Archive for Political Philosophy

Mini-Federalist #24 – The Powers Necessary to the Common Defense Further Considered

This is a continuation of a series of posts that are intended to be shorter, more understandable versions of the Federalist Papers. This post deals with Federalist #24, the original text of which can be read here: http://thomas.loc.gov/home/histdox/fed_24.html

Originally published December 19, 1787 by “Publius” – who was in this case, Alexander Hamilton.

There is only one argument that I’ve heard against the military powers granted to the Federal government in the proposed Constitution, and that is that there doesn’t seem to be enough protection against the creation of standing armies. Let me speak to that point.

This objection is only vaguely asserted, with no real facts to back it up. It goes against the historical evidence of every other free nation, and against the general will of our citizens. It seems like what these people want is for us to limit the power of the legislature when it comes to military affairs. With the exception of a few State constitutions, this idea is almost unheard of, and nearly universally rejected.

If you were learning about our political system for the first time by reading the current newspapers, you’d think that either the proposed Constitution explicitly requires us to have a standing army, or that the power to decide whether we have one lies with the President – while Congress has no say in the matter.

Of course, if the same person read the actual proposed Constitution, he’d see how wrong this initial impression is. Congress (a body that is partly elected by the people themselves) has the power to raise armies, not the President. Congress’ power even has a caveat: that no appropriation of money can be made for the army for greater than a 2-year term. When you really look at it, this is a solid protection against an unnecessary standing army.

With this in mind, our hypothetical political neophyte might then assume that the fury of these objections is based on the fact that our citizens are so worried about their freedom, that their current (or previous) governments’ charters must have included very specific and explicit limitations on the formation of standing armies. The fact that those traditional, explicit limits have somehow been left out of this proposed Constitution is what all the fuss is about.

Naturally, he’d be led to look at the States’ constitutions for evidence to support his assumption. What he’d find is that only 2 of those charters put an explicit limitation on standing armies. The rest either don’t mention the subject at all, or explicitly allow them.

Even after all this, he might think, “Well there must be some reason for all this panic!” He wouldn’t be able to bring himself to think that this is all just political wrangling on the part of people who are opposed to the new Constitution. “The answer must be held in the Articles of Confederation”, he may say, “surely the specific prohibition of standing armies that is lacking in the proposed Constitution has to be contained there!”

Imagine his surprise to discover that while the Articles restricted the States in that capacity, they make no mention of preventing the Federal government from forming standing armies. At this point, it would become absolutely clear to him that this objection is rooted in nothing more than political show-boating and fear-mongering. If anything, this proposed Constitution provides better security against the danger, and it at least deserves a fair and honest hearing based on the facts. This hypothetical observer would have to conclude that it looks like the opponents of the proposed Constitution are more interested in misleading people with emotional appeals, rather than convincing them with rational arguments.

Even if there is no historical or popular support for our opponents’ point of view, it is still worth taking a closer look at. If we did put a more explicit limitation on the formation of standing armies, it would probably end up being harmful (if not outright ignored).

It’s true that we’re far from Europe, but even on this continent, we’ve got British territories to the north and Spanish ones to the south. Both have islands in the Caribbean. We have sometimes-aggressive Native-American tribes to our west who are likely to ally with the British or Spanish against us. Improvements in shipping and communication will in effect make the world smaller. These facts, combined with the knowledge that Britain and Spain have two of the best navies in the world, and that it isn’t totally improbable that an alliance may form between them in the future, you can see that critical danger may arise at any time.

We’ve had to keep a guard on our western border ever since the Revolution. Obviously we need to keep this up as a defense against the native tribes. How are we going to man those forts? Either with militia who are sent to the frontier – away from their homes, families and jobs (which would be at least impractical and expensive, if not outright dangerous) – or with a small standing army. We should leave these options open to the wisdom of the legislature, and not force them to go with the much more troublesome militia-only route.

As we become a stronger nation, Britain and Spain will probably start keeping more troops on the continent to look out for their own interests. It would be wise for us to have enough men available in our frontier forts to counter that threat. Some key places – either because of their military or commercial importance – should definitely be strongly occupied at all times in order to prevent them from being taken by our rivals.

If our economy continues to rely on trade – or even if we just want to protect our shores – we need to have a navy. With a navy comes a need for port facilities and seacoast forts. Eventually, once we get a stronger naval presence, we may be able to get rid of the coastal forts, but at the start they will be necessary to protect us.

Mini-Federalist #23 – The Necessity of a Government as Energetic as the One Proposed to the Preservation of the Union

This is a continuation of a series of posts that are intended to be shorter, more understandable versions of the Federalist Papers. This post deals with Federalist #23, the original text of which can be read here: http://thomas.loc.gov/home/histdox/fed_23.html

Originally published December 18, 1787 by “Publius” – who was in this case, Alexander Hamilton.

Let’s talk about why we need a government with at least as much power as the one the proposed Constitution sets up.

This is most easily presented in three parts (we’ll deal with how to organize and distribute its power later):

  1. What should the government do for us?
  2. What amount of power does it need to do those things?
  3. Who is the “us” in the first question?

So, what are things that the federal government should do? Provide for the common defense – protecting us from foreign threats as well as domestic rebels; regulate interstate, as well as international trade; and finally, oversee all our diplomatic relations with other countries.

Our government can only provide for the common defense if it can also raise armies and maintain a navy, all the while providing material support, and control over them both. Because it is impossible to know exactly what kinds of military emergencies might come up, THERE SHOULD BE NO LIMITATIONS ON THIS POWER. If there are infinite types of danger, there should be infinite powers to meet them.

This truth is so obvious as to be self-evident, but if someone is expected to do a thing, he must be given enough power to actually accomplish it. I can’t make it any simpler than that.

Whether we should have a federal government to protect us at all is a fair question, but as soon as we decide that would should have one, it must be given enough power to actually be able to do its job. And unless the dangers to public safety can be defined as only being within certain limits, it is necessary for there to be no limit to the power of the federal government to create, control, and support the military.

As bad as the Articles of Confederation are, at least they acknowledge this fact (even though they didn’t really flesh it out fully). Congress was given the power to ask the States for men and money in support of an army, and to control that army. And given that the States are legally obligated to comply (even if they ignored that requirement much of the time), you can figure out that the intention was for the federal government to have any resources it needed to defend the individual States. You would think that the States would act in their own best interests and comply with those requests.

In practice, it obviously didn’t work out that way, and it should be clear to everyone that we need to totally re-think this system. If we’re serious about giving the federal government the power to defend us, we have to stop thinking about it as interacting only with the States – we have to give the federal government power over the individual citizens living within those States. The quotas are stupid and unfair, and we should get rid of them. In the end, the federal government needs to have total authority to raise armies and navies, and support them with taxes – the way all other governments do.

If we’re going to have a confederacy – rather than one national government – then we need to figure out how to divide up the powers between the States and federal governments. Is the federal government responsible for defense? Are armies and navies necessary for defense? If so, the federal government must control those. The same argument applies with commerce. It’s as simple as that. Should disputes between a State’s citizens be handled by that State? If so, the States need to have enough power to do that. If you don’t give the respective governments the power to do their jobs, you are unnecessarily handicapping them.

So who is best-equipped to provide for that defense? Isn’t it the government that is able to see, understand, and control the whole picture, and will be most likely to forcefully look out for everyone’s interests? It is madness to give the federal government the responsibility for defense, but leave the States with all the power needed to carry it out. Doesn’t this end with us sitting around wishing that the States would cooperate more? Leaving things how they are will only make us weaker, and our military less efficient, and the burden of it unfair. Isn’t this what we just got done dealing with during the Revolution?

The more we think about it, we have to admit that the federal government needs this power. Of course, it will be up to the people to ensure that this power isn’t abused, but any plan to fix our government that doesn’t include this power should be immediately rejected. If you can’t trust a government to do the fundamental thing that it should do, then you probably shouldn’t be installing that government in the first place. If you trust them to look out for you, you should be able to trust them with the power to do so. The opponents of the proposed Constitution are focusing on scaring you with the powers this new government has, when they should really be concerned with the structure of it. If it’s true that no government can be trusted with enough power to effectively govern a country our size, then we shouldn’t even try to make one, and just split up into separate confederacies right now. Otherwise, the paradox of demanding something that the government doesn’t have power to provide will become unbearable. Don’t try to work with the paradox – seize the logical solution.

I don’t think the other side can prove that this country is too large for a single government. I think I’ve made it pretty clear so far that the opposite is true: we need a central government, and the vast size of our country proves that we need one that is vested with enough power to govern it. If we listened to the people who rail against the proposed Constitution, we’d have to conclude that even the weak government created by the Articles of Confederation is too powerful for them.

Mini-Federalist #22 – The Same Subject Continued: Other Defects of the Present Confederation

This is a continuation of a series of posts that are intended to be shorter, more understandable versions of the Federalist Papers. This post deals with Federalist #22, the original text of which can be read here: http://thomas.loc.gov/home/histdox/fed_22.html

Originally published December 14, 1787 by “Publius” – who was in this case, Alexander Hamilton.

The problems we’ve already discussed aren’t the only ones that make our current system incapable of good government.

Everyone agrees that the government should be able to regulate commerce. We’ve already talked about how useful this would be, so I don’t have much to add. It’s obvious that this item requires federal supervision. The fact that our current government can’t do it has already led to tensions between a few States, and problems in negotiating foreign treaties. I mean, who is going to make a trade agreement with a government that can’t guarantee control of its own trade? The plan of the British government seems to be to play our States off each other.

And many States have done just that – acting independently in regulating their trade (especially with Great Britain). We need a uniform policy.

The greed and selfishness of some States, manifested in their trade regulations, has already led other States to complain and seek their own selfish solutions. Not only does this go against the whole idea of “Union”, but if we don’t get this under control, there won’t be a Union left. Look at what the Germans have done to their commerce by having every prince exact his own taxes on trade passing through his territory. Now, I hope we wouldn’t be so stupid as to allow that to happen, but if we keep going down this road of conflicting State interests, we’ll almost certainly end up treating all our neighbors like foreigners.

The ability of our current government to raise armies depends upon the generosity of the States for money and men. This led to severe problems and inefficiencies during the Revolution. States could only meet their quota of men by offering huge bounties to anyone who would sign up for them. As the men became more scarce, the bounties went ever higher. The people saw this going on, and so able-bodied men weren’t enlisting, hoping to get a better deal later on. In the midst of crisis, we couldn’t get enough troops, and were overpaying for the ones we had. Some States resorted to tactics that were less-than liberty-minded in order to meet their quotas. Is that the kind of society we want?

Not only is this system inefficient, it’s unfair. The States that have active battles going on within their borders had to try very hard to raise men out of fear, while the States that were far from the action barely participated in recruiting efforts. It isn’t like the negligent States could be easily found out – sending fewer men is harder to track and figure out than sending less money. The States that didn’t do their part will probably never make up for it. It’s pretty clear that this quota system – both for men and for funding – just doesn’t work.

Another problem is that every State has an equal say. This is unfair to the larger States – Delaware and Rhode Island have an equal voice to Pennsylvania and Virginia – and fundamentally goes against the idea of majority rule. Of course some will say that the States are all equal and sovereign, and thus a majority of States equals a majority of the country. But this doesn’t make sense – what if the “majority” that is formed of States is actually a minority of the total population? Should we all have to submit to the will of the minority? How long will it take the larger States to simply leave the Union rather than put up with this? By sticking around, they wouldn’t only be giving up power, but fairness, too. Since the smaller States aren’t equipped to go it alone without the larger ones, they should support any measures that keep the larger States happy.

One answer to this problem is to require a 2/3rds vote for any major decision – the idea being that 2/3rds of the States will always equal at least a majority of the population. But this isn’t fair – and plainly doesn’t add up. You can today put together 2/3rd of the States that don’t constitute a majority of the population. This is on top of the problem of determining which issues fit in the “major” category vs. the ones that can be determined by a simple majority. Also keep in mind: we will probably be adding more States later.

In addition: this “solution” may actually cause greater problems. If all decisions require a 2/3rds vote, then the minority can always veto the majority. We might as well have minority rule. And if some States aren’t available to vote on a matter, the problem is compounded. There have been cases where Delaware and Rhode Island (together about 1/60th of the population) have been able to block legislation. In this case, the “solution” acts in practice in exactly the opposite way that its designers intended. The idea behind a 2/3rds requirement is that it will promote security, but it in fact promotes obstructionism and corruption. In emergencies, quick action is required. Things have to move forward. In order for that to happen in such a system, the majority has to do what the minority wants – the minority will, in effect, be in control. This leads to delays, corruption, and bad compromises – and you’re even trained to feel good about these things! It all ends in weakness, and maybe even anarchy.

It doesn’t take much imagination to see that this also increases the chances for foreign corruption, not to mention rebellion at home. You may think this isn’t true, but imagine the damage that could be caused by a foreign power grinding our government to a halt at just the right time. While the 2/3rds requirement guarantees that nothing destructive will be done, its easy to forget that nothing good will be done either. The power to halt progress can be just as dangerous as the power to make the wrong progress.

Imagine that we’re in the middle of a war, as an ally of one nation against another. Now, if we got tired of war and decided to try to make peace while our ally wanted to continue, it wouldn’t be difficult for the ally to figure out that all he has to do is bribe 1/3rd of the States to see things his way, and he can prevent the peace process from happening. The same can also happen with our enemy – manipulating a small minority to get their way. And not just with wars, either. One foreign nation could, through corruption in a small number of States, prevent us from trading with other foreign nations.

I’m not making this stuff up. While the republic is a great form of government, it’s weakness is in how easily it can fall victim to foreign influence. Monarchies are far from perfect, but at least a King will not sell out his own country – that particular evil is extremely rare.

In a republic though, people who have been given power by their fellow citizens are often tempted by their own greed to sell that power to the highest bidder. Their personal gain isn’t explicitly linked to the good of the country as it is with a King. There are tons of historical examples of this kind of corruption in republics, and we’ve already talked about the damage that resulted. This type of buying of influence is commonplace.

Yet another problem with our system is that we have no federal judiciary. Laws become meaningless without courts. Treaties as well need to be treated like law, and we need courts to apply them. Rather than leave national matters to the individual State courts, we should have one supreme court to keep things consistent and act as a final arbiter. Most other nations have a setup like this.

This becomes even more of a problem in our system, where there are federal and State laws. What is to keep the States from over-ruling federal laws that they disagree with? If State courts get the final say, we will not only potentially end up with dozens of separate answers, but those answers will obviously be in the best interests of the individual States, not necessarily the common good. This is especially a nightmare for treaty interpretation and enforcement. Why would any foreign nation take us seriously when any treaty might be imbued with 13 different meanings?

So far, I’ve just talked about the biggest flaws in our system. There are still other smaller ones that gum up the works, too. Obviously, the system is so flawed that we can’t just patch it up with amendments – we need to gut it and start over.

Congress isn’t organized in an effective way. A single house may work OK now, but if we start giving additional powers to the federal legislature – even ones that everyone agrees it should have –  it could lead to problems. If we don’t change this aspect of Congress now, we may be forced to give the additional powers in an emergency situation later. If that happens, the government will either crumble under the weight of it, or become so all-powerful and tyrannical as to become one of the worst of all time. We will have created the terror that the opponents of the Constitution claim to be wary of.

Finally, it doesn’t help things that the Articles of Confederation were never approved by the people. Because it is essentially only an agreement between legislatures, there are questions about whether it can be repealed by individual States, or if it is even a legitimate government in the first place. As bad as it sounds to allow one party of a contract to completely annul it, that idea is on the table. We need to have a more solidly-constructed government. Our future has to be founded on the consent of the people. All national authority must be granted by them.

Mini-Federalist #21 – Other Defects of the Present Confederation

This is a continuation of a series of posts that are intended to be shorter, more understandable versions of the Federalist Papers. This post deals with Federalist #21, the original text of which can be read here: http://thomas.loc.gov/home/histdox/fed_21.html

Originally published December 12, 1787 by “Publius” – who was in this case, Alexander Hamilton.

I spent the last three articles discussing the specifics of some other historical confederate governments (including what happened to them). Now I’d like to talk about some of the defects in our own system. If we’re ever going to come up with proper meaningful solutions, we have to agree on what the problems are.

For one thing, the laws of our central government don’t have any weight to them. There is no explicit constitutional mechanism to enforce them nor power to dish out any kind of punishment for ignoring them. Even if we assume that the power exists, the Articles of Confederation lay out: “that each State shall retain every power, jurisdiction, and right not expressly delegated to the United States in Congress assembled.” So, we feel like we need this power, but we’d have to make it up (since it isn’t explicitly given) and the central government is only allowed to have powers that are explicitly given, so making it up is against the Articles (as our opponents point out). This puts our federal government in the rather unenviable position of making essentially meaningless laws.

Another problem is that there is no assurance in the Articles that the States will follow the laws. Even if we assume that it’s implied, doesn’t that go against the provision I stated above, too?

The bigger of these problems is the lack of a federal enforcement mechanism.

If there is no legal agreement for the States to follow the federal laws, then the federal government won’t have the ability to step in and help in the case of domestic trouble. What if tyrannical forces seized power in one or more States – what could the central government legally do? Little more than sadly observe. And this isn’t just theoretical – look at what just happened in Massachusetts. Can you imagine what would have happened if those rebels had better leadership? And this isn’t just a local problem – a tyrannical government in one State may very well cause problems for its neighbors.

Some people object to the idea of a guarantee because they feel that it would lead to an erosion of the States’ rightful power. These people misunderstand, and this objection keeps us from enjoying the primary benefit of having a Union in the first place. It wouldn’t prohibit the States from changing their own Constitutions legally, just if those changes happen violently – and we can’t have enough protections against that. Not only would this mechanism protect us against rebels, but leaders-turned-tyrants, too.

Still another problem is the issue of revenue. The system where the States provide funds on a quota basis has a fundamental flaw. There is no way that such a system can reliably provide for the federal government’s needs – we know this. I’d also argue that it is unfair to the States – we don’t have a way of accurately measuring who can afford what amount. We can’t go by amount of land, or amount of population, or even by value of land. What is the wealth of the Netherlands when compared to Russia, for example? In our own States, compare Pennsylvania with Connecticut – do land mass or population easily map to comparative wealth for them? The same problem applies to the counties within the States, too.

There are far too many variables that contribute to a State’s wealth: soil, climate, government, ingenuity of the people, education, trade, industries in the State, and many more. Since there are so many varied factors, we can’t possibly have one common measurement for the wealth of a State, and therefore no measure for how much they can afford to pay the federal government in taxes. Trying to create one will only create injustice among the States.

This fact alone will eventually lead to a dissolution of the Union. The States that are unfairly taxed will not simply sit around and take it. Under a quota system, this is impossible to avoid.

The only way to correct this is to allow the federal government to collect its own taxes, duties, and imposts. Such consumption taxes placed on certain specific items, payable by individuals, are the only fair revenue-generating measures. Each person (through his own buying habits) essentially decides how much he pays in taxes. This is as fair a system as we can possibly hope to make. Even if it isn’t totally fair, it would still be better than the current quota system.

Of course, the greatest thing about a consumption tax is that it will limit itself. If the tax is too high, the price of the taxed goods will be too high and no one will buy them, thus defeating the revenue-generating purpose. This simple fact will keep the taxes fairly low. It would be impossible for the people to be oppressed by these kinds of taxes.

These indirect taxes should be the main source of revenue for our government for the foreseeable future. Direct taxes (like property taxes) are easier to apportion – you can go either by population (which is simpler to figure out and thus preferred), or land value (which in a large, growing country like ours, is extremely difficult – and expensive – to calculate). Either way, we should have a definite rule for how these taxes are to be collected, otherwise the power of the government’s discretion may be abused.

Mini-Federalist #20 – The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union

This is a continuation of a series of posts that are intended to be shorter, more understandable versions of the Federalist Papers. This post deals with Federalist #20, the original text of which can be read here: http://thomas.loc.gov/home/histdox/fed_20.html

Originally published December 11, 1787 by “Publius” – who was in this case, James Madison (possibly with some help from Alexander Hamilton).

Another confederacy to consider is the Netherlands (which is actually more like a collection of aristocracies), but it again illustrates the points we’ve been talking about.

Their system consists of 7 peer states, each composed of cities. When it comes to important matters, they must all agree.

The central government takes the form of the “States-General” – a representative body of 50 delegates appointed by the states for various terms, either 1, 3, or 6 years – some delegates serve for life.

This body has many powers: it can make new treaties, declare war, build up the army and navy, and set taxes – but all these things require a unanimous vote, and the consent of the people. In addition, it can: appoint and receive ambassadors, handle existing treaties, collect trade-related taxes, create money, and provide some broad government to the member states. Those member states are forbidden from establishing their own treaties, or taxing trade to or from the other states. There is also a bureaucracy in place to help run the federal government.

The chief executive (called the “Stadtholder“) has now been made a hereditary position. His position holds a great deal of power, not just from its nature, but from his familial wealth and connections. He is also the Stadtholder for each of the states as well as the federal government, and in that capacity he can appoint officers in the cities. He can also create decrees within the states, preside over their courts, and grant pardons.

At the federal level though, he has tremendous power.

Politically, he can resolve disputes between the member states, participate in the States-General, and receive and appoint his own ambassadors.

Militarily, he commands all the armies (amounting to about 40,000 men), and appoints all the officers. He sets up forts and posts, and in-general, makes the rules for the military.

He is the chief of the navy, commanding every aspect of its deployment and use. Just like for the army, he appoints all the officers of the navy. Finally, as Stadtholder, he presides over military courts.

In line with these duties, he directly controls millions of dollars of government revenue.

It may sound pretty good on paper, but how does it actually work out? The government is routinely inept. There is squabbling among the member states. Foreign influence over the government is rampant. Peace is tenuous, and war presents a whole host of problems.

As Grotius said a century ago, nothing but the hatred of his countrymen to the house of Austria kept them from being ruined by the vices of their constitution.

Other people claim that the Union of Utrecht gives the States-General enough power to maintain relative stability among the states, but the states’ individual pride kept this from actually working out.

And even though all the member states are supposed to pay special taxes under the Union, it’s an impossible task – the inland states (because of a lack of trade) can’t possibly come up with the cash.

Most of the time, the tax requirements are ignored. The need for additional funds is usually so immediate that the consenting states don’t bother to wait around – they make up the difference and then try to get the money from the other states later. The state of Holland is powerful enough that it can make this work.

It isn’t uncommon for these back taxes to be eventually collected through military force. It’s a sad thing, but when one state has more power than the others, it can be done. It’s almost impossible to do when several – if not all – of the states are equal in strength.

Sir William Temple once observed that an ambassador could prevent legislation from being passed through intrigue in the cities and states. Treaties can be held up for years, and often are.

Even the requirement for unanimity has been often ignored by the States-General. Several treaties have been made throughout their history without the consent of all the states. When your constitution is weak, the government falls apart. You end up either with a government that doesn’t have enough power, or that ignores the rules to take the powers they feel like they need – and once the government starts ignoring the constitution, why would they stop? The call for “emergency powers” often leads to tyranny.

Despite the problems caused by the office of the Stadtholder, it’s likely that the government of the Netherlands would have fallen into anarchy by now if he wasn’t asserting influence over the member states. Both the Abbe Mably and Sir William Temple agree on this point.

Of course, the Stadtholder isn’t the only thing preventing anarchy. The union has to stay together to defend against foreigners. Oddly, it is those same foreigners who weaken the central government through their back room dealings.

No less than 4 times, there have been attempts to reform the constitution to correct some of these problems, but all those attempts have failed to get support. We should be thankful that our recent convention has had much more success.

There was a movement in the Netherlands to allow the central government to directly collect taxes. This failed, though.

The people of the Netherlands now have so many problems to contend with including minor rebellions and invasion by foreigners. The whole world is watching them go through it. We all wish for a revolution that will make things better for them, or at least for us to learn from their mistakes and make our own system better.

I know that we have spent a long time discussing these other historical federal governments, but I think it is necessary for us to learn from the experience of others – especially where the lesson is clear. The clear lesson from the Netherlands is that when you have a government that only controls smaller governments (and not the people individually), you end up with a violent form or coercion instead of the rule of law.

Mini-Federalist #19 – The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union

This is a continuation of a series of posts that are intended to be shorter, more understandable versions of the Federalist Papers. This post deals with Federalist #19, the original text of which can be read here: http://thomas.loc.gov/home/histdox/fed_19.html

Originally published December 8, 1787 by “Publius” – who was in this case, James Madison (possibly with some help from Alexander Hamilton).

The ancient governments I described in the last article aren’t the only examples that would be useful to us. There are other similar ones existing today that are worth a look. For starters, Germany.

What is now Germany has been occupied by many different peoples in the past. Under Charlemagne, France controlled Germany – until Charlemagne’s heirs broke up his empire. When that happened, Germany became a free-standing state because the local feudal overlords gradually took more and more power. The Empire of France was powerless to stop it. Small wars broke out between the local rivals for land and power, until an Austrian emperor rose.

With this style of feudalism being much like a confederacy already, it isn’t surprising that the current Germanic empire is federal in nature. There is a legislature (called a diet) which is representative of the “states”, and holds much of the power. The executive (an emperor) holds a veto on the acts of the diet. There is also a dual judiciary in the form of the Imperial Chamber and the Aulic Council.

The emperor has a lot of power. He is the only person who can propose measures to the legislature, and can veto what they come up with. He picks the ambassadors, grants titles of nobility, appoints replacement legislators in the event of a vacancy, creates universities, collects and spends taxes, and is ultimately responsible for the overall public safety. In his capacity as emperor, he doesn’t get any land or money, but he is still extremely powerful.

You’re probably thinking that there is so much power in the federal government of Germany, that it must be an exception to the rule. But this isn’t the case. The core principle here is that the empire is made up of sovereign states, and the federal government affects only those states. This means (like we discussed before) that the government can’t effectively control the states, can’t protect against foreign threats, and deals with constant internal squabbling.

Throughout it’s history, Germany has had wars between the emperor and the leaders of the states, and between the leaders of the states and the states themselves. There has been disregard for the rule of law, and the weak have been preyed-upon. Foreigners have frequently invaded. Requests for soldiers and funding have been ignored (with many failed and bloody attempts to enforce those requests). In general, the government has been inept, confused, and utterly terrible.

There was a time when the emperor was at war against half of his own country. He barely escaped an attempted capture, and on a few occasions was personally beaten by one of his own princes. There have also been too many wars between the German states themselves to count. After one such war (in which Sweden joined with many of those states against the emperor) a peace that was negotiated by foreigners was enshrined in Germany’s constitution!

The empire can’t even defend against foreign threats. There is so much infighting among the member states that they can’t join together before they are already invaded and winter has come.

Because of all this, they find it essential to have a small army at the ready at all times, but it is not well maintained and its soldiers are only paid every now and then.

Since this obviously wasn’t working out well, they decided to try splitting the empire into 9 or 10 districts. The rulers of these districts were to ensure that the laws were executed (even by military means), but this only illustrated the real problem: these smaller governments were just echoes of the original one. They either ended up not getting the job done, or doing it in the bloodiest way imaginable. In some cases, these districts are entirely composed of the troublemaker states (which was the problem they were supposed to solve).

It’s easy to judge the effectiveness of this system. A Catholic leader in Donawerth tried to hold a procession and a riot broke out. Martial law was declared, and the Duke of Bavaria tried to enforce it. Arriving with 10,000 soldiers, his true intentions became clear – he wanted to take the territory for himself (disarming the citizenry in the process).

So why hasn’t their government totally failed after this long? The states’ individual weakness – that’s why. Some are weak within the empire, and even the strongest of the states are weak when compared to their foreign neighbors. The emperor also has a reputation to uphold, and wields a lot of power by keeping these separate domains held together (however strained that hold is). This makes for a weak union, but as time goes on and people become more set in their ways, it becomes harder to change. Even if they were to make the empire stronger with a better-designed government, what makes you think the foreign powers surrounding the empire would allow that to happen? They will do whatever they can to keep the individual states warring amongst themselves, and thus weak as a whole.

If you’re looking for more examples of central governments controlling only member states (and not individual citizens) you might think of Poland. Their government is constantly having problems. It can neither govern nor defend itself, and is always at the mercy of the much stronger countries around it (who recently took by force over 1/3 of it’s land and population).

Some people think that the Swiss government is a stable confederacy, but the loose union of the cantons there doesn’t really qualify as one. There is no common treasury, army, monetary system, court system – nothing.

The only things binding them are geography, their own weakness compared to their neighbors, their shared peaceful culture, an inter-dependence upon their lands, the need for help with defeating internal rebellions, and the need to resolve conflict among themselves. They form ad-hoc courts from among the other cantons when needed, and choose a chief judge, or umpire if there is a split vote. This didn’t work out so well when the Duke of Savoy decided to make himself the mediator, and used military force to do it.

All of this evidence proves my point. Anytime the states within this “confederacy” had serious differences come up, the system broke down. There have been multiple wars over religion among the Swiss, and they now have two separate cantons (Catholic and Protestant), with totally separate legislatures. Their federal legislature is now almost totally powerless.

Of course, that wasn’t the only problem to come out of the big Catholic / Protestant split: the two sides are now allied with different foreign powers.

Mini-Federalist #18 – The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union

This is a continuation of a series of posts that are intended to be shorter, more understandable versions of the Federalist Papers. This post deals with Federalist #18, the original text of which can be read here: http://thomas.loc.gov/home/histdox/fed_18.html

Originally published December 7, 1787 by “Publius” – who was in this case, James Madison (possibly with some help from Alexander Hamilton).

Of all the ancient confederacies that we know about, the old Greek “council of neighbors” seems to be the most like our current American system.

Each city-state kept its own government, and all had an equal voice in federal matters. The central government took care of whatever it thought was in the common interest of the members: declaring and running wars, acting as a court of last resort, putting down rebellions, and bringing other city-states into the fold. They ran a state-controlled religion (including courts associated with the temples). The central government was sworn to protect the city-states, and to punish both rebels and heathens.

This certainly seems like enough power, doesn’t it? But this amounts to more power than we gave our government in the Articles of Confederation. That ancient government controlled the religion of the people, and was supposed to use force against the member city-states when they got out-of-line.

Of course, it didn’t work out that way. These powers ended up being executed by officers appointed by the city-states themselves, so they were never really used to their full extent. The more powerful city-states weren’t kept in-line, and merely converted the federal government into one that served their interests. Athens’ domination of ancient Greece illustrates this pretty well.

More often than not, the officers of the more powerful city-states strong-armed those of the weaker city-states into going along with whatever the stronger states wanted. The more powerful side, not necessarily the right side, won out.

Even when fighting wars with Persia and Macedonia, the city-states didn’t work together, and instead many even worked with the enemy! When not at war, the states squabbled with each other constantly.

For example, after the war against Xerxes, the Lacedaemonians tried to kick out all the traitor city-states, but the Athenians blocked the attempt because it would leave them at a power disparity within the central government. This one example shows how inefficient and unjust this union was. Even though the smaller states were supposed to have an equal say, they ended up being co-opted by the larger, more powerful states in practice.

If the ancient Greeks had really been thinking about it, they would have used the peaceful periods to make their government work better. Instead, the larger city-states (like Athens and Sparta) became power-hungry and ended up inflicting more damage than Xerxes had managed to. All that mistrust and anger culminated in the Peloponnesian war, destroying the government in the process.

Weak governments always end up suffering from internal conflict when they aren’t at war. This civil unrest naturally invites foreigners to try to disrupt things. Philip of Macedon gained control of Greece by pitting the city-states against each other over minor conflicts, and allying himself with the weaker side. It then wasn’t difficult for him to bribe his way into a leading position in the federal government.

Had their government been better-constructed and more unified, the Greeks may have avoided this sequence of events, and later been a more effective check against the power of the Romans.

The Achaean league also serves as a good example for us.

This was a much tighter and well-designed union. Even though they had similar problems, they didn’t really deserve them.

Each city-state maintained its own sovereignty, elected its own leaders, and was equally-represented at the federal level. Their central government exclusively handled declarations of war, diplomatic relations (including all treaties), and the election of a central executive called a praetor. He handled all military matters, and ran the government when the full senate wasn’t in session. Originally, they used 2 praetors, but found having only 1 to be better.

The city-states had a common set of weights and measures, used the same money, and had identical laws. We aren’t sure how much influence the federal government had in this area, but we know that when new members came on, they immediately started using the laws of the pre-existing city-states. This is the major difference between their system and that of the Athenians and Spartans.

It’s a shame that we don’t have better records of how the Achaean government actually operated. If we had more information on the inner workings of their system, it would enlighten all our discussions about how federal governments ought to work.

What we do know though, is that there was much more peace and justice, and far less squabbling in the Achaean league than in the other Greek governments where the city-states retained all the powers. As the Abbe Mably observed, there were fewer problems in the Achaean republic BECAUSE IT WAS THERE TEMPERED BY THE GENERAL AUTHORITY AND LAWS OF THE CONFEDERACY.

Of course, it was not a totally perfect set up. You can see that by the way the government ended up dissolving.

Originally, the Achaeans weren’t a big player in Greece, but once the Amphictyonic confederacy fell to the Macedonians, it wasn’t long before that foreign influence tried to break them up, too. Some were actually invaded, others were eroded from within through political corruption. The desire for liberty was awakened by these events, and eventually came close to uniting all of Greece under the Achaean system. The Athenians and Spartans, worried about maintaining their own power, put a stop to this though. While the Achaeans were trying to form an alliance with the Egyptians and Syrians, the Spartans attacked and spoiled the plan.

So the Achaeans were in a bad spot: they either needed to give in to the Spartans, or try to ally with the Macedonians. They choose Macedonia (who was only too happy to “help”). They sent an army to defeat the Spartans and eventually occupy the Achaean republic. The Achaeans tried to remove the Macedonian occupiers by allying with the other Greek states, but this wasn’t enough – they needed foreign help again, and this time they turned to the Romans who came in and did the same thing that the Macedonians had just done. The Romans fostered animosity between the Greek city-states, and convinced each that they should be totally sovereign. This led to the total destruction of the last great hope for a free Greece.

I’ve explained all of this seemingly unimportant history because it serves as a lesson – not just about the makeup of these ancient governments, but that it is much more likely for a federal system to fail because of dissent among its members, than by a tyrannical leader in charge of it.

Mini-Federalist #17 – The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union

This is a continuation of a series of posts that are intended to be shorter, more understandable versions of the Federalist Papers. This post deals with Federalist #17, the original text of which can be read here: http://thomas.loc.gov/home/histdox/fed_17.html

Originally published December 5, 1787 by “Publius” – who was in this case, Alexander Hamilton.

There is another counter-argument to the Constitution that I haven’t addressed yet: the Constitution gives too much power to the central government – power that should rightfully stay with the States. Now, it’s certain that people will be power-hungry, but I can’t think of a reason why the federal government would be able to take away State power. Policing the States about civil matters, or local agricultural concerns isn’t attractive. Regulating trade, negotiating with foreign powers, money, war – these are the powers that tempt people, and the Federal government is the rightful holder of those powers already. Trying to assume the States’ powers would just be extra work, with no real benefit.

Even if we assume I’m wrong, the national legislature, elected by the people would be in a place to prevent this. It would be easier for the States to wrongfully gain power from the central government, than the other way around. The States will have more direct contact with the people, enabling them to convince the people that they are competent to have more power. This is reason enough to ensure that the central government’s power is well-protected.

The States get most of their power from the importance of the things they control.

Human nature is that people don’t care about what they can’t see. People care about their family more than their neighborhood; their neighborhood more than their town; and so on. The same is true of their State in relation to the Federal government (unless the State governments to a terrible job all the time).

People will naturally be attracted to their State’s government.

I’m not going to list out all the concerns that the States will have power over, but suffice it to say that there are so many, that the States will have an unending source of influence.

Of course, the States hold one trump card: the day-to-day running of criminal and civil courts. This power alone is the most visible defender of people’s lives and property, and a source of comfort and fear. Everyone has an interest in the dispensing of justice, and done well, the people will revere those who do it. Holding so important a function for the people, the States will no doubt become a threat to the power of the central government.

Since the powers that the Federal government has are so general and detached from the people, they won’t form that same bond with the Federal government. Only a few people will observe the good that it does for us.

We’ve seen this happen with every constitutional government in history.

The old feudal systems were obviously not confederacies, per se, but they did have smaller subordinate territories, all reporting to a central government. Each smaller territory had a ruler with almost total control over that territory. Ultimately, what ended up happening was that the individual “states” (if you will) grew more powerful in relation to the central authority and frequently went to war with one another. The central government was powerless to keep order or to protect the people. Anarchy reigned.

Sometimes the central government would end up with an extraordinary leader who could keep things under control, but this was the exception not the rule. There were even times when the central magistrate was completely kicked out. In those rare times when extraordinary leaders were able to take control, it was because the local governments were so terrible that the people fought back against them, too. If those local governments would have been good to their people, they might have remained in power.

I’m not just making this up – think of Scotland. The clan system (in which the local governments were more like families) meant that no central government could prevail there. That is, until the powerful central government of England asserted the more rational rule of law over them.

It’s a fair comparison to say that our States are much like the old baronies of the feudal days. Like I explained, this kind of relationship means that the people are pre-disposed to support them, and defend them against unwarranted power-grabs by the Federal government. Our States are in a power struggle, and (just like the old Baronies) have the upper hand in that struggle.

Looking at the history of confederacies is vital to understanding this part of their structure. We haven’t paid enough attention to the history though, and that’s been the source of many of our problems. Our ignorance has led us to choose the wrong side in the fight. We’ll go into this topic further in future papers.

Mini-Federalist #16 – The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union

This is a continuation of a series of posts that are intended to be shorter, more understandable versions of the Federalist Papers. This post deals with Federalist #16, the original text of which can be read here: http://thomas.loc.gov/home/histdox/fed_16.html

Originally published December 4, 1787 by “Publius” – who was in this case, Alexander Hamilton.

We aren’t the only confederacy to fall into the trap of only making laws for the member states, and not for individuals. All of the previous ones that we know of did this in some capacity. I’m going to lay this all out because I think it’s worth remembering. Before I do though, I’ll say that the Lycian and Achaean confederacies (by all indications we have) seem to have done this the least, and they are (not coincidentally) the most highly-regarded of the ancient confederacies.

This error in thinking leads directly to anarchy. Like I explained in the last paper, it is natural for the states to ignore the laws of the central government. When that happens, the only eventual outcome is military enforcement by the central government against the states – in other words, civil war.

But would military force be enough to get it done? If we don’t have a standing army, this enforcement won’t happen often, and even if it does, it will result in the individual States choosing sides, and the more powerful side will win (regardless of whether it is the pro-union side or not). It’s extremely unlikely that this would only affect one State – it will probably be a group of them who ignore the Federal power – so they will naturally form an alliance. Smaller States that are on the fence could get drawn into the conflict by a larger, more powerful neighbor (many times using less-than-honorable or less-than-truthful justifications – especially if those larger States are in the anti-union camp). States that can’t find allies here will surely look to foreign nations for support (and you know they’d be happy to see us squabbling amongst ourselves). This will snowball out of control quickly, and the Union will be lost.

This shows only the potential “violent” death of the Union, though. Right now, we seem to be on the edge of a different kind of dissolution. Our States are wise and friendly enough that they will not immediately jump to war – instead, they will just get tired of fighting to maintain the Union by themselves and will drop their participation to the level of the least-participating State. In that scenario, since every State is guilty of ignoring the Federal government, who is going to decide which State to employ military force against? Even so, how could you determine which States don’t have the resources to participate, and which simply don’t want to? It would be impossible to tell, and whichever faction gains control of the central government would be free to use force against whichever States they wanted.

It seems pretty obvious that a government like this – with a standing, roving army to enforce even it’s most basic provisions, is NOT what we want. But this is exactly the kind of government opponents of the Constitution would lead us to. Even if this was an idea that could be accomplished, it would end up as a police state. It’s a nonstarter, though. We simply don’t have the means to maintain an army the size we’d need to be able to enforce Federal rules against the larger States. This is mythical, David and Goliath-type stuff here!

Historically, even smaller confederacies haven’t had success with military force against disobedient states. It was only used against the weakest states, and most of the time led to terribly destructive civil wars where every state took sides against the others.

All of this evidence points to an obvious conclusion: if our government is to succeed, it can’t have influence over only the States (as our opponents believe) but must be able to govern citizens as individuals. Not relying on the States, it must have the power to enforce its own laws. Any powers entrusted to the Federal government must come with the power to enforce those powers – just like the States have.

Of course, some of our opponents might say that we could still end up in a situation where the States get in the way, and we’re right back to military force again.

But there is a difference between non-compliance and active resistance. If our system requires the States’ participation in order to have the federal laws enforced, then the States can render the federal government utterly toothless by simply not doing anything. This inaction could easily be disguised as a lack of resources or ability by corrupt state leaders. In this situation, the people wouldn’t necessarily know that the Federal government is being actively fought against.

If we set the government up so that the Federal government can enforce its own laws with the people directly, then any resistance by the States would be plainly seen as the unconstitutional intrusion that it is. The States wouldn’t be able to get away with such encroachments anymore unless all the people, courts, and other States went along, too.

What about a group of individuals in rebellion? We can handle that the same way we do today – the courts can handle enforcement for the federal as well as the State laws. Better still, the Federal government can bring a lot more resources to bear against rebellious groups than any one State could hope to. If one of these disturbances spread nationwide (which doesn’t happen often) it would basically amount to a revolution and break-up of our government, and there’s no way for any government to fully prevent that from happening. Since those events would be rare and impossible to control, we shouldn’t judge the proposed Constitution on whether it can deal with them.

Mini-Federalist #15 – The Insufficiency of the Present Confederation to Preserve the Union

This is a continuation of a series of posts that are intended to be shorter, more understandable versions of the Federalist Papers. This post deals with Federalist #15, the original text of which can be read here: http://thomas.loc.gov/home/histdox/fed_15.html

Originally published December 1, 1787 by “Publius” – who was in this case, Alexander Hamilton.

In my previous essays, I’ve laid out the case for Union by explaining how important it is and pointing out the risks involved in dissolving the Union (an argument that is advanced with sometimes less-than-honorable means). I’m going to give you more insight about things we haven’t discussed up to now. If the path ahead seems unclear, remember that these are some of the most important and difficult questions that a free people can consider, and that the obstacles in our way are the result of small-minded people. I’m going to remove as many impediments as I can along the way.

Today, we’re going to talk about the “insufficiency of the present Confederation to the preservation of the Union.” Now, everyone agrees that the Articles of Confederation make a bad government (even opponents of the Constitution feel the same way). So why do I need to even mention this? Well, it’s obvious to everyone that we need to fix this system – there are serious problems with it.

Our current national state is just embarrassing. Our government can’t do the basic things it is supposed to do: We can’t pay back our debts from the Revolution (and seem to have no real plan to do so). Foreign powers are in possession of parts of our territory (and we’re powerless to do anything about it – we can’t even effectively protest the occupation). Spain is stopping us from using the Mississippi (even though a treaty states we should be allowed). Our government has no credit. Trade is at a very low level. The incompetence of our government means that no other nation will bother negotiating treaties with us. Real estate values have plummeted – not for any normal reason, but because people don’t have any faith in our government institutions to protect that property. Private credit has dried up for the same reason. I’ll spare you more examples, but can you think of an indicator of governmental failure that we aren’t currently experiencing? I sure can’t.

This sorry state of affairs has been produced by the same kind of thinking that the opponents of the Constitution want you to use. It’s bad enough that they’ve led us to the cliff – now they want to push us over the edge! Don’t be fooled. Don’t let them do it.

Even though everyone agrees that the current government doesn’t work, opponents of the Constitution are presenting a tired old solution that won’t work either. The ideas expressed in the Constitution are our only hope. Opponents acknowledge that the current government doesn’t have enough power, but they resist giving any more power to the government. When it comes down to it, they are afraid to change anything, so obviously we need to lay out exactly what is wrong with the Articles of Confederation so that it is clear that these aren’t minor issues, but serious structural problems (and of course, explain the causes behind them).

The first major problem is that the current system deals just with the States, and not with individuals. The federal government has no power to tax citizens, but only to ask for money from the States. Theoretically, these requests are binding law, but in reality the States just ignore them.

It’s amazing that even after all the problems they have caused, opponents of the Constitution still cling to their ideas (especially since a government that can’t touch the people doesn’t seem like much of a government anyway).

Obviously, there is nothing wrong with treaties and alliances. Every country in the world has entered into them (and broken them, too). In recent history, European countries have heavily engaged in creating alliances with each other – sometimes very complicated ones – in the hope that they would create lasting peace. Of course, all of these treaties were eventually broken. It just goes to show you how long a treaty will hold up when it is solely based on “good faith”, and the governments in question find themselves with other priorities.

Now if we’re really afraid of all this, we may decide to go on as 13 separate countries, leading us to all the problems I’ve already discussed, and forcing us into being friends and enemies simultaneously (depending on which foreign powers we fall victim to).

If we really don’t want that to happen, we have to think about our situation and create systems that will lead us to have a government, and not just a set of treaties. And the only thing that a government can really affect is individuals.

Governments make laws. Laws are meaningless without punishments for disobeying them. The enforcement of laws can either come from courts, or from raw military power. Courts can deal with individuals, but militaries have to deal with other countries. So, if we don’t have one government, capable of reaching individuals, the States will perpetually be at war with each other.

Originally, we were told that the States would all cooperate with the Confederation willingly, and there’d be no reason to expect problems. Our experiences have not shown this to be true. This point of view ignores human nature – why do we even need a government in the first place? Because people will not treat each other fairly all the time. What makes us think that a group of people (like the States) would be more responsible than the individuals that make it up? In fact, the grouping makes it worse as it tends to remove individual responsibility for the actions of the group.

Further, people who are in power want to remain in control of that power, and resist any outside limits placed on them – this is also just human nature. So in a confederacy, the individual states will naturally try to remove as much of the central government’s influence over them as they can. How can we expect them to work for the common good when it goes against human nature?

If the central government relies on their laws being executed by the individual states, those laws simply won’t be followed. The leaders of the States will only enforce laws that also mesh with their interests – disregarding the greater national good, in favor of local convenience. Every one of the States will do this. The laws of the Federal government would be worthless since they would vary from place to place. If you know how hard it is to get one legislature to agree on a solution to a problem, imagine how hard it is to get multiple ones, spread across a continent, to do it.

Our Confederation requires 13 members to agree. This just doesn’t happen, and the laws of the Union subsequently go unenforced. The States’ carelessness has, over time, ground the operation of the Federal government to a halt. Congress can’t keep things operating until the States can come up with a better idea. This has been a long time coming. Though some States did the right thing at first, how long can that hold up when everyone else is slacking? Why should only a few well-functioning States do all the work and bear all the costs? People can only fight their own selfishness for so long. Consequently, all the States have since withdrawn their real support of the Federal government, to the point that it’s about to collapse and smother us all.