The future

With perpetual stalling by our “representatives” in Congress to enact any meaningful reforms that might help save the America from imminent economic and political collapse, it has become clear to me and many others that a new system must be developed to replace the debris left behind from the overwrought American empire.

Empire. I hate to call it that. Years ago I would have been in the mainstream mocking people who dared call America an empire. But I honestly don’t know what else to call it. It has almost nearly ceased as a republic, a republic at least in the early Roman or even Whig sense as it was founded. I am not trying to tear down America, I am simply seeing a future in which America simply cannot go on as it is. All the data tells us this. The CBO’s numbers aren’t rosy. Entitlements (which contrary to Mitt Romney and I guess now Rick Perry are unconstitutional) will ceased to yield any returns for he younger generation those who have contributed. The wars that we wage are destroying our spirits and our pocket books, but they nevertheless go on and on and on. All this might result in riots and out of the social upheaval could emerge a new America but it is up to the younger generation, those say 40 and under to start developing a vision for what the future could look like. Are we going to let an absolute tyranny take  hold out of the chaos that is to shortly come to pass? Or, will we know what we want, do we have a vision of a world in which small really is beautiful and we do not legalize theft and aggression? A world where we are free and equal under the law? Sound utopian? Well I guess it is. And as long as we do not fight against each other but can come to the unity of liberty, we can set up for ourselves the system of government best suited to for liberty and equality.

We won’t necessarily need to remake from scratch the great founding charters but with over 200 years of experience with the Constitution, we know what articles, clauses and sections have been used to destroy freedom and peace. Armed with that knowledge we can surely design an instrument that could be our guiding document for the next 200 years. And if Jefferson’s encouragement of a new constitution and rebellion every 20 years seems a bit too frequent, then would not 200 years be justified?

If we can formulate a vision, may it be one of liberty, peace and equality before the law. If you are under 40 years of age, it ‘s is high time you put down your toys and take up your books, fill your mind with the history of the great republics and the philosophies upon which they were built. Embrace liberty, responsibility and equality. That Ron Paul consistently wins in public opinion polls and has such a young, large band of enthusiastic supporters makes me optimistic. For it is the younger generation that will, after the foundation has crumbled, construct a new (and ancient) foundation on which to place our hopes.

The Unconstitutional Nature of Federal Welfare: Franklin Pierce’s Finest Hour

Who was Franklin Pierce? If you know anything about  the fourteenth president you have probably been told or read that he was a failure. He frequently shows up in the bottom three of worst presidents in American history, right down there with Andrew Johnson and James Buchanan. And while Pierce is by no means a president without faults, I refuse to accept that he is as bad as he has been portrayed (yes he was a supporter of slavery and what really were the options for Kansas and Nebraska?). But the point of this post is not to defend Pierce. What we 21st century lovers of big government centralization and broad executive action see as a vice of presidents was a virtue not so long ago, namely a modest constitutional presidency. This is what Pierce always claimed he strove for. If historians ranked presidents on the overall constitutionality of their actions and deeds, the presidential rankings would look quite different. Instead, the famous C-Span poll asked historians to rank presidents based not on their fidelity to the Constitution but on “vision” and their pursuit of “justice for all,” qualifications or attributes I’m pretty sure are not listed in the Constitution but are more than appropriate for a superhero. But one doesn’t have to look too far back in American history to see where those two pursuits have caused great mischief, while simultaneously expanding the chief executive’s power and function and transforming the role of the president as chief magistrate into, well a superhero.

The only reason I mention the above is to set the context for what I consider Pierce’s finest moment–vetoing a bill for “indigent insane persons.” Yes, despite his opening of trade to Japan or the Gadsden purchase, his veto message of that single bill stands as a model, not only for how presidents should approach their duties but also the correct understanding of the nature of the federal union.  The bill was put forth by none other than the great humanitarian, Dorothea Dix and if a president would have vetoed a bill like this today he would be impeached as a cold-hearted monster. How can one say no to a “Mother Teresa?”

So what’s in the message? There are basically two main sections: the true nature of the federal union and the unconstitutionality of federal welfare.

TRUE NATURE OF THE FEDERAL UNION

Are we not too prone to forget that the Federal Union is the creature of the States, not they of the Federal Union? We were the inhabitants of colonies distinct in local government from one another before the Revolution. By the Revolution the colonies each became an independent State. They achieved that independence and secured its recognition by the agency of a consulting body, which, from being an assembly of the ministers of distinct sovereignties instructed to agree to no form of government which did not leave the domestic concerns of each State to itself, was appropriately denominated a Congress. When, having tried the experiment of the Confederation, they resolved to change that for the present Federal Union, and thus to confer on the Federal Government more ample authority, they scrupulously measured such of the functions of their cherished sovereignty as they chose to delegate to the General Government. With the aim and to this end the fathers of the Republic framed the Constitution, in and by which the independent and sovereign States united themselves for certain specified objects and purposes, and for those only, leaving all powers not therein set forth as conferred on one or another of the great departments — the legislative, the executive, and the judicial — indubitably within the States. And when the people of the several States had in their State conventions, and thus alone, given effect and force to the Constitution, not content that any doubt should in the future arise as to the scope and character of this act, they ingrafted thereon the explicit declaration that “the powers not delegated to the United States by the Constitution nor prohibited by it to the States are reserved to the States respectively or to the people.”

Can it be controverted that the great mass of the business of Government — that involved in the social relations, the internal arrangements of the body politic, the mental and moral culture of men, the development of resources of wealth, the punishment of crimes in general, the preservation of order, the relief of the needy or otherwise unfortunate members of society — did in practice remain with the States; that none of these objects of local concern are by the Constitution expressly or impliedly prohibited to the States, and that none of them are by any express language of the Constitution transferred to the United States? Can it be claimed that any of these functions of local administration and legislation are vested in the Federal Government by any implication? I have never found anything in the Constitution which is susceptible of such a construction. No one of the enumerated powers touches the subject or has even a remote analogy to it. The powers conferred upon the United States have reference to federal relations, or to the means of accomplishing or executing things of federal relation. So also of the same character are the powers taken away from the States by enumeration. In either case the powers granted and the powers restricted were so granted or so restricted only where it was requisite for the maintenance of peace and harmony between the States or for the purpose of protecting their common interests and defending their common sovereignty against aggression from abroad or insurrection at home.

And as if Pierce was looking into the future when the representatives of the people would abuse the general welfare clause of Article 1, section 8 he states:

I shall not discuss at length the question of power sometimes claimed for the General Government under the clause of the eighth section of the Constitution, which gives Congress the power to “lay and collect taxes, duties, imposts, and excises, to pay debts and provide for the common defense and general welfare of the United States,” because if it has not already been settled upon sound reason and authority it never will be. I take the received and just construction of that article, as if written to lay and collect taxes, duties, imposes, and excises in order to pay the debts and in order to provide for the common defense and general welfare. It is not a substantive general power to provide for the welfare of the United States, but is a limitation on the grant of power to raise money by taxes, duties, and imposts. If it were otherwise, all the rest of the Constitution, consisting of carefully enumerated and cautiously guarded grants of specific powers, would have been useless, if not delusive. It would be impossible in that view to escape from the conclusion that these were inserted only to mislead for the present, and, instead of enlightening and defining the pathway of the future, to involve its action in the mazes of doubtful construction.

Such a conclusion the character of the men who framed that sacred instrument will never permit us to form. Indeed, to suppose it susceptible of any other construction would be to consign all the rights of the States and of the people of the States to the mere discretion of Congress, and thus to clothe the Federal Government with authority to control the sovereign States, by which they would have been dwarfed into provinces or departments and all sovereignty vested in an absolute consolidated central power, against which the spirit of liberty has so often and in so many countries struggled in vain.

ON THE UNCONSTITUTIONALITY OF FEDERAL WELFARE

The bill entitled “An act making a grant of public lands to the several States for the benefit of indigent insane persons,” which was presented to me on the 27th ultimo, has been maturely considered, and is returned to the Senate, the House in which it originated, with a statement of the objections which have required me to withhold from it my approval. In the performance of this duty, prescribed by the Constitution, I have been compelled to resist the deep sympathies of my own heart in favor of the humane purpose sought to be accomplished and to overcome the reluctance with which I dissent from the conclusions of the two Houses of Congress…

[This bill] presents at the threshold the question whether any such act on the part of the Federal Government is warranted and sanctioned by the Constitution, the provisions and principles of which are to be protected and sustained as a first and paramount duty.

It cannot be questioned that if Congress has the power to make provision for the indigent insane without the limits of this District it has the same power to provide for the indigent who are not insane, and thus to transfer to the Federal Government the charge of all the poor in all the States. It has the same power to provide hospitals and other local establishments for the care and cure of every species of human infirmity, and thus to assume all that duty of either public philanthropy or public necessity to the dependent, the orphan, the sick, or the needy which is now discharged by the States themselves or by corporate institutions or private endowments existing under the legislation of the States. The whole field of public beneficence is thrown open to the care and culture of the Federal Government. Generous impulses no longer encounter the limitations and control of our imperious fundamental law; for however worthy may be the present object in itself, it is only one of a class. It is not exclusively worthy of benevolent regard. Whatever considerations dictate sympathy for this particular object apply in like manner, if not in the same degree, to idiocy, to physical disease, to extreme destitution. If Congress may and ought to provide for any one of these objects, it may and ought to provide for them all. And if it be done in this case, what answer shall be given when Congress shall be called upon, as it doubtless will be, to pursue a similar course of legislation in the others? It will obviously be vain to reply that the object is worthy, but that the application has taken a wrong direction. The power will have been deliberately assumed, the general obligation will by this act have been acknowledged, and the question of means and expediency will alone be left for consideration. The decision upon the principle in any one case determines it for the whole class. The question presented, therefore, clearly is upon the constitutionality and propriety of the Federal Government assuming to enter into novel and vast field of legislation, namely, that of providing for the care and support of all those among the people of the United States who by any form become fit objects of public philanthropy.

I readily and, I trust, feelingly acknowledge the duty incumbent on us all as men and citizens, and as among the highest and holiest of our duties, to provide for those who, in the mysterious order of Providence, are subject to want and to disease of body of mind; but I can not find any authority in the Constitution for making the Federal Government the great almoner of public charity throughout the United States. To do so would, in my judgement, be contrary to the letter and spirit of the Constitution and subversive of the whole theory upon which the Union of these States is founded. And if it were admissible to contemplate the exercise of this power for any object whatever, I can not avoid the belief that it would in the end be prejudicial rather than beneficial to the noble offices of charity to have the charge of them transferred from the States to the Federal Government.

I can not but repeat what I have before expressed, that if the several States, many of which have already laid the foundation of munificent establishments of local beneficence, and nearly all of which are proceeding to establish them, shall be led to suppose, as, should this bill become a law, they will be, that Congress is to make provision for such objects, the fountains of charity will be dried up at home, and the several States, instead of bestowing their own means on the social wants of their own people, may themselves, through the strong temptation which appeals to the states as to individuals, become humble suppliants for the bounty of the Federal Government, reversing their true relations to this Union.

Anyone interested in decentralization and the Jeffersonian view should read the whole message. And as if Pierce’s veto message didn’t contain enough insight into our current welfare policy he adds a chilling warning to future generations who would go down the path of big government welfare.

If the time shall ever arrive when, for an object appealing, however strongly, to our sympathies, the dignity of the States shall bow to the dictation of Congress by conforming legislation thereto, when the power and majesty and honor of those who created shall become subordinate to the thing of creation, I but feebly utter my apprehensions when I express my firm conviction that we shall see “the beginning of the end.”

We ignore the words of our “third worst president” at our peril.

Interposition

Thus far Idaho stands alone in its legislative opposition to the federal health care overhaul. With little fanfare and no mainstream celebrations, in fact most “respectable” circles remain silent, last night the Idaho State Senate voted to pass a bill that would forbid the state from accepting any federal funds to enact the health care law and blocks any discretionary parts of the law for one year. While this much tamer version is not as forceful as the original interposition bill, make no mistake interposition it is.

In the spirit of Jefferson and Madison’s formulation of a constitutional response to an overreaching national government which violated the sacred principles of free speech and press, the very average citizen-legislators of Idaho have begun to interpose. Walking in the footsteps of merchants and planters who protested an unjust embargo and tariff, the legislators of Idaho have struck a blow for liberty. Taking the first giant step in confronting a leviathan, the legislators of Idaho step with those who refused to be compelled against their consciences in returning run away slaves to their masters. Perhaps they have done all this without fully comprehending the historic company they have taken up with, but rest assured the people of the great state of Idaho are this day thankful for their efforts.

So who’s next? What state will join with Idaho in reasserting the validity of the 10th Amendment? Our national legislature has failed us, our president has betrayed us and our judges have missed the mark. Therefore, we the people, into whose bosom rests the sovereignty of the nation must proclaim through our republican legislatures that we will not be forced and coerced like sheep into obeying unconstitutional laws.

We can no longer sit idly by as the domination of what has now become almost an alien power, lords over us with burdensome rules and regulations, designed to rip from the hands of the laborers the bread they have earned, only to deliver the spoils into the hands of private interest.

We desire to do no harm to any man but seek only to enjoy that liberty bequeathed to us by worthy forefathers. We know all men are equal in law and that peace should be the aim of all who desire liberty. And while not all have all given to them of nature, it becomes the duty of that government closest to the people to care for those in need and not a foreign power.

We therefore call upon all races of men to join with us without prejudice and fight for your rights as Americans and citizens of your state.

This is not hyperbole. This is not a joke. This is a call to action.

Idaho nullification dead? Thank the GOP

In response to a couple of blog posts dealing with the Idaho Senate’s tabling of the healthcare nullification bill found at the Spokesman Review, I wrote the following responses:

“How utterly incomprehensible is Bart Davis:

‘I agree that we should do all we can to push the federal government to return to its enumerated powers,” he said. “But for me, I need to do it within the system. … My heart, but not my mind, is with the supporters of this legislation.’

Do all that you can? Maybe he should have his words read back to him very slowly so that he can see how ridiculous they are. Staying within a system that has been warped and twisted means that you will NEVER stop the encroachments of the federal government. Doing all you can do is casting a vote FOR nullification. Nullification is not treason, it is one way to help states fulfill their role as part of a federal system.

Well done Davis et al. You all went from vanguards of restoring republicanism to ambiguous defenders of the status quo (which means federalism stays dead).”

AND:

“From reading the comments from those posting regarding nullification I have to ask: when you say that the Constitution is the supreme law of the land what does that have to do with nullification? What if practicing nullification actually helps uphold the Constitution by giving states a middle way between leaving the union and suffering under laws that are unconstitutional?
And why is it that those who quote (often incorrectly) Article Six never mention the gross violation of the Constitution under the Tenth Amendment? It is a bit suspicious that all of the emphasis among legal scholars (including our own David Adler) and layman alike is on violations that seem to be in favor of restoring some state authority. If you want to devolve power back to the states and create some balance you are a radical; a bomb-thrower; a home grown terrorist on par with McVeigh.
This predicament we as a nation find ourselves in (losing control at the local level) is a direct result of the central government absorbing too many of the duties and prerogatives that have always been under the authority of the state governments. Why are we halting and concocting fictional constitutional scruples at this time when action is needed most? The way is open for us, why won’t we seize it?”

Federalist No. 25

“Hamilton’s cynicism is our reality. We have fallen victim to a collusion, not one of direct complicity between the legislature and the executive but one of acquiescence. From Korea to Iraq, the national legislature, with the brief exception of the immediate aftermath of Vietnam, has given the president everything he wanted from tacit permission in launching wars to the appropriations needed to continue them. This is all done not under the pretext of invading Indians but of invading communists, terrorists or other subversives. Hamilton mocks “parchment barriers” that protect liberty as well he should, for we in the 21st century have lacked the will to hold our representatives to account for the gross violations of such wise protections.“

Mr. Hamilton continues the subject of military matters under the proposed constitution in this essay. His basic thesis is that the national government ought to be in charge of the military. Because if each state was in charge of raising its own military, Hamilton foresaw that a few members of the confederacy would gain a disproportionate martial force because of the dangers inherent in their geographic locations, whether it be American Indian tribes or European empires. As Hamilton explains,

In this situation, military establishments, nourished by mutual jealousy, would be apt to swell beyond their natural or proper size; and being at the separate disposal of the members, they would be engines for the abridgment or demolition of the national authority.

Note the irony for the readers of the 21st century. His fear was that military establishments would grow disproportionate large and unruly if left in the hands of the states. But the very opposite has come to pass. Now, under the central and centralizing national government the military establishment is the largest in the world and has grown almost without measure.

After discussing the need for national control of the military, an argument that makes logical sense, Hamilton resumes his attacks on those that question and caution against the maintenance of standing armies. Here he reveals the basic philosophic differences between a nationalist/broad construction of the constitution and the more local/strict construction of Jeffersonian republicanism. He mocks the Anti-Federalists who desire to lay down “parchment barriers” which in his view will only be violated the first moment a pretense can be found, or as he argues a necessary cause. Hamilton, ever the broad constructionist argues against any provision banning standing armies from being inserted into the constitution as worthless and without teeth. How will one prevent a standing army from forming? How will parchment protect against a collusion of the executive and legislative branches intent on warmongering. Indeed, “how easy would it be to fabricate pretenses of approaching danger!” writes Hamilton. “Indian hostilities, instigated by Spain or Britain, would always be at hand. Provocations to produce the desired appearances might even be given to some foreign power”. Hamilton’s cynicism is our reality. We have fallen victim to a collusion, not one of direct complicity between the legislature and the executive but one of acquiescence. From Korea to Iraq, the national legislature, with the brief exception of the immediate aftermath of Vietnam, have given the president everything he wanted from tacit permission in launching wars to the appropriations needed to continue them. This is all done not under the pretext of invading Indians but of invading communists, terrorists or other subversives. Hamilton mocks “parchment barriers” that protect liberty as well he should for we in the 21st century have lacked the will to hold our representatives to account for the gross violations of such wise protections.

The myriad violations not only of the war powers of the constitution but of nearly every restraint placed upon the national government laid down in Article 1, section 8 have produced the sorrowful state in which many understand the fundamental American law encapsulated in the constitution as “rules and maxims calculated in their very nature to run counter to the necessities of society.” What are our needs? Surely with the type of government we live under today it is one of insatiable appetite. One that seeks security in ruling rather than living in liberty. What are necessities for us today, mainly the maintenance of bases worldwide and acting in the role of international stabilizer, threatens to render or has already rendered the very fabric of the document that should be at the center of our political lives. With increasing centralization at home and maintenance of an empire of stability abroad that document drafted in the summer of 1787 is no longer fit to the necessities we have created for ourselves.

How many “wise politicians will be cautious about fettering the government with restrictions that cannot be observed, because they know that every breach of the fundamental laws, though dictated by necessity, impairs that sacred reverence which ought to be maintained in the breast of rulers towards the constitution of a country, and forms a precedent for other breaches where the same plea of necessity does not exist at all, or is less urgent and palpable.” This is why so many preach a “living constitution,” one that can be altered easily, can adapt to the growing demands of an ever-expanding national authority. For the lovers of liberty, this is a time of crisis and we must stand up or the constitution itself becomes a mere paper barrier.

Federalist No. 24

“And the arguments of those who, like the antifederalists, caution against an ever-expanding military with all of its accompanying externalities are quickly dismissed as the unpatriotic clamors of a “sinister and unprincipled opposition.”

Alexander Hamilton in Federalist 24 airs his frustration at the fear the opponents of the Constitution have concerning the new military power of the proposed national government. In short he cannot understand the cries of danger that emanated from antifederalists over the presence of standing armies in peacetime. He rhetorically states that a person just entering the debate at this point about standing armies must needs assume that the state governments “inserted the most precise and rigid precautions on this point, ” otherwise why would the opposition be so concerned now? But after discovering only North Carolina and Pennsylvania with constitutional provisions merely cautioning against, not expressly forbidding standing armies in peacetime, the impartial observer must suppose the “existing Confederation must contain the most explicit provisions against military establishments in time of peace; and a departure from this model, in a favorite point, has occasioned the discontent which appears to influence these political champions.” And predictably such an explicit caution is no where to be found.

General Hamilton has plans for a standing army (click for video)

Why? Why if Hamilton is correct, did the Articles of Confederation not contain a prohibition against standing peacetime armies? What power did the congress under the Articles have to raise and keep such an army? Why would the Articles of Confederation contain such language against standing armies if it had not the power to raise and maintain such? This lack of power to raise troops, highlighted for Hamilton in Shays’s Rebellion, was the very argument he was making in highlighting the defects of the first American Confederacy. He knew why such a provision against standing armies was not in that document, it didn’t need to be. And clearly the legislatures of the states reflected more closely the will of the voting majority and could be kept under some control when it came to appropriating monies for such an army. But any one who today seriously doubts the threat a large standing army poses to the republican structure of government has a very different conception of what it means to live in a federal republic. With the abandonment of the constitutional and republican principles upon which both the colonial and early federal periods were built being nearly complete, the idea that large standing armies pose a threat both culturally and politically is seen as absurd. And the arguments of those who, like the antifederalists, caution against an ever-expanding military with all of its accompanying externalities are quickly dismissed as the unpatriotic clamors of a “sinister and unprincipled opposition.” This makes logical sense, for those who desire to keep up an overwrought military establishment to police the world today are heirs of the Hamiltonian persuasion.

Of course threats exist as Hamilton points out but even he states that the forces needed in peacetime were “small garrisons on our Western frontier,” before and after the Revolutionary War. The key word is small or better yet his meaning is closer to proportional to the threat. But as we have seen Hamilton was more than delighted at the prospects of war with France in 1798. Indeed after Washington, he was the highest ranking leader of the US military, which should give pause to swallowing whole his argument for the necessity of a standing peacetime army.

In the end, I am not arguing for a full and complete dismantling of our military forces, only that we recognize there are dangers of a huge military force both to our politics and the world’s. I only wonder what need there is for an “empire of bases” all over the world today? In the aftermath of the Cold War need we continue to build up? I know we are at war with religious extremists but are there not better ways to practice preemptive prevention without disproportionately expanding that peculiarly aggressive martial spirit while at the same time growing our presence abroad? Res publica, non certe imperium.

Federalist No. 23

“This philosophy of unlimited and undefined power, whether in military or civic affairs,  is arguably the most dangerous doctrine set forth by Hamilton in the Federalist Papers, and from the New Deal to the new healthcare law its logic is ruthlessly driven home by the national government on a routine basis.”

Federalist 23 signals a shift in the essays as Hamilton focuses his arguments away from why the Articles of Confederation are defective to why the union needs a more energetic national government under a federal system. Hamilton makes the case that the government needed is a government that has necessary power to effectively provide for the “common defense of the members,” preserve of the “public peace” and the “regulation of commerce”.

Centering on the need to provide for the common defense, Hamilton reveals a dangerous doctrine to republican liberty: namely unrestricted and undefined governmental powers. In terms of the martial power of the new government “no constitutional shackles can wisely be imposed on the power to which the care of it is committed.” And this principle of undefined and unlimited power should extend to all political spheres of the new government because as Hamilton argues, it is a universal principle that the “means ought to be proportioned to the end.” And since the ends cannot be fully discerned in the present these “powers ought to exist without limitation”. This philosophy of unlimited and undefined power, whether in military or civic affairs,  is arguably the most dangerous doctrine set forth by Hamilton in the Federalist Papers, and from the New Deal to the new healthcare law its logic is ruthlessly driven home by the national government on a routine basis. But some will argue that it is only the progressives who are to blame, that they have abandoned the principles of limitation as set forth in the constitution. While that maybe true, they are simply following through with the principles as laid out in this essay by Hamilton. For the progressives and other believers in big government, the ends justify the means, whether those ends are total military dominance or the ending of poverty, government must be made to facilitate the good fight regardless of what rules have been laid down. This abandonment of what F.A. Hayek calls the “Rule of Law” means that the government is no longer “bound by rules fixed and announced beforehand,” a sure principle of republican government (Road to Serfdom, 80). While it is surely impossible and even impracticable to never have the means of purchasing a Louisiana territory, the exception has become the rule in modern American government and can clearly be traced back to Hamilton. So what is the result of such a political philosophy of undefined power? Tyranny and loss of liberty. This has happened so subtly over the last century and a half as to make one who suggests it now ridiculous. But thus did all the prophets of old appear in the eyes of those to whom they came.

Federalist No. 22

“Hamilton would hate the recent Arizona immigration law because it is not uniformly enforced throughout all 50 states. The antifederalists would be fine with it precisely for that reason: the people through their legislature have spoken…”

The list of defects of the system of American government that Hamilton continues attacking in Federalist 22 is so long that it makes one wonder why Americans ever agreed to it? Was it really as awful as Hamilton and Madison have presented it? Or have we all been told of “phantoms”? Either way some of the defects that Hamilton addresses in this essay alarmed both federalists and antifederalists, namely the lack of power among the national government to regulate commerce, provide for the common defense and adjudicate matters of national importance.

The main problem that Hamilton witnessed and decried as it related to commerce was the unsavory and unjust economic wars between states under the Articles. These often petty squabbles among neighbors were left unto themselves with no recourse whatsoever to a national authority. And because the Confederation Congress had no power to either set a uniform commerce policy or hear disputes involved it was in, Hamilton’s wording, an intrinsically feeble  structure that was going to sooner rather than later break to pieces.

In addition to the problem of commerce, Hamilton attacks the quota system used by the national government to raise troops during the Revolutionary War. The ineffectiveness of this system is quite evident in the want of men with which General Washington had to fight. Hamilton, being a veteran of that war, was well acquainted with the lopsided contributions from states closest to the action in comparison with those furthest away from battle. There is no doubt that a national system with proper authority is necessary to gather together an army but there are added dangers to a republic in making a system of levying troops too effective and well funded.

As touching the courts, Hamilton plainly states his understanding that the final say in legal matters belongs to them. “Laws are a dead letter without courts to expound and define their true meaning and operation”, Hamilton writes. He continues:

The treaties of the United States, to have any force at all, must be considered as part of the law of the land. Their true import, as far as respects individuals, must, like all other laws, be ascertained by judicial determinations. To produce uniformity in these determinations, they ought to be submitted, in the last resort, to one SUPREME TRIBUNAL…To avoid the confusion which would unavoidably result from the contradictory decisions of a number of independent judicatories, all nations have found it necessary to establish one court paramount to the rest, possessing a general superintendence, and authorized to settle and declare in the last resort a uniform rule of civil justice.

The reasoning behind Hamilton’s statement is clear but the logic, if followed to its end would allow for and has allowed for a kind of “judicial tyranny” of a minority ( and an undemocratic one at that) to have a final say in any matter concerning government and laws and thus have a chance to overturn the majority will. But in this same essay Hamilton laments that under the Articles of Confederation each state had one vote. Thus the small and contemptuous Rhode Island can overrule the large and important state of New York or Virginia. In the end, there is in Hamilton a need to make uniform the whole system of government, something his antifederalist opponents shutter at. After all, why should each state be exactly the same as the others, if a majority of their citizens choose differently? To make this relevant, Hamilton would hate the recent Arizona immigration law because it is not uniformly enforced throughout all 50 states. The antifederalists would be fine with it precisely for that reason: the people through their legislature have spoken, thereby exercising their liberty and who cares if Utah or Florida follows suit?

In the end this fear of localism, which Hamilton demonstrates more so than any other founder, leads him to condemn the compact theory of the US Constitution. For Hamilton the idea of secession is a “heresy” and he admits such a possibility did exist under the Articles. To remedy the possibility of secession he suggests, “laying the foundations of our national government deeper than in the mere sanction of delegated authority.” Instead of the states being the source of sovereignty of legitimate government, “the fabric of American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE.” One mighty unbreakable empire. How long will that last?

Federalist No. 21

“For all of Hamilton’s faults both politically and philosophically, he had it right when he stated that indirect taxes ‘must for a long time constitute the chief part of the revenue raised in this country.’ This would ensure that the government was truly small and limited.

In Federalist 21 Alexander Hamilton relates the peculiar limits of the United Confederacy under the Articles. After having spelled in great detail the problems associated with republics and confederacies of the past, Hamilton does the same for the United States in 1787. Hamilton bemoans the awful situation, in his mind at least, of having the American government under the Articles with “no power to exact obedience, or punish disobedience to their [national government] resolutions”.  In a preview of his later ability to stretch articles and clauses to meets his needs, Hamilton sees the only way to give resolutions of the national congress teeth is to loosely construct the meaning of the Articles but he argues that this would  be difficult in light of Article II, which states, “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.”  This Article seems to have made it through the death of the Articles to become the basis for the 10^th Amendment to the Constitution as part of the Bill of Rights demanded by anti-federalists. In this way Hamilton reasoned, the national government could have greater powers to act in its sphere. But this of course was not what the spirit nor the letter of the Articles meant, and Hamilton knew it.

So rather than a painful stretching of the Articles to meet the demands Hamilton foresaw for the young nation, he proposed ratification of the Constitution which would alleviate much of the problems that had plagued republics for centuries. It is interesting to note that Hamilton is reluctant to take a broad interpretation of the Articles of Confederation but is more than willing to do so with the US Constitution, and in fact might be considered the “Father” of loose construction of that document. Perhaps it was because he wanted to save the latter and scrap the former.

To further prove his point on the weakness of the national Congress, Hamilton relates the problems in Massachusetts: Shays’s Rebellion. Daniel Shays was a veteran of the Revolutionary War who, like so many other veterans found life at home economically difficult upon his return. To remedy this situation, Shays, with other veterans and fellow debtors marched on Springfield to seize arms and powder, close down courts and cause a general panic among the merchants and bankers. The rebellion was put down by Benjamin Lincoln after moneyed interest pooled together to raise a militia. From the days of Hamilton to the university class of today, this incident has been seen as an obvious reason for a stronger national government. It should be pointed out that anti-federalists gave minimal credence to this “little” affair and were weary of the way it was used to justify the Constitution. But as it has been said recently by the Obama Administration it’s a bad idea to let a good crisis go to waste.

Amongst all the discussion of the problems of the Articles, Hamilton does offer some solutions, particularly economic solutions to the national revenue problem. His suggestion is rather straightforward and might sound familiar to modern ears. He understands that the states must grant the national government power to raise revenues or face economic ruin.  He suggests this be done by collecting:

Imposts, excises, and, in general, all duties upon articles of consumption, [which] may be compared to a fluid, which will, in time, find its level with the means of paying them. The amount to be contributed by each citizen will in a degree be at his own option, and can be regulated by an attention to his resources. The rich may be extravagant, the poor can be frugal; and private oppression may always be avoided by a judicious selection of objects proper for such impositions…It is a signal advantage of taxes on articles of consumption, that they contain in their own nature a security against excess. They prescribe their own limit; which cannot be exceeded without defeating the end proposed, that is, an extension of the revenue.

Note the level of financial independence and management he assumes Americans will exercise, a faith that seems far from possible with today’s consumers and their government. Minus the bit about an excise tax, which will get Hamilton in trouble over whiskey, the idea of a consumption tax is rather fair minded. I have not researched this fully but might this be the origin for the modern movement for a FairTax? For all of Hamilton’s faults both politically and philosophically, he had it right when he stated that indirect taxes “must for a long time constitute the chief part of the revenue raised in this country.” This would ensure that the government was truly small and limited. But no matter how true the statement, it is slightly ironic coming from a man whose future plans and vision for America, which has become our reality, requires a government and military that is much too big for the type of indirect taxation whereof he writes.

Federalist No. 20

“True federalism is not a “government over governments” but a sharing or more properly stated, a division of important powers.“

Federalist No. 20 is the last in a series of articles on the light the history of republics shine on the defects of the Articles of Confederation. Hamilton and Madison again team up to demonstrate, from history, the need for a more active central authority. They chose as their subject the United Province of the Netherlands (1581-1795) to relate the misfortunes that doom even the greatest of confederacies that lack the necessary powers as proposed by the US Constitution.  After relating the political structure and organization of the Dutch republic, the authors make note of the inconsistencies of the Dutch confederacy as apparent from what is “delineated on parchment” to the actual experience of that nation. What the authors find is similar to the ancient republics thus far reviewed: “imbecility in the government; discord among the provinces; foreign influence and indignities; a precarious existence in peace and peculiar calamities from war.” In short, republican confederacies, like the Articles of Confederation are doomed to repeat the same problems over-and-over again until they adopt the important articles of the new constitution.

With each new crisis in the Dutch confederacy, which stems from “popular convulsions,” more power is called for from one province or person to correct the problem and thus in the end tyranny reigns over the republic in a greater degree than if the nation would have had a stronger, more active constitutional authority. So why did the Dutch republic survive as long as it did? Because it had the Stadtholder to keep it somewhat unified. This is meant to be an obvious attack of what the authors consider a major weakness of the Articles of Confederation, as it did not provide for any type of executive. “How,” might Madison and Hamilton ask supporters of the Articles, “can the United States remain even a loose confederation of independents when it has no executive authority to carry out laws passed by the national congress?” Without the stadtholdership anarchy would have broken up the Dutch union in its infancy. This is meant to be a clear warning to Americans in 1787 that the current constitutional regime could not long endure without active, unifying national forces.

But is that true? If as the authors wisely state, “experience is the oracle of truth,” does history provide one example of a modern republic that has endured without a national government with sufficiently broad powers to keep it together? The answer from what I know would be not one the size of the United States. The authors of Federalists No. 20 were indeed correct in such a conclusion. But from our present situation many of the benefits of such a strong union are revealing their weakness as well.  When the bread one earns is robbed by the “legitimate” hand of a national bureaucrat and distributed to a myriad of complex and shadowy uses one is compelled to wonder aloud if a strong, active government was indeed a needful thing. For what is the end of civil government? Is it to provide for every needful thing for every living thing? If this be the case then please let me leave to live my life elsewhere in a civil polity of my choosing. But we can’t leave; we must stay, for apparently somewhere in the document Hamilton and Madison were defending it states unequivocally we can’t. Surely it must be very clear that you cannot leave because the bloodiest war in American history was fought over the principle.

But despite the defects of the Articles, as pointed out by the example of the Netherlands, the authors make clear that they are not arguing for a unitary system of national government. They warn that a “sovereignty over sovereigns, a government over governments” is inconsistent with the “order and ends of civil polity.” So again, for all of their criticisms of the Articles of Confederation, Hamilton and Madison DO NOT argue for a strong unlimited national government but one with important checks not only among the central branches but between the states and the national government. True federalism is not a “government over governments” but a sharing or more properly stated, a division of important powers.