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:

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.

Eastern Shore Tour: Frederick Douglass’ Birthplace

I posted earlier about the Saturday I spent roaming around the eastern shore of Maryland looking for historical sites. There was one site that I really wanted to find: the birthplace of Frederick Douglass.

As a libertarian living in Maryland, I don’t have too much to be happy or proud about. Maryland wasn’t the first to ratify the Constitution. It was a slave state. It seems to believe more in “democracy” than in “freedom” (yes, those are different things – and “democracy” is a nightmare). And the news keeps getting worse.

Portrait of Frederick Douglass
Frederick Douglass

So, I’ve never been able to marshal too much pride for my home state. That all changed when I learned about Frederick Douglass. Here was a man who was born as a slave in Maryland. He was beaten. He was moved from place to place by his master. Through all of that, he taught himself to read, learned a useful trade in the shipbuilding industry, and fell in love. Eventually he became a “thief” as he “stole himself” and escaped to the north and freedom. Here is a man who truly understands liberty, and made himself into one of its most eloquent champions. Here is a man that I can be proud to share a home with!

Naturally, I want to visit as many of the sites that were important to him as I can. It’s a way that I can connect to his life and my history in a very tangible way, and it’s a way that I can honor and pay tribute to his memory. It just feels like something I should do.

It all starts at the beginning doesn’t it? I want to visit the birthplaces of heroes like Douglass. But when your hero was a slave, born in a shack in the woods on his master’s property, you can only get so close to the actual site. This task is made all the more difficult in Douglass’ case because the historical marker commemorating his birth in Talbot county, placed by the State of Maryland, is nowhere near the actual site.

For one thing, it lists “Tuckahoe” as Douglass’ birthplace. But there is no town in Maryland called Tuckahoe – that name refers to the creek along which he was born. This is partly Douglass’ own fault, because he used that name to describe his own birthplace from time to time.

Also, while the marker is along the Tuckahoe Creek, it’s about 7 miles southeast of the actual site of his birth. There is nothing about that marker that would lead you to the actual site, either. You just have to do your own research to figure out where it is. Turns out, it’s here:

Frederick Douglass was born here
Frederick Douglass was born here

When you get there, there is no marker. There isn’t even a place to pull over on the side of the road and get a proper picture, or take a few minutes to contemplate the scene. Luckily, traffic was non-existent, so I managed to get this shot:

Tappers Corner - Douglass was born in these woods.
Tappers Corner – Douglass was born in these woods.

Douglass himself pointed out the site on a visit he made to the area in 1878. When Douglass was born in 1818, this plot of woods was part of his master Aaron Anthony’s “Holme Hill” farm where Douglass’ mother and grandmother lived as slaves. In fact, it was in his grandmother’s cabin – long since gone – that he was born.

It’s a shame that this site is so inconvenient to visit (let alone to even find). Douglass was a great man and should definitely be remembered and memorialized on a grander scale.

But failing that, can’t we at least place a marker at the right spot?

Eastern Shore Tour

My wife and I were invited to a wedding on Kent Island this past Saturday (congratulations Brian and Jane!) In fact, we were more than invited – my wife Ruth was asked to be a bridesmaid for her friend Jane.

The ceremony wasn’t until 6:30pm, but Ruth had to be on the island at 9:30am to start doing hair, makeup, dresses, and photos. I wasn’t too interested in going back home only to return a few hours later, so I decided to poke around the eastern shore for a little while looking for historically-interesting sites. I had a few things in mind that I wanted to see, and I put my faith in the HMDB and my iPhone to guide me to other ones.

I’m going to do a few posts about what I found, but I wanted to start with what I didn’t find, but was hoping to.

The Area I Was Exploring
The Area I Was Exploring

As I learned from Maryland, A Middle Temperament, Kent Island was the site of the first permanent English settlement in what is now Maryland in 1631. That pre-dates St. Mary’s City by about 3 years. The reason I said “what is now Maryland” above, is because the man who settled the island, William Claiborne, was actually trying to claim it for our southern rival, Virginia. After several armed interventions, and the island consequently changing hands several times, it was eventually made part of Maryland.

I was hoping that there would be something on the island to tell that story, but if there is, I couldn’t find it. There’s a single marker along route 50 (that everyone going to Ocean City drives right past), but it only gives a sentence worth of information. There is a better one just a little bit off the main road across the island. But there is no museum. There is no marker at the spot of Claiborne’s 4-gun fort (let alone a re-creation of it – which I honestly didn’t expect). It’s a little disappointing for a site that is so important to the history of our state. You’d like to be able to see that ground without having to do a bunch of research to figure out exactly where it is.

Kent Island has plenty to offer – there’s bars and restaurants, antique shops, beautiful views, and wedding venues obviously. There just wasn’t a lot of easily-accessible history for people like me who want to find it. This is a theme I discovered in my travels on Saturday. While there is plenty of rich history to be found over there, it seems like the eastern shore of Maryland is content with being a farming community that only incidentally houses gas stations and restaurants that people use as stops on the way to the beach.

Come to think of it, that’s probably more an indictment of the beach-going crowd than it is of the residents of the eastern shore.

Either way, I’ll show what I did find in a series of posts to follow.

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:

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.