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?


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