was far from the norm. We are, therefore, left aware that his main point might be suspect.

True enough, many of the citizens in the decades to come would feel more attached to their state than to the Union. One thinks of an agonized Robert E. Lee having to choose between Virginia and the United States that he has served so well up to that point. Just as truly, many would feel and choose differently. It would, in the end, prove no safeguard against the accretion of power toward the center.

LOL! That's the problem with making yourself the point man on an issue as contentious as this - you end up taking a lot of fire. There was, and remains, a great deal of starry-eyed idealism on the topic. I have seen it seriously asserted on this forum that volunteer (not "well-regulated") militias would suffice for the country's military defense. Oh, how I wish it were true!

As Publius has pointed out - our Publius, not theirs - Hamilton was far from the most extreme on the issue. There were people who wanted an American King. We had to wait for Elvis for that to happen. ;-)

This one is probably the absolute worst of the whole series, and I recall scratching my head after reading it in high school, even when I still believed what my teachers told me about how wonderful was the federal government because it wanted nothing more than to wipe everybodys’ bottoms for them.

History is saddened at times because of great, missed opportunites. If Hamilton had spent a bit more time on diverse pursuits, he would have invented baseball and then written “Who’s on first?” We would probably still have the U.S. Constitution, but we wouldn’t have to compare this essay to Abbott and Costello and find them to be the more funny only because their jokes didn’t actually happen.

Actually, after editing, I thought #18, #19 and most of #20 were the worst becuse of the pedantic history lessons. At least at the end of #20, they tie all that history together for a conclusion and a warning.

I’ll have to read your next entries with that in mind. I was taught, by more than one teacher, never to assume that readers posess the facts I used to reach my conclusion.

I was taught in sales that my customers would rather be bored than deceived, and Hamilton failed in that regard. What he wrote must have sounded good to him; it’s a mockery of human ambition to me.

At 4, Hamilton denies an interest of stripping states of elements of their sovereignty,...

IMHO, and in all due respect to you Jacquerie, he is just flat out prevaricating here. He does however understand that he and his cohorts are going to have to resort to less direct methods in order to realize their dreams.

I will reserve further comment on this one as my single post should make obvious what my answers to the other questions would be.

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