Federalist No. 9

“The proposed Constitution, so far from implying an abolition of the State governments, makes them constituent parts of the national sovereignty, by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of sovereign power.”

starWell here it is. What many experts of the Federalist Papers consider to be one of the crown jewels of the essays, No. 9. Hamilton sets out a political spectrum we in the present age have abandoned for the comfortable spectrum of Left and Right, with Left being Communist and Right being Fascist. But as has been pointed out by several writers fascism and communism are but two sides of the same totalitarian coin. Our current political spectrum should be abandoned for Hamilton’s spectrum of anarchy on one side and tyranny on the other. Where liberty without law leads to anarchy and law without liberty leads to tyranny. We cannot understand the framers mind set, and hence the document they framed, if we do not grasp the idea that in their world the political struggle was not Left (progressive) vs. Right (traditional) but freedom vs. arbitrary power. The framers sought to strike a balance between the two but really loved their liberty. This is why the founders are considered by many to be of a libertarian mind, they cared more about liberty (which can turn to anarchy) than security (which can turn to tyranny) and created a government by asking the Goldwater million dollar question: “Are we maximizing freedom?”

Hamilton states that the biggest problem with the ancient republics was a lack of a unified authority such as he was proposing. These states found themselves “in a state of perpetual vibration between the extremes of tyranny and anarchy.” But before the progressive statists who are blogging about Federalist No. 9 get too excited about Hamilton and his national government, they should read carefully that his solution to the problem of this “perpetual vibration”  is not more government, or more precisely, not a leap toward tyranny on the anarchy-tyranny spectrum. Rather his solution lies in a balance of powers between state and national governments. A unified federal republic, or as Hamilton calls it throughout the essay, a CONFEDERATE republic (the caps are his), retains the benefits of security, through a unitary executive but checks that power, thus preserving liberty, through the retained sovereignty of the states. Hamilton got this idea from the famed Montesquieu and spends a good deal of the essay defending and elaborating on the Baron’s ideas.

What makes Federalist No. 9 so valuable to the modern reader is the clear outline Hamilton provides of those fundamental constitutional principles which allowed for the balance mentioned above, a balance we, with our “progressive” reforms, have all but destroyed. The first principle is the “regular distribution of power into distinct departments,” a separation that has become less distinct in modern times, beginning with the advent of FDR. The second principle is legislative checks and balances. Congress’s approval rating stands around 30%, for a time in the last year of the Bush presidency it was somewhere around 17%. These low numbers are reflective of the unfortunate disrepair the legislative branch has fallen into. The modern Congress is marked with a characteristic weakness when it comes to exercising its constitutional powers to check the presidency and the courts. Instead of standing up to the out of control spending of Mr. Obama, the Congress provides a blank check. In the place of vigorous debate and questioning about the causes of the Iraq War, Congress goes along with putting our military in a near hopeless situation. There is no question that our federal system is out of balance.  The third constitutional principle is “courts composed of judges holding their offices during good behavior.” Too many judges sitting on federal courts undertake to write laws instead of rule on existing ones, thus perverting the foundational pillar of American republicanism. But in the recent case of Judge Sotomayor, I suppose if one is a wise Latina woman you have the knowledge and the power to undertake such a task. Fourth, Hamilton points out that the “representation of the people in the legislature [is] by deputies of their own election.” This is one of the hallmarks of the American system but it should not be forgotten that this fundamental right was to be restricted to the House and not carried over into the Senate because that body helped preserve the Montesquieuian balance of security and liberty by providing representation for the states. Lastly, Hamilton claims that all this separation and checks and balancing can work in a large geographic location by the “consolidation of several smaller States into one great Confederacy.”

Notice the word he uses throughout the essay to describe the proposed federal union: confederacy. Clearly he did not mean confederacy as in the system set up under the Articles of Confederation or the CSA but it is clear that what he was defending was not the monolithic, one-size-fits-all national government we have today. Later in his life maybe, but in this essay he describes the new “confederate republic” under the constitution as:

‘an assemblage of societies,’ or an association of two or more states into one state. The extent, modifications, and objects of the federal authority are mere matters of discretion. So long as the separate organization of the members be not abolished; so long as it exists, by a constitutional necessity, for local purposes; though it should be in perfect subordination to the general authority of the union, it would still be, in fact and in theory, an association of states, or a confederacy. The proposed Constitution, so far from implying an abolition of the State governments, makes them constituent parts of the national sovereignty, by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of sovereign power. This fully corresponds, in every rational import of the terms, with the idea of a federal government.

In the proceeding paragraph one sees the balance between state and federal power envisioned by the framers of the Constitution. While governments exercise power best at the local level, the federal government should have the final say in “general” matters, read: war and commerce. When referring to the ancient Lycians and the interference of their common council in the affairs of local cities, Hamilton approvingly claims it was done by the “most delicate species of interference”. I don’t think one could find a person today who would say the national government was and is “delicate” in its intrusions into the states and the lives of their citizens (Google: flag@whitehouse.gov).  Save for a few general and necessary duties, the intrusions of the national government were to be small and few; the states were to retain “exclusive and very important” powers, powers which have been seriously eroded by the federal government. We have disrupted the Hamiltonian balance by passing the 17th Amendment, thus dismantling state representation in the national government. Through court cases, presidential acts and legislative inaction we have also severely restricted the scope and power of the 10th Amendment, which reserves to the states powers not delegated to the national government. But not all political leaders want to destroy the balance. Some want to restore it but they face an uphill battle. Why does Governor Rick Perry seem so strange when he tries to reassert this power and restore the balance laid out by Hamilton? Have we reached the point where being constitutional is unconstitutional?  Heaven forbid!

May we reach that happy balance between anarchy and tyranny by devolving to the states their share of sovereignty. That we may once again find ourselves, as in a mirror in Montesquieu’s passage about shared power:

As this government is composed of small republics, it enjoys the internal happiness of each; and with respect to its external situation, it is possessed, by means of the association, of all the advantages of large monarchies.

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